case if the Lord avow upon the Feoffée before tender of the arrerages he shall lose them as it is agréed in 7 E. 3. and 7. H. 4 c. And therefore in as much as in such Case the Common Law forces the Lord to avow upon the Feoffor for that reason at the Common Law such Seisin by the Feoffor necessitas causa was good 〈◊〉 Quare Imâ—â—â— against â—e King or 〈◊〉 19 Regularly Co. l. 7 26. b. 3. Halls Case a Quare Impedit brought against the Bishop and Incumbent without naming the Patron abates yet if the King presents to a Benefice and his Clerk is admitted instituted c. In this case a Quare Impedit may be brought for necessity against the Bishop or Incumbent for it lies not against the King So it was also of the Pope if he had usurped 12 H. 8. 12. 4 H. 7. 15 c. â—n Vicar geâ—â—â—al shall not â—â—â—fie but in 〈◊〉 of necesâ—â— 20 Albeit Co. l. 8. 69. a. 1 Trollops Case regularly the Vicar general cannot certifie excommunication yet he shall certifie it when the Bishop is in remotis aagendis viz. beyond Sea in the Kings Service but the Court must be acquainted therewith by matter of Record viz. by Writ out of the Chancery to direct them and not by the surmise of the party and then for necessity which is alwayes the Law of time for necessitas est lex temporis the Certificate of the Vicar General shall be allowed because no other can then do it for he onely ought to certificate to whom the Court may write to absolve the party as the Bishop or the Chancellor of the Vniversities Fee-simple â—â—th out of 〈◊〉 â—ing by â—â—â—essary withâ—â— Office c. 21 Reversion in the Queen upon an estate taile she grants it to T. in taile upon Condition that if be pay 20 s. Co. l. 8. 1. 6. b. 2. The Lord Staffords case at the receit of the Exchequer he shall have the said Reversion in Fée the Condition is performed the tenant in taile levies a Fine and his issue is barred And in this case the principal point was whether by the Condition performed the Reversion passed to T. And it was held that presently upon payment of the 20 s. by operation of Law the Fée was davested out of the Queen and vested in T. And this by necessity for if it should not vest at the time of the Condition performed it would never vest And therefore if in this Case either Office Petition Monstrance de droit or other thing should be requisite that would make the Quéens Grant void and would dis-able the Quéen to make such a Grant And with this agrées the Lord Lovels Case in the Commentaries for there it is said when the Condition is performed the Fée-simple shall be immediately out of the King without Petition Monstrance de droit or other circumstance for if he must tarry such circumstances then can it not vest presently and by consequent shall never vest because if the estate be not enlarged at the time of the enlargement appointed then shall it never be enlarged And therefore in such Cases for necessity the Fée-simple passeth out of the Quéen without any such circumstances with this also agrées Isabel Goodcheaps Case 49 E. 3. who being seised in Fée of an House in London holden of the King deviseth it to Richard Goodcheap and the heires of his body and for want of such issue to be sold by her Executors and she makes W. D. W. W. and I. de T. her Executors and dies without heir Rich. Goodch dies without issue whereby the House escheates to the King and after one of the Executors dies W. W. refuseth and W. D. sels the House and here the question was whether or no the Sale by one Executor was good but it was agréed by all that if the Sale were good it shall devest the House out of the King and the cause thereof is by necessity of Law for if the Sale did not devest the House at the time of such sale then could there be no Sale at all and the Executors who had but a power could not have any petition Monstrance de droit or other remedy Co. l. 8. 143. a. 2. Doctor Druries Case 22 There is a diversity betwixt mean acts done in Execution of Iustice which are compulsive and acts which are voluntary A diversity betwixt acts compulsive and volunâ—â—â— acts And therefore if erronious judgment be given in Debt and the Sheriff by force of a Fieri facias sell the Defendants term and after the judgment is reversed by a Writ of Error yet the term shall not be restored but onely the summe c. But if a Capias utlagatum be awarded whereby the Sheriff is commanded to take the body ut bona catalla quae per inquisitionem invenerit in manus nostras capias de vero valore c. And by force of this Writ the Sheriff by inquisition takes the Goods and Chattels of the out-lawed person and sels them and after the Out-lawry is reversed in this case the party shall be restored to his Goods and Chattels because the Sheriff was not commanded nor compelled by the Kings Writ to sell them Co. l. 9. 49. a. 4. The Earl of Shrewsburies Case 23 King James grants to the Earl of Shrewsbury the Stewardship of the Mannors of M. and B. An Earl may make a Depâ—ty but in the Patent power of making a Deputy was omitted neverthelesse it was adjudged that hee might make one for if such an Office descend to an Infant Ideot or man of non sane memoriae they by necessity ought to exercise it by Deputy So an Earl for the necessity that the Law intends of his attendance upon the King and the Common-wealth this Stewardship of a base Court shall be exercised by Deputy Co. l. 9. 66. a. 1. Mackallies ca. 24 An arrest in the night is lawful An arrest in the night laâ—ful as well at the suit of a Subject as of the King for the Officer ought to arrest him when he can find him otherwise he may perhaps never arrest him for Qui malè agit odit lucem and if the Officer do not then do it the Plaintiff may have an Action upon the Case against him and recover his losse in damages Therefore by necessity an arrest in the night is lawfull Co. ib. 66. b. 2. 25 The Lords day is not Dies juridicus An arrest the 〈◊〉 Sabbath and therefore judicial acts ought not to be done upon that day but Ministerial acts may in some Cases be lawfully executed upon that day as an arrest for otherwise perhaps they might never be executed and Christ permits Works of Necessity to be done upon that day bonum est benefacere in Sabbato Executors may sell lands in their owne names 26 If Attorneys have power by writing to make Leases by
juridicus Co. Inst pats 1 135. a. for that ought to be consecrated to divine service Pleas. 2 No plea shall be holden Quindena Paschae F. N. B. 17. f. because it is alwayes the Lords day but it shall be crastino quindenae Paschae Finâ—â— 3. Vpon a fine levied with proclamations according to the Statute of 4 H. 7. 24. if any of the proclamations be made on the Lords day Finches Ley pag. 7. all the proclamations are erroneous for the Iustices may not sit upon that day being a day exempt from such businesses by the Common Law for the solemnitie of it to the intent that all people may apply themselves that day to prayer and serving of God 1 El. Dyer 168 12 E. 4. 8. 3 If a writ of Scire facias out of the Common place beare Teste upon the Lords day it is errour because it is not dies dominicus in Banco Errour 4 No sale upon the Lords day shall be said a sale in Market overt to alter the propertie Sale 6 Gravius est divinam quam Temporalem laedere majestatem Co. l. 11. 29. b. Poulters case 1 Regularly Clergy a man shall by the Common law have the benefit of Clergie for any felonie Howbeit if a felon be also an Heretique Iew Sarazen or Infidel he shall not have it F. N. B. 269. b. Br. Heresie 1. Co. l. â— 58. a. Specots case 2 Heresie is an offence committed against the Majestie of God by a presumptuous oppugning of an Article of Faith or the like Heresie And therefore at the Common law this offence was punished by a more terrible and grievous mulct than any other felony whatsoever and indeed than Treason it selfe viz. by fire and faggot Howbeit to determine what is Heresie falls not within the Conusance of temporal Courts but is wholly left to the Ecclesiastical Iurisdiction for it appears by the writ de haeretico comburendo that at the Common law before an heretique could be committed to the Lay-power to be burnt he was to be convicted in a Provincial Synod before the Archbishop and his Clergie and then if he did either refuse to abjure the heresie or having abjured it upon a relapse were convicted again by such a Synod of that or any other heresie he was then delivered to the secular power to be punished by fire and faggot and no Sanctuarie could priviledge him Frowick Lect. Howbeit by the Statute of 2 H. 4. 15. any Bishop had power to do as much within his Diocesse and if the Sheriffe were present at his conviction the Bishop might deliver him to the Sheriffe to be burnt and that without the Kings writ but that Statute was repealed by 25 H. 8. cap. 14. and thereby that offence made presentable at Sheriffes Turnes and Léets and from thâ—nce to be certified to the Ordinarie which Statute the 25 H. 8. was also repealed by 1 E. 6. 12. from which time until 1 2 P. M. 6. which revived 2 H. 4. 15. an heretique was punishable at the Common Law as above is expressed but by 1 El. 1. the Statute of 1 2 P. M. was repealed and then by 1 El. the Quéenes Commissioners heretofore called the High Commission Court had power to judge of heresie but they were thereby also restrained to adjudge nothing Heresie but what was so adjudged by the holy Scriptures the four first General Councils or the Parliament with the assent of the Clergie in their Convocation Howbeit at this day the Iurisdiction of Bishops being taken away and that clause of 1 El. repealed by a later Act it séemes at present there is no law to punish that offence See more concerning heresies in the Statutes of 5 R. 2. 5. 2 H. 5. 7. 31 H. 8. 14. and 34 H. 8. 1. being all repealed by 1 E. 6. 12. See also Li. Intr. 264 and 340. Rast Ph. 319. 10. H. 7. fol. 17. and Doct. and Stud. L. 2. cap. 29. Howbeit observe that the said Statutes made in the raignes of H. 4. and H. 5. were chiefly intended against such as did then begin to discover the Pride Lucre and errors of the Church of Rome and in dirision were termed Lollards as you may read at large in the Book of Martyrs and elsewhere in divers other authors as Sleiden Brightman c. The Kings command against Law not to be obeyed by the Judges Stat. 18. E. 3. Stat. 3. 8. 3 One part of the Iudges oath is that they shall not deny right though it be by command from the King which if they breake they will be found guilty Laesae Majestatis divinae And therefore in such case they ought rather to disobey the Kings commands then thereby incurre the high displeasure of Almighty God for Gravius est divinam c. And to the end that the Iudges might be the better protected from this danger Stat. 2. E. 3. 8. the prudence of former times hath ordained divers Lawes whereby the Iustices have power to procéed Stat. 20. E. 3. 1. notwithstanding any command from the King to the contrarie no though it be under the Great or Privie Seal And therefore if the King write to the Iustices to prorogue an Assize because the defendant is in his service F. N. B. 153. h. yet the Iustices ought to procéed and not to cease for any such letter so likewise in an Assize the Bishop certifies Bastardie 29 E. 3. 14. Judgment 117 and the Kings letter is sent to the Iustices to cease because the certificate was suspicious notwithstanding which letter they tooke the Assize and afterwards albeit the Chancellor reversed the taking of the Assize in the Council because they obeyed not the letter yet notwithstanding that the Iustices gave Iudgement upon the Assize 22 F. 3. 12. Judgment 185 Also in dower the tenant was essoined and had farther day given at which the King sends a letter to excuse the tenants apperance alleadging that he was at Callis in his service Howbeit the Iustices gave no regard to it but proceeded notwithstanding that letter Nor by the Sheriff 4 The Sheriffe also 14 E. 3. Returns del Viscont 8â— who is but an Officer or Minister to the superiour Courts of Iustice ought not to desist from the due execution and return of writs directed unto him notwithstanding any command to the contrary from the King least he likewise incurre the like danger by breaking his oath And therefore we read in 14 E. 3. that N. de B. being attainted of disseisin with force An Exigi facias went forth against him to the Sheriff who returned that the King had certified him by writ that he had pardoned the trespasse and imprisonment commanding him that he should desist and that therefore he had not executed the writ whereupon saith Wilby the writ ought first to have béene sent to us that we might have commanded the Sheriffe to cease for the Sheriffe
that which is to be done in that particular wherein the said Commissioners have authority to proceed according to their discretion which neverthelesse is to be limited and bounded with the rule of Law and Reason For discretion is a science or understanding to discern betwixt falshood and truth betwixt wrong and right betwixt shadows and substance betwixt equity and colourable glosses and pretences and not to proceed according to a mans own will and private affections because Talis discretio discretionem confundit c. Common of â—iâ—â—nage 50 If the Commons of the Town of A. and of the Town of B. are adjacent Co. l. 7. 5. b. 3. Sir Miles Corbets case and that the one ought to have common with the other because of vicinage and in the Town of A. there are 50 acres of Common and in the Town of B. 100 acres of Common In this case the Inhabitants of the Town of A. cannot put more Cattle in their Common of 50 acres than that will féed without having any respect to the Common within the Town of B. nec è converso for the original cause of this Common for cause of vicinage was not for profit but for the preventing of Suits in a Champian Country by reason of the reciprocal escapes out of the one Town into the other And therefore if the Common of the Town of A. will depasture 50 Cattle and that of the Town of B. 100 Cattle it can be no prejudice to the one or to the other if the Cattle of the one Town do reciprocally escape and depasture out of the one Town into the other For if all their Cattle depasture promiscuously together per my per tout that can be no prejudice to the one or to the other c. â—an slaughter 〈◊〉 the day or â—ght diversiâ— 51 It is a good exposition of a Statute to expound it according to the reason of the Common Law For example at the Common Law Co. l. 7. 6. b. 3. in Milborns case if one had béen slain in a Town in the day-time viz. while there was yet full day-light and the Man-slayer had escaped the Town was therefore amercied and so it is holden in the 21 E. 3. Coronae 238. Dum quis felonicè occisus fuit per diem nisi felo captus fuit tota villata illa oneretur And with this also agrees 3 E. 3. Coronae 293. But if such a murther or homicide had béen committed in the night the Town should not then have béen amercied by the Common Law because then no follie could be imputed to the Inhabitants of the Town for letting him escape c. For the Scripture saith The day is ordained for man to labour in Psal 104. and the night to take his rest And the Poet saith Ut jugulent homines surgunt de nocte latrones And from this resolution of the Common Law the Statutes of Winchester 13 E. 1. and of 27 Eliz. cap. 13. are to be expounded For albeit no time be specified in those Statutes when the robbery should be committed for which damages are to be answered by the Hundred yet it is adjudged in 29 Eliz. in the case between Milborn and the Hundred of Dunmow in Essex that for a Robbery done before day the Hundred shall not answer but onely for that which is committed in the day time betwixt light and light And howbeit at the Common Law as is aforesaid the Inhabitants in great Towns were not to be amercied albeit the Man-slayer escaped when the Murther or Homicide was committed in the night Yet at this day since the said Stat. of Winchester by which it is enacted that in Cities and great Towns that are enclosed the gates shall be shut at Sunne-set until Sun-rising next morning Now the Inhabitants of such Cities and Towns are amerciable if such Man-slayer escape although the Murther or Homicide happen to be committed in the night as well as if it were committed in the day For now that act hath changed the reason of the Law and therefore the Law it selfe is also changed Ratio est anima legis mutata legis ratione mutatur lex For at the Common Law before the Statute if a man were slain in the night as is said before there was no fault to be imputed to the Citie or Town but now if they do not kéep their gates shut according to the Statute by reason whereof the offender escapes then is the fault and negligence in them and this agrées with the book in 3 E. 3. Coronae 299. which see also in Co. pro ut in margine Vide 149. 35. Co. l. 7. 32. The case of a fine per le Roy. 52 Inasmuch as the King is bound by the Stat. De donis conditionalibus as it is adjudged in the Lord Barleys case in Pl. Co. 240. Stat. De dâ— binds the Kâ— and thereâ— he takes bâ—fit of 4 H. 7. â— 32 H. 8. by which Act the King is restrained from alienation for it is provided by the same Act Quod finis ipso jure sit nullus Reason requires that the King shall take benefit of the Acts of 4 H. 7. and 32 H. 8. which enable the Tenant in tail to barre his â—â—â—es For it is agréed in all our Books that the King shall take benefit of any Act although he be not named 12 H. 7. 21. 35 H. 6. 60. Pl. Co. ubi supra And it would be hard if the King being issue in tail of a gift made to the Subject should be in worse condition than if he were not King Co. l. 8. 173. b. Virgil Parkers case 53 The Kings Tenant by Knight-service conveyeth half his land for the joynture of his wife that shall be Equality of the third 〈◊〉 descending and after marriage he demiseth the other halfe for years for the payment of his debts and legacies and deviseth 1000 l. to his younger Children In this case it was resolved that inasmuch as the advancement of his wife is as well within the Statute of 27 H. 8. Co. l. 10. 84. a. 4. Leonard Leveis case as the payment of his debts and the preferment of his children and for that the operation of that Statute doth principally take effect by the death of the Kings Tenant For that cause albeit the estate of the Feme hath the precedency yet the Kings third parâ— shall he taken equally out of both those halfs and not out of the half so demised onely And so it was also resolved M. 41 42 Eliz. betwéen Remington and Savage and the 23 Eliz. in Thynnes case And agrées also with the common experience of the Court of Wards Co. l. 95. a. 4. Connys case 54 In a writ of Mesne the Parol shall not stay for the nonage of the Plaintiff for it is not reason In a writ of Mesne the â—rol shall 〈◊〉 stay for lâ—â—y that the Infant shall be distrained for the services of
consideration of surrender the Quéen grants to the said B. for 21 yeares and 26 El. upon consideration of the surrender of the letters Patents of 23 El. she grants to him for thrée lives from the day of the making Here the demise for thrée lives is void being made upon consideration of the surrender of the letters Patents of 23 El. which were void they being upon consideration of the whole Estate which was not performed part being leased out to divers before Co. l. 7. 17. a. 1 The Case of Swannes 2 R. 3. 15 16. 35 The Custome in Com. Bucks is A signet for the nest that if Swans bréed upon any mans ground there the owner of the ground may take the third Signet in them of the ground where they did so bréed and it was adjudged a good Custome and reasonable because there is quid per quo The Lord Stranges Case in 2 R. 3. 15 and 16. cited in the Case of Swannes Co. 10. 37. b. 2 in Mary Portingâ—ons Case 36 Iudgment given against Tenant in taile with voucher and recompence in value shall bind the Estate taile Taile docke by recovery iâ— value nothwithstanding the Statute de donis 13 E. 1. and by such recovery in value the Tenant in taile shall have a formedon of the land so recovered in value as it was holden 15 E. 3. Briefe 324 vide plus in the Book at large And there is observed that albeit the docking of an Estate taile was never thought of by the Sages of the Law until 12 E. 4. yet long before that time the opinion of the Iudges was that it might be so barred in respect of the recompence of recovery in value Infant â—pellable â—â—â—urn 37 In a per quae servicia against an Infant Co. l. 9. 85. a. â— who hath the Tenancy by descent he shall not have his age but is compellable to attourn because at first the Lord departs with the Land in consideration that the Tenant shall hold of him and shall do him services and pay unto him a yearely Rent For the Tenant is called in Law Tenant peravaile because the Law presumes that he hath benefit and availe above the services that he doth and the Rent that that he payes to the Lord And therefore it is against Reason that when the heire hath the Tenancy peravaile by descent that he shall not pay the yearly Rent c. which was reserved upon the creation of the tenancy And therefore Attornment by an Infant is good which was the principal Case there resolved he being compellable to attourn in a per quae servicia as before is said upon the reason afore-said 〈◊〉 by farâ— not guarâ—â— 38 A Guardian shall not be punished for Wast done by a Stranger but the former shall F. N. B. 60. g. because as is supposed he receives profit out of the farme and may therefore have an action of Trespass against the stranger 〈◊〉 of Mesâ—â—h â—â—gh serâ— done 39 Albeit the Mesne have paid the services to the Lord Paramont Ibidem 138. b. yet if the Tenant be afterwards distrained for the services he shall have a writ of Mesne against the Mesne for it but whether he shall recover damages quaere yet it séemes he shall have damages because the Mesne shall have damages against the Lord Paramount if he will put his cattle into the pound for the Tenant and sue Replevin And yet nient distraine in his default is a good plea in a writ of Mesne â—â—y Aâ—â—l Parson â—â—sors 40 A writ of Annuity is maintainable against the Parson upon his Predecessors grant by assent of Patron and Ordinary Ib. 152. g. 1. and likewise upon an Ordinance made by the Ordinary without the Patron if he have quid pro quo So it is also by the Parson against the Vicar upon the Ordinaries Ordinance if he have quid pro quo Trespass â—â—cord no â—ervise of â—â—rament 41 When a trespass is done an Action conceived for it Pl. 6. a. 1 Fâ—gassaes Case a concord Executorie pleaded is no barre thereof For there being a wrong done and not denied it must be answered with recompence and then the Concord Executory is not any recompence de facto nether is there any Action given thereupon to compel the party to make recompence and so he is without recompence and destitute of means to recover any But upon an Arbitrament where the summe is awarded in recompence to be payd at a day to come that is a good barre because he may have an Act of debt is for at the day limited and so the Trespass is converted into another thing by the Arbitrators who are judges thereof and so it is answered with Action which countervails satisfaction in déed â—compence â—â—lue 42 In a Praecipe the Tenant voucheth Co. Inst p. 1. 393. a. 2. and at the sequatur sub suo periculo the Tenant and the vouchée make default whereupon the Demandant hath judgment against the Tenant And afterwards the Demandant brings a scire facias against the Tenant to have execution in this Case the Tenant may have a Warrantia Cartae And if in that Case a Stranger had brought a praecipe against the Tenant he might have vouched again for by the iudgment given against the Tenant the Warranty lost not his force But in such Case if the Tenant had judgment to recover in value against the vouchée he shall never vouche again by reason of that Warranty because he hath had recompence by taking advantage of the Warranty 43 If an Executor redeeme goods pawned by the Testator to the value of the goods Dier 2. 3. 6 H. 8. he may retaine those goods Executor redeemes a pawn and they shall not be assets in his hands for a man ought to be recompenced for that which he hath lawfully disbursed As a Disseisor who payes Rent chargable upon the Land shall have it recouped in damages Likewise if the Executor pay with his owne money the debt of the Testator he may retaine so many of the goods as amount to the summe or summes so disbursed by him and they shall not be assets in his hands Dier 35. 28. 29 H. 8. 44 A man recovers in a Writ of entry in the Post against Tenant in taile upon a voucher and recovery in value against the Common vouchee and before execution sued the Tenant in taile dies Recovery in value and his Issue enters In this Case the recoveror may well enter upon the Issue for the Issue cannot falsifie this recovery because of the recovery over in value P. Fitzherbert Baldwin sed Shelley è contrà Dier 90. b. 8. 1 Mar. 45 If I Bargaine and fell all my Trées in such a Close Quid pro qâ— an no mention is made of a summe of money for the consideration or if it be not said for a competent of money in this Case nothing passeth
the issue had 〈◊〉 recompence for the moity of the entailed Land and such Partition made no Discontinuance because in that Case it passed not by Livery of Seisin which is an act in Law but the Partition is in truth lesse then a Grant for that it maketh no degrée but each Copercener is in by discent from the Common Auncestor Littl. §. 263. Co. ib. 174. b. 3 27 If there be three or four Perceners who make Partition The Parceners part evicted and the part of one of them is evicted by lawfull entry in this Case she shall hold the other Lands with her other Sisters and so it is also betwéen the surviving Perceners and the Heires of the other or with the Heires of Perceners all being dead It is otherwise of Ioyntenants that make Partition by Déed for that is by act of the parties Littl. §. 290. Co. ib. 187 a. 3. and then the Warranty is destroyed but if Ioyntenants make Partition by Writ upon the Statutes of 31 or 32 of H. 8. the Warranty continues because that is by Act and in Course of Law but Perceners and their Heires coming in by Act of Law viz. by Discent have the same Priviledg above Ioyntenants after Partition as aforesaw Co. ib. 81. b. 2. 28 There is a Diversity betwéen Authorities created by the parties for private Causâ—â— and Authority created by Law Authorities 〈◊〉 do a thing for Execution of Iustice As if a man make a Letter of Attorney to two to do an Act if one of them die the Survivour shall not do it but if a Venire Facias be awarded to four Coroners to impanel and return a Iury and one of them die yet the other shall execute and return the same So if a Charter of Feoffment be made and a Letter of Attorney to four or thrée joyntly and severally to deliver Seisin two of them cannot make Livery because it is neither by them four or thrée joyntly nor by any of them severally but if the Sheriff upon a Capias directed to him make a Warrant to four or thrée joyntly or severally to arrest the Defendant two of them may arrest him because it is for the Execution of Iustice Co. ib. 192. a. 2 Littl. §. â—02 29 If there be two Co-perceners in Fée Partition of Parceners anâ— Joyntenants and the one makes a Lease for life this is no severance of the Co-percenery for no withstanding that Lease the Lord shall make one Avowry upon them both but if there be two Ioyntenants and one of them makes a Lease for life this is a severance of the Ioynture and several Avowries shall be made upon them And here the Reason is because Co-perceners come in by Discent but Ioyntenants by purchase the first â—â—ing the Act of Law and the other the Act of the Party Co. ib. 215. a. 1. 30 At the Common Law before the Statute of 32 H. 8. 34. Conditions iâ— Deed and 〈◊〉 Law the Grantée of a Reversion after an Estate for life or yeares could not take advantage of a Condition in Déed as if Land were let for life or yeares rendring Rent upon Condition that if the Rent were not paid at the day the Lessor and his Heires might re-enter here if the Grantée of the Reversion could not before that Statute take advantage of Entry upon the breach of that Condition for the non-payment of the Rent at the day limited by the Lease Littl. § 384. Co. ib. 236. b. 3. But before that Statute and since the Grantée of a Reversion may take advantage of a Condition in Law As if a man make a Lease for life there is a Condition in Law annexed unto it that if the Lessée doth make a greater Estate c. that then the Lessor may enter if this and the like Conditions in Law which do give an Entry to the Lessor the Lessor himself and his Heires shall not onely take benefit of it but also his Assignée and the Lord by Escheat every one for the Condition in law broken in their own time Condition apportioned 31 Since the making of the said Statute of 32 H. Co. ib. 215. a. 3 the Grantée of part of the Reversion shall not take advantage of the Condition as if a Lease be made of three acres reserving a Rent upon Condition c. and the Reversion is granted of two acres the Rent shall be apportioned by the act of the Parties but the Condition is destroyed for that it is intire and against Common Right Dumpors case Co. l. 4. 120. a. 4. But by act in law a Condition may be apportioned as if a lease for yeares be made of two acres one in the Nature of Borough English and the other at the Common Law and the lessor having issue two Sonnes dieth each of them shall enter for the Condition broken for the Reversion Rent and Common are divided by act in Law In the King Case also the Condition in such Case shall not be destroyed but shall still remain in the King â— Condition â—â—possible by 〈◊〉 act of God 32 If Feoffment be made upon Condition Co ib. 219. a. 1. Littl. § 352. that the Feoffée shall give the land to the Feoffor and his Wife to have and hold to them and the heires of their two Bodies the Remainder to the right heirs In this Case if the Feoffée die before any Feoffment made then is the Condition broken because he made not the Estates c. within the time prescribes by the law for when no time is limited for the doing of it then the Feoffée at his peril may perform the Condition during his life although there be no request made or else the Feoffor or his heires may enter but if the feoffment be made upon Condition that the Feoffée before the Feast of S. Michael next coming shall give the Land to the Feoffor and his Wife in tail ut supra and before the day the Feoffée dieth the State of the Heir of the Feoffée shall be absolute because a certaine time is limited by the mutual agréement of the parties within which time the Condition becometh impossible by the Act of God And therefore it is necessary in such Case when a day is limited to add to the Condition that the Feoffée or his Heires shall performe the Condition The Mortgaâ—â—â— dies beâ—â—t the day 33 If a man morgage his Land to another Co. ib. 219. b. 3 upon Condition that if the Mortgageor and I. S. pay 20 s. at such day to the Mortgagée that then he shall re-enter Here if the Mortgageor being in full life will not pay the Money but refuse to pay it and I. S. alone tenders it the Mortgage may refuse it But if the Mortgageor die before the day and I. S. payes the Money to the Mortgagée this is a good performance of the Condition and yet the Letter of the Condition is not performed
a Condition broken shall be seised in his first estate or of that estate which he had at the time of the estate made upon Condition Howbeit this faileth where there is an Impossibilitie it should be so As if a man seised of lands in right of his wife maketh a feoffment in fee by Deed indented upon condition that the feoffee should Demise the land to the feoffor for his life c. the husband dieth the condition is broken In this case the heire of the husband shall enter for the condition broken but it is impossible for him to have the estate that the feoffor had at the time of the condition made for therein he had but an estate in the right of his wife which by the coverture was dissolved And therefore when the heire hath entred for the condition broken and defeated the feoffment his estate doth vanish and presently the estate is vested in the wife Impossible conditions void 10. In all cases where the condition of a bond recognisance c. Co. Inst parâ— 1. 206. a. 4. is possible at the time of the making of the condition and before the same can be performed the condition becomes Impossible by the act of God of the Law or of the Obligee c. there the Obligation c. is saved but if the condition of a bond c. be Impossible at the time of the making of the condition the Obligation c. is single And so it is also in case of a feoffment in fee with a condition subsequent that is Impossible In that case also the estate of the feoffee is absolute but if the condition precedent be Impossible no State or interest shall grow thereupon As if a man be bound in an Obligation c. with condition that if the Obligor do go from the Church of Saint Peters in Westminster to the Church of Saint Peters in Rome within 3 houres that then the Obligation shall be voide In this case the condition is voyde and impossible and the Obligation standeth good So likewise if a feoffment be made upon condition that the feoffee shall go as is aforesaid the state of the feoffee is absolute and the condition impossible and voide In like manner if a man make a lease for life upon condition that if the lessee go to Rome as aforesaid that then he shall have fee Here the condition precedent is Impossible and voide and therefore no Fee-simple shall in this case accrue to the lessee Co. ibid. 218. a. 2. Pl. Com. 32. a. 4. in Colthrists case And. ibid. 34. b. 4. 11. If a Lease be made with Condition to have fee upon payment of money to the Lessor or his Heires at a certaine day Condition impossible no accruet before the day the Lessor is attainted of Treason or Felony and also before the day is executed Now is the Condition become impossible by the act and offence of the Lessor and yet the Lessee shall not have fee because a precedent Condition to encrease an estate must be performed and if it become impossible no estate shall accrue Co. l. 1. 87. a. 4. in Corbets case Co. l. 6. 40. b. 3. in Sir Anthony Mildmayes case 12. If Coparceners agree to present by turne Perpetuity this may be done being partition as to the Possession so if they agree that one of them shall have it from Easter to Lammas and the other from Lammas to Easter this is good and may be done as to the possession and the taking of the profits but they cannot make severance of the estate of Inheritance in the Land as the one to have it for one time and the other for another for such agreement were impossible and void And therefore if a man intaile his Land to his eldest Son provided that if he go about to alien c. that then his second Son shall have it c. this is void for it is impossible and against reason that an estate should cease as to one and yet continue as to another or that in such case the eldest Son should be dead when one beholds him and in full life when another looks upon him and so to make him as it were halfe alive and halfe dead Vide pl. ibid. Co. l. 2. 51. a. 1. Sir Hugh Chomleys case 13. If there be Tenant in tail Render void the Remainder in tail grants all his estate for the life of Tenant in tail the Remainder to Queen Eliz. In this case the Remainder to the Queen is void because the particular estate which should support it is void for that it is impossible that the Remainder granted during the life of the Tenant in tail should ever take effect in Possession or the Grantee enter to have any benefit of such a Grant Co. ibid. b. 4. and therefore void besides when the Remainder in tail had granted all his estate for the life of Tenant in tail it is not possible the Queen should take any thing when all his estate was granted away before to the first Grantee but in such case the Inheritance in obeyante c. Co. l. 4. 19. b. 2. in Briltridges case 14. If one say that I. S. is a perjured old knave Slander and that is to be proved by a stake parting the Land of A. and B. These words by reason of the insensibility and impossibility of them are not actionable for it is impossible Co. l. 5 8. a. 2. in Justice Windhams case that a stake should prove any thing 15. Regularly if Land be granted to two and their heirs Joynt Grant enures severally they shall take joyntly Howbeit if a Lease be made to an Abbot and a secular man or a gift to two men or two women and the heires of their two bodies begotten in one case the Possession and in the other the Inheritance is severall because it is impossible that an Abbot being a Corporation should take joyntly with a secular person or that two men or two women should have Issue of their two bodies unlesse one of them be an Hermotradite Payment of money 16. The payment of a lesse summe at the day in satisfaction of a greater Co. l. 5. 117. a. 3. in Pinnels case cannot be satisfaction for all for that by no possibility a lesser sum can be satisfaction for a greater but before the day a lesser sum may be taken in satisfaction of a greater and so may any thing else as an Horse Hawke or the like upon the day or before the day because the money paid before the day or a Horse Hawke c. may be as beneficiall for the party as if the money had been paid at the day The Dutchy of Cornewall 17. One cheife reason Co. l. 8. 16. a. 3. in the Princes case to prove the first point in the Princes case whether or no the Dutchy of Cornewall was to be alwayes in the eldest Son of
the descent cast or that after the death of the Bastard the Mulier entred before the heir of the Bastard yet none of these cases shall aid or help the Mulier Vide infra 25. Entry of feme covert 12 If a Feme covert have title of entry into lands Co. ibid. 246. a. 3. and her husband neglects to do it and during his life a descent is cast yet after her husbands death the feme may enter notwithstanding the descent But if a feme sole be seised of lands in fée and is disseised and then taketh husband In this case the dying seised of the disseisor shall take away the entry of the wife after the death of her husband because it will be accounted folly in the feme as well for that she did not enter when she was sole as that afterwards she took an husband who would not enter before the descent cast It is otherwise if the woman were under age at her marriage for then it will not be imputed to her folly but her husbands or it the Land were entailed and only disconnued Continual claim 13 If a man be disseised Co. ibid. 353. b. 4. Litt. §. 426. Co. ibid. 256. a. 2. Littl. §. 440. Co. ibid. 261. b. 4. and the disseisor die seised within a year and a day after the disseisin made whereby the tenements descend to his heir in this case the entry of the disseisée is taken away for the year and day shall not be taken from the time of his title of entry accrued but only from the time of the claim by him made and therefore it it will be accounted his folly that he made not his entry immediatly after the disseisin committed which he ought to have done Howbeit this is now holpen by the State of 32 H. 8. cap. 33. for now by that Statute if the disseisor dye seised within five years after the disseisin though there be no continual claim made it shall not take away the entry of the disseisin but after the five years there must be such continual claim as was at the Common Also that Statute extendeth not to any Feoffée or Donee of the disseisor immediate or mediate but they remain still at the Common Law as they were before the making of the said Statute Remitter 14 If tenant in tayl enfeoff his heir apparent Littl. §. 664. Co. ibid. 350. b. 1. the heir being of full age at the time of the feofment and after the tenant in tayl dyes this is no remitter to the heir because it was his folly that he being of full age would take such a feofment for albeit the heir apparent might have some benefit there by in the life of his ancestor yet was he by taking such a feofment besides his own subject during his life to all charges and incumbrances made or suffered by his ancestor Howbeit it is otherwise if he were under age in respect of his tender years and want of experience Liâ—tl §. 682. Co. ibid. 358. b. 4. 15 If tenant in tayl hath issue two sons of full age Remitter and he demiseth the land to the eldest son for life the remainder to the younger son also for life and dies In this case the eldest son is not remitted because it was his folly to take such an estate of his father which created a tortious feesimple but if the eldest son die without issue the younger son shall be remitted because no folly can be imputed to him for that the franktenement was cast upon him by force of the remainder Littl. §. 725 726. Co. ibid. 380 a 16 At the Common Law before the Statute of the 11 H. 7. 20. Warranty to barr entry if tenant in Dower or for life had aliened the land with warranty and the warranty had descended upon the heir reversioner or remainder-man being yet under age In such case they might have entred upon the alienee because no lachess or folly could be adjudged in them being under age that they did not enter in the life time of the terretenant But if the heir reversioner or remainder-man were within age at the time of the alienation and becoming of full age in the life of such terretenant did not enter they were barred by such warranty because it was imputed to their folly that they being of full age entred not in the life time of the tenant in Dower or for life Co. l. 1. 177. b. 1. in Mildmâ—yes case 17 Where a lease is void in Law Slander yet if one ignorant of the Law taking upon him to know the Law and medling in a matter that he hath nothing to do withall will report and affirm openly that such a lease is good to the prejudice of anothers title that other may have an action upon the case against the reporter and recover damages according to his prejudice for in such case Ignorantia Juris non excusat Co. l. 2 26. b. 3. in the case of Bankrupts 18 By the Statute of 13 El. 7. Bankrupts distribution is to be made to all the creditors rate and rate-like viz. to such of them as are willing to come in as Creditors but a Creditor that either obstinately refuseth or carelesly neglects to come before the Commissioners and pray the benefit of the Statute shall not be admitted to have any share with the rest for vigilantibus non dormientibus Leges subveniunt Co. l. 3 9. a. 2. in Bâ—vâ—lls case 19 Seisin of one yearly service is not seisin of another yearly service Lord and tenant as if there be Lord and tenant by fealty rent of 10 s. and three work-days yearly seisin of the rent is not seisin of the work-dayes neither is seisin of the rent seisin of sute of Court which is annual Vide 16 El. Dyer 330. d. And the reason is because it shall be imputed to the folly of the Lord that he did not obtain seisin of that which was yearly due unto him and besides it would be mischievous to the tenant for peradventure in antient time the work-days were discharged which now cannot be shewed whereupon might ensue sutes and trouble Co. l. 7. 6 a. 3. in Sâ—nd ls case 20 If a man be robbed in his house in the day time or in the night Robbery the Hundred in which that house is situate shall not be charged therewith for albeit the words of the Statute of Winchester are general without mentioning any place in special yet such Robbery is not within the said Act for divers reasons amongst which this is one viz. because the house of every one is his castle which he ought to keep and defend at his peril and therefore if any be robbed in his house it shall be imputed to his own negligence and default Co. l. 8. 72. b. â— in Greneleys case 21 By the Statute of 32 H. 8. c. 28. Entry by Feme Discontinuance by
but because the Mortgageor dies by the Act of God that shall not dis-able I. S. to pay the Money So also it I. S. had died before the day the Mortgageor might have paid it â—â—ewing of a â—eed to prove â— Condition 34 Regularly a man by Plea shall not defeat an Estate of Frank-tenement by force of a Condition Littl. § 365. Co. ib. 225. b. 4. unlesse he produce the proof of the Condition in writing c. yet if a Guardian in Chivalry in the Right of the heir enter for a Condition broken he shall plead the State upon Condition without shewing of any Déed because his Interest is created by the Law So it is also of a Tenant by Statute Merchant or Staple or Tenant by Elegit Likewise Tenant in Dower shall plead a Condition c. without shewing of the Déed and the Reason of these Cases and the like is for that the Lord doth create these Estates and they come not in by him that was to enter for the Condition broken so as they might provide for the shewing of the Déed but they come into the Land by Authority of Law and therefore the Law will allow them to plead the Condition witheut shewing of it yet the Lord by Escheat albeit his Estate be also created by Law shall not plead a Condition to defeat a Frée-hold without shewing of it but this is because it is conceived the Déed belongs to him neither yet shall a Tenant by the Courtesie plead a Condition made by his Wife In Doctor Leyfields Case in fine Co. l. 10. 94. b. and a re-entry for a Condition broken without shewing the Déed for albeit his Estate is also created by Law yet because the Law presumes that he had the Possession of the Déeds and Evidences belonging to his Wife it will not allow him that Priviledge Vide infra Ru. 56. Co. ib. 264. b. 4. 35 There is a diversity betwéen a Realease in Déed A Release in Deed and in Law and a Release in law for if the Heir of the Disseisor make a lease for life and the Disseisée release his Right to the lessée for his life his Right is gone for ever but if the Dissesée doth disseise the Heir of the Disseisor and make him a lease for life by this Release in law the Right is released but during the life of the lessee for a Release in law shall be expounded more favourably according to the intent and meaning of the parties then a Release in Déed which is the act of the party and shall be taken most strongly against himselfe Co. ib. 266. a. 2 c. 36 Rights are distinguished by thrée kinds Jus proprietatis Rights distinguished Jus possessionis and Jus proprietatis possessionis alias Jus duplicatum or droit droit For example if a man be disseised of an acre of land the Dissisée hath Jus proprietatis the Disseisor Jus possessionis and if the Dissiesée release to the Disseisor then hath he Jus proprietatis possessionis Now regularly it holdeth true Right extinct contra that when a naked right to land is released to one that hath Jus possessionis and another by a mean Title recover the land from him the Right of Possession shall draw the naked Right with it and shall not leave a Right in him to whom the Release is made So the Heir of the Disseisor being in by Discent A. doth disseise him and the Disseisée releaseth to A. now hath the méer Right of the land but if the Heir of the Disseisor enter into the land and regaine the Possession that shall draw with it A the méer Right to the land and shall not regaine the Possession onely and leave the méer Right in A. but by the continuance of the Possession the méer Right is therewith vested in the Heir of the Disseisor And the Reason of this is because the Right is conveyed by Release which is the act of Party but when the méer Right is subsequent and transferred by act in law there albeit the Possession be re-continued yet that shall not draw the naked Right with it but shall leave it in him As if the Heir of the Disseisor be disseised and the Dissesor enfeoff the Heir apparent of the Disseisée being of full age then the Disseisée dieth the naked right discends to his Heir and the Heir of the Disseisor recovers the land against him yet doth he leave the naked right in the heir of the Disseisée So if the Discontinuée of Tenant in Tail enfeoff the issue in Tail of full age and Tenant in Tail die and then the Discontinuée recovers the Land against him yet he leaveth the naked right in the issue â—â—e of 〈◊〉 37 If the heire of the Disseisor be disseised Co. ib. 266. a and the disseisée release to the Disseisor upon Condition if the Condition be broken it shall revest the naked right So likewise if the Disseisée had entred upon the heire of the Disseisor and made a feofment in fée upon Condition if he entred for the Condition broken and the heire of the Disseisor entred upon him the naked right should be left in the Disseisée but in these Cases if the heire of the Disseisor had entred before the Condition broken then the right of the Disseisée had béen gone of ever because the right in these cases was conveyed by release and feofment which are Acts of the party it had béen otherwise if they had béen transferred by Acts of Law as in the Cases put before in the example last afore-going â—â—â—se of â—dition 38 There is a diversity betwéen a Right which is favoured in law Co. ib. 274. b. 1. Litt. § 467. and a Condition created by the party which is odious in Law for that it defeateth Estates and therefore a right may be released upon Condition and if the Condition be broken the Right shall revest but if a Condition be released upon Condition the release is good but the Condition void â—eleas of aâ—â—â—s 39 In a mixt Action a release of all Actions real is a good barre Co. ib. 285. a. 2. Litt. §. 492. and so is a release of all Actions personal for a man by his owne act cannot alter the nature of his action and therefore if the Lessée for life or Lessée for yeares do waste now is an Action of wast given to the Lessor wherein he shall recover two things viz. the place wasted and treble damages and in this Case if the Lessor release all Actions Real he shall not have an action of waste in the personalty onely Also if he release all Actions Personal he shall not have an action of waste in the realty onely and so it is also where the Lessée doth waste and after surrendreth to the Lessor his Estate and the Lessor accept thereof here also the Lessor shall not have an action of wast