of good pleading must be observed Co. Inst pars 1. 303. a. 2. which being inverted great prejudice may grow to the party tending to the subversion of Law Ordine placitandi servato servatur jus c. And therefore first in good order of Pleading a man must plead to the jurisdiction of the Court Secondly to the person and therein first to the person of the Plaintiffe and then to the person of the Defendant Thirdly to the Court Fourthly to the Writ Fifthly to the Action c. which order and form of Pleading you shall read in the ancient Authors agréeable to the Law at this day and if the Defendant misorder any of these he loseth the benefit of the former Again the Count must be agréeable and conform to the Writ the Bar to the Count c. and the Iudgment to the Count for none of them must be narrower or broader then the other c. 4 If the King make a Lease for years rendring Rent Co. l. 4. 13. a. 3. in Burroughs Case with condition to be void upon non-payment of the Rent Re-entry giâ—en to the King without demand the King shall take advantage of that condition without any demand For so long as the Reversion and Rent continue in the King the Law dispenseth with the demand as a thing un-decent it being against the dignity of the King to wait upon his subject or to demand any thing of him It is otherwise if the King grant over the Reversion for his grantée shall not take advantage of the Condition without demand of the Rent But in the other Case the Law which alwayes requireth that decorum and conveniencie be observed appoints the subject to attend upon his Soveraign and in that Case to perform the first Act although it be in the case of a Condition which trencheth to the destruction of his Estate Howbeit this is onely a personal Prerogative annexed to the person of the King for order and decencies sake and not in respect of the nature and quality of the Rent c. â—o demand 〈◊〉 the value of â—arriage 5 One Of the reasons which the Lord Cook addes in the Lord Darcies Case Co. lib. 6. 71. b. 2. in the Lord Darcies Case why the fingle value of the marriage of a Ward in Knight-service should be due to the Lord without demand is this If the Common Law saith he would have inforced the Lord to have made tender to his word c. it would also have appointed all necessary circumstances for the performance of such a tender as a certain place c. where it should be done and would not have left the Lord which is the superiour to finde out the Ward which is the inferiour and who may if he will take advantage of his own shifts when there can be no laches at all in the Lord c. 6 Amongst other reasons produced to prove None but of the houshold shall sue in the Marshalâ—â— that in Suits prosecuted in the Marshalsie Co. l. 10. 73. b. 2. in the Case of the Marshalsie one of the parties at least ought to be of the Kings houshold this is one because saith the Book it would not be comely that a Car-man or other Mechanical person should at his pleasure sue another in that Court and upon that occasion take liberty to appear in Aula Regis where that Court was originally kept absque vestimentis aulicis for those that appear in Court use to wear garments suitable to that place And therefore it is recorded by Luke the Evangelist cap. 7. vers 25. Coepit de Johanne dicere ad turbam c. Quid existis visuri hominem mollibus vestibus amictum Ecce qui vestitu magnifico utuntur c. sunt in Palatiis Regis c. And the Common Law regards conveniency and altogether dis-allowes indecorum and every thing done contra bonos more 's 77 Negatio Conclusionis est error in Lege Co. l. 10. a. 4. in Priddle and Nappers Case 1 In Attachment upon a Prohibition the Plaintiffe counts against A. proprietary of Tithes Lands in the Priors handâ— not tithable that heretofore the Prior of Montecute was seised of twenty Acres of Land c. before and at the time of the dissolution and held those Acres and also the Rectory simul semel c. Ratione cujus the Prior held the said Lands discharged of Tithes The Defendant conveys title to the Land c Absque hoc that the Prior held them discharged of Tithes c. Here the plea of the Defendant pro consultatione habenda for he is in a manner an Actor was insufficient because he traverseth a thing not traversable For the prescription of the unity ought to have béen traversed and not the Conclusion viz. Ratione cujus because as in Logick the conclusion of a Syllogisme cannot be denied but either the major or minor Proposition so neither in Law which is the perfection of Reason c. Co. ibid. 2 In a Praecipe Ancient Demesne one that pleads that the Mannor of Dale is ancient Demesne and that the Land in demand is parcel of the Mannor and so ancient Demesne there the Demandant cannot say that the Land in demand is not ancient Demesne because that is the Conclusion upon the two first preceding Propositions viz. 1. That the Mannor is ancient Demesne 2. That the Land in demand is parcel of the Mannor for sequitur conclusio ex praemissis and therefore it cannot be denied and with this agrées 41. E. 3. 22. 48. E. 3. 11. and many other Books 78 The Law respecteth the Bonds of Nature Co. Inst p. 1. 78. a. 2. 1 If before the Statutes of 32 34 H. 8. Wardship the father had infeoffed any of his younger sons or others for the making of his wife a Ioynture or for the advancement of his daughters or for the payment of his debts Co. l. 6. 76. a. 3. in Sir George Cursors Case and after had enfeoffed and conveyed the Land to his heir and had died his heir within age his heir should not have béen in ward neither was it Collusion upon the Statute of Marlbr cap. 6 c. because he was bound by the law of Nature and Nations to provide for them but now by force of those Statutes he shall be in ward for his body and for a third part of the Land c. No wardship â—uring the faâ—hers life 2 A. hath issue B. a daughter and his heir apparent who being married to C. hath issue by him D a son B. dies Litt. §. 114. Co. Inst ibid. a. 3 c. and A. that holds Land by Knights-service dies seised and the Land descends to D as heir unto A. and within age In this Case the Lord shall have the wardship of the Land but not the wardship of the hody of the heir for none shall be in ward for his body to
then issue a sonne and a daughter And after the divisor dies also A. dies and B. dies without issue C. also and his wife die and the sonne hath issue a daughter and dies Here the question was whether the daughter of the sonne should have the land or no And it was resolved that she should not because in this case at the Common Law C. and his wife had but an estate for life with remainder to their children for life and then the cause or reason why they by the will should have an estate taile is onely grounded upon the intent of the divisor Howbeit it was resolved that such an intent ought to be manifest and certaine and not obscure and doubtfull because it will not then admit of any strained construction farther than the words themselves do import by a proper and genuine interpretation according to the Rules of Law Devise 5 If I devise lands to my sonne Thomas to hold to him and the heires male of his bodie for the terme of 500 yeares Co. l. 10. 87. a. Leonard Loves Case Dyer 7. pl. 8. 28 H. 8. his heire shall not have them but his executors for this terme is but a chattel and cannot be intailed and such a devisée may alien the terme if he please And Cook Chief Justice held that such a devise is but an estate for years because it is so in expresse words devised and that in this case against expresse words no inference or interpretation shall be admitted Tales 6 Tales de circumstantibus shall not be granted in an Assize by the Statute of 35 H. 8. 6. Co. l. 10. 105. a. Denbawdes Case because by the expresse words of that Act they are onely grantable in every writ of Habeas corpora or distringas with Nisi prius and no exposition can in this case be made against expresse words for viperima est ista expositio quae corrodit ventrem textus 7 If feme tenant for life take husband who makes wast Co. l. 5. 75. b. Cliftons Case and the feme dies Here the husband is not punishable for that wast because the Statute of Glocest 6 E. 1. cap. 5. is thus recited in the writ of wast Wast Quare cum de communi c. provisum sit quòd non liceat alicui vastum c. facere de terris c. sibi demissis ad terminum vitae vel annorum c. So that the land being not demised to the husband but he holding it onely for her life and in her right he shall not be chargeable for wast after the death of the wife by the expresse words of the Act as it is recited in that writ Devise 8 A devise of land by will is good without Probat Dyer 53. b. 11. 34 H. 8. because the Statute of wills ordaines onely that it shall be in writing and enjoynes no Probat and therefore if it be in writing and proved by witnesses it is good without Probat Tail of the King 9 If tenant in tail of the gift of the King Co. Inst pars 1 373. 1. the reversion to the King expectant is disseised and the disseisor levie a fine and five yeares passe this shall barre the estat tail notwithstanding the Proviso in the Statute of the 32 H. 8. cap. 36. So likewise if a collateral ancestor of the Donée release with warrantie and the Donée suffer the warrantie to descend without entry made in the life of the ancestor this also shall bind the tenant in raile because the words of that Statute are had done or suffered by or against any such tenant in taile And in this case he is not partie or privie to any act either done or suffered by or against him 17 Maledicta est expositio quae corrumpit textum Co. l. 2. 24. a. Baldwins Case 1 The Earl of Cumberland demises land to Anne and to one Anthony Baldwin her sonne and to the heires of the said Anthony Demise Habendum to them from the date for 99 yeares Here albeit heires are mentioned in the premisses yet is not the Habendum repugnant unto them but they have a joynt estate for yeares for it cannot be repugnant as to Anthony and yet good to Anne Viperima est ista expositio quae corrodit ventrem textus Co. l. 11. 70. a. Magd. Colledge Case Grants to the King Stat. 13 El. 10. 2 Grants to the King are restrained by the general words of 13 El. 10. for the words are to any person or persons Grants to the King of Church Livings bodie politique or corporate and the King is a person as it is said in 10 H. 7. 18. and a bodie politique as appears in Plowd fol. 213 234. Now therefore if the King be cléerely included in the letter if he shall be excluded out of the Act it must be by construction of Law and in this case the Law will make no such construction for the Quéen Lords and Commons who made the Act have adjudged as in the preamble appears that long leases made by Colledges c. are unreasonable and against reason much more estates in fée simple And the Law which is the perfection of reason will never expound the words of that Act against reason for maledicta est expositio c. 18 Nimia subtilitas in lege reprobatur Co. l. 5. 121. a. Longs case 1 Exception was taken to an Indictment Indictment because it was said to be taken coram W. S. Coronatore Dominae Reginae infra libertatem dictae Dominae reginae villae suae de Cossam praedict super visum corporis c. and doth not alleadge to what places the said libertie doth extend or whether part or any of the towne of Cossam be within the libertie and so it did not appear that the Coroner had any Iurisdiction in the place where the inquisition was taken nor where the murder was committed nor where the dead bodie lay for all is alleadged by the indictment to be at Cossam Howbeit the indictment was adjudged sufficient notwithstanding this exception for although it be true by the Rule of Law that indictments ought to be certaine yet it is to be observed that there are three sorts of certainties 1 To a common intent 2 To a certain intent in general 3 To a certain intent to each particular The first sufficeth in barres which are to defend and excuse the partie the second is required in indictments counts replications c. because they are to excuse or charge the partie the third is rejected in Law as too nice and curious for Talis certitudo certitudinem confundit And in this present case the indictment is certaine enough in general viz. that Cossam is within the libertie of Cossam but to imagine that the libertie may extend out of the town and yet the town it self to be out of the libertie is a captious and strained intendment which the
his Jure Regio as it was said in 21 E. 3. 47. in the Earl of Kents Case And this is an high and great Prerogative which the King hath that when he makes any Grant upon such false suggestions those Grants are void in Law So also when upon false insinuations and pretexts he makes any grant as of a Monopoly Monopolies c. which in truth is in the prejudice of the King and Common-wealth the King Jure Regio shall avoid such Grants and such Letters Patents shall be by judgment of Law cancelled And therefore in Legats Case in the 10 Rep. it is wittily said of Perpetuities Monopolies and Patents of concealment Concealmenâ— that they were born under an unfortunate Constellation because as soon as they were drawn in question Perpetuities Iudgment was alwayes given against them and never for them they having alwayes two inseparable qualilies incident unto them viz. to be troublesome and fruitlesse â—ent 60 If rent be payable at the Feast of Easter Co. l. 10. 127. b. 4. in Cluns Case and the tenant pay the rent in the morning and the Lessor die before noon this payment is voluntary and good satisfaction against the Heir but not against the King 44 E. 3. 3. â—he King not â—â—rred by Acts â—f Parliament 61 When the King hath any Prerogative Estate Right Title Co. l. 10. 74. b. 4. in Magd. Coll. Case or Interest by the general words of an Act of Parliament he shall not be barred of them as in case of reasonable aid the King hath an Estate and Interest in it and therefore the general words of the Statute of West 1. cap. 35. shall not extend unto it Also the King hath a Prerogative quod nullum tempus occurrit Regi and therefore the general Acts of Limitations or of Plenarty shall not extend unto him F. N. B. 7. b. 32. c. Likewise the King by his Prerogative may sue in what Court be will and of that Prerogative he is not barred by the general purview of the Statute of Magna Charta cap. 11. Et sic de similibus â—arks â—icence 62 None can make a Park Chase or Warren Co. l. 11. 87. b. 1. in the Case of Monopolies without the Kings licence because that were quodam modo to appropriate such things as are ferae naturae in nullius bonis to himself and to restrain them of their natural liberty which he cannot do without the Kings licence c. â—ossessors of â—â—e Kings â—oods and â—â—eir execuâ—â— c. acâ—â—ptable 63 The Earl of Devonshire being Master of the Ordnance Co. l. 11. 90. a. in the Earl of Devonshire's Case obtained a Privie Seal to convert to his own use c. All the unserviceable Ordnance exprest in a Book in regard the King was informed that the Masters did use to claim and enjoy them as fées and avails belonging to their Office whereupon he sold them made his executors and died And in this Case it was resolved that albeit the Earl claimed them to his own use yet in regard the grant was made upon a false suggestion he was in his life-time accountable to the King for them because in the Kings Case the Law makes a privity for if any take the Kings goods or enter into his Lands by wrong the King may charge him in account 33 H. 6. 2. 4 H. 7. 6. 7 H. 7. 10. 15 H. 7. 17. 1 Eliz. 149. Breretons case and 40 Ass Pl. 75 If goods be devised to the King in whose hands soever they come the possessor shall be charged in accompt to the King and the King shall not be put to his Action of Trespasse for then by the death of the party the King should be without remedy but the King by his Prerogative may have an Action of accompt against the executors of the party as appears in Littleton fol. 28. And the King is not constrained to charge the Defendant as Bailiff or Receiver as a common person ought but the King may alledge in his Information generally that he ad compotum Domino Regi reddend tempore mortis suae tenebatur in such sums of money due to the King c. as appears by many presidents in the Exchequer and in the Kings Bench And therefore if the Earl was in his life-time bound to render an accompt unto the King his executors shall do it after his decease c. If one by Letters Patents or by vertue of his Office hath power to assesse Fines upon grants or admittances made to Copiholders within such a Mannor of the Kings and he assesseth little fines for the King and under-hand takes great summes or other rewards of the Copiholders to his own use in deceit and prejudice of the King In this case he shall be charged to the King in accompt for all for in truth all was due to the King and if he die his executors in the Kings Case shall be charged for it is holden in 39 Ass Pl. 18. that the Officers and Ministers of the King may advantage him but can never do any thing to his dis-advantage Co. l. 11. 90. b. 4. in the Earl of Devonshires Case 64 M. 37. 38 Eliz. None can â—â—pose of the Kings treaâ—â—â—â— without hâ—â— licence An Information was preferred in the Exchequer against Carey and Dodington executors of Sir Walter Mildmay Knight Chancellor of that Court to render an accompt of 1525 l. of the Quéens treasure by him converted to his own use c. the Defendants plead that Sir VValter Mildmay non recepit c. ad computandum nec die mortis tenebatur Reginae in Compoto c. And the special Verdict was that the Treasurer and Vnder-treasurer of the Exchequer made a warrant to four Tellors or two to pay to Sir Walter Mildmay 100 l. per annum for his diet and 40 l. per annum for his Attendance in the Vacation by reason that by the annexing of the Court of first-fruits and Augmentation the Chancellor was constrained to attend more than other Chancellors had formerly done And in 2 Eliz. the Quéen directs a Privy Seal to the Treasurer Chamberlaines and Vnder-treasurer of the Exehequer commanding them or some of them to pay to such as should be imployed by her c. for their labours and expences at their discretions according to their merits in as large manner as any Treasurer Chamberlains or Vnder-treasurer had done before And in this Case it was resolved that no Officer nor all of them together can ex officio dispose of the Kings treasure without the Kings warrant although it be for the honour and profit of the King because the Kings treasure is the ligament of peace and the sinews of war and of so high a nature that the imbezeling of treasure trove although not found in the Kings Coffers was treason And treasure and other valuable chattels are so necessary and incident to the
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
upon an Infant and present Usurpation upon an Infant which Infant hath an Advowson by discent and after the Incumbent die the Infant shall present and if he be disturbed he shall have an Assise de darreine presentment But if the Infant purchase the Advowson and present and after the Church is void and a stranger presents and usurpes upon the Infant and after the Incumbent dies in this Case the Infant shall not have an Assâ—â— of darreine presentment but shall be put to his writ of right because in the first Case he is in by Act in Law viz. discent but in the last Case by act of the party F. N. B. 34. s. 52 If a Feme purchase an Advowson and takes Baron A Feme hath an Advowson and the Church is void and a stranger presents and the Baron suffers this usurpation here by this usurpation the Feme shall be out of possession after the six moneths past and shall be put to her writ of right of Advowson if she had presented before but if she had not presented before she is without recovery howbeit the Law is otherwise where the Feme hath the Advowson by discent or by course of inheritance which is an Act in Law Gâ—ant good without acâ—â—eament 53 The Grantée of a Reversion by Fine shall not have a Writ of Waste against the Tenant before the Tenant hath attorned Fitz. N. B. 60. I but if a Reversion escheat to the Lord he shall have a Writ of Waste against the Tenant without any Attornment Or if the Lord of a Villain claim a Reversion that the Villain hath here also the Lord shall have a Writ of Waste against the Tenant if he make Waste without Attornment So also if the King grant a Reversion by his Letters Patents the Grantée shall have a Writ of Waste without Attornment because the Grantée being in by matter of Record he is conceived in by act of Law in like manner if before or since the Statute of Wills a man deviseth a Reversion to one in Fée the Devisée shall have a Writ of Waste against the Tenant without Attornment for before the said Statute he was in by Custom and since the Statute by force of the same Statute which are acts in Law A writ of â—esne 54 If Tenant for life be distrained by the Lord Paramount for Services Fitz. N. B. 136. g. a Writ of Mesne doth not lye for him against him in remainder or reversion but against the Mesne yet in this Case Tenant in Dower shall have a Writ of Mesne against the Reversioner because she comes to her Estate by Act of Law 55 In real Writs original if one be summoned and severed Co. l. 10. 134. b 2. in Read Redmans Case and afterwards dies which is the Act of God this shall abate the Writ but the taking of Baron or Entry into the Land by the party that is so summoned and severed shall not abate the Writ because these are acts of the party and the Writ by such acts where there is no summons or severance becomes onely abatable Guardian may â—ead without â—ewing a Deed. 56 A man cannot plead in any action Littl. §. 365. Co. Inst p. 1. 225. b. 4. that the Estate was made in Fée Fée-taile or for life upon Condition without vouching a record thereof or shewing a Writing under Seal proving the same Condition but if a Guardian in Chivalry in the right of the Heir entreth for a Condition broken he shall plead the Estate upon Condition without shewing of any Déed because his Interest is created by the Law And so it is also of a Tenant by Statute Merchant or Staple or by Elegit Howbeit the Lord by Escheat Co. ib. 226. a. 1 although his Estate be created by Law shall not plead a Condition to deseat a Frée-hold without shewing a Déed because the Déed doth belong unto him Vide supra Ru. 34. 〈◊〉 â—iry 57 Vide Max. 148. 21. 58 An Action of Debt for a rent reserved upon a Lease for yeares is alwayes grounded upon a privity and if the privity fail Dyer 4. b. 3. 24 H. 8. the action also failes and so it is adjudged in 18 H. 6. that if a man make a Lease for yeares rendring rent albeit the Lessee never enters or occupies the land yet the Action of Debt lyes for the privity But in 9 H. 6. a man makes a lease for yeares rendring rent the Lessor grants the reversion to a stranger the grantée shall never have an action of debt for the rent because he was not privy but a stranger to the first Lease Howbeit when the Law makes a privity it is otherwise as if a Lease be made to one for yeares rendring rent and the Lessée makes his Executor and dies an action of Debt lies against the Executor for the rent because he is made privy by the Law â—portion â—ct of rent 59 At the Common Law there could be no apportionment of rent Dyer ib â—â— by the act of the party but onely by act of Law for if the Tenant before the Statute of Quia Emptores terrarum Anno 18. E. 2. had made a Feoffment in Fée of part of the Tenancy the Lord might distrain in that part for all the rent but at the Common Law if a man had made a Lease for yeares of two acres of Land the one in Borough English and the other in Gavelkind and had issue two Sonnes and died In this Case this rent should be apportioned because this rent discended to them by Course of Law So if Lessée for years make a Feoffment of parcel of the Land leased and the Lessée enter for the Forfeiture into that parcel In this Case also the rent shall be apportioned because this Title of Entry is given to the Lessor by the Law Dyer 246. 68. 8 Eliz. 60 After the Teste of a Writ of Covenant Fine of Feme Sole and the Dedimus potestatem and the Conusance of a Fine taken of a Feme Sole and before the day in Bank to record and engrosse the Concord the Feme takes Baron yet it shall be recorded and engrossed at the Fine of the feme sole for she had done all that in her lay to do And such a fine shall bind the feme and her Heires and also the Baron as it séems for the marriage of the feme was her own Act It had béen otherwise if in that mean time she had died being the Act of God for then the Writ of Covenant had abated 115 Utique fortior est dispositio Legis quam hominis Co. Inst p. 1 310. a. 1. â—87 b. 2. 1 If a reversion be granted to a man and a woman Attornment 〈◊〉 Baron and Feme they are to have moities in law but if they inter-marrie and then attornment is had they shall have no moities and yet by the purport
of the Grant they are to have moities because it is by Act in Law Vide Pl. Co. 483. a. 1. Co. ib. 310. a. 2. 2 If a reversion be granted for life the remainder in tail Attornment 〈◊〉 the particulaâ— tenant and remainders the remainder in fée attornment to the Grantee for life shall enure to them in the remainders to vest the remainders in them And in this Case albeit the Tenant upon the Attornment should say I do attorn to the Grantée for life but that it shall not benefit any of them in remainder after his death yet he Attornment is good to them all for having attorned to the Tenant for life the law which he cannot controll doth rest also all the remainders according to the purport of the Grant Co. ib. 321. a. 4 Littl. 5. 585. 3 Regularly Grant of a Seignâ—ory good without Attornment the Grant of a Seigniory is not good without Attornment yet if there be Lord Mesne and Tenant and the Mesne grant by fine the Services of his Tenant to another in fee and after the Grantée die without Heir so as the Mesnaltie comes to the Lord paramount by way of Escheat and after the Services of the Mâ—snalty are in arrear In this Case the Lord paramount may distraine the Tenant albeit he never attorned For the Seigniory being by Act in law by the Escheat drowned in the Mesnalty the Lord shall have as much benefit of the Mesnalty escheated as he had of the Seigniory drowned and the rather for that the law casteth it upon him and he hath no remedy to compel the Tenant to attorn Littl. §. 584. Co. ib. 321. b. also in Marlories Case Co. l. 5113. a. 4. 4 If the reversion of a Tenant for life be granted by fine to another in fée and the Grantée before attornment die wâ—thout Heir Grant of a Reversion without Attornment so as thereby the reversion escheates to the Lord if afterwards the Tenant make waste the Lord shall have a Writ of waste against him albeit he never attorned And yet where men claimes by force of a Grant made by Fine viz. as Heir or as Assignée c. there he shall not distraine or avow â—or have an action of waste without Attornment And the reason of the former Case is because the Lord is in by Escheat which is a méer Act in Law Howbeit so it is also when it is partly by Act in Law and partly by the Act of the party as if the Conusée of a Statute Merchant extendeth a Seigniory or rent he shall distraine without any Attornment because he is in by force of the Statute So also if a man make a Lease for life or yeares and after levie a fine to A. to the use of B. and his Heires B shall distraine and have an action of waste albeit the Conusée never had any Attornment because the reversion is vested in him by force of the Statute and he hath no remedy to compel the Lessée to attorn There is the same Law also of a Bargaine and Sale by Deed indented and inrolled for in that Case also the Bargainée is in by force of the Statute A Surrender in Law 5 A Surrender in Law is in some Cases of greater force Co. ib. 338. a. 2. in Sir Moile Finches Case Co. l. 6. 96. b. 3. And in the Church-wardens Case of S. Saviour Co. l. 10. 67. b. Co. ib. 354. b. 3. Litt. §. 673. than a Surrender in Déed As if a man make a Lease for yeares to begin at Michaelmas next this future interest cannot be surrendred because there is no reversion wherein it may be drowned but by a Surrender in Law it may be drowned As if the Lessée before Michaelmas take a new Lease for yeares either to begin presently or at Michaelmas this is a Surrender in Law of the former Lease Fortior aequior est dispositio legis quà m hominis Devesting an Estate out of the King 6 A Gift in Tail is made to B. the remainder to C. in Fee B. discontinueth and taketh back an Estate in Tail the remainder in Fée to the King by Déed inrolled Tenant in Tail dieth In this Case his issue is remitted and consequently the remainder And the difference is betwixt an act in Law for that may devest an Estate out of the King and a tortious Act or Entry or a false or feigned Recovery against Tenant for life or in tail which shall never devest any Estate Remainder or Reversion out of the King But a Recovery by good Title against Tenant for life or in Tail where the Remainder is to the King by defeasible title shall devest the Remainder out of the King and restore and remit the right owners Grant of a presentation 7 If a man seised of an Advowson in fée by his Déed granteth the next presentation to A. and before the Church becometh void Co. ib. 378. b. 4. by another Déed grants the next presentation of the same Church to B. In this Case the second Grant is void for A. had the same granted to him before and the Grantée shall not have the second avoidance by Construction viz. to have the next avoidance after it which the Grantor might lawfully grant For the Grant of the next avoidance cannot import the second presentation But if a man seised of an Advowson in fée take wife now by act in Law is the wife entitled to the third presentation if the husband die before In this Case if the husband grant the third presentation to another and then the husband die the heir shall present twice and the wife shall have the third presentation and then the Grantée the fourth for the fourth presentation shall in this Case be taken to be the third which he might lawfully grant And so note a diversity betwéen a Title by Act in Law and by act of the party for the act in law shall work no prejudice to the grantée Warranty expresse and in law 8 An expresse Warranty shall never bind the heires of him Co. ib. 384. b. 3. that maketh the Warranty unlesse they be named For example Littleton saith Ego haeredes mei but in Case of warranties in law in many Cases the heires shall be bound to Warranty albeit they be not named as Tenant in Dower who hath a Warranty in Law being impleaded shall vouch and recover in value a third part of the two parts whereof she is dowable c. Idem by will 9 It is a Maxime in Law Co. ib. 386. a 1. Littl. §. 734. that the heir shall never be bound to any expresse warranty but where the Ancestor was bound by the same warranty And therefore if Tenant in tail alien his Land to his brother in fée and hath issue and die and after his brother devise the same land to another in fee and bind him and his heires to warranty c. and die without
thing collaterall and transfers or convey nothing as if the Major and Cominalty of London have an Estate for the life of I. S. if in this Case the Major and Cominalty attorne to the grantée of the reversion the law requires that it shall be by déed for notwithstanding that the grantée comes not in by them that attorne and that the attornment is but a bare consent yet in pleading the déed of Attornment ought to he shewed for in such Case the déed is requisite ex constitutione Legis but when a déed is onely requisite ex provisione hominis in such Case the provision of a man shall not charge the judgement of the law as if a man make a lease for years of land to A. upon condition that he shall not assigne it over but by déed and not by parol in this Case ex provisione hominis the assignement ought to be by déed yet because ex constitutione legis the déed is not necessary for the assignée he may plead the assignement without shewing the déed â—â—render â—arranty â—â—â—â—ment 14 Fortior aequior est dispositio legis quà m hominis Co. l. 6. 69. b. 3 in Sir Mâ—ile Finches Case and therefore he that hath a future interest cannot surrender it by any expresse surrender but by taking of a new lease which is an Act and amount to a surrender in law it may be surrendâ—ed and determined as it is held in 35 H. 6. c. vide suprà cap. 5. So if the father be enfeoffed in Fée and the Feoffor warrant the land to him and his heires here the assignée shall not vouch but if the father enfeoffe his sonne and heire apparent with warranty and die in this Case the heire being in truth assignée shall vouch for the law which hath determined the warranty of the father to the son will give the son benefit of the first warranty as it was adjudged in 43 E. 3. 5. by which it appeareth that the act in law is both more strong and more equal The principal Case therein effect then the Act of the party can be So also if A. Lessée for 50 yeares demiseth to B. for 10 yeares and then the reversioner levies a fine to B. and his heires who enfeoffes D. who outs B. and B. re-enters upon D. here the entry of B. is a good attornment in Law and stronger then an expresse attornment Co. l. 8. 82. a. 3 in Vivyors ca. 15 Albeit a man be bound in an Obligation to stand to abide c. Authorities revocable an Atbitrament yet he may contermand it For a man cannot by his owne Act make such an authority power or warrant as shall not be countermandable which by the Law and in its one nature is countermandable as if I make a Letter of Attorney to make livery or to sue an Action in my name or if I assigne Auditors to take an accompt or if I make one my Factor or submit to an Arbitrament albeit these are made by expresse words irrevocable or if I bind my selâ—e that they shall stand irrevocably yet they may be revoked So if I make my last Will Irrevocable yet I may afterwards revoke it For my Act or my Words can not alter the judgment of Law and make that irrevocable which of its owne nature is revocable Co. l. 10. 67. b. 2 in the Church wardens of St. Saviour in Southwarke their Case 16 The Church-wardens of St. Saviour in South-warke having a Lease of the Rectory almost expired contracted Surrenders 〈◊〉 Law that the Church-wardens then having and possessing the said Rectory would pay 20 l. fine and surrender the old Letters Patents to the King and in consideration thereof a new lease should be granted them They paid the 20 l. fine delivered into the Chancery the Letters Patents and discharged the fées there but did not take care that the Letters Patents were â—acated and yet the King was not deceived in his grant but the lease adjudged good For it was a good surrender in Law because albeit the lessées were a corporation aggregate of many and could not make an expresse surrender without déed in writing under their seale yet they may by Act in Law surrender their term without any writing So if the Prior without the consent of the Covent make a lease for yeares rendring Rent if the Prior by déed expressely release the rent and die the Successor shall recover the arrerages but if the Prior out the lessée and die this discharge in law shall discharge the rent that incurred during the Outer against the Successor as appears in 34 H. 6. 21. Co. l. 1â— 80. b. 4 in Lewes Bowles Case 17 The Estate of a Tenant in Taile after possibility Tenant is taile after possibility â— c. ought to be a Râ—maine and residue of an Estate Taile and this by the Act of God and not by the limitation of the party ex dispositione Legis and not ex provisione hominis and therefore if a man make a Gift in Taile upon Condition that if he do such an Act that he shall then have it but for life he is not Tenant in Taile after possibility c. for this is ex provisione hominis and not ex dispositione Legis but it ought to be the remaine and residue of an Estate Taile and that by the Act of God and the Law viz. by the death of one of the Donées without issue And therefore if Tenants in special taile recover in an Assise and after one of them die without issue and afterwards he that survives who is Tenant in taile after possâ—bility is re-disseised he shall have re-disseisin for the francktenement which he had before for it is parcel of the Estate taile Vid. sup Case 4. Co. l. 8. 152 a. 2 Edw. Althams Case 18 If the Disseisée release all Actions to the heire of the disseisor thereby his right is gone in judgment of Law Release of right for when a man hath not any other meane to come by his Land but onely by way of Action if he release all Actions by such release his right is Inclusive in Iudgement of Law gone because by his own Act he hath barred himselfe of all meanes and remedies to recover or attain thereunto but if the heire of the Disseisorâ— make a Lease for life the remainder in fée and the disseisée release to the Tenant for life all actions which he hath against him and after Tenant for life die the disseisée shall have an action notwithstanding such release against him in remainder for he did but release the action and the act in law will never extend the act of the party more largely then his expresse words as if the Lord disseise his Tenant and make a lease for life this release in law shall not entend farther then for the life of the lessée for true it is Fortior potentior est dispositio Legis quà m
action whereunto A. pleads that C. was in by the fine and not by the déed inrolled and that he never attorned upon which plea C. demurrs In this case although it was objected that it shall be intended by Law that the deed was enrolled the first day of that Easter Term because the Term as to divers purposes is but one day in Law and the rather for that it doth not appear by the record what day of the Term the deed was inrolled but generally Term Pasch and therefore it shall be intended to be enrolled the first day of the Term and then C. being in by the deed and not by the fine there needed no attornment yet in this case it was resolved by the Court that it was true that it shall be intended by presumption of Law that the deed was enrolled the first day of the Term but Stabit praesumptio donec probetur in contrarium and for as much as the plaintif by his demurrer hath confessed the enrollment to be after the fine the presumption thereby vanisheth and becomes of no force and the mutual consent and confession of both parties shall stand Co. l. 5. part 1. 5. a. 2. 7. b. 1. The Kings Ecclesiastical Law 6 In the cause against Cawdry being deprived by the High Commission Court for preaching against the Common Prayer-book Hâ—gh Commissioâ— it was objected that the Commissioners were not nominated and appointed according to the Act of 1 Eliz. 1. because the Iurisdiction and power given by that Act to the Crown was to name such Commissioners as were natural born Subjects and not Aliens and that it did not appear by the special verdict that the said Commissioners were natural born Subjects And therefore the Quéen having only a power given by force of that Act the nomination not pursuing the authority given unto her was utterly void c. But to this it was answered and resolved that they who were Commissioners and had places of judicature over the Kings subjects shall be intended to be subjects born and not Aliens but if in truth they were Aliens yet in respect of the general intendment to the contrary it ought to be alleged and proved by the other party for Stabitur praesumptioni donec probetur in contrarium Wardship 7 By intendment of Law the heir being under the age of 21 years is not able to do Knight service until his full age of 21 years Co. l. 6. 73. b. 4. in Sir Drue Druries case and herewith agrées Littl. fol. 22. yet this presumption of Law gives place to a judgement and proof to the contrary according to the Maxime Stabitur praesumptioni donec probetur in contrarium And therefore when the King who is the Soveraign and supreme Iudge of Chivalrie dubbs an Infant Knight he thereby adjudgeth him able to do Knight service all persons are concluded to say the contrary and therefore such an heir so made Knight shall be out of Ward and custody Howbeit he shall pay the value of his mariage c. Vide Ma. ca. cap. 3. Arbitrement 8 The submission to an award betwixt A. and B. was general Co. l. 8. 98. a. 2. Baspoles case viz. of all actions demands c. And the award was that A. should pay B. twenty pounds And in this case it was objected that it did not appear that the matter of the Arbitrement was the matter only that was betwixt them because the submission was general of all actions demands c. and therefore if the arbitrement were not made of all the matters in controversie the award was void To which it was answered and resolved that it appeared by the award that it was made de praemissis praedictis in conditione specificatis which words import that the Arbitrator had made it of all that which was referred to him and so it was to be intended until the contrary were shewed and alleged by the other party Uâ—es 9 Indentures subsequent are sufficient to declare the uses of a Recovery precedent Co. l. 9. 11. 3. Dowmans case if nothing appear to the contrary to declare the consent of the parties to be otherwise Quo warranto 10 In a Quo warranto for the claim of chattels of felons c. the defendant pleads that the Abbot of S. lawfully had and enjoyed them Co. l. 9. 27. The case of the Abbot de Strata Mercella till the Abbey was granted to the King by the Statute of 27 H. 8. c. and pleads also the Statute of 32 H. 8. which revives the privileges of Abbies and that the King granted a Manor parcel of the Abbey and tot talia et tanta privilegia c. unto him And in this case it was objected that it did not appear by the claim of the defendant what estate the Abbot had in the said Franchises but generally quod licite habuit gavisus fuit and so peradventure he might have them but by a lease for life or years c. To which it was answered and resolved that a general having and enjoying of them shall be intended of a having and enjoying in fee simple and that in such case a particular estate or interest shall not be presumed unless it be specially shewed c. so the word Fee shall be intended fee simple and not fee tail unles it be so expressed Vide supra Max. 189. pl. 8. 11 If the principal in felony be attainted erroniously either by error in process No accessory where no principal or because the Principal being out of the Realm Co. l. 9. 119. a. 4. in the L. Sanchars case c. was outlawed or for that he was in prison at the time of the outlawry c. yet the accessory shall be attainted for the attainder against the principal stands in force until it be reversed and with this agrées 2 R. 3. f. 12. And in the 18 E. 4. 9 The principal was erroniously out-lawed for felony and the Accessory taken indicted arraigned convicted attainted and hanged and afterwards the principal reversed the outlawry and was indicted and arraigned of the felony and found not guilty and thereupon was acquit And here it might be demanded that for as much as there cannot be an accessory without a principal and in this case there being no principal how shall the heir be restored to the lands which his father had forfeited by the said unjust attainder To this it may be answered That the heir may enter or have his action for now upon the matter by act in Law the attainder against the father is without any writ of Error utterly annulled because by the reversal of the attainder against the principal the attainder against the accessory which depended upon the attainder of the principal is ipso facto utterly defeated and annulled And this notably appears in an antient book in the time of E. 1. Tit. Mordancester 46. The case was this A. was
a man and a woman and their heires before mariage the husband and wife have moities betwéen them Lands given to Batre and feme but if it be after mariage each of them taketh the whole And therefore in this last case if the husband be attainted of Treason or selleth away the land after her husbands death she shall recover the whole as it fell out in the case of William Ocle who was attainted for murthering E. 2. Finch 41. Co. ibid. 209. b. 2. 18 E. 4 18. 19 H. 6. 54. 20 E. 3. account Pl. 70. 8 In a Mortgage the agréement precedent ought to guide the payment subsequent and therefore in case the feoffée die The conditio◠of a mortgage must be performed and it is agréed betwéen the feoffor and the executors of the feoffée that at the day and place the whole sum shall be paid and that afterwards some part thereof shall be restored this is no performance of the Condition for hereby the state shall not be devested out of the heire which is a third person without a true and effectual payment and not by a shadow and colour of payment Co. l. 5. 96. Goodales case Co. ibid. 248. b. 1. Littl. § 410. Pl. Co. Dame Hales case 6 E. 3. 41. c. 9 Littleton saith that a descent Descent by entry into Religion which happens upon the disseisors entring into Religion shall not take away the entry of the heire yet his entry into Religion is not the cause of the descent but his profession for albeit he enter into Religion yet before he be profest no descent can happen But in this case the Law doth respect the original act and that is his entry into Religion which was his own act and whereupon the profession followed by which profession the descent hapned for Cujusque rei potissima pars principium est And againe Origo rei inspici debet and therefore Littleton attributeth the cause of the discent rather to the deisseisors entring into Religion which was the first act to procure a descent than to his profession which followed thereupon Co. ibid. 372. b. 3. T. 23 El. in the Court of Wards 10 To prevent the barring of an estate taile An entail and the reversion in the King when the reversion is in the King according to the Stat. of 34 H. 8. 20. it is necessary that the estate tail should be created by a King and not by any Subject albeit the King be his heire to the reversion And therefore if the Duke of Lancaster had made a gift in taile and the reversion descended to the King yet was not that estate restreined by that Statute and so of the like Co. l. 5. 15 16. in Wisemans case Vide 21. 8. 33 Ass Pl. 7. 11 If a servant departed out of his Masters service kill his Master upon a malice that he bare him whilest he was his servant Malice prepence it is petty Treason Finch 10. 10 El. Dyer 266. b. 12 A erects a Shop upon the Kings Fréehold No possession against the King the King grants the land to B. in fée A. before entry or seisure of the Shop by the Kings Patentée continueth the possession and dieth seised This is no descent to toll the Patentées entry For by his first erecting of the Shop he could gaine nothing against the King Finch 11. Co. lib. 2. 93. a. 3. Binghams case 6. E. 3. 410. 13 It was said in Binghams case in the 2 Report The original act considerable that when divers accidents are requisite to the consummation of a thing the Law in many cases respects rather the beginning and original cause then any thing else As in 6 E. 3. 41. if a man present to another mans Church in the time of warre and thereupon the presentée is admitted instituted and inducted in time of peace Here the Law gives such regard to the original act viz. the presentation that all which followes thereupon although it be done in time of peace Co. l. 1. 106. Shelleyes case shall be avoided And upon the same reason was Shelleys case adjudged in the 1 Report fol. 106. Grant by baron without feme not good 14 If land be given to Baron and Feme Co. l. 3. 5. b. 3. Owen and Morgans case Co. l. 3. 34. b. 4. Butler and Bakers case and to the heires of their two bodies engendred and the Baron alone suffers a common recovery this shall not bind the estate taile And albeit in this case the Baron which suffers the recovery survives the Feme that is not material for the Law shall adjudge upon the case as it was at the time of the recovery Tenure according to limitation 15 If Land be given to a man and his heires to hold by Soccage during his life and after his decease to hold by Knight-service Littl. § 698 699 700. Here shall be no ward because the tenure by Knight-service begins in the sonne and the Father during his life holds by Soccage And è converso if lands be given to a man and his heires to hold by Knight-service during life and after his decease in Soccage Here likewise shall be no ward because immediately upon the death of the tenant the Knight-service determines and then also the tenure in Soccage begins in the sonne Warranty that begins by disseisor not good 16 If the sonne purchaseth land Co. l. 4 37. a. Tirringhams Case and letteth the same to his father for terme of yeares the father enfeoffes another in fée and binds himselfe and his heires to warranty the Father dies by which the warranty descends to the sonne this warranty shall not barre the sonne from his entry or recovery by assise c. because this warranty begins by disseisin In like manner is it if the father or any other Ancestor be tenant at will by Elegit by Stature Merchant or Statute Staple and make feofment with warranty as aforesaid c. Such warranty shall not barre because it begins by disseisin c. There is the same reason of Guardian in Knight-serice or in Soccage which make such feofment with warranty So also if the father and sonne be Ioyn-tenants in fée and the father make feofment with warranty c. and dies this shall not barre the sonne of his moity causa quae suprà Common appendant due of common right 17 The beginning of common appendant by the ancient Law was in this manner 37 H. 9 34. per totam curiam 29 H. 8. 4. when the Lord of a Mannor did enfeoffe a man of arable land to hold of him in Soccage viz. per servitiam Socae as every such tenure at the beginning as Littleton saith was the feoffée ad manutenendum servitium Socae was to have Common in the Lords wastes for such necessary beasts as were to plow and compasse his land and therefore such Common appendant is
thereof So likewise if the Son and heir apparent of a Baron retein a Chaplain and give unto him his Letters under his hand and seal and after his father dies and this Chaplain purchaseth a dispensation this retainer and those Letters will do him no good because they were not available at the first to make him capable Et quod ab initio non valet tractu temporis non convalescet Co. l. 4. 107. b. 3. Adams and Lamberts case H. 6. 7. E. 6. Dyer 81. 26 Pope Urbane at the request of Ralph Baron of Greystock A void foundation of a Colledge founded a Colledge of a Master and six Priests to be resident at Greystock and assignes to each of the Priests five marks per annum besides their bed and chamber and to the Master 40 l. per annum And upon the Statute of 1 E. 6. 14. it was certified in the Book of First-fruits and and Tenths Rectoriam Collegium de Greystock But it was resolved by all the Iustices that this reputative Colledge was not given to the King by the said Act because it had no lawfull beginning nor so much as the countenance of a lawfull beginning for the Pope cannot found or incorporate a Colledge within this Realme nor assigne or give Licence to assigne any temporal livings unto it but it ought to be done by the King himselfe and by no other Co. l. 5. 42. Codwels case 27 In appeal of Mayhem betwixt John Codwel Plaintife A void Panel and Thomas Parker Defendant the parties descend to issue and the Iury finds for the Plaintife and now it was moved in arrest of Iudgement that there was variance betwixt the Panel of the Venire facias and the Distringas and Postea in the name of one of the Iury that appeared and gave the verdict for in the Panel of the Venire facias he was named Palus Cheale And in the Distringas and in the Postea it was Paulus Cheale And because the name of a Iuror in the Venire facias was mistaken the Iudgement was arrested But if he had béen well named in the Panel upon the Venire and misnamed in the Distringas or Postea upon examination it might have béen amended because the Venire facias and Panel are the beginning and ground of the other subsequent Processe A void Presentation 28 D. was seised of a Mannor Co. l. 6. 50. a. 4. Boswels case 16 E. 3. Tit. Quare impedit 67. Adams case unto which an Advowson was appendant and dies the Mannor descends to E. an Infant the Church becomes void A. presents during the nonage of E. who at full age enfeoffes F. of the Mannor and after the Church becomes void againe and F. presents whereupon the Assignée of A. brings a Quare impedit And it was adjudged that by the feofment of E. when he had attained his full age the Mannor passed to the Feoffée but not the Advowson because by the usurpation the Infant was out of possession of the Advowson and he had but a right in it the usurpation being onely voidable by action which could not be transferred to a stranger And therefore the Advowson being not at all granted to F. he shall not gaine it afterwards by an usurpation A void grant of the Office of the Auditors of the Court of Wards 29 Quéen Eliz. in the 31 yeare of her Raigne grants unto Walter Tooke and William Curle Officium unius Auditorum Curiae suae Wardorum Co. l. 11. 4. a. 4. Auditor Curles Case c. habend dictis Waltero Willielmo alteri eorum conjunctim divisim pro termino vitarum suarum eorum alterius diutiùs viventis c. And afterwards King James in the 4 yeare of his Reign during the lives of the said Walter Tooke and William Curle grants the Reversion of the said Office to John Church-hill and John Tooke And in this case King James his grant was adjudged void because that Office being partly judicial and partly ministerial could not in respect of the Iudicial part be granted in Reversion for which the Rule is officia judicialia non concedantur antequam vacent And therefore being void at first it shall not be made good afterward for albeit William Curle one of the first Grantees and John Church-hill one of the last Grantees happen to die yet shall not John Tooke enjoy the Office by vertue of King James his grant because quod ab initio non valet c. A void grant of a Surveyorship â—0 John Bishop of Sarum grants the office of Surveyour of the Mannor of Sherborne unto Edward Green and John Green for their lives together with the fee of 6. l. 13. s. 4. d. per annum Co. l. 10. 61. b. 4. The Bishop of Sarums case whereas the office formerly used to be granted onely to one Edward Green dies as also the Bishop the fee is behind and John Green distreins for it but could not maintain the Avowry because the grant was void by the Statute of 1 Eliz. not printed which restraineth Ecclesiastical persons from making unusual grants c. and in this case albeit Edward Green being dead and John Green alone had the office when he distrained yet the grant being void at first shall not be made good by any subsequent Act that happens after to bind the Successor to perform it Quia quae malo sunt inchoata principio vix est ut bono peragente exitu quod initio non valet c. A void grant to a Colledge 31 A Grant by the Master and Fellowes of a Colledge to Queen Eliz. contrary to the Statute of 13 El. 10. being thereby made void Co. l. 11. 7â— a. 4. Magdalen Colledge case could not afterwards be made good by the Statute of 18 El. 2. for Confirmations of Grants made unto her because that can by no meanes be made good which was meerly void at the beginning Neither shall the general words of 18 El. enable any person to make any conveyance which by the Common Law was disabled as if an Infant had conveyed land to the Queen by Deed inrolled or had levied a Fine to her before the Statute of 18 El. and then that Act had been made yet the estates granted had not been confirmed by that Act because the Infant during his minority was absolutely disabled to make such a Grant and therefore notwithstanding that Statute he might have reversed the Fine by a Writ of Error as it was adjudged M. 32 and 33 Eliz. in B. R. by Wray and all the Court in Vaughans case So likewise if a man seised of land in fee had granted the land after his death Co. l. 11. 78. a. 3 The same case to the Queen her heires and successors the said Statute of Confirmation had not made such a grant good because it was against the Rules of Law 38 H. 6. 33. The Abbesse of Sions
Tenant for life A feofment by two and he in the Remainder or Reversion in Fée joyn in a Feofment by Déed the Livery of the Fréehold shall move from the Lessée and the Inheritance from him in the Reversion or Remainder from each of them according to his estate Co. Inst pars 1 303. b. 2. 5 Every man shall plead such pleas Pleas proper as are pertinent for him Secundum subjectam materiam viz. according to the quality of his case Estate or Interest as Disseisors Tenants Incumbents Ordinaries and the like Co. Inst pars 1 200. b. 3. 6 One Tenant in Common may enfeoffe his Companion Feofment Releases but not release because the Fréehold is several Ioyn-tenants may release but not enfeoffe because the Frée-hold is joynt But Coparceners may both enfeoffe and release because their seisiin to some intents is joynt and to some several Co. l. 3. 50. b. 4. Sir George Browns case 7 The words of the Statute of 11 H. 7. cap. 20. Statute of 11 H. 7. 20. interpreted for discontinuances which prohibits a Feme to alien the lands of her deceased husband are these that she shall not discontinue alien release or confirm them with Warranty where Warranty seems to be referred to any Discontinuance or Alienation as well as to release and confirmation So that if a Feme Tenant in special taile after the decease of her husband make a Lease for three lives not warranted by the Statute of the 32 H. 8. cap. 28. without Warranty he in the Reversion or Remainder by force of the said Statute of 11 H. 7. shall not enter but it was adjudged in Sir Geo. Brownes case in the 3 Report that in that case he might enter and that these words with Warranty shall be onely referred to Releases and Confirmations which indéed do not make a discontinuance without Warranty for the intent of the said Act of 11 H. 7. was not onely to prohibit every barre but also every manner of discontinuance which might put the heire to his real action whereby he might perhaps be disinherited or at least greatly delayed And therefore in regard Releases and Confirmations do not make discontinuance without Warranty these words with Warranty are to be construed Secundum subjectam materiam and shall be referred to them onely to make them equivalent to such an estate which passeth by Livery and which of it selfe without Warranty makes a discontinuance Co. l. 4. 10. b. 4. Bevils case 8 The Statute of 32 H. 8. cap. 2. which provides 32 H. 8. 2. interpreted for rents that none shal have any Avowry or Conusance for any rent suit or service unlesse seisin were had within 40 years before the Avowry made extends not to any such Rent or Service which by common possibility cannot happen or become due within 60 yeares as if the Seigniory consists upon Homage and Fealty onely for the Tenant may live 60 yeares after he hath done them So also if the Service be to cover the Hall of the Lord or to go to Warre with him when the King maketh Warre against his enemies such casual Services which by common possibility cannot happen within 60 yeares are not within that Act c. Likewise writs of Escheat Cessavit or Rescous are not within those branches of the same Statute which limit the seisin of land because in those writs the seisin is not traversable but the tenure and in those writs of Escheat and Cessavit albeit they demand the land yet néed they not alleadge any seisin in the same lands c. as the said Statute requires because that Act onely extends to such a writ where the Demandant or his Ancestors may have seisin of the land in demand within the time of limitation prescribed by the Act and the Statute doth not force them to any impossibility c. Scandalum Magnatum 9 The Lord Cromwell brings an Action de scandalo magnatum upon the Statute of 2 R. 2. cap. 5. against Vicar Delmy Co The Lord Cromwels case for speaking these words unto him You like of those that maintaine sedition against the Queens proceedings unto which the Defendant pleades special justification that the Plaintife procured two to prea h in his Church which enveighed in their Sermons against the Book of Common Prayer and because the Defendant did prohibit them the Plaintife said to the Defendant Thou art a false varlet I like not of thee to whom the Defendant said It is no marvel though you like not of me for you like of those inuuendo the two that should have preached that maintaine sedition innuendo seditiosam illam doctrinam against the Queenes proceedings And this was adjudged a good justification For in case of slander for words the sence of the words are to be taken and the sence of them doth best appeare by the cause and occasion of speaking them according to the Rule Sensus verborum ex causa dicendi accipiendus est sermones semper accipiendi sunt secundum subjectam materiam And therefore in this case the Council of the Defendant was said to have done well in shewing the special matter whereby the sence of this word sedition might appeare upon the coherence of all the words taken together viz. that the Defendant meant the seditious doctrine against the Quéens proceedings in the Act of 1 Eliz. by which the Book of Common Prayer was established and that he did not intend any such publique or violent Sedition as was alleadged by the Plaintife and as ex vi termini per se the word it selfe would import c. And it was said Quae ad unum finem loquuta sunt non debent ad alium detorqueri c. Common 10 If Common be said to be appertaining to a Mease Land Co. l. 4. 37. a. 4. 38. a. 3. Tirringhams case Meadow and Pasture time out of mind that shall be adjudged Common Appurtenant and not Common Appendant for it is against the nature of Common Appendant to be Appendant to Meadow or Pasture And therefore in that case the subject matter and the circumstance of the case ought to direct the Court to give Iudgement whether the Common be Appendant or Appurtenant 11 In Appeal of Murder against A. as principal Co. l. 4. 43. b. 4. Bibithes case and against B. as accessory before the fact Accessary in manslaughter A. was found guilty of Man-slaughter but not of Murder in this case B. was acquit because there cannot be an Accessary before the fact in Manslaughter which allwayes happens upon a suddaine debate or effray for if it be premeditate it is Murder Joint warranties or words 11 Ioynt words of the parties shall by construction of Law be taken respectively severally according to the several interests of the Grantées as Warranty made to two of certain lands Co. l. 5. 7. b. 4. 16 H. 6. 63 64. shall enure as
of 12 men c. Co. Inst pars 1. 46. a. 2. 25 The Termor for yeares before the Statutes of Glocester 6 E. 1. cap. 11. and 21 H. 8. cap. 15. The Termâ—â— could not fâ—fie was not able by the Common Law to falsifie a covenous recovery of the Freehold because he could not have the thing that was recovered viz. the Fréehold Co. l. 8. 118. a. 3. 26 The Statute of Westm 2. cap. 21. Cessavit gives a Writ of Cessavit haeredi petenti super haeredem tenementum super eos quibus alienatum fuerit hujusmodi tenementum yet in 33 E. 3. Tit. Cessavit 42 in Doct. Boâ—hams case where there were two Coparceners Lords and Tenant by Fealty and certaine rent the one Coparcener hath issue and dies in this case the Aunt and Neice could not joyn in a Cessavit because the Neice though heire to her mother could not in this case have a Cessavit in regard she could not have the effect of it viz. the recovery of the arrearages accrued in her Mothers time for that they did not belong unto her but unto her Mothers Executor c. Divorce 27 Causa frigiditatis naturalis perpetuae Dyer 178. 40. 2. Eliz. is held a sufficient ground of divorce whereupon such a Sentence was given H. 2. Eliz. in the Court of Audience betwixt Sabel and his wife at the suit of the wife And such another about the same time betwixt Bury and his wife at the suit also of the wife who afterwards married Cary and had issue Bury also married another woman and had issue and therefore the Doctors of the Civil Law would have had them co-habit againe together because as they said Sancta Ecclesia decepta fuit in priori judicio 36 Non officit conatus nisi sequatur effectus Inheritances depend not upon uncertaine words 1 In Sir Anthony Mildmayes case in the 6 Report which was a resolution against perpetuities it was resolved that these words Attempt Co. l. 6. 42. a. 3. Sir Anthony Mildmayes case c. or goe about c. or enter into communication c. are words uncertain and void and God defend that Inheritances and Estates should depend upon such incertainties for it is true Quòd misera est servitus ubi jus est vagum quòd non definitur in jure quid sit conatus nec quid sit a going about or communication And the Rule of Law decides this point Non-officit conatus nisi sequatur effectus Resistance must be by some overt act 2 If the Testator devise lands to I. S. for 60 yeares Co. l. 8. 91. 2. 4. Frances case if he shall so long live provided if I. S. molest or hinder the Executor so that he cannot take and enjoy the goods of the Testator that then his estate shall cease In this case a bare denial by Parol is not a breach of the Proviso but here ought to be some act done as after request made by the Executor to shut the door against him or to put his hands upon him and to resist him or the like so that by reason of some such open act he doth not permit the Executor to carry away the goods according to the Proviso And Cook Chief Iustice said that in this case it is not sufficient to say Quòd praedictus Johannes non praemisit praedict execut c. quietè habere removere capere praedict bona or quòd praedict Johannes impedivit illum c. but he ought to alleadge a special breach by reason of some special disturbance or interruption in that case by some overt act unto which the other party may make a certaine answer and upon which a certaine issue may be taken whereof the Iury may inquire and the Court may judge whether it were a sufficient breach of the Proviso or not Cause of disfranchisement cannot be without some overt act 3 Sir James Bagge being a Capital Burgesse of the Town of Plimouth behaved himselfe contemptuously towards the Major there Co. l. 11. 98. a. 3. Sir James Baggs case and said unto him You are a cosening knave come kisse mine c. and perswaded A. and B. Vintners that they should not pay Wine-waight c. whereupon the Major removed him but upon complaint in the Kings Bench a Writ of Restitution was awarded to restore him upon this ground principally for that the cause of a disfranchisement in this case ought to be founded upon some act which he shall do against the duty of a Citizen or Burgesse and to the prejudice of the Common-Wealth of the City or Burrough whereof he is Citizen or Burgesse and against his oath which he took when he was made fréeman there but words of contempt or contra bonos more 's albeit they be against the chiefe Officers and his brethren may be good causes to punish him and to commit him till he put in sureties for the good behaviour but not to disfranchise him So likewise if he intend or endeavour of himselfe or conspire with others to do any thing against the duty trust of his fréedom and to the prejudice of the Common-wealth of the City or Burrough c. but putteth it not in execution this may be good cause to punish him as aforesaid but not to disfranchise him For Non officit conatus nisi sequatur effectus Non officit affectus nisi sequatur effectus And the reason of this is because when a man is a Frée-man of a City or Burrough he hath Franktenement in his fréedome for his life and together with others in their politique capacity hath inheritance in the lands of the Corporation interest also in their goods and peradventure it may concern his trade and meanes of life and his credit and estimation And therefore the matter which shall be cause of his disfranchisement ought to be some act or déed done and not a bare indeavour or enterprise whereof he may repent before the execution of it and whereupon no prejudice doth ensue Co. ibid. b. 3. 4 Those which have offices of trust and confidence Forfeiture of a Parke cannâ—â— be without some overt act shall not forfeit them by bare endeavours or intentions of doing acts although they declare them by expresse words except the Act it selfe be put in execution As if the kéeper of a Park shall say I will kill all the Game within my custodie or I will cut downe so many trees within the Park c. but in the mean time kills none of the Game nor fells any of the trées this is no forfeiture c. Co. ibid. b. 4. 5 If a Bishop Arch-deacon Parson c. cut downe all the trées Deprivation cannot be without soâ—e overt act c. this is a good cause of deprivation and with this accords 2 H. 4. 3. So if a Prior alien the land which he hath in jure domus suae this is a
temps Eliz. Co. l. 4. 89. b. 4. Druries case 3 If a Countesse retain two Chaplains The first Diâ—pensations Wast void those two are onely capable of dispensation according to the Statute of 21 H. 8. cap. 13. And therefore if the Countesse retains a third that cannot devest the capacity of dispensation which was vested in the two first For albeit the Countesse may entertain as many Chaplains as she will at the Common Law yet can she not have more then two capable of Dispensations by force of the Statute and reason requires that he which hath longest served shall be first preferred For qui prior est tempore potior est jure F.N.B. 142. f. 4 If a man purchase divers lands by one feoffment Priority of wardship which are holden severally of divers Lords by Knight-service and after he dies his heire within age that Lord which shall first hap the Ward shall have him because there is no priority But if he purchase land which is holden by Knight-service of one Lord and after purchase other land holden of another Lord by the like service and after die his heire within age In this case that Lord shall have the Ward of the heire of whom the land which be first purchased is holden for that he held of him by a more ancient feoffment viz. by priority then he held of the other Lord of whom he held by posteriory c. Co. l. 4. 66. b. 3. Fulwoods case 5 If a man be bound in two Statutes A former â—â—â—tute first foâ—â— and the last Statute is first extended and put in execution Yet the first Conusée upon extent shall be first served and the last Conusée shall stay till the first be satisfied Dyer 32. 2. 28 29 H. 8. 6 In debt against Executors who plead fully administred Debt agaâ—â—â—â— Executors and it was given in evidence by the Defendants that they had paid divers debts upon contracts made by their Testator and shewed not that they were paid before the Plaintiffs writ purchased whereupon the Plaintiff demurres and that was the chiefe reason why Iudgement was given for the Plaintiff Dyer 133. a. 1. 3 4 P.M. 7 A man being Patron of a Benefice in right of his wife grants proximam advocationem to another Grant of the next avoydance after which grant the Incumbent makes a lease of the Benefice for 60 yeares reserving rent to him and his Successors under the value in the Kings books afterwards the Patron Grantor and his wife together with the Ordinary confirme the Lease and then the Incumbent is deprived for marriage and the Grantée presents his Clerk who enters upon the Lessée to avoid the lease In this case it séems his entry is congeable because the Grant preceded the lease Dyer 232. 5. 7 Eliz. 8 If debt be brought against the Ordinary for the debt of the intestate after notice he cannot dispose of any of the goods to others Ordinary before he hath satisfied that debt for which the action was brought against him Dyer 276. 52. 10 Eliz. 9 A Scire facias was brought by Basset against the Corporation of Torrington in Com. Devon to repeal their Patent of Faires and Markets But it was held Scire faciaâ— that a Puisne Patentée shall not have a Scire facias to repeal a more ancient Patent but è contrà 10 Vide Hob. 7. Spendlowes and Burket concerning the grant of an avoydance and a lease of a Prebendary in Lincoln 50 According to the diversity of the same person Co. Inst pars 1. 8. a. 1. in Calvins case Co. ib. 129. a. 3. 1 A man seised of lands in fée hath issue an Alien Alien not 〈◊〉 heritable viz. born out of the Kings ligeance that issue cannot be his heire propter defectum subjectionis albeit he be born within lawful marriage neither yet shall he inherit to his Father or any other although he be made Denizen by the Kings letters Patents Neverthelesse if the same man be naturalized by act of Parliament he shall not then be accounted in Law alienigena but indigena and shall be capable of inheriting c. â—uption of â—d for a 〈◊〉 2 The same man may have some children capable of inheriting his land after him and others incapable Co. ib. 8. a. 2. according to the several conditions in which he stood at the several times when he had those children Co. ib. 129. a. 3 As if an Alien be made Denizen the issue which he hath after the denization shall be his heire and not the issue which he had before So also if a man hath issue a sonne before his attainder and obtaineth his pardon and after the pardon hath issue another sonne here at the time of the attainder the bloud of the eldest was corrupted and therefore he cannot be heire but if he die living his father the younger sonne shall be heire for he was not in esse at the time of the Attainder and the pardon restored the bloud as to all issues begotten afterwards c. â—lain free 〈◊〉 a time 3 If Villenage be pleaded by the Lord in an action reall mixt Co. ib. 127. b. 4 or personal and it is found that he is no Villein the bringing of a Writ of Errour is no enfranchisement because thereby he is to defeat the former judgement and if in the mean time the Villain bring an action against the Lord the Lord néed make no protestation so long as the record remains in force for at that time he is frée c. â—â—â—is utrum â—â—rranty 4 If a Juris Utrum be brought by a Parson of a Church Co. ib. 370. a. 4 the collateral waranty of his Ancestor is no barre for that he demanded the land in the right of his Church in his politique capacity and the warranty descendeth on him in his natural capacity c. â—â—rranty â—fession 5 If a collateral Ancestor release with warranty Co. ib. 392. b. 3 and enter into religion now doth the warranty binde but if afterwards he be deraigned then is the warranty defeated â—nt extinâ—shed 6 One that hath a rent charge going out of the wives land 14 H. 8. 6. Finch 18. releaseth it to the husband and his heires Yet in this case the husband shall not have the rent but the release shall enure unto him by way of extinguishment onely as seised in right of his wife â—â—ant and â—firmation 7 The Parson of Weston in Com. Glocest An. 9 El. demised his Rectory to W. Hodges then Patron of the same Rectory for 50 years Co. l. 5. 15. a. 3 Mewcomes case Trin. 30 Eliz. in the Exchequer who Anno 14 Eliz. by his déed assigned it over to Sir John Throgmorton the Bishop confirms the lease Anno 17 Eliz. in the life of the Lessor And in this case it was resolved that the assignment of
party heir or assignée but in privity of estate yet any that is in of another estate be it by disseisin abatement intrusion usurpation or otherwise shall rebutt by force of the warranty as a thing annexed to the land which sometimes was doubted among the Sages of our Law Release of a writ of Errour 84 If a man be out-lawed in a personal action Co. Inst pars 1. 289. a. 2. c. and brings his writ of Error if he at whose suit he was out-lawed will plead against him a release of all actions personal this séems to be no plea because by the said action he shall recover nothing in the personalty but onely to reverse the Outlawry Howbeit in that case a release of the writ of Errour is a good plea For albeit the Plaintiff in the writ of Errour is to recover or be restored to nothing against the party Yet inasmuch as the Plaintiff in the former action is privy to the record a release of a writ of Errour to him is sufficient to barre the Plaintiff in the writ of Errour of the suit and vexation by the said writ of Errour Co. ib. 48. a. 4. 49. b. 3. Co. ib. 54. a. 1. 85 If there be divers Feoffées Livery to 〈◊〉 Joyntenant good to boâ—â— and the Feoffor makes livery onely to one of them according to the deed In this case the land passeth to them all in respect of the privity of their estate c. So likewise if there be two Ioyntenants of a Ward and one of them do waste both shall answer for it for the same reason Co. ib. 54. a. 1. 86 A Tenant by the Courtesie or in Dower Wast against tenant in dower and by the Courteâ—â— can hold of none but of the heire and his heirs by descent and therefore if they grant over their whole estate and the Grantee doth waste yet the heir shall have an action of waste against them and recover the land against the Assignee but if the heir either before the assignment had granted or after the assignment doth grant the reversion over the stranger shall have an action of waste against the Assignee because then in both cases the privity is destroyed Co. ibid. a. 2. c. Vide infrà 94. Also if waste be done by a stranger they shall answer for it c. Co. l. 2. 66. b. 4. Tookers case 87 There are two Iointenants for life Attornment 〈◊〉 one Joyntenant good 〈◊〉 both the reversioner grants over his estate in fee one of the Iointenants onely doth attorn this is a good attornment of both to settle the reversion in the Grantee in respect of the privity and intirenesse of their estate Co. ib. 67. a. 2. c. So if the Lessor disseise his two Lessees for life and enfeoff another and one of the Lessees re-enter this act of one of them is an attornment in Law for both If one Iointenant give seisin of rent that shall binde his companion as it is agreed in 39 H. 6. 2. If a lease be made to two and after the reversion is granted to one of them and he accepts the deed this is holden good attornment in Law for both Baldwin 28 H. 8. Dyer 12. b. Co. l. 3. 2. a. 4. The Marq. of Winchesters case 88 Albeit by the general words of the act of attainder of all rights Right of actâ—on not forfeâ—ed by attaâ—â—er c. and hereditaments c. made against the Lord Norris in the 28 H. 8. all his lands c. in demesne reversion or remainder and also all his right to lands and tenements into which his entry was congeable were given to the King yet neither a writ of Errour nor right of action to recover land were given to him by the general words of the same act although such a right is truly a right and also an hereditament because such a right for which the party hath no remedy but by action onely to recover the land is a thing which consists onely in privity and which cannot escheat or be forfeit at the Common Law Of this sort are the right of Formedon in descender the right of action upon a disseisin and a descent cast and the like Co. l. 7. 13. a. 4. in Englefeilds case Co. ib. 4. a. 3 4. 89 Vpon judgement given against Tenant for life A reversioner shall bring Errour c. or against Tenant in tail since the Statute de donis conditionalibus he in the reversion or remainder may have a writ of Errour albeit he was not party to the suit by aid prayer voucher or receipt But he could not in that case bring that writ till after the particular estate determined Howbeit if he was party and privy to the first record by aid prayer voucher or receipt then might he have a writ of Errour presently during the life of the Tenant in tail or for life for that he was in that case party and privy to the first record c. Co. l. 3. 6. a. Cuppledikes case 90 Baron and Feme are seised of lands to the use of them Upon fine and vouching tenant in tail the remainder is barred and the heirs male of the body of the Baron the remainder in fee to another the Baron acknowledgeth the fine of the land in fee and a stranger recovers the land against the Conusee who voucheth the Baron onely and he voucheth over the common Vouchee and judgement and seisin are given accordingly the Feme being still in life This recovery shall bind the remainder for here was a lawful Tenant to the precipe and albeit the Baron who had the estate tail was onely vouched and not the Feme who had a joynt estate with him Yet the Baron coming in as Vouchee he comes in privity of the estate tail and not of any other estate and then the recovery in value gives recompence both to the estate tail which the Baron hath and also to the remainder over because although by the fine the estate tail as also the estate of the Feme and the remainder were all devested or discontinued yet the Baron as Vouchee shall be in judgment of Law in of his estate tail And the case is the stronger inasmuch as the estate of the Feme was put to a right So that the Baron comes in now as sole Tenant in tail and cannot be joyntly seised with the Feme because she was not Vouchée Neither yet can the Baron be in of any other estate for that he once had an estate tail and now comes in as Vouchée and therefore in that case in respect of the privity shall be said in as of the estate tail and not otherwise But if the wives inheritance had béen joynt with her husbands it might be doubted 108. 28. The like 91 If A. be Tenant in tail the remainder to B. in tail Co. ibid. the remainder to C. in tail
the lands undisposed of excéed in value the other lands given in Frankmarriage yet shall not the Donée in Frank-marriage have any part thereof unlesse she will put her part in Hotchpot with the other lands and then they shall be equally divided betwéen the sisters And it séemeth by our old books Co. ib. 176. b. 3 Glanvil l. 7. cap. 5. that by the ancient Law there was also a kind of resemblance hereof concerning goods Si autem post debita deducta Division of the testators goods post deductionem expensarum quae necessariae erunt id totum quod tunc superfuerit dividatur in tres partes quorum una pars relinquatur pueris si pueros habuerit defunctus secunda uxori si superstes fuerit Et de tertia parte habeat testator liberam disponendi facultatem si autem liberos non habeat tunc medietas defuncto alia medietas uxori Si autem sine uxore decesserit liberis existentibus tunc medietas defuncto alia medietas liberis tribuatur Si autem sine uxore liberis tunc id totum defuncto remanebit Lambert 119. 68. And by the law before the Conquest it was thus provided Sive quis in curia sive morte repentine fuerit intestatus mortuus Dominus tamen nullam rerum suarum partem praeter eam quae jure debetur herioti nomine sibi assumito verùm eas judicio suo uxori liberis cognatione proximis justè pro suo cuique jure distribuito Frankmarriâ—ge Hotchpot 22 If a man seised of 30 acres of land each acre of equal value Littl. §. 273. Co. Inst pars 1. 179. a. 1. hath issue two daughters and gives 15 acres to one of them in Frankmarriage and dies seised of the other 15 acres In this case the other sister shall have the 15 acres so descended and the Baron and Feme shall not put their 15 acres in Hotchpot with them because the parts are already equal but this is to be thus understood if they are of equal value at the time when the Partition should be made For if the land given in Frankmarriage be by the act of God decayed in value or if the remnant of the lands in Fée-simple be improved after the gift they may be cast into Hotchpot And the Law will adjudge of the value as it is at the time of the Partition unlesse it be by the proper act or default of the parties c. And it séemeth to some that in case they be of equal value at the time of the partition that then the reversion in fée of the lands given in Frankmarriage shall onely descend to the Donee for otherwise the other sister shall have more benefit than the Donee and so their parts would not be equal and then their parts might be put into Hotchpot notwithstanding the 30 acres are all of equal value at the time of the partition which is against the reason that Littleton gives Sect. 273 c. â—rvivor of â—yntenants 23 If there be two Ioyntenants in fee Co. ib. 193. a. 3. and the one letteth his part to another for the life of the Lessor and the Lessor dieth some say that his part shall survive to his companion for that by his death the lease was determined Howbeit others hold the contrary and their reason is First because at the time of his death the joynture was severed for so long as he lived the lease continued And secondly because notwithstanding the act of any one of the Ioyntenants there must be equal benefit of survivor as to the Frée-hold but here if the other Ioyntenant had first died there had béen no benefit of Survivor to the Lessor without question because at that time the joynture would have béen severed And this last séems to be the opinion of Coke for that he puts it last according to his own rule and the course which he observes Littleton to use Co. ib. 341. b. 4. 24 A Bishop Abbot Dean Master of an Hospital Abbot c. Writ of right Parson a Jâ—â— utrum or any other such body politique or corporate which hath a sole seisin of lands in fée in right of their several Corporations if any such be ousted they shall if néed be have a remedie agréeable to their right viz. a Writ of Right which is the highest remedy for that they have the highest estate It is otherwise of a Parson because the intire fée and right is not in him his highest writ being a Juris utrum c. Co. ib. 365. b. 2. 25 Albeit the Statute of Glocester cap. 3. made in 6 E. 1. Alienation by Tenant by courtesie no barre for the relief of the heir against the alienation of the Father Tenant by the courtesie with warranty c. maketh one by mention of a Writ of Mortdancester Cosenage Aiel and Besaiel yet a Writ of Right a Formedon a Writ of Entry ad communem legem and all other like actions are within the purview of that statute for those actions are but put for examples Again where it is said in the same Statute if the Tenant by the Courtesie alien yet his release with warranty to a Disseisor c. is within the purview of that Statute because it is in equal mischief and if that evasion might take place that Stat. should have béen made in vain So also if Tenant by the Courtesie be of a Seigniory and the tenancy escheat unto him and after he alieneth with warranty this shall not bind the issue unlesse assets descend for it is in equal mischief c. Co. ib. 313. a. 2. 26 Albeit the preamble of the Statute of 34 H. 8. cap. 20. Gifts of the King 34 H 〈◊〉 20. extendeth onely to gifts in tail made by the Kings of England before that Act viz. hath given granted c. and the bodie of the Act referreth to the preamble viz. that no such feigned recovery hereafter to be had against such tenant in taile c. So as this word such may seem to couple the bodie and the preamble together Yet in this case such shall be taken for such in equal mischief or in like case and by divers parts of the Act it appeareth that the makers of the Act intended to extend it to future gifts and so is the Law taken at this day without question Littl. Sect. 732. Co. ib. 383. b. 1. 27 Some do expound these words of the Stat. of Glocester cap. 3. Heritage in Gloc. 3. iâ— heritance by purchase 〈◊〉 the heritage of his mother to be the lands which the mother hath by descent And that construction is true but that Stat. by the authority of Littleton Sect. 732. extendeth also where the mother hath it by purchase in Fée-simple for so saith Littleton himself that this word Inheritance is not onely intended where a man hath lands by descent but likewise where a man hath a
Eliz. Dyer 248. And therefore the case of 6 E. 6. Dower Br. 69. where it is said that an estate in Fee simple conveyed to the Feme for her joynture is not within the Stat. of 27 H. 8. is misreported and ought to be intended that such an estate is not within the Statute of 11 H. 7. cap. 20. which restraines the alienations of Femes c. â—ubsequent â—tute may taken withâ—â—he equity 44 It is frequent in our books that an Act made of later time shall be taken within the equity of an Act made long before Co. ibid. So the Statute of Malbridge which was made Anno 52 H. 3. gives the ward of the heir of the Tenant that holds by Knight Service notwithstanding a feofment made by collusion at which time of a Statute made long â—fore and for 200 years after and more viz. untill the Statute of 4 H. 7. cap. 17. which gives the ward of the heir of Cestuy que use the heir of Cestuy que use was not in ward And yet it is holden in 27 H. 8. 9. if Cestuy que use since the Statute of 4 H. 7. make feofment in fée by Collusion to defraud the Lord of his ward that is taken within the equity of the said Statute of Malbridge Co. ibid. 4. a. 4. b. So also the Statute De donis conditionabilibus made 13 E. 1. as to the warranty of the Tenant in tail with assets is taken within the equity of the Statute of Gloucester cap. 3. made 6 E. 1. as it is held 11 E. 2. tit garranty Stath 38 E. 3. 23. For a Formedon in descender was given in lieu of a Mortdancester Likewise the Statute of Westm 2 cap. 25. made 13 E. 1. gives a Certificate but it gives not adjournment Howbeit adjournment is taken by the equity of the Statute of Magna Carta cap. 12. made 9 H. 3. as it is held 12 H. 4. 9. So the Statute of 7 R. 2. cap. 10. gives an Assise for rent in confinio Comitatus and Redisseisin is also taken in case of rent by the equity of the Statute of Merton cap. 3. made 20 H. 3. Vide 1 E. 3. 25. b. So in Dyer 12 Eliz. 289. Pl. 60. The Bishop of London being one of the High Commissioners by force of the Statute of 1 Eliz. cap. 1. was translated to the Arch Bishoprick of Yorke yet his authority notwithstanding that preferment remaines by force of the Statute of 1 E. 6. cap. 7. So also albeit lands were not devisable till the 32 H. 8. yet if a man devise lands to a woman for terme of her life or in tail c. for her joynture and in satisfaction of her Dower that is a joynture within the Act of the 27 H. 8. For as an estate for life made to a Feme for her joynture before marriage when she is not his wife is within the equity of that Act So an estate for life devised to a Feme for her life which takes effect after his death when the marriage is dissolved is also within the equity of the same Act because such an estate stands well with the intent of the makers of the same Act of 27 H. 8. Co. ibid. 5 â—l Dyer 20. in the Court of Wards and likewise with the nature of the joynture intended thereby And therefore if a man seised of certaine lands in fée holden in Soccage and of other land in tail holden in Capite devise by his Will in writing the third part of all his lands to his wife in recompence of her Dower and dies and the wife enter into the third part of the lands holden in Fée simple that shall be a barre of her Dower by force of the said Act of 27 H. 8. It is otherwise where a man deviseth land to his wife for terme of her life Co. ibid. 4. a. 3. M. 38. 39 El. inter Leak and Randal in Cur. Gardorum c. generally for that cannot be averred to be for her joynture c. because a devise imports a consideration in it selfe and unlesse it be plainly exprest in the will what it is for it shall be taken onely as a benevolence neither yet can any averment be taken out of the Will unlesse it properly arise or may be collected out of the words contained in the same Will c. Vide 51. Co. l. 4. 57. a. 3. in the case of the Sadlers c. 45 Albeit the Statute of 36 E. 3. cap. 13. Equity of the Stat. of 36â— 3. 13. gives travers and Monstrance de droit from Lands seised into the Kings hands by offices returned onely into the Chancery yet by equity of that Statute if the offices be returned into the Exchequer and not into the Chancery there also the Subject may put in his traverse or Monstrance de droit as appeares by a president in Qu. Eliz. time betwéen the said Quéen and one Collins and Howstead Co. l. 4. 65. a. 4. in Fulwoods case 46 Although the Stat. of Westm 2. cap. 18. which gives the Elegit Equity esâ— Stat of Eleâ— W. 2. 18. names onely the Sheriff to execute it yet by equity of the same Stat. the Serjeant of the Mace in London or any other immediate Officer to any of the Kings Courts of Record may execute the same Writ in their several jurisdictions c. Co. l. 4. 106. b. 1. Adams and Lamberts case 47 Albeit by the Stat. of the 1 E. 6. cap. 14. Equity of thâ— Stat. of Sâ—stitious usâ— 1 E. 6. 14. onely such estate given to superstitious uses as are to have continuance for ever séem to be given to the King Yet other estates of lesse continuance as estates in taile for life c. imployed for such uses are also given to the King by the equity of the same Act And the rather because Omne majus continet in se minus â—enant in â—wer shall â—ot recover â—cording to â—er losse 48 If a man be seised in fee or in taile of three acres Co. l. 4. 122. a. 2. in Bastards case each acre of equal value and dies the heir endows the Feme of the third acre and after the Feme is impleaded by one that hath title paramount and she voucheth the heir Here she shall not recover in value according to her losse but onely the third part of two acres which remain for by the Law she ought to have but the third part of that which her husband might keep and enjoy by good title c. Vide plus ib. Discretion liâ—ited by reaâ—â—n 23 H. 8. 5. 49 The Commissioners of Sewers upon the Statutes of 6 H. 6. Co. l. 5. 99. b. 4. in Rooks case cap. 5. 23 H. 8. cap. 5. are not onely to charge those that have lands adjoining upon the Banks Ditches Gutters c. but likewise all others that are in any danger or shall receive any profit by
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
in the Mannor As if A. gives the Mannor of B. to B. in taile and after the Donor is attainted of treason whereby the King is seised of the reversion and after by his Letters patents grants Manerium de D. to another and his heirs In this case albeit the King grants the Mannor of D. is in possession yet the reversion shall passe for the King hath an estate viz. the reversion in fée grantable in him the estate taile of the common person néed not be recited c. The King not deceived 31 If the King be Tenant pur auter vie Co. l. 7. 12. a. 4. in Englefeilds case and makes a lease for forty years Here albeit the King having but an estate pur auter vie cannot absolutely contract for a lease of forty years yet without any recital or mention of the estate for life the lease is good for the lease for years is in judgment of Law lesse than a lease pur auter vie and the King doth no wrong or prejudice to any by such a demise neither yet is he deceived in his grant because in judgement of Law that is a lease for forty years if Cestuy que vie shall so long live c. Fine in a court Leet 32 If for an amerciament upon an offence committed out of a Court Léet and found by the Iury whereof the Iury onely have conisance and for which they onely are to impose the amerciament the Lord of the Léet hath power to distrain Co. l. 8. 41. a. 4. in Greisleys case c. Much more for a fine imposed by the Steward in Court for some contempt c. committed in the Court it self and whereof the Steward only hath conisance shall the Lord c. distrain the goods of the party offending and impound them c. or else make sale thereof at his election c. A lease for years lesse than an estate for life 33 If a man upon a grant reserve unto himselfe power to make leases so that they shall not excéed 21 years or thrée lives In that case Co. l. 8 70 b. in Whitlocks case he may make leases of 99 years if any three shall so long live because such a lease excéeds not thrée lives but is in truth lesse for an estate for years which is but a Chattel is lesse in estimation of Law than an estate for life which is a Franktenement An Officer may make a Deputy 34 When an Officer hath power to make assignes he hath power Co. l. 9. 48. b. 4. in the Earl of Shrewsburies case implicite to make Deputies For Cui licet quod majus est non debet quod minus est non licere And therefore when an office of Stewardship or the like is granted to one and his heirs he may thereby make an Assignée and by consequent also a Deputy c. An arrest within the liberties of London 35 In Mackallyes case in the 9 Rep. exception was taken to the Indictment viz. that the precept was to arrest the Defendant Co. l. 9. 67. a. 1. in Mackallyes case Si inventus foret infra libertates Civitatis praedicti viz. London And the Indictment was Quid in parochia Sancti Martini Bowyer Rowe in Warda de Farringdon infra Londinum praedict the Serjeant arrested him and so he pursued not the precept for the precept was infra libertates London But notwithstanding that exception the Indictment was resolved to be good because the said Parish and Ward in London shall be intended to be within the liberties of London For these words liberties of London have a larger extent than the word London and do include in them the Citie of London it self c. Justices of the Kings Bench are Justices of Gaol delivery Oyer and Terminer 36 The Justices of the K. Bench are taken to be within the words of the stat of 2 E. 6. cap. 24. which ordains Co. l. 9. 118. b 2. in the Lord Sanchiers case that for the tryal of accessaries in another County than where the principal was indicted Certificat of the Indictment of the principal shall be made to the Iustices of Gaole delivery or of Oyer and Terminer before whom the accessary is to be tryed c. for that the Iustices of the K. Bench are the sovereign Iustices of Gaol delivery of Oyer Terminer and therefore they are included within the same words And upon the same ground it is holden in 7 E. 4. 18. 4 H. 7. 18. that if an indictment of forcible entry be removed into the Kings Bench the Iustices of that Bench shall award restitution and yet the Sâ—at of 8 H. 6. cap. 9. speaks onely of Iustices of Peace but the reason is because the Iustices of the Kings Bench have sovereign and supream authority in such cases And therefore in the Lord Sanchiers case in the 9 Rep. the Iustices of the Kings Bench wrote according to the said Act of 2 E. 6. to the Iustices of Gaole delivery in London before whom the Principal was tryed c. who thereupon certified the record accordingly c. Co. l. 11. 60. a. 3 Doctor Fosters case 37 The Statute of 23 Eliz. cap. 1. which ordains Attaint moâ—â— than conviâ—â— that every person c. being lawfully convicted of not going to Church c. shall forfeit xx l. per mensem c. séems to intend onely conviction by verdict because that being a penal Law shall not be understood by equity Yet in that case he against whom any judgement is given either upon a Nihil dicit or upon an insufficient plea pleaded and demurrer thereupon is convict within the purview of the same Stat. For albeit this will not follow Such a man is convict therefore he is also attaint and judgement is given against him Yet this is a good consequence Such a man is attainted or adjudged ergò he is convict For he that is attainted or against whom judgement is given is convict and more c. 22. F. N. B. 56. 1. 38 In a writ of Waste if the premisses thereof rehearse Quare Waste cum de Communi Concilio regni nostri Angliae provisum sit quod non liceat alicui facere vastum c. in terris domibus boscis gardinis And in the end of the same Writ it is alleaged quod defendens vastum fecit in terris onely or in boscis onely or in houses onely yet is the Writ good For omne majus continet in se minus c. F. N. B. 136. f. 39 If the Tenant holds by the services Tenure by which the Mesne holds over and also by some other this is good equality to have acquital because it is such and more c. F. N. B. 150. p. 40 Glanvile saith that ad ostium ecclesiae Dower ad â—â—um man cannot assigne for dower more than a third part and if he doth the
be performed because in those cases the Covenantor departed with the whole estate unto which the Condition was annexed c. â—he estate â—ile not barâ—d the reverâ—oÌ„ or remainâ—r not barred â—lso 26 Whereas by the Statute of 34 H. 8. cap. 20. It is provided Co. l. 8. 77. b. 4. in the Lord Staffords case that no common recovery had against Tenant in taile who is party to the recovery shall barre his issues when the King hath the reversion c. by this Inclusivè the act preserves the reversions and remainders in tail of the Kings grant for they cannot be barred but when the estate tail upon which they depend is barred And this is the reason that when Tenant in taile is in of another estate and suffers a common recovery as Tenant this shall not bar any reversion or remainder because it barreth not the estate of the Tenant in taile being party to the recovery and upon whose estate such reversion or remainder depends For quod non valet in principali in accessoria seu consequenti non valebit quod non valet in magis propinquo non valebit in magis remoto Ordinary subâ—ect to an aâ—tion 27 If before the Statute of Westm 2. cap. 19. Co. l. 9. 39. b. 2. Hensloes case an action lay at the Common Law against the Deputies or Committées of the Ordinary by the name of Executors as appears by 38 E. 3. 26. 42 E. 3. 2. A multo fortiori an action shall lie by the Common Law against the Ordinary himself who is the Principal and from whom the Administrators do now derive their power â—rincipal and Accessary 28 Albeit the Principal be attainted erroneously Co. l. 9. 119. a. 4. in the Lord Sanchiers case either for errour in processe or because the Principal being out of the realm c. was out-lawed or because he was in prison at the time of the Out-lawry c. yet shall the accessary be attainted for the attainder of the Principal stands good until it be reversed and with this agrées the resolution of all the Iustices in the Kings Bench 2 R. 3. 12. And in the 18 E. 4. 9. the Principal was erroneously out-lawed for felony and the Accessory was taken indicted arraigned convicted attainted and hanged and afterwards the Principal reversed the Out-lawry and was indicted and arraigned and found not guilty and thereupon was acquit And in this case forasmuch as there can be no accessary but where there is a principal and here there was no principal the heire of the accessary shall be restored to the lands which his Father had forfeited by that unjust attainder either by entry or action at his election For now upon the matter by act in Law the attainder against his Father is without any writ of Error utterly annulled because by reversing the attainder against the Principal the attainder against the Accessary which depended upon the attainder of the principal is ipso facto utterly defeated and annulled And this doth notably appeare in an ancient book de tempore E. 1. tit Mortdancester 46. where the case was this A. was indicted of felony and B. of of the receipt of A. A. eloigns himselfe and is out-lawed B. was taken and put himselfe upon inquest and was found guilty and was thereupon attainted and hanged and the Lord entred as in his escheat After which time A. came in and reversed the Out-lawry and pleaded to the felony and was found not guilty wherey he was acquit Hereupon the heire of B. brings a Mortdancester against the Lord by escheat and therein sheweth all this matter and so upon a Demurrer it was awarded that the heire should recover seisin of the land For if B. had béen living he should have gone quit by the acquital of A. because B. could not be a receiver of a Felon when A. was no Felon 19. 29. 34 35. â—rincipal and â—ccessary 29 The makers of the Statute of 4 5 P. M. cap. 4. Co. l. 11. 35. a. 1. in Alexander Powlters case observing that by the Statute of 25 H. 8. cap. 3. Clergy was taken from the principal offender in the case of house-burning c. and not from any accessary have provided that the accessary before the fact in that and other cases there provided for shall be also outed of his Clergy which was taken to be a good interpretation made by that Parliament of all the Acts which concerned that matter For if the Principal shall have his Clergy it would be absurd to take away Clergy from the accessary because if the Principal hath his Clergy before judgement the accessary shall not be arraigned Vide suprà 19. F. N. B. 32. a. primer 30 If Baron and Feme present to an Advowson in right of the Feme which is appendant to the Mannor of the Feme Advowson appendant to an acre of land and after the Baron alien an acre parcel of the Mannor together with the Advowson in fée to a stranger and dies and after the stranger presents and then aliens the acre to another in fée saving the Advowson to himselfe and after the Church becomes void Here the Feme shall present and if she be disturbed she shall have an Assise of Darrein presentment because the Advowson was severed from the acre but if the Advowson were appendant to the acre then ought the Feme to recover the acre before she can present to the Advowson F. N. B. 47. d. 31 If a man recover in a Quare Impedit in the Common Pleas Quare non admisit out of the Kings Bench. and the record is removed by a writ of Errour into the Kings Bench and there affirmed In that case he shall have a writ to the Bishop there and ought to sue a Quare non admisit against the Bishop there upon that record c. F. N. B. 107. m. 32 An Attaint may be sued in the Common Pleas The like for an attaint if the record be there which is the principal or it may be sued in the Kings Bench upon false verdict given in the Common Pleas if the record be removed into the Kings Bench c. Ibid. 33 A recovery was had in an Assise brought in the Kings Bench The like and afterwards the record was sent into the Common Pleas and the party sued an Attaint upon that record in the Common Pleas For the record is the principal and the Attaint thereupon is accessary which see in tit Assise 8 E. 2. Itinere Canc. F. N. B. 115. f. 34 If the Principal die before verdict given upon the acquital Principal and Accessory or hath a charter of pardon and plead it c. In that case the Accessory shall not have a writ of Conspiracy because he is discharged by the death of the Principal or by the charter of pardon made unto the Principal c. 19. 28 29. Pl. Co.
62 yeares without impeachment of wast And after A. le ts to B the Mannor for 30 yeares from the expiration of the former ease of 30 yeares the first 30 yeares expire the Lessée cut the trees the Lessor brings an Action of wast And Iudgement was given for the Plaintife for by the accept of the future Lease the lease for 62 yeares was presently and actually surrendred because it could not be surrendred in part and in force for the residue of the term and the Lessée by such acceptance affirmed the Lessor to have ability to make a new lease which he could not do so long as the first lease stood in force so likewise if the Lessee for 20 yeares accept a lease for three yeares to begin ten yeares after this is a present surrender of the whole term for the last ten yeares cannot be surrendred and the first ten still remain in esse because that would make fractions of the term which is in its nature intire Neither can he that hath a lease for 20 yeares surrender the last ten yeares by any expresse surrender saving unto him the first ten yeares c. Co. lib. 5. 11. b. 3. 56. a. 1. Knights Case 54 Two Houses are let to one man An intire condition the one for 4 l. Rent per annum the other for 20 s. per annum with proviso that if the said Rent of 5. l. be behind in part or in all then the Lessor shall re-enter these Houses afterwards escheate to the King who after grants that upon which the â—0 s per annum is reserved to I. S. the Rent thereof is arreare In this case the Patentée cannot enter for the Condition broken because albeit the Rents were severall yet the Condition was intire by the expresse reservation and gives in intire re-entry into all for default of payment of any part of the Rent and therefore by the severance of any part of the reversion all the condition as to all common persons is destroyed Howbeit the whole condition remaines intirely in the King with the reversion of the other House and that is in respect of his prerogative c. â—he whole â—â—rm one inâ—â—â—e day 55 The Lessée for yeares brings an ejectione firme Co. lib. 5. 74. b. 1. in Wymarks Case the Defendant saith that before the lease the Lessor bargained and sold to him in Fée by indenture inrolled within six moneths whereby he was seised untill diseised by the Lessor who let the land c. The Plaintife pleades that the bargaine c. was upon Condition which was broken c. the Defendant demurres and sheweth cause according to the Statute viz. Because the Plaintiff shewed not forth the Indenture of the Condition And in this case judgement was given for the Plaintife because when any deed is shewed in Court the deed by judgement of Law remaines in Court all the term in which it is shewed but at the end of the term if the deed be not denied then the Law adjudgeth it in the Custodie of the Partie to whom it belongs for all the term in Law is but one day and therefore the deed shall be intended to remaine in Court all the terme in which it is shewed for the term in that case is Intire and will admit of no fractions And so by consequent the Plaintife may in such case take advantage of the Condition comprised in the deed shewed forth by the Defendant himselfe so he do it in the same term as afore-said c. â—erdict and â—amages inâ—â—â—e 56 Goods were cast super arenas aqua salsa minimè coopertas Co. l. 5. 108. a. 3. in Sir Henry Constables Case Manerii de B. infrà fluxum refluxum maris and another parcell were floting super aquas maris refluent ex arenis ejusdem Manerii infrà fluxum c. The Patentée of the Mannor and Fée of Holdernesse in Com. Ebor. brings an Action of Trespasse against him that seised them to the use of the Lord Admiral And the Iurie assessed damages intirely for all In this case judgement was given against the Plaintife because the Goods so floting upon the Waters called Flotsam did not of right belong to him but to the Lord Admiral And therefore the Verdict being intire viz. given for both and so the damages of the wrecke being thereby made un-severable from those of the Flotsam the Plaintife could take nothing by his wort So in Trespasse 21 H. 7. 34. b. the Defendant justifies for part and Pleads not guilty for the residue the Iury inquire of one of the things and tax damages intirely here the whole Court against Fineux adjudged it not good 22 E. Dier 369. accord M. 14 15 El. in Trespas by Pooly for his Servant beaten and his Close broken and said not per quod servitium amisit upon non culp the Iury assessed damages intirely and it was adjudged not good See 9 H. 7. 3. M. 30 31 El. inter Moore Bedle in Assumpsit where the Plaintiff layes two breaches whereof one was insufficient upon non assumpsit the Iury assessed damages intirely And in this case there were two resolutions 1 It shall be intended that they gave damages for both 2 Because the Plaintifs had no cause for one of the allegations â—â—tire serviâ—â— the judgement was to be reversed in the Exchequer Chamber c. 57 Concerning intire Services Co. lib. 6. 1. in Bruertons Case and where they may be apportioned â—arranty inâ—â—â—e and where not see Bruertons Case per tout Co. l. 6. 1. and John Talbots Case in the 8. Rep. fol. 108. 58 Warrantie is an Intire thing which will not suffer partition but shall always either intirely remaine or be intirely annulled Co. lib. 6. 126. Morrices Case and therefore if there be two Ioyntenants with Warrantie and petition is made between them by judgement in a writ de partitione facienda by force of the Statute of 31 H. 8. cap. 1. in this case the Warrantie shall remaine to each of them intirely because upon the Kings writ they are compellable by the Statute unto which every one is Partie to make partition and so the Partie persuing his remedie according to the Act shall not receive any prejudice by the operation of the same Act unto which every one is partie but if they had made partition by deed by consent since the said Act albeit they were compellable by writ to make partition yet in as much as they did not pursue the Statute to make partition by writ for that cause such partition remaines as it was before at the Common Law and by consequent the Warrantie is gone as it was agréed in 29 El. 3. tit Garr because the Warrantie is indivisible and cannot be parted as the Land may Co. lib. 6. 23. The Marqu of Winchesters Case 59 The Marcquesse of Winchester by will as it was supposed A will for Lands and Testament 〈◊〉
this Case the mesnaltie is not suspended during the life of the Mesne by force of that remainder in taile for a remainder in taile or for life expectant upon an estate for life or in taile shall never suspend a mesnaltie Seigniory Rent c. because albeit the remainder vests presently yet that cannot suspend the present Frank-tenement of the Rent during the life of the first Tenant for life who is indeed the true Tenant to the Lord or to the reversioner upon whom avowry shall be made c. and as a Signiory Rent c. cannot be suspended in part and in esse for part in respect of the Land out of which it is issuing so neither can a Signiory Rent c. be suspended in remainder and yet be in esse for a particular Estate in possession for then necessarily there must insue fractions of Estates and particular Estates shall be created without Donors or Lessors against the Rules and Maximes of the Law c. It is otherwise if the mesne grant his mesnaltie to one for life or in taile the remainder to the Tenant peravaile in Fee for in that case the mesnalty is totally extinct because there the Tenant peravaile hath as high an Estate in the inheritance of the Mesnaltie as he hath in the Tenancie neither is there in that case any possibilitie of reviving the Mesnaltie and here also the mesnaltie is not extinct for the Inheritance and in esse for the particular Estate for life or in taile in possession but the mesnaltie by the remainder in Fée is extinct in all for otherwise this absurdity would follow that there would be a Fée-simple of the Tenancie peravaile and also a Fée-simple of Signiory perament and but an Estate for life or in taile onely of the mesnaltie and so a Tenancie in Fée-simple shall be onely holden of a mesnaltie for life or in taile and a Signiorie in Fee shall be issuing out of a mesnaltie for life or in taile onely which is impossible and can by no meanes be c. Vide 3 H. 6. 1. 15 E. 4. 12. Co. l. 10. 128. a. 4. in Cluns Case 64 If Tenant for life make a Lease for yeares rendring Rent at Easter and the Lessée occupie for three quarters of the yeare A term in … and in the last quarter before Easter the Tenant for life dies here shall be no apportionment of Rent for three quarters of the yeare because the time is intire and in respect thereof there shall be no apportionment neither yet was the Rent due before Easter Howbeit in the same case if part of the land had been avicted before Easter and that Feast had incurred in the life of the Lessor there shall be an apportionment of the Rent but not in respect of the time which doth still continue but in regard that part of the Land demised is evicted c. Vide 27 E. 3. 84. b. Co. l. 10. 134. b. 3. in Read and Redmans Case 65 In Actions meerly personal or personal and in some sort mixt with the realtie in which intire things are demanded Actions Intire if there be divers Plaintifes and one be summoned and severed the death of him which is so summoned and severed where the intire thing survives to the other shall not abate the writ as in a writ of ward of the body or the like c. Co. lib. 11. 4. a. 2. in Auditor Curles Case 66 The Office of Auditors of the Court of Wards according to Statute of 22 H. 8. cap. 46. cannot be granted in reversion The Office of Auditor of the Court of wardâ— intire because they two make up one Iudge or Iudicial Officer of that Court and as none can give judgement of things in futuro so neither may any be admitted a judge in futuro according to the Rule Officia judicialia non concedantur antequam vacent And besides great inconvenience might insue thereupon for he that is at the time of the grant sufficient to execute it may perhaps when it falls be un-capable and un-sufficient for it And albeit that Office be onely in part judicial and in part ministerial and ministerial Offices may be granted in reversion yet in as much as two persons have both of them but one Office are as one Officer that Office is by the said Act made so intire that it cannot possibly be divided for the King cannot make two Auditors of the minister inâ— Office and other two to execute the Iudicial part because then there would be four persons which the Act restraines to two neither yet can the King make one Person to have the judicial voice and the other the ministerial Office For then there would be two Officers and two Offices whereas the Act makes but one Officer and then also one of them shall have a distinct Office and voice whereas the Act joynes them together in two Persons And therefore in as much as the ministerial part is so united with the judicial part and that joyntly in two Persons which make up one intire Officer that there is no possibility of severing the one from the other as the judicial part cannot be granted in reversion so neither can the ministerial c. Trespas intire though against many 67 When in Trespass against divers Defendants Co. lib. 11. b. 1. in S John Heydon Case Ibid. 7. a. 2. 43 El. Rotulo 1694. inter Austeâ— Pl. and Willar and Ald. Ded fen they plead non culp or several pleas and the Iury finds for the Plaintife in all the Iurors cannot assesse several damages against the Defendants because it is but one Trespas and also made joynt by the Plaintifs writ and count And albeit one of them be the most malicious and de facto doth the greatest wrong yet all coming forth to do an unlawful Act and being all of one partie the Act of one is the Act of all that are present and of the same partie And therefore in such case if the hand of one of them onely gives a mortall wound whereupon death followes that is murder in all that are present and of the same partie albeit the others intended not to give a wound so mortal as appeares in Mekallies Case in the 9. Report Copercenery â—intiâ—e 68 If two Caperceners Tenants in taile lose by default F. N. B. 155. h albeit the default of the one is not the default of the other yet in respect of the intirenesse of their estate they shall joyne in a Quod ei deforciat c. M. 46. 3 E. An execution â—ntire 69 If an execution be sued of the body and of the land Pl. Co. Rosses Case and afterward the Conusor enfeoffs the Conuse of parcel of the land or surrenders parcel of the land unto him or the fée-simple of parcel thereof descends upon him in all these cases both body and land are discharged for by the execution against the body land
properly called a Rent For saith he if it should be a Rent it ought to be either Rent-service Rent-charge or Rent-secke but it is not any of those For if the stranger be once seised of it and after be denyed it he shall not have an Assise for it because it is not issuing out of any Tenements c. So that if it be arreare the stranger hath no other remedie but that the Feoffor or his heirs may enter and yet if they do enter then is the Rent gone for ever And therefore he concludes that such a charge upon the Landis not a Rent but onely a paine layed upon the Tenant of the Land and his heires that in Case payment be not made according to the Indenture they shall lose the Land by the entry of the Feoffor and his heires c. An Estate during coverture 2 Another example hereof you shall find Sect. 380 381. Co. ibid. 235. b. 1. Where to prove that an Estate made to Baron and Feme during the Coverture is an Estate unto them for their two lives he useth this argument Every man saith he that hath an Estate of Frank-tenement in Lands or tenements hath an Estate in them either in Fée or Fée taile or for his owne life or pur auter vie But the Baron and Feme have not by such a Grant Fée nor Fée taile nor an Estate pur auter vie Ergo they have an Estate for the term of their lives Howbeit that is upon a Condition in Law viz. If one of them die or a divorce be sued betwixt them that then it shall be Lawfull for the Lessor or his heires to enter c. And in this Case if they make wast the Feoffor and his heires shall have a writ of wast against them supposing by his writ Quod tenet ad terminum vitae c. But in his Count he shall declare the special manner of the Lease Common ratione commorantiae void 3 In Trespass the Defendant justifies Co. lib. 6. 60. a. 2. in Gatewands Case that all Inhabitants in any ancient mesuage within the Towne of Dale have used to have Common in the place where c. in Sale ratione condonantiae c. And this Custome was adjudged to be against Law Because there are onely four kinds of Commons viz. Appendant appurtenant in grosse and for vicinage and Common Ratione commorantiae is none of them c. 80. 18. The Estate of the Duke of Cornwall 4 Edward 3. Co. lib. 8. 27. a. 2. in the Princes Case gave unto the Blacke Prince the Dukedome of Cornwall c. Habendum tenendum eidem Duci ipsius haeredum suorum Regum Angliae filiis primogenitis dicti loci Ducibus in Regno Angliae haereditariè successoris c. And it was resolved in 3 Jac. in the Princes Case that that the Prince had an estate of Fée-simple in that Dukedome because every Estate of Inheritance is either Fée-simple or Fee-taile but that Estate could not be Fée-taile for it is not limited or restrained either by expresse words or by words which do tout amount to the heires of the body of the Prince because he that is to inherit that Dukedome ought to be the first borne Sonne of the heires of the Blacke Prince be it heir Lineall or Collateral and such heire ought also to the King of England c. Vide infrà 192. 3. 72 The Generals must go before and the Specials must follow after â—enerals beâ—e Specials 1 In a write the General shall be put in demand and in Plaint before the special as Land before Pree Pasture Wood Iuncarie The Rule of the Register Marish c. Wood before Alders Willowes c. Finch 24. 73 The more worthy shall be set before the lesser worthy â—grees of â—hiness of â—d c. 1 An intire thing shall be demanded before the moitie part or parts Co. Inst p. 1. 4. a. 2. Co l. 11. 82. a. 4. Bowles Case the thing of greater dignitie before that which is of lesse as a mesnage before Land for albeit Land be of more esteeme then any of the other elements because it was principally made for man to rest on which he cannot do in any of the other elements yet Land builded upon is more worthy then any other Land because it is for the habitation of man and in that respect hath the precedencie to be demanded in the first place in a praecipe howbeit a Castle shall be demanded before a mesuage or Mannor because it is more worthy then they being ordinarily an habitable for a Noble personage c. Finch 24. and the Rule in the Register Finch 25. 2 In a Replevin if it be of two chattels one quicke Of Chattels and the other dead the living thing shall be first demanded Finch 25. and the Rule in the Register Finch ibidem 3 Where one hath the presentment to a Church two turnes Of present Action to a benefice and another the third turne he that had the third turne bringing a Quare Impedit shall not begin with his owne turne first but with the other two turnes Co. Inst part 18. a. 3. 4 My Lord Cooke well observes Fee-simple the most worthy Estate that Littleton did worthily begin his Booke with an Estate in Fée-simple because all other Estates being derived from that it must needs be the most worthy for saith he A principalioribus dignioribus est inchoandum Co. lib. 2. 46. b. 1. in the Arch Bishop of Canterb Case 5 By the Statute of 31 H. 8. cap. 13. It was enacted Words of inferior rank eâ—clude them of higher degree that all Monasteries c. Colledges c. which after that Act should happen to be dissolved renounced relinquished forfeited given up c. or by any other mean should come to the Kings highness c. should be vested deemed and judged by authoritie of Parliament in the very actual and real possession of the King c. And afterwards by the Act of 1 E. 6. cap. 14. The Colledge of Maid-stone in Kent was given to E. 6. Now the Question was whether by the General words of the Statute of 31 H. 8. That Colledge was not to be deemed in the Actual possession of E. 6. because the Edict of 1 E. 6. was a mean by which it came to the Kings hands and therefore fulfilled these words of that Statute by any other mean But it was resolved per totam Curiam that the Statute of 31 H. 8. could not be so understood For when the Statute speaks of dissolution renouncing relinquishing forfeiture giving up c. which are inferiour meanes by which such Religious houses came to the King then the said last words by any other mean cannot be intended of an Act of Parliament which is the highest manner of conveyance that may be And therefore the makers of that
a lease for life and after the Lord and the tenant inter-marry and have issue betwéen them a son and the Feme dies and after the father dies the son within age here the executors shall not have the wardship by reason of the Seigniory for the father hath the wardship of his eldest son jure naturae which is inseparable and cannot be waved and he cannot have the wardship of his son by the death of his wife in respect of his Seigniory for that was inseparably vested in him as father immediatly upon the birth of the son jure naturae And Littleton saith that the father during his life shall have the marriage of his son and heir apparent and not the Lord c. 3. Co. l. 6. 22. Ambrosia Gorges Case 10 Viscount Bindon being seised of land in capite had issue The like Douglas his daughter and heir who being married to Sir Arthur Gorge had issue by him Ambrosia a daughter Douglas dies and likewise Viscount Bindon Ambrosia being under age afterwards Sir Arthur Gorge takes another wife and hath Issue a son Ambrosia remaining still under age In this case Ambrosia was not in ward during the time she remained heir apparent to her father but after her father had a son so that she remained no longer heire apparent then had Queen Eliz. the Wardship both of her body and Lands c. Allegiance â—â—ue by nature 11 Faith Co. l. 7. Calv. Case fol. 13. b. obedience and ligeance are one to the Soveraigne by the Law of Nature which cannot be changed or taken away for albeit Iudiciall and Municipall Lawes have inflicted and imposed in several places and at several times divers and several punishments and penalties for breach or not observance of the Law of Nature for that Law onely consisting in commanding or prohibiting without any certaine punishment or penaltie yet the very Law of Nature it self could never be altered or changed And therefore it is certainly true that Jura naturalia sunt immutabilia And here with agréeth Bracton lib. 1. cap. 5. and Doct. and Student cap. 5. 6. For example 33. H. b. 55. 6. If a man hath a Ward by reason of a Seigniory and is out-lawed he forfeiteth the wardship to the King but if a man hath the wardship of his owne Sonne or Daughter which is his heire apparent and then is out-lawed he cannot forfeit that wardship because nature hath annexed it to the person of the Father as it appeareth in 33 H. 6. 55. b. So likewise the Faith Obedience and Ligeance which we owe to our Soveraigne cannot be taken away For bonus Rex nihil a bono patre differt patria dicitur à patre quia habet communem patrem qui est pater patriae In the same manner Maris foeminae conjunctio est de jure naturae 35 H. 6. 57. as Bracton and Doct. Stud. in the places before quoted do hold And therefore if he that is attainted of treason or felonie be slaine by one that hath no authoritie or executed by one that hath authoritie but pursueth not his Warrant In this Case 21 E. 3. 17. b. the eldest sonne can have no appeale for he must bring his appeale as heire which priviledge being ex provisione hominis he loseth by the attainder of his Father Howbeit his Wife if he have any shall have an appeale because she is to have her appeale as Wife which she continueth to be notwithstanding the attainder for that maris foeminae conjunctio is de jure naturae And therefore it being intended to be of true and law-full matrimonie is indissoluble and this is proved by the booke in 35 H. 6. fol. 57. So if there be Mother and Daughter and the Daughter is attainted of felonie now can not she be heire to her Mother for the cause afore said yet after her attainder if she kill her Mother this is parricide and petite treason For still she remaineth her Daughter because that is of nature If a man be attainted of felonie or treason 4 E. 4. 35 H. 6. 57. 2. Ass Pl. 3. he hath lost the Kings Legal protection for he is thereby utterly disabled to sue any Action reall or personal which is a greater disability then an alien in league hath and yet such a Parson so attainted hath not lost that protection which by the Law of Nature is given to the King for that is indelebilis immutabilis and therefore the King may protect and pardon him and if any man kill him without warrant albeit attainted as afore-said he shall be punished by Law as a Man-slayer By the Statute of the 25 E. 3. cap. 22. a man attainted in a Praemunire is by expresse words out of the Kings protection generally and yet this extendeth onely to legal protection as it appeareth by Litt. fol. 43. for the Parliament could not take away that protection which the Law of Nature giveth unto him and therefore notwithstanding that Statute the King may protect and pardon him And although by that Statute it was farther enacted that it should be done with him as with an enemie by which words any man might have slaine such a person as it is holden in 24 H. 8. Coron Br. 197. until the Statute made in 5 E. cap. 1. Yet the King might protect and pardon him A man out-lawed is out of the benefit of the Municipal Law for so saith Fitz. N. B. 161. Ut legatus est quasi extra legem positus And Bracton l. 3. tract 2. cap. 11. saith that caput gerit lupinum c. yet is he not out either of his natural ligeance or of the Kings natural protection for neither of them is tied to municipal lawes but is due by the law of Nature which was long before any judicial or municipal lawes And therefore if a man were out-lawed for felonie yet was he within the Kings natural protection for no man but the Sheriffe could execute him as it is adjudged in 2. Ass Pl. 3. Every subject is by his natural ligeance bound to obey and serve his Soveraigne c. It is enacted by the Parliament in 23 H. 6. cap. 8. that no man should serve the King as Sheriffe of any County above one yeare and that notwithstanding any clause of non obstante to the contrary that is to say notwithstanding that the King should expressy dispence with the said Statute howbeit it is agréed in 2 H. 7. that against the expresse purview of that Act the King may by a special non obstante dispence with that Act for that the Act could not barre the King of the service of his subject which the law of nature did give unto him One of the Chiefest grounds according to which the Case of the post-nati was resolved in 6 Jac. was because obedience and ligeance of the subject to the Soveraigne is due by the law of Nature for if they be due by that law
a lease be made of three acres reserving a Rent upon Condition and the reversion is granted of two acres the Rent shall be apportioned by the Act of the parties but the Condition is destroyed for that it is intire and against Common right Howbeit in the Kings Case the Condition in that Case is not destroyed but still remaines in the King notwithstanding such alienation of part c. The Kings Eâ—â—ate no deâ—ree 21 In a Writ of entry sur disseisin an estate made to the King makes no degrée Co. ibid. 239. a. 2. and therefore if a dissessor by déed inrolled convey the Land to the King and the King by his charter granteth it over the disseisée cannot have a writ of Entry in â—e per cui but in le post c. â—ying seised 〈◊〉 descent 22 If there be Tenant for life the remainder in taile Cb. ibidem 4. the remainder in Fée and Tenant in taile disseiseth the Tenant for life and dieth seised this shall take away the entry of the Tenant for life But if the Kings Tenant for life be disseised and the disseisor die seised this descent shall not take away the entry of the Lessée for life because the disseisor could gaine no Estate against the King and then he could not die seised of any more then a bare Estate of frée-hold during the life of the Lessée And Littleton saith Litt. § 387. that a descent of an Estate for term of another mans life shall not take away an entry c. â—escent â—â—ant 23 It is said if the King die seised of Lands Co. ibid. 246. a 2. and the Land descend to his Successor this shall bind the disseisée though he were an Infant at the time of the descent because the priviledge of an Infant in that Case holds not against the King â—vowson â—nder Ma. 24 In a writ of right of Advowson brought by the King Co. ibid. 294. b. 2. F. N. B. 31. d. the Tenant shall not render the Di. Marke because nullum tempus occurrit Regi and therefore the King shall alleadge that he or his Progenitor was seised without shewing any time It is otherwise in the Case of a common person for then the Tenant shall tender a Di. Mark against him that brings the writ to inquire of the seisin alleadged in the Court c. â—at Attorn 25 A grant of a Seigniory Rent Reversion Remainder Co. ibid. 309 b 2. F. N. B. 60. 1 c. to the King or by the King to another is good without attornment and this is by force of his prerogative â—nt fine Atâ— in distrain 26 In case of a déed nothing passeth before attornment Co. ibid. 314. b. 2. in Case of a fine the thing granted passeth as to the State but not to distraine c. without attornment but in the Kings Case the thing granted doth passe both in Estate and in Privitiâ— to distraine c. without attornment unlesse it be of Lands or tenements that are parcel of the Dutchy of Lancaster and lie out of the County Palatine Co. ibid. 318. a. 3. 27 Tenant for life shall not be compelled to attorne in a quid juris clamat upon a grant of a reversion by fine Quid juris clamat in Chiâ— Attornment holden of the King in Chiefe without licence And the reason hereof is not because the Tenant of life must be charged by the fine for his Estate was more ancient then the fine levied but because the Court will not suffer a prejudice to the King and the King may seise the reversion and Rent and to the Tenant shall be attendant to another c. Co. ibid. 33 5. a. 3. 28 If there be Tenant in taile Descent Coâ— Recovery 〈◊〉 Barre the reversion or remainder in the King In that Case the Tenant in taile cannot dis-continue the Estate taile but Tenant in taile the reversion in the King might have barred the Estate taile by a Common Recovery untill the Statute of 33 H. 8. cap. 20. which restraineth such a Tenant in taile Howbeit that Common Recovery neither barred nor dis-continued the Kings reversion c. Co. ibid. 344. b. 4. Co. l. 6. 49. b. 4. in Boswels Case 29 At the Common Law before the Statute of W. 2. cap. 5. A writ of righâ— of Advowâ—â— if a stranger had presented his Clerke and he had béen admitted and instituted to a Church whereof any subject had béen lawfull Patron the Patron had no other remedie to recover his Advowson but by a writ of right of Advowson wherein neverthelesse the incumbent was not to be removed And so it was also at the Common Law if an usurpation had béen had upon an Infant or Feme Covert having an Advowson by descent or upon Tenant for life c. the Infant Feme Covert and he in the reversion were driven to their writ of right of Advowson For at the Common Law if the Church were once full Plenarty the incumbent could not be removed and plenarty generally was a good plea in a Quare Impedit or assise of Darreine presentment Howbeit at the Common Law if any had usurped upon the King and his presentée had béen admitted instituted and inducted for without induction the Church had not béen full against the King the King might have removed him by Quare impedit Quare Impâ—dit and so have béen restored to his presentation for therein he hath a prerogative quod nullum tempus occurrit Regi c. Co. ibid. b. 2. F. N B. 34. c 30 If the King do present to a Church Revoke pâ—sentation and his Clerke is admitted and justified yet before induction the King may repeale and revoke his presentations c. Co. ibid. b. 3. 31 A tortious Act or entry or a false Entry Fained Recovery a feined recovery against Tenant for life or in taile the reversion or remainder in Fée to the King shall never devest any Estate remainder or reversion out of the King It is otherwise in the Case of a common person Co. l. 4. 23. b. 2. In Clerke and Penni-fathers Case 32 If the Quéen be onely Tenant for life of a Copi-hold Mannor Copi-hold Mannor and a Copi-hold of in-heritance escheats unto her the Quéen may grant it to whom the pleaseth and that shall bind the King his heires and successors for ever for she was Domina pro tempore And the custome of the Mannor also shall bind the King c. Co. l. 4. 55. a. 4. in Sadl Case 33 When the Kings title and the title of a subject concurre in commencement Titles concurre the Kings title shall be perferred as Weston holds Pl. Co. 263. b. Co. l. 4. 58. a. 3. in the Sadlers Case 34 When the Kings Tenant seised of Land in Fée dies without heire Escheat the Fée and frank-tenement is
presently after his death and before office thereof found cast upon the King for in such Case it ought to be in some person or other and if any person enter into the Land and take any of the profits an information of Intrusion by the King may be perferted against him before office or seisure because the King immediately after the Tenants death is in actual possession and hath not onely a frank-tenement in Law as a Common person in such Case hath And as to that this diversity is taken that when the Kings Tenant dies in possession without heire so as in that Case possessio est vacua and in none there the Law adjudgeth the King unto whom no laches can be attributed in actual possession presently but when another is in seisin and possession at the time of the escheat so that Possessio plena est non vacua In that Case the King shall not be adjudged in possession The Kings Teâ—ant â—lien â—illein Mortmaine until that seisin and possession be removed as if the Kings Tenant be disseised and die without heire or if an Alien nee or the Kings Villein or the Alienee in Mortmain be disseised and die without heire and all that found by Office in those Cases the King shall not be in possession untill the possession and seisin of the terre-tenant be removed But if Land descend to the King after the death of his Father or of any other Collateral Ancestor the King shall be immediately in actual possession before entry or seisure So likewise if the King make a Lease for life or a gift in taile and the Lessée dies or the donée dies without Issue In that Case the possession shall be actually in the King without any entry or seisure and with this accords 9 H. 7. 2. 6. where it is expressely said that when none is in possession it shall be adjudged in the King according to his title and so the doubt which Stamf. makes Praerogative 53. b. is well resolved Condition â—emand 35 If the King make a Lease for yeares rendring Rent with Condition to be void upon non-payment of the Rent Co. l. 4. 73. a. in Boroughs Case the King shall take advantage of that Condition without any demand it being a thing undecent and against the dignitie of the King to wait upon his subject or to demand any thing of him it is otherwise if the King grant over his reversion For his grantée shall not take advantage of the Condition without demand of the rent this is by reason of a personal prerogative in this Case annexed to the person of the King and not in respect of the nature and qualitie of the Rent for that remaines the same whether paid to the King or to a subject upon the ground or elswhere c. â—wo Houses â—mised 36 Two houses are let to one man by one demise Co. l. 5. 55. b. 3. 56. a. 1. Knights Case rendring for the one 4 l. per annum and for the other 20 s. per annum with proviso that if the said Rent of 5 l. be arreare in part or in all then the Lessor to re-enter The Inheritance of these Houses afterwards escheats to the King â—he fold â—ent â—eare â—ndition who after grants the reversion of that upon which 20 s. per an is reserved to I. S. the Rent thereof is arreare In this Case the Patentée cannot enter for the Condition broken because by the severance of any part of the reversion all the Condition as to a Common person is intirely destroyed It is otherwise in the Kings Case for the Condition remaines intirely in the King with the reversion of the other House and that is in respect of his prerogative c. â—gs grants â—ourably inâ—â—ted â—ein â—en â—vowson 37 The Law makes a difference betwéen the Kings grants who is alwayes presumed to intend Ardua regni pro bono publico omnium Co. ibid. 36. a Knights Case Co. l. 7. 14 a. in Englefeilds c. and the grants of subjects who have leasure to attend their private affaires for the grants of a subject are alwayes interpreted most strongly against him that makes them but the Kings grants are alwayes taken with a favourable and beneficial interpretation so that no prejudice may happen to him by construction or implication upon his grant otherwise then was truly intended by it And therefore if the King grant Land to I. S. and his heires when in truth I. S. is the Kings Villein this shall not enfranchise the Villein by Implication There is the same Law of an alien nee 17 E. 3. 39. An Advowson of a Prebendarie holden of the King was aliened to an Abbot and his successors and the King grants to the Abbot and his successors that they shall hold the Prebnedary in proper use neverthelesse he shall seise the Advowson for alienation in Mortmaine and shall destroy the Appropriation for he shall not be outed of his right to the Advowson by Implication Debt Release And in 2 R. 3. 4. 21 E. 4. 46. 34 H. 6. If two be undebted to the King the King release to one of them this shall not discharge the other in 6 H. 7. 15. 11 H 7. 10. If the King release all demands right Restr to alâ—â— of Inheritance shall not be there by released 21 H. 7. 7. The King grants Lands in Fée upon condition that the grantée shall not alien this is good Howbeit in all these cases the Law is otherwise in the case of a common person c. Co. ibid. a. 4. Knights Case 38 In many cases the King that claimes by a subject Rent-secke distraine shall be in better case in respect of the dignity and prerogative incident by the Law to the Royal person of the King then the subject himselfe by whom he claims As if the King had a rent secke by attainder of treason or by grant c. he shall distraine for it not onely in the land charged but likewise in all his other lands and yet the subject by whom the King claimes shall not distraine for it at all If a subject hath a recognisance or obligation Recognisanâ— Oblig and afterwards he is out-lawed or attainted in this case the King shall seise all the land of the Counsor or obligor whereas he himselfe could have but a moity if a subject demise land rendring rent and a re-entry upon default of payment thereof in this case the subject shall not take advantage of such a condition without demand of the rent c. but if the inheritance of that land come to the King by Act of Parl. attainder grant Seise all Condition Demand Priority c. he shall take advantage of the breach of such a condition without demand of the rent F. N. B. 142. c. if the King purchase a Seigniory of which land was holden by posterity the King shall
against their wills and by good advise he was cleerly discharged thereof See more examples to the same purpose ubi in marg Co. l. 7. 25. b. 1. in Calvins Case 45 Foedera percutere to make Leagues Peace warâ— Denization doth onely and wholy pertaine to the King and not to the subject so also doth Bellum indicere Likewise the King onely without the subject may make not onely letters of safe conduct but letters patents of Denization to whom and how many he please and may enable them at his pleasure to sue any of his subjects in any action whatsoever real or personal which the King could not do without the subject if the subject had any Interest given unto him by the Law in any thing concerning an Alien borne Nay the Law is more precise herein then in a number of other Cases of higher Nature For the King cannot grant to any other to make of strangers born Denizens it is by the Law it self so inseparably and individually annexed to his Royal Person as the Book is in 20 H. 7. 8. because the Law esteemeth it a point of high prerogative Jus majestatis inter insignia summae potestatis to make Aliens borne subjects of the Realme and capable of the Lands and Inheritances of England in such sort as any natural borne subject is And therefore by the Statute of the 27 H. 8. cap. 24. many of the most ancient prerogatives and Royal Flowers of the Crowne as Authority to pardon Treason Murder Man-slaughter and Felonie Power to make Iustices in Eyre Iustices of Assise Iustices of Peace and Gaol-delivery and the like having béen severed and divided from the Crowne were again remitted to the same But authority to make Letters of Denization was never mentioned therein to be resumed because there was never any that claymed the same by any pretext whatsoever being a matter of so high a point of prerogative c. Co. l. 7. 14. a. 4. in Englefeilds Case 46 A. Seised of the Mannor of Dale in Fée A Covenâ—â— Power of Revocation Covenants with B. to stand seised to the use of himselfe for life the remainder to B. in tail the remainder to B. in Fée with proviso that upon delivery or tender of a ring to B. by himselfe or another as the Estates shall be void A. is out-lawed for treason the King seiseth the Land and lets a Lease to D. for 40 yeares Treason Seisure and after the King gives a Commission under the Great Seale to E. to tender the ring to B. according to the Condition In this Case if a Common Person had enjoyned the Kings Estate by making such a Lease of 40 yeares Demise by thâ— Kings power Revocation remaines he had utterly deprived himself of revoking the Estate and of taking advantage of the Condition because his Act shall be most interpreted against himselfe But in that Case the Kings demise shall not enure to his special prejudice to two intents viz. To a demise of Land and also to a suspension of his Condition whereby he might defeat the Estate for life and the other Estates that depend upon it or to a demise in respect of his present Estate pur auter vie and also to a Confirmation in respect of his Condition whereby otherwise he might defeat all as shall be also in Case of a Common Person For the Kings grant shall always be taken according to his expresse intention comprehended in his grant and shall not extend to any other thing by Construction or Implication when it appeares not by his grant that his Intent extended unto it and therefore in such Cases the King ought to be truly informed and he ought to make a special and particular grant which by expresse words may enure to all such several intents as are desired c. Co. l. 7. 16. a. 4. in the Case of Swasn 47 All White Swans not marked Swans wilde which have gained their liberty and swim in an open and common River may be seised to the use of the King by his prerogative Because Volatilium quae sunt ferae naturae alia sunt regalia alia Communia Now a Swan is a Royal bird and therefore if the propertie thereof be not knowne it belongs to the King by his prerogative And there was always an ancient Officer of the King called Magister deductus Cignorum who continues even to this day Neverthelesse the subject may also have property in white Swans not marked Swans not marked in private waters as some may have Swans not marked in their private waters the property whereof belongs unto them and not unto the King And albeit they escape out of their private waters yet they may take them and convey them home again And with this agrées Bracton lib. 2. cap. 1. fol. 9. Si autem animalia fera fuerint mansueta ex consuetudine eunt redeunt volant revolant ut sunt Cervi Cigni Pavones Columbae hujusmodi eo usque nostra intelligantur quamdiu habuerint animum revertendi But if they once gain their natural liberty and do swim in open and common Rivers the Kings Officer may seise them in the open and common River for the King because one white Swan without such pursuit as is aforesaid cannot be known from another And when the property of a Swan cannot be known it being of its nature a Royal Fowl it belongs to the King c. Duke of Cornâ—al 48 In the Princes Case Co. l. 8. fol. 28. a. It was resolved Co. lib. 8. 28. a. 3. in the Princes Case that the Act of 11 E. 3. by force whereof the Kings eldest son was made Duke of Cornwall was such an Act. whereof the Iudges and all the Realm ought to take Conusance because it concerned the King and his first-born son and heir apparent to the Crown for the time being perpetuis futuris temporibus Conusance of an Act of Parliament for every subject hath interest in the King and none of his subjects who are under his Laws are divided from him being their Head and Soveraign So that the Kings affairs concern the whole Kingdome and especially when the Prince the first begotten son of the King and his Heir apparent to the Crown is therein concerned Corruscat enim Princeps radiis Regis Patris sui censetur una persona cum ipso Rege Treason against the Prince as it is declared in the Act of Parliament of 38 H. 6. And therefore if any shall intend the death of the Prince and shall make declaration thereof by some overt Act that is Crimen laesae Majestatis high Treason by the ancient Common Lawes of England and is so declared by the Statute of 25 E. 3. c. Prince 49 1 H. 5. fol. 7. If the Prince as Prince of Wales Co. ib. b. 2. hath judgment to recover and afterwards the Crown descends to him he
shall as King sue execution Queen Conusance 50 The Act of the 35 H. 8. Co. ibidem which concerns the Capacity of the Quéen was such an Act whereof the Iudges ought to take Conusance because it concerned the Kings Wife as it was resolved in the Lord Barkleys Case Pl. Co. 231. â—dges â—rciaments 51 There are some persons which shall not be amerced Co. l. 8. 61. b. 4. in Beechers Case and therefore by consequence shall finde no pledges as the King and also the Quéen who as to that participates of the Kings Prerogative F. N. B. 31. f. 47. c. 101. a. 18 E. 3. 2. Br. amerciament 53. â—endment â—f a writ 52 An Original writ by the Common Law was not amendable in the case of a common person for which sée 13 E. 3. Tit. Amendment 63. Co. l. 8. 156. b. 2. in Blackamores Case which was before any Statute made concerning Amendment c. And 16 E. 3. tit Variance 59. and 29 E. 3. Amendment 68. But in the Kings Case in a Quare Impedit where the Quare Impedit was praesentere for praesentare and after exception taken to it and before answer by the advice of the Chancellor out of which Court that writ issued and of the Iustices of the Kings Bench the writ was amended in the Chancery and the defendant was made to answer thereunto by award Vide 4 H. 6. 16. 40. Ass Pl. 26. â—e Kings â—arter shall 〈◊〉 interpreted 〈◊〉 fulfil the â—gs intent 53 When the Kings Charter may be taken to two several intents Co. l. 8. 167 a. 4. in the Earl of Cumberlands Case and both intents are of effect and good in many Cases it shall be taken to such an intent as shall be most beneficial for the King but if it may be taken to one intent of effect and good and to another intent void and of no effect it shall then be taken and construed to such an intent as that the Kings Grant may take effect and that in judgment of law shall be understood to stand with the Kings intent for it was not his intent to make a void Grant And with this agrées the Book in 21 E. 4. 44. In the Abbot of Walthams Case and the resolution in the Earl of Cumberlands Case in the 8 Report 167. where the Case was that E. 2. granted the Castle of Skipton to Robert de Clifford in tail and H. 6. grants to Thomas Lord Clifford Cosin and Heir of the body of Robert the reversion of the said Castle necnon Castrum c. Here the Kings intent appeared to be that Thomas Lord Clifford should have all his Estate in the Castle And therefore whether it be taken to be a grant of the Reversion in case the former grant in tail was good or of the possession in case that former grant was void it is not material in regard it appears clearly by the expresse words of the Charter that the King intended he should have it in possession either the one way or the other So if the King grant Totum illud Manerium sive firmam de D. or totam illam Rectoriam sive Advocationem de D. In this Case also whether the King hath a Mannor or else a Farm and no Mannor or a Rectory Impropriate or else an Advowson and no Rectory that which the King hath passeth for the effect of the Grant is that be it Mannor or Farm Rectory Impropriate or Advowson that which the King in truth hath passeth by the Grant Co. l. 9. 38. b. 3. in Hensloes Case 54 Of ancient time before the Statute of 31 H. 3. cap. 11. Goods of an Intestate when a man died intestate and did make no disposition of his goods nor committed his trust to any in that behalf In that Case the King who as Parens Patriae hath the supream care to provide for all his Subjects to the end every one may injoy that which he ought to have did use by his Ministers to seise the goods of the Intestate to the intent that they might be preserved and bestowed for the burial of the dead for the payment of his debts for the advancement of his wife and issues if he had any and if not then of those of his blood And this appears in Rotulis Clausis de 7 H. 3. M. 16. Bona Intestatorum capi solebant in manus Regis Ordinaries c. And afterwards this care and trust was committed to Ordinaries for there could be found none more fit to have such care charge of the Intestates transitory goods after his death then the Ordinary who all his life had or at least ought to have had the care and charge of his immortal soul as it is said in Pl. Co. 280. in Greisbrooks Case And therefore the Ordinary was in that respect appointed in loco parentis And this appears also by the construction of John Stratford Arch Bishop of Canterbury at a Synod in London Anno Domini 1380. where he confessed that the Administration of the goods of an Intestate was granted to the Ordinaries Consensu Regis Magnatum Regni c. Co. l. 9. 49. a. 1 in the Earl of Shrewsbury's Case 55 If the King grant the Office of Stewardship of the Mannors of D. and S. to an Earl without power to make Deputies Stewardship neverthelesse in respect of the meannesse of the Office in a base Court and of the dignity of his Person being an Earl it is implied in law for conveniency that he may in that Case make a Deputy for whom he ought to answer so that no prejudice may happen to the King And his Deputy shall execute Officium laboris as to hold a Court Baron and to enter Pleas Surrenders c. And néed requires in Cases of difficulty or which concern the Kings profit the Earl shall execute Officium fiduciae Bracton lib. 1. cap. 8. scientiae ingenii For Comites dicuntur à comitando quia comitantur Regem Comites à comitatu sive à societate nomen sumpserant qui etiam dici possunt Consules Reges enim tales sibi associant ad consuetudinem And that was the greatest title of Honour that was from the Conquest until the 11 of E. 3. when the Black Prince was created Duke of Cornwal and those which of ancient time were created Earls were of the bloud royall And even unto this day the King in all his appellations stiles them Per nomen charissimi consangninei nostri for which causes the Law giveth unto them high and great priviledges And therfore their bodies shall not be arrested for debt trespasse c. because the Law intends that they assist the King with their Counsel pro bono publico and kéep the Realm in safety by their prowesse and valour And for the same reason it is that they shall not be put upon Iuries albeit that be for the service of the County
Also if issue be taken whether the Plaintiffe be an Earl or no it shall not be tried by the Countrey but the Kings writ Also the Defendant shall not have a day of grace against a Lord of the Parliament because he is conceived to attend the publique And all these and many other do appear in our Books 48 E. 3. 30. Regist 179. F. N. B. 247. 48. Ass Pl. c. 23. Ass Pl. 24. 32 H. 6. 27. 35 H. 6. 46. So that as when such an Office descends to an infant or to a man de non sanae memoriae they of necessity ought to exercise it by Deputy so likewise an Earl for the necessity of his attendence which the Law intends upon the King and the Common-wealth that Stewardship of a base Court shall be executed by Deputy Also if a Parkership be granted to an Earl without words to make a Deputy yet he may keep it by his servants And if a Duke have licence to hunt in a Park the Law will allow him attendance suitable to his condition c. Marshalsie Seisure Office Scire facias 56 It was found by Office in 9 Jac. that Sir George Reynel had forfeited the Office of Marshal of the Marshalsie Co. l. 9 95. b. 3. in Sir George Reynels Case by divers voluntary escapes and it was resolved that the King might seise that Office without suing out a Scire facias And in that Case it was observed 1 That the King in some cases shall be in possession by seisure without Office as in 21 H. 7. and Stamf. in case of temporalties of a Bishop and of Priors aliens because the certainty of them appears in the Exchequer 2 He shall sometimes be in possession by Office without seisure as of Lands Tenements Offices c. which are local oâ— whereof continual profit may be taken as upon condition attainder wardship c. Vide 2 H. 7. 8. Stamf. 55. Dowries case in Rep. 3. and the Sadlers Rep. 5. And the Office albeit false yet cannot be avoided without traverse for he cannot traverse the Kings title in the information Traverse Advowson c. 20 E. 4. 10. 3 The King shall be in possession by Office and seisure of an Advowson and thereof he is not in possession until presentment admission and institution And if the King upon refusal bring a Quare Impedit the owner may traverse the Kings title in that Action without traverse of the Office because it is not a manual but an incorporal hereditament also the right to present is casual and not continual 4 The King shall be in possession without office where his tenant died without heir 9 H. 7. 2. 5 When distinct matters amount to an office in that case there ought to be a Scire facias before the King can seise 6 When a common person is put to his Action In that Case the King upon office is put to his Scire facias c. â—o tenure reâ—erved Capite 57 When the King grants any land without reservation of any tenure or absque aliquo inde reddendo or the like Co. l. 9. 123. b. 3. in Anthony Lowes Case the Land by operation of Law shall be holden of the King in capite by knights-service according to the rate and proportion of Land holden by knights-service viz. more or lesse according to the quantity of the Land c. 58 When any thing is due to the King Co. l. 9. 132. a. in Holis Case he ought to have the full and compleat effect of the thing so due unto him As if there be Grandfather Father and Son of Lands whereof some are holden of the King in capite by Knight-service in capite and the residue of other Lords c. And the Grandfather conveys all the Lands holden of other Lords and part of the capite Lands to the Father for life the remainder to the Son in tail the remainder to the right heirs of the Grandfather And the residue of the capite Lands to four younger Sons successively for life the remainer to the right Heirs of the Grandfather the Grandfather dies the Father tenders his livery and dies before livery sued or office found the Son being of full age and all this is found by office and the Son continues the livery the four younger Sons being still in life In this Case albeit by the death of the father before livery sued the King hath lost the priviledge of having primer seisin after the death of the Grandfather as it was adjudged in Northcots case and in Hales case in the 8 Rep. c. for here the Son shall not sue livery nor pay primer seisin because they were due by the Father after the death of the Grandfather and the Son living the Father is not within the Statutes of 32 34 H. 8. for the Lands conveyed unto him Neverthelesse in the same Case the King shall have primer seisin for the Lands conveyed to the younger Sons because they are within the thrée Cases in which wardship and primer seisin are given unto the King by the said Acts viz. Advancement of his wife preferment of his children and payment of his debts And the reason hereof is because when the said Acts give unto the King primer seisin it is intended of an actual and effectual primer seisin and not of one which is onely Mathematical and Imaginary for as before is said the King ought alwayes to have a full and compleat effect of the thing which is due unto him So also if the King hath title to present by lapse hâc vice and he present and his Clerk is admitted and instituted but dies before induction In this Case the King shall present again for he had not the full and compleat effect of his presentation as it was resolved by Sir James Dyer rotam Curiam in Gyles his Case 18 Eliz. in Co. Ba. Likewise if the King marry a daughter Marriage again which he hath inward infra annos nubiles and before the age of consent the Baron dies the King shall have the marriage of the Heir again because the first marriage was not compleat as it was resolved in Ambrosia Gores case in the 6 Rep. fol. 22. King donor not barred And the King donor in tail before the Statute of West 2. de donis c. was not barred by the alienation of the Donée post prolem suscitatam without Assets albeit there were collateral warranty Howbeit in all these Cases a common person shall be barred c. Co. l. 10. 113. b 1. in Legats Case 59 When the King grants any thing upon a false insinuation Grant upon false suggestions void or suggestion such a grant of the Kings is void for in that Case there is a diversity betwéen the King a common person For a Subject that may intend his private affairs shall not in such Case avoid his Grant but the King who intends the Publique good shall avoid
Crown that in the Kings Case they shall go with the Crown to the successor and not to executors as in case of common persons as appears in 7 H. 4. 43. and 44 E. 3. 42. Neither yet doth every warrant serve for the issuing of the Kings treasure for it cannot be done by Parol or by the privy Signet but ought to be done under the Great Seal or Privy Seal It was also further resolved in this Case that albeit Sir VValter had thus received the Quéens treasure to his own use yet inasmuch as he received it without lawful warrant he knowing that it was the Quéens treasure the Law makes privity in the Quéens Case and therefore she might charge him as an Accomptant And so it was also adjudged in the Exchequer in Jurdens Case P. 31. Eliz. Rot. 150. Neither yet is it of necessity that the Kings money or goods should come into the hands of the Testator for if he were onely a mean or Instrument whereby the King was put to loss or damage he shall be charged with so much as he hath so endamaged the King and shall be compelled at the Kings Suit reddere rationem thereof which is in nature of an Accompt for which there is a notable president in M. 30. E. 3. Rot. 6. Porters Case which sée in Co. l. 11. 92. b. in the Earl of Devonshires Case And therefore it was also resolved in Sir VValter Mildmayes Case that the Quéen might either charge the executors of Sir VValter or those that made such unlawful warrant at her election And if they were dead their executors c. for in as much as they were in their life-time chargeable by the Law in that Case if they die before judgement against them without question their executors shall be charged because where the Testator is by the Law chargeable to satisfie the King for losse or dammage done unto him his death shall not dispence therewith but that his Executors shall be also chargeable to the King c. F. N. B. 5. l. 65 In a Praecipe in Capite the Tenant shall not plead Protestaâ—â— that the Tenements are not holden of the King albeit the writ supposeth as much but he ought to take it by protestation and to plead other matter in barre if he have any matter to plead â—ender Di. â—ark 66 In a writ of Right F. N. B. 5. m. the Demandant ought to count of his own seisin or the seisin of his Ancestor c. yet the seisin is not traversable but the tenant may tender a Di. mark to enquire of that seisin c. and if it be found with the tenant that the Ancestor was not seised the Demandant shall be barred Howbeit if the King be party Demandant the Tenant shall not tender a Demy Mark to enquire of the seisin but he ought to plead in bar and there the tenant shall not imparâ— without the assent of the Kings servants The King may â—â—cuse appeaâ—â—nce 67 The King by a writ de warrantia diei may command the Iustices to excuse the Defendant of appearing at the day F. N. B. 17. b. whereunto he was adjourned to appear in proper person And whether the Cause alledged in the writ be true or false it is not material when the King certifies that he is in his service for it séems by the words of the writ that the King by his Prerogative may warrant that default for a day And so also it séemes that if the tenant in a Praecipe quod reddat at the great Cape or petit Cape returned make default that before judgment upon that default the King may command such a writ to the Iustices rehearsing that the tenant was in his service c. and commanding them that his default should not turn to his prejudice And it stands with reason that the King may do it because every one is bound to serve the King in his affairs c. â—â—nipresence 〈◊〉 his Courts 68 If false Iudgment be given for the King in any Action or Suit F. N. B. 21. b. 107. q. Finch 81. the party grieved shall have a writ of Error and assign Errours without suing any Scire facias against the King ad audiend errores because the King is alwayes present in Court and that is the cause that the form of Entry in all Suits for the King is Edvardus Herbert Miles Attornatus Domini Regis generalis qui pro domino Rege sequitur venit hic in Curia c. And doth not say Dominus Rex per Edvardum Herbert Attornatum suum c. And therefore it is also that the King cannot be Non-suit that all Acts of Parliaments that concern him are general and the Court must take notice of them without pleading them for he is in all and all have their part in him c. â—ake Attorâ—ys 69 It séems that before the Statutes which ordain F. N. B. 25. c. e. â— 26. a. that a man may make Attorneys c. the Iustices neither would nor could suffer the Plaintiffe or Defendant Demandant or tenant to make Attorneys in any Action or Court whatsoever yet the King by his Prerogative even before those Statutes might grant to a man power to make Attorneys and by his Writs or Letters might command the Iudges to admit and receive them c. and that without any cause shewed in the writ c. â—â—e King canâ—â—t be Jointâ—ant 70 In the Register there is the form of a writ F. N. B. 32. g. wherein a common person is joyned with the King in a Quare Impedit which runs thus Rex vice comiti c. praecipe R. de C. quod justè c. permittat nos P. de T. praesentare c. But Fitz. saith in his N. B. that the common opinion in his time was that the King should have the whole presentment sole and should have a sole Action c. although he séems to hold the contrary himself Ideò quaere â—sent again 71 If the King recover by a Quare Impedit F. N. B. 34. f. and after ratifie the Estate of the Incumbent yet at the next avoidance the King shall present because the Recovery and Iudgement for him were not executed â—â—â—sent by 〈◊〉 72 In a Frée Chappel of the Kings F. N. B. 34. â— where the Dean ought to give the Prebends if he make not collation within six moneths unto them then shall the King present unto them by Laps as Ordinary F. N. B. 34. k. 73 If the Bishop make collation and die before induction Not inducted or instalment and the King seise the temporalties he shall have that presentment because the Church is not full against the King until the Parson or Prebend be inducted or installed F. N. B. 35. a. 74 If the Kings tenant hath title to present to an Advowson Advowson Ward Present which is void
the procheine avoydance is a sufficient title in a Quare Impedit for the Grantor There is the same Law of Lessée for life tenant in Dower by the Courtesie Guardian Tenant by Statute Merchant staple c. And this agrées with divers opinions in 7 E. 4. 20. 22 E. 4. 9. b. 16 H. 7. 18. a. 9 H. 7. 23. Br. Quare Impedit 1 22. 13 El. Dier 300. But sicut beatius est ita majus est dare quam accipere for the termor cannot give seisin of the Rent as in the Case alone put because that would trench to the dis-advantage of the Terre-tenant who is a stranger Howbeit he may take seisin c. for his benefit according to the Rule Res inter alios acta alteri nocere debet sed quandoque prodesse potest In Quare Impedit the Patron must be party 22 John Hall brings a Quare Impedit against the Bishop of Bath and Wells Co. l. 7 25. b. 4. in Mauntons Case and Thomas Maunton Clerk defendant for disturbing him from presenting to the Vicarage of W. And it was resolved that the writ should abate because the Patron was not named in the writ for so the Patronage might be recovered against him that hath nothing in it And it is no reason that he who is Patron should be dis-possessed and outed of his Patronage when he is a stranger and no partie to the writ and especially in this Case when he may be made partie to the writ c. So in 42 E. 3. fol. 7. One brings a Quare Impedit against another the Defendant saith that he claimes nothing in the Patronage but saith that the Bishop presenteth him by laps Judgment si tort c. And there Belknap prayd a writ to the Bishop because he dis-claimed in the Patronage but the Court could not grant it because neither the Patron nor the Bishop who in that Case was in lieu of the Patron were named in the writ And therefore it was adjudged that the writ should abate For if such a writ should be mainteinable every Patron by covin betwéen a stranger and the incumbent might be outed of his advowson And with this agréed 9 H. 6. 30 31. c. 3 H. 4. 2 3. 13 H. 8. 13. Howbeit in a Quare Impedit when the presentation onely is to be recovered and not the Advowson neither yet the Patron to be put out of possession In that Case the writ is adjudged good without naming the Patron c. as it was adjudged in 7 H. 4. 25. 37. Joint-tenant Release Continuance 23 A judgment in debt is given against joint-tenant for life Co. l. 6. 78. b. in the Lord of Aburgavenies Case who releaseth to the other who dies the Reversioner enters the Plaintife sues execution And in this Case it was adjudged that notwithstanding the death thereof lessée and that the Lessor enters and is in of his ancient right yet as to the Plaintife the estate hath continuance And if the Baron seised of Rent Dower Rent Common Common c. in fée releaseth to the Terre-tenant that Rent Common c. is extinct And yet having regard to the Feme they have continuance for she shall be thereof endowed as it is adjudged in 5 E. 2. Dower 143. c. Rent in esse after release 24 Dixwel and his Wife Co. lib. 7. 38. Lillingstones Case and Sillingston and his Wife levie a fine of the Rectory of Litlington in Com. Bedd the Conusées render a rent charge of 30 l. per an to several for life to commence after his wives deceise proviso quod non extendit ad onerandum personas les Conusees c. and then also render the Rectory to Dixwell during his wifes life the Remainder to Lillingston c. acknowledgeth a recognisance to Duncombe of 500 l. in the nature of a Statute staple according to the Statute of 23 H. 8. the Wife Dixwel dies Lillingston enters Dixvvel releaseth to Lillingston Duncombe sues a Cerciorari to the Clerk of the Stat. who certifies the recognisance whereupon the rent was extended and upon a liberate was delivered unto Duncombe who brings an Action of debt against Lillingston who all that while was Tenant of the Rectory and Duncombe averred the life of Dixwell And it was adjudged that as to Duncombe who is a stranger notwithstanding such release the Rent remaines in esse for to some purposes by the Common Law a rent extinct shall be in esse as to a stranger c. as if the Baron be seised of a rent in fée and release to the terre-tenant yet the Feme shall be endowed c. Co. l. 8. 133. a. 2. in Turners Case 25 If an Executor or Administrator compound with one Administrator composition who hath judgement of 100 l. for 60 l. this under-hand composition shall not prejudice another creditor that is a stranger For an Executor and Administrator ought to execute their office lawfully in paying all duties debts and legacies in such precedency as the Law requires truly in converting nothing to their owne use dilligently quia negligentia semper habet infortunem comitem And an Agréement betwéen two shall not annoy a third person Sée Goodals Case Co. lib. 5. 96. supra R. 85. ex 8. Co. lib. 8. 136. a. 1. in Sir John Nedhams case 26 If the obligée make the obligor his Executor Bishop Obligor Administrator this is in Law a release of the debt because it is the Act of the obligée himselfe and with this accords 8 E. 4. 3. 21 E. 4. 2. b. c. But if the Archbishop Grant letters of Administration to the obligor this shall not extinguish the debt but it shall still remaine for the Act of the Archbishop and the obligor shall not wrong the dead who is in that Case as a third person Co. l. 8 138. a in Sir Francis Barringtons Case 27 It appeares by the preamble of the Statute of 22 E. 4. cap. 7. Statute of 22. E. 4. 7. which gives Licence of enclosing several woods in forests c. seven yeares after they are felled for the better preserving of them from cattle betwéen what persons and for or against whom that Act was made And the parties to that great contract by Act of Parliament are the subjects having woods c. within forests chases and perliens on the one part and the King and other owners of forests chases and perliens on the other part so that the Commoners are not any of the parties betwéen whom that Act was made And therefore being strangers unto it ought to receive no prejudice by it So likewise the Act of 2 H. 5. being made betwéen the King and the Priors aliens whereby the Priories aliens were given to the King shall not extinguish the annuity of the Prior of Castle-acre which he had out of a Rectory parcel of a Priory alien Albeit there was not any saving in
the Act And M. 25 26 Eliz. in Boswells Case in Curiam Wardorum it was resolved that when an Act makes any conveyance good against the King or any other person or persons in certaine this shall not take away the right of any other albeit there be no saving in the act to preserve his right c. Co. l. 8. 145. b. 2. in Davenports Case 28 The Earle of Huntington being possest for 15 yeares of a Rectory unto which a Vicarage was appendant Procheine Avoidance infra 〈◊〉 grants the prochiene avoydance thereof and dies his Administrator surrenders the Vicarage becomes void within the terme And in this Case it was resolved that the term notwithstanding extinct by the surrender yet as to the grantée who was a person had continuance c. Co. l. 9. 135. b. 2. in Astoughs Case 29 It is regularly true Coperceners Disseisor that a Seigniory cannot be suspended in part and in esse for part as it is holden in 32 H. 8. Extinguishment Br. 48. neverthelesse habet haec regula plures fallentias as if there be two Coperceners of a Seigniory and one of them dissieseth the Terre-tenant or comes to the Land by defensible title the other may distraine her for her moity of the Signiory for the practise of her Copercener against the Terre-tenant cannot prejudice her in that Case Co. l. 9. 141. a. 2. in Beaumonts Case 30 If a disseisor make a gift in taile Tenant in 〈◊〉 Fine no baâ— the Donée makes a feofment to A. and after levies a fine with proclamations to B. who had nothing c. This fine with proclamations shall barre the issues in taile because the issues in taile being privy shall not plead quòd partes finis nihil habuerant But it shall not barre by the disseisée because the fine as to him was void So that in this Case as to the heires in taile the fine shall bind but not as to the disseisée who is a stranger So likewise in Beaumonts Case in the 9 Rep. fol. 141. the fine levied by the Baron as to the Issues in taile was a barre but not as to the Feme who was a stranger unto it And therefore if there be Baron and Feme tenants in special taile the Reversion to the Donor they have issue the Baron levies a fine with proclamations to a stranger and dies the Feme enters In this Case the Feme hath devested the whole Estate out of the Conusee and revested the Estate taile in herselfe the immediate reversion to the Donor and hath left nothing but a possibility in the Conusée for the practise between the Baron and the Conusée shall not barre the Feme of her right who is a third person Term not extinct by purchase of the fee. 31 A. possest of an house in London for 31 years deviseth Co. l. 10. 52. a. 3. in Lampets Case that Isabel his wife shall enjoy the profits thereof durante Viduitate and that then the residue of the term should remain to B. and dies Isabel by licence of the executor enters into the house and purchaseth the fée and then marries C. whereupon B. enters And it was resolved that he might so do for albeit the whole term was in Isabel quousque c. so that by the purchase of the Fée-simple the interest of Isabel was extinct yet that shall not defeat the executory Interest of B. but that after the marriage of Isabel and not before he may well enter c. Hammington and Rudyars Case Tr. 28. Eliz. rot 1674. cite per Co. Ch. Just ubi in margine In an Act of Parl. the subject concerned 32 Whereas the Act of 32 H. 8. cap. 46. ordains Co. l. 11. 3. b. 4. in Auditor Curles Case that the King shall appoint two to be Auditors of the Court of Wards who shall be accounted as one Officer In this Case the King cannot appoint onely one to execute that Office for that would be a wrong to the subject who by force of that Act are concerned in the appointment of that Officer according to the same Act c. In a popular Action the interest of the Informer not barred 33 After a popular Action commenced Co. l. 11. 65. b. 4. in Doctor Fosters Case albeit the Kings Attorney will enter Ulterius non vult prosequi or if the Defendant plead a special plea wherein the Attorney-General useth to reply alone albeit the Attorney will not reply or prosecute for the King yet the Informer may prosecute for his part because the Informer by commencing that Sult hath made that Action which was popular to become his private Action which neither the King nor any other can release as to the Interest of the Informer Tr. 31 Eliz. Stretton and Taylers Case cite ubi in margine A Praecipe in Câ—â—ite of lands â—ot holden â—tayed 34 If the tenant will sue a Praecipe in Capite in the Kings Court for such Lands as are holden of another Lord the Law will not suffer it F.N.B. 3. d. but that Lord shall in that Case have a writ out of the Chancery directed to the Iustices of the Common Pleas commanding them that if it do not appear unto them that the Lands are holden of the King but of another Lord that then they shall not procéed farther c. in that Plea c. â—ssise de Darâ—in presentâ—ent 35 If tenant for term of years life in Dower or by the Courtesie F. N.B 31. g. suffer an usurpation to the Church c. and the term determines or the tenant dies he in the reversion who is heir to the Ancestor that last presented shall have an Assise de darrein presentment if he be disturbed It is otherwise if his own tenant to whom he himself was Lessor suffer an Vsurpation for then he shall not have such an Assise c. because as it séems it will be then imputed to the Lessors folly that he would not restrain the tenent from so doing by the Covenant c. â—arrein preâ—ntment 36 In Darrein presentment betwéen two strangers F.N.B. 39. c. the Assise finds title for another stranger that was not party to the writ In this Case that third party shall have a writ to the Bishop awarded him albeit he was not party for the writ is Quis advocatus ultimò praesentavit c. F. N. B. 61. b. 37 In a real Action if the tenant make feoffment Estrepement vers tenant feoffee hanging the Plea and the Demandant is in doubt that waste will be committed c. the Demandant may have a writ of Estrepement both against the tenant and also against his feoffée c. And it séems by the same reason that he may likewise have a writ of Estrepement against the tenant and also against those that are his servants naming them by their names c. Albeit they have nothing in the
Quare vi armis and since that by sundry Statutes in divers other Actions viz. in Accompt debt detinue annuity Covenant Action upon the Statute of 5 R. 2. Action upon the Case c. Co. ibid. 201. b. 2 4 Villenage is such an exception in any plea brought by the Villein against the Lord that it shall make the writ abate Dis-ability persons so that he shall not have a resummons or Re-attachment as in Case of the Excommunication c. Co. ibid. 158. a. 1. 5 If a man be out-lawed in Trespass debt No Juror or any other Action he is thereby disabled to serve of a Iury for that is a principal Challenge to the Poll viz. propter delictum because he is Exlex and therefore is not legalis homo Co. ibid. 132. b. 4. 6 A man exiled or banished beyond Sea viz. by authority of Parliament Exiled Abjured Dead The Feme may sue or in Case of abjuration upon an Ordinary procéeding of Law is in the nature of a dead man in Law And therefore in such Case his Wife may sue or be sued without him as in Case when a man enters in Religion and is profest a Monk c. Thus it was in the Case of the Wife of Sir Robert Belknap 2 H. 4. 7. a. one of the Iustices of the Court of Common Pleas for during his banishment being yet alive she brought a writ in her owne name whereupon one said Ecce modò mirum quòd foemina fert breve Regis Non nominando virum conjunctim robore Legis So likewise E. 3. 10 E. 3. 53. 1 H. 4. 1. b. Pl. in Parl. 19 E. 1. brought a Quare Impedit against the Lady Maltravers and after that H. 4. brought a writ of Ward against Sibill B. during the exile of her Husband The like was also adjudged at the Parliament holden in Crastinum Epiphanum Ann. 19 E. 1. in the Case of Margery de Mose Wife of Th. of Weyland being the yeare before abjured the Realme for felony c. Howbeit if the Husband by Act of Parliament have judgement to be exiled but for a time which some call a Relegation that is no civil death but abjuration in 8 E. 2. Coron 425. is called a divorce betwéen the Husband and the Wife And therefore in that Case the Wife may sue and be sued c. Co. ib. 2. a. 4. Co. l. 7. 17. a. 2. in Calvins Case 25. a. 4. Calv. Case 7 If an Alien Christian or Infidel purchases houses lands Aliens purchase is the Kings tenements or hereditaments to him and his heires albeit he can have no heires yet he is of capacity to take a fée-simple but not to hold for upon an Office found the King shall have them by his prerogative of whomsoever the land is holden and in that Case the Lord shall lose his Seigniory So it is also if he purchase land and die for in that likewise the Law casteth the fréehold and inheritance upon the King If an Alien purchase any Estate of frée-hold in lands c. upon Office found the King shall have them If an Alien be made denizen and purchase lands and die without issue the Lord of the fée shall have the escheate and not the King If an Alien purchase a lease for yeares upon Office found the King shall have it unlesse it be of an house for habitation to the end he may use Merchandize and Commerce Howbeit such an house also if he return home and leave or die the King shall have it and not his Executors c. â—ne born out 〈◊〉 the Kings â—geance 8 A man seised of land in fée hath issue an Alien Co. ib. 8. a. 1. that is borne out of the Kings Ligeance he cannot be heire propter defectum subjectionis albeit he is borne within lawfull marriage And if he be made Denizen by the Kings letters patents yet cannot he inherit to his father or any other But it is otherwise if he be naturalized by Act of Parliament for he is not then accounted in law Alienigena but Indigena â—ue not inâ—â—ritable 9 When an Alien is made Denizen the issue Co. ib. Co. l. 7. 7. a. 4. in Calvins Casâ— 36 H. 8. dâ—nizen Br. 9 that he hath afterwards shall be heire to him but no issue that he had before So likewise if an Alien commeth into England and hath issue two Sonnes these two Sonnes are Indigenae subjects borne because they are borne within the Realme and yet if one of them purchase lands in Fée and dieth without issue his Brother shall not be his heire for there was never any Inheritable bloud betwéen the Father and them and where the Sonnes by no possibility can be heires to the Father the one of them shall not be heire to another Co. ibid. 129. a. 3. It is otherwise of naturalization by Act of Parliament for if the Father he naturalized by Parliament the Issue had before c. shall Inherit So if an Issue of an English-man be borne beyond Sea and the Issue be naturalized by Parliament he shall Inherit his Fathers Land but so he shall not although made Denizen because no Alien naturalized by Act of Parliament is to all intents and purposes as a naturall borne subject but so is not a Denizen Dower â—enant by Courtesie 10 If a man be seised af an Estate of frée-hold and inheritance in lands c. and take an Alien to Wife and dieth Co. ib. 31. b. 4. Co. l. 7. 25. a. 4. Calv. Case she shall not be endowed neither shall the Baron be Tenant by the courtesie Howbeit it is otherwise in the Kings Case c. And Edmond the Brother of E. 1. married the Quéen of Navarre and died And it was resolved by all the Iudges that she should be endowed of the third part of all the lands whereof her husband was seised fée â—is-ability of â—ing 11 It is a good plea in dis-ability of the person Litt. §. 189. Co. ib. 129. b. 1. Co. l. 7. 16. a. 4. in Calv. Case Co. ib. 17. a. 3. Calv. Case that the Demandant or Plaintiffe is an Alien vee and this exception holds good in all Actions both reall and personal against an Alien enemy but not absolutely against other Aliens for the Law doth distinguish betwéen an Alien that is a subject to one who is an enemy to the King and one that is subject to one who is in league with the King And true it is that an Alien Enemy shall maintaine neither Reall nor Personal Action Donec terrae fuerint communes viz. till both Nations be in peace But an Alien that is in league shall maintain personal Actions For such an Alien may trade and traficke buy and sell And then of necessity he must be of ability to have personal Actions but he cannot maintaine either reall or mixt actions So also an
value soever shall in judgement of Law be déemed excessive And albeit the Lord distraine for them oftentimes so that the Tenant cannot manure his land yet the Tenant shall not therefore have an Assise de sovent distresse as he shall have for Rent and other profits Vide 28 Ass Pl. 50. 11 H. 4. 2. 42 E. 3. 26. Br. distresse 80. Title of King and Subject 7 When the Kings title Co. l. 4. 55 a. 4. The Sadlers Case and the title of a subject concurre in commencement the Kings title shall be preferred as Weston holds Pl. Co. 263. b. The Kings title by Judicial Record and conveyance of Record 8 In all Cases at the Common Law Co. l. 4. 59. b. 3. in the Sadlers Case when the Kings Title accrued unto him by a Iudicial Record as Gascoigne saith 9 H. 4. 4. by judgement of Record there albeit the King had granted all his Estate over yet the party grieved who is put unto his petition and was to have a scire facias against the Patentée as in Case of Attainder Recovery c. 44 E. 3. 22. 10 H. 6. 15. 21 H. 7. 2. 3 M. 139. 7 H. 4. 21. But where the King was onely entitled by conveyance of Record as if the disseisor had conveyed the land to the King by fine déed enrolled or other matter of Record there albeit the party was put to his petition against the King yet if the King had granted the land over the disseisée or he that right had might enter or have his Action against the Patentée for a Iudicial Record is always preferred before a conveyance of Record by assent c. The Common law preferred before the Staâ—â—â—e Law 9 A. By déed indented barganies and sels a reversion of land to B. and his hieres and before attornement of the Tenant Co. l. 4. 71. a. 1 in Hyndes case or enrollment of the déed according to the Statute of 27 H. 8. cap. 16. levies a fine thereof to B. and his heires and after the déed is inrolled within 6 moneths In this Case the Conusee shall be in by the fine and not by the Indenture enrolled For when the Fée-simple passes by the fine to the Conusée and his heires the enrolment of the déed indented afterwards cannot devest and turne the Estate out of the Conusée which was absolutely established in him by the fine because then whereas he was in before in le per he shall be now in le post Also when the Common Law and Statute Law concurre the Common Law shall be preferred c. 10 When land is given to any expresse superstitious use Co. l. 4. 111. b. a Adams and Lamberts case prohibited by the Statute of 1 E. 6. 〈◊〉 good use â—referred beâ—re an imâ—â—â—ed â—uperstitious â—â—e incertain cap. 14. without limitation of any certainty for the finding of it there all is given to the King by the said Act but when a good use is limited and besides a solarie in certain for a Priest and towards the finding of him other things as Books Bread Wine Vestiments c are tacitè implyed and requisite which are uncertain there the King shall not have all by reason of the implyed incertainty because a good use expressed shall be preferred before any thing implied and incident to a superstitious use c. Co l. 5. 28. b. in Harrisons Case 11 In debt against an Administrator who pleads Judgement paiable before other debt obligation before a Statute to perform covenants that the Intestate was bound in a Statute staple Oustre que il mad biens c. the Plaintife replies that there were Indentures of defeasance for the performance of covenants which are performed huc usque the Defendant demurres And in this Case judgement was given for the Plaintiffe for an Obligation shall be paid before a Statute to performe covenants which per-adventure will never be broken but are things in contingency and futuro and shall never barre any present debt upon an Obligation or other specially And it was adjudged in B. R. Per totam Curiam H. 42. Co. l. 6. 45. b. 2. in Higgons Case El. that a debt recovered in the Kings Court by judgment shall be paid before a bond in nature of a Statute staple or Marchant because the judgement is a matter of a higher and more worthy nature then private Records portable in pockets also it shall be preferred before a recognisance acknowledged in any Court by assent which may also be privately done And a judgement so given in the Kings Court upon ordinary and judicial procéeding which remaine in the custody of a sworne officer are Records which are preferred in Law before such Statutes Et non refert whether the judgement or recognisance or Statute be first for be the judgement first or last it shall be first satisfied c. And so it was holden per totam Curiam in Co. Ba. in Pemberton and Bartams Case Pl. 32 El. Rot. 235 Which see in the end of the Sadlers Case in the 4. Rep. Dier 80. 53. Co. l. 5. 86. b. 3. Blumfeilds Case 12 There are good diversities betwixt an execution not valuable as of the body of the Defendant and an execution valuable as of lands c. An Execution valuable or without satisfaction As if two men are bound jointly and severally in an obligation and the one is sued condemned and taken in execution and after the other is also sued condemned and taken in execution and then the first escapes and the other brings his Audita querela In that case he shall be barred to bring that writ until the Plaintife be satisfied So likewise if the Defendant in debt die in execution yet the Plaintiffe may have a new execution by elegit or fieri facias but if the Plaintiffe have once execution of the lands of the defendant and after the lands are evicted there before the Statute of 32 H. 8. cap. 5. he shall not have any new execution for the execution of the lands was valuable and accompted in Law for a satisfaction and to avoid infinitenesse he shall have but one valuable satisfaction or one execution with satisfaction at the Common Law c. So likewise if a Villein be delivered to one in execution upon recovery in value and after the Villein dies without Issue yet the Defendant shâ—ll never have any new execution because his first execution was valuable and by the Law a man shall have but one execution valuable c. F. N. B. 33. m. 34. v. 13 If two Sisters have an Advowson which happens to be void Copercenâ—â— shall presâ—â— by turnes the eldest Sister shall have the first presentment and so the Baron of the eldest Sister if he be Tenant by the courtesie of the Advowson shall have the first presentment and the Tenant in Dower shall have but the third c. And if there be more Sisters
and after I confirm the Estate of the Baron and Feme to have and to hold for their two lives In this Case the Baron holds not joyntly with the Feme but onely in her right during her life and shall have it for life if he survive her But if I let to a Feme sole Land for term of years who takes Baron and I confirm the Estate of the Baron and Feme to have and to hold for their lives In this Case they have a joynt Estate in the Frank-tenement of the land because the Feme had not Frank-tenement before but onely a Chattel whereof the Baron hath such a possession in her right as was capable of a confirmation or a release and the confirmation in this Case to the husband and wife for their lives maketh them Ioynt-tenants for life because this Chattel of the Feme covert may be drowned So note a diversity betwéen a Lease for life and a lease for years made to a Feme covert for her Estate of Fréehold cannot be altered by the confirmation made to her husband and her as the term for years may whereof her husband may make disposition at his pleasure Co. ib. 275. b. 4. 11 If Lessée for years be ousted and he in the Reversion disseised Release to the Disseisor and the Lessée release to the Disseisor the Disseisée may enter for the term for years is extinct and determined But otherwise it is in case of a Lessée for life for in that Case the Disseisor hath a Fréehold whereupon the release of tenant for life may inure but the Disseisor hath no term for years whereupon the release of the Lessée for years may inure Co. ib. 378. â— 4 12 A man letteth lands for life upon Condition to have Fée A Lease for years not capable of a warranty and warranteth the land in forma praedicta afterwards the Lessée performeth the Condition whereby the Lessée hath Fée In this Case the warranty shall extend and increase according to the State for a warranty being a Covenant real executory may extend to an Estate in futuro having an Estate whereupon it may work in the beginning but if a man grant a Seigniory for years upon condition to have fée with a warranty in forma praedicta and after the Condition is performed this shall not extend to the fée because the first Estate was but for years which was not capable of a warranty And so it is if a man make a lease for years the remainder in Fée and warrant the land in forma praedicta he in the remainder cannot take benefit of the warrantie because he is not party to the Déed and immediately he cannot take if he were party to the Déed because he is named after the habendum and the Estate for years is not capable of a warranty c. Waste 13 A Lease for life the remainder for years Finch 29. the remainder over in Fée an action of waste lieth for him in the remainder in Fée against the Lessée for life sor the mean Estate for yeares is not regarded Otherwise it were if the mean Estate for years were an Estate for life c. Joynt-tenants may prejudice one another 14 One Ioynt-tenant cannot prejudice his Companion Co. l. 2. 68. a. 3. in Tookers ca. as to any matter that concerns the Inheritance or Frank-tenement But as to the profits of the Frank-tenement they may prejudice one another c. per Popham Right of Action 15 There is a diversity betwéen Inheritance and Chattels Co. l 3. 3. a. 1 in the Marquesse of Winchesters Case for the right of action concerning Inheritances is not forfeited by Attainder c. but Obligations Statutes Recognisances c. and such other things in action are forfeited by Attainder or Outlawry Real and personal actions 16 The Law hath provided greater safety and remedy for matters of Frank-tenement and Inheritance then for Debts and Chattels Co. l. 6. 7. a. 1 in Ferrers Case for there once barred and ever barred for in personal actions as in Debt Accompt c. the bar is perpetual because the Plaintiff in that Case cannot have an Action of an higher nature but his onely remedy in such Case is by Errour or Attaint Howbeit if the Demandant be barred in a real Action by judgement upon Verdict Demurrer Confession c. yet he may have an Action of higher nature and try the same right again because it concernes the Frank-tenement and Inheritance as if one be barred in an Assise de novel disseisin yet he may have upon shewing a descent or other special matter an Assise of Mortdancestor Aiel Besaiel Entry sur disseisin to his Ancestor c. So if a man be barred in a Formedon in descender he may have a Formedon in reverter or remainder for that is an Action of an higher nature because in it the Fée-simple is to be recovered according to the opinion in Robinsons Case in the 5. Report fol. 33. â—ands not â—hargeable in â—â—cution 17 At the Common Law before the Statute of VVest 2. cap. 18. Co. l. 3. 11. b. 4 in Sir Wil. Herberts case which gave an Elegit against the moity of the Debtors Lands upon a Recognisance or Iudgment sued lands were not chargeable in execution but onely Goods and Chattels or else grain or other present profit increasing upon the land viz. Goods and Chattels by Fieri facias and such present profit by Levari facias c. Vide suprà Ru. 92. ex 16. Howbeit in the Kings Case by reason of his Prerogative and in Case of an Heir in by Descent and chargeable by the act of his Ancestor c. because otherwise in such Case the Creditor was without remedy c. lands were chargeable in execution c. 〈◊〉 by a terâ—â—r not good 18 A man deviseth a rent for life out of a Mannor Co l. 6. 58 b. 4 in Bredimans Case and deviseth the Mannor for years the termor enters and payes the rent after the term the Devisée brings an Assise for the rent against the Terre-tenant And in this Case seisin by the hands of the Termor was adjudged no sufficient seisin whereupon to ground the Assise but the seisin ought to have béen given by the hands of the Terre-tenant viz. of one the tenant of the Frank-tenement c. Vide suprà Ru. 86. ex 21. It had béen otherwise if the termor for years had béen Lessée for life for then the seisin had béen given by the hands of the Terre-tenant viz. of one that had Frank-tenement as may be collected out of Bredimans Case ubi in margine viz. fol. 58. b. â—â—rantee of a â—â—version â—â—dition 19 If a man make a Lease for years upon condition Co. l. 8. 95. b. 3 in Matt. Mannings Case Co. l. 10. 48. b. 3 in Lampets ca. that if the Lessée doth not such an act that the Lease
Inheritance coupled with such an authority may surrender by Attorney Also there is a diversity betwéen a general absolute power and authority as Owner of the Land as aforesaid and a particular power or authority by him that hath but a particular interest to make Leases for lives or years And thereforr if A be tenant for life the remainder in tail c. And A. hath power to make Leases for 21 years rendring the ancient rent c. he cannot make a lease by a letter of Attorney by force of his power because he hath but a particular power which is personal to himself alone as it was resolved in the Lady Greshams Case 24 Eliz. per Wray and Anderson then Iustices of Assise in Suffolk â—wer to make â—ases not in â—eir own â—me 14 When any hath authority as Attourney to do an Act Co. ib. 79. b 4. he ought to do it in the name of him that gives him such authority for he appoints the Attorney to be in his place and to represent his person and therefore the Attorney cannot do it in his own name nor as his proper act but in the name and as the act of him but gives him the Authority And what he doth otherwise is void So if Attorneys have power by writing to make leases by Indenture for years c. they cannot make the Indentures in their own name but in the name of him that gave them warrant c. 〈◊〉 Office of â—arshalsie 15 The office of Marshal of the Marshalsie cannot be granted for years because it is an Office of great trust annexed to the person Co. l. 9. 96. b 4. in Sir George Reynols Case and concerns the administration of Iustice and the life of the Law which is to kéep such as are in Execution in salva arcta custodia to the end they might the sooner pay their debts c. And this trust is individual and personal so that it shall not be extended to Executors or Administrators for the Law will not repose confidence in matters concerning the administration of Iustice in persons unknown 〈◊〉 an Office â— survivor 16 If an Office of trust be granted to two pro termino vitae suarum without more by the death of one of them he grant shall be void Co. l. 11. 3. b. 4. in Auditors Curles Case for it being an Office of trust no survivor can be thereof In like manner there can be no survivor in the Office of the two Auditors of the Court of Wards for the Statute of 32 H. which erects that Court provides that there shall be two persons c. who shall have a Iudicial voice and therefore in that case the King cannot appoint onely one because it is a matter of trust committed to two and the subject by that Act hath an Interest in it securiùs expediuntur negotia commissa pluribus Howbeit the King may constitute one at one time another at another time by several Patents And albeit he may so do yet he that is first constituted hath no judicial voice before the other be also constituted for it is provided by the Statute that two persons c. shall be one Officer And therefore in the same case although they be constituted by one and the same Patent with these words conjunctim divisim alterius eorum diutius viventis yet that shall serve for no other purpose then that the survivor shall be one of the persons to whom another may be added to make up that one Office c. â—tate 17 A licence to hunt in my Park or Walk in my Orchard extends but to himself not to his servants or other in his company for 13 H. 7. 13. Finch 31. it is but a thing of pleasure otherwise it is of a licence to hunt kill and carry away the Déer for that is a matter of profit â—y 18 Way granted to Church over any land 12 H. 7. 25. b. Finch ibid. extends not to any other but himself for it is but an Easement â—rnment 19 A Reversion granted to two Ioynt-tenants 11 H. 7. 12. b. Finch ibid. and the tenant attorns to one it is a void Attornment 20 If the Sheriff behead one that should be hanged it is felony 5 H. 6. 58. b. 4. Finch ibid. 4 E. 6. 68. b. Finch ibid. 21 The King licenceth one to alien the third part of his Land Licence and he alieneth all it is a void alienation for all Finch ibid. 22 A Lease is made to A. and B. for their lives A. dyeth Joyntenants limitation B. shall have all during his life for it is an Interest But if a Lease be made to I.S. during the life of A. and B. there if one of them die the Estate is utterly determined for that is a limitation Co. l 1. 173. b. 4. Digges Case 23 A. covenants to stand seised to the use of himself for life Revocation and Limitations strictly taken the Remainder to B. in tail c. which power to revoke and limit new Vses by Déed indented to be inrolled in Chancery A. afterwards revokes and limits by Déed indented and then levies a Fine and after that the Indenture of Revocation c. is inrolled in Chancery Here by levying the Fine before inrolment he hath extinguished his power of Revocation c. So also it had béen if he had made Feoffment of the Land for power of Revocation and limitation of Vses are to be punctually observed because strictly taken in Law And therefore also in the same case these words Indented to be inrolled are to be understood Indented and Inrolled Co. ib. 174. b. 2. 24 A. covenants with B. that in consideration B. will marry his Daughter Limitations exitnct he and his heirs will stand seised to the use of B. and his heires B. enters and disseiseth A and makes Feoffment in Fée A. re-enters and after B. marries his Daughter yet here the Vse doth not vest in B because he hath extinguished the limitation of the Vse to him by his Feoffment Dier 56. 18. 35 H. 8. 25 If a man be bound in an Obligation with condition to pay 10 l. to the Obligor at a day to come Obligationâ— Limitation payment and the Obligee delivers him an Horse or any other thing in satisfaction of the 10 l. and the Obligee accepts it the condition is performed for the Obligée may dispence with his own duty by that means but if the condition be that a stranger to the condition shall pay it or that the Obligor shall pay it to a stranger to the Obligation in such cases the Conditions ought to be strictly performed according to their several limitations otherwise the Obligations are forfeit for in such case an horse or other thing in satisfaction of the summe will not suffice because such limitations must be strictly observed Dier 56 20 c.
induction to the barre or conveyance thereunto it is not necessary that such conveyance or induction should be so certainly pleaded as the effect it self ought to be So in Dive and Maninghams Case in the Commentaries it is sufficient to begin at the Liberate and not to recite the whole Record of that suit because that is sufficient to lead to the matter of the Sheriffes bond which the Statute makes void and is upon the matter but méerly circumstance So likewise if tenant by Elegit make an avowry in a Replegiare having let the land to a stranger rendring Rent c. he shall not plead the whole Record 34 H. 6. 48. avowry 26. â— Monst de faits 10. 19 H. 6. 29. Deâ—ceit 11. B. Bell 9. whereby he became tenant by Elegit as it was adjudged in 34 H. 6. 48. because that is but a circumstantial conveyance to the matter of the suit c. Also in 19 H. 6. 29. A bill of Desceit was sued against two attorneys of the Co. Pleas for imbezelling c. a Writ of Habeas corpora in placito terrae upon a Formedon betwixt the Plaintiff and another and judgment was demanded of the bill because the whole Record was not received in certain but the bill was awarded good notwithstanding it did not recite it certainly because the Record was but circumstance and a conveyance to the suit of Desceit c. Pl. Co. 81. b. 2 Patridges Case 35 In Debt upon the Statute of 32 H. 8. cap. 9. for granting a lease for yeares in Lands whereof the Lessor had a defective title Stat. 32 H. 8. against defective titles the Plaintiff counts that the Defendant had demised the lands for term of yeares indefinitely without naming in certaine for how many years and exception was taken thereunto because the number of yeares was not expressed in certaine c. But in that case it was not conceived necessary to specifie the expresse number of yeares because the term was but conveyance to the summe in demand and then that which is nothing else but conveyance ought not to be so certainly shewed as that which is substance And therefore in a Decies tantum all the Record shall not be shewed in certaine but onely such part thereof which conveys the party to his action but if a Writ judicial issue out of a Record in that case the Record ought to be certainly recited because the Record is the effect and substance and not conveyance onely as in the other case c. For there the shewing of the beginning and end of the terme is to no other purpose Pl. ib. 85. b. 2. then for the shewing of the length and shortnesse of the time and that is not there material because in such case if the Lease were made onely for an hour or for an hundred yeares it is all one as if Lessée for life is charged that he shall not alien in fée c. If he alien onely in tail that is a forfeiture So in that case alien he for a short time or for a long time it is all one Howbeit if he were to recover according to the value of the Lease then the beginning and end thereof ought to be shewed in certain And therefore in such case even in a Decies tantum the certainty of the money ought to be shewed for he shall recover ten times the value or quantity thereof and then to expresse the value thereof in certain is of substance c. â—dictment for â—â—rder found â—anslaughter â—ooâ— 36 If a man be indicted for Murder Pl. Co. 101 b. 1. Salisburies Case and the Iury finds him guilty of Man-slaughter onely yet the Iudge may give judgment upon him viz. that he shall be hanged for the Man-slaughter for the jury may give their verdict at large and find the whole matter as if one be arraigned for the death of a man and pleads not guilty the Iury may find that he did kill him in his own defence So in the other case when the prisoner is arraigned for killing a man upon malice praepense the substance of the matter is whether he killed him or no and the malice praepense is but of the form or circumstance of killing him And albeit the malice praepense makes the act more odious and for that cause the offender shall lose divers advantages which otherwise he should have as Sanctuary Clergy and the like yet that is indéed nothing else but the manner of the fact and not the substance thereof for the substance of the fact is the killing of the man and then when the substance of the fact and the manner of the fact are put in issue together if the Iurors find the substance and not the manner yet judgment shall be given for the substance As if a man arraigne an Assise for Disseisin with force and the Defendant pleads to the general issue and the Iurors find the Disseisin but not with force yet the Plaintiff shall have his judgment for the wrongful expulsion was the substance and the force was the manner and then when the substance is found he shall have judgment thereupon and shall be acquit of the force c. â—he King is â—solutely â—g before â—oronation 〈◊〉 37 The King of England immediately after the Predecessors demise of the Crown is absolutely King without the Ceremony of Coronation or any other act to be done ex post facto for Co. l. 7. 10. b. 4. in Calvins Case the Law doth respect his title to the Crown by birth right and descent and not the circumstance of Coronation which is indéed a Royal ornament and solemnization of the Royal descent but no part of the title Howbeit in 1 Jac. before his Coronation Watson and Clerk seminary Priests and others were of opinion that the King was no compleat and absolute King before his Coronation but that Coronation did adde a confirmation and perfection to the descent And therefore observe their damnable and damned consequent that they by strength and power might before his Coronation take him and his Royal issue into their possession kéep him prisoner remove his Counsellors and constitute others in their places and that these acts and others of like nature could be no treason before he were crowned but it was resolved by all the Iudges of England that presently by the descent his Majesty was compleatly and absolutely King without any essential Ceremony or act to be done ex post facto and that Coronation was but a Royal ornament and outward solemnization of the descent as is aforesaid and as it appeares evidently by infinite precedents and Book cases which see in the Book at large c. Co. l. 8. 133 a. 4 in Tawners Case 38 In an action of Debt brought against an Executor Pleading he pleads two recoveries against him in a Court of a Corporation being a Court of Record which amount to the whole in hand but sheweth not in
of Malbridge c. 9. one is to do the service and the rest are to contribute the same Law being also of their vendées by equity there if any part come to the Lord either by Act of the party or of Law yet the whole service is gone for there contribution failes and the Law will rather suffer things against the principles of the Lord then a man shall be without remedy according to Rule 144. â—verance of Mannor 46 If there be grant and render by fine of the demesnes of a Mannor here albeit this be done in an instant Co. l. 6. 64. a. in Sir Moyle Finches Case so as there was no transmutation of any possession yet the demesnes being once by Act of the party absolutely severed in the fée-simple from the services of the Mannor the Mannor is destroyed for ever So likewise if a man hath a Mannor and he grants part of the demesnes and part of the services to another he shall not have a Mannor for a man by his owne Act cannot create a Mannor at this day But if there be two Coperceners of a Mannor and upon partition the demesnes are allotted to one and the services to another here albeit in this Case there is an absolute severance yet if one of them die without issue and the demesnes descend to her that hath the services the Mannor is again revived because upon the partition they were in by Act in Law and the demesnes and services were again revicted by the Act in Law So also if upon the partition an advowson appendant be allotted to one and the Mannor unto which it is appendant be allotted to the other and after one of them dies without issue whereby the Law unites them again in this Case the advowson which was once severed shall be again appendant to the Mannor Also if two Coperceners have a Mannor and upon the partition each hath parcel of the demesnes and parcel of the services here because each of them is in by Act of Law each of them hath a Mannor In Office not â—â—â—isable for â— yeares 47 The Office of Marshal of the Kings Bench cannot be granted for terme of yeares Co. l. 9. 97. a. in Sir Geo. Requols Case because being then a Chattel and an Office of trust by the death of the Lessée it may happen to fall into the hands of such persons as are not fit to be trusted with that place but yet by Act of Law a term which is but a Chattel may be in such an Office as appeares in 5 E. 4. 3. for the Duke of Norfolke had an Estate-taile in an Office holden of the King in Capite and dies his heire within age and it was found by Office In this Case the King had a Chattel in that Office viz. during the minority and in that Case if the King die it shall discend to the next King and shall not go to his Executors or Administrators for an Act in Law shall not introduce any inconvenience And the King having such an Office during the minority it séemes he cannot grant it for life or yeares or during the minority because that may prove inconvenient for the reasons above alleadged but at will he may grant it for that is no certaine Estate A Seigniory c. suspended 48 By the Act of the party whether right or wrong all a Seigniory c. may be suspended Co. lib. 9. 135. a. 3. in Ascoughs Case And therefore if the Lord or Lessor disseise or out the Tenant or Lessée of any part all is suspended also if a Commoner take a Lease of any part of the land in which c. all the Common is suspended But by Act of Law a Seigniory may be suspended in part and in esse for the other part So if a Lord seise the Wardship of the Land of his Tenant by Knight-service now is the Seigniory suspended but if the guardian endow the Feme of the Tenant of a third part of the Tenancy now is the third part of the Seigniory revived and the Tenant in dower shall be attendant upon the guardian for the third part of the services because Tenant in dower is in by Act of Law and for the same reason if a man seised of lands in fée takes Feme and enfeoffes another the feoffée grants a rent-charge to the Baron and Feme and to the heirs of the Baron the Baron dies the Feme is endowed of a third part of the land out of which the rent issuing in this Case the third part of the rent which the Feme hath for life is extinct and two parts of the rent remaines to her issuing out of the other two parts of the land for although it be a rent-charge which regularly cannot be apportioned yet by Act in Law it shall be apportioned so likewise if the Guardian in Knight-service seise the land of one co-heire within age the other being of full age there the Seigniory is suspended for a moity and in esse for the other moity And if there be two Coperceners of a Seigniory and the one disseise the land Tenant or comes to the land by defeasable title the other may distraine her for her moity of the Seigniory because these also come in by Act of Law Co. l. 10. 94. b. 3. Doctor Leyfeilds Case 49 When the Interest of a thing is gained by Act of the party Shewing forth of a deed in defence of the title thereof the party interessed must produce to the Court the Déed by which he claimes So in Trespas the Defendant pleads the Quéenes grant of the Rectory of O. to A. but shewes not the Letters Patents this is error because this Estate being gained by the Act of the party â—e might in time have provided for his defence but when a particular Estate or interest is created by Law the party interessed shall not be forced to shew forth the Déed So guardian in Chivalry or Tenant in dower may plead a release without shewing it There is the same Law also of Tenant by Statute Marchant Staple Elegit c. because they also come to the possession by execution of Law and against the will of the terre-tenant who hath the déed for Judiciâ—m redditur in invitum Co. l. 10. 104. b. 3. in Alfridus Deubawdes Case 50 A Tales ought not to be granted after a full Iury appeares and is sworne and yet if a Iury be charged A Tales granted and after and before Verdict given in Court one of them is taken away by death which is the Act of God in that Case a Tales shall be awarded and no new venire facias and with this accords 12 H. 4. 10. so likewise if any of the Iurors impannelled die before they appeare and that appeares by the Sheriffs return the Pannel shall not abate but if néed be a Tales shall be awarded Vide 20 E. 4. 11. F. N. B. 31. m. 51 If a man usurpe
and the title of the Tenant at will is of little or no consideration in Law and also vanisheth because derived from A. who had no interest because granted in futuro and therefore void yet both of them are estopt to say Quod partes finis nihil habuerunt And of such estoppels which are by matter of Record and trench to the wrong and disherision of those in Remainder or Reversion they shall take advantage albeit they are not parties thereunto as of an Ayde prier of a stranger or by acceptance of a Fine Sur conusans de droit come ceo c. albeit the Reversioner or Remainder be not partie to the Record yet he is privy in estate to take advantage of a Forfeiture by any matter of Record done to his disherison Co. l. 5. 13. b. in the Countess of Shrewsburies case Dyer 122. b. 15. Tenant at will is not chargeable with permissive waste Tenant at will chargeable with voluntary waste as negligently suffering the house to be burnt or the like but if Tenant at will commit voluntary waste viz. in distroying the houses felling the wood or the like in such case a generall Action of Trespasse lyeth against him Vide Litt. fol. 15. for when Tenant at will takes upon him to do unlawfull Acts and such as none may do but the owner of the Land they amount to a determination of the will and of his possession and the Lessor in such case shall have a generall Action of Trespasse without any Entry 15. E. 4. 26. So if the Bailee of goods as a horse c. kill them the Bailor shall have a generall Action of Trespass for by the killing the privity is determined And in some cases when confidence is put in the party if any wrong be done an Action upon the Case may also lye for negligence albeit the Defendant come to the Possession by the Act of the Plaintiff as where a man delivers a Horse to another to be safely kept 12 E. 4. 13. and the Defendant equum illum tam negligenter custodirit quid ob defectum bonae custodiae Interijt here an Action upon the case will lye So it is also against a Shepheard that keepes any Sheep so negligently that some of them are thereby drowned or otherwise destroyed Co. l. 5. 14. b. 2. in the cases of Ecclesiasticall persons 16. Regularly the King shall not be bound by an Act of Parliament Statutes to present fraud bind the King unlesse he be therein particularly named and yet all Statutes which are made to suppress wrong and to take away fraud shall bind the King albeit he be not named in them by express words for Religion Justice and Truth are the sure supporters of the Diadems of Kings And therefore it is agreed in 35 H. 6. 60. that the King shall be bound by the Statute of West 2. cap. 5. which makes provision against tortious usurpations although the King be not named in the Act So in the Lord Barkleys case reported by Master Plowden if a gift in tail be made to the King he shall not alien to defraud him in the Reversion or his Issues but is bound by the Statute of West 2. de donis conditionalibus Co. l. 5. 27. b. 2. in Russels case 17. An Infant Executor brings an Action of Trover and Conversion for a Chest with divers summes of money and Iuels in it A release of an Infant Executor the Defendant pleads a release of the Plaintiff In this case albeit a release by him upon payment of money or delivery of a Legacy and all Acts in pursuance of his office of Executor are strong and good yet a release in this case is adjudged not valid to bind him because first it would amount to a devastavit and then the infant should be chargeable to answer it of his own goods and secondly it would be a wrong which an infant by his release can never do Restraint by condition if there be a tort 18. If a man make a gift in tail Co. l. 6. 41. b. 1. in Sir Anthony Mildmays cases Co. Inst pars 1. 223. b. 4. upon condition that he shall not alien this condition to some intent is good and to other some void for if he make a Feoffment in fee or any other estate whereby the Reversion is discontinued tortiously the Donor shall enter for the condition broken for every act that is prohibited by Law or maketh a tort a man may prohibit by condition Vide 10 H. 7. 11. Howbeit if in such case the Donee suffer a common Recovery the condition cannot by the Law extend to it because that is lawfull whereas the other is tortious and against Law So if Feoffment be made to Baron and Feme in fee upon condition that they shall not alien in this case they are not thereby restrained to alien by levying a Fine both of them together because that is lawfull and incident to their estate but they cannot alien by Deed because that is tortious and against Law likewise if a man enfeoff an Infant in fee upon condition that he shall not alien this shall not restraine him to alien at his full age for that were repugnant to the liberty that the Law gives in case of Fee-simple according to Litt. fo 84. a. Howbeit such a condition shall restraine him from aliening during his non-age for that is tortious and against Law and thereupon the Feoffor shall enter c. Co. l 6. 70. a. 1. in Sir Moyle Finches case Right cannot incorporate with wrong 19. There is such an extreame enmity betwixt an estate gained by wrong and the ancient right that the right cannot possibly incorporate it selfe with an estate gained by wrong but it will rather suffer extinguishment then passe with it And therefore if the Donee be disseised and the Donor disseise the Disseisor and make Feoffment in fee and the Donee make regresse the Donor shall not have the Reversion but the Disseisor for there is a diversity betwixt an estate and a right as where the Reversioner disseiseth the Donee or Lessee for life and then makes Feoffment in fee upon regresse of the Donee or Lessee the Reversion is left in the Feoffee and this is by force of the Feoffment but where the Donee or Lessee is disseised here the Reversioner hath but a right which he cannot transfer to another and therefore when he disseiseth the Disseisor and makes Feoffment this passeth the estate which he gained by Disseisin and extinguisheth his ancient right which he could not transfer to another and then the first Disseisor hath the first possession and a better right then the Feoffee of the Reversioner because he comes in under him who disseised the first Disseisor and hereby the ancient right is extinct for the Reversioner cannot have it because that would be repugnant to his own grant neither can the Feoffee have it because a right cannot be
and part against him or all or part against one of the Tenants or Defendants and nothing or but part against the other the Demandant or Plaintiff shall be amercied except no default be found in the Demandant or Plaintiff And therefore in Trespasse of Battery against Baron and Feme supposing the Battery to be done by both and the Feme is onely found guilty c. and the Baron acquit yet the Plaintiff shall not be amercied for the Plaintiff cannot have any other Writ in such case and therefore because no default was found in him he shall not be amercied in this case The Kings ward dyes before homage 42. The Kings Tenant in Capite under age is to remaine in Ward Co. l. 8. 172. a. Hales case Prerogativa Reg. cap. 3. and the King is to receive the profits of his land untill he do his homage and that cannot be untill he have sued out his Livery And if at his full age he tender his Livery he is to have three moneths to perfect it Howbeit if after such tender by the Act of God viz. death he is prevented to perfect it the King shall not receive the profits after such tender but the next heire shall have them and after such tender he might in that case sell the Land or any part thereof and the sale shall be good notwithstanding the Kings hands upon it Co. l. 9. 87. a. 4. in Pinchons case 43. It is a Rule in Law Where wager of Law in the Testator Executors not chargeable that where the Testator might have waged his Law his Executors shall not be charged with that duty contra because that advantage is lost by the act of God viz. by death and therefore shall not be imputed to any default of his So debt lyeth not against Executors for the dyet of their Testator because he might in that case have waged his Law and so have freed himselfe thereof which advantage being lost by his death and no fault of his his Executors who represent his person shall not be prejudiced thereby Howbeit if a Prisoner in the Tower for treason receive his diet of the Lievtenant and dye the Lievtenant shall have an Action of debt against his Executors for such diet of the Testator and the reason is because in that case the Testator could not in his life time have waged his Law as it is adjudged in 27 H. 6. 4. b. in Thomas Bodulgats case And the reason why no wager of Law lyeth in such case is because every Goaler ought to keep his Prisoner in salva arcta custodiae and so must of necessity finde him victualls c. Vide pl. ibid. Co. ibid. 87. b. 4. 44. In 14 H. 6. 19. b. R. G. brings a Writ of debt of ten marks against T.T. and others Executors of W. W. and counted The like that the Testator had retained the Plaintiff to be with him for a yeare in the art of limming of Books paying him ten marks per annum and there Martin held that the Action of the Executors was not maintainable And he took a difference betwixt this case of a Limmer and that of a common Labourer for a Labourer shall be compelled to labour and his salary is put in certaine by the Statute and therefore there is no reason that the Servant should lose by the death of his Master being bound by the Law to serve which shall not be said to be his default but the Act of God and the Law Howbeit in the case of a Limmer he was not compelled by the Law to serve And so when he made the Covenant it was his owne act and folly and no act in Law and he might have taken a Specialty And this is good Law but the true reason of that difference is because in the Case of a common Labourer the Testator could not wage his Law but in that of a Limmer he might c. Vide pl. ibid. Co l. 10. 76 b. 2. in the case of the Marshalsey 45. If the Court of Common Bench in Plea of debt award a Writ of Capias against a Duke Earle Erroneous arrests c. which by the Law lyes not against them and this appeares in the Writ it selfe yet if the Sheriff arrest them by force of the Capias albeit the Writ is against Law neverthelesse the Court having Iurisdiction of the cause the Sheriff shall be excused because there is no default in him but in the Court and with this accords 38 H. 8. Dyer 60. b. So it is likewise if a Iustice of Peace makes a warrant to arrest one for Felony who is not indicted albeit the Iustice ers in the Warrant yet he that makes the arrest by force of that Warrant shall not be punished by a Writ of False Imprisonment because is is not his fault but the Iustices who is Iudge of the cause and with this agrees 14 H. 4 16. Co. l. 11. 27. a 3 in Henry Pigots case 46. If the Obligee himselfe alter the Obligation in any point materiall or not materiall by interlining addition racing or the like An Obligation void or not void by rasure c. that shall make the Obligation void but if a stranger do it without the Obligees privity in a point not materiall that shall not avoid the Deed as if an Obligation be to be made to the Sheriff for apparance c. and in the Obligation after the sealing and delivery thereof these words Vicecom Comit. Oxon are interlined by a stranger without the privity of the Sheriff yet the Obligation remaines good notwithstanding such interlining by a stranger without the Obligees privity in regard it was not conceived to be a point materiall Benedicto Winchcombe his name and sirname being there inserted before and being done by a stranger it shall not in that case prejudice the Obligee Refusall of Clerk 47. Where the Bishop refuseth the Clerke of the Patron for non-ability or crime he shall not present by Laps F. N. B. 35. i. unlesse he have first given notice to the Patron of the insufficiency of his Clerk the Patron neglect to present within the six moneths for in such case after the six months past the Patron shall have a Writ to the Bishop if the Church be void and the Bishop have not in the meane time collated 48. If one sell another a peice of Cloath and warrant it to be of a certaine length in this case if the peice be not of that length F. N. B. 98. k. a Writ of Disceit lyeth against the Vendor albeit the Warranty be but by Parol Custome of Woad uncertaine by tempest 49. In Fogassaes case in the Coment Pl. Com. â— b. 1. in Fogassaes case the storme at Sea being a thing that could by no possible meanes be prevented and that causing the uncertainty of the quantity of the Woad and there being no meanes of knowing the certainty thereof
and put to a right because he that hath the estate in him cannot be put to his Action Entry or Claime for that he hath already that which Action Entry or Claime can vest in him or give him And therefore in vaine was the bargaine and sale and Fine when they could not alter the estates of them in Remainder Co. l. 10. 90. a. 4. in Doctor Leyfields case 19. Colour shall not be given in any Action Colour to the Plaintiff where the Plea goes in bar of the right for it were in vaine to give colour of right and to bar it after As in Assize or Writ of Entry in nature of an Assize if collaterall Warranty be pleaded and the Defendant relye upon it or if an Estoppell be pleaded or Fine levyed with Proclamations c. there is no need of any colour to be given because the Plaintiff is barred albeit he had right So it is also where the Plaintiff conveys the title unto him by Letters Patents of the King or by Act of Parliament for that bars the right c. it is otherwise where the Possession is onely barred c. vide pl. ibid. P. C. 8. b. 3. in Fogassaes case 20. When a man is not bound to doe a thing Not tyed to answer in a Plea concerning it he need not make answer thereunto as in Fogassaes case exception was taken for that the suerty was not named that was bound for answering the custome and it was said that because the Statute speaks of no surety and the agreement might be good without surety it had been in vain to speak of it or to make answer thereunto and thereupon that exception quasht Death not traversable 21. In a Formedon in Reverter or Remainder P. C. 32. b. 1. Colthrist versus Bevishin a man shall not shew the death of the particular Tenant because it is but a Conveyance and not traversable nor issuable So in Colthrist and Bevishins case the Defendant shall not shew the deaths of Henry and Elenor Bevishin because the Plaintiff Colthrist should have traversed it and said that they were alive he should confesse that he had not title to the Land before their lives and would have destroyed his own Action And therefore in regard their deaths were not traversable it was in vaine for the Defendant to shew it by consequent he shall not be compelled to do it Covin 22. A man need not shew any speciall cause of Covin when it is apparent P. C. 49. b. 2. in Wimbish and Talboies case Ibid. 55. b. 3. as when Feme Tenant in tail for her Ioynture by Covin appeares in a Formedon in Remainder brought against her by one that pretends title in Remainder and she appeares the first day without Essoine View c. and Iudgement is had against her by nihil dicit here the Covin is apparent and need not be specially shewed for it is in vaine to shew that which is apparent of it selfe So it is a vaine thing to aver that an Horse bought which wants eyes is blind when it is apparent that he must be blind when he wants eyes If the Tenant enfeoff his Son within age by collusion the Lord shall seise him for his Ward and shall not be forced to shew this Collusion in speciall causa qua supra Pretenced titles 23. In an Action upon the Statute of 32 H. 8. 9. against buying pretenced titles P. C. 81. a. 4. in Partridges case against Strange and Croker the Plaintiff need not aver the title or right to be pretenced because the Statute declares and intends the title to be pretenced when neither his Ancestors nor those from whom he claimes have injoyed the Land in Possession Reversion or Remainder nor received the rents or profits thereof for a yeare before the purchase thereof and therefore because it were in vain for him to aver the pretenced title because the Statute makes it so he shall not doe it 153. Non licet quod dispendio licet Surrenders 1. M. Leases for twenty one years to S. and is bound to make a new Lease to S. upon surrender of the old Co. l. 5. 21. a. 4. in Sir Antohny Maines case M. Leases to another for eighty years by Fine and S. brings an Action of debt upon the Bond In this case albeit S. may surrender and ought to do the first act viz. to surrender yet M. hath forfeited his Bond although S. never surrender for S. shall not now be forced to surrender because if he should surrender M. cannot now make him a new Lease which w s the effect and end of the Surrender for by such Surrender S. will lose his old terme without possibility of having a new one And Non licet quod dispendio licet Parson not to â—esigne 2. I. Parson of the Church of G. was bound in an Obligation to the Prior of E. to resigne his Church to the Prior for a certaine Pension Co. l. 5. 21. b. 1. ibid. 14 H. 4. 19. a. as it should be agreed the Parson and Prior agree for a Pension of C. s. yet the Parson refused to resigne And 14 H. 4. 19. a. it was the opinion of all the Court that albeit they were agreed of the Pension yet the Parson was not bound to resigne untill he might be sure of his Pension and that could not be without Deed And therefore in such case the Parson was not bound to resigne untill the Prior should â—ender a Deed of the Pension whereby he might be sure 〈◊〉 it 154. It favoreth Truth Faith and Certainty Vide Max. 41. â—9 Co. Inst pars 1. 139. a. 3. 1. Regularly upon a nonsuit the Demandant or Plaintiff may againe commence an action of like nature c. Howbeit in an Attaint Nonsuit in Attaint peremptoria if the Plaintiff after apparance be nonsuit it is peremtorie and he is thereby barred from ever bringing an attaint against the first iury againe and the reason is for the faith that the Law gives to the verdict and for the terrible and fearefull judgment that should be given against the first jury if they should be convicted and therefore upon the nonsuit the Plaintiff shall be imprisoned and the pledges amercied Vide infra 11. Co. ibid 227. b. 3. Co. ibid b. 4. L. S. 366. 2. A speciall verdict or at large may be given in any action A speciall verdict and upon any issue be the issue generall or speciall because the truth of the cases may be the better discovered and discussed and justice and right donâ— so if a man seised of lands in fee le ts them for life without Deed rendring rent upon condition of re-entry upon non-payment of the rent whereupon if the lessor enter and the lessee bring an assise of Novel Disseisin the jurors may find the matter at large and the Iudges ought to adjudge it for the tenant albeit
the King by the Charter of the 11 of E. 3. or by Act of Parliament confirming that Charter was because there were divers priviledges granted him which could not possibly be granted by Charter but must of necessity be by Act of Parliament Vide. pl. ibid. Melius inquiâ—â—d 18. A Melius Inquirendum to find what Land I. S. held of King James at the time of his death Co. l. 8. 168. a. 4. in Paris Sloughters case being in the 40 year of Queen Eliz. shall be quasht for the impossibility thereof for it is impossible that I. S. should hold any Land of King James in the 40 yeare of Queen Eliz. he being then King of Scotland 156. Non cogit ad Impossibilia Impotentia excusat Legem Shewing a Deed. 1. If a Deed remaine in one Court it may be pleaded in another Court without shewing it forth Co. Inst pars 1. 231. b. 4. because he cannot have it out of the other Court and Lex non cogit ad impossibilia vide Co. l. 5. 74. b. 4. in Wymarks case Claime 2. Regularly Litt. S. 434. Co. ibid. 258. a. 3. where a man doth lesse then the commandment or authority committed to him there the commandment or authority being not pursued the Act is void and where a man doth that which he is authorized to doe and more there it is good for that which is warranted and void for the rest yet both these rules have divers exceptions and amongst the rest this for one that if a man be sick that he cannot go to the Land nor any part thereof to make his claime and he commands his Servant to do it and the Servant dare not go to the Land for feare of some bodily hurt in this case if the Servant go as neere the Land as he dare and there make claime for his Master that shall suffice albeit his Master bade him go to the Land because Impotentia excusat legem for seeing the Master cannot and the Servant dare not enter into the Land it sufficeth that he come as neere the Land as he dare Descent 3. Descent shall not take away Entry of a man in Prison at the time of the Descent cast because he could not make continuall claime Litt. S. 436. Co. ibid. 259. a. 2. when he was in Prison being there kept as it is presumed in Law in salva arcta custodia without intelligence of things abroad Descent 4. A Descent cast during the vacation of an Abbey Litt. S. 443. Co. ibid. 263. b. 2 shall not take away the Entry of the next Successor because seeing by the death of the Abbot which is the Act of God no person is able to make continuall claime therefore a Descent during that time shall not prejudice the Successor for Impotentia excusat legem Co. l. 5. 22. a. 3. in Laughters case 5. Where the Condition of an obligation is in the disjunctive Condition disjunctive viz. for the Obligor either to do one thing or another and both the things possible at the time of the delivery and afterwards one of them becomes impossible by the Act of God in this case the Obligor is not bound to perform the other for Impotentia excusat legem Co. l. 5. 115. a. 3. in Wades case 6. If a man be bound to pay 40000 l. at such a day Tender of money if he tender it in baggs it is sufficient for it is not possible it should be numbred within the compasse of one day Co. l. 6. 21. b. in Butler and Goodalls case 7. Lawfull Imprisonment without Covin Non-residence the want of a Parsonage House and sicknesse without fraud when the Incumbent by the advice of his Phisitian removes for better aire or the like are good excuses for non-residence against the statute of 21 H. 8. cap. Co. l. 8. 172. Hales case 8. If the Heire holding of the King by Knights Service tender his Livery that includes tender of Homage Tender of Livery and therefore after such tender he may sell any part of his Land and if he dye after tender and before Livery sued out the King shall not have the profits of his Lands longer then to the time of the Tender because by his death which is the Act of God the shewing out of his Livery is become impossible and Impotentia excusat legem Co. l. 3. 73. a. 1. in Doctor Husseyes case 9. A Feme Covert is not within the Statute of Westminst 2. cap. 39. Ravishment of Gard VV. 2. c. 39. concerning Ravishment of Ward for the Law that disables her to have any thing wherewithall to satisfie the value of the Marriage doth also free her from the punishment of Banishment and Imprisonment because it is impossible she should satisfie it when she hath nothing to do it withall for Lex non cogit ad impossibilia c. vide Max. 34. Co. l. 10. 139. b. 3. in Knightlies case 10. If a man be bound to repaire a Wall against the flowing of the Sea if it fall into decay by his default and negligence Wast a wall of the sea he shall be solely charged with the repaire thereof but if it be overthrown or endamaged by the violence of the water without his fault by the Stat. of 23 H. 8. they are to be equally charged who have losse by it for Impotentia excusat Legem vide Pl. ibid. 157. It disfavoureth Falshood Fraud and Covin Vide Dyer 294. 8. Co. Inst p. 1. 17. b. 3. 1. A man hath as absolute ownership and property in an Advowson Advowson how pleaded as he hath in Lands or Rents yet he shall not plead that he is seised thereof In Dominico ut feodo because that Inheritance savouring not De domo cannot either serve for the sustentation of him or his Houshold neither can any thing be received for the same for defraying of charges and therefore he cannot say that he is seised thereof In Dominico suo de feodo Whereby it appeareth how the Common Law doth detest Symmony and all corrupt Bargaines for Presentation to any Benefice but that Idonea persona for the discharge of the cure should be presented freely without Expectation of any thing nay the Common Law is so cautelous in this point that the Plaintiff in a Quare Impedit should recover no Damages for the losse of his Presentation untill the Statute of Westminster 2. cap. 5. And that is the reason that Guardian in Soccage shall not present to an Advowson because he can take nothing for it whereof to make Account for by the Law he can meddle with nothing that he cannot account for So in a Writ of Right of Advowson the Patron shall not alledge the Explees in himselfe but in the Incumbent For which Reasons of an Advowson a man shall plead that he is seised De advocatione ut de feodo jure
saved for that would be repugnant and make the expresse gift void and vaine Act of Parliament repugnant 20. It appeares in our Books that a saving in an Act of Parliament which is repugnant to the body of the Act is void Co. l. 1. 47. in Alton Woods case as in Plowdens Commentaries fol. 563. b. where the supposed Attainder of the Duke of Norfolke was by Act of Parliament in primo Mariae declared to be void and null ab initio saving the Estates and Leases made by E. 6. This saving was void for when the Attainder was declared to be void the said saving was against the body of the Act and therefore repugnant and void The like 21. It is enacted by the Statute of 31 H. 8. cap. 13. that all Houses of Religion Co. ibid. a. 3. and their Possessions then or afterwards to be dissolved shall be the Kings in the same estate and condition as they were at the time of the making of the said Act saving to all strangers their Interests c. After the said Act the Abbot of Ramsey grants the next avoydance of a Church of his Patronage and after the Abbey is dissolved and it was adjudged Mich. 6. 7. Eliz. Dyer 231. that the Grant was void and the saving repugnant to the body of the Act for if the Advowson were in the King in the same estate and condition as it was at the time of the making of the Act then a Grant made after cannot be saved 22. If Land escheat to the King by Forfeiture of Treason Co. ibid. Co. l. 8. 118. b. 3. Doctor Bonhams case and after this Land is given to another by Act of Parliament The like saving to all others their Rents Services c. This saving is repugnant and void for they were extinct by the Forfeiture 14 Eliz. Dyer 313. The like 23. By the Statute of 1 E. 6. of Chanteries all Services Rents Co. Inst ibid. a. 4. c. are saved yet this saving as to Services is repugnant and void for the King cannot hold of any as it is held 14 Eliz. Dyer 313. a. 24. In the case of Alton Woods Co ibid. 52. b. 1. the Mannor of Abbottesley being expressely given to the King by the Statute of 28 H. 8. the generall saving cannot extend to save the estate The like c. of him that was seised of the Land for that would be repugnant to the body of the Act and would make the Act vaine and idle Co. l. 1. 84. a. 3. Corbets case Co. l. 6. 40 b. Sir Anthony Mildmayes case 25. C. covenants to stand seised to his own use for life Perpetuities the Remainder to R. in tail the Remainder to A. in tail c. upon this Condition or Proviso that if any of these shal resolve to bar the said estate that then his estate shall cease as if he were naturally dead and be to the next Remainder Here this Proviso is repugnant and against Law for an estate taile cannot cease by the onely death of the Tenant in tail but by his death without Issue and death naturall or civill is requisite to every Descent Reversion or Remainder upon the determination of an estate taile Vide pl. ibid. Co. ibid. b. 3. 26. In 8 Assis Pl. 33. A man gives Land to Mary and Johan his Sisters Joynt estate repugnant Et haeredibus de corporibus earum legitime procreatis whereby they had a joynt estate for life and severall Inheritances and the Donor intending that neither of them should breake the Ioynture but that the Survivor should have all per jus accrescendi added this clause Sub hac forma quod illa quae illarum diutius vixerit tenebit terram illam integram Howbeit in as much as his intent is contrary to Law if the Ioynture were severed by Fine levyed the Survivor shall not have the part so severed by the said clause which he had so inserted of his owne cenceit and imagination repugnant to Law and reason Co. ibid. b. 4. 27. In Plesintons case in 6 R. 2. which see tit Quid juris clamat Condition repugnant 20. A man makes a Lease upon Condition that if the Lessor grants the Reversion that then the Lessee shall have fee In this case if the Lessor grant the Reversion by Fine the Lessee shall not have fee for the Condition is repugnant and void Vide Pl. Com. 32. a. 4. Colthirst and Bevish Co. l. 1. 176. b. 1. Mildmayes case 28. When an use is raised in consideration of Fatherly love Proviso repugnant c. with a Proviso to make Leases the Proviso is repugnant and void because when the Indenture is once sealed and delivered his power of making Leases is taken away it is otherwise where uses are raised upon a Fine Recovery or Feoffment for there needs no consideration Co. l. 2. 23. b. 4. in Baldwins case 29. In Baldwins case in the 2 Report Premisses and Habendum repugnant these Resolutions were agreed for Law 1. As to things which take their essence and effect by the Delivery of the Deed without other ceremony and which lye in Grant when there is variance between the Premisses and the Habendum In such case the estate which so passeth by the Delivery of the Deed and is most advantagious to the Grantee shall stand and the other shall be void for the repugnancy So if a man grants rent on Condition c. out of his Land by the Premisses of the Deed to a man and his Heirs Habendum to the Grantee for years or life in this case the Habendum is repugnant for fee passed in the Premisses by the delivery of the Deed and therefore the Habendum for years or life is repugnant and void 2. If a man by Deed grant a Rent in esse or a Seigniory in the Premisses to one and his Heires Habendum to the Grantee for years or for life albeit it another thing or ceremony is requisite viz. Attornement besides the delivery of the Deed yet in as much as the thing lyes in Grant and both the estates viz. as well the estate in fee as the estate for years or for life ought to have one and the same ceremony viz. Attornement to passe it for that cause in such case the Habendum is also repugnant and void 3. When a man gives in fee by the Premisses Habendum to the Lessee for life in this case the Hebendum is repugnant and void for one and the same ceremony viz. Livery is requisite to both the estates and therefore when Livery is made according to the forme and effect of the Deed it shall be taken most forcibly against the Feoffor and most for the advantage of the Feoffee and the Habendum in such case is repugnant and void and untill Livery the Feoffee hath but an estate at will 4. When to an estate limited by the Premisses a
of Westm 2. cap. 25. saith of it quia non est aliquod breve in Cancellaria per quod querentes habent tam festinum remedium sicut per breve novae disseisinae c. And as the Law favours an Assise so likewise it favors all such things as may speed and expedite it and abhors any thing Pl. ibid. 89. b. assise of Fresh force in London that may hinder or retard it And therefore upon a bare surmise that the Sherif is allyed fo either party the writ shall be at first directed to the Coroners and this shall be no exception to abate the writ and many other exceptions which abate other writs shall not abate an Assise because it is much favoured in Law by reason of the expedition and dispatch which accompanies it and wherein the Law takes much delight and satisfaction Vide Dyer 84. b. 83. Co Inst pars 1. 155. a. 2. 6 Albeit the writ of Assise command the Sherif Assise Quod faceret duodecim liberos et lega les homines de vicineto c. videre tenementum c. yet by antient Course the Sherif must return 24 and this is for expedition of Iustice for if twelve should only be returned no man should ever have a full Iury appear or be sworn in respect of Challenges without a Tales which would be a great delay of trials 176 Hateth Delayes Co. Inst pars 1. 32. b. 4 1 Some say that the demandant in a writ of Dower Dower who procureth or suffereth delays in that sute shall not recover damages Co. ibid. 126. b. 4. 2 The cause of an Amerciament in a plea real Amerciament personal or mixt where the King is to have a fine is for that the tenant or defendant ought to render the demand as he is commanded by the Kings writ the first day which if do he shall not be amerced so as for the delay which the tenant or defendant doth use he shall be amerced Co. ibid. 128. a. 4. 3 If the defendant plead in disability of the person an Outlawry of the same Court he shall not need to shew it forth presently Outlawry or if he plead an outlawry in barr and it be denied then he shall have a day to bring it in But if he plead an Outlawry and offer withall to shew it to the Court he must shew forth the record of the Outlawry maintenant sub pede sigilli because the plea is but dilatory Co. ibid. 158. a. 2. 4 After challenge to the Array and trial duly returned Challenge if the same party take a challenge to the Polls he must shew cause presently so if a Iuror be formerly sworn if he be then châ—llenged the party challenging must shew cause presently and that cause must rise since he was sworn likewise when the King is party or in an appeal of felony the defendant that challengeth for cause must shew his cause presently Co. ibid. 161. a. 3. 5 To Counterplead the plaintif in an Assise Counterplea by which he is delayed maketh him that pleadeth it a disseisor Otherwise it is if he had pleaded Nul tort c. Co. ibid. 260. b. 3. 6 If a man be out of the Realm Recovery and a recovery be had against him in a Praecipe by default In this case he shall not avoid such recovery because by such means a man might be infinitely delayed of his freehold and Inheritance whereof the Law hath so great regard and few or none go over but of their own freewill neither is he in such case without his ordinary remedy either by his writ of an higher nature or by a Quod ei deforceat Howbeit it is otherwise of outlawry in a personal action for de minimis non curat lex Outlawry Imprisonment and he should otherwise be without remedy Also as to a recovery there is a difference betwixt being beyond sea and imprisonment c. Co. ibid. 390. b. 3. 7 If a man be convicted of felony by verdict Voucher and delivered to the Ordinary to make purgation he cannot be vouched for that the time of his purgation if any should be is uncertain and the demandant cannot be delayed upon such an incertainty besides the tenant is not without remedy for he may have his warrantia cartae Co. l. 4 35. b. 1. in Bozouns case 8 If the King grant a protection in a Quare Impedit Protection or an Assise with a non obstante of any Law to the contrary that grant is void for by the Common Law a Protection lieth not in either of these cases for the damage that may happen to the plaintif by such great delay and a non obstante cannot avail when by the Common Law the King cannot grant the thing it self Stat. 36 E. 3. â— 9 The Statute of 36 E. 3. Stat. 1. cap. 13. Co. l. 4. 58. a. 2. in the Sadlers case which gives traverses to offices of lands seised into the Kings hands shall be taken generally according to the letter and intention of the said Act because it is for the advancement and execution of Iustice against grievous and tedious delays Ad admittend 〈◊〉 10 In a Quare Impedit if the defendant do not come in at the distress returned against him F.N.B. 38. n. the plaintif shall have a writ ad admittendum clericum directed to the Bishop without making any farther title â—â—cedendo 11 If the Iudges of any Court as well of record as other do delay the party plaintif or defendant F.N.B. 153. b c d. and will not give judgement for him when they ought to do it In this case the party grieved may have a writ de procedendo ad judicium directed to such Iudges or Iustices and thereupon an alias and pluries if they will not procéed to give Iudgement and after that an attachment if they please directed to the Coroners and returnable into the Kings Bench or Common Pleas. Assise 12 The Law favours all things Pl. Co. 75. b. 4. Wimbish the Lo. Will. which have spéed and expedition in them and abhorrs all delayes which retard or delay Iustice and therefore an Assise which by the Statute of Westm 2. cap. 25. is said to be festinum remedium is much favoured in Law so as a writ of Assise upon a bare surmise shall be at first directed to the Coroners without first directing it to the Sherif and then upon a challenge to the Array to have it afterwards directed to the Coroners which is the ordinary course for other writs 177 Unnecessary Circumstances And therefore Frustrafit per plura quod fieri potest per Pauciora The entry of the issue conâ—eable after discontinuaâ—ce 1 In a praecipe where the demandant is to recover damages Co. Inst part 1. 362. b. a. if the tenant plead non-tenancy or disclaim there the demandant
sutes Co. l. 10. 48. a. 3. in Lampets case great oppression of the people principally of terre-tenants and the subversion of the due and equal execution of Iustice the wisdom and policy of the Sages and Founders of our Law have provided that no possibility right title or thing in action shall be granted or assigned to strangers and as they cannot be granted by the act of the party so right of action cannot be transferred by act in Law as unto the Lord by escheat neither shall the Lord of a Villein have things in action as appears in 22 Ass pl. 37. c. Co. l. 3. fol. 1. And in the Marquess of Winchesters case Right of action to land was not given to the King by an Act of Attainder And all this was for the quiet and repose of terre-tenants Howbeit all rights titles and actions may by the like prudence and policy of the Law be released to the terre-tenant for the same reason of his repose and quiet and for the avoidance of contentions and sutes and that every one may live in his vocation in peace and plenty Ecclesiastical livings 26 To preserve Ecclesiastical possessions from alienation in prejudice of the Successor Co. l. 10. 60. a. 3. in the Bish of Sarums case the prudence of the Sages of the Law did provide that no sole Corporation should be trusted with the disposition of his possessions as to bind his Successors but in such case they were to have the consent of others as the Bishop was to have the consent of his Dean and Chapter the Abbot of his Covent the Parson of his Patron and Ordinary sic de caeteris Auditor of the Court of Wards 27 The Law to prevent any miscarriage in matters of Iudicature hath provided Co. l. 11 4. a. 2. in Auditor Curles case that no judicial office shall be granted in reversion and the rule of Law in this point is Officia Judicialia non concedantur antequam vacent And the reason is to prevent a great inconvenience which may insue thereupon for that he who at the time of the grant in reversion may be able and sufficient to supply the office of Iudicature and to administer equal justice to the Kings Liege people may before the office fall become unable and insufficient to perform it And therefore the Kings grant of the office of Auditor of the Court of Wards unto John Churchil and Iohn Tooke in reversion after the death of Walter Tooke and William Curle was adjudged void because it was an office of Iudicature in that Court and therefore could not be granted in reversion Error in London 28 If a man hath judgement given for him in London in the Sheriffs Court F.N.B. 24. a. or before the Maior and Sheriffs in the Hustings of London and the defendant to delay the execution of the judgement sues a writ of Error to remove the Record before the Maior c. in the Hustings or before certain Commissioners if the judgement be given in the Hustings c. and afterwards the defendant eloyns his goods goods out of the City or wasts them to the intent that the plaintif should not have execution of those goods In this case the plaintiff may have a special writ directed to the Maior and Sherifs to take order that so many of the goods of the defendant as amount to the value of that which is recovered may be safely kept to satisfie the plaintif if he shall have the judgement affirmed for him so as execution of the former judgement may be made c. of the same goods c. Security of the Peace 29 Before a man can have security of the Peace against another F.N.B. 79. h. lest the cause of his complaint may arise rather from malice than any just ground of fear the party complainant ought first to make oath that he requires the Peace against the other for the safeguard of his body and not out of malice And this course is stil used in the K. B. and before Iustices of Peace And it was also the usual course in the Chancery to make such oath before a Master of that Court before he could have it granted but of later times that course hath been left in Chancery which Fitzharbert saith is not well done because such prosecution for the most part procéeds rather from malice than any just cause of fear F.N.B. 113 a. 30 The King of right ought to save and defend his Realm as well against the Sea as against Enemies Oyer Terminer for Nusances that it be not surrounded and laid waste and to provide remedy for the same and also to take order that his subjects may have their passage throughout the Realm by bridges and safe wayes c. And therefore if the banks of the Sea be broken or the Sewers and drains be not scowred that the fresh waters may have their direct course the King for the prevention of such damage as may happen by reason of such defaults might by the Common Law before any Commissions of Sewers c. grant commissions to inquire hear and determine such defaults Pl. Co. 67. a. 2. in Dyve Maninghams case 31 The persons mentioned in the second branch of the Statute of 23 H. 6. 10. viz. such as were in ward by Condemnation Bailment exemption Capias utlagatum or excommunicatum surety of the peace or committed by command of the Iustices or Vagabonds refusing to serve were not bailable by the Common Law before that Statute for the Inconveniences which might ensue thereupon Co. l. 5. 83. b. in the case of Market overt 32 No sale of stoln goods but in a Market overt Market overt alters the property And therefore if stoln plate be openly sold in London or elswhere in any other market overt in a Scriveners shop that sale alters not the property because it is no market overt for plate it is otherwise if it be openly sold in a Goldsmiths shop but if the sale be there behind a hanging or Cupboard or in a ware-house or other part of the house and not openly that passengers may observe it such sale alters not the property And this the Law hath ordained to prevent felony c. Vide Max. 191. 3. 134. 14. Co. Iâ—st pars 1. 6. b. 4. 31 It was resolved in the C. B. Pasc 10. Feme covert no witnesse for the Baron Iac. that a wife cannot be produced as a witness either against or for her husband and one of the reasons of that resolution was in respect it might be a cause of implacable discord and dissention betwixt the husband and wife and a mean of great inconvenience H b. 36. Druries case 32 Drury brought a Quare Impedit against Kent the Incumbent and others and upon surmise made to the Court Prohibition that Kent did fell timber upon the Glebe and upon the lands of
in this case the tenant may live 40 years after they are made In like manner if the service be to cover the Hall of the Lord or to march with him when there shall be warr betwixt the King and any of his enemies such casual services as by common possibility cannot happen within 40 years are not within that act There is the same Law also of a Formedon in descender for the tenant in tail may live 50 years after the discontinuance And therefore in Fitz williams case in 10 11 Eliz. it was adjudged Dyer 278. pl. 2. that Formedons in descender were not within the Statute for the common possibility aforesaid Vide plus ibid. Sale by the Sherif 24 The Sherif reciting Co. l. 4. 74. a. 3. Palmers case that A. had a lease of a Parsonage pro termino diversorum annorum extunc ventur sold it by force of a Fieri facias to another and this sale was adjudged good because by common intendment the Sherif cannot have precise knowledge of the commencement and end of the term The Law is otherwise in case of an Inquisition because a term cannot be extended without shewing the beginning and ending thereof to the end that the debtor may have the residue of the term when the debt is satisfied c. Co. l. 4. 77. b. 2. in the case of Corporations 25 Albeit a Corporation have a commencement by Charter Corporations and by consequence within memory it be expressed in their Charter that the choice of their Maior Bailifs and other principal Officers shall be by the Commonalty yet if by a long usage they have chosen them by a select number of the principal of the Commonalty or of the Burgesses although no such constitution can be shewd to warrant such election yet to avoid popular confusion such election is adjudged good in Law because it is presumed and intended that such special election which could not commence without common assent was formerly made and agreed upon Vide infra 192. 2. Co. l. 5. 12. a. in Sanders case 26 If a man hath land in part whereof there is a Cole-mine open Cole-mine and he deviseth the land to one for life or for years the lessee may digg in the mine for in as much as the mine is open at the time of the lease made and he demiseth all the land it shall be intended that his intent is here general as his demise is viz. that the lessee shall take profit of all the land and consequently of the mine within it Vide 17 E. 3. 7. And so the doubt in F. N. B. 149 c. well explained Co. l. 5. 96. b. 4. in Goodals case 27 A. seised of lands in fee by deed indented and enrolled covenants with B. that if B. shall pay to A. his heirs or assigns 100 l. such a day at such a place Assignee in Law and in fact Diversity that then A. and his heirs will stand seised of the land to the use of B. and his heirs before the day of payment A. having issue a son makes his will in writing and his wife executrix thereof and dies the wife renounceth the executorship and then takes administration In this case this word Assigns shall be only intended of the assigns of the estate of A. for he hath an estate in him assignable and the Law will never seek an assignee in Law when there may be an assignee in fact but if A. had made a feoffment in fee upon condition that the feoffee shall pay the mony to the feoffor his heirs or assigns c. there because he hath departed with his whole estate in fee and hath but a naked condition which cannot be assigned over the Law which never rejects any word if by any reasonable construction it may take effect will make construction what person shall be most apt as his assignee in Law to receive the money and these the Law adjudgeth to be his executors because they represent the person of the testator for all goods and chattels and in such case the feoffor cannot have any assignee in fact Vide 27 H. 8. 2. a. Co. l. 5. 97. a. 4. in Goodals case 28 In a special verdict all other matters shall be intended and supplied but only that Verdict special which the Iurors have referred to the consideration of the Court as it was adjudged in 30 31 Eliz. in B. R. inter Scovel Cabel and therefore in Goodales case in the Fifth Report albeit no title was there found for the defendant but was as a meer stranger yet the Court never doubted thereof but by intendment took it for granted and took only into their consideration that whereof the Iurors made doubt viz. whether the payment there were a good performance of the Condition Co. l. 5. 105. Aldens case 29 In an Ejectione firmae at the Common Law Antient Demesn is a good plea to the Iurisdiction of the Court Antient demesn because by common intendment the title and right of the Land will thereby come in debate and the plaintif shall recover the possession of the land and have execution by habere facias possessionem so also in Replevin writ of Mesn writ of Ward in accompt against Guardian in Socage c. Antient demesn is a good plea for the apparence and common intendment that the realty will come in debate the like Law is also in accompt against a Bailif because it is brought for the issues of the land which is antient demesn and therefore ought to be brought and determined in the Court of antient demesn and not elswhere c. Co. l. 6. 16. a. Collyers case 30 By intendment of Law a devise shall be for the benefit of the Devise devisee and not to his prejudice as if land of the value of 3 l per annum be devised to A. and that A. shall pay out of it 50 s. per annum in this case A. hath but an estate for life for he may pay it out of the profits of the land and is sure to be at no loss but if it be devised to B. for life the remainder to A. paying 50 s. per annum out of it In this case A. hath fee simple because after the payment thereof A. may die before he can receive satisfaction for the same out of the profits of the land and therefore such a devise shall be fee simple because the Law intends that the devise was intended for his benefit and not for his prejudice Error in popular actions 31 B. brings a plaint in the Court of Ludlow which is a Court of Record against C. tam pro Domina Regina quam pro seipso Co. l. 6. 19. b. Gregories case upon the Statute of 4 5. Ph. M. cap. 5. for exercising the trade of a woollen-weaver without having served seven years as an Apprentice c. and had judgement
Peace against another Slander containing divers great abuses and misdemeanors to the intent to have him bound to the good behaviour In this case the party accused shall not have for any matter contained in such Articles any action upon the case because he hath pursued the ordinary course of Iustice in such case provided And if actions shall be permitted in such cases they who have just cause to complain would not dare to make such complaint Co. ibid. Siâ— R ch Buckleys case for fear of infinite vexation So if a man had exhibited a Bill in the Star-chamber against another containing divers scandalous accusations albeit they were false yet no action upon the case would lie for them if they were examinable in that Court because the procéeding was in a Course of Iustice whereunto the Law giveth favour because it tends to the good of the Commonwealth See Dyer 11 Eliz. 285. pl. 37. Co. l. 4. 37. a. 2. in Tirringhams case 20 In antient time when a Lord enfeoffed another of arable land Tillage to hold of him in Socage viz. per servitium Socae the feoffée ad manutenendum servitium Socae had Common in the wasts of the Lord for his necessary Cattel that gained and compossed the land not only because that liberty was tacite implyed in the feoffment for he could not plow and compass the land without cattel and they could not live without pasture to sustain them but such Common appendant was principally given him for the maintenance advancement of tillage which is much regarded and favoured in Law because it is one of the chiefest supports of the Commonwealth so as such Common appendant is of Common right and began by operation of Law and in favour of tillage and therefore needs not prescription as it was held in 4 H. 6. 22 H. 6. which it ought to have if it were against common right Howbeit it is only appendant to the antient arable Hyde and Gaine and only for horses and oxen to plow the land and for Cows and Sheep to manure it And all this for the melioration and advancement of tillage as aforesaid And with this agrees 37 H. 6. 34. per tot Cur. and 29 H. 8. 4. Co. l. 4. 124 b. 2 in Bâ—verleys case 21 No felony or murder can be committed without a felonious intent and purpose Nam ideo dicta est felonia Non compos mentis quia fieri debet felleo animo And therefore a Mad man cannot commit felony because he cannot have a felonious intent so likewise if a feme Non compos mentis kill her husband it cannot be Petty treason Howbeit in some cases Non compos mentis may commit high treason as if he kill or offer to kill the King that is high Treason For the King est Caput et salus Reipublicae a capite bona valetudo transit in omnes and for that cause their persons are so sacred that no man ought to offer them violence and if he do he is Reus criminis Laesae Majestatis Co. l 5. 63. a 2. in the Chamberlâ—â—n of Londons case 23 The Inhabitants of a Town without any custom may make Ordinances or By-laws for the repair of the Church By-Lawes or of an High-way or any other such thing which is generally for the good of the Commonwealth and in such case the greater part shall bind all without any custom Vide 44 E. 3. 19. Also Corporations may make Ordinances or Constitutions without custom or the Kings charter for things which concern the Commonwealth as reparations of the Church common High-ways or the like Vide 8. E. 2. Assise 413. 21 E. 4. 54. 11 H. 7. 13. 21 H. 7. 20 40. Co. l. 5. 63. â— 4. 23 The Act of the Common Councel of London for bringing of Cloth to Blackwell-Hall to be searched Constitutions and the imposition of a penny for tallage upon every Cloth were adjudged lawfull constitutions because they were beneficial to the Commonwealth and not for any privat profit Constitutions 24 In 37 Eliz. 1695. The Term being appointed to be kept at St. Albons Co. l. 5. 64. a. Clerks case a Constitution was made there for the assessing of a sum of money for the preparing of Courts and other necessaries for the Term and every Inhabitant was enjoyned to pay his respective assesment on pain of imprisonment Clerk an Alderman who also consented to the assessment refused to pay his proportion and thereupon being imprisoned by the Mayor did bring an Action of false Imprisonment against the Mayor and had judgement to recover because the Constitution was against Magna Charta cap. 29. Nullus liber homo imprisonetur c. Howbeit if the Constitution had béen upon a pein of a reasonable sum of money and distress or action of debt for the recovery thereof the Mayor might have justified the distress or action because it was pro bono publico that the Town should make provision for the Term and the rather for that E. 6. who did incorporate them had granted them power to make Ordinances Albeit Corporations within time c. cannot have that privilege but by Parliament when it is pro commodo privato See Co. l. 8. 127. b. Penalties of Statutes not transferrable 25 When a Statute is made by Parliament for the publique good of the Realm Co. l. 7. 36. b. 3. in the cases of Penal Statutes the King cannot give the penalty or benefit thereof to any subject or give him power to dispence with it or to make a warrant to the Great Seal for licenses in such case to be made for when a Statute is made pro bono publico and the King as the head of the Commonwealth and the Fountain of Iustice and Mercy is by all the Realm trusted with it this confidence and trust is so inseparably annexed to the Royal person of the King in so high a point of Soveraignty that he cannot transferr it to the disposition or power of any private person or to any private use because it is committed to the King by all his Subjects for the Common good and if he might grant the penalty of one Act he may also grant the penalty of two and so in infinitum Dangerous to have London too populous 26 The Custom in London that a Foreiner shall not sell by retail Co. l. 8. 127. b. 2. in the case of the City of London was adjudged good because it was beneficial not only for the Citizens but likewise for the whole Commonwealth for that it would prevent the confluence of people from all parts of the realm to London which confluence might produce 3. great inconveniences 1. Impoverishment of all the good Towns in England 2. Depopulation of Towns in every Country 3. Destruction in the end of all trades and tradesmen in every part of the Realm Besides it might be a means to increase
the Pestilence by reason of the multitude of people and pestering the air whereby it might prove dangerous not only to the Subject but likewise to the King himself and the Great Lords who attend upon his royal person Again if London should be too populous it would become ungovernable by the Magistracy of the City and if that City which is tanquam Epitome totius regni should not be well governed all the parts of the Realm would find the inconvenience thereof whereas when that City shall be well governed all parts of the Commonwealth will be preserved in better order Lastly that City becoming too populous it will not be subject to search c. not only in prejudice of the City it self but likewise of the King and the whole Commonwealth because then fraud and deceit will encrease in all Merchandise and things vendible Plea Accord 27 Accord with satisfaction is a good plea in an Ejectione firmae Co. l. 9. 78 a. 3. Henry Petoes case for that is mixt with trespass and indeed in all actions which suppose a tort to be done where Capias and Exigent do lie there an Accord is a good plea because it redeems the body from imprisonment so as men being at liberty may go about their business which is good for the Commonwealth Co. l. 10. 108. b. 3. Lofiâ—lds case 28 If there be Lord and Tenant by Knight service Tenure and the tenant gives the tenancy to two men and to the heirs of their bodies and they die having issue their issue shall hold severally by Knight service because it is for the defence of the Lord and of the Realm Vide supra 14. Co. l. 11 54. a. The Tailers of Ipswich case 29 An Ordinance of a Corporation Corporation Ordinance that none shall exercise any trade there unless he hath served 7. years as an apprentice in the same and shall also be approved by them to be skilfull therein is not good because against the Common Law which restrained no man from exercising any trade and also prejudicial to the Commonwealth for that it puts a greater restraint upon Tradesmen than the Statute of 5 Eliz. doth ordain in as much as he ought also to be approved by them which the Statute doth not enjoyn for if he be ignorant of his trade an action upon the case lyeth for his misdoing as it did also at the Common Law before the Statute neither doth the Stat. restrain a Taylor or other Artificer retained to exercise his trade in a private house And the Statute of the 19 H. 7. strengthens not any Ordinance against the Law or the Commonwealth though allowed as that Statute ordains the allowance only discharges the penalty of 40 l. for making Ordinances against the Kings prerogative and the Commonwealth Co l. 11. 72. a. b. Magd. Coll. case 30 The King is bound by the Statute De donis though not named Statutes binding the King because it is an Act which concerns the Commonwealth and was ordained for the preservation of the possessions of the Nobility Gentry and others so the Statute of 13 Eliz. 10. made for the prevention of long leases and dilapidations of Colleges Cathedrals Hospitals c. doth bind the King albeit not named because those Corporations were trusted with their possessions pro bono publico for the use of the Commonwealth for the same reason that Act hath in all cases had a benefical and favourable construction to the prevention of all inventions and evasions Co. ibid. 76. a. 2. against the true Intention of the same Act. Co. l. 11. 86 a. 3. b. in the case of Monopolies 31 One of the Chiefest reasons Monopolies why the Monopoly of the sole making and importing of Cards and all other Monopolies are prohibited by Law is for that there are three inseparable incidents to every Monopoly against the Commonwealth 1 The price of the Commodity will be raised for he who hath the sole vendition of any commodity may and will make the price as he pleaseth And this word Monopolium is compounded of these Gréek words μόνοϲ and πωλεομαί id est cum unus solus aliquod genus mercaturae universum emit pretium ad suum libitum statuens And the Poet saith Omnia Castor emit sic fit ut omnia vendat Also it appears by the writ of ad quod damnum F. N. B. 222 that every gift or grant of the King hath this condition either expresly or tacitly annexed unto it Ita quod Patria per donationem iliam magis solito non oneretur seu gravetur And therefore every grant made in grievance or prejudice of the Subject is void Vide 13 H. 4. 14. The second Incident to a Monopoly is that after the Monopoly granted the Commodity is not made so good and merchantable as it was before for the Patentée having the sole trade regards his private benefit only and not the Commonwealth 3. This tends to the impoverishment of divers artificers and others who before by the labour of their hands in their art or trade did sustain themselves and their families in good condition and having also by that means increased their substance were fit and ready to serve the King when néed should require but by the grant of such a Monopoly they are reduced to such necessity that ever after they are constrained to live in idleness and beggary c. Munition Treasure of the King 32 Munition though unserviceable cannot be claimed as fees belonging to the Master of the Ordnance Co. l. 11. 91. b. 4. The Earl of Devons case because they were provided for the defence and safeguard of the King and Commonwealth and therefore albeit the King grant them to him and then he dies yet his executors shall not have them but shall be accountable to the King for them And for the same reason it is that no officer of the King or all of them together can ex officio issue or dispose of the Kings treasure although it be for the honor and profit of the King himself for although it be true that it is for the honor and benefit of the King that good service done unto him should be rewarded yet it ought to be rewarded by the King himself or by his warrant no by other because the treasure of the King being the ligament of Peace the preserver of the Honor and Safety of the Realm and the sinews of Warr all which do much concern the Commonwealth is of so high an estimation in Law in respect of the necessity thereof that the imbezilling of treasure trove although it were not in the Kings Chests was Treason And treasure and other valuable chattels are so necessary and incident to the Crown for the reasons aforesaid that in the Kings case they shall go with the Crown to the successor and not to the executors as in case of a common person as appears in 7
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
that a man may grant a Rent charge newly created out of Lands to a man and his Heires upon such a Condition and that in such case it shall be good because the Rent is of his own Creation but this is against the reason and opinion of Littleton Sect. 360. and also against the height and purity of a Fee simple Howbeit the examples aforesaid are to be understood of Conditions annexed to the Grant or Sale it self Condition not repugnant in respect of the Repugnancy and not to any collaterall thing As if A. be seised of Black acre in fee and B. enfeoffeth him of white Acre upon Condition that A. shall not alien black acre the Condition is good because the Condition is annexed to other Land and ousteth not the Feoffee of his power to alien the Land whereof the Feoffment is made and so no Repugnancy to the State passed by the Feoffment And so it is of gifts or Sales of Chattells reall or personall Again A man before the Statute of Quia Emptores terraum might have made a Feoffment in Fee and added further that if hee or his Heires did alien without Licence that then he should pay a Fine this had been good And it is said that then the Lord might have restrained the Alienation of his Tenant by Condition because the Lord had a possibility of Reverter so it is in the Kings case at this day because he may reserve a Tenure to himself Co. ib. 223. b 4. Co. l. 10. 38. b. 4. Mary Portingtons case Co. l. 5. 40. Sir Anthony Mildmayes case 11. If a gift in Taile be made upon Condition that the Donee c. Condition repugnant upon grant of an estate in taile shall not alien this Condition is good to some intents and void to other some for as to all those alienations which amount to any discontinuance of the Estate Taile as Littleton speaketh Sect. 362. or are against the Statute of Westminster 2. the Condition is good without question but as to a common Recovery the Condition is voyd because this is no discontinuance but a Bar and this common Recovery is not restrained by the said Statute of Westminster 2. and therefore such a Condition is repugnant to the Estate Taile for it is to be observed That to this Estate Taile there be diverse incidents First To be dispunishable of Wast Secondly The Wife of the Donee in Taile shall be endowed Thirdly That the Husband of the Feme Donee after Issue shall be Tenant by the Curtesie Fourthly That Tenant in Taile may suffer a common Recovery And therefore if a man make a gift in Taile upon condition to restraine him of any of these incidents the condition is repugnant and void in Law And it is further to be observed That a collaterall Warranty or lineall without assets in respect of the recompence is not restrained by the Statute De donis no more is a common Recovery in respect ot the intended recompence And Littleton ubi supra to the intent to exclude the Common Recovery saith Tiel alienation discontinuance joyning them together Inst pars 1. Co. 224. a. 2. 12. If a man before the Statute Do donis had made a gift to a man The like and to the Heires of his Body upon Condition that after Issue he should not have power to sell this Condition had beene repugnant and void Pari ratione after the Statute a man makes a gift in Taile the Law Tacite gives him power to suffer a common Recovery therefore to add a Condition that he shall have no power to suffer a common Recovery is repugnant and void Co. ibidem 13. If a man make a Feoffment to Baron and Feme in Fee Feoffment to Baron and Feme upon Condition that they shall not alien to some intent this is good and to some other intent it is void for to restraine an alienation by Feoffment or alienation by Deed it is good because such an alienation is tortious and voidable But to restraine their alienation by Fine is repugnant and void because it is lawfull and unavoidable 14. It is sayd that if a man enfeoff an Infant in Fee upon condition Infant that he shall not alien Co. ibid. this is good to restraine alienations during his minority but not after his full age Co. ibid. 15. It is likewise sayd Spirit Corpor. that a man by Licence may give Land to a Bishop and his Successors or to an Abbot and his Successors and add a Condition to it that they shall not without the consent of their Chapter or Covent alien because it was intended a Mortmain that is that it should for ever continue in that Sea or House for that they had it En autor droit for religious and good dses And note That whatsoever is prohibited by the intent of any Act of Parliament may be prohibited by Condition and shall cause no repugnancy Confirmation 16. A Disseisor makes a Lease for one hundred years Co. ibid. 297 a. 2. and the Disseisee confirmes the estate of the Lessee for fifty of those years this is a confirmation of the whole terme for when he had once confirmed the Lessees estate the whole estate was thereby confirmed and therefore afterwards to limit the terme to fifty years onely when the whole terme was confirmed before is repugnant and void but the Confirmation ought to have been of the Land for part of the terme so likewise might the Disseisee confirme part of the Land for part of the terme c. Vide infra 32. Habendum 17. In a Deed or other Conveyance of Land Co. ibid. 299. a. 2. when the Habendum doth either agree in substance with the Premisses or enlarge them the Habendum is good but when it abridgeth the Premisses it is repugnant and void Vide Dyer 272. 30. Repugnant covenant 18. John de Marre made a Charter to John de Burford of Fee-simple and the same day it was covenanted between them Co. ibid. 217. b. 3. 12 E. 2. Voucher 265. that John de Burford should hold the same Tenements for eight years and if Jo. de Marre did not pay to Jo. de Burford one hundred markes at the end of the terme that then the Land should remaine to Jo. de Burford and his heires In this case the subsequent Covenant was repugnant and void for first the Charter of the Fee-simple was absolute and the Covenant being made after the Charter could neither alter the absolute Charter nor upon a Condition precedent give him a Fee-simple that had a Fee-simple before A saving Repugnant 19. I.S. being seised of certaine Land in Fee Co. l. 1. 47. a. in Alton Woods case the same Land is given by Act of Parliament to the King in Fee saving the Estates Rights c. of all persons In this case the Estate of I. S the owner of the Land is not