case Recovery or other assurance to certaine persons and within a certaine time and to certaine uses are but directory and do not bind the estate or interest of the land yet if the Fine Recovery or other assurance be pursued according to the Indentures no naked averment shall be taken against those Indentures viz. that after the making of the Indentures and before the assurance it was concluded and agréed by mutual consent of the parties that the assurance should be to other uses But if any other agréement or limitation of uses be made by writing or by any other matter as high or higher then shall the last agréement stand for every contract or agréement ought to be dissolved by matter of as high nature as that by which such agréement was contracted because Nihil tam conveniens c. Outlawry reversed by error upon an Indictment 19 One Eaton was indicted in B. R. for the death of a man Eatons case 18 H. 7. Co. l. 5. 111. a. Foxleyes case whereupon an exigent was awarded into the County of Lincolne Eaton dies and was never convict or attainted yet his executors being a writ of Error to reverse the award of the exigent For in as much as the King was entitled by matter of Record it ought to be avoided by matter of as high nature Co. l. 7. 45. Kâ—rns case 20 If two claim as heirs to one man of one and the same Land No traverse without office holden of the King and one is found by office the other cannot traverse that office without first finding another office which finds him heire also Co. l. 8. 25. b. 4. The Princes case 21 The Charter of E. 3. The Duchy of Cornwal Anno 11 Regni sui by which lands were annexed to the Duchy of Cornwal being past by the consent of the Lords and Commons in Parliament retained the force of an Act of Parliament and therefore those lands cannot be disannexed but by Act of Parliament Co l. 9. 79. a. b. 12. H. 4. 23. 9 H. 7. 4. 4 H. 8. Dyer 1. c. Henry Petoes case 22 If a man be bound in a Statute to do any collaterall Act Writing discharged by writing as to make a feofment to render a true accompt or the like here accord with execution by money or any other thing is not satisfaction to save the forfeiture of the Condition for the contract being made by writing to performe such a collateral Act it cannot in that case be altered without writing But if a man by contract or Assumpsit without Déed be to deliver a horse or to build an house or to do any other collaterall thing there money may be paid by accord in sasatisfaction of such Contract for as a Contract upon consideration may begin by parol so by accord by parol for any valuable consideration it may be dissolved Co. l. 10. 86. b. 4 Leonard Loveis case 23 Vses and Powers in contingencie and possibility may be by mutual assent of the parties revoked and determined for Uses and powers revoked c. as they may be raised by Indenture So by proviso or limitation annexed unto them in the same Indenture they may be extinguished and destroyed either before or after their being Co. Inst pars 1 115. a. 3. 24 Albeit a man cannot prescribe or alleadge a Custome against a Statute A prescription saved because it is matter of Record being indéed the highest proofe and matter of Record in Law yet a man may prescribe against an Act of Parliament when his Prescription or Custome is saved or preserved by another Act of Parliament c. Dyer 25. b. 160 28 H. 8. 25 A man is bound by Indenture to pay a summe of money Payment no plea without an acquittance and in an action of debt upon that Déed the Defendant saith he hath paid the summe but sheweth no acquittance In this case the plea is not good for this Indenture is like a simple Obligation where payment is no plea without an acquittance It is otherwise where the Obligation hath a Condition per Mountagu Vide suprà 6. Co. Inst pars 1. 131. a. 4. 26 By the Statute of 13 R. 2. 16. Protection If after a protection is allowed by Innotescimus the party stay in the Country without going to the Service for which he was retained above a convenient time after he hath such protection or repaire from the said Service upon information thereof to the Lord Chancellor he shall repeal such protection by another Innotescimus Howbeit such a protection shall not be avoided by a bare averment of the party in that case because the Record of the protection must be avoided by a matter of as high a nature 28 Things grounded upon an evil void beginning cannot have good perfection Co. Inst pars 1 19 a. 4. 30 E. 1. Form 65. Temps E. 1. 1 Before the Statute of West 2. cap. 1. Alienation by tenant in tail before issue no barre to the donor Alienation by the Donée in taile after issue had did barre the Donor of his reversion but if he had aliened before issue had and had after had issue although that alienation would have barred the issue because he claimed a Fée simple yet in that case if the issue had died without issue Dower of a Ibid. 62. 19. E. 2. Form 61. Plowd 246. Co. 7. 35. Nevils case Co. Inst pars 1 35. a. 3. the Donor might re-enter for that he aliened before any issue at what time he had no power to alien to barre the possibility of the Donor 2 Tenant for life of a Carve of land the reversion to the father in fée reversion ex assensu patris not good the sonne and heire apparent of the father endoweth his wife of this Carve by the assent of the father the Tenant for life dieth the husband dieth here the reversion was a tenement in the father and yet this is no good endowment ex assensu patris because the father at the time of the assent had but a reversion expectant upon a Fréehold whereof he could not have endowed his own wife and albeit the Tenant for life died living the husband yet quod initio non valet tractu temporis non convalescet â—imony makes the Presentation c. void 3 A Villein at this day purchaseth an Advowson in fée Co. ibid. 120. a. 2. the Church becomes void the Lord for 100 l. given by A. B. Clerke presents him to the Church and his Clerke is admitted instituted and inducted yet this gaineth not the Advowson to the Lord for by the Statute of 31 El. cap. 6. the presentation admission institution and induction in that case are made void and not onely voidable as they were before the Statute And so it is also if any other on the behalfe of A. B. had given or contracted with the Lord in
In that case although the Habendum be of a lesse estate then is mentioned in the premisses yet the Habendum shall stand as if land be given to a man and his heires Habendum for yeares here to the Fee simple limited in the premisses it is requisite to have Livery and Seisin and untill Livery be had nothing passeth but an estate at will if the Deed should go no further but by the Habendum for yeares the estate takes effect immediately upon the delivery of the Deed although Livery of Seisin be never given Co. l. 4. 61. Porfe and Hemblings case 2 R. 2. Attornment c. 24 A Feme Sole makes a Lease for life rendring rent Feme Sole Attornement and after by her Deed grants the Reversion to another and after and before Attornement marries with the Grantee here this mariage was not a counter-mand of the Attornement no more than if she had married with any other stranger because in that case when the Feme by her Déed sealed and delivered had granted the reversion to another that grant took such effect against her selfe that she could not by any words which she could use counter-mand it before or after the taking of the Baron Co. l. 4. 70. b. 4. â—indes case 25 If a man bargaine and sell lands to another by Deed indented Fine and Bargaine and Sale and also levy a Fine of the same lands unto the Bargainee and after the Deed is inrolled according to the Statute In this case the Grantee shall be in by the Fine and not by the Deed inrolled for when the Fee simple past by the Fine to the Conusee and his heires the inrollement of the Deed indented afterwards cannot devest and turne the estate out of him which was absolutely established in him by the Fine for then whereas he was in before in the per he shall be now in the post which cannot be And when the Common Law and Statute Law concurre the Common Law shall be preferred Co. l. 4. 89. b. 4. Druries case Co. ibid. 11â— a. Actons case 26 When a Countesse retaines two Chaplains A Countesse but two Chaplains those two are each of them capable of a Dispensation by force of the Statute of 21 H. 8. cap. 13. but when she hath so retained two the Statute is executed for she cannot have more than those capable of a Dispensation and the retainer of a third in the life time of the two first cannot devest the capacity of Dispensation which was at first vested in them by their retainer to make the third capable of a Dispensation within the Statute albeit he should survive both the first because the retainer had an evil commencement to take benefit of the Statute for although a Countesse may have as many Chaplains as she pleaseth at the Common Law yet she can not have more than two capable of a Dispensation by force of the Statute Presentee first and second in E 6 and Qu. Eliz. and Qu. Maries time 27 If two have Title to present by turne Co l. 5. 10â— Winsors case and the one presents his Clerke who is Admitted Instituted c. and after is deprived for crime or heresie c. yet he shall not present againe but this shall serve for his turne So if he present mere laicus which was Admitted Instituted c. although he be declared by sentence to be incapable and therefore void ab initio yet because the Church was full untill the sentence declaratory came that shall serve for his turne because it was but voidable as in the case of Littleton if the Lord marry his ward within age of consent and after he disagree unto it and so was no mariage ab initio yet he shall not marry him afterwards So 27 H. 6. Gard 118. if the Guardian marry his Ward and after they are divorced causa precontractus yet he shall not have the mariage of him againe But when the Admission and Institution are meerly void then without question that shall not serve for a turne 23 Eliz. Dyer Pl. ultimo as if his Presentee had been Admitted Instituted and Inducted but had not subscribed to the Articles c. according to the Statute 13 El. by which in such case the Admission Institution and Induction are all void c. Likewise where two were to present by turne and one presented in E. 6. time his Clerke The principal case in Winsors case who in Queen Maries time was deprived by sentence and then the other presented his Clerke who in 1 Eliz. was also deprived by sentence and by the same sentence the first Presentee was restored and after died in this case the Patron of the second Presentee shall not loose his turne For although the second Presentee was person for the time to all purposes and the first Presentee during the first deprivation was not Incumbent yet when the second sentence came the first Presentee was Incumbent againe by force of his first Presentation Admission c. and there needed no new Presentation c. and therefore when this first Presentee dies who was then in course the last Incumbent the Patron of the second Presentee must needs present in the next turne but if the first Presentee had died before the second sentence or had not reversed the first sentence then the Patron of the last Presentee had enjoyed his turne and could not have presented againe Tender of money c. 28 As concerning the tender of money upon a Mortgage Bond Co. l. 5. 114. b. 2 Wades case c. upon a certaine day therein limited although the last time of payment of the money by force of the Condition be such a convenient time before sun-set as that the money may be told before the Sun be set yet if tender be made unto him that ought to receive it at the place specified in the Condition at any time of the day and he refuse it the Condition is saved for ever and the Mortgager or Obliger need not to make tender of it againe at the last instant of the day as aforesaid for by the expresse letter of the Condition the money is to be paid upon the day indefinitely and the Law assignes the last instant to the end neither of the parties should lose their labour in attending the payment c. Plea of non est â—actum or â—udgement si â—ction 29 In all cases when a Deed is onely voidable at the time of the Action brought as for Infancy Dures Co. l. 5. 119. Whelpdales case or the like the Defendant ought to plead Judgement si Action and not non est factum 1 H. 7. 15. So also when the Déed is void by Act of Parliament he ought not to plead non est factum but in construction of Law the Deed is to be avoided by special pleading taking advantage of the Act of Parliament for albeit the Act saith the Obligation
be in better condition then the subject from whom the claimes and in that case shall have the priority and so shall his grantée also c. as is holden in 24 E. 3. 65. Fitz. tit gard 27 47. Co. l. 5. 91. b. 3. in Semaynes Case 39 In all cases when the King is partie Sheriffe 〈◊〉 open dooreâ— the Sheriffe if no doore be not open may after notice given of the cause of his coming request made to have the door opened break open the house of the partie either to take him or to make other execution of the Kings process if he cannot otherwise enter into it but so it is not in the case of a subject c. So for felonie or suspicion of felonie the Kings officer may breake the house to take the felon because in every felonie the King hath an Interest and where the King hath Interest Felonie the writ is Non omittas propter aliquam libertatem and therefore the libertie or priviledge of an house shall not hold out against the King besides it concernes the Common Wealth that felons be apprehended and in that respect also the King hath a special Interest being the head of that body c. Co. l. 5. 104. a. in Bakers case 40 T. 42 E. in B. R. in Ejectione firmae it was resolved Demurre that if the Plaintiffe shew in evidence any matter in writing Record or Sentence in the Ecclesiastical Court whereupon Question in Law may rise and the defendant offers to demurre c. the Plaintiffe cannot refuse to joyne in demurrer unlesse he will waive his evidence so if the Plaintiffe produce witnesses and the defendant admit their testimonie to be true he may demurre c. So also may the Parliament demurre mutatis mutandis Howbeit upon evidence in an information for the King his Council shall not be compelled to demurre But in that Case the Court may direct the Iury to find the special matter and thereupon they shall adjudge the Law as appeares in 34 H. 8. Dier 53. And this is by reason of the Kings prerogative who may also waive the demurrer and take issue at his pleasure Nota bene Co. lib. 5. 106. a. 4. 108. b. 1. in Sir Henry Constables case 41 Originally the Common Law gave unto the King all such things as were In nullius bonis as Wrecke viz. Goods Things 〈◊〉 liuâ— boâ—i quae naufragio ad terram appelluntur Flotsan viz. When the Ship is drowned or otherwise perished and the Goods flote upon the Sea Wrecke Jetsam as when the Ship is in danger to be drowned and to dis-burden the Ship the Goods are cast into the Sea and after notwithstanding the Ship perisheth Estrayers Lagan vel potius Figan as when the Goods so cast out are so ponderous that they sinke and the Mariners to the end they might find them again fasten a piece of Corke or a Boye to them that will not sinke and therefore this séemes to be called Ligan à Ligando It gave also to the King Estrayes which Bracton calles Animalia vagantia and others Animalia vacantia quia Domino vacari debent Also treasure trove and the like Because by the Rule of the Common Law when none could claime a property in any Goods the King was to have them by his prerogative And therefore Bracton saith Sunt alia quaedam quae in nullius bonis esse dicuntur sicut Wreccum maris Bract. l. 3. c. 3. Grossus Piscis sicut Sturgio Balena aliae res quae Dominum non habent sicut animalia vagantia quae sunt Domini Regis propter privilegium Mare Clausum And note that the King shall have Flotsan Jetsan and Lagan by his prerogative as well as wrecke Albeit they be in or upon the Sea for the Sea is of the Kings Ligeance and parcel of this Crowne of England as it is holden in 6 R. 1. protection 46. and Britton cap. 33. agrées well with the opinion of Bracton that wrecke c. are things in nullius bonis and come into the hands of the subject Originally by Kings grant his words are these Britt c. 33. Et ausi purchas lou per franchise grantee par nous de choses trovves en nulluy biens si come de wrecke de neer bestes estrayantes of Conies Levres pessons Fesants Pertris autres Bestes sauvages par franchise de aver wrecke de meer trouve en son soil waife estray trouve en son fee garrennes en ses demesnes terres c. Lady Peere â—rest 42 A Countesse by descent or mariage cannot be arrested for debt or trespas 1 In respect of her dignity 2 The Law presumes Co. l. 6. 52. b. 3. in the Case of Isabel Countesse of Rutland that she hath sufficient in Lands and Tenements so hereby to be distrained for albeit in respect of her sex she cannot sit in Parliament yet she is a Péere and shall be tried by her Péeres as appeares of 20 H. 6. cap. 9. which was nothing else but a declaration of the Common Law So it is also of a Baron that is a Péere of Parliament 11 H. 4. 15. In homine repligiando against the Lady Spencer it appeares that the said Lady was a Peere of the Realme â—pon account Lady not exâ—ined 43 In 3 H. 6. 48. Co. ibid. 53. a. 1. A Writ of debt upon arrerages of accompt was brought by the Lady of Aburgavenie against another the Defendant pleads Rien luy doit and is ready to make his Law and prayes by force of the Statute of 5 H. 4. cap. 8. that the Parliament might be examined which Act is generall viz. that examination shall be made which is alwayes intended upon oath And there Cokein who gave the Rule said La Dame d'Aburgavenie est un Peere del Realme ne sera bien fait de luy faire venir d'estre examine Car par mesme la reason nous Dames faire venir chescun Duke on Countee d'Angliterre Rolfe Serjeant purquoy nou Sr. Le dit Statute est general est fait pur chescun home haut base A que Cokein dit le ley voit over diversity pur enter Seignior ou Dame c. auter Common Person By which book it may be observed that a Lady which is but the wife of a Baron is a Péere of the Realme and is in equipage as to Nobility and priviledges incident to their dignities with Dukes â—duo Juror Earles c. 44 In 48 E. 3. 30. Co. ibid. 53. a. 3. Sir Ralfe Everden Knight brings a writ to the Chancery and also a writ of the Privy seale to the Iustices rehearsing that he was a Baron and commanding them to discharge him of his oath in juratis accessis recognitionibus quibuscunque because the Barons ought not to be sworne upon Inquests and Recognitions
appendant in twenty acres of land enfeoff B. of parcell thereof this Common shall be apportioned and B. shal have Common pro rata and if he be invested shall make a speciall prescription for his Common It is otherwise of Common appurtenant which is against common right for by purchase of part of the land in which c. the whole common is extinct Co. l. 6. 58. a 4 Bredimans case Co. ibid. 58. b. 3. 7. Lessee for years pays a rent seck Seisin of Reâ—seck by the Lessee for years not good this is not such a seisin as is required in an Assise against the tenant of the frank tenement and one of the reasons alledged for this resolution is because a rent seck is against common right and therefore shall not be favoured in Law but the seisin ought to be given by the tenant of the frank tenement or seisin ought to be made or given by all the ter-tenants that have interest in the land out of which c. because they are against common right and therefore not favoured in Law Co. l. 8. 105. b. 3. in John Talbots case 8. In most cases where the Lord purchaseth part of the tenancy especially if the tenant hold by an Intire service the whole service is extinct Homage and fealty remaiâ— howbeit although the Lord purchase parcell of the tenancy Homage and Fealty shall remaine for the residue because they are due of common right Co. l. 8. 118. a. 2. in Doctor Bonhams case 9. When an Act of Parliament is against common right and reason Acts against common rigâ— void or repugnant or impossible to be performed the common Law doth controll it and adjudgeth such an Act voyd And therefore in 8 E. 3. 30. Thomas Tregors case upon the Statute of Westm 2. c. 38. and Artic super Car. cap. 9. Herle saith Some Statutes are made against Law and right which those that made them perceiving would not put them in execution The Statute of Westm 2. cap. 21. gives a Writ of Cessavit heredi petenti super heredem tenentem super eos quibus alienatum fuerit hujusmodi tenementum And yet where in 33 E. 3. tit Cessavit 42. there were two Coparceners Lords and Tenant by fealty and certaine rent the one Coparcener had issue and dyes the other and the Neece could not joyne in a Cessavit because the heire could not have a Cessavit for the Lessee in the time of her Ancestor F. N. B. 209. f. and with this accords Plowd Com. 110. and the reason hereof is because in Cessavit the tenant before judgment may render the arrerages and damages c. and retaine his Land and this he cannot do when the heire brings Cessavit for the Lessee in the time of his Ancestor for the arrerages occurred in the life of his Ancestor belong not to him and thereupon because the sayd Act was against common right and reason the common Law as to that point adjudged it voyd Vide plus ibidem Tâ—â—hes due of common right 10. Quota pars viz. decima pars which we call dismes or tythes is an Ecclesiasticall Inheritance collaterall to the estate of the Land Co. l. 11. 13. a. 3. in Bridle and Nappers case which cannot be either extinct or suspended by unity of possession because they are due of common right And therefore if a Prior having a Parsonage impropriate had infeoffed a Lay-man of part of the Glebe yet he should have had tythes against his owne feoffment as it is held in 42 E. 3. 13. a. Vide Hob. 107. The Bishop of Carliles case Certainty in a Leet 11. The Lord of a Leet cannot justifie to distraine for the certainty of the Leet because it is collaterall and against common right Co. l. 11. 44. 2. 45. 2. in Rich. Godfreys case and for the private profit of the Lord of the Leet which the Lord cannot have without prescription and therefore as he ought to prescribe in the principall so ought he to prescribe in the distresse Howbeit although for an amerciament in a Court Baron the Lord cannot distraine without prescription Vide 44 E. 3. 13. yet for a Fine and all amerciaments in a Court Leet distresse is incident of common right And therefore if the certainty be not duely payd the Deciver or Capitall pledge that collects it may first be amerced and then distrained for his negligence Tenant at wil. 12. If Lessor upon a lease at will reserve an annuall rent Litt. S. 72. Co. Inst pars 1. 57. b. he may distraine for the rent arreare or have an action of debt for it at his election because power of distresse is in that case given him of common right and so is also the action â—galty de partition 13. Where Coparceners make partition by Parol Litt. S. 252. Co. ibid. 169. b. and for egalty of partition one of them is to have a rent out of the land in this case shee may distraine for the rent arreare of common right Assize 14. In an Assise of Novel disseisin for Land Dyer 84. a. 81 7. E. 6. or since the Statute of 32 H. 8. 7. for Tithes the ter-tenant need not be named in the Count but onely the disseisor It is otherwise in an Assise of Rent-charge or seck because they are things against common right 145. And therefore it suffereth things against principles of Law rather then the party should be without remedy A speciall case of an entail 1. John de Mandevile by his Wife Roberge had issue Robert and Mawde Michael de Morvile gave certaine Lands to Roberge Co. Inst pars 1. 26. b. 2. and to the heires of John Mandevile her late Husband on her body begotten and it was adjudged that Roberge had an estate but for life and the fee-taile vested in Robert heires of the body of his Father being a good name of purchase and that when he dyed without issue Mawde the Daughter was tenant in taile as heire of the body of her Father per formam doni and the Formedon which shee brought supposed Quod post mortem prefatae Robergiae Roberti filii heredis ipsius Johannis Mandevile heredis ipsius Johannis de prefata Robergia per prefatum Johannem procreat prefatae matildae filiae predict Johannis de prefato de Robergia per prefatum Johannem procreatae sorori heredi predicti Roberti descendere debet performam donationis predictae And yet in truth the land did not descend unto her from Robert but because shee could have no other Writ it was adjudged to be good In which case it is to be observed that albeit Robert being heire tooke an estate by purchase and the Daughter was no heire of his body at the time of the gift yet shee recovered the land per formam doni by the name of Heire of the body of her Father which indeed her brother was
ceremony is requisite to the perfection of the Estate and to the Estate limited by the Habendum nothing is requisite to the perfection and essence thereof but only the delivery of the Deed there albeit the Habendum be of a lesse Estate then is mentioned in the premisses yet the Habendum shall stand and the premisses are repugnant and void as it fell out in the principall case in Baldwins case for A. covenants grants and lets to farm to B. and C. and to the heires of C. to have for ninety nine years c. here the Estate for yeares limited by the Habendum took effect by the delivery of the Deed whereas the Estate mentioned in the premisses could not take effect without Livery and for that cause was adjudged repugnant and void Indictment repugnant 30. Where a Wound was given the fourth of August Co. l. 4. 42. b. 2. Heydons case and the party dyed the nineteenth of December after An Indictment against A. and B. as Abbettors to the Felony was drawn in these words Et praed A. B. tempore feloniae murdri praed fact viz. 4 Aug. c. Felonice fuerunt presentes c. ad feloniam murdrum praed in forma praed faciend And this Indictment as to A. and B. the Abbettors was adjudged insufficient for the Repugnancy because no Felony was committed untill the death of the party and none shall be adjudged a Felon by relation which is but a Fiction in Law The like 31. In an Appeale of Murder Co. l. 4. 42. b 4. Humes case the Wound was layd in the Count to be given at Weetwood and the death to be at Westliborne and then he concludes Et sic praed L.O. apud Weetwood praed modo forma praed the said A. H. Felonice c. Murdravit And it was resolved that the Count was repugnant and insufficient for it cannot be said that he murdred him at the place where the wound was given but where the party dyed The like is adjudged in Wrotes case Co. l 4 a 4. Confirmation 32. A Prebend leases for seventy yeares Co. l. 5. 81. a. 4. Foords case the Deane and Chapter being the Patron confirme dimisionem praed in the Forme aforesayd for one and fifty yeares and no farther this confirmes the entire Terme for after the Terme is confirmed one and fifty yeares are repugnant and void It had been otherwise if they had recited the Lease for seventy yeares and then confirmed the Land for one and fifty yeares vide supra 16. Conditions repugnant 33. It hath beene sayd Co. l. 6. 42. b. 4. Sir Anthony Mildmayes case If a man make a gift in Taile upon Condition that he shall not make Feoffment this is a good Condition but if the Condition be that he shall not make a Charter of Feoffment this is not good for this without Livery as Littleton saith fo 15. amounts but to a Tenancy at Will which Tenant in Taile cannot be restrained to do So if a man make a gift in Taile upon Condition that he shall not make a Lease for his owne life this is void and repugnant for when a man makes a gift in Taile which is an Estate of Inheritance and by possibility may continue for ever and thereby makes the Donee the Principall owner of the land he cannot restraine him from doing any lawfull Act or making any Estate which is no Wrong to any and which by the Law he may lawfully do or make Howbeit if a man make a Lease for Life or Yeares with Condition that he shall not alien or demise this is good because the Lessor hath the Reversion whereby he hath power to restraine the Lessee so if a man demise a Copy-hold Mannor for Life or Yeares with Condition that hee shall make no voluntary Grant of any Copy-hold Lands according to the Custome of the Mannor this is good but if a man grant in tail a Copy-hold Mannor with such a Condition the Condition is void for the repugnancy Co. l. 6. 61. a. 3. Gatewards case 34. It was alleadged that the custome of the Towne of S. was Common that every Inhabitant within it had used c. to have Common by reason of Commonancy within a place in the Towne of H. which was another Towne and it was adjudged insufficient for the repugnancy Co. l. 7. 25. a. 2. Buts case 35. A. seised of black Acre in fee Rent Avowry and possessed of white Acre for years grants a Rent-charge to B. for life out of both of them A. distrains and avows in white Acre concluding thus in his Plea Virtute cujus he was seised in dominico suo ut de libero tenemento pro termino vitae suae and the Avowry was adjudged insufficient and repugnant because he could not have a Frank-tenement out of a terme for years Derivata potestus non potest esse major primitiva Max. 26. Co. l. 8. 118. a. 2. in Doct. Bonhams case 36. When an Act of Parliament is against common right and reason Cessavit Act of Parliament repugnant or repugnant or impossible to be performed the common Law shall controle and adjudge such an Act to be void as the Statute of West 2. cap. 21. gives a Writ of Cessavit heredi petenti super heredem tenementum super eos quibus alienatum fuerit hujusmodi tenementum and yet it is adjudged in 33 E. 3. Tit. Cessavit 42. that the Heire should not have a Cessavit The case was this there were two Coparceners Lords and Tenant by Fealty and certaine Rent the one Coparcener hath Issue and dyes in this case the Aunt and the Neice shall not joyne in a Cessavit because the heire cannot have it for the Cesser in the time of her Ancestors in regard the arrearages do not belong to her c. See F. N. B. 209. F. Pl. Com. 110. besides in a Cessavit the Tenant before Iudgement may render the arrearages and damages c. and retaine the Land and that cannot be done when such an heire brings a Cessavit for the Cesser in the time of his Ancestor because the arrearages then incurred belong not to him as aforesaid Co. l. 8. 127. a. 1. The City of London case 37. Where there is a Market overt and correction in any Prescription repugnant a Prescription to sell commodities in private houses or other places out of the open Market is repugnant and void because so the Seller may use deceit and is not subject to search Qui male agit odit lucem omnia delicta in aperto leviora sunt See 11 H. 6. 19. The Prior of Dunstables case Co. l. 9. 58. b. 3. William Aldreds case 38. When a man hath lawful easement or profit by prescription time out of mind another Custome which is also time out of mind Prescription for a way cannot take it away because that were repugnant
that two persons c. shall be one officer and therefore these words Conjunctim et divisim et alterius eorum diutius viventis serve only to this purpose that 〈◊〉 survivor shall be one of the persons unto whom the other shall be 〈◊〉 A fraudulent grant 8 The Master and Fellows of Magdalen College in Oxford having an intent to grant a Messuage in London to Benedict Spinola and his heirs because they were prohibited by the Statute of 13 Eliz. 10. Co. l. 11. 73 b. 1. in Magdalen College case to grant it immediately to him made a grant thereof first to the Quéen and her successors upon condition contained in the same grant that the Queen within 3. moneths should grant the said Messuage to Spinola and his heirs whereby it was endeavoured that the Queen who was the fountain of Iustice should be an Instrument of Injury and tort and of the violation of a pious and excellent Law which she her self for the maintenance of Religion the advancement of Liberal Arts and Sciences the sustenance of poor people and other publique uses had made And whereas the said Master and Fellows were seised of the said Messuage to them and their successors for ever in jure Collegii pro bono publico and to pious and charitable uses thereby it should be converted to the privat use of Spinola and his heirs for ever And so as the Statute of Carlile hath it in 35 E. 1. Quod olim in usus pios ad divini cultus augmentum caetera opera pietatis charitative fuit erogatum nunc in sensum reprobum est conversum which also the Poet well reprehends fuit haec sapientia quondam Publica privatis secernere sacra profanis Co. l. 11. 87. a. 2. in the case of Monopolieâ— 9 The Monopoly of the sole making and importing playing Cards was damned Monopolies because albeit it was pretended by the preamble of the Patent to be for the good of the Commonwealth which was indéed the Quéens intent when she granted it yet it was apparent to be very prejudicial thereunto and meerly intended to be imployed for the privat benefit of the Patentée the Queen being thereby deceived in her grant and the Commonwealth more abused than before Dyer 60. a. 21. 36 H. 8. 10 A Member of Parliament is free from arrests of his person A Member of Parliament because the King and all his Realm having an interest in his person for the dispatch of the publique affairs of the Commonwealth it is reason that the privat commodity of any particular man should not in such case be regarded and the rather for that such arrest is no discharge of an excution but that after the Parliament he may be taken again thereupon 202 Minime mutanda sunt quae certam habuerunt interpretationem Vide Max. 201. per tout Co. Inst pars 1. 364. b. 4. Co. ibâ—d 186. a. 1. 1 Littleton at the beginning of the Chapter of Warranty Communis opinio intending to distinguish warranty into the three several kinds thereof Lineal Collateral and that which begins by disseisin the better to confirm that distribution saith that it is Commonly said there are 3. such kinds of warranty whereby it may be observed that Communis opinio is of Authority and stands with the Rule of Law A Communi observantia non est recedendum Vide Max. 204. 1. Co. ibid. 383. b. Littl. §. 733. 2 The word warrantizabimus doth only create a warranty Warrantizabimus for so hath that word of Art been alwayes interpreted Neither ought there to be any other word though it may signifie the same thing in substance used for warranty And therefore neither Acquietabimus or Defendemus or any other word of the like signification will do it The reason why the Law hath rather fixed upon that word though barbarous than any other seems to be 〈◊〉 â—void uncertainty and critical cavils and disputes about the significaâ—â—on of words And as Ego haeredes mei warrantizabimus c. creates a warranty in Latin so I and my heirs shall warrant in English creates a warranty also Co. l. 6. 43. â— 4. in Sir Anth. Mildmayes case 3 It was the intent of the Statute of 27 H. 8. 10. Uses as appears by the preamble to restore the antient Common Law and to extirpate and extinguish all subtil inventions imaginations and practises of Vses which had introduced many mischiefs and inconveniences mentioned in the same preamble And this was very good and necessary for the Commonwealth for the Common Law hath Rules to direct the estates and inheritances of lands which are certain and infallible And therefore it is without comparison better and much more safe to have estates and inheritances directed by those certain Rules of the Common Law which hath been an antient true and faithfull servant to this Commonwealth than by the uncertain imagination and conjecture of any of these new inventors of Vses without any approved ground of Law or Reason Primet seisin 4 Tenant in Chief having issue a son Co. l 6. 77. a. 3. in Sir Geo. Carsons case covenants to stand seised to the use of his niece the son dies In this case the King shall not have primer seisin And two of the chiefest reasons which induced that resolution was because the experience of the Court of Wards had been alwayes so and for that a great number of the subjects which were in peace would be vexed and molested if the Common received opinion should be changed The old Laws best 5 Interroga Pristinam generationem Co. l. 7. pars 1. 3. b. 3. in Calvins case investiga patrum memoriam Iob 8.8 Hesterni enim sumus vita nostra sicut umbra supra terram We are but of yesterday and therefore had need of the wisdom of those that were before us and had been ignorant if we had not received light and knowledge from our fore-fathers Our dayes also upon earth are but as a shadow in respect of the old and antient dayes past wherein the Laws have been by the wisdom of the most excellent men in many successions of ages by long and continual experience the trial of right and truth fined and refined which no one man being of so short a time albeit he should have in his head the wisdom of all the men in the world in any one age could ever have effected or attained unto And therefore it is optima regula qua nulla est verior et firmior in Jure Neminem oportet esse sapientiorem legibus No man ought to take upon him to be wiser than the Laws which have been received and approved by men of the greatest wisdom in all former ages Acts of Parlament 6 Albeit an Act of Parliament be thus expressed Co l. 8. 20. b. 3. in the Princes case Dominus Rex statuit c. as there are many
performe the effect or consequence of a thing shall not have the thing it selfe fol. 104 XXXVI Non officit Conatus nisi sequatur effectus fol. 107 XXXVII Acta exteriora indicant interiora secreta fol. 108 XXXVIII Inutilis Labor sine fructa non est effectus Legis e contr fol. 110 XXXIX Lex non Praecipit inutilin fol. 112 LX. Debile Fundamentum fallit opus e contr fol. 113 LXI Things incident are adherent to their Superiors or Principalls fol. 127 LXII Quod tacite intelligitur de esse non videtur fol. 137 LXIII Things by reason of another are in the same plight fol. 141 From personall things LXIV Personall things cannot be done by another fol. 150 LXV They cannot be granted or transferred over as matters of pleasure ease trust and authority fol. 153 LXVI They being once suspended or discharged for a time are for ever after Extinct fol. 154 LXVII They dye with the person fol. 155 LXVIII Things do enure diversly according to the diversity of the time fol. 157 LXIX Quod prius est tempore potius est jure fol. 159 L. According to the diversity of the same person fol. 160 LI. According to the diversity of severall persons fol. 162 LII Relation is of great force in Law fol. 165 LIII Verba posteriora propter certitudinem addita ad priora quae rertitudini indigent sunt referenda fol. 167 LIV. No man can do an Act to himself fol. 168 LV. The Law favoureth Privity fol. 172 LVI Equall things cannot drown one another e contra fol. 190 LVII Things are to be construed secundum aequalitatem rationis fol. 190 LVIII In quo quis delinquit in eo de jure est puniendus fol. 202 LIX Omne Majus Continet in se minus fol. 206 LX. Additio probat minoritatem fol. 211 LXI A matter of higher nature determineth a matter of lower nature e contra fol. 212 LXII The more worthy thing draweth unto it things of less worthiness fol. 215 LXIII Accessarium sequitur Principale fol. 218 LXIV Things accessary are of the nature of the Principall fol. 226 LXV A mans one words are void when the Law speaketh as much or otherwise fol. 231 LXVI Expressio eorum quae tacite in sunt nihil operatur fol. 235 LXVIJ Parte quacunque integrante sublata tollitur totum fol. 236 LXVIJJ Ex tota materia emergat Resolutio fol. 238 LXJX Partes simul sumptae componant totum totum comprehendit suas partes fol. 241 LXX Intire things cannot be severed fol. 242 LXXI Argumentum a Divisione est fortissimum in lege fol. 260 LXXII Generalls must go before and the specialls must follow after fol. 261 LXXIII The more worthy shall be set before the lesse worthy fol. 261 LXIV Sicut natura non facit saltum Ita nec Lex fol. 263 LXXV A digniori fieri debet Denominatio Resolutio fol. 265 LXXVI The Law requireth decency and order fol. 267 LXXVII Negatio Conclusionis est Error in Lege fol. 268 LXXVIII The Law respecteth the Bonds of Nature fol. 268 LXXIX Nemo praesumitur alienam posteritatem suae praetulisse fol. 285 The Law LXXX The Law esteemeth and judgeth of all things according to their nature and quality fol. 286 LXXXI In persons the Law looketh at the Excellency of some and giveth them singular priviledges above others as to the King Queen Noble men and Peers of the Realm c. fol. 292 LXXXII The Law giveth greater priviledges to men then to women fol. 313. and LXXXIII It tendreth the weakness and disability of other persons as of those out of the Realme Feme Coverts Enfants c. fol. 313 LXXXIV It tendreth the ignorance of men unlettered fol. 322 LXXXV It favoureth strangers that are neither parties nor privies fol. 323 LXXXVI Res inter alios acta alteri nocere non debet sed quandoque prodesse potest fol. 327 LXXXVII Nemo punitur pro alieno delicto fol. 336 LXXXVIII The Law favoureth things done in anothers right fol. 338 LXXXIX It disfavoureth other persons as Villains Outlawes Exiles Aliens and especially Aliens Enemies fol. 343 XC How the Law tendreth Ages fol. 348 XCI The Law in things respecteth every thing according to worthiness fol. 250 The Law XCII It respecteth life and liberty most and the person above the possessions fol. 353 XCIII it respecteth things in the realty more then those in the personalty fol. 359 XCIV It respecteth Freehold and Inheritance more then it doth Chattels fol. 362 XCV It respecteth matters of Record more then other transactions fol. 368 XCVI It respecteth Conveyances by Livery and which pass Estates of the land then those that pass by Grant or are belonging to or issuing out of land fol. 371 XCVII It favoureth a matter in the right more then a matter in possession fol. 373. yet XCVIII It favoureth possession where the right is equall fol. 375 XCIX It respecteth matters of profit and Interest largely of pleasure skill trust authority and limitation strictly fol. 376. and C. Therefore these may be Countermandants so cannot those fol. 381 CI. It respecteth matter of substance more then matter of circumstance fol. 382 yet CII For memory and solemnity substances are to be exprest under circumstances fol. 393 CIII It respecteth things executed and done more then Executory and to do c. fol. 395 CIV Possibility of things fol. 403. and CV Therefore nothing to be void which by possibility may be made good fol. 406 CVI. Id certum est quod certum reddi potest fol. 408 CVII Res non per se invicem sed per pecuniam estimantur non pecunia per res fol. 411 The Law CVIII It favoureth mutuall recompence fol. 411 CIX De minimis non Curat Lex fol. 418 CX It yeildeth favour in actions when there is no damage of them 1. Necessity fol. 420 CXI 2. Conveniency fol. 428 CXII 3. Conformity fol. 429 CXIII 4. Colour fol. 431 CXIV It prizeth the Acts of God and of the Law more then those done by the party fol. 432 CXV Vtique fortior est dispositio Legis quam hominis fol. 446 CXVI It reputeth that a man will deal for his own advantage best fol. 153 and CXVII Therefore it beleiveth against the party whatsoever is to his prejudice fol. 459 CXVIII When severall remedies are given the party to whom the Law giveth them hath election which he will take fol. 473 CXIX Cujus est divisio alterias est Electio fol. 478 CXX Nemo prohibetur pluribus defensionibus uti fol. 479 CXXI Consensus tollit Errorem fol. 481 CXXII Volenti non fit injuria fol. 482 CXXIII Quilibet potest renunciare juri per se introducto fol. 483 CXIV Omnis Ratihabitio retro-trahitur mandato seu licentiae aequiparatur fol. 485 CXXV Nemo tenetur accusare seipsum fol. 486 CXXVI Nec se infortuniis periculis exponere fol. 487 The Law CXXVII
Countenanceth things done more in the time of Peace then in the time of War fol. 487 CXXVIII It countenanceth things done in the day more then in the night fol. 488 Things are to be streightened according to the nature of them CXXIX 1. Sometimes a whole day is sufficient fol. 481 CXXX 2. Sometimes a whole yeare fol. 489 CXXXI 3. Sometimes to the last part of the day fol. 490 CXXXII 4. When no time is limited the Law appointeth the most convenient time fol. 491 CXXXIII The third Offence is esteemed most heynous fol. 494 CXXXIV The place ought to be convenient fol. 494 Maximes Taken out of Morality CXXXV The Law favoureth Charity fol. 497 CXXXVI De mortuis nil nisi bonum fol. 498 CXXXVII It hateth malice and oppression The Law fol. 499 CXXXIX It hateth Vice fol. 499 CXL Interest Reipublicae ne maleficia remaneant impunita fol. 501 CXLI It favoureth Justice and Right fol. 502 CXLII That which is not tortious in it self cannot be tortious to any fol. 508 CXLIII Interst Reipublicae ne Curia Domini Regis deficeret in Justitia fol. 545 Law CXLIV It favoureth common Right fol. 547 CXLV It suffereth things against Principles of Law rather then the party be without remedy fol. 549 CXLVI It hateth wrong fol. 563 so as CXLVII None shall take benefit or advantage of their own wrong fol. 568 CXLVIII The Law of it self prejudiceth no man fol. 575 CXLIX Especially for things which cannot be imputed to their owne folly or neglect fol. 581 CL. Nemo debet rem suam sine facto vel defectu suo amittere fol. 592 CLI It driveth not a man to shew take notice of or do that which by intendment he knows not or should or cannot do fol. 593 CLII. Nor to do that which were in vain for him to do fol. 600 CLIII Non licet quod dispendio licet fol. 603 Law CLIV. It favoureth truth faith and certainty fol. 604 CLV It disfavoureth impossibilities fol. 606 CLVI Non cogit ad Impossibilia Impotentia excusat Legem fol. 609 CLVII It disfavoureth falsehood fraud and covin fol. 6â—0 CLVIII Juâ— frans nunquam cohabitant fol. 680 CLIX. Quando aliquid prohibetur fieri ex directo prohibetur per obliquum fol. 618 CLX Rectum est Index sui obliqui fol. 620 CLXI It disfavoureth Improbabilities fol. 620 CLXII It disfavoureth Incertainties by the which the truth may be inveighed fol. 621 CLXIII Impersonalitas non concludit nec ligat fol. 634 CLXIV Generale nihil certi implicat fol. 635 CLXV Dolosus versatur in generalibus fol. 636 CLXVI 1. Variance fol. 636 CLXVII 2. Contrariety and Repugnancy fol. 638. and therefore CLXVIII 3. It will not drive a man to justifie or shew that which he goeth about to defeat or makes against him fol. 646 CLXIX Non potest adduci exceptio ejusdem rei cujus petitur dissolutio fol. 647 CLXX None shall take exception to an Error or Act which operateth to his own advantage fol. 648 CLXXI. Nemo tenetur armare adversarium suum contra se fol. 665 CLXXII It favoureth diligence and therefore hateth folly and negligence fol. 665 CLXXIII Negligentia semper habet infortunium Comitem fol. 669 CLXXIV Vigilantibus non Dormientibus Lâ—ges subveniant fol. 672 CLXXV It favoureth speedying of mens Causes fol. 673 CLXXVI It hateth Delaies fol. 674 CLXXVII It hateth unnecessary Circumstances And Frustra fit per plura quod fieri potest per pauciora fol. 675 CLXXVIII Expedit Reipublicae ut sit finis Litium fol. 676 CLXXIX Circuit of Action fol. 680 CLXXX Matter of Vexation fol. 680 CLXXXI Pendente Lite nihil innovetur fol. 681 CLXXXII Unfitnesse and multiplicity of Suits fol. 682 The Law CLXXXIII It construeth things with equity and moderation fol. 685 CLXXXIV It restraineth a generall Act or Rule and sometimes a particular Contract if it be mischeivous or inconvenient fol. 687 CLXXXV Nemo bis punitur pro eodem relicto fol. 695 CLXXXVI It flyeth and preventeth all occasions of Evill fol. 696 CLXXXVII It moderateth the stricknesse of the Law it selfe fol. 702 CLXXXVIII Verba semper accipienda sunt in mitiori sensu fol. 705 CLXXXIX It construeth things according to common possibility or Intendment fol. 703 CXC Stabit Presumptio donec probetur in Contrarium fol. 712 CXCI. Ad ea quae frequentius accidunt jura adaptantur fol. 716 CXCII Frequentia Actus multum operatur fol. 719 CXCIII It alwaies construeth things to the best fol. 720 CXCIV Every Act to be lawfull when it standeth indifferent whether it should be lawfull or not fol. 722 CXCV. Non praestat impedimentum quod de jure non sortitur effectum fol. 727 CXCVI. Praetextu liciti non debet admitti illicitum fol. 728 The Law CXCVII It favoureth things for the Common-wealth fol. 729 CXCVIII. It favoureth publick Commerce fol. 738 CXCIX It favoureth Honour and Order fol. 739 CC. It favoureth publick quiet fol. 742 CCI. Conventio seu beneficium privatorum non potest publico juri derogare fol. 746 CCII. Minime mutanda sunt quae certam habuerunt Interpretationem fol. 748 CCIII A Communi observantia non est recedendum fol. 752 CCIV Eventus varius res nova semper habit And therefore it hath new Inventions and Innovations fol. 756 CCV Communis Error facit jus fol. 758 CCVI. So doth a Custome which is reasonable unreasonable e contr fol. 758 CCVII. Licet consuetudo sit magnae Authoritatis nunquam tamen praejudicat manifestae veretati fol. 762 Wife CCVIII The Husband and Wife are one person in Law fol. 763 CCIX. The wife is of the same condition with her husband fol. 764 CCX They cannot sue one another or make any Grant one to another or the like fol. 765 CCXI. Upon a joynt Purchase during the Coverture either of them taketh the whole fol. 766 CCXII. The husband is the womans head fol. 767 CCXIIJ All that she hath is her husbands fol. 768 CCXIV. Her will ought to become his will and to be subject unto it fol. 770 Maximes of Reason OR THE REASON OF THE COMMON LAW OF ENGLAND LAwes are divided into Native and Positive Native are such Lawes as are in us of themselves and are therefore unchangeable and not to be abrogated These are likewise twofold viz. The law of Nature and the Law of Reason The Law of Nature is that Law Co. l. 7. 12. b. in Calvins case Doct. Stud. l. 1. cap. 1â— which God at the time of the Creation of the nature of man infused into his heart for his preservation and direction This is that Law which is called Lex aeterna or the Moral Law administreth common principles of good and evil as That men should live peaceably together That we should not do that to another which we would not have another do to us suum cuique tribuere That Justice should be duly â—dministred to all and the
like This was termed by the Ancient Philosophers Original Justice which in Adams innocencie was cléere and lightsome but since his fall both in himselfe and his posteritie much darkened and incumbred with original sinne This is also the Law whereof Saint Paul makes mention in his Epistle to the Romans where he saith When the Gentiles which have not the Law Rom. 2.14 15. do by nature the things contained in the Law These having not the Law are a Law unto themselves which shew the work of the Law written in their hearts their conscience also bearing witnesse and their thoughts in the mean while accusing or excusing one another The Law of Reason is that Law which deduceth conclusions from known Principles by ratiocination or discourse of sound reason which Principles are termed Rules or Maximes of Reason Positive Lawes are such Lawes as are framed by the light of the two former for the regular Government of some particular Common wealth And therefore these Lawes are sundry and divers according to the several constitutions of particular places and Countries of this sort is the Common Law of England which being the Municipal Law of this Nation and receiving its light principally from the Law of Reason is many times directed and controuled by the Rules and Maximes thereof Now of these Maximes some are taken out of forreigne Sciences as Theologie Grammar Logique Physiques Moral Philosophy Politicks and Oeconomiques The rest are proper to the Law it self as Law-constructions and Fictions in Law All which will more plainly appear by the Precepts and Examples hereafter following I Maximes of Reason taken out of THEOLOGIE 1 Summa Ratio est quae pro Religione facit It is the highe Reason that makes for Religion Statutes which restrain Alienation of Ecclesiastical livings binde the King though not named 1REgularly Statutes binde not the King Co. l. 8. 14. a. In the case of Ecclesiastical persons Co. l. 11. 70. a Magdalen Colledge Case Co. l. 2. 44. b. In the Bishop of Winchesters Case unlesse he be particularly named yet the King is included within the general words of 13 El. 10. which prohibit Ecclesiasticall persons to make grants of their Livings because the Parliament which made that Statute adjudged such grants to be causes of dilapidations and decay of spirituall livings and hospitality and of the utter impoverishment of successors Incumbents in the same whereupon would necessarily follow decay of true Religion and the spirituall worship of God For it is recorded in History that amongst the ten Persecutions which the Primitive Church suffered there were two the most grievous the one under Dioclesian the other under Julian the Apostate the first endeavoured to destroy all the Professors and Preachers of the Word of God occidit omnes Presbyteros but notwithstanding that Religion still flourished for sanguis Martyrum est semen Ecclesiae yet that was a grievous Persecution But the Persecution under the other viz. Julian was much more grievous and dangerous because as the History saith occidit Presbyterium for it robbed the Church and spoiled spiritual persons of their revenues And thereupon ensues great ignorance in Religion and the service of God and therefore great decay of the Christian profession for none will apply himselfe or his children or any other committed to his charge to the study of Divinity when after long and painfull study they shall have nothing to live upon See more in the Books at large Ecclesiastical livings are in Abeyance 2 The Fee simple of a Parsonage or Vicarage is said to be in Aveyance and this was provided by the providence and wisdom of the Law Co. Inst pars 341. a. for that the Parson and Vicar have curam animarum and were bound to celebrate Divine Service and administer the Sacraments and therefore no act of the predecessor should make a discontinuance to take away the entry of the successor and to drive him to a reall action whereby he should be destitute of maintenance in the mean time Co. ibid. 3 Vpon consideration of all the Books of the Law Ecclesiastical persons cannot injure the Church this diversity is well observed by Sir Edw. Cooke that a Parson or Vicar for the benefit of the Church and his successor is in some cases estéemed in Law to have a Fée simple qualified But to do any thing to the prejudice of his successor in many cases the Law adjudgeth him to have in effect but an estate for life Bract. f. 226. Causae Ecclesiae publicis causis aequiparantur And Ecclesia fungitur vice minoris meliorem facere potest conditionem suam deteriorem nequaquam Brit 143. Vide Co. Inst pars 1 2. b. 4. Littl. §. 146. Co. Inst pars 1. 102. b. 40 E. 3. 27. 5 E. 4. 8. 6 E. 3 51 52. 10 E. 4. 2. a. 21 H. 7. 2◠4 An Abbot Prior Bishop Dean Arch-deacon Prebend Ecclesiastical persons cannot disclaim Parson Vicar or other sole Corporation that is seised in auter droit cannot disclaim because they alone cannot devest any fée which is vested in their house or Church For an Abbot and Prior had their Convent the Bishop his Chapter the Parson and Vicar their Patron and Ordinary and the like of other sole Corporations without whose assent they could passe away no Inheritance And the reason of this was because the wisdome of the Law would never suffer one sole person to be trusted with the disposition of the Inheritance of his house or Church Ecclesiae suae conditionem meliorem facere possunt sine consensu deteriorem non possunt sine consensu Vide infra Max. 178. Pl. 1. Co. l. 6 49. b. Boswels Case Co. Inst pars 1 344. a. Glan l. 13. cap. 18 19 20. Mirror c. 5. § 5. Bract. 238. 240 244 c. 291. Fleta l. 83. c. 11 16 17. Britt 222 223 224. 6 E 3. 28. 39. 52. 39 E. 3. 24. 43 E. 3. 25. 45 E. 3. Quare impedit 39. 31 E. 1. Quare impedit 186. 5 By the Common Law there ought to be in every Parish Persona idonea to serve the Cure The Parson or Vicar ought to be Persona idonea for so it appears by the words of the Quare impedit quod permittat praesentare idoneam personam which Epithete idonea includes abilitie in erudition and doctrine honesty in his conversation and diligence in his function and all this to instruct the People of God in true Religion and good conversation and to avoid contention And to the intent that he who hath so great a charge may effectually and peaceably intend it the Common Law provides that after Institution he shall not be subject to actions and so neglect his duty by losing his time in suits and vexations of Law Not to be removed after institution by a common person nor after induction by the King And therefore at the Common Law if a stranger had presented his Clerke and
if they be distrained to come to them they may have a writ out of the Chancery for their discharge All other clerks also within orders though not beneficed have the like priviledge And the reason of this is to the end they should attend their function Co. l. 11. 70. b. in Madg. Col. case M. 10 H. 6. 8. 3 I. S. brings an action of debt against I. Rector of T. in com B. the defendant saith A Parson ought to be resident that before the day of the writ purchased he dwelt at B. in com N. Et non allocatur for a Parson shall be intended by Law to be alwayes resident upon his benefice for the cure of souls which he hath there and the Parson who hath cure of souls and is a non-resident non est dispensator sed dissipator non speculator sed spiculator And therefore no such thing shall be presumed F. N. Br 175. 4 A Parson to the end he may give his continual attendance upon that sacred function is fréed from all personal charges The like that may hinder him in his calling And therefore he shall not be chosen Bailiffe Réeve Beadle or other officer for land annexed to his Church And all this by the course of the Common Law F. N. Br. 34. l. for the same reason it is that if a Parson have a Parsonage and after take another benefice without a dispensation the first benefice is void and the Patron thereof may present for this avoydance is called a Cession because the taking of the last makes him neglect the first F. N. Br. 175. Br. Dismes 16 5 To the end that Religion may not be neglected Tithes due onely to the Parson of common right but preserved and daily increased the Common Law giveth to the Parson of common right the tenth of all manner of yearely encrease which are called Dismes or Tithes the due payment whereof tendeth much to the continuance and establishment of the true Religion and the due worship of God Co. l. 2. 44. b. The Bishop of Winchesters case And therefore albeit a meere lay man may prescribe in modo decimandi yet he cannot so doe in non decimando because he is but in special cases capable of tithes at the Common Law and therefore without special matter shewed it shall not be intended that he hath any lawful discharge And for this cause in favour of holy Church although it may have lawfull commencement the law will not suffer such prescription in that case nor put it to the trial of lay men who will perhaps rather strain their consciences for their private benefit that give the Church the duties that belong to her Vide infra 186. 11. Co. l. 5. 63. a. 44 E. 3. 19. 6 The Inhabitants of a Town without any custome may make ordinances or by-laws for reparation of the Church By-Lawes and in that case the greater part shall bind all the rest without any Custom The Chamberlain of Londons case Prisot 3 To such Lawes as have warrant in holy Scripture our Law giveth credence contra Co. Inst pars 1 128. b. 1 In the raigne of King Alfred Outlawed persons had capita Lupina and untill a good while after the Conquest no man could have been out-lawed but for felonie and then the out-lawed person was said to have Caput Lupinum because he might be put to death by any man as a Wolfe that hateful beast might and in ancient time the head of either of them being brought to the chiefe place of the County or Franchise where they were killed the partie so killing them was to have a Mark for his paines Howbeit in the beginning of the raigne of E. 3. it was resolved by the Iudges for avoiding of inhumanitie and effusion of Christian bloud that it should not be lawfull for any man but the Sheriffe only and that upon lawfull warrant to put to death any out-lawed person though it were for felonie in pain to suffer death as in case of killing another man One attainted of a Praemunire 2 It was lawfull for any man to put to death a man attainted of a Praemunire because he was also without the Kings protection Co. ibid. 129. b and therefore subject to be destroyed as the Kings enemy but this was taken away by the wisedome of Queen Eliz. and her Parliament 5 El. 1. as a libertie not becoming a Christian Common-wealth Lepers 3 The Law of England for removing of Lepers by the writ de leproso amovendo from the societie of men to some solitarie place is grounded upon the law of God Levit. 13.44 45 46. Numb 5.1 2. Co. ibid. 135. b 4 In Cholmeleys case in the 2 Rep. fol. 51. Co. l. 11. 70. b. in Magdel Colledge case where a reversion expectant upon an estate in taile was granted to one for the life of the tenant in taile A Monkish life condemned it was said that by possibilitie this grant for life may take effect for tenant in taile having no issue may become a Monk and enter into religion and then the grantée may have it during his naturall life but it was there resolved that such superstitious and irreligious profession shall not be presumed in law A Law against Charity void 5 If a Statute be made directly against the Law of God Doct. Stud. l. 1. cap. 6. as if it should be ordained that none should give Almes to any in what necessitie soever he were or the like such Statute ought to be adjudged void 6 Such Canons Constitutions Ordinances Co. l. 5. part 1. 32. b. in the case of the Kings Ecclesiastical Law and Synodals provincial Ecclesiastical Laws as have béen allowed by general consent and custome within the Realme and are not contrariant or repugnant to the Lawes Statutes and Customes of the Realme nor to the damage or hurt of the Kings Prerogative royall are still in force within this Realme as the Kings Ecclesiasticall Lawes of the same 4 The Jurisdiction of the Ecclesiastical Law ought to be bounded by the Common Law Spiritual Laws 1 The Spiritual Laws mentioned in Littleton Sect. 648 are such Ecclesiasticall Lawes as are allowed by the Laws of this Realme Co. Inst pars 1 344. a. Co. l. 5. pars 1. 32. b. Jurisdiction Stat. 35 H. 8. 19 33 H. 6. 34. 32 H. 6. â—8 viz. which are not against the Common Law whereof the Kings prerogative is a principal part nor against the statutes or customes of the Realme Prerogative and regularly according to such ecclesiasticall Lawes the Ordinarie and other Ecclesiastical Iudges do procéed in causes within their Conisance and this Iurisdiction was so bounded by the Ancient Common Lawes of the Realme and so declared by Act of Parliament 5 Dies Dominicus non est juridicus The Lords day 1 In all the four terms the Lords day is not Dies
juridicus Co. Inst pats 1 135. a. for that ought to be consecrated to divine service Pleas. 2 No plea shall be holden Quindena Paschae F. N. B. 17. f. because it is alwayes the Lords day but it shall be crastino quindenae Paschae Finâ—â— 3. Vpon a fine levied with proclamations according to the Statute of 4 H. 7. 24. if any of the proclamations be made on the Lords day Finches Ley pag. 7. all the proclamations are erroneous for the Iustices may not sit upon that day being a day exempt from such businesses by the Common Law for the solemnitie of it to the intent that all people may apply themselves that day to prayer and serving of God 1 El. Dyer 168 12 E. 4. 8. 3 If a writ of Scire facias out of the Common place beare Teste upon the Lords day it is errour because it is not dies dominicus in Banco Errour 4 No sale upon the Lords day shall be said a sale in Market overt to alter the propertie Sale 6 Gravius est divinam quam Temporalem laedere majestatem Co. l. 11. 29. b. Poulters case 1 Regularly Clergy a man shall by the Common law have the benefit of Clergie for any felonie Howbeit if a felon be also an Heretique Iew Sarazen or Infidel he shall not have it F. N. B. 269. b. Br. Heresie 1. Co. l. â— 58. a. Specots case 2 Heresie is an offence committed against the Majestie of God by a presumptuous oppugning of an Article of Faith or the like Heresie And therefore at the Common law this offence was punished by a more terrible and grievous mulct than any other felony whatsoever and indeed than Treason it selfe viz. by fire and faggot Howbeit to determine what is Heresie falls not within the Conusance of temporal Courts but is wholly left to the Ecclesiastical Iurisdiction for it appears by the writ de haeretico comburendo that at the Common law before an heretique could be committed to the Lay-power to be burnt he was to be convicted in a Provincial Synod before the Archbishop and his Clergie and then if he did either refuse to abjure the heresie or having abjured it upon a relapse were convicted again by such a Synod of that or any other heresie he was then delivered to the secular power to be punished by fire and faggot and no Sanctuarie could priviledge him Frowick Lect. Howbeit by the Statute of 2 H. 4. 15. any Bishop had power to do as much within his Diocesse and if the Sheriffe were present at his conviction the Bishop might deliver him to the Sheriffe to be burnt and that without the Kings writ but that Statute was repealed by 25 H. 8. cap. 14. and thereby that offence made presentable at Sheriffes Turnes and Léets and from thâ—nce to be certified to the Ordinarie which Statute the 25 H. 8. was also repealed by 1 E. 6. 12. from which time until 1 2 P. M. 6. which revived 2 H. 4. 15. an heretique was punishable at the Common Law as above is expressed but by 1 El. 1. the Statute of 1 2 P. M. was repealed and then by 1 El. the Quéenes Commissioners heretofore called the High Commission Court had power to judge of heresie but they were thereby also restrained to adjudge nothing Heresie but what was so adjudged by the holy Scriptures the four first General Councils or the Parliament with the assent of the Clergie in their Convocation Howbeit at this day the Iurisdiction of Bishops being taken away and that clause of 1 El. repealed by a later Act it séemes at present there is no law to punish that offence See more concerning heresies in the Statutes of 5 R. 2. 5. 2 H. 5. 7. 31 H. 8. 14. and 34 H. 8. 1. being all repealed by 1 E. 6. 12. See also Li. Intr. 264 and 340. Rast Ph. 319. 10. H. 7. fol. 17. and Doct. and Stud. L. 2. cap. 29. Howbeit observe that the said Statutes made in the raignes of H. 4. and H. 5. were chiefly intended against such as did then begin to discover the Pride Lucre and errors of the Church of Rome and in dirision were termed Lollards as you may read at large in the Book of Martyrs and elsewhere in divers other authors as Sleiden Brightman c. The Kings command against Law not to be obeyed by the Judges Stat. 18. E. 3. Stat. 3. 8. 3 One part of the Iudges oath is that they shall not deny right though it be by command from the King which if they breake they will be found guilty Laesae Majestatis divinae And therefore in such case they ought rather to disobey the Kings commands then thereby incurre the high displeasure of Almighty God for Gravius est divinam c. And to the end that the Iudges might be the better protected from this danger Stat. 2. E. 3. 8. the prudence of former times hath ordained divers Lawes whereby the Iustices have power to procéed Stat. 20. E. 3. 1. notwithstanding any command from the King to the contrarie no though it be under the Great or Privie Seal And therefore if the King write to the Iustices to prorogue an Assize because the defendant is in his service F. N. B. 153. h. yet the Iustices ought to procéed and not to cease for any such letter so likewise in an Assize the Bishop certifies Bastardie 29 E. 3. 14. Judgment 117 and the Kings letter is sent to the Iustices to cease because the certificate was suspicious notwithstanding which letter they tooke the Assize and afterwards albeit the Chancellor reversed the taking of the Assize in the Council because they obeyed not the letter yet notwithstanding that the Iustices gave Iudgement upon the Assize 22 F. 3. 12. Judgment 185 Also in dower the tenant was essoined and had farther day given at which the King sends a letter to excuse the tenants apperance alleadging that he was at Callis in his service Howbeit the Iustices gave no regard to it but proceeded notwithstanding that letter Nor by the Sheriff 4 The Sheriffe also 14 E. 3. Returns del Viscont 8â— who is but an Officer or Minister to the superiour Courts of Iustice ought not to desist from the due execution and return of writs directed unto him notwithstanding any command to the contrary from the King least he likewise incurre the like danger by breaking his oath And therefore we read in 14 E. 3. that N. de B. being attainted of disseisin with force An Exigi facias went forth against him to the Sheriff who returned that the King had certified him by writ that he had pardoned the trespasse and imprisonment commanding him that he should desist and that therefore he had not executed the writ whereupon saith Wilby the writ ought first to have béene sent to us that we might have commanded the Sheriffe to cease for the Sheriffe
whereof it is not possible for one to discharge and yet none can be presented to any of them which would be inconvenient Co. l. 4. 81. b. Sir Andrew Corbets case 2 Sir Andrew Corbet deviseth some of his lands to Richard Corbet and others Devise of Profits to raise a summe untill 800 l. shall be levied and received out of the profits of them besides all charges to be imployed for the preferment of his two daughters Marg. and Mary Robert Corbet sonne and heire conceals the will enters into the lands and enjoyes them fiâ—e years and dies after whose death the will being discovered Richard Corbet enters into the lands and raiseth 640 l. and imployes them according to the will but the question here arising was whether the profits taken by Robert Corbet and which the devisees might have taken shall be accounted parcel of the summe of 800 l. And in this case it was resolved that albeit the words be until the summe of 800 l. shall be levied c. yet it is as much in Law as if the words had been shall or may be levied And it was also held in case of a lease or limitation of use untill such a summe shall be levied that was as much to say as untill such a sum may be levied for otherwise great mischief would insue because in as much as he in reversion or remainder shall not enter untill the sum be levied it shall be in the power of those who are appointed to levie it to deferre the levying of it and so to exclude him in the reversion or remainder from taking the profits of the land for ever which would be inconvenient Co. l. 4. 9â— a. Dâ—uries case 3 If a Baron retaines two Chaplains according to the Statute of 21 H. 8. 13. and they purchase dispensation Chaplains and are advanced according to the Statute Here if the Baron discharge one of them from his service he cannot retaine another during the life of the Chaplain discharged for by that meanes he may advance as many Chaplains as he will even without number by which the Statute would be defrauded A like case to this was adjudged in C. B. 28 El. and after affirmed in B. R. in a writ of error Co. l. 5. 10. a. Housteads case 2 A feme sole makes a lease at will and after takes Baron Tenant at will Here the will is not determined by the intermariage for albeit the feme by taking the baron hath submitted her felfe to the will of her husband as her head yet in as much as it may be prejudicial to the husband to have the lease determine for then he should lose the rent payable at the next rent day after the mariage and because it will rather tend to the benefit than to the prejudice of the feme if the lease continue And also for that it may be a great prejudice to husbands who marie women that have tenants at will for the lâ—sse of their rents for these causes it was resolved that without expresse matter done by the husband after the mariage to determine the will it shall not determine Co. l. 5. 68. The L rd Cheyneyes case 5 Sir Th. Cheyney 1 El. deviseth Devise c. to H. his sonne and the heires male of his bodie the remainder to Th. Ch. of D. and the heires male of his bodie with condition that he or they or any of them shall not discontinue c. the question was whether T. Ch. should be received to prove by witnesses that it was the intent of the divisor to include his sonne within these words he or they And it was resolved by Wray and Anderson upon conference with other Iudges that he shall not for the construction of wills ought to be collected out of the words of the will in writing and not by collateral averment without because that would be subject to much inconvenience in as much as it would not then be possible for any man to know by the written words of the will what Construction to make or what advise to give when whatsoever shall be in that case done may be controled by collateral averments out the will â— 1 H. 6. 41. Co. Inst 1. 275. b. 6 If a man be disseised by two and releaseth to one of them Transmutation of estates he shall hold his Companion out but if tenant for life be disseised by two and he releaseth to one of them this shall enure to them both for he to whom the release is made hath a longer estate than he that releaseth and therefore the release cannot enure to him alone to hold out his Companion Descent 29. 13 E. 4. for then should the release enure by way of entry and grant of his estate and consequently the disseisor to whom the release is made should become tenant for life and the reversion revested in the Lessor which strange transmutation and change of estates in this case the Law will not suffer The l ke 7 If a man grant lands to A. in fée Littl. 720 722. Co. Inst 1. 377. Justice Richels Case Temps R. 2. upon condition that if he alien in fée his estate shall cease and be voide and that immediately from thenceforth the estate of the land shall remaine to B. and his heires here the estate to A. is good and he may lawfully alien notwithstanding the condition for his estate being an estate of Inheritance in lands and tenements it cannot cease or be voide before it be defeated by entry and then if this remainder should be good it must give an entry upon the alienée unto him that had no right before which would be inconvenient and against the expresse rule of Law because an entry cannot be given to a stranger to avoide a voidable act as appeares by Littleton in his Chapter of Conditions An Infants will 8 Because Littleton saith Sect 123 that the Guardian in Soccage shall render an account of the mariage money to the heire or his executors Here from this word executors some have collected Co. Inst 1. 89. b that an Infant of the age of 14 may make a will but the meaning of Littleton in that place is that if after the mariage he accomplish the age of 18 yeares he may then make a will and constitute executors to administer his goods and chattels for at that age he hath power by the Law to make a will and these words are to be understood as they may stand with Law and Reason Subsequent statutes expounded by the equity of former 9 The Statute of Glocester in 6 E. 1. cap. 3. ordaines Co. l. 8. 52. b. 4. in Syms case Pl. Co. 110. in Fulmerstons case that where the tenant by the Curtesie aliens his wives Inheritance with warrantie if assets descend to the heire he shall be barred for the value of the Inheritance so descended and if lands after descend that then the
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
homage Ancestrell again so it is if a Copihold escheat and the Lord maketh a feoffment in fée upon Condition and entreth for the condition broken it shall never be Copihold again because in both these cases the custome or prescription which supported and was the cause of the tenure is interrupted and that being once broken is become remedilesse The land evicted the Annuity is gone The mariage failing the land revests 17 If a man grant an annuitty ppruna acra terrae Co. ibid. 204. a. 2. if the acre of land be evicted by an elder title the annuity shall cease so if it be pro decimis and the grantee be disturbed or pro consilio or quòd praestaret consilium and the grantee refuse to give counsel the annuity shall in these cases cease likewise if a woman give lands to a man and his heires causa matrimonii praelocuti in this case if the man refuse to marry her she shall have the land againe to her and her heires but it is otherwise in case of a man Co. ibid. 238. a. 4. 18 If a disseisor make a gift in taile A dying seised and yet no descent to take c. and the Donee discontinueth the fée and after disseise the discontinuee and dieth seised this discent shall not take away the entry of the diseissée For the discent of the Fée simple is vanished and gone by the Remitter And albeit the issue be in by force of the estate taile yet the Donée died not seised of that estate and of necessity there must be a dying seised Co. ibid. 239. a. 2. 19 When the degrées are past so as a writ of Entry in the Post doth lye yet by event it may be brought within the degrées again A writ out of the degrees may be reduced as if the disseisor enfeoffe A. who enfeoffes B. who enfeoffes C. or if the disseisor die seised and the land descends to A. and from him to B. and from him to C. Now are the degrées past and yet if C. enfeoffe A. or B. now is it brought within the degrées again Co. ibid. 242. b. 1. 20 If the eldest sonne hath issue and dieth A descent when privity of bloud faileth and after his decease the younger sonne or his heire entreth and many descents cast in his line yet may the heires of the eldest sonne enter in respect of the privity of bloud and of the same claime by one title But if the younger sonne make a feoffment in fée and the feoffée dies seised that discent shall take away the entry of the eldest in respect that the privity of bloud faileth Co. ibid. 285. a. 4. 21 If an action of wast be brought by Baron and feme in remainder in special taile Death voidâ— the action and hanging the writ the wife dieth without issue the writ shall abate because every kind of action of wast must be ad exhaeredationem Co. ibid. 291. a. 4. Execut. 7. 22 If the bodie of a man be taken in execution upon a Ca. sa and the Plaintiffe releaseth all actions Release of debt excuseth execution yet shall he still remaine in execution but if he release all debts duties or judgements he is to be discharged of the execution because the debt or the dutie or the judgement which is the cause of the execution is discharged Co. ibid 312 a. 1. 23 The Reason that Littleton giveth of the difference betwéen a rent-service and a rent-charge is Avowry for a rent service upon the person for that in rent-service the avowry shall allwayes be made upon the person but in rent-charge never upon the person but upon the Land charged Now here it may be said that this reason is taken away by the Statute of 21 H. 8. 19. For by that Statute the Lord needs not avow for any rent or service upon any person in certaine and then by Littletons reason there néedeth no privity to the attornment of a Seigniory for say they Cessante causa ratione legis cessat lex As at the Common Law no aide was grantable of a stranger to an Avowrie because the Avowrie was made of a certaine person but now the Avowrie being made by the said Act of 21 H. 8. upon no person therefore the reason of the Law being changed the Law it selfe is also changed and consequently in an Avowrie according to that Act aid shall be granted of any man and the like in many other cases which case is granted to be good Law But albeit the Lord as hath béen said may take benefit of the Statute yet may he avow still at his election upon the person of his tenant and albeit the manner of the Avowrie be altered yet the privity which is the true cause of the said difference remaineth as to an Attornment Littl. § 568. Co. ibid. 316. a. 3. 24 If the reversion of Lessée for life be granted Upon alienation the grantee shall attorn and Lessée for life assigne over his estate the Lessée cannot attorne but the attornment of the Assignée is good because as Littleton saith it behoveth that the tenant of the land do attorne and after the assignement there is no tenure or attendance c. betwéen the Lessée and him in reversion so likewise if Lessée for life assigneth over his estate upon condition he having nothing in him but a condition shall not attorne but the assignée may attorne because he is tenant of the land The assignee of tenant by possession shal â—attorn 25 Tenant in taile after possibility of issue extinct shall not be compelled to attorne for the inheritance which was once in him Co. ibid. 316. a 4. but his assignée shall be compelled to attorne because then that priviledge is lost the assignée having in him onely a bare estate for life Release of quarrels is release of Act. 26 Quaerela being derived à quaerendo properly concerneth personal actions or mixt at the highest Co. ibid. 292. a. 3. for the Plaintiff in them is called Quaerens and yet if a man release all quarrels it is as beneficial as all actions for by it all actions both real and personal are released because by the release of all quarrels all causes of actions are released albeit no action be then depending for the same Where the estate is defeasible the tenant is not compelâ—able to attorn 27 It is a general rule that when the grant by fine is defeasible Co. ibid. 318. a. 4. 36 H. 6. 24. there the tenant shall not be compelled to attorne As if an infant being seised of a reversion levie a fine thereof this is defeasible by writ of error during his minority and therefore in this case the tenant shall not be compelled to attorne so likewise if before the Statutes of 4 H. 7. 24. and 32 H. 8. 36. a tenant in taile had levied a fine the tenant could not have béen
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
contraria voluntate c. Co. l. 8 48. a. John Webbes case Co. Inst pars 1 131. a. 4. Ibid. See more authorities 2 If after a Protection is allowed by Innotescimus A Protection must be disallowed by the Chancellor the Defendant tarry in the Countrey without going to the service for which he was retained above a convenient time after he had the Protection or otherwise repaire from the same service upon information thereof to the Lord Chancellor he shall repeale the Protection in that case by another Innotescimus but a Protection shall not be avoided by a bare averment of the party in that case because the record of the Protection must be avoided by matter of as high nature Co. Inst pars 1 204. a. 4. 3 E. 6. Dyer 65 66. 4 Mar. 138. 3 If a man maketh a feofment in fée or for life ad faciendum or faciendo or ea intentione or ad effectum or ad propositum What words make a condition and what not that the Feoffée shall do or shall not do such an act none of these words make the estate of the land conditional for in judgement of Law they are no words of Condition to make an estate of inheritance or Freehold defeâ—sible which took effect by Livery except it be in the Kings case or in the case of a will But if a Lease for yeares be made with such a clause or thus Quod non licebat to the Lessee dare vendere vel concedere statum sub poena forisfacturae H. 40. Elizabeth Brown Ayers case Plowd Co. 142 Browning and Bestons case Co. ibid 214. b 3. 1. ibid. per auth this amounts to make the Lease for yeares defeasible and so was it adjudged in Queen Elizabeths time in the Court of Co. Pl. and the reason of the Court was That a Lease for yeares was but a contract which may begin by word and may also by word be dissolved 4 If a man make a gift in taile or a Lease for life upon Condition Where an estate shall cease upon condition where not that if the Donee or Lessee goeth not to Rome before such a day the Gift or Lease shall cease or be void the Grantee of the reversion shall never take advantage of this Condition because the estate cannot cease before an entry but if the Lease had been but for yeares there the Grantee might have taken advantage of the like Condition because the Lease for yeares ipso facto by the breach of the Condition without any entry was void for a Lease for yeares may begin without Ceremony and so may end without Ceremony but an estate of Freehold can neither begin nor end without Ceremony Co. l. 3. 64. b. 4. and 65. a. 1. Pennants case Things that lie in grant not surrendred without deed 5 Rents Advowsons Conditions Reversions Remainders Co. ibid. 338. a. 3. and all other things that lie in grant as they cannot be granted without Deed so shall they not be surrendred without Deed. 6 An Obligation or other matter in writing cannot be discharged by an agreement by word Finch 11. Doct. and Stud. li. 1. cap. 12. 19 E. 4. 1. b. Vide infrà 25. An annuity by prescription 7 In an Annuity growing by prescription rien arrere is a good plea for this prescription is a matter in fait 5 H 7. 33. Finch 12. 4 H. 7. 7. b. but in an Annuity by Deed it is no good plea without shewing an Acquittance Matter pleaded against the King 8 When a man avoides the Kings Title by as high a matter of Record as the King claimeth he may have it by way of Plea without being driven to his Petition though the King be intitled by double matter of Record As one is attainted of Treason by Parliament and an office finds his lands whereby the King seiseth them the party may alleadge restitution by Parliament and a repeale of the former Act. Finch 12. Co. l. 4. 57. a. 4. In the Sadlers of Londons Case Power of revocation annulled by feofment or release 7 A. by Indenture enfeoffs B. of two acres to the use of A. for life remainder in taile to C. remainder to D. in fee with proviso Co. l. 1. 113. a. Albanies case that if E. die without issue A. by Indenture sealed c. in the presence of 4 witnesses may alter the uses c. A. of one acre enfeoffes F. and for the other acre A. by Indenture renounceth surrenders releaseth c. unto B. C. and D. the said Power Condition Authority c. E. dies without issue A. by Indenture revokes the first uses and limits new ones And it was resolved that A. had by the said feofment and release barred himselfe of limiting other uses for as the Proviso and Covent aforesaid did commence by Deed so by Deed may they be annulled and defeated because in all cases when any thing executory is created by a Deed the same thing by consent of all persons which were parties to the creation of it may be againe by their Deed annulled And therefore Warranties Recognisances Rent-charge Annuities Covenants Leases for yeares uses at the Common Law and the like may by a Deed of Defeasance with the mutual consent of all those that were parties to the creation of them be annulled discharged and defeated for it would be strange and unreasonable that a thing which is created by the act of the parties shall not be againe by their act with their mutual consent dissolved Bloud no valuable consideration against the Statute of 13 El 5. 10 Nature and bloud are not valuable considerations to satisfie the Statute of 13 El. 5. Co. l. 3. 81. a. 4. Twines case and therefore if he that is indebted to five several persons to each of them in 20 l. in consideration of natural affection gives all his goods to his sonne or cofin in this case in as much as the other shall lose their due debts c. which are things of value the intention of the act was that the consideration in such case should be valuable for equity requires that such a gift which shall defeat others of their due debts shall be upon as high and as good a consideration as those debts are which are so to be defeated A right cannot be transferred 11 By the Rule of the Common Law a right or title Co. l. 4. 1. a. Vernonâ— case which any hath to any Lands or Tenements of inheritance or Frank-tenement cannot be barred by acceptance of any manner of collaterall satisfaction or recompence As if A. disseise B. Tenant for life or in fée of the Mannor of Dale and after gives the Mannor of Sale to B. and his heirs in full satisfaction of all his right in the Mannor of Dale which B. accepts yet B. may neverthelesse enter into the Mannor of Dale or recover it in any real action for the
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
value as it was in her husbands time So it is likewise if the heire improve the value by building the like Law is if the value be impaired in the time of the heire for then also she shall be endowed according to the value at the time of the assignement and not according to the value as it was in her husbands time And the reason of all this is because she claims paramount the improvement or impairing of it and hath Title to she quantity of the land viz. one just third part Co. Inst pars 1 46. a. 3. 3 If Tenant in taile make a Lease for yeares reserving xx s. rent Lease by tenant in tail good in dower and after take a wife and die without issue here as to him in the reversion the Lease is méerly void because he claimes paramount the Lease but if he endow the wife of Tenant in tail of the land as she may be though the estate taile be determined now is the Lease as to the Tenant in Dower who is in of the estate of her husband revived againe as against her for as to her the estate taile continueth and the Lease is paramount her Title Co. Inst pars 1. 113. a. 3. Littl. § 169. 4 If a man by the Custome devise that his executors shall sell his lands c. and dieth the lands in this case descend to his heire Feoffee in by devise and the executors have no estate in them but onely a bare and naked power neverthelesse a feofment from them shall amount to an alienation to vest the land in the Feoffée because the Feoffée by construction of Law shall be said to be in by the Divisor and not by the executors So it is likewise if a man by the custome devise a reversion or any other thing that lyeth in grant to be sold by his executors they may sell the same without Déed causa qua suprà Co. Inst pars 1. 117. a. 2. 5 If lands be given to a Villain and to the heirs of his bodie The Lords title Paramount an entail to a villain and so is the Kings to that of an Alien the Lord may enter and put out the villein and the heirs of his body for Quicquid acquiritur servo acquiritur domino And in this case the Lord gains a Fée simple determinable upon the dying of the Villain without issue of his bodie and the absolute Fée simple remaineth still in the Donor And if the Lord enter and after enfranchise the Donée and after the Donée hath issue yet that issue shall never have remedie either by Formedon or Entry to recover this land by force of the Statute de donis c. For the Lord is in paramount the entaile and that Statute giveth onely remedie to the issues of the Donée that hath capacity and power to take and retaine the gift And the Title of the Lord remaines as it did at the Common Law for the Statute restraineth acts done onely by the Tenant in taile So it is also if lands be given to an Alien and to the heires of his body upon office found the land is seised for the King afterwards the King makes the Alien a Denizen who hath issue and dieth the King shall detaine the land against the issue because the Kings Title is Paramount the entail viz. by his prerogative Vide infrà 32. Co. Inst pars 1 148. b. 3. 6 If a man grant a rent charge out of two acres A Title Paramount to rent and after the Grantée recovereth one of the acres against the Grantor by a Title paramount the whole rent shall issue out of the other acre Doct. Stud. l. 2. cap 17. Co. Inst pars 1 148. b. 3. 7 If a man enfeoffeth B. of one acre in fée upon Condition Title Paramount a grant and B. being seised of another acre in fée granteth a rent out of both the acres to the Feoffor who entreth into the one acre for the Condition broken the whole rent shall issue out of the other acre because his Title is paramount the grant Co. Inst pars 1. 184. b. Littl. § 286. 8 If two Ioyn-tenants be seised of an estate in Fée simple Jus accreseâ—dendi praefertur oneribus and the one grants a rent charge to another out of his part here the rent is good during his life but after his decease the Survivor shall avoid it because he commeth in by the first Feoffor and not under his companion So likewise if a man be possest of certaine lands for terme of yeares in the right of his wife and granteth a rent charge and dieth Co. Inst pars 1 185. a. 1. the wife shall avoid the charge And for the same reason it is that if a Ioyn-tenant charge the land with common of Pasture Turbary Estovers or with a Corodie or with a way over the land or the like this shall not bind the Survivour For jus accrescendâ— prefertur oneribus and Alienatio rei praefertur juri accrescendi Vide M. 15. Pl. 14. Co. Inst pars 1 185. a. 2. 9 One Ioyn-tenant in fée taketh a Lease for yeares of a stranger Simile by Déed indented and dieth the Survivour shall not be bound by the conclusion because he claimes above it and not under it Baron chargeth the Femes â—and 10 If there be two Ioyn-tenants in fée Co. Inst pars 1 185. a. 2. Finch 13. Dyer 187. and the one maketh a Lease for yeares reserving a rent and dieth the surviving Feoffée shall have the reversion but not the rent because he claimeth in by the first Feoffor which is paramount the rent So it is also of the wife where the husband being Lessée for yeares in her right maketh a Lease of part of the terme reserving a rent Inst part 1. 318. a. 3. Simile 11 If a husband wife Co. Inst pars 1 187. b. 4. and a third person purchase lands to them and their heires and the husband before the Statute of 32 H. 8. cap. 1. had aliened the whole land to a stranger in fée and died the wife and the other Ioyn-tenant were Ioyn-tenants of the right and if the wife had died the other Ioyn-tenant should have had the whole right by Survivour for that they might have joyned in a writ of right and in this case the discontinuance would not have barred the entry of the Survivour because he claimed not under the discontinuance but by Title paramount above the same by the first feofment A condition â—aramount a descent 12 If a man be seised of lands in Fée or Fee taile upon Condition to render certaine rent or any other Condition Co. Inst pars 1 240. a. b. Littl. § 391 392. albeit such a Tenant die seised yet if the Condition be broken in his life time or after his decease that descent shall not take away the entry of the Feoffor or Donor or of
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
cause of deprivation as it appears 9 E. 4. 34. So likewise if a Prior suffer dilapidations that is a sufficient cause to deprive him as it was holden 29 E. 3. 16. 20 H. 6. 36. Neverthelesse if in these or the like cases there be but an endeavour or enterprize without doing any such act there can be no cause of deprivation for in such cases Voluntas non reputatur pro facto 37 Acta exteriora indicant interiora Secreta Co. Inst pars 1. 257. b. 1. 10 H. 7 12. 1 One may commit a forcible entry in respect of the armour or weapons which he hath that are not usually born Forcible enâ—â— what and when or if he do use violence and threats to the terrour of another And if thrée or four go to make a forcible entry albeit one alone use the violence all are guilty of force So also if the Master cometh with a greater number of servants then usually attend on him it is a forcible entry Co. l. 8. 146. a. 4. The six Carpenters case 2 When entry authority or licence is given to any by the Law Upon entry by Law if treâ—passe be committed he is a trespasser ab initio and he misuseth it he shall be a trespasser ab initio but where entry authority or licence is given by the party and he misuseth it there he shall be punished for the misdeed but shall not be a trespasser ab initio And the reason of this diversity is because in case of generall authority or licence given by the Law the Law judgeth by the act subsequent quo animo or to what intent he entred for Acta exteriora c. but when the party gives authority or licence himselfe to do any thing he can for no cause subsequent punish that which is done by his owne licence and authority And therefore when as the Law gives authority to enter into an Inne or Tavern to the Lord to distraine to the owner of the soile to distrain damage fesant to the Reversioner to sée whether wast be committed to the Commoner to enter into the land to see his Cattell or the like vide 12 E. 4. 8. b. 21 E. 4. 19. b. 5 H. 7. 11. 9 H. 6. 29. b. 11 H. 4. 75. b. 3 H. 7. 15. 28 H. 6. 5. Here if he that enters into the Inne or Taverne commit trespasse as if he cary any thing away from thence or if the Lord that distraines for rent or the owner for damage fesant weary or kill the distresse or if hee that enters to view the wast do hurt to the houses or stays there all night or if the Commoner cut down a trée c. In these and the like cases the Law will adjudge that he entred for that purpose and therefore in as much as the Overt act which he doth is a trespasse he shall be adjudged a trespasser ab initio as it appears in all the aforesaid Books 3 If a Purveyor take my Cattle for the Kings houshold by force of his Commission A purveyor a trespasser that is lawfull but if he sell them in the Market Co. ibid. b. 3. then is the first taking of them forcious and with this accords 18 H. 6. 19. b. The use of a recovery may be declaimed afterwards 4 In many cases an Act subsequent shall declare the intention of a generall Act precedent as Peter Vavasor octabis Hill suffers a recovery Co. l. 9. 11. a. 3 DowmaÌ„s case and by indenture made 15 of February betwéen him and the recoverors limits the uses and dies Dowman and his wife the daughter and heire of Peter c. brings an Assise against him unto whom the use was limited but could not recover because the subsequent Indenture did sufficiently declare the intention of the parties at the time of the precedent recovery So if Tenant in taile hath issue two daughters and die and the eldest enter into the whole and after thereof make feoffment with warranty this is lineall warranty for the one moity and collaterall for the other for the feofment subsequent doth declare the intention of the general entry viz. that it was onely for her selfe or otherwise it would be warranty which should begin by disseisin for the one moity A distress sold makes it a trespasse and with this agrees Littleton cap. Garr fol. 160. If the Lord come upon the tenancy and take and drive away an oxe if he impound him the taking of him shall be adjudged as for a distresse but if he kill him that subsequent act declareth what his intention was ab initio and so shall he be déemed a trespasser c. as aforesaid and with this agrées 12 E. 4. 8. b. 28 H. 6. 5 c. Lord Mesne and Tenant distresse 5 If there be Lord Mesne and Tenant Co. l. 9. 22. b. 3. The case of Avowrie and the Mesne payes his rents and doth his services due to the Lord and yet the Lord will distrain the Tenant peruvail and put his cattle into the pound for them In this case the Mesne at the Tenants instance ought to take out his cattle and to put his own into the pound and then if the Lord will not suffer the Mesne so to do the Lord shall be déemed a trespasser ab initio for the Lord doth not then use the cattle in the nature of a distresse c. and with this accords 13 E. 4. 6. Intention may be adjudged murder 6 Roper the father of Agnes the wife of Gore Co. l. 9. 81. b. 3. Agnes Goreâ— case in love to his sonne in law Gore being sicke procured an Electuary of one Martin an Apothecary by the advice of Doctor Grey into which Agnes did secretly put Rats-bane with purpose to poyson her husband and May 18 gives part thereof to her husband who thereupon became very sicke Roper also eate thereof and likewise became very sicke add last of all Martin being taxed for it stirs it and eates it May 21. and May 22 dies This was adjudged murder in Agnes albeit she intended nothing against Martin and that peradventure the stirring of it by Martin might make it have more force to kill him For in this case the Law joyns the murderous intention of Agnes in putting the poyson into the Electuary to kill her husband with the event which ensued thereupon viz. the death of Martin for the putting of the poyson into the Electuary is the cause and the death of Martin is the event Quia eventus est qui ex causa sequitur dicuntur eventus quia ex causis eveniunt And the stirring of the Electuary by Martin without the putting of the poyson therein by Agnes would not have caused his death A delivery to the party without words 7 An actual delivery of a writing sealed to the party himselfe Co. l. 9. 136. b. 4. Thorough goâ—dâ— case without any words at all is a
Déed but other things notwithstanding the said confirmation the tenant shall yield to the Lord as reliefe aide pur file marier and aide pur faire fitz Chivalier because these are incidents to the tenure which do still remaine and shall not be discharged without special words by the general words of all actions services and demands The like 31 If a man hold of me by Knight-service Rent-suit Co. ibid. c. and I release to him all my right in the Seigniory excepting the Tenure by Knight-service or confirme his estate to hold of me by Knight-service onely for all manner of services exactions and demands yet shall the Lord have Ward Mariage Reliefe Ayde pur file marier pur faire fitz Chivalier for these be incident to the Tenure which doth still remaine â—he rent pasâ—th with the â—version but â—t è converso 32 Where a Lease for terme of yeares or life Co. ib. 317. a. 1. Littl. § 572. or a gift in taile is made to a man reserving rent c. if the Lessor or the Donor grant the reversion to another and the Tenant attornes the rent passeth to the Grantée albeit the Deed of the grant of the reversion make no mention of the rent because the rent is incident to the reversion but not è converso for if a man in this case will grant the rent saving the reversion albeit the Tenant attorne yet that rent is but a rent-secke c. Co. ibid. 319. a. 3. 9 H. 6. 16. The Deane of Pauls case 20 Eliz. 33 If the Lessor disseise Tenant for life A rent incident or not incident to a reversion Diversity or ouste Tenant for yeares and maketh a Feofment in fée by this the rent is reserved upon the Lease for life or yeares is not extinguished but by the regresse of the Lessée the rent is revived because it is incident to the reversion And so it hath béen adjudged But if a man be seised of a rent in fée and disseise the Tenant of the land and make a Feofment in Fée the Tenant re-entreth this rent is not revived And to note a diversity betwéen a rent incident and a rent not incident to a reversion c. Littl. §. 590 591. Co. ibid. 324. 34 If I be seised of a Mannor parcel in demesne and parcel in service and I give certaine acres of land Rent incident to the reversâ—on A Donor cannot be ousted of it parcel of the demesnes to another in taile rendring rent in this case if I be disseised of the Mannor and all the Tenants attorne and pay their rents to the Disseisor and the Tenant in taile also pay to him the rent by me reserved and after the Disseisor dies and his heir is in by descent yet in this case I may well distraine the Tenant in taile and his heires for the rent so by me reserved because the rent reserved is incident to the reversion and the reversion of the land given in taile is still in me notwithstanding the disseisin and descent for as long as the Donée in tail is in possession he preserves the reversion in the Donor and so long as reversion continues in the Donor so long do the rents and services as incident thereunto belong to the Donor neither can the Donor be put out of his reversion unlesse the Donée be put out of his possession and if the Donee be put out of his possession consequently is the Donor put out of his reversion But if the Donee make a regresse and regaine his estate and possession thereby doth he ipso facto revest the reversion in the Donor c. There is the same reason of a Lease for life or yeares rendring rent c. 35 He that hath a remainder expectant upon an estate taile Error may bâ— brought by 〈◊〉 Reversionâ—â— or remâ—indâ—â— shall have a writ of Error upon a Iudgment given against the Tenant in taile Co. l. 3. 3. b. 4. The Marquess of Winchesters case albeit there was no such remainder at the Common Law For when the Statute de donis conditionalibus enabled the Donor to limit a remainder upon an estate taile all actions which the Common Law gave to privies in estate are by the same act as Incidents implicitely given also according to the rule of the Common Law And therefore as those in reversion or remainder expectant upon an estate for life shall have a writ of Error by the Common Law of a judgement given against Tenant for life although they were not made parties by aide prayer voucher or receipt So also since the Statute de donis conditionalibus shall he have that hath a reversion or remainder expectant upon an estate taile Co. l. 4. 8. b. 3. Bevils case 36 The seisin of a superiour service is seisin of all inferior services Superiour sâ—â—vice seisin oâ— inferiour incident unto it as seisin of Escuage is seisin of Homage and Fealty and seisin of Homage is seisin of Fealty and seisin of Rent is seisin of Fealty where the Seigniory is by Fealty and Rent Co. l. 4. 23. a. 1. Deal Rigdens case 37 Where by the custome of a Copihold Mannor plaints have béen made in the Court of the Mannor in the nature of reall actions Plaints in 〈◊〉 copihold 〈◊〉 to bar the 〈◊〉 in taile if a recovery in such a plaint be had against Tenant in taile admitting that Copihold land may be intailed that recovery shall work a discontinuance and shall take away the entry of the issue in taile for in as much as plaints in the nature of reall actions are warranted by the custome this is an Incident which the Law annexeth to the said custome viz. that such a recovery shall make a discontinuance which agrees with the reason of the principall point in Browns case Co. l. 4. 21. a. And the like judgement was given in B.R.M. 36 37 Eliz. betwixt Clun and Peale Rot. 1417. Copihold seâ—ered by cuâ—ome contiâ—ue severed â—lbeit surrenâ—red together â—n one copy 38 If a Copiholder is seised by force of several Copies Co. l. 4. 27. a. 4. Taverners case per Cur. Co. ibid. 28. a. 2. viz. of Black acre by 4d rent of White acre by vj d. and of Gréen acre by xij d. rent and he makes waste in part of Black acre or makes feoffment of it or denies the rent of it whereupon Black acre is forfeited This is no forfeiture of White acre or Gréen acre for although they are all in one and the same hand yet every of them is severally holden and to every acre there is a severall condition as an incident implicitely annexed unto it so that the forfeiture of one cannot be the forfeiture of any of the other because the severall conditions in Law do insue the severall tenures So likewise if the Copiholder of the said thrée acres surrender them altogether in one surrender to the use of A.
The case of the City of London upon the forfeiture of the paine of 5 l. for that he non existens libera persona c. usus est manuali occupatione de Tallow-chandler c. And upon the return of the Habeas Corpus into the Kings Bench the Court tooke advisement upon that part of it whereby it was averred that he non existens c. usus est manuali occupatione de Tallow-chandler c. and shewed not that he sold any Candles c. For if he made them for his owne use and sold none for gaine he might well do it as every one is permitted to bake or brew c. for their own use c. but it seemed to be implyed by the same averment that it was his trade by which he got his living viz. by selling the commodities of his Trade and not that he made them onely for his own use For it is not properly said that one useth a manual occupation when he onely doth it for himselfe as he that brews or bakes for his own use cannot be properly said to use the occupation of Brewer or Baker c. Malice praepence implied in indictments 12 If one kill a Minister of Iustice in the execution of his office Co. lib. 9 67. b. 3. Mackallies case the Indictment may well be general viz. that the Prisoner felonicè voluntariè ex malitia sua praecogitata c. percussit c. without alleadging any special matter for the evidence will well maintain the Indictment inasmuch as in this case the Law implies malice praepence So if a Thiefe which offers to to rob a true man kils the true man in resisting the Thiefe this is murder of malice praepence or if one kill another without any provocation or without any malice praepence that can be proved the Law adjudgeth that to be murder and implies malice And in both these cases they may be indicted generally that they killed de malice praepence for malice implied by the Law being given in evidence is sufficient to maintaine the generall indictment And so it was adjudged in Mackalleyes case for killing Fells a Serjeant of London Nuper implies the time past 13 If a man plead Co. l. 10. 59. b. 1. The Bishop of Sarums case Co. l. 10. 75. b. 2. The case of the Marshalsea that such a grant made per Iohannem nuper Episcopum Sarum c. was void These words nuper Episcopum c. imply and import that now he is not Bishop of Sarum Jurisdiction of a Court prohibited 14 When a Court is prohibited by Statute to hold plea of certaine causes if one be sued there contrary to that Statute he may not onely have a Supersedeas in the nature of a prohibition to cause the Iudge to cease proceeding but likewise shall have an action upon that Statute against the party that sues contrary to the same Statute notwithstanding that it is in course of legal proceeding and that the words of the Statute do not expressely give any such action to the party for that way of reliefe is a benefit which as a consequent is implied in every such Statute Co. lib. 11. 76. a. 4. Magdalen Colledge case 15 By the Statute of 18 Eliz. cap. 2. Good conâ—â—â—â—ration impâ—â—ed no conveyances of the Quéen are confirmed but such as are for the satisfaction of debts c. and other good consideration for so it is in the preamble and although good is omitted in the body of the Act yet it is necessarily implyed not onely by the connexion of the pâ—eamble to the purview but also by this word consideration which as in 16 Eliâ— Dyer 336. is a cause or occasion meritorious requiring a mutual recompence in Déed or in Law Co. lib. 11. 86. b. 3. The case of Monopolies 16 It appears by the Writ of Ad quod damnum in F. N. B. 222. Monopoliâ—â— that every gift or grant of the King hath this condition either expresly or implicitely annexed unto it Ità quòd patria per donationem illam magis solito non oneretur sèu gravetur And therefore every grant made in grievance or prejudice of the Subject is void Co. l. 11. 98. a. 4. James Bags case 17 There is a condition in Law tacitè annexed to the fréedome or liberty of a Citizen or Bâ—rgesse which if he break A Freemaâ— a Corporaâ— he may be dis-infranchised as if he commit any act which is against the duty and trust of his fréedome and to the prejudice of the City or Burrough and against the Oath which he tooke when he was made Frée-man these are causes of his removal Fitz. N. B. 134. f. 18 If the Tenant holds of his Lord by Homage Ancestrel Homage Ancestrel impâ— a warranty and is impleaded Albeit he hath no charter of it yet shall he have a Writ of Warrantia Cartae against the Lord for that tenure implies a Warranty Fitz. ibid. g. 19 If a man without deed makes a gift in taile Warranty aâ—plied or a lease for life rendring rent and after he is impleaded in an action wherein he cannot be vouched In that case he shall have a Writ of Warrantia cartae against the Donor or Lessor or his heire that hath the reversion for the reversion and the rent reserved makes a Warranty in Law by the Statute of Bigamis cap. ultimo albeit he hath no déed of it Fitz. ibid. h. 20 If a man grant land by these words Dedi concessi Dedi implies a warranty c. he shall be bound to Warranty during his life but not his heirs unlesse he be thereunto especially charged by the Grantor for these words Dedi concessi c. imply a Warranty and if the Feoffée be impleaded he shall have a Writ of Warrantia cartae against the Feoffor by force of those words in the deed c. 4. Dyer 26. 171. 28 H. 8. 21 Russell brings an action upon the case against A. for saying that he was a false Thiefe An action of the case for words and that such a night he would have robbed him to his damage c. And A. comes Et defend it vim c. quoad propalationem c. querens non fuit damnum in forma qua c. to which plea the Plaintiff demurred in Law and Iudgement was given for him because by implication the words are confessed and no damage can be more grievous then taking away a mans good name and a Writ of Inquiry was awarded 22 Vide Max. 19. Pl. 1. Dyer 41. 4. c. 30 H. 8. 23 In a Replevin the Plaintiff is non-suit Replevin Second deliverance whereupon the Defendant had a Returno habendo but about the same time the Plaintiff prays a Writ of second deliverance and had it and both the Writs were in the Sheriffs hands at one time unserved In this case the Writ of
Parson in the same plight condition that he was in upon his first presentation notwithstanding the presentment of the other by the Defendant c. â—nferiour Courts 30 When a writ of right is directed to the Lord of a Mannor Co. l. 6. 11. a. Jentlemans case or his Bayliffs or a Iusticies or other Vicontiel Writs are directed to the Sheriffe c. that shall not change the nature or jurisdiction of those Courts as to make the Lord or Sheriffe to whom those Writs are directed to be Iudges of those Courts respectively which were not so before but the Sutors do still remaine Iudges thereof Neither yet shall the direction of those Writs to the Lord or Sheriffe as aforesaid albeit they are in themselves matter of Record constitute the Lord or Sheriffe to be Iudges of Record or a Court Baron Hundred Court or County Court to be Courts of Record For upon a Iudgment given in any of those Courts a writ of False judgement lies and not a writ of Errour c. No change by â—emise of the â—ing 31 When the King demises his Crown to the next Successor Co. lib. 7. 29. b. 4. Discontinuance of processe per mort de la Roygne upon the general resummons by the Kings writ which begins thus Mandamus vobis quod ad sectam nostram animumque ligeorum populi nostri c. the originall and issue if any be joyned is revived for that is a full record and ought to be entred it is otherwise of the processe before issue joyned voucher garnishment c. yet they shall be also revived upon a special writ reciting all the special procéeding And it appeares by the booke of Entries tit Reattachment 499. that if the Issue be joyned and the Iury returned and a day given for tryall before which day the King dies yet by special resummons all shall be revived for the Iury was returned of record and the record thereof was made full and perfect c. Co. lib. 11. 64. a. 2. Doctor Fosters case 32 It is ordained by the Statute of 1 Eliz. cap. 2. Statutes for going to Church That every person shall resort to their Parish Church or upon let thereof to some other every Sunday and Holiday c. And by the Statute of 23 Eliz. cap. 1. That every person not repairing to Church according to 1 Eliz. 2. being thereof lawfully convict shall forfeit twenty pound for every moneth they so make default and that of the forfeitures aforesaid the Queen c. shall have the two third parts viz. the one to her owne use the other for reliefe of the poore c. and the other third part the prosecutor shall and may recover by action of debt c. And by the Statute of the 29 Eliz. cap. 6. it is enacted That every such offender once convicted shall afterwards in Easter and Michaelmas Termes pay unto the Exchequer twenty pound for every moneths absence from Church c. and if default be thereof made c. the Queens Majestie c. shall and may by processe out of the Exchequer seize all the offenders goods and two parts of his lands c. And lastly by the Statute of 35 Eliz. cap. 1. It is ordained c. that for the more speedy recovering c. of the forfeitures c. payable to the Queen c. by vertue of this Act and of 23 Eliz. 1. all and every such forfeitures c. shall be recovered c. by action of debt c. in the Kings Bench the Common Pleas or Exchequer as other debts may be recovered c. Here albeit the Statutes of the 29 and 35. séems to alter the law of the 23. in respect of part of the penalty given to the prosecutor by the 23. and being all of it mentioned as given to the Quéen in the other two subsequent Acts Yet the Act of the 23. remains in full force according to the tenour of the same notwithstanding the said subsequent Acts because those two Acts do not give the penalty to any new person but to the same person to whom the Statute of the 23. giveth it viz. to the Quéen c. and they are but acts of addition especially that of the 35. to give a more speedy remedy than was given by that of the 23. c. As in a Writ of Mesne the processe at the Common Law was Distresse infinite and although the Statute of Westm 2. cap. 9. gives a more speedy processe and in the end a Forejudger yet the Plaintiff may take which processe he will either at the Common Law or upon the said Statute because both are in the affirmative Vide ibid. many authorities accordant c. Co. ibid. 4. 33 In many cases the designation of one person in a late Act of Parliament Grant of Ward shall not exclude another person which was authorized to do the same thing by an Act precedent It is provided by the Statute of the 8 H. 6. cap. 16. that after office found c. he which found himselfe grieved might within the moneth after traverse and to take the lands and tenements to farm and that then the Chancellour Treasurer and other Officer shall demise unto him to farme untill c. Vide 13 E. 4. 8. And now by the Statute of the 1 H. 8. cap. 16. he hath liberty by the space of three moneths And after the Statute of the 32 H. 8. cap. 40. gives authority to the Master of the Wards with the advice of one of the Council to make a lease of the Wards lands or of an Idiots during the time that they shall remain in the Kings hands Here albeit the last designes another person yet doth it not utterly take away the first For if before any lease made by the Master of the Wards the Chancellour and Treasurer make one according to the Statute of 8 H. 6. then cannot the said Master demise the lands So also if the Master grant them first to another the Chancellour Treasurer c. cannot demise them to the party grieved as Stanford holds Praer fol. 69. a. b. where he mentioneth the rule Leges posteriores prioâ—es contrarias abrogant In 43 Ass Pl. 9. the Statute of 13 E. 3. de Mercatoribus which gives assise to the Tenant by Statute Merchant taketh not away the Assize which the Tenant of the Franktenement had before but both may well stand together So in 33 H. 8. Dyer 50. if it should be enacted that the youngest son should have an appeale of the death of his father that would not exclude the eldest son of his fuit because there are no words of restraint c. â—ncient Deâ—esne 34 In a writ of right Close if the writ of the Demandant abate F.N.B. 19. d. and thereupon he brings a writ of false judgement in the Common Pleas and there the judgement being reâ—ersed the writ is awarded good then shall the Demandant hold
2. 4. Sir Ed. dw Althams case and releaseth to the Reversioner omnes actiones c. sectas querelas Demand quaecunque nec non totam dotem suam ac titulum ac actionem dotis sibi contingent c. de aliquibus terris in Wethersfield c. this is onely a Release of her Dower in Wethersfield and not in Gosfield â—â—peachment Wast 6 If a man demise Land for life absque impetitione vasti Co. l. 11. 82. b. 3. Lewis Bowles case the Lessée may cut down the Timber-trees and convert them to his own use but if it be absque impetitione vasti per aliquod breve de vasto In that case the Action onely shall be discharged and not the property in the Trees so that the Lessor after they are felled may seise them c. Co. l. 3. 83. a. 4 Twines case 7 No purchaser shall avoid a precedent conveyance made by fraud and covin What is a good consideration within the Statute of 13 Eliz. 5. but he that is a purchaser for money or other valuable consideration For albeit in the preamble of the Statute of 13 El. 5. it is said For money or other good consideration and likewise in the bodie of the Act For money or other good consideration Yet these words good consideration are to be understood onely of valuable consideration and this appears well by the clause which concerns them that have power of revocation for there it is said For money or other good consideration paid or given and this word paid is to be referred to money and given is to be referred to good consideration so the sense is For money paid or other good consideration given which words exclude all considerations of nature bloud or the like and are to be understood of valuable consideration which may be given and therefore he that makes the purchase of the land for valuable consideration is the onely purchaser within that Statute And this last clause doth well expound these words other good consideration mentioned before in the preamble and bodie of that Act. 54 No man can do an act to himself Co. Inst pars 1. 38. b. 4. 39 a. 4. 1 A Feme Guardian in Soccage shall not endow her selfe De la plus beale without judgement Feme Doweâ— but after judgement she may as Littleton saith § 49. for then it is the act of the Law and not simply hers Co. ib. 48. b. 1. 2 If A. by Déed give lands to B. to have and to hold after the death of A. to B. and his heirs this is a void déed Grant in fâ—turo void because he cannot reserve to himselfe a particular estate and construction must be made upon the whole déed Littl. §. 168. Co. ib. 112. a. 3 A man cannot make any grant of lands Baron canâ—â— grant to feâ—â—â— c. to his wife during the Coverture because they are but one person in Law and a man cannot do an act to himselfe c. Littl. §. 212. Co. ib. 141. a. 4 A man cannot be judge in his owne cause No distresse iâ—repleviable and therefore if a man will prescribe that if any Cattle he Damage fesant upon the Demesnes of his Mannor he may detaine them untill he be satisfied for the damage at his own will and pleasure this custome is repugnant to reason and ought not to be allowed by the Iudges For Malus usus abolendus est quia in consuetudinibus non diuturnitas temporis sed soliditas rationis est confideranda Co. ib. 141. a. 2. Finch 19. 5 A fine levied before the Bailiffs of Salop was reversed A Fine void because one of the Bailiffs was party to the fine Quia nemo debet esse judex in propria causa Nemo potest esse judex c. Hillar 4. H. 4. Coram Rege Salop. Littl. §. 479 480. Co. ib. 280. a. 1. and 307. a. 4. Littl. §. 543 544. 6 If there be Lord and Tenant Extinguishment of rent c. and the Lord releaseth to the Tenant his Seigniory this must of necessity enure by way of extinguishment For the Tenant cannot have service to be taken of himselfe neither yet can one and the same man be both Lord and Tenant So also if a Rent-charge be granted out of land and the Grantée releaseth or granteth the rent to the Terre-tenant in this case the rent is extinct for a man cannot have land and also rent issuing out of the same land neither yet can he pay the rent to himselfe There is the same reason of Common of Pasture released to the Tenant of the land for that also works an extinguishment because a man cannot have Land and a Common of Pasture issuing out of the same land c. Co. ib. 280. a. 3. 7 If there be Lord and Tenant by Fealty and Rent Increasing extinguishment the Lord granteth the Seigniory for yeares and the Tenant attorneth the Lord releaseth his Seigniory to the Tenant for years and to the Tenant of the land generally the whole Seigniory is extinct and the estate of the Lessée also but if the release had béen to them and their heirs then the Lessée had had the inheritance of the one moity and the other moity had béen extinct And the reason of this diversity is because when the release is made generally it cannot enure to the Lessée longer than for life because it enureth by way of enlargement and being made to the Tenant of the land it enureth by way of Extinguishment because he cannot do service to himselfe and then there cannot remaine in the Seigniory a particular estate for life But when the release is made to them and their heirs each one takes a moity the one by way of encreasing of the estate and the other by extinguishment â—cceptance â—ttornment 8 If there be Lord and Tenant Littl. §. 558. Co. ib. 312. b. and the Tenant lets the Tenements to a Feme for term of her life the remainder over in fée the Feme takes Baron and after the Lord grants the services c. to the Baron and his heirs In this case there can be no attornment by parol c. because the Baron that ought to attorn cannot attorn to himselfe but his acceptance of the grant of the Seigniory amounts to an Attornment in Law The like 9 If the Lord grant his Seigniory to the Tenant of the land and to a stranger the Tenant cannot properly and formally attorn to himself Co. ib. 313. a. 1. but his acceptance of the grant is a good attornment in Law to extinguish the one moity and to vest the other moity in the stranger 10 If there be Lord and Tenant and the Tenant take Feme Littl. §. 559. Co. Inst pars 1. 313. a. and after the Lord grant the services to the Feme and her heirs Acceptance Attornment Here can be no
a difference when one cometh to a particular estate in land by the act of the party and when by act in Law for if the Guardian hold over he is an abator because his interest came by act in Law c. Privies their several kinds 51 Privity in the understanding of the Law is four-fold Co. ib. 217. a. 3. 1 Privies in estate as betwéen Donor and Donée Lessor and Lessee which privity is ever immediate 2 Privies in Bloud as the heir to the Ancestor or between Coparceners c. 3 Privies in Representation as Executors c. to the Testator 4 Privies in tenure as the Lord and Tenant c. which may be reduced to two generall heads Privies in Deed and Privies in Law To these also may be added Privies in right as Prececessor and Successor unlesse you may ranke them with Privies in Representation Release withâ—â—t privity â—oid 52 A release shall not enure by way of enlarging of an estate Co. ib. 272. b. 4. c. Little Sect. 547. unlesse there be privity of estate as between Lessor and Lessee Donor and Donee for if A. make a lease to B. for life and the Lessee maketh a lease for years and after A. releaseth to the Lessee for years and his heirs this release is void to enlarge the estate because there is no privity between A. and the Lessee for years So likewise if a man make a lease for 20 years and the Lessee make a lease for 10 years if the first Lessor doth release to the second Lessée and his heirs that release is void Likewise if the Donee in tail make a Lease for his own life and the Donor release to the Lessee and his heirs this release is void to enlarge the estate c. Co. ib. 273. a. 4. 53 If a man make a Lease for yeares the remainder for life Release to privies in estate good a release by the Lessor to the Lessee for years and to his heires is good for that he hath both a privity and an estate and a release also to him in the remainder for life and his heires Doct. Leyfields case is good also for these are privies in estate c. But they ought to have the Deed ready in their fist to plead Co. l. 10. 93. a. 4. Littl. §. 470 471. Co. ib. 275. a. 4. 54 If my Tenant for terme of life lets the land to another for terme of the life of the Lessee the remainder to another in Fee The like Here if I release to my Tenants Lessee for life I am barred for ever albeit there be no mention of Heires because at the time of the release I had no reversion but onely a right to have a reversion for by such a Lease and the remainder over which my Tenant made my reversion was discontinued or rather devested c. And such release shall also enure to him in remainder to take advantage thereof as well as the Tenant for life because he and my Tenants Lessee for life are privies in estate c. being as it were but as one Tenant in Law solely seised in his Demesne as in fee at the time of the release made c. So likewise if a Disseisor make a Lease for life Co. ib. 275. b. 2. and the Disseisee doth release all his right to the Lessee this release shall enure to him in the reversion c. Co. ib. 279. b. 2. 55 If there be Lord and Tenant The like and the Tenant maketh a lease for life the remainder in Fee if the Lord release to the Tenant for life the rent is wholly extinguished and he in the remainder shall take benefit thereof So also if the heire of the Disseisor be disseised and the Disseisor make a Lease for life the remainder in fee if the first Disseisee release to the Tenant for life that shall enure to him in remainder c. Co. ib. 285. b. 4. 56 A release of actions shall onely extend to such as are privies to the Deed of release and to none other A release of actions extends onely privies and therefore if the Disseisee release unto the Disseisor all actions real and the Disseisor maketh a feofment in Fee and an Assise is brought against them the Feoffee shall not plead the release to the Disseisor for that he is not privie to the release So likewise if a Disseisor make a Lease for life the remainder in Fee and the Disseisee release all actions to the Tenant for life after the death of the Tenant for life he in the remainder shall not plead that release Also if the Disseisee release all actions to the Disseisor and die this is onely a barre to the Disseisee during his life for after his decease his heir may have an action as some have said 19 H. 6. 23. a. And hereby may appear a manifest diversity between a release of a right Co. ib. 286. a. 4. and a release of actions c. If the heir of the Disseisor make a Feofment in Fee to two and the Disseisée releaseth to one of the Feoffées all actions and that Feoffee dieth the Survivour shall not plead that release c. Co. ibid. 297. b. 1. 57 If the Disseisor make a Lease for life to A. and B Disseisee â—â—firmes to jâ—â— tenant of Dâ—seisor and the Disseisee confirme the estate of A. B. shall take advantage thereof because of the privity for the estate of A. which was confirmed was joynt with B. and in that case the Disseisee shall not enter into the land and devest the moity of B. So likewise if the Disseisor enfeoffe A. and B. and the heires of B. if the Disseisee confirme the estate of B. for his life this shall not onely extend to his Companion but also to his own whole Fee-simple c. â—elease from Disseisee 58 If a Feme Disseisoresse make a Feofment in Fee to the use of A. for life and after to the use of her selfe in taile Co. ib. 297. b. 4. and the remainder to the use of B. in Fee and then taketh husband the Disseisée who releaseth to A. all his right this shall eâ—â—are to B and to his own wife also for they are all privies in estate c. A Confirmation works not â—ithout priviâ—ie 59 A Confirmation shall never enlarge an estate Co. ib. 296. a. 2. 305. a. 4. b. 2. Littl. Sect. â—38 but when there is privity neither yet shall it regularly abridge Services but where there is privity As if there be Lord and Tenant and the Tenant holds of the Lord by Fealty and 20 s. rent the Lord may by his Déed confirme the estate of the Tenant to hold by 12 d. or by a penny or by an halfe penny and in this case the Tenant is discharged from all other Services but what are contained in the said Confirmation and this is in
67. a. Tookers case 67 If two Ioyntenants let their land for life reserving rent Release of one Joyntenant to another c. if one of them release unto the other that release unto the other that release is good to settle the whole estate and rent in him to whom the release is made without any attornment at all of the Tenant for life in respect of the privity betwéen the Tenant for life and them in the reversion So it is also albeit there be thrée or more Ioyntenants and one of them release to one of the other Howbeit there is a difference betwéen these releases for the release in the â—â—e case maketh no degrée but he to whom the release is made is supposed in from the first Feoffor whereas in the other it worketh a degrée and he to whom the release is made is in the per by him that made it yet in neither of these cases is there any attornment requisite by reason of the privity But if one Ioyntenant make a Lease for years reserving a rent and dieth the other Ioyntenant shall have the reversion because he claimes paramount that Lease as by the first Feoffor Howbeit he shall not have the rent for that there is no privity betwéen him and the Tenant for years as there was in the other case betwéen the tenant for life and them in the reversion c. Attornment by â—ne Joynteâ—ant good for â—oth 68 If two joynt Lessées for years Co. ib. 319. a. 4. or for life be ousted or disseised by the Lessor and he enfeoff another Here if one of the Lessées re-enter this is a good attornment and shall bind both in respect of the privity betwéen the Ioyntenants For an attornment in Law is as strong as an attornment in Deed. Co. l. 2. 67. a. Tookers case Grant of a Seigniory by â—ne shall have â—n Assise beâ—ore attornment 69 If there be Lord and Tenant Littl. §. 579. Co. ib. 320. a. 2. Littl. §. 580 581 582. v. Dyer R. 5. 6. and the Lord grants the Services by Fine hereby the Services are immediately in the Grantée by force of the Fine Howbeit he cannot distraine for any part of the Services without attornment because an Avowry is in lieu of an action which he cannot have without privity nor privity without attornment neither yet before attornment can he have an action of wast a writ of entry ad communionem legem or in consimili casu or in casu proviso a Writ of Customes and Services a Writ of Ward c. But if a man make a Lease for years and grant the reversion by Fine if the Lessee be ousted and the Conusee disseised the Conusee without attornment shall maintaine an Assise for that Writ is maintained against a stranger where there needeth no privity And of such things as the Lord may seise or enter into without suing any action the Conusee before any Attornment may take benefit as to seise a ward or heriot or to enter into the lands or tenements of a ward or escheated to him or to enter for an Alienation of Tenant for life or years or of Tenant by Statute Merchant Staple or Elegit to his Disherison Discontinuâ—nce barres entry 70 One of the chiefe reasons why a Feofment in fee gift in tail Co. ib. 327. a. 1. or Lease for the life of the Lessée made by the Tenant in taile doth make a discontinuance to take away the entry of him in reversion or remainder in case the Tenant in tail die without issue is because the Tenant in tail and he in the reversion or remainder are privies in estate c. Where it is no â—ane 71 If Tenant in tail make a Lease for the life of the Lessée Co. ibid. 333. b. 4. Littl. Sect. 620. and afterwards grant the reversion to another and the Tenant for life attorns and dies and the Grantée of the reversion enters in the life of the Tenant in tall and after the Tenant in tail dies In this case the issue cannot enter but is put to his Formedon in respect of the privity between the Tenant in tail and his issue the Grantee of the reversion having seisin and execution of the entailed lands in the life and from the grant of the Tenant in tail himselfe Howbeit if Tenant in taile make a Lease for life and grant the reversion in fee and the Lessee attorn as before and that Grantee granteth it over to another and the Lessee attorneth again to the last Grantee and then the Lessee for life dieth so as the reversion is executed in the life of Tenant in tail yet this is no discontinuance but that after the death of the Tenant in tail the issue may enter because the last Grantee was not in of the grant of the Tenant in tail himselfe but of the first Grantee between whom and the issue in tail there is no privity c. â—iscontinuâ—ce 72 If at this day Tenant in tail make a Lease for life Co. ib. 333. b. 4. and after by Deed indented and inrolled according to the Statute he bargaineth and selleth the reversion to another in fee and the Lessee dieth so as the reversion is executed in the life of Tenant in tail Albeit the Bargainee is not in the per by the Tenant in tail but rather in by force of the Statute yet in as much as he claimeth the reversion immediately from him which is executed in his life time this is a discontinuance And so it is and for the same cause if Tenant in tail had granted the reversion to the use of another and his heirs c. in respect of the privity between the Tenant in tail and his issue c. Co. ib. 351. a. 4. 73 If a woman grant a term to her own use A trust goeth to Executoâ—â— and not to the Baron taketh Husband and dieth the Husband surviving shall not have this trust but the Executors or Administrators of the Wife for it consisteth in privity P. 32 Eliz. in Canc. in Withams case c. Co. Inst pars 1 352. a. 4. 74 In every Estoppel privity is required Estoppels for it ought to be reciprocal viz. ought to binde both parties and therefore regularly a stranger shall neither take advantage nor be bound by an Estoppel But privies in bloud as the heir Privies in estate as the Feoffee Lessee c. Privies in Law as the Lord by escheat Tenant by the Courtesie Tenant in Dower the Incumbent of a Benefice and others that come under by act in Law or in the Post shall be bound and take advantage of estoppels c. Littl. §. 674 675. Co. ib. 356. a. 3. 75 If a man let a house to a woman for life For an actâ—â—â— of wast priâ—â— is requisite saving the reversion to the Lessor and after one sues a feigned action against the woman and recovers the
house against her by default so that the woman may have against him a Quod ei deforceat according to the Statute of Westm the second by this the reversion of the Lessor is discontinued so that he cannot have any action of Waste either against the woman because she hath not possession of the house nor against the recoverer by feigned title for that there is no privity betwéen the Lessor and him but in this case if the Feme take Baron and the recoverer lets the house to the Baron and Feme Here the Feme is in her remitter by force of the first lease and then if the Baron and Feme make waste the first Lessor shall have against them a writ of waste because in as much as the Feme is in her remitter the Reversioner is also remitted to his reversion and so by consequent the privity and power of bringing a writ of Waste is re-continued For when the reversion is devested the Lessor cannot have an action of Waste because the writ is that the Lessée did waste ad exhaeredationem of the Lessor and that inheritance must continue at the time of the action brought It is likewise to be observed that in an action of waste brought by the Lessor against the Lessée the Lessee in respect of the privity cannot plead generally Riens en le reversion That the Lessor hath nothing in the reversion but he must shew how and by what means the reversion is devested out of him but if the Grantee of a reversion bringeth an action of waste the Lessee may plead generally that the Lessor hath nothing in the reversion because in that case there wants privity c. 〈◊〉 l. § 698. 〈◊〉 â—ib 366. b. 3. 76 Regularly a warranty that commenceth by disseisin is Warranty commecing 〈◊〉 disseisin 〈◊〉 not when the disseisin is done immediately to the heire that is to be bound Yet if the father be Tenant for life the remainder to the son in fee the father by covin and consent maketh a lease for years to the end that the Lessee shall make a feoffment in fee to whom the father shall release with warranty and all is executed accordingly the father dieth this warranty shall not bind albeit the disseisin was not done immediately to the son for the feoffment of the Lessee is a disseisin to the father who is particeps Criminis Neverthelesse by reason of the privity between the father and his Lessee that which is done by the Lessee is conceived done by the father for that they are not onely privies in estate but likewise in this case privies in combination So if father and son and a third person be Ioyntenants in fee the father maketh a feoffment in fee of the whole with warranty and dieth the son dieth the third person shall not onely avoid the feoffment for his own part but also for the part of the son and he shall take advantage that the warranty commenced by disseisin albeit the disseisin was done to another because all the three joyntenants were also privies in estate c. So it is also if one brother make a gift in tail to another brother and the Vncle disseise the Donee and enfeoffeth another with warranty the Vncle dieth and the warranty descendeth upon the Donor and then the Donee dieth without issue Here albeit the disseisin was done to the Donee and not to the Donor yet the warranty shall not bind him for what was done in this case to the Donee ought to be adjudged done to the Donor because all these were privies in bloud c. â—â—rticular eâ—â—â—te and reâ—ainder one â—tate 77 If there be Tenant for life Co. ib. 369. b. 2. the remainder in fee by lawful and just title he in the remainder may obtain and get the pretenced right or title of any stranger and shall not thereby incurre the penalties of the Statute of the 32 H. 8. cap. 9. made against buying such titles because the particular estate and the remainder are in Law accompted as one estate in respect of the privity that is found between them â—ontra formam â—llationis 78 No man shall have a writ of Contra formam collationis Co. ib. 384. b. 1. but onely the Feoffor and his heirs who are privy to the deed and privies in bloud F. N. B. 211. c. â—ssignee may â—ouch 79 If a man enfeoff A. and B. to have and to hold to them and their heirs with a clause of warranty Co. ib. 384. b. 3. Praedictis A. B. eorum haeredibus assignatis In this case if A. dieth and B. surviveth and dieth and the heir of B. enfeoffeth C. he shall vouch as Assignee and yet he is but the Assignee of the heire of one of them for in judgement of Law and in respect of the privity the Assignee of the heir is the Assignee of the Ancestor and so the Assignee of the Assignee shall vouch in infinitum within these words his Assignes 80 If a man enfeoffeth A. to hold to him his heirs and Assignes Co. ib. 3 84. b. 4. A. enfeoffeth B. and his heirs The like B. dieth Here the heir of B. shall vouch as Assignée to A. to his heirs of Assignes and Assignes of Assignes and assignes of heirs in respect of the privity are comprehended within these words his Assignes which séemed to be a question in Bractons time And the Assignée shall not onely vouch but also have a Warrantia cartae Land warranted without the word heirs 81 If a man doth warrant land to another without this word Heires his heirs shall not vouch And regularly Co. ibid. if a man warrant land to a man and his heirs without naming Assignes his Assignée shall not vouch But if the father be enfeoffed with warranty to him and his heirs the father enfeoffeth the eldest son with warranty and dieth Here in respect of the privity the Law giveth to the son advantage of the warranty made to the father and the rather because by act in Law the warranty betwixt the father and the son is extinct Voucher Rebutter 82 If a man at this day be enfeoffed with warranty to him Co. ib. 385. a. 3. his heirs and assignes and he make a gift in tail the remainder in fée and the Donée makes a feoffment in fée Here that Feoffée shall not vouch as Assignée because no man shall vouch as Assignée but he that cometh in in privity of estate but he must vouch his Feoffor and that Feoffor shall vouch as Assignée Howbeit such an Assignée may rebutt Rebutter without privity 83 If a warranty be made to a man and his heirs without this word Assignes he grants over the land to another in fée Co. ibid. his Assignée shall not vouch but the Assignée or any other Tenant of the land may rebutt And albeit no man shall vouch or have a Warrantia cartae either as
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
vocation in Anno 11 Eliz. conveyed his lands to the use of himself for life and after to the use of Philip Earl of Arundel his eldest son in tail with divers remainders over and with proviso that if he should be minded to alter and revoke the said uses and should signifie his mind in writing under his own hand and seal subscribed by three credible witnesses that then c. and afterwards the said Duke was attainted of high treason In this case that proviso or condition was not given to the Quéen by the act of the 33 H. 8. cap. 20. because the performance thereof was personal and inseparably annexed to the person viz. to signifie his mind by writing under his own hand which none could do but the Duke himself upon which point all the possessions of the Dukedome so conveyed as aforesaid were saved and not forfeited by the attainder Vide 44. 8. â—o ib. 13. a. 3. 106 The Templers held divers of their possessions in Frankalmoign which tenure as Littleton saith Privity stâ—â—er then the â—â—neral word 〈◊〉 an Act of â—â—â—liament is annexed in privity to the bloud of the Donor and after they were dissolved and by Parliament Anno 17 E. 2. their possessions were given to the Hospitalers to hold them in the same manner as the Templers held yet by those general words they held not in Frankalmoign because the privity of the tenure on the Tenants part continued not and that privity being personal and inseparable by the general words of the act was not transferred to the Hospitalers There is the same law of the impropriation of a Church Founderâ—â— inseparabâ—â— which is also on incident inseparable to the house of Religion whereunto the Church is impropriate And therefore it is adjudged P. 3. E. 3. that the Hospitalers by the said Act of the 17 E. 2. should not have an Impropriation which was formerly inseparably annexed to the Corporation of the Templers because such a thing as that consisting in inseparable privity by the general words of an Act of Parliament shall not be transferred to others Co. l. 7. 13. a. 4. Englefeilds case 107 In tempore H. 8. Brook tit Corodie 3. it is holden Foundersâ—â— inseparable that a foundership which is inseparably annexed in privity to the bloud of the Founder shall not be forfeited by attainder â—ivity in â—oud estate â—â—d law diâ—â—rsities 108 There are three manner of privities viz. privity in bloud Co. l. 8. 42. b. 4 c. in Whittinghams case privity in estate and privity in Law Privies in bloud are meant of privies in bloud Inheritable and that is in 3 manners viz. inheritable as heir general heir special or heir general and special Privies in estate are as Ioyntenants Baron and Feme Donor and Donee Lessor and Lessee c. Privies in Law are as when the Law without bloud or privity of estate casts the land upon one or makes his entry congeable as the Lord by escheat the Lord that enters for Mortmaine Lord of a Villaine c. And first privies inheritable as heir general shall take benefit of Infancy and therefore if an Infant Tenant in Fée simple make feofment and die his heir shall enter there is the same Law also of him that is heir general and special as if a man give lands to another and the heirs male of his body and the Donée within age make feofment in Fée his Sonne that is heir general and special shall enter It is so also of him that is heir special and not general as if in the same case the Donée hath issue two Sonnes and the eldest hath issue a daughter and the Donee dies and the eldest Sonne within age makes feofment and dies without issue male the youngest Sonne is special heir per formam doni and shall avoid the feofment of his brother although he is not heir general because he is privie in bloud and hath the land by descent So if lands be given to one and the heirs female of his body and the Donee having issue a sonne and a daughter makes feofment within age and dies Here the daughter being heir special unto whom the right of entry descends shall enter and not the sonne unto whom nothing descends So it is likewise of the heir in Borough English for in all cases when any claimes by descent as heir special he shall take benefit of a right of entry which descends unto him for the infancy of his Ancestor There is likewise the same Law if his Ancestor were non compos mentis at the time of making the feofment because in those and such like cases the heir general cannot enter for that no right or title descends unto him but the right descends to the heir special Howbeit privies in estate unlesse it be in some special cases shall not take advantage of the infancy of the other and therefore if Donee in tail within age make feofment in fee and die without issue the Donor shall not enter because there was onely privity in estate betwéen them and no right accrued to the Donor by the death of the Donée So if there be two Ioyntenants in fée within age and the one maketh feofment in fee of his moitie and dies the survivour cannot enter by reason of the infancy of his companion because by his feofment the joynture was severed so long as the feofment remaines in force And therefore in such case the heir of the Feoffor shall have a Dum fuit infra etatem or shall enter into the moity But if there be two Ioyntenants within age and they joyn in a feofment in that case a joynt right shall remaine in them and therefore if one of them die the right shall survive and the survivor shall have the right of the land as from the first Feoffor which makes Littleton seem to hold cap. Discontinuance fol. 44. that the Survivour may enter in respect of the right accrued unto him For otherwise indeed this mischiefe would ensue that the heir of that Feoffor which died cannot enter for that the right survived nor yet the survivor because he shall not take advantage of the infancy of his companion but shall be forced to his writ of Right which without question he may have for that after the feofment the Ioyntenants might have joyned in it c. Lastly privies in Law as Lord by escheat Co. ib. 44. a. 4. c. shall never take advantage of the privity of infancy because he is a stranger to it and when the Infant dies without heire the feofment is unavoydable The same Law of Coverture and non same memory 109 A. grants lands to B. in tail Accruer of estate and farther that if B. or his heirs pay unto A. upon such a day at such a place xx s. that then B. shall have an estate of Fee-simple in the lands to him and his heirs In this case the privity of the estate
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
Longeville Madame de Chevreuse c. 61 A matter of higher nature determineth a matter of lower nature contrà Co. Inst pars 1. 83. a. 4. 1 If a Tenant by Castle-guard do serve the King in his warre Castle-guaâ—â— he shall be discharged against the Lord according to the quantity of the time that he was in the Kings host Co. ib. 115. a. 3 2 If there be any sufficient proof of record or writing against a prescription A record or writing quaâ—eth a â—rescrâ—ption albeit such a record or writing excéed the memory or proper knowledge of any man yet are they within memory of man and shall quash the prescription for a matter in writing shall determine a matter in fait and a record or sufficient matter in writing are good memorials and therefore it is said litera scripta manet and when we will by any record or writing commit the memory of any thing to posterity the phrase is tradere memoriae c. 21 H. 7. 5. 3 A man hath liberties by prescription The like and after taketh a grant of those liberties by Letters Patents from the King this determineth the prescription for a matter in writing determineth a matter in fait Finch 22. Co. l. 6. 45. a. 4. Higgens case Vide ib. parl auth 33 H. 8. Dyer 50. Pl. 4. 4 If an offence which is murther at the Common Law Murder dâ—â—ned by treason be made treason no appeal shall lie of it because the offence of murther is drowned and it is punishable as treason onely whereof no appeale lyeth c. Finch 2â— Co. ib. 41. b. 4. 5 If A. be Tenant for life the remainder or reversion to B. for life Tenant for life may sâ—â—render to the reversioner 〈◊〉 life in this case A. may surrender to B. For the estate of B. for term of his own life is higher than an estate for another mans life and therefore if Tenant for life enfeoff him in the remainder for life this is a surrender and no forfeiture And generally from this ground it is that estates of lower nature are drowned in others of higher nature when they méet together in one and the same person Hereupon also ariseth extinguishment betwéen Lord and Tenant c. Co. l. 541. a. 2. in Sparrows case 6 If a man bring an action of Debt by bill in London or Norwich Suit in a lower Court abates not 〈◊〉 in an highâ— or in any other inferiour Court and after bring a writ of Debt in the Common Pleas that suit in the higher Court which is purchased hanging the suit in an inferiour Court shall not abate as appears in 7 H. 4 8. 3 H. 6. 15. Vide 43 E. 3. 22. 7 H. 4. 44. Briminghams case Co. l. 6. 45. a. 2. in Higgins case 7 After judgement upon an obligation for Debt A Iudgmenâ— destroys a bond so long as that judgment remains in force the Plaintiff cannot have a new action upon thâ—t obligation For as when a man hath a debt by simple contract if he take an obligation for the same debt or for any part thereof that taking of the obligation determines the former contract 3 H. 4. 17. 11 H. 4. 9. 9 E. 3. 50 51. So when a man hath a debt upon an obligation and by the ordinary course of Law hath judgement thereupon the contract by specialty which is of a lower nature is by the judgement of the Law changed into a matter of record which is of an higher nature Vide 56. 4. Co. l. 6. 45. a. 4. ibid. 8 If a man hath an annuity by déed or prescription The like and bring a writ of Annuity and hath judgement So long as this judgement remains in force he shall never have a writ of Annuity more albeit the Annuity be of inheritance but shall in that case have a Scire facias upon that judgment because the matter of specialty or prescription is altered by the judgement into a thing of an higher nature Vide 37 H. 6. 13. Iudgment in an action of forging a false déed is a good barre in another action upon the same forger But if recovery be in debt upon an obligation per Justicies there notwithstanding such judgement the Plaintiff may have an action of debt upon the same obligation in a Court of Record For the County Court being not a Court of Record the obligation is not by a judgement in that Court changed into any other thing of an higher nature but so long as such judgement remains in force the Plaintiff shall not have any other action upon the same obligation by Justicies in the same Court M. 2. Jac. Rol. 3172. in Com. Banco 11 H. 4. Br. Faits 19. Howbeit if a man be indebted upon an obligation and afterwards acknowledg a Statute Staple for the same debt and in full satisfaction of the said obligation in that case the Creditor may sue which of them he pleaseth for a Statute Staple or obligation in nature thereof is but an obligation recorded and an obligation be it of record or not of record cannot drown another Also a bare obligation and an obligation in nature of a Statute Staple are two distinct bonds made by assent of the parties without processe of Law whereof the one hath no dependance upon the other but in an action brought upon an obligation the suit is grounded upon the obligation as the edifice upon a foundation and the Plaintiff hath judgement to recover the debt due by the same obligation so that by a judicial procéeding and act in Law the debt due by the obligation is transformed and metamorphosed into a matter of record And a judgement in a Court of Record is a higher matter than a Statute Staple Statute Merchant or any recognisance acknowledged by assent of parties without judicial procéeding No Oyer and Termin where the K. Bench sâ—ts 9 In the Lord Sanchiers case in the 9 Rep. it was moved Co. l. 9 118. b. 3. in the Lord Sanchiers case in the case of the Marshalsie Co. li. 10. 73. b. 4. whether the said Lord Sanchier might not in the Term-time be indicted arraigned and convicted at Newgate before Commissioners of Oyer and Terminer for the County of Middlesex and it was resolved that he could not For the Kings Bench is more than an Eire and therefore in the Term-time no Commissioners of Oyer and Terminer or of Gaole delivery by the Common Law may sit in the same County where the Kings Bench sits because in praesentia majoris cessat potestas minoris And with this accords the 27 Assises Pl. 1. But Carlisle and Inweng the two Confederates of the Lord Sanchier were indicted and attainted in London where the murther was committed before Iustices of Oyer and Terminer in the Term-time because it was in another County than where the Kings Bench sate No Marshalsie wher 's the
thereof descends upon him In all these cases both body and land are discharged for by the execution against body and land the land was de facto charged and so became debtor and by the feoffment surrender or descent the land was also discharged because a discharge of part of a thing in execution is a discharge of all be it by act of the party or by act of Law for the duty being personal and intire the execution as accessary thereunto is intire also c. Co. l. 10. 109. b. 4. in Legats case 35 If a Bailiff or other officer of the Kings Mannor suffer any to intrude upon any parcel of the Demesnes No conceâ—â—ment so that nothing is answered for it in particular unto the King but onely the ancient rent of the Mannor c. Yet that parcel so intruded upon shall not in Law be said to be concealed nor passe by any such name in any grant of it from the King For the Mannor it self being in charge and accompt by consequent every part thereof is so also And Turpis est pars quae non convenit cum suo toto Co. Inst pars 1. 337. a. 4. 36 If two Ioyntenants within age make feoffment in fée Joyntenaâ—â— shall joyâ—â— action they may enter joyntly in their lives or joyn in a writ of right because entry or a writ of right follow the nature of the estate which is joynt but they shall not joyn in a Dum fuit infrà aetatem because that follows the nature of their several persons which in that case are the principals for the nonage of the one is not the nonage of the other c. Rent partable as the land 37 If Gavelkind land be let for years rendring rent Dyer 5. b. 1. 26 H. 8. the rent is partable as the land It séems to be otherwise of a Rent-charge granted out of the land because that is collateral to the land and intire per Fitz-herbert Principal and Accessary 38 Mistris Sanders was accessary to the murther of her husband Dyer 253. 103. 8 Eliz. and because it was but murther in the principal that killed him it could not be petty Treason in his wife It is otherwise where the wife conspires with her servant to kill her husband Dyer 332. 25. 16 Eliz. who doth it in the absence of the wife yet this is petty Treason in the wife being but accessary because petty Treason in the servant 65 A mans own words are void when the Law speaketh as much or otherwise Vide M. 41. 6 7 9. New invented settlements void 1 If lands are given to a man to have and to hold to him and his heirs on the part of his Mother Co. Inst pars 1. 13. a. 2. yet the heirs of the part of the Father shall inherit for no man can institute a new kind of Inheritance not allowed by the Law and the words On the part of his Mother are void So if lands are given to a man and to his heirs male the law rejecteth this word Male because there is no such kind of inheritance c. No execution of the estate to the use 2 By the Statute of Westm 2. cap. 1. Co. ib. 19. b. 3. the land is as it were appropriated to the Tenant in tail and to the heirs of his body and therefore if an estate be made either before or since the Statute of 27 H. 8. cap. 10. of uses to a man and the heirs of his body either to the use of another and his heirs or to the use of himself and his heirs this limitation of use is utterly void For before the said Statute of 27 H. 8. he could not have executed the estate to the use And so it was adjudged in an Ejectione Firmae betwéen John Cooper Plaintiff and Thomas Franklin and others Defendants P. 14. Ja. in B. R. A mans heirs remain in him during his life 3 If a man make a gift in tail or a lease for life Co. ib. 22. b. 4. Binghams case Co. l. 2. 91. b. 2. in Mitfords case T. 31 El. ibid. recite cum plur ab author the remainder to his own right heirs this remainder is void and he hath the reversion in him For the Ancestor during his life beareth in his bodie in judgement of Law all his heirs and therefore it is truly said that Haeres est pars antecessoris And this also appeareth in a common case for if land be given to a man and his heirs all his heirs are so totally in him as he may give the land to whom he will So it is also if a man be seised of lands in fée and by Indenture make a lease for life the remainder to the heirs male of his own body this is a void remainder for the Donor cannot make his own right heir a purchaser of an estate taile without departing with the whole estate out of him but by departing with the whole estate he may As if a man make a feoffment in fée to the use of himself for life and then to the use of the heirs male of his body this is a good estate taile executed in himself and the limitation is good by way of use because it is raised out of the estate of the Feoffées which the Feoffor departed with c. Reversion in â—ature of a â—emainder 4 If a man make a feoffment in fée to the use of himself in tail Co. Inst pars 1. 22. b. 4. and after to the use of the Feoffée in fée In this case the Feoffée is in by the Common Law not withstanding the expresse words of a remainder and the Statute of uses 27 H. 8. cap. 10. For he hath still a reversion but in nature of a remainder and yet the Feoffor hath the estate tail executed in him by the same Statute Delivery of a â—riting 5 If a man deliver a writing sealed to the party to whom it is made Co. ib. 36. a. 1. Co. lib. 9. 137. a. 1. in Thoroughgoods case as an escrow to be his déed upon certain conditions c. this is an absolute delivery of the déed being made to the party himself for the delivery is sufficient without speaking of any words otherwise a man that is mute could not deliver a déed and tradition is onely requisite and therefore when the words are contrary to the Act which is the delivery the words are of none effect For non quod dictum sed quod factum est inspicitur And hereof though there hath been variety of opinions yet is the Law now setled agréeable to judgments in former times and so it was resolved by the whole Court of Common Pleas H. 12. Jac. But it may be delivered to a stranger as an escrow c. because the bare act of delivery to him without words worketh nothing c. Co. ib. 51. b. 3. Littl. § 64. 6 In exchange
if the estates be not equal albeit the parties agrée Exchange yet is the exchange void for the agréement of the parties cannot make that good which the Law maketh void Co. ib. 53. b. 2. 7 If a man make a lease for life and by déed grant Waste that if any waste or destruction be done that it shall be redressed by neighbours and not by suit or plea Yet in this case an action of waste shall lie because the place washed cannot be recovered without a plea. Co. ib. 62 b. 3. Littl § 82. 8 If a man let lands to another to hold to him and his heirs at the will of the Lessor these words to the heirs of the Lessee are void Lease to one and his heirs at will because in this case if the Lessee die and his heir enter the Lessor shall have an action of Trespasse against him and that before the Lessor enters for that by the death of the Lessée the lease is absolutely determined Co. ib. 66. b. 2. 9 In the making of Homage the saving for other Lords Salve la foy Homage que se doy c. a mes autres Seigniors is not of necessity but onely added for explanation sake For the homage is referred onely to the Tenements which the Tenant holdeth of that Lord to whom he doth the Homage Co. ib. 191. a. 2. 30 Ass Pl. 8. Co. l. 4. 73. b. 1. Boroughs case 10 Lande given to two Et uni eorum diutius viventi Jointenancy they make partition and one of them grants his part to a stranger In either of these cases if one of them die the Lessor shall have again the moity of him that dieth for Uni eorum diutius viventi are but idle words because without them the Iointenant by course of Law is to have all in case he survive Finch 24. Co. ib. 212. b. 4. 11 Where the condition is certain viz. for the payment of 20 l. or the like the Obligor or Feoffor cannot at the time appointed pay a lesser sum in satisfaction of the whole because it is apparent Payment of a summe that a lesser sum of mâ—â—ey cannot be a satisfaction for a greater Littl. § 345. Co. ib. 213. a. 2. 12 If a man enfeoff another upon condition A sum reserved to a strâ—â—ger no renâ— that he and his heirs shall render unto a stranger a yearly rent of 20 s. c. and that if he or his heirs fail to pay it that then it shall be lawful for the Feoffor and his heirs to re-enter Albeit this reservation be by indenture whrein the 20 s. reserved is named to be an annual rent yet is it never the more a rent for that because although the stranger be seised of it and then failer is made yet can he not have Assise for it and for that the estate moved not from the stranger neither yet was he party to the déed c. But such a sum reserved in that case is onely a pain set upon the Tenant which if he pay not c. the Feoffor may enter c. Co. ib. 224. b. 2. 13 If a gift in tail be made to a man and to the heirs of his body Issue falling the Dâ—â—â—â— may â—â—ter and if he die without heirs of his body that then the Donor and his heirs shall re-enter this is a void Condition For when the issues faile the estate determineth by the expresse limitation and consequently the adding of the Condition to defeat that which is determined by the limitation of the estate is void and in that case the wife of the Donée shall be endowed c. Littl. § 446. Co. ib. 265. a. 14 These words in a release Release of future inteâ—â—â—â— void Quae quovismodo in futurum habere potero are void in Law For no right passeth by a release but onely the right which the Releasor hath at the time of the release made for if there be father and sonne and the father is disseised and the son living the father releaseth by his déed to the Disseisor all the right that he hath or may hereafter have in the land without clause of warranty c. and after the father dies c. the son may lawfully enter upon the possession of the Disseisor notwithstanding such release because he had no right in the land in the life of his father but the right descended unto him after the release made by his fathers death c. A perpetuity void 15 A man gives land to Mary and Joane two sisters Et haeredibus de corporibus eorum legitime procreatis by which they had a joynt estate for life and several Inheritances and the Donor intending Co. l. 1. 84. b. 3. in Corbets case per Anderson 8 Ass Pl. 33. that neither of them should break the joynture but that the Survivor should have all per jus accrescendi added this clause sub hac forma quòd illa quae illarum diutius vixerit tenebit terram illam integram c. But in as much as his intent was contrary to Law for that cause if the joynture were severed by fine levied the Survivor shall not have the part so severed by reason of the said clause which he did insert of his own conceit and imagination repugnant to law and reason c. A will repugnant void 16 For the construction of Wills Co. l. 1. 85. b. 4. in Corbets case this rule was taken by the Justices in the argument of Corbets case in the first Report that an estate which by the rules of the Common Law cannot be conveyed by act executed in the life of the Devisor by advice of Counsel learned in the Law cannot be devised by his last Will he being intended at that time to be inops consilii As if a man devise land to another for ever there the Devisée hath fée because such an estate may be conveyed by act executed c. But if he devise farther that if the Devisée doth not such an act that another shall have the land to him and his heirs this were void because such a limitation if it were by act executed would be void c. An authority revocable 17 If a man be bound in an Obligation to stand to abide observe Co. l. 8. 82. a. 2. in Vinyors case c. the rule arbittement c. yet he may countermand it for a man cannot by his act make an authority power or warrant to be uncountermandable which by the Law and of its own 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 make a Factor or submit my selfe to an arbitrement albeit these are made by words expresly irrevoâ—able or if I grant or am bound that all these shall stand irrevocably yet they may
Law to give him cause of action and it is alwayes intended that every one will shew the best of his case c. But when the barre of the Defendant is insufficient in substance and the Plaintiff replies and shews the truth of his case whereby he produceth no matter against himself but matter explanatory or peradventure not material there the Court shall judge upon the whole record and the Count being good for insufficiency of the Barre without any regard to the replication judgement shall be given for the Plaintiff As if a man plead a grant by Letters Patents in Barre which are not sufficient the Plaintiff by replication sheweth another clause in the said Letters Patents which clause is not material the Defendant demurers in Law In this case judgement shall be given against the Defendant sic in simililibus Co. l. 8. 163. a. 3. in Black-amors case 7 Among the misprisions remedilesse by the Statutes made for the amendment of records this is one Misprisions 〈◊〉 Clerks that albeit the verdict upon issue tryed be given for the Plaintiff yet if upon the whole record it appears to the Court that the Plaintiff hath no cause of Action he shall never have judgement and so it hath béen often adjudged Co. l. 9. 53. a. 2. in Hickmots case 8 In debt upon an Obligation A release pleaded wiâ—â— exception the Defendant pleads a release of the Plaintiff c. which was in this manner A. doth acknowledge himselfe satisfied and discharged of all bonds debts c. made by B. the Defendant and it is agreed that A. shall deliver all such bonds as he hath yet undelivered unto B. except one bond of 40 l. not yet due wherein B. and C. stand bound to A. c. The Plaintiff replies that the obligation excepted and the obligation in Curia prolata are one and the same whereupon the Defendant demurres And in this case it was resolved that the exception extended to all the premisses because all the words before make but one intire sentence and the one depends upon the other For it is reason that when Bonds are satisfied that they should be delivered and exceptio semper ultimò ponenda est It was also reason that this bond of 40 l. should be excepted because it was not due when the release was made c. Co. l. 10. 99. b. 3. in Beawfages case 9 M. 10. Jac. upon a motion at the Barre it was resolved Bond taken by the Sheâ—â—â—â— not within 〈◊〉 the Statute 〈◊〉 23 H. 6. that an obligation to the Sheriff upon a Fieri facias for the payment of the money in Court c. was not void by the Statute of 23 H. 6. cap. 10. For the first branch of that Statute is that he shall let to baile by Writ or Bill c. which he could not do before as appears 19 H. 6. 43. The second shews the form of the body c. The third contains a penalty that if the Sheriff take an obligation in any other form c. than is there prescribed that it shall be voyd so that upon consideration of all the branches together and upon their coherence and dependance one upon another it plainly appears that the said Statute doth extend onely to obligations of such as are within their guard and custody and not otherwise Co. l. 10. 138. b 1 in Chester Mills case 10 Always such construction ought to be made of an Act af Parliament that one part thereof may agrée with the rest Exposition an Act. and that all may stand well together c. Co. l. 11. 44. a. 4 in Richard Godfreys case 11 The Iustices shall assesse the Fines of Copiholders upon the due consideration of all circumstances Copihold Fines Quà m rationabilis debet esse finis non definitur sed omnibus circumstantiis inspectis pendet ex Justiciariorum discretione And so it was adjudged in Communi Banco Inter Stallon Plaintiff and Brady Defendant P. 9. Jac. 1845. Rot. Co. l. 5. 79. b. in Fitz-herberts case 12 Tenant for life Warranty that comâ—ceth by dâ—sin the remainder to his sonne and heire apparent in taile by covin and agréement betwixt him and A. and B. to the intent to barre his son of his remainder by a collateral warranty makes a lease for years to A. who makes feoffment in fée to B. to whom the father releaseth with warranty and all this is by covin and consent betwixt the parties to the intent aforesaid After this the father dies and the warranty descends upon the sonne being then of full age Resolved per totam curiam that this warranty shall not barre the sonne because the feoffment of the Lessée for years is disseisin and the father himselfe is particeps Criminis and agréeing thereunto then albeit the release with warranty is made after the disseisin yet in as much as the disseisin was to such an intent and purpose the Law will adjudge upon the whole Act as it is agréed in 19 H. 8. 12. If a man disseise another with intent to make feoffment with warranty albeit he make the feoffment twenty years after the disseisin yet the Law will adjudge upon the whole act and the disseisin and warranty shall be coupled together according to the intent of the parties and therefore in such case the law will adjuge the warranty to begin by disseisin albeit they are made at several timâ—s So if a man make a lease of lands in two several Counties reserving an intire rent abeit the livâ—ry be made at several times first in one County and then in another yet the rent is issuing out of the lands in both Counties So likewise if a man make a charter of feoffment of certain lands with warranty and deliver the déed and after make livery of the land secundum formam cartae Here also the Law will adjudge upon the whole act and albeit the déed be delivered at one time and the livery of the land at another time and although a warranty ought to enure upon an estate yet upon the whole matter the warranty is good Eldest childe 13 The use of a recovery was limited by a Latin déed to the use of H. viz. he against whom the recovery was had for life Dyer 337. 36. 16 Eliz. the remainder Seniori puero de corpore H. in taile c. Afterwards H. covenants by an English Indenture to levy a fine to the use aforesaid wherein the use was limited to the use of the eldest child of the bodie of H. c. H. hath issue two children whereof the elder was a daughter and the younger a sonne And in this case it was adjudged that the daughter should have the land for albeit the word puero be indifferent to each sex and then the Male for dignity should be preferred yet because the English indenture hath declared the construction to be the eldest child the daughter shall have
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
Vide Dier 150. 84. Co. ib. 207. a. 4 24 If a man make a single bond Condition collateral or acknowledge a Statute or Recognisance and afterwards make a defeasance for the payment of a lesser sum at a day if the Obligor or Conusor tender the lesser sum at the day and the Obligée or Counsée refuseth it he shall never have any remedy at Law to recover it because it differeth in quality from the sum contained in the Obligation Statute or Recognisance because if is no parcel thereof but contained in the defeasance made at the time or perhaps after the Obligation Statute or Recognisance And in such Case in pleading of tender and refusal the party shall not be driven to plead Uncore prist neither hath the Obligée or Counsée any remedy by law to recover the sum contained in such defeasance so likewise it is if a man make an Obligation of 100 l. with condition for the delivery of corn or timber c. or for the performance of an Arbitrement or the doing of any Act c. This differing in nature from the sum contained in the Obligation and being no parcel thereof is collateral thereunto And therefore in such Case also a tender and refusal is a perpetual bar The like Law it is of tender and refusal of money upon a Mortgage of Land because the money is collateral and differeth in nature from the land Dier 5. b. 26. H. 8. 1 2. 25 A man seised of land devisable by the custome lets it for years Rent reservâ—â— a chattel rendering rent and deviseth the rent to a stranger and dies and the stranger is seised of the rent and dies also In this case the rent being in its nature but a chattel shall go to the executor of the Devisée and not to his Heir 26 In debt against Executors brought in the County of Middlesex Debt against Executors the Defendants plead fully administred Dier 30. b. 206 28. H. 8. The Plaintiffe saith that they have Assets in Essex and thereupon the Defendants demurred and judgment was given for the Plaintiff because Assets in their nature is a thing transitory and not local and if it had been in issue and trial of a Iury of Middlesex they might have found the Assets in any County of England Rent-service apportionable 27 Rent-service was apportionable at the Common Law before the Statute of Quia Emptores terrarum Co. Inst p. 1. because there are divers kinds of Rent-service which are not within that Statute and yet were apportionable by the Common Law as if a man maketh a lease for life or years reserving a rent and the Lessée surrender part of the land to the Lessor or if the Lessor recover part of the land in an Action of wast or entreth for a forfeiture or granteth part of the reversion to a stranger or if tenant by knight-service by his last will in writing deviseth two parts of his lands In all these cases the rent shall be apportioned yet they are not within the words of the said Statute but the reason séems to be for that rent-service is of the nature of the land and therefore partable as it is partable according to Max. 64. It is otherwise of a rent charge because it is not of the nature of the land being against common right and collateral to the land Livery out of ward 28 A livery to be out of ward being in nature of a restitution Co. ib. 77. a. 4. shall be taken and expounded favourably And therefore if livery be made of a Mannor cum pertinentiis the Heir shall thereby have the Advowson appendant It is otherwise of Grants by Letters Patents Confirmation 29 If a Lease for life be made to two Co. Inst p. 1. 299. b. 1. to have and to hold the one moity to the one for life and the other moity to the other for life and the Lessor confirm their estate in the land to have and to hold to them and their heirs In this Case they are tenants in common of the Inheritance for regularly the confirmation shall inure according to the quality and nature of the Estate which it doth inlarge and increase 30 There being thrée Coperceners of land in Gavelkind in reversion Dier 128. a. 58 2 3. P. M. depending upon an Estate for life Partition the youngest aliens his part by fine in fée the tenant for life dies and the eldest son enters into the whole and then the second brother and the alienée bring a joynt writ of partition upon the Statute of 31 H. 8. 1. against the eldest brother But it was adjudged that it was not maintainable because they were entituled to writs of partition of several natures viz. the one to a writ of Copercenarie at the Common Law and the other to a writ of Partition by the Statute and therefore could not joyn â—eprivation 31 The President of Magdalen Colledge in Oxford being deprived by the Bishop of Winchester their Visitor Dier 209. 20. 3 4. Eliz. could not have an Appeal to the Delegates because the deprivation was temporal and not spiritual and therefore out of the Statute of 25. H. 8. 19. And so he was put to his Assise â—â—sance 32 Tenant for life of an house brings an Action upon the Case against one who stopped the way in his land Dier 250. 88. 8 Eliz. which time out of mind had béen a passage betwixt the house and a Park and albeit the Park was the Lessors and not the tenants for life yet it was held by the Count that such an Action lay not for the tenant for life but an Assise of Nusance 〈◊〉 in grosse 〈◊〉 rent 33 The Lord Dacres lets certain land and stock to friends Dier 275. 49. 10 Eliz. who covenant to pay 100 l. per annum to him and his wife his heirs assignes during the term and also 2000 l. at a certain day for the marriage-portion of his daughter he dies his son within age suffers more then a third part of all his land to descend after the Feme dies And in this Case it was adjudged that the Quéen should not have the 100 l. per annum but the executors of the Feme because in nature and quality it is not a rent which goeth to the heir but a sum in grosse 81 In persons the Law looketh at the excellency of some and giveth them singular Priviledges and preheminences above others as to the King the Queen his Wife Noblemen and Peeres of the Realme also unto persons of holy Church Co. Inst pt 1. 21. b. 3. 1 If the King give Land to a man with a Woman of his kindred in Frank-marriage and the Woman dieth without Issue Frank-marriage the man in the Kings Case shall not hold it for his life because the Woman was the cause of the gift but it is otherwise
fuit infra aetatem but for the moity onely Feofment 14 When an Infant makes a feoffment being within age Co. ibid. 337. b. 2 3. Litt. §. 635. he may enter either within age or at any time after full age and likewise after his death his heire may enter meliorem enim conditionem facere potest minor deteriorem nequaquam Also a special heire shall take advantage of the Infancy of the Ancestor Borough-English as if tenant in taile of an Acre of the Custome of Borough-English make a feoffment in fée within age and dieth the youngest Son shall avoid it for he is privy in bloud and claimeth by descent from the Infant Special taile So likewise if Tenant in taile to him and the heires Female of his body make a feoffment in Fée and dieth within age having issuing a Son and a Daughter the Daughter shall void the feoffment And so note by the way that a cause to enter by reason of the Infancy is not like to conditions Warranties and Estoples which even descend to the heire at the Common Law 15 If Tenant in taile enfeoffe his heire apparent Co. ibid. 350. b. 1. Litt. §. 664. the heire being of full age at the time of the Feofment Feofment reâ—â—â— and after the Tenant in taile dies this is no remitter to the heires Because it was his folly that he being at full age would take such a feofment But such folly cannot be adjudged in the heire if he had béen within age at the time of the feofment made in respect of his tender yeares and want of experience 16 If tenant in taile enfeoffe a Feme in Fée and die and his issue within age takes the same Feme to Wife â—aile â—eme Remitter Litt. §. 665. this is a remitter to the Infant within age and the Feme then hath nothing Because no folly can be judged in him being within age at the time of the Espousals It is otherwise if such heire were of full age at the time of the Espousals For then the heire hath nothing but right of his wife c. There is the same Law Co. ibid. 351. b. 4. where the Tenant in taile Enfeoffes his issue being within age and the wife of the issue in fée and dieth for in this Case also the issue is remitted c. 17 If a Feme seised of lands in fée take Baron Co. ibid. 351. b. 4. Litt. §. 666. who aliens the same lands in fée and the Alienée lets the Lands to the Baron and Feme for life saving the Reversion to the Lessor and his Heirs In this Case the Feme is remitted and is seised of the Lands in her Demesne as of fée as she was before because the reprisal of the Estate shall be adjudged in Law the act of the Baron and not of the Feme so that no folly can be adjudged in the Feme who was covert at the time of making the Lease And in this Case the Lessor hath nothing in the Reversion because the Feme is seised in fée c. And here Litt. §. 648 669. if the Lessor sue an Action of wast for wast committed by the Baron albeit the Baron cannot against his own feofment and reprisal bar the Lessor by shewing the remitter to his Feme c. yet in such an Action if the Baron make default to the great distresse and the Feme pray to be received and is received accordingly she may well shew the whole matter and how she is in her remitter and so shall she bar the Lessor of his Action c. for regularly in every Case where the Feme is received for default of the Baron she shall in pleading have the same advantage that a Feme sole hath c. There is the same Law if the Alienée had made the Lease by Déed indented or by Fine because in taking a thing by Fine the Feme is never examined c. Co. ib. 353. a. 1 18 If a Feme covert be received in an Assise and plead a Record Assise Disseisor and fail she shall not therefore be adjudged a Disseisor as she should be if she were sole c. So if a Feme covert onely levy a Fine executory and a Scire facias is brought against her and her husband if she be received upon the default of the husband she shall bar the Conusée which if she had béen sole she could not do c. Co. ib. 353. a. 3 19 In the acknowledging of a Fine by a Feme covert Fine Examination least she should be deceived or any way abused her examination ought to be secret and to this effect viz. whether she be content to levy a Fine of such lands naming them particularly and distinctly and the state that passeth by the Fine of her own voluntary free will and not by threats menaces or any other compulsory means Litt. §. 677. Co. ib. 356. b. 3 20 If the Baron dis-continue the land of the Feme Remitter and the Discontinuée lets the same land to the Feme for term of her life and gives her seisin thereof accordingly In this Case whether the Baron were out of the Realm when the Lease was made or within the Realm or whether the Baron agrée to the Lease or no neverthelesse the Feme in this Case is remitted It had béen otherwise if she had béen sole at the time of the Lease made for then she could not have béen remitted c. Litt. § 696. Co. ib. 364. a. 4 21 If two Ioint-tenants of lands in fée the one of full age Remitter the other under age are disseised and the disseisor dies seised and his Issue enters one of the Ioint-tenants being still within age and after he attains his full age the heir of the Disseisor lets the Lands to both the Ioint-tenants for their lives this is a remitter as to the moity to him that was within age because his entry was congeable But the other hath but an Estate for life in the other moity because his entry was taken away by the dying seised c. for the Infant being favoured in Law had right of Entry whereas the other had onely right of action c. 22 At the Common Law before the Statute of 11 H. 7. cap. 20. Warrantie if tenant in Dower had aliened the Land in fée with warranty Litt. §. 725 7â—6 Co. ib. 380. a. 3 and thâ—t warranty had descended to the Heir who was to inherit the land in Dower the Heir had béen thereby barred to demand the same land Howbeit if the Heir were within age at the time of the warranty descended upon him In that Case the Heir might enter and avoid the Estate either within age or at any time after his full age but if he were within age at the time of the alienation with warranty and became of full age before the descent of the warranty
Holbornes Case And this is the cause that if Baron and Feme acknowledge a Statute or Recognizance this is void as to the Feme albeit she survive her Baron as it was holden P. 17 Eliz. in the Countesse of Lennox Case So if Baron and Feme acknowledge a Déed to be enrolled and it is enrolled accordingly this also is void as to the Feme Vide 29 H. 8. Faits enroll Br. 14. and 7 E. 4 5. 16 H. 7. 5. and 21 E. 3. 43. And the reason is because no such writ is depending against the Baron and Feme upon which the Feme may by the Law be examined F.N.B. 104. k. But if an Infant acknowledge a Statute or Recognisance it is not void but voidable by Audita quaerela Statute Recognizance during his non-age And the cause of the diversity is for that the Iudge in case of an Infant may by inspection know his age but not know whether a woman be covert or no. And the use is alwayes upon a common Recovery against Baron and Feme to examine the Feme and to grant a Dedimus potestatem to take upon examination her Conusance as in Case of a Fine for in that Case also there is a writ upon which she may be examined Vide 44 E. 3. 28. Howbeit a common Recovery against an Infant although he appear by Guardian Common Recovery shall not binde him for an Infant hath not such a disposing power upon the Land as Baron and Feme have but is utterly disableo by Law to convey or transferre his Inheritance or Frank-tenement to others during his minority And at this day a common Recovery appeares to be a Common Conveyance or Assurance of Lands c. Co. l. 11. 77. a. 4. in Magd. Coll. Case 36 If an Infant had conveyed lands to Quéen Eliz. by déed inrolled that grant had not béen established by the Act of 18 El. cap. 2. 18 El. cap. a. Grant al Roy. Fine which was made for the confirmation of grants made to the Quéen from primo to that time c. because the person of the Infant during his minority was absolutely disabled to make any conveyance at all by the Common Law So likewise if an infant had levied a fine to Quéen Eliz. and afterwards the said Act was made yet the infant notwithstanding the Statute might have reversed such fine by writ of Error And so it was resolved M. 32 33 El. in B. R. per Wray Chief Iust totam Curiam in Vaughans Case Co. ib. 78. a. 3. There is the same Law if Baron and Feme had made a grant of the Land of the Feme to the Quéen Baron Feme for neither had his béen made good by the said Act to have bound the feme after the Coverture or her heires Because the person of the feme covert is dis-abled to convey her Land unlesse it be by fine upon due examination and so also was it holden in the aforesaid Case of Vaughan 37 If an infant hath a Mannor by descent Advowson Usurpation unto which an Advowson is appendant F. N. B. 34. x. and suffers an usurpation to the Advowson when the Church happens to be void and after grants the Mannor in fée at his full age and after that the Advowson happens to be void again In this Case the infant shall present and not the feoffée for the Advowson was severed by the usurpation and yet the infant may present 38 If a Lease be made to Baron and Feme for life or yeares Waste the Feme shall not be punished for wast done by the Baron F.N.B. 59. i. Finch 26. after the Barons death 39 A man may have a Writ of accompt against a Feme Accompt as receptrix denariorum F.N.B. 110. d. or against a Chaplain But a man shall not have a Writ of accompt against an infant 40 Women shall not be compelled nor distrained to come to the Sherifs turne F.N.B. 161. a. b or to Leets and if they be distrained Femes nemy jure in Lees Dit Wayve they may sue the writ de exoneratione sectae c. to excuse themselves of that service and thereupon they may also have alias plura and attachment c. And for as much as Femes shall not be sworne in Léets to the King as men of the age of twelve yeares or upwards shall be when a Woman is out-lawed she is said to be waived and not out-lawed for she was never put nor sworne to the Law but a man is said to be out-lawed because he is or ought to be sworne to the Law and then for contumacy he is put out of the Law and so is said to be ut lagatus quasi extra legem positus And by the Rule of the Register two Women may joyne in such a writ c. 41 If an infant of tender age viz. under the yeares of discretion kill a man Felonie that is not felony in him Pl Co. 19. a. 2. in Fogassues Case because he wanted discretion and understanding and therefore the Law imputes it to his ignorance which he hath at that age by nature and so no default in him and therefore it is called In voluntary ignorance For he cannot be wise and dâ—scréet though he would but is ignorant by compulsion and therefore shall be excused And such an Act is properly said to be ex ignorantia where involuntary ignorance is adjudged to be the cause thereof Felonie So if a man de non sanae memoriae kill another albeit he hath broken the words of the Law yet he hath not broken the Law because he hath not any memory or understanding but mere ignorance which falls upon him by the hand of God and therefore the Law imputes it to involuntary ignorance and not to him so that he shall be excused for the doing of it c. Stat. 11 H. 8. cap 20. 42 The makers of the Statute of 11 H. 8. 20. Pl. Co. 50. b. 3. in Winbish and Talbois Case per Hales in consideration of the frailty and inconstancy of Women ordained that Law to restraine them from the alienation of the Lands of their deceased Husbands and because they did conceive that they might by flattering words be easily deluded and inticed to covin therefore they ordained in that Act a penalty against them as a bridle of their inconstancy to prevent them from being in that manner seduced c. Dower best possession 43 A Woman shall be endowed of the best possession of her Husband Finch 26. as if the Husband holds of Jo. S. per iij. d. who held over of an other by xx d. and Jo. S. release to the Husband so as now the Husband holds by xx d. the wife being endowed of this land shall hold onely by the third part of iij. d. and not of xx d. Dumbe 44 If a dumbe person bring an Action he shall
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
tenancy c. Tamen quaere F. N. B. 134. a. b. 38 In a Perambulatione facienda Perambâ—latiâ—â— if it be made by the consent of both parties being tenants in fée-simple it is binding to them and their heirs but if tenant for term of life of a Seigniory and another who is tenant in fée-simple of another Seigniory adjoyning sue such a writ or Commission whereupon perambulation is made It séems that that shall not bind him in reversion neither yet shall perambulation made by the assent of tenant in tail binde his heir F. N. B. 150. c. 39 If the tenant fore-judge the Mesne yet the Feme of the Mesne shall be endowed Parsons One title Two titles Indicavit 40 If two Parsons claim under one and the same Patron one of them may sue spoltation against the other in the Court Christian albeit the profits amount to a fourth part or more because the title of the Patronage comes not in debate But if they claim by several Patrons and the tithes or profits or pension spoiled amounts to a fourth part or more then forasmuch as the Patron of the Parson grieved being a stranger may suffer prejudice he shall in that Case have an Indicavit or Prohibition to remove the Suit into the Kings Court there to be tried at the Common Law because then the title of the Patronage will come in debate c. Vide Statute VVest 2. cap. 5. Pl. Co. 32. a. 3. in Colthirst Beinshins case 41 If a man demise land to A. for life the remainder to B. for life Remainder void and if B. die that then C. shall have the land during the life of A. this demise is void for the prejudice of the particular Estate for things done in prejudice of others shall be void As in the Case of 21 E. 4. where the King had granted to an Abbot that he should not be Collector when any tenths were granted per Clerum Angliae Exemption not void by Proviso And then the Clergy of the Province of Canterbury had granteth a tenth to the King with a Proviso that no Collector which the Bishop would return should be discharged by any Letters Patents of Exemption made by the King And the Bishop returned the said Abbot Collector And there it is holden that the Grant made by the Clergy in that point viz. to charge persons exempt is void because it is in prejudice of others And so also the above-said remainder to C. shall rather be void then a stranger shall suffer prejudice by it Co. Inst p. 1. 117. a. 2. 42 If a Villain purchase Land the Lord may seise it The Lord shall not seiâ—â— common 〈◊〉 number c. but if he purchase a common Sans number the Lord shall not have it for the Lord may surcharge the same and that would trench to the prejudice of the terre-tenant who is a third person there is the same Law also of a Corodie uncertain granted to a Villain and of all other such like uncertain inheritances Co. ib. 100. b. 1 43 If the tenant be disseised The Act of Disseisor no prejudice and the disseisor in a writ of Mâ—sne fore-judge the Mesne this shall not binde the disseisée so likewise if the Mesne be disseised and a fore-judgment is had against the disseisor this shall not binde the disseisée for the words of the Statute of VVest 2. cap. 9. are Quando tenens sine praejudicio alterius quà m medii attornare se potest capitali Domino 44 Admittances made by Disseisors Abators Intruders Co. Inst p. 1. 58. b. 2. Tenant at sufferance Admittances per Dominos pro tempore or others that have defeasible titles are good and effectual in the Law For it is no reason that the Lords competitors for the title of the Mannor should by any Act they do prejudice the Copihold Tenants who are strangers to the difference betwixt them for if they be admitted by any who is Dominus pro tempore it sufficeth howbeit such wrong-doers cannot grant voluntary Copies Advantage to strangers 45 Lessée for life levies a Fine come ceo c. to a Disseisor Co. l. 2. 55. b. 3. in Bucklers ca. this is a forfeiture and he in remainder or reversion shall take advantage of it Vide plùs ibid. It is said that if the Disseisée levie a Fine to a stranger the Disseisor shall retain the Land for ever For the Disseisée against his own Fine cannot claim the Land neither can the Conusée enter for the right of the Conusor cannot be trans-ferred to him but by the Fine the right is extinct and the Disseisor shall take advantage thereof Both wardship and relief 46 If there be Lord and tenant by divers tenures in Knight-service and the tenant is disseised of the one Co. Inst p. 1. 83. b. 4. and the Disseisor dieth seised and the tenant dieth seised of the other his heir within age the Lord seiseth the Body and Lands of that Mannor and after the heir at his full age recovereth the other Mannor against the heir of the Disseisor In this Case the heir shall pay relief for the Mannor recovered and the descent cast shall not hinder it for res inter alios c. And so one Lord of the heir of one tenant shall have both wardship during his minority and also relief at his full age Vllain profest or Neife married 47 If a Villain be made a secular Chaplain Litt. §. 202. Co. ib. 136. b. 2. yet his Lord may seise both him and his goods and albeit the Lord cannot seise his Villain that is profest in Religion nor his Neife that is married to a Frée-man not this because Marriage is honourable and indissoluable not that in favorem Ecclesiae and because then he cannot live according to his Profession and Religion yet in both these last Cases the Lord shall have his Action in his Case and shall recover what he is damnified for albeit the Profession and Marriage were lawful yet when they work a prejudice to a third person an action lieth against the Soveraign of the house and the husband to the value of the losse Ordinary Administrator 48 The Ordinary was sued after the administration committed Dier 247. 73. 8 El. in plaint of a Debt in London and Nihil habet being returned upon suggestion the debt was attached in the hands of one VV. who was indebted to the testator and after four defaults of the Ordinary being returned non est inventus and Oath made that the Debt was due the Plaintiff had judgement and execution against the said VV. against whom the Administrator also brings Debt who pleads the matter suprà whereupon the Plaintiff demurs and it was adjudged that he should recover for after the administration committed Debt lieth not either against or for the Ordinary and indéed it lay not at all until VVest 2. 19.
157. 12. 9. Eliz. the Plaintiff counts that he was bound with the Defendant as his surety and at his request to a stranger by Bill Obligatory and that at the day assigned the Creditor was not paid by the Defendant whereupon at the Creditors Suit the Plaintiff was arrested and imprisoned c. And the Defendant cognovit Actionem whereupon Iudgement was given quòd acquieteâ— the Plaintiff versus the Creditor of the sum and damages assessed by the Court c. Vide F. N. B. 137. c. â—avishment 11 The Statute of West 2. 35. Hob. 93. 7 Jac. Rot. 759 More Hussey against ravishment of Wards hath two aspects in it one civil another criminal for it provides that the Executor shall answer for the value sed non quoad poenam prisonae for Nemo pro alieno facto est puniendus It is so likewise for husband and wife For albeit the wife be onely guilty yet the husband shall answer the dammages but shall not be subject to abjuration or immediate Imprisonment which is to be perpetual Howbeit to the mediate Imprisonment viz. upon a writ of Execution for the dammages and the value of the Marriage he shall be liable as in other trespasses where the wife onely is guilty of the fact 88 The Law favoureth things done in anothers Right Co. Inst p. 1. 52. a. 2. 1 Few or no persons are disabled in Law to be private Attorneys to deliver seisin for Monks Infants Femes covert Attorney to deliver seisin Persons disabled persons attainted out-lawed excommunicated Villains Aliens c. may be Attorneys So a Feme may be an Attorney to deliver seisin to her husband and the husband to the wife and he in the remainder to the Lessée for life And the reason hereof is for that the Attorney doth nothing in his owne right but in the right of another Co. ib. 52. a. 3. 2 If Lessée for life make a déed of Feoffment Attorney to deliver seisin and a Letter of Attorney to the Lessor to make Livery and the Lessor maketh Livery accordingly notwithstanding such making of Livery he shall enter for the forfeiture because he doth it in anothers right and the Lessée for life had Fréehold whereof to make Livery It is otherwise of Lessée for years because in that Case the Fréehold being in the Lessor and not in the Lessée the Lessor cannot do it as Attorney to the Lessée c. Co. ib. a. 4. 3 If the Lessor make a déed of Feoffment Lessee for years Attorney to deliver seisin and a Letter of Attorney to the Lessée for years to make Livery and he doth it accordingly this shall not drown or extinguish his Term because he did it as a Minister to another and in anothers right And that is accounted in Iudgement of Law the act of the Feoffor and not of the Lessée neither yet doth the Feoffée claim any thing from the Lessée c. Co. ib. 4 If the tenant devise that the Lord shall sell the Land Devise and dieth and the Lord selleth it accordingly yet the Seigniory doth still remain because the Lord selleth the Land in anothers right c. Co. ib. 88. b. 4. 5 A Guardian in soccage shall not forfeit his Interest by Outlawry or attainder of Felony or Treason Guardian is Soccage because he hath nothing to his own use but onely to the use and in the right of the heir whose Guardian he is Co. ib. 112. a. 4. 10 H 7. 20. 6 If after the Statute of 1 R. 3. cap. 1. Sale by Feâ—â— to Baron and before the Statute of Vses in 27 H. 8. cap. 10. Cestuy que use had devised that his Wife should fell his Land and had made her Executrix and died she had taken another husband In that Case she might have sold the Land to her husband for she doth it in auter droit and her husband would have béen in by the Devisor c. Co. ib. 113. a. 3 7 If a man devise that his Executors shall sell his Land Devise of a Reversion tâ— be sold by eâ—ecutor In this Case the Executors have no Estate or Interest in the Land but onely a bare and naked power yet this Feoffment amounteth to an alienation to vest the Land in the Feoffée for they do it in auter droit And the Feoffée shall be in by the Devisor So likewise if a man deviseth that a Reversion or other thing that lieth in grant shall be sold by his Executors they may sell the same without Déed for the Vendée shall be in by the Devisor and not by the Executors Causa qua suprà Co. ib. 117. a. 2 124. a. 4 c. 8 If a man be Lessée of a Villain for life for years or at will Villain the Villain purchaseth the lands in fée if the Lessée entreth into the lands he shall hold the Lands as a perquisite to him and his heires for ever For the Law respecteth the quality and not the quantity of his Estate But if a Bishop hath a Villein in right of his Bishoprick and he purchaseth Lands and the Bishop entreth the Bishop shall have his perquisite to him and his Successors and not to him and his heires Bishop for it came into his hands as in anothers right So if Executors have a Villein for yeares Executors and the Villein purchaseth Lands in fée and the Executors enter they shall have a fée-simple but it shall be assets in their hands For they have it in right of the Testator c. Villein Executor Lord Debt Trespas 9 A Villein may as Executor have an Action of debt against his Lord because it is not to recover a debt to his owne use Lit. §. 191 192 Co. ibid. 124. Finch 27. but to the use of the Testator neither yet shall the Lord take out of the possession of such Villein who is Executor the goods of the deceased because he is possessed of them in anothers right And if the Lord do take them the Villein shall maintain an Action of Trespass against him and therein recover damages against him to the use of the Testator c. for they shall be assets in his hands c. Oâ—t-lawry no â—is-ability 10 If an Executor or Administrator sueth an Action Co. ibid. 128 a. 3 Finch 27 out-lawry in the Plaintiffe shall not dis-able him because the sute is in auter droit viz. In the right of the Testator and not in his owne right And for the same a Mayor and Cominalty shall have no Action though the Mayor be out-lawed c. So it is also of one excommunicated â—bbot c. â—lien 11 An Abbot Prior or Prioresse Alien shall have Actions reall Co. ibid. a. 4. b. 1. personal or mixt for any thing concerning the possessions or goods of his Monastery here in England although he be an Alien borne
alien because it was intended a Mortmaine viz. that it should for ever continue in that sea or house for that they had it in auter droit for religious and good uses as was pretended c. Feme Execuâ—â—ix Baron â—elease 23 If a Feme creditor take the debtor to Husband Co. ibid. 264. b. 4. M. 30 31 El. Co. l. 8. 136. a that is a release in Law of the debt but if a Feme executrix take the debtor to husband that is no release in Law because she hath the debt in anothers right and that would be a wrong to the dead and in Law work a devastavit which an Act in Law shall never work c. In Sir John Nedhams Case Plene adminiâ—â—â—ravit 24 Vpon Plene administravit pleaded by an Executor Co. ibid. 283. a. 2 Et issint riens inter manis if it be proved that he hath goods in his hands which were the Testators he may give in evidence that he hath payd to that vaine of his owne money and neâ—â— not plead it specially because what he did in that case was in anothers right A term drowâ—ed 25 A master of an Hospital â—sing a sole corporation Co. ibid. 338. b. 3 by consent of his Brethren makes a leasse for yeares of part of the possessions of the Hospital and afterwards the Lessée for yeares is made Master In this case the term is drowned for a man cannot have a term for yeares in his owne right and a free-hold in auter droit to consist together as if a man Lessée for yeares take a Feme Lessor to Wife c. But a man may have a frée-hold in his owne right A term not drowned and a term in auter droit And therefore if a man Lessor take a Feme Lessée to Wife the term is not drowned but he is possessed of the term in her right during the coverture So if the Lessor made the Lessée his Executor the term is not drowned Causa qua supra Howbeit in the case first put if it had béen a corporation aggregate of many the making of the Lessée master had not extinguished the term no more then if the Lessée had béen made one of the Brethren of the Hospital because he then had the frée-hold in auter droit together with others c. â—arson â—â—ar 26 A Parson of Vicar of a Church because he is seised in right of his Church Co. ibid. 341 a. 3 for the benefit of the Church and of his Successor is in some cases estéemed in law to have a fée-simple qualified but to do any thing to the prejudice of his Successor in many Cases the Law adjudgeth him to have in effect but an Estate for life â—heir alienaâ—â—â—o disâ—â—tinuance Causae Ecclesiae publicis causis acquiparantur and summa ratio est quae Religione facit Litt. §. 643. and Ecclesia fungiter vice minoris Meliorem facere potest Conditionem suam deteriâ—â— rem nequaquam c. His alienation of the Glebe makes no discontinuance c. â—eme Executâ—â—ix â—hattels â—eals 27 If the Wife be possessed of Chattels real in auter droit Co. ibid. 351. a. 4. as Executrix or Administratrix or as Guardian in Soocage c. and the inter-marrieth the Law maketh no gift of them to the Husband although he surviveth her In the same manner if a Woman grant a term to her own use and then taketh Husband and dieth the Husband surviving shall not have his trust but the Executors or Administrators of the Wife for it consisteth in privity And so it was resolved by the Iustices P. 32 Eliz. in Cancell in Withams Case H. 38. Eliz. in Cancell in Waterhouses Case c. â—ersonal â—ods â—ron â—â—e 28 If a Feme sole be possest of Chattels personal in her owne right Co. ibid. 35â— b. 1 and she taketh Baron In that Case that marriage is an absolute gift in Law of all such Chattels whether the Husband survive the Wife or no But of personal goods in auter droit as Executrix or Administratrix c. the marriage is no gift of them to the Husband although he survive his Wife And as to personal goods in Case of Baron and Feme there is a diversity worthy of observation betwéen a property in personall goods as is afore-said and a bare possession for if personal goods be bailed to a Feme or if she find goods oâ— if goods come to her hands as Executrix to a Bailife and she taketh an Husband this bare possession is not given to the Husband but the action of detinue must be brought against the Husband and Wife because the Possession which she hath is in auter droit c. Co. ibid. 370. a. 4. 29 It is to be observed Parson Warranty No barre 〈◊〉 Juris utrus or Assise that in all Cases which Littleton putteth in the chapter of Warranty concerning lineal and collateral Warranty the heire is still mentioned to be bound by them be never making once mention of the Successor from whence it may be inferred that the Successor clayming in another right shall not be bound by the Warranty of any natural Ancestor And therefore in a Juris utrum brought by a Parson of a Church the collateral Warranty of his Ancestor is no barre because he demandeth he Land in the right of his Church in his politique capacity and the warranty descendeth on him in his natural capacity And albeit some have holden that if a Parson bring an Assise that a collateral Warranty of his Ancestor shall bind him because the Assise is brought of his owne possession and seisin and he shall recover the mean profits to his owne use yet séeing he is seised of the Frée-hold whereof the Assise is brought in Jure Ecclesiae which is in another right then the Warranty it séemeth to be no barre in the Assise And of this opinion my Lord Cooke séems to be because he produceth it last according to his owne Rule c. The like Law is of a Bishop Arch-deacon Deane master of an Hospital and the like of their sole possâ—ssions and of a Prehend Vicar c. Co. l. 4. 11. b. 3. in Bevils Case 30 If there be Lord and Tenant by fealty and two shillings Rent Land and Tenant Suit of Coâ— Abbot and the Lord by incroachment viz. by the voluntary payment of the Tenant happens seisin of more Rent then he ought to have the Law doth so greatly favour seisins and possessions that neither the Tenant nor his heire shall avoid the seisin so had by incroachment in Avowry Neverthelesse if an Abbot hold by fealty and Rent and the Lord incroach suite by seisin of the Abbot c. This seisin shall not prejudice his Successor but he shall discharge it for there is not the same reason of the Predecessor to the Successor that there is to Ancestor to the heire c. As
it is agréed in 4 E. 2. Avowry 204. Co. l. 8. 133. a. 1 in Turners Case 31 For asmuch as an Executor or Administrator hath not the goods of the dead to his owne use but in auter droit to the use of the dead Executor Administratâ— ought to eâ—â—cute his Oâ— lawfully c he ought to execute his Office and to administer the goods of the dead lawfully truely and diligently lawfully in paying all duties debts and legacies in such precedency and order as they ought to be paid by the Law truly viz. to convert none of them to his owne use neither yet by any practice or devise to barre or hinder any creditor of his due debt but truly to execute his Office according to the trust reposed in him diligently Quia negligentia semper habet infortunium comitem c. Co. lib. 8. 135. b. 3. in Sir John Nedhams Case 32 The Bishop who is an Executor appointed by the Law Ordinary 〈◊〉 not dispoâ—eâ— the Goods 〈◊〉 for the good 〈◊〉 the dead Executor â—rante â—liaâ—tate is not permitted by the Law to make a release of debt or gift of goods For he hath a special property in the goods of the dead for the benefit of the dead and nothing to his owne use and it appeares in 9 El. Dier 253. that the Ordinary hath not power to give authority to another to sell the goods of the dead because he hath not any such authority himselfe And the Statute of West 2. is Bona deveniunt ad manus Ordinarii disponenda viz. for the good of the dead And he is not much unlike as to that purpose an Administrator durante minore aetate who hath special power committed unto him to dispose of the goods of the dead and nothing in prejudice of the Executor as it is holden in Princes in the 5 Rep. fol. 29. So likewise the Lord of a Copi-hold Mannor who takes a surrender to the use of another hath onely power to grant if according to the use of the surrender and not to the use of any stranger as it is holden in the 4. Rep. fol. 28. in Westwickes Case â—dministratiâ— to the Obâ—goâ— 33 If the Obligée make the Obligor his Executor Co. ib. 132 a. 1. in Sir John Nedhams Case this is a release in Law of the debt because that is the Act of the Obligée himselfe but if a Commission of Administration be granted by the Archbishop to the Obligor that shall not extinguish the debt because then he hath the debt in anothers right and for the good of the dead c. â—arrien â—esentment 34 If a man present to an Advowson F. N. B. 31. l. and after lets it for term of yeares and after the Church is void and the Tenant for yeares presents c. And after the incumbent dies and Lessor presents and is disturbed In this Case it séemes he shall not have an Assise de darrien presentment because the Tenant for yeares presents in his owne right but if a Guardian presente in right of the heire and after the incumbent die In that Case the heire shall present and if he be disturbed he shall have an Assise de darrein presentment because the Guardian did it in auter droit â—uare Impedit viz. in the right of the heire c. This séemes to be the opinion of Fitz. Howbeit it is resolued in the 5. Co. l. 5. 97. b. in the Count. of North. Case Report fol. 97. in the Countesse of Northumberlands Case that the presentation of the Grantée of the prochiene avoydance is sufficient title in a Quare Impedit for the Grantor and his heires because he doth it in the right and title of the Grantor So it is also of Lessee for yeares life Tenant in Dower Courtesie Guardian Tenant by Statute c. And with this agrées divers opinions in our Books viz. 7 L. 4. 20. 22 E. 4. 9. b. 16 H. 7. 18. a. 9. H. 7. 23. Br. Quare Impedit 122. 13 El. Dier 300. 35 In debt brought by two Executors the one is summoned and severed and afterwards he that was severed dies Co. l. 10. 134. a. 3. in Read Redmans Case and the Defendant pleads this in abatement In this Case the writ shall not abate because either of them Act in an others right 89 The Law dis-favoureth other persons as Villeins Bond-men Out-lawes Ex-leges men in Exile Aliens and especially Aliens that are enemies â—hallenge to â— Poll. 1 It is principal Challenge to the Pol Co. Inst p. 1. 156. b. 4. that he is a Villein or Bondman Also upon the trial in a writ of right by battaile the Champion must be a Frée-man and no Villein or Bond-man And this is propter defectum â—sure by the â—rd 2 A Villein can hold nothing either Land or Goods in his owne right for Quicquid acquiritur servo acquiritur Domino c. Co. ib. 117. a. 3. â—â—gatus baâ— caput Lâ—piâ— 3 In the Reigne of King Elfred Co. ib. 128. b. 3. and until a good while after the Conquest Out-lawry was estéemed in Law a grievous punishment so that none was in those times out-lawed save onely for felony the punishment whereof was death And therefore in ancient time as appeares by divers old Books and Records An out-lawed man was saide to have Caput Lupinum because he may be put to death by any man as a Wolfe that hatefull beast might Fleta l. 1. c. 27. Bract. lib. 5. fol. 421. Britt 20. b. Mirroir cap. 2. sect default punishm Utlagatus Waviata capita habent Lupina quae ab omnibus impurè poterant amputari meritò enim sine lege debent perire qui secundum legem vivere recusant And another saith Utlage pur felonie seigne lien pour Loup est criable Walfeshead pur ceo que Loup est beasts hay to touts gents de ceo en avant list a ascun de le occire ou foer del Loup dout custome soloit este de porter les testes al Chiefe lien del County or de la Franchise sol oit tou avoir d'un Marke del County pur chescun teste de utlage de Loup And this agréeth with the Law before the Conquest Utlagatus Lupinum gerit caput quod Anglicè Wolfeshead dicitur Et haec est lex communis generalis de omnibus utlegatis 2. Ass Pl. 3. 2 E. 3. tit Corone 148. But in the beginning of the Raigne of E. 3. it was resolved by the Iudges for avoiding of inhumanity and of effusion of Christian bloud That it should not be lawfull for any man save the Sheriffe onely having lawfull warrant therefore to put to death any man out-lawed although it were for felony upon paine to suffer the like punishment as if he had killed any other man Note that about Bractons time processe of out-lawry was given in actions that were
as it were by way of excuse to give the special matter in evidence as to say that it was se defendendo or in defence of his house in the night against Theeves and Robbers or the like Co. l. 3. 11. b. 4. in Sir Will. Herberts case 16 The liberty of a man is of such high estéeme in the consideration of Law that he could not at the Common Law he imprisoned At the Common Law to capias for 〈◊〉 c. unlesse he were guilty of committing some force for the Law being the preserver of the Common peace of the Land abhorres all force as one of her capital Enemies and therfore as concerning such as commit force the Common Law subjects their bodies to imprisonment as to one of the highest Executions of Law whereby they lose their liberty until they have made agréement with the party and fine to the King for which cause it is a Rule in Law that in all Actions Quare vi armis a Capias lies and where a Capias lies in process there after judgement a Capias ad satisfaciendum lies and there also the King shall have a Capias pro fine And with this agrées 8 H. 6. 9. 35 H. 6. 6. 22 E. 4. 22. 40 E. 3. 25. 49 E. 3. 2. and divers other Books But at the Common Law if a common Person had sued a recognisance or judgement for debt or damages he could not have the body of the Defendant nor his lands unlesse in some special case in execution but was onely in such case to have execution either of his goods and chattels by fieri facias or of his graine or other present profits which encreased upon the land by levati facias both which writs were to be sued within the yeare after the judgement or recognisance acknowledged and if he had neither the one of the other within the yeare the Plaintiffe or Conusée was then put to his writ of debt c. And then by the Statute of Westm 2. cap. 45. a scire facias was given and by cap. 18. cum debitum fuerit recuperatum c. an Elegit of the moity of the land which was the first Act that subjected land to the execution of a judgement or recognisance and with this agrées F. N. B. 265. q. And then by the Statute of 13 E. 1. de Mercatoribus 27 E. 3. cap. 9. and 23 H. 8. cap. 6. In case of a Statute Merchant or staple all the lands which the Conusor had the day of the conusance shall be extended in whose hands soever they come c. Also by the Statute of Malbridge cap. 23. and of West 2. cap. 11. A capias was given in accompt for at the Common Law processe in accompt was distresse infinite and after by the Statute of 25 E. 3. 17. the like processe was given in the debt as in accompt before which two last recited Statutes the body of the Defendant was not liable to the execution in accompt or debt c. neither yet was the land liable in debt as afore-said save in the Kings case and in the case of an heire in by descent and chargeable by the Obligation of his Ancestor c. Co. l. 4. 40. 2. 3. Darleys Case 17 In P. 25 E. Wotherel brings an appeal against Dorley of murder the Defendant pleads not guilty and he was found guilty of homicide Life shall 〈◊〉 be twice 〈◊〉 in jeopardy for the same offence and had his Clergy and after he was indicted of murder and thereupon arraigned at the Quéens suit and he pleaded the former condition in the appeale at the suit of the party And it adjudged a good barre because the life of a man is so precious in judgemedt of Law that it shall not be twice put in jeopardy for one and the same offence The like is agréed in Brooks Case H. 28 El. and P. 33 El. in Vaux his Case which sée Co. l. 4. 45. a. Nâ—â— compos â—â—tis shall not lose his â—ife for felony 〈◊〉 murder 18 Every Act that a man de non sanae memoriae doth Co. ibid. 124. in Beverleys Case either concernes his life his lands or his goods also every Act that he doth is either done in pais or in a Court of Record All Acts which he doth in a Court of Record concerning his lands and goods shall bind himselfe and all other persons for ever Also all Acts which he doth concerning his lands and goods in pais in some cases shall bind himselfe onely during his life and in some case shall bind for ever c. But as for his life the Law of England is that he shall not lose that albeit he kill a man and thereby make himselfe subject to be indicted for felony or murder c. The death of a â—an grievously punished by the Law 19 The Law surpriseth the life of a man Co. ibid. 2. 4. in Beverleys Case that it inflicteth grievous punishment upon them that are guilty of taking away and destroying it for the malefactor in that case shall 1. Lose his life 2. Lose it after an ignominious and odious manner viz. by hanging for he shall be hanged betwixt heaven and earth as unworthy of both 3. He shall lose his bloud both in respect of his ancestry for he is estéemed as a Terrae-silius without any Ancestor and also in respect of his posterity for his bloud is corrupt and he leaveth behind him neither heire nor posterity 4. He loseth his lands 5. His goods And in such case also the King shall have Annum diem vastuna to the intent that his Wife and his Children should be cast out his houses demolished his trées eradicated and stockt up his meadowes broken up and ploughed and all that he hath for his comfort delight and sustenance wasted and destroyed because he hath in such a felonious manner offended against the Law and all this is ut poena ad paucos metus ad omnes perveniat c. Upon an Arâ—â—st the cause 〈◊〉 be shewâ—d 20 The Law so provideth for the preservation of a mans liberty Co. l. 6. 54. 2. 4. in the Countesse of Rutlands Case that no general arrest is déemed legall without shewing the particular cause wherefore he is arrested And therefore the Sheriffe or any other by his authority which makes an arrest of the person of another ought upon the arrest to shew at whose suit out of what Court for what cause he doth it and when the processe is returnable to the intent that if it be upon an execution he may pay the money and so frée his body from imprisonment and if it be upon a mesne processe may either agree with the party or put in baile according to the Law and so make his apparence accordingly c. â—he Coll. of â—ys cannot â—â—mmit 21 An Act of Parliament Co. lib. 8. 120. a. 3. Doctor Bonhams Case that gives power of
Sessions quod non legit Dier 205. b. 3 4 â—l and the prisoner is for some cause reprieved yet he may read at the next Sessions and shall have his Clergy in favorem vitae Vide 36 H. 6. that a Prisoner shall have his Clergy under the Gallows Life goods 44 If two men tilt before the King Hob. 134. Weaver and Ward or two Masters of Defence be playing their Prizes and one of them happen to kill the other this is not Felony because not done animo felonico and besides if it should be questioned as an Offence the life of the Offender which the Law much tenders would be brought into jeopardy there is the same Law also of a Lunatique that kills a man Howbeit in Trespasse which intends onely to give dammages according to hurt and losse it is not so And therefore if a Lunatique hurt a man he shall be answerable in Trespasse So likewise if in training for exercise in re militari one Souldier happen to hurt another he shall be answerable in Trespasse because it extends no farther then to his goods to satiâ—â—e dammages yet if the accident were inevitable he shall be excused c. 93 Things in the Realty more then those in the Personalty In waste the place wasted â— more respect then the dammages 1 It hath béen a question Co. Inst p. 1. 355. a. 4 c. Note that it is holden per Curiam 9 H. 5. 15. that the personalty is the principal Ideo quare Vide Co. l. 2. 68. b. 1. in Tookers case whether upon a Recovery had by default in an Action of Waste against tenant in Dower or by the Courtesie a Quod ei deforceat lieth upon the Statute of West 2. cap. 4. And some hold that it doth not in regard the dammages as they say are the principal and not the place wasted because the dammages were recoverable upon that action against such Tenants at the Common Law and the place wasted was afterwards given by the Statute of Glocester as a penalty so as the nature of the Action say they remaineth still to be personal for that the dammages are the principal c. But in that Case others are of opinion and say that albeit in that Action the dammages may be the more ancient recompence yet the place wasted being in the realty must néeds be the more principal And therefore upon a Recovery by default in such an action a Quod ei deforceat lieth as well as in any other c. And this last séems to be my Lord Cooks opinion because put last according to his own Rule in his Comment upon Littleton â— Lien real â—nd personal 2 There is a diversity betwéen a Lien real and a Lien personal Co. ib. 386. b. 3 11. E. 3. det 7. for a Lien real as a warranty doth ever descend to the heir at the Common Law but the Lien personal doth binde the special heirs as all the heirs in Gavelkind the heir on the part of the mother c. when such an heir being charged by the Obligation or other act of the Ancestor is in by descent c. So if two men make a Feoffment in Fée with warranty and the one die the Feoffée cannot vouch the survivor onely but the heir of him that is dead also Howbeit it is otherwise where two do joyntly bind themselves in an Obligation for if one die the survivor onely shall be charged c. Release of one Joynt-tenant no Bar. 3 In personal actions the one Ioynt-tenant may release all Co. l. 2. 68. 24 in Tookers ca. per Popham but if the personalty be mixed with the realty it is otherwise as in an Assise by two the release of all actions personal by the one is no bar against the other for albeit an Assise is an action mixt in the realty and personalty yet omne majus trahit ad se minus as it is adjudged 30 H. 6. Bar 59. Also a Ioynt-tenant shall not prejudice his Companion as to any matter of Inheritance of Frank-tenant but as to the profit of the Frank-tenant the one may prejudice the other for there is a privity and trust betwixt them and therefore if one of them take all the profits of the Land or all the Rent the other hath no remedie c. Things in the Realty may be intailed not those in the Personalty 4 By force of the Statute of West 2. cap. 1. Co. Inst p. 1. 19. b. 4. which createth estates tail under this word tenementa not onely all corporate Inheritances which are or may be holden may be intailed but also all Inheritances issuing out of any of those inheritances or concerning or annexed to or exercisable within the same though they lie not in Tenure as Rents Estovers Commons or other profits whatsoever granted out of land or Vses Offices Dignities c. which concern lands or certain places All these I say may be intailed within that Statute because they savour of the Realty But if the Grant be of an Inheritance meer personal or to be exercised about Chattels and is not issuing out of land nor concerning any land or some certain place such Inheritances cannot be entailed because they savour nothing of the Realty For example in 7 Ass Pl. 12. and 7 E. 6. 1. the Office of the fourth part of the Serjeant of the Common Pleas is liberum tenementum and therefore may be entailed In 18 E. 3. 27. the Office of the kéeping of the Church of our Lady of Lincoln was intailed and a Formedon brought thereupon by the issue intail In 5 E. 4 3. and 10 E. 4. 14. The Office of Marshal of England was intailed In 11 E. 4. 1. the Office of one of the Chamberlains of the Exchequer intailed In 1 H. 7. 28. the Office of a Fostership intailed In 4 H. 7. 10. and 9 E. 4. 56 b. Charters intailed In 19 H. 8. 3 An Vse intailed In 1 H. 5. 1. The nomination to a Benefice intailed c. Co. l. 7. 33. 34 Nevilâ— Caâ—â— 28 H. c. the Lord Vesceâ—â— Case Also the name of Dignity may be intailed within that Statute as Dukes Marquesses Earls Vicounts and Barons because they are named of some County Mannor Town or place In 14 Ass Pl. 2. if the issue in tail in a Formedon in a Descender be barred by false Verdict his release is no bar to his issue albeit the action is at the Common Law The like Law is of a writ of Error 3 Eliz. Dier 188. If a gift in tail be made with warrantie the Donée releases the warranty this shall not binde the issue in tail for to all these Cases and the like the said Statute doth extend But if I grant to a man and to the heirs of his body to be Kéeper of my Hounds or Master of my Horse or to be my Faulconer or the like with a fée therefore yet these cannot be
for life and therefore by his general attornment according to the writ he is barred for ever to claime any priviledge but a bare Estate for life c. Attornment 8 If a reversion be granted for life the remainder in fée by déed Co. l. 2. 67. b. 4. in Tookers Ca. and the grantée for life dies attornment to him in remainder is void for it is not according to the grant otherwise it is if the grant were by fine c. Vide supra 6. R. 55. e. 69. Waiver in Court of Reâ—â—â—d 9 At the Common Law Co. l. 3. 26. a. 3. in Butler and Bakers Case if lands be given to Baron and Feme in taile or in fée and the Baron die in this Case albeit the Feme before her entry reciting her Estate saith by parol in pais that she assents and agrées to the said Estate or words to that effect yet afterwards she may waive that Estate in a Court of Record So in M. 34 E. 1. Tittle Advowry 232. it was adjudged that if a man take a distresse for one thing yet when he comes into a Court of Record he may make Avowry for what thing he pleaseth Also in 13 R. 2. Joint-tenancy A Charter of feofment was made to four and seisin was delivered to thrée in name of all and the fourth comming and viewing the déed dis-agrées and saith by parol he will have nothing to do with the Land and it was adjudged that this disagréement by parol in pais shall not devest the frank-tenement out of him And Thorpe in 35 E. 3. Tittle Disclaimer saith that in such Case the tenancy remaines still until his dis-agréement thereunto in a Court of Record and therefore in such a Court he may dis-agrée and not otherwise c. 〈◊〉 compos â—â—â—is 10 The Law so much tendreth the debility and weaknesse of a non compos mentis that in many Cases the Acts which he doth in pais Co. l. 4. 124. a. 2. in Beverleys Case shall be avoided c. but matters of Record done by him shall not be avoided as if he levie a fine suffer a recovery acknowledge a Statute or recognisance c. such things as these shall not be avoided by any averment of non sanae memoriae either by his heires or executors c. â—oods of one 〈◊〉 lawed saâ—ed by a parâ—â— upon Reâ—â—d 11 If a man be out-lawed for felony Co. l. 5 111. a. 2. Foxleyes Case albeit he was in prison or beyond Sea c. renders himselfe upon the exigent and upon his triall is found not guilty yet he shall forfeit all his goods and chattels and shall not have restitution c. for Knivet in 43 E. 3. 17. saith that the party shall not have restitution of his goods although the writ of exigent erronice emanavit so long as the award of exigent which is there called a judgement stands in force because the fore-said averments of imprisonment or being beyond Sea c. are but matters in fuit But as it is said in the same Booke if such an out-lawed person have a charter of pardon of an older date then that of the Exigent the goods are saved for that the cause of saving them appeares upon Record c. â— Court of â—â—cord onely â—â—wer to imâ—â—â—son 12 In some Action the Defendant shall be fined in one Court Co. l. 8. 60. b. z. in Beechers Case Co. lib. 8. 41. a. 3. in Griesleys Case lib. 8. 120. a. 1. in Doctor Bonhams Case and onely amercied in another Court and yet the offence shall be one and the same As in a writ of Reception if it be brought in the Common Pleas and judgement there given the Defendant shall be fined and imprisoned but if the writ be Vicontiel and before the Sheriffe in the County the Defendant is convict the judgement shall not be quod capiatur c. but in such Case he shall be onely amercied And albeit the writ viz. the Reception is of Record yet in as much as the Iudges in the Court viz. the Sutors are not Iudges of Record nor the Court a Court of Record they cannot impose a fine or commit any to prison Quia nulla Curia qui Recordum non habet potest imponere finem neque aliquem mandare carceri quia ista spectant tantummodo ad Curias de Recordo c. Co. Inst p. 1. 233. b. 4. 13 If a Lease for life be made to a Feme covert or an Infant Infant Feme covert Forfeiture Mortmain Recovery Wast and they by Charter of Feoffment Alien in Fée the breach of this Condition in Law is no absolute forfeiture of her Estate So it is also of a Condition in Law given by Statute which giveth an entry onely As if an Infant or Feme covert with their husband Alien by Charter of feofment in Mortmaine this is no barre to the Infant or Feme covert But if a recovery be had against an Infant or Feme covert in an Action of wast there they are bound and barred for ever because that is matter of record unto which the Law gives high respect and therefore it is to be observed that a condition in law by force of a Statute which giveth a recovery is in some Case more strong then a Condition in Law without a recovery For if Lessée for life make a lease for yeares and after enter into the land and make wast and the Lessor recover in an Action of wast he shall avoid the lease made before the wast done But if the Lessée for life make a lease for yeares and after enter upon him and make a feofment in fée this forfeiture shall not avoid the lease for yeares c. Co. ib. 356. 24 14 If a man sue a false and feigned Action against Tenant for life Recovery Discontinuance and recover the land against him by default so that he may have against the recoveror a Quod ei deforceat according to the Statute of West 2. cap. 4. In this case albeit the Action be false and feigned yet is a Recovery being a matter of Record so much respected in Law that it worketh a discontinuance so that the Lessor cannot have an Action of wast neither against the one nor the other for by the recovery the privity betwéen the Lessor and Lessée is destroyed and betwéen the Lessor and the recoverer there never was nor can be any privity and by the recovery all the reversion is divested out of the Lessor and vested in the recoveror But if Tenant for life make a feofment in fée upon Condition and wast is done and after the Lessée re-enters for the Condition broken in this Case the Lessor shall have an Action of wast And so if a Bishop make a lease for life or yeares and the Bishop die and the Lessée the See being void doth wast the Successor shall have an Action of wast
forma is material So if a feofment be pleaded by déed and it is traversed absque hoc quod feoffavit modo forma upon this collateral Issue modo forma are so essential that the Iury cannot find a feofment without déed 8 Lord and Tenant by fealty onely and the Lord distraines the Tenant for Rent Litt. §. 484. Modo forma Lord and Tâ—nant the Tenant brings an Action of Trespass against the Lord for his cattle so taken and the Lord pleads that the Tenant holds of him by fealty and certain Rent and for the Rent he distrained c. And the Tenant saith that he holds not of him modo forma as he supposeth and thereupon they are at Issue and it is found by Verdict that he holds of him per fidelitatem tantum In this Case the writ shall abate and yet he held not of the Lord in manner as the Lord had alleadged But the matter of the Issue being found viz that the Tenant holds of him that sufficeth to abate the writ albeit the Lord distraine the Tenant for other services then are due Co. ib. 282. a. 1. 9 If A. be appealed or indicted of Murder Modo forma Murder Manslaughter viz. that he of malice prepensed killed B. A. pleads that he is not guilty modo forma yet the Iury may find the Defendant guilty of man-slaughter without malice prepensed because the killing of B. is the matter and malice prepensed is but a Circumstance Co. ib. a. 2. 10 In Assise of darrien presentment Darrien presentment if the Plaintiffe alleadge the avoydance of the Church by privation and the Iury find the voydance by death the Plaintiffe shall have judgement for the manner of the voydance is not the title of the Plaintiffe but the voydance is the matter c. Co. ibid. a. 3. 11 If a Guardian of an Hospital bring an Assise against the Ordinary he pleadeth Deprivation ab Ordinary as Patron that in his visitation he deprived him as Ordinary whereupon Issue is taken and it is found that he deprived him as Patron yet the Ordinary shall have judgement for the deprivation is the substance of the matter Co. ib. 282. a. 3 12 The Lessée covenants with the Lessor not to cut downe any trées c. And binds himselfe in a bond of 40 pounds for performance of covenants the Lessée cuts downe ten trées Breach of covenant the Lessor bringeth an Action of debt upon the bond and assigneth a breach that the Lessée hath cut downe 20 trées whereupon Issue is joyned and the Iury finds that the Lessée cut down ten yet judgement shall be given for the Plaintiffe For sufficient matter of the Issue is found for the Plaintiffe Litt. §. 485. Co. ibid. 282. a. 4. c. 13 In a writ of Trespass for battery or for goods caried away In actions transitory the place must not be traversed if the Defendant plead not guilty in the manner as the Plaintiffe supposeth and it is found that the Defendant is guilty in another towne or at another day then the Plaintiffe supposeth yet he shall recover For in Actions brought for things transitory the wrong being done in one towne the Plaintiffe may not onely alleadge it in another towne but also in another County and the Iurors upon not guilty pleaded are bound to find for the Plaintiffe Neither can the assault battery taking of goods c. alleadged in another County be traversed without special cause of justification which extendeth to some certain place as if a Constable of a Towne in another County arrest the body of a man that breakeeh the peace there he may traverse the County Howbeit he must not stay there but must say farther and all other places saving in the towne whereof he is Constable So it is also in an Action for taking of goods for in that Case also if the Defendant justifie for damage feasant in another County he may traverse as before But where the cause of the justification is not restrained to a certain place which is so local that it cannot be alleadged in any other towne as in the Cases before alleadged and the like then albeit the Action be brought in a forraigne County yet he must alleadge his justification in the County where the Action is brought As if a man be beaten in the County of Middelsex and he bringeth his Action in the County Buck. the Defendant cannot plead that the Plaintiffe assaulted him in the County of Middelsex c. and traverse the County but he must plead his justification in the County of Buck. for that the cause of his justification is good in any place So it is likewise in Case of Bailement of goods and other Cases for transitory things as for example In an Action upon the Case the Plaintiffe declared for speaking of slanderous words which is transitory and layd the words to be spoken in London the Defendant pleaded a concord for speaking of words in all the Counties of England saving in London and traversed the speaking of the words in London the Plaintiffe in his replication denied the concord whereupon the Defendant demurred and judgement was given for the Plaintiffe for the Court said that if the concord in that Case should not be traversed it would follow that by a new and subtile invention of pleading an ancient principle in Law that for transitory causes of Action the Plaintife might alleadge the same in what place or County he would should be subverted which ought not to be suffered And therefore the Iudges of both Courts allowed a traverse upon a traverse in that Case c. Now the ground that ruleth all these Cases is this because the Law respects more the cause of the Action which is the substance of the suit then the place where the Act was done which is but circumstance c. â—ubstance cerâ—ainely alâ—eadged conâ—yance not 14 That which is alledged by way of conveyance or inducement to the substance of the matter néed not to be so certainely alleadged Co. ib. 303. a. 4. as that which is the substance it selfe And where a matter of Record is the foundation or ground of the suit of the Plaintiffe or of the substance of the plea there it ought to be certainly and truly alleadged otherwise it is where it is but conveyance because that is but circumstance c. â—ea insufficiâ—â— 15 When a Count barre replication Co. l. 8. 133. b. 1. Turners Case c. is defective in respect of omission of some circumstance as time place c. there it may be made good by the plea of the adverse party but if it be insufficient in matter and substance it cannot be salved Co. l. 8. 120. b. D. Bouch. Case â—â—cient pleaâ—â—ngs 16 In the Raignes of E. 2. E. 1. and upwards Co. ib. 303. b. a Co-l 7 25. a in Buts Case Co. ib.
subvert the substance And with this agrées the reason in the Lo. Loveâ—â— Case in Pl. Co. and in Isabel Good-cheapes Case in 49 E. 3. 16. Co. l. 8. 161. a. 4. in Blackamores Case 29 Pleas in barre replications Pleas c. â— amended c. and regularly matter of substance in them and especially matters of fact shall not be amended in an other term as omission of averment hoc paratus est verificare c. for in some Cases as in avowry that is not necessary but colour which is of course and wherein the mistake of the Clerk is found may be amended c. Co. l. 9. 67. a. 4. in Mackalley's Case for killing the Serjeant of London 30 In Mackalley's Case the Indictment was An indictâ— good although noâ— pursued in â—â—â—cumstance that the Sheriffe directed his Warrant to the Serjeant to arrest the Defendant whereas it appeares by the Verdict that no Warrant at all was made but that by the Custome of London after plaint entred the Serjant might arrest him without warrant or precept and yet the indictment was adjudged good for it sufficeth if the substance of the matter be found without any such precise regard to the circumstance And therefore if a man be indicted that he with a Dagger gave to another a mortal wound whereof he died and upon the evidence it is proved that he gave the wound with a Dagger Rapier Staffe or Bill in this case the Offender ought to be found guilty For the substance of the matter is that the party indicted gave him a mortal wound whereof he died and the circumstance of the manner of the weapon is not material in case of an indictment yet such circumstance ought not to be omitted but some weapon ought to be mentioned in the indictment So if A. B. and C be indicted for killing of I. S. and that A. struck him and that the other were present procuring abetting c. and upon the evidence it appeared that B. struck him and that A. and B. were present c. In this case the indictment is not pursued in the circumstance and yet this is sufficient to maintain the indictment for the evidence agrées with the effect of the indictment and so the variance of the circumstances of the indictment is not material because it shall be adjudged in Law the stroke of each of them and it is as strongly the act of the other two as if all thrée had struck with the Staffe c. together and all had killed him that was slain And with this agrées Pl. Com. 98. a. So if one be indicted for murdering another upon malice prepense and he is found guilty of Man-slaughter he shall have judgment upon that verdict for the killing is the substance and the malice prepense is the manner of it and when the matter is found judgment shall be given thereupon although the manner be not precisely pursued and with this also agrées Pl. Com. 101. where it is farther said that when the substance of the fact and the manner of the fact are put in issue together if the Jurors find the substance and not the manner judgment shall be given upon the substance And this is the reason that in case of killing a Minister of Iustice in the execution of his Office the indictment may be general viz. that the prisoner felonicè voluntariè ex malicia sua praecogitata c. percussit c. without alleadging any special matter for in that case the evidence will well maintain the indictment because the Law implies malice prepense c. Co. l. 9. 119. a. 2 in the Lord Southams Case So likewise if one be indicted as accessory to two and he is found accessory to one yet the verdict is good c. â—respasse for â—ppression of Common 31 In trespasse upon the case for oppression of Common Co. l. 9. 112. a. 3 in Robert Maryes Case the plaintiffe saith that the Defendant put his Cattle upon the Common and that they depastured there from the 1 of May till Michaelmas the Defendant pleads not guilty and it was found by special verdict that the Cattle depastured there c. but that the Defendant put them not upon the Common And in this case albeit it was argued by the Defendants Council that the Iury had not found the wrong whereof the plaintiff complained because he complained of a Misfeasance and they had found a Non-feasance for the plaintiffe counted that the Defendant posuit averia sua c. and the Iurors found quod non posuit c. but that the Cattle did depasture c. which might be by escapâ— which is a Non-feasance c. Howbeit notwithstanding that allegation the action was adjudged maintainable enough For Iudges in finding of verdicts rather respect substance than circumstance c. 〈◊〉 unformal â—â—nclusion â—all not preâ—â—e 32 In an Attachment upon a Prohibition the plaintiff alleadgeth unity of possession of the Rectory and land in a Prior and his Predecessors before and at the dissolution c. and then concludes Co. l. 11. 10. a 4 in Priddle and Nappers Case ratione cujus idem nuper Prior omnes alii priores c. per totum tempus praedictum c. habuerunt tenuerunt c. praedict terrae exonerat c. was not de omnimodis deciminis c. whereas in truth by the unity of possession the land was not discharged of tythes but of the payment of tythes c. and therefore the conclusion in that pâ—int was not formal Neverthelesse in this case in as much as the prescription it selfe was well alleadged in substance so that the foundation thereof was good the mistake of the conclusion and consequent thereupon which is but a circumstance shall be no cause of granting a Consultation c. Co. l. 11. 78. a. 4 in Magdalen Colledge's Case 33 When the Grantor is a person able to grant 18 Eliz. 2. supplies circumstance and hath power over the land and the Déed is good and legal but wants circumstance as inrollment or the like such a Déed is made good and such omission is supplied by the Statute of 18 El. cap. 2. for confirmation of Patents or Grants made by or to the Quéen because that act makes the conveyance good according to the true intent and purport thereof which is the substance and therefore in such case want of circumstance shall not prejudice c. Pl. Co. 65. b. 2. in Dive and Maninghams Case 34 When a Record is to be pleaded in barre Conveyance to an action need not be certainly pleaded it ought to be intirely and certainly recited because in that case the Record alone is the matter of substance and the effect of the barre which ought to be full and perfect but when the recital of a Record is nothing but conveyance to another matter and not the effect of the barre but onely an
quando c. damna quicquid quod ipse defendere deber c. judgement shall be given against him â—jâ—ration 2 Albeit in 8 E. 2. Abjuration indefinitely is called a divorce betwéen the Husband and Wife yet every abjuration is not so Co. ib. 133. 23 for such abjuration as amounts to a divorce ought to be either by authority of Parliament or upon ordinary procéeding in Law as in the Case of Tho. of Weyland in 19 E. 1. Neverthelesse in that Case procéeding in Parliament or at Law are but in the nature of circumstance c. Co. ib. 137. b. 3 3 By the wisdome of our Ancients a great deale of solemnity was used in the manumission of Villains Manumission of Villein to the end the memory thereof might take the déeper impression in the mindes of the Assistants for which this was the old Rule Qui servum suum liberat in Ecclesia vel Mercato vel Comitatu vel Hundredo coram testibus palam faciat liberas ei vias portas conscribat apertes Lanceam Gladium vel quae liberorum arma in manibus ei ponat c. Co. ib. 143. b. 1 229. a. 3. Co. l. 5. 20. b. Stiles Case 4 A déed cannot be a déed indented A deed Indented unlesse it be actually indented For albeit the words of the déed be Haec indentura c. yet if it be not indented indéed it is no indenture but if the déed be indented albeit the words of the déed be not Haec indentura c. yet it is an indenture c. Co. ib. 152. a. 4 Co. l. 5. 112. b. 1. in Mallories Case 5 If a Lease for life be made Attornment necessary reserving a Rent upon Condition c. And the Lessor levies a fine of the reversion to a stranger In this Case albeit the Conusée is Grantée or Assignée of the Reversion and so seemes to have power given him of taking advantage of the Condition by force of the Statute of 32 H. 8. cap. 34. Neverthelesse without Attornment he shall not take advantage of the Condition For the makers of that Statute intended to have all necessary Ceremonies and incidents observed otherwise it might be mischievous to the Lessée c. Co. ibid. 216. Litt. § 349. 6 If Land be Granted to a man for two yeares upon Condition Livery that if he pay to the Grantor within the said two yeares 40 marks that thou he shall have Fée But the Grantor gives him no Livery In this Case albeit he pay the 40 Marks within the two yeares yet he shall not have Fée Because there wanted the Ceremony of Livery It had béen otherwise if Livery had béen made unto him c. Co. ib. 218. a. 3 7 Regularly when any man will take advantage of a Condition if he may enter the must enter and when he cannot enter Free-hold â— inheritance â— cannot be â— vested withâ— entry or thiâ— he must make a claime And the reason is for that a frée-hold and inheritance shall not cease without entry or claime As if a man Grant an Advowson to a man and his heires upon Condition that if the Grantor c. pay 20 li. on such a day c. the State of the Grantée shall cease and be utterly void The Grantor payeth the money yet the State is not revested in the Grantor before a claime and that claime must be made at the Church And so it is likewise of a Reversion or remainder of a Rent Common or the like For there also must be a claime before the State be revested in the Grantor by force of the Condition and that claime must be made upon the Land A fortiori in Case of a feofment which passeth by Livery of seisin there must be a re-entry by force of the Condition before the State be void Co. ibid. 8 A man bargaineth and selleth Land by déed indented and enrolled with proviso that if the bargaine pay Idem c. that then the state shall cease and be void he payth the money the State is not revested in the Bargainer before re-entry And so it is if a bargaine and sale be made of a Reversion Remainder Advowson Rent Common c So it is likewise if Lands be devised to a man and to his heires upon Condition that if the devisée pay not 20 pounds at such a day that his Estate shall cease and be void the mony is not payd the State shall not be dested in the heire before an entry And so it is also of a Reversion Remainder Advowson Rent Common or the like 9 All Déeds and Writings ought to be made in Parchment Co. ib. 229. a. 3. or Paper Writings must â—e in parchment or paper For if a writing be made upon a peice of wood or upon a piece of a linnen or in the barke of a trée or on a stone or the like c. and the same be sealed and delivered yet it is no déed for a déed must be written in Parchment or Paper Because a writing upon such materials is least subject to alteration and corruption 〈◊〉 Sâ—â—t 32 〈…〉 10 It is agréed in 28 H. 8. fol. 28. that where the Statute of the 27 H. 8. c. 10. of Uses provides Co. lib. 5. 112. b. 3. in Mallories Case that the actual possession shall be adjudged according to the use c. yet all circumstances required by the Common Law are to observed viz. actual entry de facto â—o free-hold â—ithout liveâ—y or c. 11 Tenant in taile of an House entring into it saith thus Brother Co. lib. 6. 26 Sharpes Case I here demise unto you my house as long as I live paying 20 li. per annum to me you finding me bord horse c. this amounts not to a demise for life Because there wants livery or some Act which the Law adjudged livery or at least apt words which amount thereunto For delivery of a Charter is an Act but the Law doth not adjudge that livery because it hath another effect viz. to make the Charter his déed as it hath béen adjudged but delivery of a turfe twig or any thing else which comes from the land or of the ring of the doore is good livery So if he saith enter and enjoy it c. that is good although out of the land if within view for that is a delivery of the land it selfe 27 Ass 61. after delivery of the déed upon the land to say have and enjoy the land according to the deed this is good livery so 41 E. 3. 17. after delivery c. upon the land he saith enter God give you joy this is good 37 H. 8. Feofments Br. â—o new lease â—exe entry 12 Vpon a lease for years by Indenture the Lessée covenants and grants Dier 6. 28 H. 8. 1. c. that if he his
memoriae and yet doth the Law of Nature and Law of the Realme prohibits generally the beating of any but this special Case for the prevention of a greater mischief hath an exemption and a special priviledge Pl. ibid. b. 4. 35 In a praecipe quod reddat the Tenant shall excuse his default by the increase of Waters and yet every default is abhorced in Law Necessity â—â—cused a default because it is a contempt of the Court but for that he could not without peril of death appeare the necessity of the accident in such Case shall excuse him 1 Kings 21. Math. 12. Pl. ib. 19 a. 1. 36 The Law of God prohibited the eating of Proposition Bread Proposition Bread anâ— Eates of 〈◊〉 may be 〈◊〉 yet it was adjudged by CHRIST himself to be lawful for David to eat it in a time of necessity to prevent famine So also upon the like occasion was it lawful for Christs Apostles to pull the Eares of other mens Corne and to eat them And in our Law an Obligation per dâ—â—â—s or minas shall be avoided because it is done by compulsion Pl. 37. b. 4. Plats Case 37 If the Sheriffe of Middlesex suffer an in-voluntary escape of a prisoner and making fresh suit after him takes him in Surrey Pursuit upâ—â— an escape â— of a diâ—â—â— where he is not Sheriffe yet he may justifie the taking of him there So â—â—so if one come to distrâ—ine for Rent-service and the Tenant séeing him comming drives away his Cattle from off the land yet there the Lord may pursue them within view and retake them in whatsoever land they are albeit they are out of his Authority For the pursuit and the possession after shall be adjudged as a possession with continuance when it is for Rent-service But it is otherwise for damage fesant and so the diversity is held 16 E. 4. fol. 10. yet H. 6. R. 2. abr per Fitz. Rescous 11. it is held also justifiable for damage fesant and all this is allowed for the necessity of the occasion and in favour of right and justice â—â—it patent â—ed in the 〈◊〉 Court 38 If a man hold as of a Seigniory in grosse F. N. B. 3. c which hath not a Mannor where the Lord may kéepe any Court in such Case the Tenant may sue Briefe de droit patent in the Kings Court and the Lord shall not have any Action against him for it nor by any meanes annul his Action because he hath not any Court to hold plea thereof And therefore he is compelled by necessity to sue immediately in the Kings Court. 〈◊〉 of right 〈◊〉 Dower suâ—â— in the â—B 39 If the Baron give part of his Mannor in taile to hold of him and die F.N.B. 8. a. b the Feme shall sue her writ of right of Dower in the Court of the Heire of the Baron against the Donée in taile and the writ shall be directed to the Heire But if the Baron make a Gift in taile of all the Land he hath and die here the Heire of the Baron cannot kéep any Court because he hath but a Seigniory in grosse and therefore in such Case it séemes reasonable that she shall have her writ of right of Dower against the Donée in taile directed to the Sheriffe and returnable in the Common Place and there shall be this Clause in the Writ Quia B. Capitalis Dominus feodi illius nobis inde remisit Curiam suam So it is also if the Baron lease all his Land for life there also the Feme shall sue such a Writ against the Tenant for life returnable in the Common Place because the Heire of the Baron in that Case also can kéeps no Court having but a Seigniory in grosse And in these Cases and the like the Lord shall not sue a prohibition to the Iustices of that Court that they should not procéed in such pleas for that the Feme in such Cases is forced by necessity to do it 40 If an Infant or Feme covert present not within 6 moneths Fitz. ib. 34. c the Bishop shall present by laps for there is a necessity the Church should be served 41 Where wast is made by the Kings enemies or by tempest Fitz. ib. 59. l. the Tenant shall not be punished for it 42 Ubi aliud suader necessitas cessat humanae constitutionis cessat voluntas Nomothetae Erasm in Coll. Conv. Proph. 43 A Dedimus Potestatem was granted to receive an Attorney for the Defendant in a Quid Juris clamat Dier 135. pl 15 3 4. P. M. albeit no former President could be found for it and this was allowed per Curiam by reason of the weakenesse of the Defendant who could not appeare in person without manifest danger of life â—â—â—ing a 〈◊〉 it Sea 44 Hob. 13. Bridgmans Case Hob. 13. per Hobart concerning the Masters impawning of another mans Ship at Sea for necessity of fact or other provision â—â—â—er by a â—â—tick 45 An Action of Trover and Conversion may be brought in a Lunatiques owne name Ho. 215. Cocks and Darson for graine sowne upon his Copi-hold land and caried away by a stranger and that for necessity because it can be brought in no mans name else 111. 2 Conveniencie Co. l. 9. 49. a. b. The Earl of Shrewsburies Case Vide Max. 184 cap. 5. 1 If a Parkship be granted to an Earl Dignity respected for conveniencie without words to make a Deputy yet he may kéep it by his servants for the Law doth allow divers acts for convenience in respect of the Dignity of the person as if Licence be given to a Duke to hunt in a Parke the Law for conveniencie given him such attendante as are requisite to the Digntiy of his Estate Vide 12 H. 7. 25. 13 H. 7. 10. So when a Bishop is riding forth or upon the way it is not convenient for his Estate and Degrée to be then inforced to examine the Ability of a Clerk but he ought to attend his convenient leasure 14 H. 7. 21. 15 H. 7. 7. 8. Co. ibid. and Mirror of Justices cap. 1. §. 2. 2 At the first institution of this Monarchy an Earl was Praefectus The liâ—e or Propositus Comitatus for so the Saxon word Shire-reeve imports The Romans called him Satropas from the Persians viz. Praefectus Provinciae And the Sheriff at this day called Vice-comes quasi vicem generis seu vicariis Comitis hath the whole authority for the Administration and Execution of Iustice that the Earl had and if the King do now by his Letters Patents commit unto the Sheriff custodium Comitatus without expresse words to make a Deputy yet he who comes in the place of the Earl may make a Sub-vice-comes viz. a Deputy who was in times past Seneschallus Vice-comitis and by West 2. cap. 39. Sub-vice-comes and by 11 H. 7. cap. 15. Shire-Clerk
Co. ib. in the E. of Shrewsburies Case 3 If before the Statute of Quia Emptores terrarum 18 E. 1. The like the King or any other had given Lands to hold of him in Knights-service viz. so attend the King 40 dayes in his Host sufficiently armed c. in this Case the Law had such regard to the Honor of Knight-hood which is the lowest Degrée of Dignity that he might find an able person to go with the King in his Warres Vide. 7 E. 3. 29. and this was for conveniencie c. Co. ib. the principal â—ase 4 Qu. Eliz. by Patent granted to the Earle of Shrewsbury Seneschal Dominiorum sive Maneriorum de Mansfield Bolsover Hotsley A Pear Steward may maâ—â— a Deputy without giving him power therein to make a Deputy yet he might make a Deputy because it was not convenient that the Earl should kéep such base Courts himself Pl. 9. b. 18. b. 5 The Statute of Marlebridge A Distresse may be brought intâ— another County prohibits that none shall bring a Distresse out of one County into another yet it is held per totam Curiam M. 1. H. 6. Pl. 9. fo 3. abridged by Fitz. Tit. Distresse 1. that where a Mannor extends into two Counties the Lord may distrain in one County and bring the Distresse into the other County where the Mannor is and this is to avoid the mischief and inconvenience that would insue if the Lord should be restrained from bringing the Distresse to his Mannor But see the contrary adjudged in 30. E. 3. 5. Co. Inst p. 1. 210. b. 1. 6 If the Condition of a Bond or Feoffment be to pay or to deliver Money no place being appointed where it should be paid in such Case the Obligor or Feoffor is bound at the day of payment to find out the Obligée or Feoffée to make payment or tender thereof if he be in England but if the Bond or Feoffment be to deliver 20 Quarters of Wheat or 20 Loads of Timber or the like In such Case the Obligor or Feoffor is not bound to carry the same about or to seek the Obligée or Feoffée but in such Case the Obligor or Feoffor must go to the Obligée or Feoffée before the day of payment and know where he will appoint to receive it and there it must be delivered and this the Law directs for the convenience So if rent be issuing out of Land it ought to be tendred upon the Land But Homage or any other special corporal Service must be done to the person of the Lord and the Tenant ought by the Law of convenience to séek him to whom the Service is to be done in any place within England In like manner if a man be bound to pay 20 l. at any time during his life at a certaine place the Obligor cannot tender the Money at the place when he will for then the Obligée should be bound to perpetual attendance and therefore the Obligor in respect of the uncertainty of the time and for convenience sake must give the Obligée notice that on such a day at the place limited he will pay the Money and then the Obligée must attend there to receive it for if the Obligor then and there tender the Money he shall thereby save the penalty of the Bond for ever There is the same Law if a man makes a feoffment in fée upon Condition that if the feoffor at any time during his life pay the feoffée 20 l. at such a place certaine that then c. In this Case also the feoffor must give notice to the feoffée when he will pay it but in both these last Cases if the Obligor or feoffor at any time méet the Obligee or feoffée at the place he may tender the Money Likewise if A. be bound to B. with Condition that C. shall enfeoff D. on such a day here C. is bound to seek D. to give him notice when he will do it Homage 7 No man of Religion Regular or Secular Co. Inst p. 1. 65. b. 3. when he doth Homage shall say I become your man for that were inconvenient because he hath professed himself the man of God yet shall he do Homage and say I do unto you Homage and will be unto you Faithful and Loyal c. And this Homage of Ecclesiastical persons in the old Books and Records of the Law is called Fealty for that it wanteth these Words I become your man yet in judgment of Law it is Homage because he saith I do to you Homage c. There is the same Law also of a feme sole for it is not fit that the should say to her Lord I become your woman but shall say I do you Homage c. Argumentum ab inconvenienti plurimum valet in lege Non solum quod licet sed quid est conveniens est considerandum Nihil quod est inconveniens est licitum â—â—â—ment 8 Attornment is appointed by Law to avoid inconveniences See Co. Inst part 1. 309. a. 3. Max. 121. cap. 3. 112. 3 Conformity â—â—dowment â—â—â—ium 1 In ancient time when a man did endow his Wife ad ostium Ecclesiae Co. Inst p. 1. 34. b. 1. he did there openly declare the quantity and certainty of the Land whereof she was so to be endowed for the Law for Conformity sake doth delight to have that and like acts to be openly and solemnly done â—ower of rent â—â—all be deliâ—â—ed by the 〈◊〉 ff 2 If a woman bring a Writ of Dower of six pounds Rent-charge Co. ib. 34. b. 3. and she hath judgment to recover the third part Albeit it be certain that she shall have 40 s. yet she cannot distrain for the 40 s. before the Sheriff do deliver the same to her For here because she demands nothing in certaine but onely a third part of the Rent she shall not distrain for it before Execution sued and thereupon a third part thereof delivered unto her in certaine by the Sheriff It is otherwise of Land Rent or other things demanded in certaine for in such cases the Demandant after judgment may enter and distraine before Seisin delivered by the Sheriff upon a Writ of Habere facias seisinam Also when the Wife of a Tenant in Common demands a third part of a moity yet after judgment she cannot enter untill the Sheriff deliver her the third part albeit such delivery of the Sheriff shall reduce it to no more certainty then it had before and all this is for conformities sake that the proceeding may be orderly Co. ib. 53. b. 3. 3 None shall have an Action of Waste Joynder in Waste unlesse he have the immediate Estate of Inheritance yet sometimes another shall joyn with him for conformity as if a Reversion be granted to two and the Heires of one they two shall joyn in an Action of Waste So likewise shall the surviving Co-parcener and the
of their lives and after to the use of their next issue male in taile Co. ib. 28. a. 3. and after to the use of the Baron and Feme and the heires of their two bodies having no issue at that time in this Case the Baron and Feme are Tenants in special taile executed and after they have a son they are become Tenants for life the remainder to the son in tail the remainder to them in special taile and here albeit living the son they are but bare Tenants for life yet if the Baron die having no other issue and then the son die without issue the Feme shall be restored to the priviledges belonging to tenant in tail after possibility of issue extinct as appeares in Lewes Bowles Case Co. l. 11. fol. 80. for as there is said the Estate of the Feme in such Case is created by the act of God and not by the limitation of the party ex dispositione legis and not ex provisione hominis but if land be given to Baron and Feme and the heirs of their two bodies and after they are divorced causa praecontractus consanguinitatis or affinitatis their Estate of inheritance is turned to a joint Estate for life and albeit they had once an inheritance in them yet for that the Estate is altered by their own Act and not by the Act of God after the death of either of them without issue the other shall not be Tenant in tail after possibility of issue extinct 〈◊〉 not enâ—ed 5 If a man take an alien to wife and after the husband alien the land Co. ib. 33. a. 4. and then she is made denizen the husband dieth she shall not be endowed it is otherwise if she be naturalized by act of Parliament â—il death 6 The Feme shall not not be endowed after the Civil death of the Baron entring into Religion c. being the act of the party Co. ib. 33. b. 2. but after the natural death which is the Act of God â—t-tenant â—gnes doâ—â— 7 If two or more he joint-tenants of lands Co. ib. 34. b. 4. one of them may assigne dower to the wife of a third part in certainty and this shall bind his companions because they were compellable to do the same by law but if one of them assigne a rent out of the land to the wife this shall not bind his companions because he was not compellable by the law thereunto 8 There is a diversity betwéen particular Estates made by the Terre-tenant Co. ib. 57. b. 3. and paâ—â—â—cular Estates created by Act in Law Trespass before entry contrà For if Tenant pour autre 〈◊〉 continueth in possession after the decease of Cesty que vie or Tenant for yeares holdeth over his terme the Lessor cannot have an Action of Trespas before entry but if a Guardian after the full age of the heire continueth in possession he is no Tenant at sufferance but an Abator and against him an Assise of Mortancestor doth lie before entry Co. ib. 59. b 4. Armestrongs Case certified into the Chancery by Popham and others 39 Eliz. 9 Of fines due to the Lord by the Copi-holder Copi-hold Fines some by the change or alteration of the Lord and some by the change or alteration of the Tenant the change of the Lord ought to be by Act of God otherwise no fine can be due but by the change of the Tenant either by the Act of God or of the party a fine may be due For if the Lord do alleadge a Custome within his Mannor to have a fine of every of his Copi-holders of the said Mannor at the alteration or change of the Lord of the Mannor be it by alienation demise death or otherwise this is a Custome against the Law as to the alteration or change of the Lord by the act of the party for by that meanes the Copi-holders may be oppressed by multitude of fines by the Act of the Lord but when the change groweth by the Act of God there the Custome is good as by the death of the Lord but upon the Change or alteration of the Tenant a fine is due to the Lord. Escuage Co. ib. 72. b. 1. 10 If the Tenant goeth with the King in performance of his Knight-service and dieth in Exercitu in the Host or Army he is excused by Law and no escuage shall in that Case be demanded Homage Ancestral Co. ib. 102. a. 4 11 In Case of Homage Ancestral which is a special warranty in Law by the authority of Littl. the lands generally that the Lord hath at the time of the voucher shall be lyable to the execution in value whether he hath them by discent or purchase but in Case of an expresse warranty the heire shall be onely charged for such lands as he hath by discent from the same Ancestor who created the warranty and so note what priviledge this expresse warranty created by operation of Law hath more then the expresse warranty for firmior potentior est operatio Legis quam dispositio hominis Co. ib. 127. a. 1 in Beechers Case Co. l. 8. 60. b. 12 If a writ do a abate by the Act of the Demandant or Plaintiffe Amerâ—iaâ—â— or for matter of form the Demandant or Plaintiffe shall be amercied but if abate by the Act of God as by the death of one where there is two or the like there shall be no amerciament Co. ib. 148. a. 3 Wards Case cited in Co. l. 2. fol. 32. in Heywards Ca. 13 When a rent-charge is extinguished by the grantées purchase of part of the land the grantée shall never have a writ of annuity Rent-chaâ— extinguisheâ— no Annuity because it was by the grant a rent-charge and he hath discharged the land of it by his own Act viz. by purchase of part but if the rent-charge be determined by the Act of God or of the law yet the grantée may have a writ of annuity as if Tenant for another mans life by his déed grant a rent-charge to one for 21 yeares Cesty que vie dieth the rent-charge is determined and yet the grantée may have during the years a writ of annuity for the Arrerages incurred after the death of cesty que vie because the rent-charge did determine by the Act of God and by course of law Actus legis nulli facit injuriam The like law is if the land out of which the rent-charge is granted be recovered by an Eigne title and thereby the rent-charge is voided yet the grantée shall have a writ of annuity for that the rent-charge is avoided by the course of law Co. ib 148. b. 1 Litt. § 222. in Aschoughs ca. vide infrà 48. 14 Littleton saith that a Rent-service may be extinct for part Rent-serâ— suspended contrà and apportioned for the rest but it cannot be suspended in part by the Act of the party and in
esse for the other part for if there be Lord and Tenant of 40 acres of Land by fealty and 20 s. Rent if the Tenant make a Gift in tail or a lease for life or years of partel thereof to the Lord in this Case the Rent shall not be appoâ—tioned for any part but the Rent shall be suspended for the whole So it is also if the Lessor enter upon the Lessée for life or yeares into part and thereof disseise or put out the Lessée here the Rent is suspended in the whole and shall not be apportioned for any part and where outs Books speake of an apportionment in Case where the Lessor enters upon the Lessée in part they are to be understood where the Lessor enters lawfully as upon a surrender forfeiture or the like where the Rent is lawfully extinct in part yet by act in Law a Rent-service may be suspended in part and in esse for part as when the Guardian in Chivalry entreth into the land of his ward within age now is the Seigniory suspended but in this Case if the wife of the Tenant be endowed of a third part of the tenancy she shall pay to the Lord a third part of the tent so it is also where the Tenant gives a part of the tenancy to the father of the Lord in tail the father dieth and this descends to the Lord in this Case also by Act in Law the Seigniory is suspended in part and in esse for part And the same Law is of a Rent-charge which also cannot be apportioned but by Act in Law for if a man hath a rent-charge to him and his heirs issuing out of lands and he purchase part thereof Litt. § 222 224. in this Case the whole rent is extinct but if a man hath a Rent-charge and his father purchase part of the land out of which it issues in fée and die and that parcel descends to the son that hath the rent-charge in that Case the rent-charge shall be apportioned according to the value of the land 〈◊〉 charge 〈◊〉 because the part of land purchased by the father comes not to the son by his own Act but by descent and course of Law Co. ib. 149. b. 4 So also if the Tenant give the father of the grantée part of the land in tail and this descends to the grantée the rent shall be apportioned and so by act in Law a rent-charge may be suspended for one part and in esse for another or vice versa if the father vs grantée of a rent and the son purchase part of the land charged and the father dieth after whose death the rent descends to the son here also the rent shall be apportioned causa quà suprà â—â—nt-charge â—pationed 15 If the father within age purchase part of the Land charged Co. ib. 150. a. 2 and alieneth within age and dieth the son recovereth in a writ of dum flrit infra aetatem or entreth in this Case the Act of Law is mixt with the Act of the party and yet the rent shall be apportioned for after the recovery or entry the son hath the land by descent so it is also where the son recovereth part of the land upon an alienation by his father dum non fuit compos mentis for the cause afore-said 〈◊〉 16 A man seised of lands in fée takes wife Co. ibid. and makes a feofment in fée the feoffée grants a rent-charge of 10 l. out of the Land to the Feoffor and his wife and to the heltes of the husband the husband dieth the wife recovereth the moity for her dower by the custome the Rent-charge shall be apportioned and she shall distraine for five pound which is the moity of the rent and here albeit her owne act doth concurre with the Art in Law yet shall the Rent be apportioned â—d 〈…〉 Tenant 17 If there be Lord Mesne and Tenant Litt. §. 231. Co. ib. 152. and the Tenant holds of the Mesne by 5 s. rent and Mesne holds over of the Lord by 12 d. rent here the Mesne hath 4 s. rent in surplussage Now in this Case if the Lord purchase the tenancy The Mesne shall have the 4 s. yearely as rent secke and yet he shall distraine for it Litt. §. 232. Co. ib. 153. a. 1 vide infrà 40. for séeing the fealty is extinct the Law reserves the distresse to the Rent and the distresse in such Case shall by act in Law vs preserved Quia quando let aliquid a licui concedit concedere videtur id sicut quo res ipsa esse non potest And therefore if a man make a lease for life reserving a rent and bind himselfe in a Statute whereupon the Rent is extended and delivered to the Conusée here the Conusée shall distraine for the Rent because he cometh to it by course of law but if a rent-service be made a rent-seck by the grant of the lord the grantée shall not distrain for it for that the distresse in that case remaines with the fealty So likewise if there be Lord Mesne and Tenant and the mesnalty is a Mannor having divers frée-holders and the Lord purchase one of the Tenancies and there is a Rent by surplussage this rent although it be changed into another nature is parcel of the Mannor yet by purchase of part of the land the whole Rent is extinct albeit the Law did preserve it Co. ib. 163. b. 4 18 There is a diversity betwéen a discent Discent and purchase which is an Act of the Law and a purchase which is an Act of the party for if a man be seised of lands in Fée having Issue two Daughters and one of the Daughters is attainted of felony the Father dieth both Daughters being alive the one moity shall discend to the one daughter and the other moity shall escheate But if a man make a Lease for life the remainder to the right heires of A. being dead who left issue two Daughters whereof the one is attainted of felony In this Case some have said that the remainder is not good for the moity but void for the whole because both the Daughters should have béen as Littleton saith but one heire Co. ib. 164. b. 3 19 A Rent-charge is intire and against Common right Rent-chargâ— dividable and yet it may be divided betwéen coperceners and by Act in law the Tenant of the land is subject to several distresses and in that Case also partition may be made before seisin of the Rent Co. ib. 165. a. 4 20 If there be two Coperceners of lands with warranty Coperceners and they make partition in this case the warranty shall remaine because they are compellable by law to make partition it is otherwise of join-tenants for they were not by the Common law compellable to make partition Co. Ib. 166. b. 3 21 When partition is made betwixt Coperceners Partition by
Copercenerâ— the eldest sister hath the choice and this is called Enitia part of Eigne or Eldest but this priviledge is personal to her alone and shall not discend to her heire for then the next sister hath it because this partition is made personally by the Act of the parties but where the law doth give the eldest any priviledge withâ—ut her Act there that priviledge shall discend As if there be divers coperceners of an advowson and they cannot agrée to present the law doth give the first presentation to the eldest and this priviledge shall discend to her issue nay her assigne shall have it and so shall her husband that is Tenant by the courtesie have it also 22 A partition betwéen jointenants is not good without déed Partition bâ— parol 〈◊〉 although it be of lands or other things which may passe without déed albeit they be now compellable to make partition by the Stat. of 31 H. 8. â—0 31 H. 8. 32. because they must pursue one of those Acts as their case is by writ de partitione facienda Co. ib. 169. a. 1 and a partition betwéen jointenants without writ remaines at the common law as it was before those Statutes which could not be done by parol and therefore such partition is méerely by Act of the parties So it is also and for the same reason of tenants in common Dier 29. a. 194. 28 H. 8. But betwéen Coperceners partition may be made by parol without déed and that not onely of lands and other things that may passe by livery without déed but likewise of things that do lie in grant as rents Commons Advowsons and the like that cannot passe by grant without déed and that whether they be in one and the same County or in several Counties because in such partitions the act of the parties co-operateth with the act of law so likewise if two teannts in common make partition by parol execute the same in severalty by livery this is good and sufficient in Law because here also the act of the party worketh together with the Livery which is an Act of Law And therefore where Books say that Ioyntenants made partition without Déed it must be intended of Tenants in Common and executed by Livery But the chiefest Reason why Perceners have this Priviledge above Ioyntenants or Tenants in Common is because they come to their Estates by Discent which is an Act in Law but these by Purchase which is an Act of the parties And the Reason why Ioyntenants cannot make Partition by Parol with Livery as Tenants in Common may is because betwixt Tenants in Common there is onely privity in possession but betwixt Ioyntenants there is as well privity in Estate as privity in possession and therefore they cannot convey their Estates one to another without Déed as Tenants in Common may who have several Estates and claim under several Titles Rent c. may passe without Deed. 23 An Exchange of Lands in the same County may be without Déed Co. ib. 169. a. 3 Littl. §. 251. but a Rent granted for Egalty of the same Exchange cannot be without Déed yet if two Messuages discend to two Co-perceners the one worth 20 s. per annum and the other worth 10 s. the assignment of 5 s. per annum to be paid to the Co-percener that hath the Messuage of 10 s. per annum and her Heires is good by Parol without Déed And the Reason of this is because Co-perceners are in by Discent which is an Act of Law but the Exchange is the Act of the parties So it is also of Common of Estovers a Corodie Common of Pasture c. or of a Way granted by one Co-percener to the other All which and the like albeit they lie in Grant yet may they upon the Partition be granted without Déed causa qua suprà One Co-parâ—ner married 24 If there be thrée Co-perceners Co. ib. 169. b. 3. and one of them be married and for Egalty of partition the Husband and Wife grant a Rent to the other two out of the part of the Feme Covert this partition albeit it be not by Fine being equal shall charge the part of the Feme Covert for ever causa qua c. â—â—tition by â—â—ons and 〈◊〉 and Inâ—â—â—s 25 If two Co-perceners of Lands take Barons Co. ib. 171. a. 2 Litt. §. 256 257. and they and their Barons make Partition if the Partition was un-equal at the time it was made after the Barons death it may be reformed and it shall not bind the Co-percener that was wronged but if then the Partition was equal albeit it was not by Fine it shall bind them for ever because the Partition is made as well by Act of Law as by that of the parties the Barons and Femes being compellable by Law to make Partition And therefore if after such Partition made the Land become un-equal by any matter subsequent as by surrounding ill Husbandry or the like yet the Partition remaines good So likewise in Case of an Infant Co. ib. 171. a. 4 Littl §. 258. if the Partition be equal at the time of the Allotment it shall bind him for ever because he is compellable by Law to make Partition and he shall not have his age in a partitione facienda And though the Partion be un-equal and the Infant hath the Lesser part yet is not the Partition void but voidable by his entry for if he take the whole profits of the un-equal part for his full age the Partition is made good for ever And therefore Littleton Sect. 258. giveth him a Caveat that in that Case he take not the whole profits of his un-equal part neither shall a unequal part in the Chancery bind an Infant but a Partition made by the Writ of Partitione facienda by the Sheriff upon the Oath of 12 men and judgment thereupon given shall bind the Infant though his part be unequal Co. ib. 172. a. 2. for this is by Act of Law And generally whatsoever an Infant is bound to do by Law the same shall bind him albeit he doth it without suit of Law as if an Infant be Executor here upon payment of any Debt due to the Testator he may make an acquittance but in that Case a Release without payment before his age of 21 yeares is void Littl. 5. 260. Co. ib. 173. a. 3. 26 Partition amongst Coperceners maketh no Discontinuance Partition makes no discontinuance for if Lands be given to a man in tail who hath as much Land in Fée-simple and he hath issue two Daughteas and dies and the Daughters make partition so as all the Fée-simple Lands are allotted to the youngest Sister and the entailed Lands to the Eldest in this Case after the Death of the youngest Sister her issue after the alienation of Fée-simple Lands by her Mother may enter into the entailed Lands and hold them in property with her Aunt because
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
but because the Mortgageor dies by the Act of God that shall not dis-able I. S. to pay the Money So also it I. S. had died before the day the Mortgageor might have paid it â—â—ewing of a â—eed to prove â— Condition 34 Regularly a man by Plea shall not defeat an Estate of Frank-tenement by force of a Condition Littl. § 365. Co. ib. 225. b. 4. unlesse he produce the proof of the Condition in writing c. yet if a Guardian in Chivalry in the Right of the heir enter for a Condition broken he shall plead the State upon Condition without shewing of any Déed because his Interest is created by the Law So it is also of a Tenant by Statute Merchant or Staple or Tenant by Elegit Likewise Tenant in Dower shall plead a Condition c. without shewing of the Déed and the Reason of these Cases and the like is for that the Lord doth create these Estates and they come not in by him that was to enter for the Condition broken so as they might provide for the shewing of the Déed but they come into the Land by Authority of Law and therefore the Law will allow them to plead the Condition witheut shewing of it yet the Lord by Escheat albeit his Estate be also created by Law shall not plead a Condition to defeat a Frée-hold without shewing of it but this is because it is conceived the Déed belongs to him neither yet shall a Tenant by the Courtesie plead a Condition made by his Wife In Doctor Leyfields Case in fine Co. l. 10. 94. b. and a re-entry for a Condition broken without shewing the Déed for albeit his Estate is also created by Law yet because the Law presumes that he had the Possession of the Déeds and Evidences belonging to his Wife it will not allow him that Priviledge Vide infra Ru. 56. Co. ib. 264. b. 4. 35 There is a diversity betwéen a Realease in Déed A Release in Deed and in Law and a Release in law for if the Heir of the Disseisor make a lease for life and the Disseisée release his Right to the lessée for his life his Right is gone for ever but if the Dissesée doth disseise the Heir of the Disseisor and make him a lease for life by this Release in law the Right is released but during the life of the lessee for a Release in law shall be expounded more favourably according to the intent and meaning of the parties then a Release in Déed which is the act of the party and shall be taken most strongly against himselfe Co. ib. 266. a. 2 c. 36 Rights are distinguished by thrée kinds Jus proprietatis Rights distinguished Jus possessionis and Jus proprietatis possessionis alias Jus duplicatum or droit droit For example if a man be disseised of an acre of land the Dissisée hath Jus proprietatis the Disseisor Jus possessionis and if the Dissiesée release to the Disseisor then hath he Jus proprietatis possessionis Now regularly it holdeth true Right extinct contra that when a naked right to land is released to one that hath Jus possessionis and another by a mean Title recover the land from him the Right of Possession shall draw the naked Right with it and shall not leave a Right in him to whom the Release is made So the Heir of the Disseisor being in by Discent A. doth disseise him and the Disseisée releaseth to A. now hath the méer Right of the land but if the Heir of the Disseisor enter into the land and regaine the Possession that shall draw with it A the méer Right to the land and shall not regaine the Possession onely and leave the méer Right in A. but by the continuance of the Possession the méer Right is therewith vested in the Heir of the Disseisor And the Reason of this is because the Right is conveyed by Release which is the act of Party but when the méer Right is subsequent and transferred by act in law there albeit the Possession be re-continued yet that shall not draw the naked Right with it but shall leave it in him As if the Heir of the Disseisor be disseised and the Dissesor enfeoff the Heir apparent of the Disseisée being of full age then the Disseisée dieth the naked right discends to his Heir and the Heir of the Disseisor recovers the land against him yet doth he leave the naked right in the heir of the Disseisée So if the Discontinuée of Tenant in Tail enfeoff the issue in Tail of full age and Tenant in Tail die and then the Discontinuée recovers the Land against him yet he leaveth the naked right in the issue â—â—e of 〈◊〉 37 If the heire of the Disseisor be disseised Co. ib. 266. a and the disseisée release to the Disseisor upon Condition if the Condition be broken it shall revest the naked right So likewise if the Disseisée had entred upon the heire of the Disseisor and made a feofment in fée upon Condition if he entred for the Condition broken and the heire of the Disseisor entred upon him the naked right should be left in the Disseisée but in these Cases if the heire of the Disseisor had entred before the Condition broken then the right of the Disseisée had béen gone of ever because the right in these cases was conveyed by release and feofment which are Acts of the party it had béen otherwise if they had béen transferred by Acts of Law as in the Cases put before in the example last afore-going â—â—â—se of â—dition 38 There is a diversity betwéen a Right which is favoured in law Co. ib. 274. b. 1. Litt. § 467. and a Condition created by the party which is odious in Law for that it defeateth Estates and therefore a right may be released upon Condition and if the Condition be broken the Right shall revest but if a Condition be released upon Condition the release is good but the Condition void â—eleas of aâ—â—â—s 39 In a mixt Action a release of all Actions real is a good barre Co. ib. 285. a. 2. Litt. §. 492. and so is a release of all Actions personal for a man by his owne act cannot alter the nature of his action and therefore if the Lessée for life or Lessée for yeares do waste now is an Action of wast given to the Lessor wherein he shall recover two things viz. the place wasted and treble damages and in this Case if the Lessor release all Actions Real he shall not have an action of waste in the personalty onely Also if he release all Actions Personal he shall not have an action of waste in the realty onely and so it is also where the Lessée doth waste and after surrendreth to the Lessor his Estate and the Lessor accept thereof here also the Lessor shall not have an action of wast
howbeit by act in Law the nature of the action may be changed as if a man make lease pur terme d'auter vie and the Lessée doth waste and then Cestuy que vie dieth In this Case an action of waste shall lie for damages onely because the other is determined by act in Law So likewise if an action of wast be brought against Tenant pur auter vie and hanging the writ Cestuy que vie dieth the writ shall not abate but the Plaintife shall recover damages onely because if Cestuy que vie had died before any action brought the Lessor might have had an action of waste for the damages as afore-said â—t-secke 40 Grant of a Rent-secke without attornment is not good Co. ib. 209. b. 3 for the grantée cannot distraine for it without attornment or seisin otherwise because it is conveyed by the single act of the parties But if there be Lord Mesne and Tenant and the Mesne grant over his mesnaltie by déed the Lord releaseth to the Tenant whereby the mesnalty is extinct by act in Law in this Case if there be a Rent by surplussage it is now changed into a Rent-secke and albeit there be no expresse attornment for it as a Rent-secke and that the quality of that part of the Rent is altered from a rent-service to a rent-secke yet because it is altered by act in Law the attornment to the grant of the mesnalty is a good attornment for that Rent-secke by surplussage Vid. sup 17. â—â—e 41 If an house fall by tempest or other act of God Co. l. 4. 63. 2. 4 Herlakendons Case the lessee for life or years hath special Interest to take the great Timber to build the house again if he will for his habitation but if the lessée pull down the house the lessor may take the great Timber as a thing which was parcel of his Inheritance and in which the interest of the lessée is determined as in Case of trees and for the same reason and yet he may have an action of waste and recover treble damages Co. lib. 5. 5. in the Lord Mortwyes Ca. 42 If Tenant in tail be restrained by Statute to demise his Estate otherwise then by reserving thereupon verum antiquum redditum Demise by Tenant in taile and the Estate being a Mannor consisting of Frée-rents Copi-rents and Lease-rents he demiseth the whole Mannor reserving a rent amounting to the summe of all those rents whereas the demesnes onely were formerly demised rendring rent or if his Estate were two Farmes anciently let viz. one at 20 l. per an and the other of 10 l. per an and he demiseth them both together by one Indenture reserving 30 l. per an In these and the like Cases such demises will onely hold farme during the life of the Tenant in taile and after his death his issue shall avoid them for here the true and ancient rent is not reserved and being thus altered by the act of the party they shall not bind the issue in taile But if there be two Coperceners seised of land in tail which was formerly let at 10 l. per an one of them may demise her part or moity at 5 l. per an and it shall bind her issue so likewise if a Mannor hath béen always demised at 10 l. per an and after a tenancy escheats yet it may be still demised at 10 l. per an and yet it may be said that now the 10 l. per an is not verus antiquus redditus for no rent was ever yet reserved out of the land escheated But these two last Cases differ from the former in as much as Coperceners and the Lord by escheate are in by act of Law and of God which shall not prejudice any But if the Lord had purchased the tenancy it had béen otherwise for then he had béen in by his owne Act and not by Act of Law Co. lib. 5. 22. Laughters ca. 43 When the Condition of an Obligation consists of two parts in the disjunctive and both are possible at the time of the Obligation made Condition disjunctive and after one of them becomes impossible by the Act of God the obligor is not bound to perform either part So if A. be bound to B. upon Condition that if A. marry I. and together which I. do sell the land of I. if then A. do purchase to I. and her heires so much land as the money received for the other land sold amounts unto or else shall leave her worth so much at his death that then c. In this Case albeit A. marry I. and they joine in the sale of her land yet if A. survive I. it is made impossible by the Act of God to perform the first part of the disjunctive condition viz. to convey land unto her and therefore he is also discharged of the last part also Co. l. 5. 85. Sir Henry Knivets Case 44 Tenant for life lets for yeares the Tenant sowes the land Land soveâ— and before the graine is ripe Tenant for life dies here the interest of the graine is in the Lessée for yeares who may lawfully enter and take it when it is ripe for the Tenant for lifes dieth is by act of God which shall prejudice none So if there be Tenant for life remainder in Fée the Tenant for life demiseth for yeares the Tenant for yeares is outed and the Tenant for life disseised the Disseisor lets for yeares the dissors Tenant sowes the land Tenant for life dies before the grain is ripe he in the remainder enters the Lessee of the disseisor enters upon him he in remainder brings an Action of Trespass In this Case he in remainder may justifie his entry but hath no right in the grain also the disseisors lessée may justifie the taking of the grain because of his possession but the méere right of the graine is in the lessée of the Tenant for life and he shall recover in Trespass against the disseisors lessée damages for the graine C. l. 6. 1 2. in Briuertons Ca. See more of this learning in Talbots Case Co. l. 8. 105. in Leyfields Case Co. l. 16. 107 108. 45 If one holdeth land of his Lord by the yearly service of a Spurre Horse or the like and the Lord purchase parcel of the tenancy Intire servâ— such intire services are gone because such service cannot be servered or apportioned and he hath discharged pâ—rt thereof by his owne Act So it is also when the original Act is the Act of the Party mixt with an Act of Law as by recovery in a Cessavit of parcel of the tenancy all the intire services are gone But if parcel descend to the Lord where the tenure is by a spurre horse or the like there it is otherwise because that comes to him singly by Act in Law Howbeit when such service is to be performed by Coperceners where by the Statute
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
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
issue this warranty shall not barre the issue intail because this warranty did not discend to the issue in tail in regard the uncle of the issue himself was not bound to the warranty in his life time nor chargeable with it for that the Devise takes not effect until after his death Also if a man make a Feoffment in fée and bind his heires to Warranty this is void by the Warrant of this Maxime as to the heir because the Ancestor himself was not bound In like manner if a man bind his heires to pay a summe of money this is void And vice versa if a man bind himself to warranty and bind not his heires they are not bound Ego haeredes mei warrantizantibinius And Fleta saith Nota quod haeres non tenetur in Anglia ad debita antecessoris reddenda nisi per antecessorem ad hoc fuerit obligatus praeterquam debita Regis tantum A Fortiori in Case of warranty which is in the realty Howbeit the warranty in Law may bind the heir although it never bound the ancestor and this also may be created by a last will and testament As if a man devise lands to another for life or in tail reserving a rent the Devisée for life or in tail shall take advantage of this warranty in Law albeit the antestor was not bound and such a Devise shall also bind his heires to warranty albeit they are not named Co. l. 1. 83. b. Corbets Case 10 If a man covenant to stand seised to the use of himself for life An Estate to cease to one and to be in another repugnant the remainder to A. in tail the remainder to B. in tail c. Provided that if any of the remainders in tail shall resolve to alien that then the Estate of him so resolving should cease as if he were naturally dead and that it should then go to him in the next remainder here this Proviso is void and against Law for the repugnancie for by the words or act of the partie an Estate cannot be limited to cease as to one Ibid. 86. b. 4. 87 a. 4. per Walmesley and from thence-forth to be in another For if a man make a Lease for life upon condition that if he do not pay 20 l. such a day that another shall have the Land this future limitation is void also if a man make a feoffment in Fée of Land to the use of A. and his heires every Monday and to the use of B. and his heires every Tuesday and to the use of C. and his heires every Wednesday these limitations are void and we find no such fractions of Estates in the Law And if Co-perceners agrée to present by Turn this is a partition as to the Possession yet neverthelesse they shall in a writ of Right So also partition that one of them shall have the land from Easter to Lammas and the other from Lammas to Easter in severalty this is good as to the possession and taking of the profits but it is no severance of the Estate of Inheritance Howbeit an act of Parliament or the Common Law may make an Estate void as to one and good as to another but a man by his words and the breath of his mouth cannot do it As if Land be given to Baron and feme and the heires of their two bodies and the Baron levie a fine with Proclamations and hath issue and dies now this fine by force of the Statute of 32 H. 8. 36. shall barre the issue in tail but shall not bind the feme and so in respect of one it is a good barre and in respect of another no bâ—rre Also in a Praecipe if one be vouched here as to the Demandant the Vouchée is Tenant and a Release to him by the Demandant is good but as to a stranger he is not Tenant and therefore a Release to him by a stranger is void in like manner if one hath a Term for yeares as Executor and surrender it here in one respect the Term is extinct but in another it is Assets So that an act of Parliament or the Law may do that in such Cases which a man by his words cannot do Co. l. 4. 1. b. 3. in Vernons Case 11 No collateral satisfaction or recompence made to the Feme Dower assigâ—ed either before or after marriage in liew of her Dower was any barre of her dower at the common law before the Stat. of 27 H. 8. 10. albeit after the death of her husband she entred thereinto and accepted thereof in recompence of her dower because by the marriage she being entitled to a fréehold for life that title shall not afterwards be barred by any collateral satisfaction Howbeit dower ad ostium Ecclesiae or ex assensu patris shall conclude her of her dower if she enter into the land so assigned after the death of her husband for the law doth allow these being made in such form as the law requires those kinds of dower to be made It is otherwise where the dower is made by the Act of party as aforesaid The principal Case there And therefore if B. enfeoffes to the use of himselfe for life remainder of his wife for life upon condition to perform his last will and for her jointure albeit after the death of her husband she accepts thereof yet she is not bound by it â—â—â—nt-tenants â—etition 12 If two joint-tenants since the Stat. of 31 H. 8. 1. Co. l. 6. 12. b. Morrices Case which gives them a writ of partitione facienda do make a partition by déed with consent albeit they are now compellable by that Statute to make partition yet because they do not pursue the Stat. to make partition by the writ such partition remaines at the common law and so by consequent the warranty originally annexed to their Estate is gone but if they make partition by writ provided by the Stat. to which every one being party none can have any wrong by the operation thereof the warranty shall remaine notwithstanding such partition in severalty because the first is by the act of the parties but the other is operation of the Statute which is an act in law so also if there be two joint-tenants with warranty and the one disseise the other and the disseisée brings an Assise here albeit the Plaintiff pray recovery in severalty yet he shall recover generally and in this Case also the warranty shall be preserved because he recovers by course of Law and with this agrées 28 lib. Ass Pl. 35. and Sir Edw. Coke also ubi suprà albeit there be some Bookes that he shall have judgment to hold in severalty as 10 E. 3. 40. 10. Ass Pl. 17. Tâ—e Shewing 〈◊〉 a Deed â—â—â—a 13 When a déed is requisite to be had ex institutione juris C. l. 6. 38. b. 2. Bellamies Ca. it ought to be shewed in Court although it concerne a
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
hominis and it is as true Fortior aequior est dispositio Legis quà m hominis â—nt-tenants â—enants in Common Coperceners â—resentation â—dvowson 19 A joint-tenant or Tenant in common shall not have a Quare Impedit for the advowson which they have in jointure or in common F.N. B. 34. v. in Case one of them present alone against his companion that so presents but if two Coperceners cannot agrée in presenting the eldest sister shall have the first presentation and so shall also he have that hath her Estate and if either of them be disturbed by the other Copercener either of them shall have a Quare Impedit against the other sister And Coperceners and those who have their Estates shall present as Coperceners ought to do viz. the eldest first and then the second after her the third and so the rest in order according to their ages and the diversity betwéen joint-tenants or tenants in common and Coperceners ariseth from this ground because they are in by grant which is the act of the party but these are originally in by act in law 20 If an Abbot make waste in the Lands which he hath in ward F.N.B. 60. m. and dies the Successor shall not be charged therewith because his death is the Act of God it is otherwise if he be deposed for then the Successor shall be chargable with it because that is the Act of the party â—â—d Mesne 〈◊〉 Tenant â—rnment 21 If there be Lord Mesne and Tenant Co. Inst p. 1. 221. b. 4. Litt. §. 583. and the Lord grant by fine the services of his Tenant to another in fée here if the services of the Mesne be arreare the grantée shall not distraine the Tenant before attornment Howbeit if the grantée die without heire whereby the mesnalty escheats to the Lord Paramount in that Case if the services of the Mesnalty be arreare the Lord Paramount may distraine the Tenant without attornment because the grantée came to the mesnalty by the act of the party but the Lord Paramount comes to it by Act in Law 〈◊〉 entry in 〈◊〉 more adâ—tageous 〈◊〉 an entry 〈◊〉 Deed. 22 An actual entry into land is meerely the Act of the party Co. ib. 253. b. 4 and therefore is called an entry in déed and albeit a claime be also an Act of the party yet it is also mixt with force of Law and therefore it is called an Entry in Law and is not onely as forcible as an Entry in Déed but because it is as well an Act of Law as of the party it giveth the party a greater priviledge then an Entry in Déed doth for a continual claime of the Disseisée being an Entry in Law shall vest the possession and seisin in him for his advantage but never for his disadvantage and therefore if the Disseisée bring an Assise and hanging the Assise he make continual claime this shall not abate the Assise but he shall recover damages from the beginning but it is otherwise of an Entry in Déed â—â—nce in 〈◊〉 23 Vpon a Lease for yeares by indenture Dier 6. 28 H. 8. 1. c. the Lessée covenants and grants that if he his Executors or Assignes alien it shall be lawfull for the Lessor to re-enter and after he makes his Wife Executrix and dies the Feme takes a new husband who aliens In this Case some hold there is no breach of the Condition because the Baron is in by the Law and not Assignée of the Lessee as it is of Tenant by the Courtesie or Lord of a Villein but others hold the contrary ideo quaere Dier 45. 3. 31 H. 8. 24 A lease is made for term of yeares Devise of a Lease upon Condition that if the Lessée during his life assigne the term to any other without the Assent of the Lessor that then the Lessor may re-enter and the Lessée devised his term by his will to another without Assent c. And by Brooke and Hales this is a forfeiture because the Devisée shall be said to be in by the assignement that the Divisor made during his life but if the Executors had enjoyed the term that had béen no forfeiture because in that Case the Law makes the assignement Tamen quaere Co. Inst p. 1. 310. b. 3. 25 If a reversion of land be granted to an Alien by déed Attornment and before attornment the Alien is made denizen and then the attornment is made In this Case the King upon office found shall have the land for as to the Estate betwéen the parties it passeth by déed ab initio it is otherwise where land is granted to a mâ—n and a woman and they intermarie and then attornment is had for which Vide suprà Pl. 1. Dier 60. 22 23 36 H. 8. 26 There is a diversity Seisure of a villein where the body of a man in execution is set at liberty by authority of Law and when without authority as by the voluntary escape in a Sheriffe or the like For the Law saves all rights as in Case of a Villein to whom the Kings presence is a Sanctuary where the Lord cannot seise him howbeit afterwards out of his presence he may because the Law gives the Villain that priviledge pro tempore but if the Lord himselfe enfranchise him by manumission in déed or in Law for one hower he is frée for ever in favorem libertatis because that is the Act of the Lord himselfe So if a man be taken in execution and be suffered to escape by the Sheriffe this is an absolute discharge of the debt and the Plaintiffe is to have his remedy against the Sheriffe by action of debt Arrest of a Member of Parliament But if a Member of Parliament be arrested by a Sheriffe upon an execution and be afterwards fréed by the priviledge which the law gives him that is no discharge of the debt but that when he ceaseth to be a Member he may be arrested again upon the same judgement c. Dier 68. 24. in Kidwelleys Case 4 5 E. 6. 27 Where demand of Rent is to be made by the law as when no place is assigned for the payment thereof Demand of Rent the law it selfe is the place there it is not sufficient for the party to come to the land ad petendum redditum but he ought to bring witnesses with him and in their presence ought to make an expresse demand of the Rent upon the land as to say here I am and do demand such a Rent or the like albeit none be there present to pay the Rent But when the Rent is by the agréement of the parties payable out of the land the Lessor is not bound to demand it but the lessée is to tender it at his peril Dier 140. Pl. 39. 3 4 P. M. 28 A thing or action personal being once suspended though it be but for an hower is
his Office is to determine secundum allegata probata and the duty is to acquaint him with their grievances and with all the Causes of their differences which if they or either of them omit to do the Law presumes it is for their own advantage to conceal them And therefore such Concealment shall not annul the award that is made albeit it be made onely of part Co. l. 8. 120 b. 3. in Doctor Bonhams Case 24 It is presumed that every one will make the best of his own Case And therefore in any suit or action Pleading when the Plaintiff makes Replication Surrender c. whereby it appeares that upon the whole Record the Plaintiff hath no cause of Action he shall never have Iudgment albeit the Barre Rejoynder c. be insufficient in Matter for the Court ought to judge upon the whole Record and will suppose that the Plaintiff hath managed his own Cause as well as he can Co. l. 8 133. a. 4. in Turners Case So in an Action of Debt brought against an Executor he pleads two Recoveries against him in a Court of Record which amount to the whole in his hand but sheweth not that the Corporation had jurisdiction to hold Court either by Prescription or by Patent And it did also appear by the Count in that Court that the Action of Debt was brought for 100 l. without mentioning any Obligation and therefore it was to be intended that there was no Obligation and then the Executor was not chargeable in an action of Debt upon a single Contract And in this Case albeit the Defendant in his Barre acknowledged that the Debt was by Obligation yet that shall not make the Count good which the Law presumes the Plaintiff hath made as full as he could Co. ibid. b. 2. 25 In Debt upon an Obligation with Condition to perform Covenants in an Indenture Pleading the Defendant pleads performance of all the Covenants generally and it appeares to the Court that divers of them are in the Negative or Disjunctive and so the Plea being in the general Affirmative is insufficient yet if the Plaintiff reply and shew a breach of one of the Covenants which by his own shewing is not any breach upon which the Defendant demurres In this Case judgment shall be given against the Plaintiff because upon the whole Record it appeares that the Plaintiff had no Cause of Action and it will be alwayes intended that every one will make the best of his own Cause Co. l. 8. 135. a. in Sir John Nedhams Case 6 In Debt to Administrators upon Administration committed by the Bishop of R. the Defendant pleads Administration committed to himselfe by the Arch-Bishop of Canterbury Administraâ—â—on because the Intestate had bona notabilia the Plaintiff replies that that Administration was repealed In this Case because the Defendant did not shew in his barre that the Intestate had bona notabilia in certaine It shall be intended that he had not bona notabilia in divers Diocesses yet the Administration committed by the B. of C. is not in this case void but onely voidable â—â—ving a 〈◊〉 27 It is not expected that Tenant by Statute or Elegit c. should a déed of the land because they come to the possession thereof by execution of Law and against the will of the terre-tenant Co. lib. â—â—4 b. 4. in Doctor Leyfeilds Case but Tenant by the courtesie ought to shew a release made to his wife for the law presumes he hath both that and her in his power 〈◊〉 Paâ—â—â—â—â— â—â—gestion 28 The suggestion of the party being inserted in Letters Patents raiseth alwayes suspicion Co. l. 10. 110. a. 2. c. in Legats Case because the Law presumes it is inserted to work him some advantage So if the King by his Letters Patents grant White-acre and Black-acre to I. S. with this clause quae quidem praemissa c. à nobis concelata detenta fuerunt c. This in judgement of Law is the suggestion of the Patentée and shall make the grant void So in 19 E. 3. tit Grant 58. the King by his Letters Patents grants licence to appropriate the Advowson of D. to the Prior of C. quae quidem advocatio non tenetur de nobis and in truth the Advowson was held mediately of the King here the licence was held void for the Booke saith the suggestion was falfe vide plus ibid. â—â—son 〈◊〉 Christian 29 If a Parson or Vicar hath a pension out of another Church F. N B. 51. B. and the pension is with-drawne or another parson takes or claimes it in this case the Parson or Vicar that ought to have may sue for it in the Court Christian and he shall not be stopped by a prohibition but shall have consultation Also upon the prescription he may have a writ of Annuity for it at his Election but if he once bring a writ of Annuity for it he shall never after sue for it in the Court Christian 〈◊〉 â—â—change 30 If the Baron exchange land and after die F. N. B. 149. n. if the Feme hath dower of the land taken in exchange she shall not have dower also of the land given in exchange â—â—â—t-charge â—â—â—y 31 Vpon grant of an Annuity out of land for yeares for life F.N.B. 152. a. or in fée which clause of distresse the grantée hath his Election if it be behind whether he will distraine or bring his writ of Annuity for it Howbeit if once he do either he is for ever after concluded for doing the other for the Law supposeth he will make choise of that which tends to his best advantage The time is â—im that 〈◊〉 benefit 32 Where a man is to have benefit upon an act Pl. 16. a. 4. in Fogassaes ca. which is first to be done by himselfe and no time is limited when it shall be done the Law saith that he may do it at his pleasure as if a man make a feofment upon Condition that if he pay the Mortgagée 20 l. that then he shall re-enter here in as much as no day of payment is limited the Mortgager may pay it when he pleaseth for he is to have the benefit viz. the land again So if one grant to another that when he shall take his daughter to wife he will give him 20 l. in this Case because no time is limited for the taking of his daughter to wife he may take her when he will So in Fogassaes Case in the Comentaries in as much as the payment of the subsidie was to be made unto the Collector upon the weying of the woad and a time is limited for the weying the Law referres the time thereof to the will of the Collector â—â—â—antages â—â—lected â—â—â—covin 33 In Wimbish and Tabbois Case in the Comentaries one argument to prove covin in the Feme there was Pl. 55. b. 2. in Vimbish
and Talbois Case because he did not in answering that suit take such advantages as the Law allowes in such Cases as vieu essoine and the like but immediately appeares and suffers the Demandant to recover by nihil dicit For the Law presumes unlesse there be covin or other neglect or restraint which cannot be avoided that the party interessed will take all advantages that the Law allowes to make good his owne cause which advantages are the birth-right of the subject as Lands or other Inheritance and when they are waved or neglected the Law implies covin or some other miscarriage Co. Inst p. 1. 46. a. 4. 34 The King grants lands to A. in taile Tenant in â—aâ— Lease Primer seisâ— to hold by Knight-service A. makes a lease to B. for 31 yeares reserving rent A. dies his son and heire of full age and all this if found by Office now here as to the King this lease is not of force for he shall have his primer seisin as of land in possession but after livery the Lessée may enter and then if the issue in taile accept the Rent the leafe shall bind him for the Kings primer seisin shall not take away the Election of the issue in taile because it may be the Rent was better then the land and so the Law will presume that his acceptance tended to his advantage and therefore he shall be bound thereby Co. ib. 46. b. 1. and Pl. 437. a In like manner Tenant in taile makes lease a for 40 years reserving a Rent to begin 10 years after Feofment Tenant in taile dies the issue enters and enfeoffes A. the ten yeares expire the lessée enters now in this Case also if A. accept the Rent the lease is good for he shall have the same Election that the issue in taile had either to make it good or to avoid it But because the lessée accepts the Rent the Law presumes it was for his advantage so to do and therefore thereupon adjudged the lease still good notwithstanding such entry of the heire before it commenced Litt. §. 559. 35 If there be Lord and Tenant and the Tenant take Feme Acceptance good attornment and after the Lord grants the services to the Feme and her heirs and the Baron accept the Déed In this Case after the death of the Baron the Feme and her heirs shall have the services for the acceptance of the déed by the Baron is good attornment albeit the services are in suspence during the coverture Litt. §. 573. So likewise if a man let land to another for term of life and after confirmes by his déed the Estate of the Tenant for life the remainder to another in fée and the Tenant for life accepts the déed this is a good attornment in law to make the Estate in remainder good Co. l. 3. 86. b. 2. in the Case of Fines 36 Every fine levied shall be intended to be levied with proclamations according to the Statutes in that behalfe provided Fines because that is most beneficial for the Conusée Dier 244. 59. 8 Eliz. 37 There were four Defendants in an Assise or plaint of thrée Messuages Assise thrée of them severally undertake the Tenancy of the several Messuages and plead several barres and to the residue Nul tort the fourth takes upon the intire tenancy of all without that c. and pleads also barre at large In this Case the Plaintiffe at his peril is to choose his Tenant because the law presumes that he will do it for his best advantage 117 And therefore the Law believeth against the party whatsoever is to his prejudice Co. Inst p 1. 52. a. 4. 1 If one as Procurator or Attorney to another present to his owne benefice he puts himselfe out of possession Present Benefice because it is his owne act and the presentée comes in by the institution an induction of the Ordinary Co. ib. 55. b. 3. 2 If Lessée at will or for life sow the land Tenant for life or wil Grant Sowet and the lessor determines his Will or dies before the graine is ripe yet the lessée shall have it because in either of the said Cases the end of the term is uncertaine either upon the Will or death of the lessor which cannot come within the lessées power to prevent but if lessée for yeares who may know the end of the term sow the land she shall not have the graine Litt. §. 68. Co. ib. 56. a. 4. because his term is certain And therefore the Law will attribute the sowing of the land to his owne folly So if lessée at will sow the ground with Corne c. and after he himselfe determines his will and refuseth to occupie the ground In that Case the lessor shall have the grain for otherwise the lessor should lose his Rent and the lessée hath determined it by his own act In like manner if a woman that holdeth land durante viduitate low the ground and taketh husband the lessor shall have the emblements because the determination of her Estate grew by her own act So likewise where the Estate of the lessée being uncertaine is defeasible by a right paramount or if the lease determine by the act of the lessée as by forfeiture condition c. there he that hath the right paramount or that entreth for any forfeiture c. shall have the Corne causa qua supra â— and Teâ—â—â—dship â—ease 3 If there be Lord and Tenant by Knight-service Co. ib. 83. b. â— and the Tenant dieth his heire being within age the Lord waiveth his wardship as he may and taketh himselfe to his Seigniory In this Case the Lord shall not have reliefe at his full age because he might have had the wardship of the body and land if he had not neglected his time 〈◊〉 emptor 4 By the Civil law every man is bound to warrant the King Co. ib. 102. a. â— that he selleth or conveyeth albeit there be no expresse warranty but the Common Law bindeth him not unlesse there be a warranty in déed or in Law for the Common Law believeth against the party things done to his prejudice and therefore in such Case Caveat Emptor â—â—nage by â—â—ssion 5 If a man being brought into a Court of Record by course of Law will there acknowledge himselfe to be a Villein albeit he was not a Villein before he shall be for ever after a Villein in grosse Littl. §. 185. Co. Inst p. 1. 122. b. 2. and therefore if a praecipe be brought against one he may confesse himselfe Villein to a stranger and that he holds the land in Villeinage of him and this is good and shall bind him and if in that Case the Demandant replie that the Tenant the day of his writ purchased was a Frée-man and thereupon issue is taken and he is tried to be frée yet he shall remain
donative be disturbed the Patron shall have a Quare Impedit of this Church donative and the writ shall say Quòd permittat ipsum praesentare ad Ecclesiam c. and declare the special matter in his declaration And so it is also of a Prebend Chantery Chappel Donative and the like and no laps shall incurre to the Ordinary except it be so specially provided in the foundation Neverthelesse if the Patron of such a Church Chantery Chappel c. Donative doth once present to the Ordinary and his Clerke is admitted and instituted it is now become presentable and never shall be donative after and then also laps shall incurre to the Ordinary as it shall of other benefices presentable but a presentation of such a Donative by a Stranger and admission and institution thereupon is méerly void Co. ib. 367. a. 3 25 If the Tenant make a lease of the land to the Lord for yeares Segniory extinct or the Lord be Guardian of the Land or have it by Statute or Elegit and then make feofment in fee thereof to a Stranger Here albeit as to the Lessor this is a disseisin yet hereby the Lord hath extinguished his Seigniory Co. ib. 170 b. 1. 26 Husband and wife Tenants in special taile Parcenerâ— of certaine land in fée have issue a Daughter the wife dieth the husband by a second wife hath issue another Daughter and dies both the Daughters enter where the eldest is onely inheritable and make partition in this case the eldest daughter is concluded during her life to impeach the partition or to say that the youngest is not heire So likewise I. S. seised of lands in fée hath issue two daughters Rose bastard eigne and Anne mulier puisne who enter and make partition in this Case Anne and her heirs are concluded for ever â—â—â—dition to â—â—le farther â—â—ance by a 〈◊〉 not letâ—â—d 27 A. is bound with Condition that he and his son shall at any time after make better assurance of land sold to B. B. tenders a writing unto them the sonne being not lettered destres time to be advised of it Co. lib. 2. 3. b. Marsers Case which being denied he doth not deliver it In this Case albeit a man unlettered is favoured in the Law so as it is not his Act if the writing be not read unto him or rightly expounded although he deliver it yet here because A. undertooke that his son should do it and no certaine fine was limited for the doing thereof the bond in this case is forfeit for the time for doing of it was peremptory â—â—n not letâ—ed seales a â—ed 28 A lay-man not lettered is not bound to deliver a déed Co. lib. 2. 9. Thorough-goods Case if there be not a person present that can read or expound the déed to him in such language as he understands neither is he bound thereby if it be read or expounded to him in another manner then the words and matter thereof import and it concernes the party that should take it to sée that done if the party that should deliver it require the same but if the party that shall deliver the writing require it not to be done he shall be bound by the déed although it be indited contrary to his meaning Copi-hold â—â—rict 29 The King grants a lease of lands held of him by Copy to A. who assignes to the Copi-holder Co. l. 2. 17. a. 4 Lanes Case the King grants the reversion in fée to B. the terme for years expires here the entry of B. is lawfull for by the acceptance of the assignment of the term the copi-hold is determined 〈◊〉 tenants â—y prejudice 〈◊〉 another 30 As to the profits of the frank-tenement one joint-tenant may prejudice another for there is a privity and trust betwixt them Co. l. 2. 68. a. 3 per Popham in Tookers Case and therefore if one of them take all the profits of the land or all the Rent the other hath no remedy for the Law imputeth it to his folly to joine himselfe in Estate with such a person as will breake his trust So likewise if there be two Lords and a Tenant of land holden by Knight-service and the Tenant die his heire within age here the Lords have Election either to seise the Ward or to distraine for the services and so to waive the Ward as it is agréed in 1 E. 3. But in this Case if one of them seise the Ward and the other distraine for the services he that first seiseth or distraines shall bind the other â—eâ—â—ent upâ—â— Condition â—â—en 31 If A. enfeoffe B. of a Mannor with an Advowson appendant upon Condition that A. shall grant B. the Advowson during his life A. dies before he grants it In this Case the Condition is broken For when the feoffée or grantée upon Condition is to make an Estate to the feoffor or grantor and no time is limited for the doing thereof regularly it is true that the feoffée hath time to do it during his life if the feoffor or grantor do not hasten it by request for upon request and a day or time limited when he will have it done the feoffée or grantée ought to do it accordingly but if no Request be made and the feoffée or grantée who ought to performe the Condition die in this Case the Condition is broken for he hath not performed the Condition within the time prescribed to him by the Law which was during his life But this general Rule admits some exceptions which neverthelesse are agréeable to this Maxime for in this Case of an Advowson A. hath not time during his life albeit no request be made but also upon this contingent viz. if no avoydance fall in the meane time for if the grantée stay until an avoydance fall then ipso facto the Condition is broken for then B. cannot have the whole effect that by the re-grant he ought to have because that is to have all the presentations during his life the Advowson is become in another plight then it was in before So if A. enfeoffe B. the 1 of May upon condition that he shall grant to B. an Annuity or Rent during his life payable yearly at Mich. and La. da. in this Case the feoffée hath not time during his life to make this grant but ought to do it before Mich. for otherwise he shall not have the Annuity or Rent during his life and it may be collected upon the Booke of 14 E. 3. tit Debt 138. that in Case of the grant of a rent he shall not have time during his life Likewise if two not married be enfeoffed upon Condition to re-enfeoffe the Donor or feoffor c. and one of them die yet the other may perform the Condition but if he that survives hath a wife then is the Condition broken for if he made the re-enfeofment yet shall his wife be endowed And in all these Cases and the
like the Law imputeth it to the Laches and folly of the grantée that he will not perform the Condition while he may and believeth against him these and the like things done to his owne prejudice Co. l. 3. 65. b. 2. in Penuants Case 32 If he that hath a Rent-service or Rent-secke â—cquittance the last Rent accept the Rent due at the last day and thereof make an acquittance all the arrearages due before are thereby discharged and so it was adjudged betwixt Hopkins and Merton in that Common Place H. Rot. 950. Vide 10 El. Dier 271. But there the Case is left at large with this also agrées 11 H. 4. 24. 1 H. 5 7 6. But note that the barre to the avowrie ought to be with conclusion of judgment Si encounter cest fait d'acquittance il doit faire Avowry as appeares by the Record of 10 El. and he ought not to demand judgment si action Co. ib. 66. a. 4. 33 If there be Lord and Tenant by Knight-service A extance shall lose thâ— ward and the Tenant enfeoffe his son and heire within age by Collusion In this Case if the Lord accept the services by the hands of the feoffée he shall lose the ward for the Statute of Malbridge cap. 6. making such feofment by Collusion void and of no effect as to the Lord if the Lord will affirm the feofment and waive the benefit of that act by acceptance of the feoffée for his Tenant he shall thereby purge the collusion and therefore deserveth to lose the ward Co. l 4. 1. a. 2 b. 4. Vernous Case 34 B. enfeoffes to the use of himselfe for life jointure in hew of dower remainder to his wife for life with Condition to perform his last will and for her jointure and dies the wife enters agrées to it and after brings her writ of dower In this Case if after the death of the husband the wife accept of that conditional Estate such acceptance shall barre her from having dower for albeit dower at the Common Law in liew whereof a jointure is granted be an absolute Estate for life yet in as much as an Estate for life upon Condition is an Estate for life it is within the words and intent of the Statute of 27 H. 8. 10. to barre the wife of her dower if after the death of her husband she accept thereof So if the husband enfeoffe to the use of himselfe for life the remainder to the use of his wife durante viduitate for her jointure this is an Estate to her for life and cannot determine without her own Act and therefore a jointure also within the Statute if after the husbands death she accept thereof Co. l. 4 9. b. 2. in Bevils Ca. 35 If there be Lord and Tenant by fealty and Rent Rent-service made Rent-secke and the Lord grant over the fealty saving the Rent or if a man make a gift in taile or lease for life rendring Rent and grant over the reversion except the Rent in these Cases the nature of the Rent is altered by the parties owne Act and therefore the ancient seisin when it was Rent-service will not in such case suffice because by his own act the nature of the Rent is changed neither can he have for it an Assise as of a Rent-secke because he was never seised of any such Rent Co. l. 4. 11. b 2. in Bevils Ca. 36 If there be Lord and Tenant by fealty and two shillings Rent Rent by incroachment and the Lord by encroachment viz. by the voluntary payment of the Tenant happens seisin of more Rent then he ought to have the Tenant shall not in avowry avoid such seisin had by accroachment unlesse it be in some special Cases which sée ubi suprà â—â—â—ges irâ—â—â—able 37 If A. hath Rent-service or Rent-charge in fée or for life Co. l. 4. 50. b. 4. in Andrew Ogwels Case and the Rent is arreare and after A. grants over the Rent to another and the Tenant attornes and after A. dies his Executors are not within the branch of the Statute of 32 H. 8. 37. which gives power to Executors c. to recover Debt due to the Testator at the time of his death for by the grant over the arrecages were lost and were not due to the Testator at the time of his death And therefore when the Testator by his own Act in his life time had dispenced with the arrerages the said Act gives no remedy to recover them â—il revolâ— by maâ—e 38 If a Feme sole make a Will and after take Baron Co. l. 4. 61. a. 4. in Forse and Hemblings ca. this is a revocation thereof for the making of a Will is but the Inception thereof and it takes not any effect until the death of the Devisor because omne Testamentum morte consummatum est voluntas est ambulatoria usque ad extremum vitae exitum And therefore it being no perfect Will when she takes Husband and after marriage her Will being her Husbands and subject to it by taking Husband she hath wholy revoked the Will formerly made â—â—vise â—y â—â—â—nder 39 A. deviseth Land to B. till 800 l. be raised for the preferment of his daughters A. dies C. being heire conceales the Will Co. l 4. 82. b. 3. Sir Andrew Corbets Case and enters In this Case B. shall have allowance for the time that the Will was concealed and that time shall not be accompted parcel of the time for the levying of the money But if B. had surrendred to C. upon Condition and had entred for the Condition broken Co. l. 5. 13. b. 3. in the Countesse of Shrewesberies ca. that should have béen accounted parcel of the time for that was his own Act. 〈◊〉 40 At the Common Law before the Statute of Glocester cap. 5. 6 E. 1. no remedy lay for waste either voluntary or permissive against Lessée for life or yeares because the Lessée hath Interest in the Land by the Act of the Lessor and it was his folly to make such a lease and not to restraine him by covenant condition or otherwise from making waste And for the same reason it is that at this day Tenant at will shall not be punished for permissive waste but for voluntary waste he may according to Littleton fol. 15. 〈◊〉 â—â—â—der 41 A. demiseth the Mannor of D. to B. for 30 years Co. lib. 5â— 11. Ives Case except the under wood growing upon it and after demiseth the underwood to him for 62 years without impeachment of waste afterwards B. accepts a lease of 30 yeares of the Mannor after the exspiration of the first 30 yeares In this Case because the demise of the underwood did not sever it from the Mannor the intire franktenement notwithstanding such demise remaining still in the Lessor by his acceptance of the last lease for 30 years the former two leases were
surrendred and so by consequent if afterwards the Lessée commit waste he is subject to an Action for it â—â—gation 42 If a man be bound to make another before such a time such a release as the Iudge of the Prerogative Court shall devise and appoint Co. l. 52. b. 3. Lambs Case In this Case if the Obligor do not onely the first Act but likewise procure the Iudge to devise and direct the release before the time limited the bond is forfeit for in as much as the Iudge is a stranger to the Condition and the Condition is for the benefit of the Obligor and the performance thereof shall have his obligation he hath undertaken to performe it at his peril â—â—tion 43 If a man be bound to make to another a sufficient and lawful Estate in certain Land by the advise of I. D. Co. ibidem If he make an Estate to him according to the advise of I. D. be it sufficient or not or lawful or not lawful yet he saves the Obligation for if it be in sufficient or unlawful the Obligée may thanke himselfe to make choice of such a man as could give no better direction Fuit dit Co. l. 5. 33. b. 4. in Reades ca. 44 If after the death of a man Execution 〈◊〉 his owne wrong none takes upon him to be his Executor or if he died intestate none takes out letters of administration In such Case if a stranger use the goods of the dead or takes them into his possession which is the office of an Executor or Administrator such stranger may be charged as Executor of his own wrong For the Creditors of the dead person have not in such Case any other Co. ibid. 34. a. against whom they may bring their actions for the recovery of their debts or albeit there be an Executor that Administers yet if the stranger take the goods and claiming to be Executor payes debts and receives debts or pays Legacies and inter-medle as Executor in such Case also by such expresse Administration as Executor he may be charged as Executor of his own wrong Vide Dier 166. 10. 1. El. Co. l. 5. ii5 a. 3 in Wades Ca. 45 If the Lessor demands Rent of his Lessee according to the Condition of re-entry and the Lessée pay the Rent to the Lessor Acceptance counterfeit money and he receives it and put in his purse or pocket and after upon reviewing thereof at the same time he finds amongst the money that he had received some counterfeit pieces and thereupon refuseth to carie away the money but re-enters for the Condition broken In such Case it is said it was adjudged betwixt one Vane and Studley that the entry was not lawful for when the Lessor had once received the money it was at his peril and after such allowance he shall not take exception to it Co. lib. 5. 116. â— 3. Olands Case 46 A Feme Copi-holder of certain land durante viduitate sua Graine sowâ— Durante viduitate according to the Custome of the Mannor sowes the Land and before the severance of the graine takes Baron In this Case the Lord shall have the graine For albeit at the time of sowing the graine the Estate of his wife was uncertain and although her Estate determined by limitation and not by condition either in déed as in Case of re-entry or in Law as by forfeiture yet because it determined by the Act of the Lessée her selfe the Lord shall have the graine and not the Baron So if a Feme seised of land durante viduitate sua make a lease for years and the Lessée sow the land and after the Feme that made the lease takes Baron here the Lessée shall not have the graine for albeit his Estate is determined by the Act of a stranger yet he shall not be as to the Lessor in a better Case then his lessor was and the law imputes it to his folly to depend upon so fickle a thing as the will of a woman especially in point of marriage Co. ib. a. 4. 47 If Tenant at will sow the land Tenant at will sowes graine and after the will is determinned the Lessée shall have the graine but if the lessée himselfe determine the will before the severance of the graine he shall not have them because he hath determined his Interest by his own Act So if Lessor at will be out-lawed whereby the will is determined In this Case the King shall have the profits and the Lessée shall enjoy the graine but if Lessée at will be out-lawed whereby the will is determined in such Case the King shall have the graine Vide 9 H. 6. 20 21. Dier 173. 15. Co. ib. b. 1. 48 If a lease be made to Baron and Feme during the coverture Graine sowâ— divorce and the Baron sow the land and after they are divorced causa praecontractus the Baron shall have the graine and not the Lessor for albeit the suite is the Act of the party yet the sentence which dissolves the marriage is the judgement of law Et judicium redditur in invitum but if a lease be made to one until he make waste and he sow the grain Waste and after make waste he shall not have the graine Vide Max. 30. 34. â—â—faction of â—â—bt by deed 49 In Debt upon an Obligation of 10 l. the Plaintiffe pleades Co. l. 5 117. b. 2 Pinnels Case that one F. was bound by the same Déed with him and each of them in the whole and that the Plaintiffe made an acquittance to F. bearing date before the obligation but delivered after by which acquittance he acknowledged himselfe to be paid 20 s. in full satisfaction of the 10 l. and this was adjudged a good barre for if a man will acknowledge himselfe to be satisfied by Déed this is a good barre without receiving any thing Vide 36 H. 6. Barre 17. 12 R. 2. Barre 243. 10 H. 7. Yet payment of a lesse sum in satisfaction of a greater is not good satisfaction because a lesser sum can by no possibility be satisfaction for a greater â—â—re service â—â—tiplied â—â—â—ct 50 If one hold his land of his Lord by an intire annual service Co. l. 6. 1. b. 3. in Bruertons Case as a Spurre Horse or the like and after sels parcel thereof to another in this Case the alienée shall hold by the same intire service because such intire service cannot be apportioned and the land is severed by his owne Act So also if in such Case the Lord purchase parcel of the tenancy such intire services are gone in like manner as if the Lord had released his Seigniory in part of the tenancy because he hath discharged part of the land by his own Act. â—â—rneys acâ—â—nts 51 When a writ abates by default of the Clerke Co. l. 6. 10. a. 2 in Spencers Case as for false
Latin variance or want of forme or else by the Sheriffes fault for want of good summons in such Cases the Demandant shall have the benefit of a new writ by Journeys accounts but if the first writ abate by the default of the Demandant himselfe as by his mis-infirmation of the name of the Tenant or of the Towne c. there the Demandant shall never have a writ by Journeys accounts Vide Dier 55. 7. 34 35 H. 8. 〈◊〉 tenants â—â—land reâ—â—ns chargâ— 52 If there be two joint-tenants in Fée Co. l. 9. 79. a. 2 in the Lord of Abergavenies Case and one of them grants a Rent-charge in Fée and after releaseth to the other In this Case albeit to some intent he to whom the release is made is in by the first Feoffor and no degrée is made betwixt them yet as to the grantée of the Rent-charge he is in under the joint-tenant that releaseth and he that survives shall not avoid it after the death of him that releaseth for he that survives by acceptance of the release hath deprived himselfe of the way and meane to avoid the charge because Jus accrescendi the right survivorship was the sole mean to avoid it and that right is taken away by the release 〈◊〉 impedit 〈◊〉 53 If a Quare Impedit within the six moneths abate for false Latin insufficiency of forme Co. l. 7. 27. b. in Sir Hugh Portmans Ca. or mis-naming of the Plaintiffe or Defendant if the Plaintiffe confesse it the Defendant shall not have a writ to the Bishop but the Plaintiffe may have a new writ of Quare Impedit for that may be the Clerks fault Howbeit in such Case if the Plaintiffe be non-suit after appearance discontinue his suit or be made Knight hanging the writ these are peremptory and thereupon the writ shall abate and the Plaintiffe shall not have a new writ because they are done by his own Act and in such Cases the Defendant shall have a writ to the Bishop c. 〈◊〉 obligation â—erform an â—â—rament 〈◊〉 54 If a man be by bound obligation with Condition to stand to an Arbitrament to be made before Michaelmas and before Mich. Co. l. 8. 82. b. 4 Vinyors Case he discharges the Arbitrator to medle with it in this Case albeit the obligor may by such discharge retract the power so given to the Arbitrator so as no Arbitrament may be made yet the obligation is forfeit and is single without a condition because the obligor by his own act hath made the Condition of the obligation which was indorsed for his owne benefit viz. to save him from the penalty of the obligation impossible to be performed and by consequence the obligation is become single and without the benefit or ayde of any Condition for that he hath disabled himselfe to perform it In like manner if one be bound in an Obligation with Condition that the Obligor shall give licence to the Obligée by the space of 7 years to carrie wood c. In this Case also albeit he give him licence yet if he afterwards within the 7 years countermand it or discharge the Obligée the Obligation is forfeit Co. l. 8. 92. b. 3 in Frances ca. 55 If a man be bound in an Obligation to observe the arbitrament of I. S. and I. S. makes the arbitrament In this Case The like if the Obligor neglects to inquire after it to know whether I. S. hath made an arbitrament or no and for want of such inquiry omits to performe it the Obligation is forfeit for the Obligor ought to take notice thereof at his peril because he hath bound himselfe to it and in such Case no notice is requisite to be given unto him as it is held in 1 H. 7. 5. Ibidem b. 4. 56 If a man be bound upon Condition to accompt before an Auditor to be assigned by the Obligée when he shall be required thereunto Obligation 〈◊〉 perform aâ— account and to pay the arrerages found upon such account In Debt brought upon such an Obligation the Obligor shall at his peril take notice of the arrerages found before the Auditor for he having bound himselfe to satisfie them shall also without notice inquire after them to know what they are because he hath bound himselfe to it and if he do not his Obligation for such neglect is forfeit And so it was adjudged per Curiam in 18 E. 4. 18 24. And there Brian Vavasor and Catesby Iustices agréed it for Law and said it had béen formerly so adjudged in the B. R. Co. l. 8. 136. à 1 in Sir John Nedhams Ca. 57 A Commission of Administration granted by the Bishop to the Obligor shall not extinguish the Debt but the Debt shall remaine Obligation released by making the Obligor Exeâ—cutor c. Howbeit if the Obligée make the Obligor his Executor this is a release in Law 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. So likewise if a Feme obligée take the obligor or one of the obligors to husband this is a release in Law of the debt because it is by the Act of the obligée her selfe and with this accords 11 H. Co l. 9 10. a. 3. Dowmans Ca. 7. 4. 21 H. 7. 29. 58 If a recovery be suffered without consideration or limiting to what uses it shall enure to the use of the recovery and his heirs A subsequent Indenture may limit use of a precedeâ— recovery neverthelesse the recoverée may afterwards by a subsequent indenture direct other uses thereof and that shall enure by way of estopel against the recoverée and his heirs for albeit by such a recovery the use is vested in the recoverée yet such a declaration by a subseqvent indenture shall devest it because the covenant thereof is the recoverées owne Act. Co. l. 9. 18. a. 3. Anne Bedingfâ—ilds Case 59 In a writ of Dower the heire of the Baron may plead detainer of the evidences Dower detaâ—â—ner of Chaâ—ters howbeit if the heire have delivered the charters to the Feme he shall not plead detainment thereof because the Feme hath them by his own Act. Co. l. 9. 39. b. 1 Hensloes Ca. 60 The Ordinary or his Deputies or Commissaries may seise the goods of the person deceased without being questioned for the same An Ordinaâ— sued yet if they medled with the goods and payed not Debts an action lay against them at the Common Law before the Statute of Westm 2. 19. which indéed is nothing else but an affirmance of the Common Law Co. l. 11. 5. b. 3. in Sir John Heydons Case 61 In Trespass against two In Trespass 〈◊〉 the Plaiâ—â—â— confession thâ— writ abates if the Iurors find one guilty at one time and the other at another time there several damages may be taxed but if
hath a good lawful right and yet if A. being out of possession granted away the land or contracteth for it with another he hath now made his good right of entry pretenced within the Statute of 32 H. 8. 9. and both the grantor and grantée within the danger thereof A forciori of a right of Action Quod nota â— joynt grant â—f a Rent-â—â—nge 6 A. enfeoffes B. upon Condition A. and B. joyne in the grant of a Rent-charge out of the land to C. the Condition is broken A. enters Co. l. i. 146 a. 2 Anne MayoÌ„es Case In this Case it was objected that this grant enured as the grant of B. and the confirmation of A. which confirmation could not alter the quality of the Estate Howbeit it was resolved and adjudged that the land was chargable with the Rent and one of the reasons alleadged for it was that every fée may be charged one way or other and when both joyne in the grant that have the whole interest in the land it must néeds be charged with the Rent for if it cannot be done by their joint grant there is no other way to do it Co. l. 3. 60. b. 1. in Lincolne Colledge Ca. 7 A. and B. fâ—ynt-tenants for life An entail docked by 〈◊〉 lease and to the heirs of the body of A. intermarry and have issue C. who after the death of A. disseises B. and suffers a Common recovery and B. releaseth with warranty and dies In this Case the Estate taile had béen barred albeit B. had not released with warranty for it is reasonable that the entaile should be cut off this way as well as by joyning in a fine or surrender of B. and recovery after against the heire because they both had power to barre the Estate taile one way or other having the whole Estate in them subject to be docked Co. l. 10. 48 b. 4 in Lampets ca. F. N. B. 152. g k. 8 Littleton saith Joinder of dâ—visees in a grant c. of a lease cap. Discout fol. 144. that it is a Maxime in the Law that land in fée-simple may be charged one way or other So also it is a Maxime in the Law that every right title or interest in praesenti or futuro by the joyning of all that may claime any such Right Title or Interest may be barred or extinct And therefore at the Common Law if the Donor and Donée had joyned in the grant of a rent-charge and after the Donée had died without issue and the fée had reverted to the Donor that he should have held it charged and yet he had but a possibility at the time of the charge made Because all those who had any Estate or interest therein in praesenti or in futuro did joyne in the charge So likewise à fortiori if they had joyned in a lease for yeares and the Donée had died without issue the lease had béen good against the Donor In like manner Lessée for 400 yeares devises for life to his executor The principal Case there the remainder to M. and dies M. maries her husband and she releases to the Executor In this Case albeit M. had but a possibility yet a release by her Husband and her to the Tenant in possession vests the whole interest of the term of 400 years in the Executor because none other had interest in praesenti or in futuro but those that joyned in the release and both consented to it the one in releasing and the other in accepting thereof For if they had joyned in an assignment of the term it had also béen good causa qua supra And in Case both joyne in a grant it is the grant of him that hath the term and the release or confirmation of the other Co. ib. 49. a. 3. Pasc 4 E. 6. in Co. Ba. 9 If a man make a lease to another for 21 years Lessor and Lessee joine if the Lessée shall so long live here if the Lessor and Lessée joyne in the grant of a term by Déed to another and after the Lessée die within the term so granted the grantée shall enjoy the land during the residue of the term absolutely Fuit tenus per Montague Hales Molineux Browne Co. l. 10. 101. a. 3. in Bewfages Case 10 In the Statute of 23 H. 6. 10. which enjoynes Sheriffes to take baile of prisoners within their guard for appearance upon reasonable suerty of sufficient persons c. Here these words Security to the Sheriffe Reasonable suerty of sufficient persons do not so restraine the Sheriffe but that he may if he please take suerty of one single person for the Statute leaves it to his discretion to take such security as he thinks fit because he is to be amercied if the party appeare not at the day in the writ and therefore it is at his peril if he take not good security of the party arrested and he hath liberty to waive that power by taking lesse security then the Statute mentioneth for those words import rather an advice then a command and Quilibet potest renunciare c. Dier 23. b. 148 28 H. 8. Stat. 27 H. 8. 10. 11 A man seised of land in right of his wife makes a feoffment in fée to his owne use and declares his will to be Upon grant by the Baron oâ— the Femes lanâ— though to her no remitter that the feoffées shall stand seised to the use of his wife for life And then comes the Statute of Uses 27 H. 8. 10. which saith that Cestuy que use shall be déemed in possession of such an Estate as he had in the use Here the Question was whether or no the Feme should be remitted And by Shelley it séemes she is remitted because she comes in not by her owne Act but by an Act in Law viz. by the Statute and there is none against whom she may bring her Cui in vita But Baldwin and Knightly è contra because she comes in by Act of Parliament to which every one is party and the Statute saith Cestuy que use shall be adjudged in such Estate as he had in the use for if Tenant in taile make a feofment in fée to his owne use in fée or fée taile the issue is not remitted because he had a fée-simple in the use and the Statute conveyes unto him such an Estate as he had in the use Ideo quaere â—â—sor â—â—see 12 A Lease is made for yeares upon Condition Dier 334. 3â— 16 Eliz. that the Lessée shall not alien to any person without the Lessors Licence the land nor any part thereof the Lessor gives him Licence to alien part the Lessee aliens the residue without Licence And it was adjudged that the Lessor might enter notwithstanding the dispensation with the condition in part and that the condition was intire â—â—re of an â—â—raile 13 Baron and Feme are Tenants in special
carelesse and reserved none Co. ib. 253. a. 4 4 Remedies for rights are alwayes favourably extended Rights favoâ—rably extended and therefore the grantée of a Rent-charge and Rent-secke may demand them after they are behind at any time whether the Tenant be present or no and it is not necessary that the grantée should demand them at the very time when they become due It is otherwise of a Rent upon a Condition because that is penal and overthroweth the whole Estate and therefore the time of demand in that Case must be certain to the end the Lessée Donée or Feoffee may be there to pay the Rent for the redemption of the Estate Litt. §. 307. Co. ib. 194. b. 3 Litt. §. 308. 5 If a man be disseised Release to one joint-tenant and the Disseisor make feofment to two men in Fée and the Disseisée releaseth by his déed to one of the feoffées in this Case it shall enure to both the Feoffees because they have a Rightfull Estate by Law and come not in by wrong done to any So likewise if the Disseisor make a lease to one for life the remainder to another in Fée and the Disseisée release to the Tenant for life this shall enure to him in remainder and the Estate of the Disseisée is thereby quite extinct causa qua suprà Co. ib. 125. b. 3 6 The Statutes of 3 4 E. 6. cap. 4. and 13 El. cap. 6. Constat iâ—speximus which ordain Constats and Inspeximus of letters Patents are to be favourably construed for advancement of the â—emedy and right of the subject â—â—gment acâ—â—ding to 〈◊〉 7 Estopels Co. ib. 227. a. 4 which bind the Interest of the Land as the taking of a lease of a mans owne land by déed indented and the like being specially found by the Iury the Court ought to judge according to the special matter for albeit Estoples regularly must be pleaded and relied upon by an apt conclusion and the Iury is sworne ad veritatem dicendam yet when they find veritatem facti they pursue well their oath and the Court ought to judge according to Law and right So also may the Iury find a warranty being given in evidence though it be not pleaded because it bindeth the right except it be in a writ of Right when the Mise is joyned upon the méere right â— 33 H. 8. 〈◊〉 8 Albeit the Statute of 32 H. 8. 33. Co. ib. 238. a. 3 which gives entry to the Disseisée or his heires if the Disseisor were not in peaceable possession five yeares before the discent cast be a penal Statute yet it is taken favourably for the advancement of the ancient right For whether the disseisin be with force or without force it is within the Statute and albeit the Statute speaketh of him that at the time of the discent had title of Entry c. or his heires yet the Successors of bodies Politique or Corporal so you hold your selfe to a disseisin are within the remedy of this Statute but an Abator Intrudor or the Feoffée or Disseisor are not within the Statute nor he in reversion or remainder that had not right of Entry at the time of the discent cast â—ery discent â—â—i not toll â—â—y 9 Albeit the Law giveth much favour to descents Litt. §. 394. Co. ib. 241. b. 2 yet when the title of a discent commenceth by wrong for the advancement of the ancient right the Law tieth a discent to strict termes and therefore when a discent is cast if immediately after there be not a person capable of it which may take it such discent cannot toll the entry of him that right hath but his Entry is congeable As if a Feme be seised of land in Fée wherein I have title of Entry and the Feme takes Baron and they have issue and after the Feme dies seised and after the Baron dies and the issue enters c. In this Case I may enter upon the possession of the issue because the issue comes not to the tenement immediately by discent after the death of his mother but by the death of his father For here was but a discent of a reversion at the time of the dying seised so as the Fée and franktenement together did not immediately after the decease of the Feme discend to the heire and if a dying seised taketh not away the Entry of him that right hath at the time of the discent it shall not do it by any matter ex post facto So if a Disseisor die without heire his Wife priviment enseint with an issue and after the issue is borne who entreth into the land In this Case he hath the land by discent and yet thereby the Entry of the Disseisée shall not be taken away because as Littleton saith the issue cometh not to the lands immediately by discent after the decease of his father Likewise if a Disseisor make a gift in taile the remainder in Fée and the Donée dieth without issue leaving his Wife priviment enseint with a sonne and he in the remainder enter and after the sonne is borne who entreth into land this discent shall not take away the entry of the Disseisée causa qua suprà â—cent tols 〈◊〉 tâ—try 10 B. Tenant in taile enfeoffeth A. in Fée Co. Inst p. 1. 246. a. 2. A. hath issue within age and dieth B. abateth and dieth seised the issue of A. being still within age this discent shall bind the infant for the issue in taile is remitted And the Law doth more respect an ancient right in this Case then the priviledge of an Infant that had but a defeasible Estate â—cent upon â—ession no 〈◊〉 11 No glorious pretext of an Act who though it be of Religion shall work a wrong to a stranger that hath right Co. ib. 248. b. 3 to barre him of his entry but it must be done by the Act of God viz. by death and therefore if the Disseisor have issue and enter into Religion such a descent shall not barre by the disseisée of his entry but he may well enter notwithstanding any such profession or pretext of Religion Litt. §. 417. Co. ib. 252. a. 4 12 If a man hath cause of entry into divers lands in several Townes in the same County if he enter in any parcel thereof in the name of all Entry how be done by such entry he shall obtaine a good possession and seisin of all The like also may be said of Livery of seisin and this is in favour of right and Iustice Litt. §. 472. Co. ib. 275. b. 4 13 If a man diseised by two and he releaseth to one of them he Release to Disseisors to whom the release is made shall hold out his Companion and by such release shall gaine the sole possession and Estate in the land but if a Disseisor enfeoffe two in Fée and the Disseisée
a Son and a Daughter by one venter and a Son by another the eldest Son entreth and dyeth and the land descends to the Sister in this case the Warranty descendeth on the Son and he may be vouched as heire and the Sister as heire of the land In which and the other case of Burrow English the Sonne and heire at Law having nothing by descent the whole losse of the Recovery lyeth upon the heires of the Land albeit they be no heires to the Warranty Warrants 25. If a man doe warrant Land to another without this word Heires his heires shall not vouch and regularly Co. Inst pars 1. 384. b. 4. if hee warrant Land to a man and his heires without naming Assignes his assignee shall not vouch Howbeit if the Father be enfeoffed with Warranty to him and his heires and the Father enfeoffeth his eldest Sonne with warranty and dyeth In this case albeit the Warranty between the Father and the Son is by act in Law extinct yet the Law giveth to the Son advantage of the Warranty made to the Father because otherwise he should be without remedy occasioned by an act of Law which can do no wrong 26. It is against a Rule in Law Co. ibid. 390. a. 1. that a man should vouch himselfe Vide R. 54. Ex. 14. And yet if a man be enfeoffed with warranty to him and his heires of greene acre â—aâ—ranty and is also seised in fee of black acre in Burrow English and having two Sonnes enfeoffeth his eldest Sonne of greene acre in this case if the eldest Sonne be impleaded hee shall vouch himselfe and his younger Brother being heire in Burrow English for otherwise the eldest Sonne should be without remedy because the act in Law Viz. The descent hath determined the Warranty betweene the Father and the eldest Sonne â—arranty by â—â—fe and husbâ—â—d c. 27. Baron and Feme being one person in Law Co. ibid. 290. a. 3. 1. 103. b. 9. Dyer 2. p Mar. 315. b. 1. 15. Eliz. it is against the Rule of Law that they should vouch one another neither shall a Warranty be made use of while it is in suspence And yet if a man enfeoffeth a woman with Warranty and they intermarry and are impleaded and upon default of the Husband the Feme is received in this case the Feme shall vouch her Husband c. notwithstanding the Warranty was put in suspence by the intermarriage So likewise on the other side if a woman enfeoff a man with Warranty and they intermarry and are impleaded in this case the Husband shall vouch himselfe and his Wife by force of the said Warranty Albeit it be against another Rule of Law Viz. 54. before cited that a man should doe an act to himselfe And all this least the Husband or Wife in their severall cases should be without remedy Warranty Câ—parcener 28. Regularly Co. ibid. 174. a. 4. the Feoffee of one Coparcener shall not have ayde of the other Coparcener to deraigne a Warranty paramount And yet if there be two Coparceners and they make partition and the one of them enfeoffs her Sonne and heire apparent and dyeth and the Son is impleaded In this case albeit he be in by the Feoffment of his Mother yet shall he pray in aide of the other Coparcener to have the Warranty And the reason of the granting of this ayde is-for that the warranty between the Mother and the Sonne is by Law annulled and therefore least the Sonne should be prejudiced by Law which can do no wrong and so be left without remedy the Law giveth him albeit he is in by Feoffment to pray in ayde of the other coparcener to deraigne the warranty paramount Co. l. 3. 12. a. 3. in Sir Wil. Harberts case 29. Debt against the Heire In Debt against the heire upon an obligation made by the Ancestor the creditor could not at the common Law have had execution against any part of the Land whereof the debtor was seised in the life of the debtor himselfe but after his decease he might have had all the land descended upon the heire in execution untill he should be satisfied the debt because the common law giving action of debt against the heire if the debtor should not have had execution of the Land against the heire he should not have had any fruit of his action and so should have been left without remedy for the goods and chattells of the debtor did belong to his Executors or Administrators so as if land should not have been lyable to a debt of a common person at the common Law the creditor had been without remedy and yet the common phrase is Lands pay no debts Co. l. 4. 30. b. 3. in Shaw and Thompsons case 30. Dower Copy-hold In a Court Baron the damages to be recovered ought not to exceed forty shillings yet in a Copyhold Mannor where the custome is that a Feme shall be endowed if shee recover Dower with damages in the Lords Court albeit those damages exceed forty shillings yet are they recoverable in the same Court for otherwise shee should be without remedy because they are not recoverable by the common Law but onely in the Court of the Lord by Levari facias Co. l. 5. 88. a. 3. in Garnors case 31. At the common Law No capias in debt at the C. Law if a man had judgement in an action of debt and after judgement outlawed the Defendant in this case the Plaintiff was not at the end of his suit as to any processe to be further sued by himselfe for he could not have a Scire facias nor any other processe upon the Iudgement but was put to his new Originall as it is agreed in 13 H. 4. 1. a. 21 E. 3. 55. and 20 E. 3. Nonability 8. And albeit before the Statute of 25 E. 3. ca. Capias did not lye in debt nor the body of the Defendant before that Statute was subject to execution for debt yet in these cases if the Defendant be taken by Capias ut lagatum at the Kings suit no Laches being in the Plaintiff in continuance of his processe he shall be in execution for the Plaintiff if he will for albeit the property of all the Defendants goods and profits of his Lands are by the Outlawry vested in the King yet rather then the Plaintiff should be without remedy he shall hold him in execution for his debt and for that reason he shall in such case participate of the benefit as well as the King Co. l. 6. 41. b. 1. in Sir Anthony Mildmays case Co. l. 7. 39. b. in Lillingstons case 32. If a man by Deed grant a rent to another for his life Rent sued for by Executors provided that he shall not charge his person in this case if the rent be arreare and the grantee dye his Executors shall charge the person of the grantor
vita to say that the Feme had a lesse estate then Fee-simple yet the issue who claimed the Reversion of the Land as heire to the Baron shall not be bound by that Estoppel made by the Feme although he was heire to her also for then the Feme who had but an estate for life might by her own act have barred the heire that right had and claimed as heire to his Father C. l. 8. 76. a. 2. in the Lord Staffords case 33. If a man make a Lease for years upon Condition Outer by Lessor that if the Lessor out him within the Terme that he shall have fee and the Lessor doth out him accordingly in this case albeit the interest of the terme is by such ouster turned to a right yet the Lessee in such case shall have fee for that such ouster is the act and tort of the Lessor himselfe whereof he shall take no advantage Co. l. 8. 133. a. 4. Turners case 34. In debt against an Executor Executor de layes c. he pleads a Recovery against him in such a Court which amounts to the whole in his hands the Plaintiff replies that the recoverer hath accepted composition and that the Defendant delayes to accept a release with purpose to defraud the Plaintiff In this case the deferring to accept the release is a tort and against the duty of an Executor and therefore cannot helpe him for if any prejudice happen to him thereby it is by his own tort and default and therefore he shall not take any benefit thereby Co. l. 9. 68. b. 4. in Mackallies case 35. Vpon an arrest Resistance by Prisoner if the party arrested submit himselfe peaceably thereunto and gives the Serjeants or Bayliffs convenient leasure to acquaint him with their business they oughtupon demand to shew him their warrant and to let him know the occasion thereof as it was adjudged in the Countess of Rutlands case in the 6. Rep. fo 55. But if he make resistance and obey not their warrant they are not bound to shew it nor c. and if then any of them be killed it is murder for the Prisoner shall not in such case take advantage of his own wrong Co. l. 10. 134. b. 2. in Read and Redmans case 36. In reall Writs originall Summons and severance if he that is summoned and severed dyes which is the act of God the Writ shall abate but taking of Baron or entring into the Land by him that is summoned and severed or where there is no summons and severance shall not abate the Writ but onely make it abateable because these are the parties own acts whereof they shall not take advantage Co. l. 11. 81. b. 1 in Lewes Bowles case 37. If a Tenant for life or years fell Timber Trees Waste or pull down the Houses the Lessor shall have the Timber for the Lessee cannot have them by his demise but as things annexed to the soile And therefore it is absurd in reason that when by his own act and wrong he hath severed them from the Land he should gaine a greater property in them then he had by the demise F. N. B. 59. k. 37. The Tenant may fell Trees to repaire the Houses Waste but if the Houses be fallen into decay by his default if then he fell Trees to repaire them it is waste for he shall not usurp the power of felling Trees to amend the Houses when the cause why they wanted repairing was by his own neglect Pl. Co. 16. b. 4. in Fogassaes case 38. In Fogassaes case in the Commentaries Not weying Woad the not weying of the Woad is referred to the Collector And therefore the Collector shall not by his neglect take advantage in the Kings behalfe of the not weying thereof and by that meanes cause Fogassa to forfeit the same Dyer 30. 205. 28 H. 8. Dyer 42. 9. c. 30 H. 8. 39. The Condition of an Obligation was this Obligation to enjoy peaceably That the Obligor should surrender certaine Copyhold-land and also that he should suffer the Obligee and his heires peaceably to enjoy the Land without the interruption of any The Defendant pleads performance and also that the Plaintiff did peaceably continue the Possession thereof according to the condition for a certaine time and that afterwards the Lord for rent arreare in the Plaintiffs time entred according to the custome for the forfeiture Judgement fâ—action and this was held a good Plea because the reason why the Plaintiff did not enjoy the Land was caused by his own act which in this case shall not worke to his advantage So if the Obligee had been Tenant at the Common Law and had ceased the Obligation had been saved for that it was the act of the Plaintiff himselfe 148. And therefore the Law of it self prejudiceth none Distresse 1. Any goods may be distrained for damage-feasant Co. Inst parâ— 1. 47. a. 4 by reason of the necessity See Max. 110. Ex. 4. and such Distresse may also be made in the night time for the same reason Vide M. 128. E. 2. Howbeit for rent nothing can be distrained in the night time or which cannot be rendred in as good plight as it was in at the time of the Distresse taken as sheaves or shocks of Corne or the like cannot be distrained for rent because when a Distresse is made for rent it is in the custody of the Law and repliviable and during the time it so remains the Law will not suffer the owner thereof to suffer prejudice by the detainer and in such case there is no such necessity but that the Distresse may be made in a seasonable time and of convenient goods Howbeit Wagons or Carts loaden with graine Horses and all may be distrained for rent because they may be restored in the same condition they were in when they were taken And yet Beasts belonging to the Plough averria carucae shall not be distrained nor any Vtensils or Instruments of a mans Trade or Profession as the Axe of the Carpenter the Books of a Scholler c. while other Beasts or Goods which Bracton calls animalia or catalla otiosa may be distrained for that were un-charitable and an injury to the publique whereof the Law if possibly it may be otherwise will not be guilty Vide plus ubi supra Waste against Guardian 2. If the Guardian doth waste Co. ibid. 54. a. 2. and the heire within age brings an Action of waste the Guardian shall lose the Wardship but if the heire bring an Action of waste at his full age he shall then recover treble damages for when the Law at his age of one and twenty years takes away from him his advantage of having the Forfeiture of the Wardship in liew thereof it gives him treble damages because otherwise the Guardian might do him an injury and make him no recompence for it for then
the Guardian cannot lose the Wardship An Infant payes releif 3. Littleton saith Litt. S. 112. Co. ibid. 83. b. 4. That the heire of a Tenant by Knight-service ought not to pay releife untill his age of twenty one years yet in some case the Heire shall pay releif when he was within that age at the time of the death of his Ancestor As if a man holdeth Lands of the King by Knight-service in Capite and of a common person other Lands by Knight-service and dyeth his heire being within age here the King hath the Wardship both of body and Lands by his Prerogative untill the full age of the heire and therefore in this case the Heire though he be within age shall immediately pay releif to the other Lord for as the Law giveth away the Wardship to the King by reason of his Prerogative so doth it in respect thereof reserve to the other Lord all that conveniently may be reserved viz. his releif The Lord shall not have the body 4. A man seised of Land holden by Knight-service hath issue a Daughter who takes Baron and hath issue a Son Litt. S. 114. Co. ibid. 84. a. 3. the Tenant dyes and also the Mother in this case the Son shall not be in ward for his body living his Father but yet the Lord shall have the Wardship of the Land untill the full age of the Son for albeit in this case the Law doth give the custody of the body to the Father and barreth the Lord thereof yet the Lord shall have the Wardship of the Land by force of the tenure of the first creation thereof So it is also if the Father marry his heire within age and dyeth in this case also the Lord shall have the Wardship of the Land Co. ibid. 88. b. 3. 5. Where the Father is Guardian of his Son for Land holden in Knight-service this is in respect of his paternall naturall custody Father Guardian in socage accountable and therefore in such case he shall not be answerable for his marryage or custody of his Lands but where the Father is Guardian by reason of a tenure in Socage he must by Law be accountable to the Son both for his marriage and also for the profits of his Lands which he should not be if he had the custody of his eldest son in this case as his Father in respect of nature And because the Law doth appoint him to be Guardian in Socage it compels him also to be accountable for the act of Law doth never any man wrong Co. ibid. 134. b. 2. Anic super carta cap. 15. 28. E. 1. 6. Before the Statute of Articuli super cartas In reall actions fifteen dayes returne in all Summons and Attachments in Plea of Land were contained the terme of fifteen dayes and it appeareth not onely by that Statute but likewise by the ancient Authors of the Law who wrote before that Statute that this was the ancient common Law And the reason of giving so many dayes in reall Actions was the Recovery being so dangerous that the Tenant might the better provide himself both of answers and proofes Co. ibid. 132. b. 2. 7. If I be disseised and my Brother release with Warranty Descent upon Profession and is afterwards profest in Religion and thereby the Warranty descend upon me In this case albeit the Law binds me by the Warranty yet I being his heire the Law gives me by descent such Inheritance as my Brother had at the time of his Profession Co. ibid. 137. a. 3. Litt. S. 203. 8. Albeit by an act in Law a man may have damnum Profession dischargeth wardship yet in such case it is alwayes absque injuria as if a Ward enter into Religion and be profest hereby the Lord loseth the Wardship of the Land which may be said damnum for by such Profession the Ward is civiliter mortuus a dead man in the Law and cannot hold any Inheritance neither can the Guardian continue the Wardship of the land because by the civill death of the Ward the Inheritance is descended to another but this damnum is absque injuria for by such Profession the land descends to another who is either to be in Ward or to pay releif And therefore in such case the law giveth the Guardian no remedy neither by any formed Writ nor by Action upon the case Co. Inst pars 1. 138. a. 3. 9. If Tenant for another mans life by his Deed grant a Rent charge to one for twenty one years Cesty que vie dyeth A annuity good the land evicted hereby the Rent-charge is determined and yet the Grantee may have during the years a Writ of Annuity for the arrearages incurred after the death of Cesty que vie because the Rent charge did determine by the act of God and the course of law Actus Legis nemini facit injuriam So it is also if land out of which a Rent-charge is granted be recovered by an eyent title and thereby the Rent-charge is avoyed yet the Grantee shall have a Writ of Annuity because the Rent-charge is avoyded by the course of law and so it was holden in Wards case cited in Co. l. 2. fo 36. in Heywards case against an opinion obiter in 6 H. 6. 42. a. Vide Max. 114. Ex. 13. Co. ibid. 149. a. 1. 10. A. hath common of Pasture sans number in twenty Acres of land Common sans number not apportioned and ten of these Acres descend to A. the common sans number is intire and uncertaine and cannot be apportioned but shall remaine but if it had been a Common certaine as for ten Beasts in that case the Common â—â—â—dition shall be apportioned And so it is also of common of Estovers Turbary Piscary c. And it is to be observed that in none of these cases or the like the descent which is an act in Law shall worke any wrong to the Ter-tenant for neverthelesse he shall have thereby that which belongeth to him for the Act in Law shall never worke any wrong The like 11. Of Common or Corody certaine as for ten beasts Co. ibid. 164. b. 4. so many Dishes in certaine c. partition amongst Coparceners or Apportionment may be made for this can worke no wrong to the Ter-tenant But if a man have reasonable Estovers as House-boot Hay-boot c Appendant to his Free-hold they are so intire that they shall not be divided amongst Coparceners So likewise if a Corody uncertaine be granted to a man and his heirs and he hath issue diverse Daughters this Corody shall not be divided between them there is the same Law also of Common sans number for in these cases and the like if Estovers Common Piscary or Corody uncertaine should be partable amongst Sisters such partition would worke a wrong to the Ter-tenant Co. ibid. 165. a. 1. who should be opprest and over-charged thereby which the Law
will not suffer But in such cases one of the Coparceners hath it and the rest are satisfied otherwise or if there be nothing but such intire Inheritances that will not admit severance then they are to have the profit thereof by turnes c. vide pl. ibid. Warranty continues after partition 12. If two hold joyntly certaine Lands with warranty Co. ibid. 165. a. 4. and make partition in this case the Warranty is gone because they are not compellable by the Common Law to make partition but if Coparceners hold Land with Warranty and make partition yet shall the Warranty still remaine for they are compellable by the Common Law to make partition and therefore the Law preserves their Warranty The estate preserved by construction of Law 13. If Tenant for life make a Lease generally Co. ibid. 183. a. 4. this shall be taken by construction of Law to be an estate for his own life that made the Lease for if it should be a Lease for the life of the Lessee it would work a wrong to him in the Reversion So it is likewise if Tenant in tail make a Lease generally the Law shall contrive this to be such a Lease as he may lawfully make and that is for terme of his owne life for if it should be for the life of the Lessee it would be a Discontinuance and consequenty the estate which should passe by construction of Law should worke a wrong which the Law will not permit because Legis Constructio nunquam facit injuriam Descent tels Entry 14. In case of a Descent cast Co. ibid. 237. b. 4. there is a Diversity betwixt corporall Inheritances as Houses Land c. which do lye in Livery and Inheritances incorporall as Advowsons Rents Commons c. which lye in Grant for a Descent cast of these shall not put the Disseisee to his Action but he may claim them notwithstanding such Descent Howbeit a Descent cast of the other puts the Disseisee to his Action because Houses serve for the habitation of men and Land to be manured for their sustenance and therefore an heire shall not after a Descent of them be molested or disturbed in them by Entry Continuall claime 15. If a man for feare of Battery mayhem or death Co. ibid. 254. a 4. Litt. S. 421. dare not go to the Land to make his Entry the Law to prevent danger givee him leave in such case to go as neare the Land as he dare although he be not within the view thereof Feme Obligee and Execution 16. If a Feme Obligee take the Obligor to Husband Co. ibid. 264. b. 4. this is a release in Law the like Law is if there be two Femes obliques and the one take the Obligor to Husband this is also a release in Law of the whole debt But if a Feme Executrix take the Debtor to Husband this is no release in Law for that should be a wrong to the dead and in Law worke a Devastavit which an act in Law shall never worke And so it was adjudged in the Kings Bench M. 30 31 Eliz. Co. Inst pars 1. 269. b. 3. 17. If there be Lord and Tenant Lord and Tenant Lord Mesne and Tenant and the rent is behind by divers years and the Tenant make a Feoffment in fee if the Lord accept the service or rent of the Feoffee due in his time he shall lose the arrearages due in the time of the Feoffor for after such acceptance he shall not avow upon the Feoffor nor upon the Feoffee for the arrearages incurred in the time of the Feoffor But in that case if the Feoffor dye albeit the Lord accept the rent or service by the hand of the Feoffee due in his time he shall not lose the arrearages for now the Law compelleth him to avow upon the Feoffee and that which the Law compelleth him unto shall no way prejudice him So if there be Lord Mesne and Tenant and the rent due by the Mesne is behind and after the Tenant fore-judge the Mesne and the Lord receive the services of the Mesne which issue out of the Tenancy he shall not be barred of the arrearages which issued out of the Mesnalty so likewise if the rent be behind and the Tenant dye the acceptance of the services by the hand of the heir shall not bar him of the arrearages causa qua supra for in all these cases albeit the persons be altered yet the Lord doth accept the services of him who only ought to do them which being caused by act in Law it will not suffer him to be prejudiced thereby Co. ibid. 285. a 3. 18. If Tenant pur anter vie bring an Assize and Cestuy que vie dyeth Assise Waste Ejectione fiâ—me hanging the Writ here albeit the Writ were well commenced yet the Writ shall abate because no Assize can be maintainable for damages only but where an Action is begun and part of the Action determineth by Act in Law and yet the like Action for the residue is given there the Writ shall not abate but proceed As if an Action of Waste be brought against Tenant per anter vie and hanging the Writ Cestuy que vie dyeth the Writ shall not abate but the Plaintiff shall recover damages because if Cestuy que vie had dyed before any Action brought the Lessor might hade had an Action of Waste for the damages and the Act in Law shall not prejudice him So in an Ejectione firme if the terme incur hanging the Action yet shall the Action proceed for damages because an Ejectione lyeth after the terme for damages which he shall recover notwithstanding the terme be by Law determined If a Conspiracy be brought against two Co. ibid. a. 4. and one of them dye hanging the Writ neverthelesse it shall proceed Co. ibid. 309. a. 3. 19. Albeit a man may by the Law grant away a Seigniory Rent Atturnment Reversion Remainder c. yet such Grant shall not be good without Attornement that is the consent of the present Tenant of the land for which the old Books render this reason Si dominus attonnare possit servitium tenentis contra voluntatem tenentis tale sequaretur inconveniens quod possit eum subjugare capitali immico suo per quod teneretur sacramentum fidelitatis facere ei qui ei damnificare intenderet Co. ibid. 327. a. 2. 20. When Tenant in tail makes Feoffment or Entry taken away c. the Entry of the Donor who hath the Reversion and also of him in Remainder is taken away and they are put to their Action viz. A Formedon in Reverter for the one and in Remainder for the other And the reason why these alienations in these severall cases do make a discontinuance and put him in Reversion or Remainder that right had to his Action and take away his Entry is to the end that every mans
right may be preserved viz. to the Demandant his ancient right to the Feoffee or Purchasor the benefit of his Warranty which course is founded upon great reason and equity for the benefit of Warranty would be prevented and avoyed if the Entry of him that right had were lawfull hereby also the danger that many times happeneth by taking of Possessions is warily prevented by Law â—rant of the next avoyâ—â—nce 21. If a man seised of an Advowson in fee by his Deed granteth the next presentation to A. and before the Church becometh void Co ibid. 378. b. 4. by another Deed grants the next presentation of the same Church to B. the second Grant is void for A. had the same granted to him before and the Grantee shall not have the second avoydance by construction to have the next avoydance which the Grantor might lawfully grant because the Grant of the next avoydance doth not import the second presentation but if a man seised of an Advowson in fee take wife now by act in Law is the wife intitled to the third Presentation if the Husband dye before her And in this case if the Husband grant the third Presentation to another and dye the heire shall present twice the Wife shall have the third Presentation and the Grantee the fourth for in this case it shall be taken the third Presentation which he might lawfully grant And so note a diversity between a title by act in Law and by act of the party for the act in Law shall work no prejudice to the Grantee Warranty 22. If a man doth warrant Land to another without this word Heires his heires shall not vouch Co. ibid. 384. b. 4. And regularly if he warrant Land to a man and his heires without naming assignes his Assignee shall not vouch but if the Father be enfeoffed with warranty to him and his heires the Father enfeoffeth his eldest son with warranty and dyeth the Law giveth to the son advantage of the warranty made to his Father because by act in Law the warranty betwixt the Father and the son is extinct which act in Law shall not prejudice him Aâ—signment of Dower 23. An Assignment of Dower by a Disseisor Abator Intrudor Co. ibid. 35. a. 3. c. if there be no covin is good unlesse where it is prejudiciall to the Disseisee c. As if the Husband enfeoff the younger son with warranty and dyeth the eldest disseiseth the younger son and endowes the widow In this case the younger son shall avoid this Assignment for otherwise he shall lose his warranty But a Disseisor Abator Intrudor c. cannot assigne a rent out of the Land to her for her Dower to bind the Disseisee c 24. Vide 33. 5. Disagreement â—â—st be in presence 25. The Law gives favour to an agreement Co. l. 2. 69. a. 1. in Tookers case which tends to the advantage of the party for that may be done in his absence as well as in his presence but so it is not of a dis-agreement for that ought to be done in his presence because the Law conceives the party interessed may use perswasions to the other party and so induce him to agree so Attornement is good though the Grantee be absent Wardship 26. If there be Tenant for life Co. l 2. 93. b. 2. in Binghams case the Remainder in fee of Land holden by Knight-service and the Lord grants his Seigniory for life and after he in the Remainder in fee dyes his heir within age and after the Grantee for life of the Seigniory dyes and then the Tenant for life dyes he in Reversion of the Seigniory shall have the Ward So likewise if he in the Remainder dye his heire within age ut supra and after the Lord dye and then the Tenant for life dyes the heire of the Lord in this case shall have the Ward for the act in Law shall not prejudice any and his Executâ—r cannot have it because it was not a Chattell vested in the Testator Co. l. 3. 65. b. 3. in Penants case Acceptance of â—ent Bar â—â—tra 27. If a man having Rent-service or Rent-charge accept the Rent due at the last day and thereof make an acquittance thereby all the arrearages due before are discharged as it was adjudged in Hopkins and Mortons case Hill Rot. 950. in C. B. Vide 10. Eliz. 271. Dyer but if a man make a Lease for life rendring Rent or if there be Lord and Tenant by Fealty and Rent and the Rent is arreare by 2. years and after the Lessor or Lord disseise the Ter-tenant and then the Tenant recovers in an Assize and the rent which incurred is recouped in damages yet the Lord or Lessor shall recover in Assize the arrearages incurred before the Disseisin and the bar of the last years rent shall not be a bar of the former arrearages Ibid. b. 4. 28. If there be Lord and Tenant and the Rent is arreare Idem and the Tenant makes Feoffment in fee In this case if the Lord accept the Rent or service of the Feoffee he shall lose the arrearages in the time of the Feffor albeit he made him no acquittance for after such acceptance he shall not avow upon the Feoffor at all nor yet upon the Feoffee save onely for the services which incurred in his time as appears in 4 E. 3. 22. 7 E. 3. 8. 7 E. 4. 27. 28 H. 8. Br. Avowry 111. Howbeit In such case if the Feoffor dye although the Lord accept the Rent or Service by the hand of the Feoffee yet shall he not lose the arrearages for now the Lord can avow upon none but the Feoffee and that whereunto the Law compells a man shall never prejudice him So if there be Lord Mesne and Tenant and the Rent due by the Mesne is arreare and after the Tenant fore-judges the Mesne and the Lord receives the Services of the Mesne which now issue immediately out of the Tenancy yet shall he not be barred of the arrearages which issue out of the Mesnalty likewise if the Rent be arreare and the Tenant dye the acceptance of the Services by the hand of the Heire shall not bar him of the arrearages causa qua supra For in all these cases albeit the person be altered yet the Lord accepts the Rent and Services of him who onely ought by the Law to doe them Vide 4 E. 3. 22. 7 E. 3. 4. 7 E. 4. 27. 9 H. 8. Br. Avowry 111. before cited Neither shall acceptance of Rent bar a releife because that is as a blossome fallen from the Tree and a fruit or improvement of the Services Co. l. 3. 72. b. 2. in Westâ—ieâ— case 29. If a Sheriff dye and before another is made Escape one in execution breaks the Goale and goes at large this is no escape for when a Sheriff dyes all the Prisoners are in the custody of the Law
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
before it should be landed and weighed and that uncertainty being caused by no folly in the Defendant Fogassa there was great reason he should be excused and not made lyable to forfeit the Woad albeit he had not observed the strict words of the Statute in that case Rent-charge pro consilio impendendo 50. If a man hath a Rent-charge granted him Pro consilio impendendo Dyer 2. 2. 6 H. 8. and afterwards he is attainted of Treason and cast into Prison so as the Grantor cannot have accesse to him for his counsell yet he shall have the Rent during his Imprisonment for he may give counsell as well in Prison as at large and there is no fault in him that the Grantor came not at him A Sheep-biter 51. If a man hath a Dog that kills Sheep Dyer 25. b. 163. 28 H. 8. the Master of the Dog being ignorant of the Dogs condition he shall not be punished for it It is otherwise if he had notice of the Dogs condition and quality for then it may be imputed to his own folly and neglect See also Dyer 29. 195. 28 H. 8. Repaire of River-bankes 52. A Lease was made of a Meadow bordering upon the River of Exe in Devon by Deed indented Dyer 33 10. 22 29 H. 8. and the Lessee covenanted to sustaine and repaire the Banks of the River in paine of ten pounds and afterwards by reason of a sudden floud upon subversion of certaine Weares in Devon the Banks were decayed and perished c. and by the opinion of Fitz. and Shelley the Lessee shall be excused from the Penalty as if it had been of an House that had been burnt by lightning or thrown down by tempest which are the act of God and cannot be resisted Howbeit in this case he ought to repaire the Banks in convenient time Act of God 53. A man makes a Lease for years of Land and a stock of Sheep Dyer 56. 15. 35 H. 8. rendring rent and all the Sheep dye In this case the rent shall be apportioned because it was the act of God and no default or neglect of the Lessee Bond eaten with Mice 54. In debt upon an Obligation Dyer 59. a. 12. 36. H 8. if after non est factum pleaded and entred the Labels by the negligence of the Clerke are eaten off with Mice it seems this shall not prejudice the Obligee because it did not happen by his default Descent a totall Entry 55. A man being beyond Sea out of the Realme is disseised Dyer 143. 57. 3 4. P. M. and after he returnes into the Realme and then departs out againe during which time there is a Descent cast In this case if it cannot be proved that he had notice of the Disseisin when he was in the Realme it seemes this Entry is not taken away for by intendment of Law he could not have notice of the Disseisin at the time when it was done So if an Infant be disseised and at his full age he goes beyond Sea or takes Baron or is imprisoned during which time there is a Descent his Entry shall be taken away for this Laches after his full age but if he were within age when he did such an act it shall be otherwise Dyer 241 50 8 El. 56. Undue practise A Capias ad satisfaciendum returnable Tres Trin. being not served the Solicitor of the Plaintiff takes it againe of the Sheriff and one of the Prothonotaries Clerks makes the Tres Trin. Tres Mich. and then the Solicitor re-delivers it to the Sheriff unsealed viz. to the Sheriff of London who makes Warrant thereupon to a Serjeant who arrests the Defendant and afterwards the Writ is sealed And in this case albeit the offenders for this undue practise were committed to the Fleet yet afterwards it appearing upon examination that the Plaintiff was ignorant of the practise the Writ was received and the Defendant committâ—d also to the Fleet in execution Dyer 260. 24. 9 Eliz. 57. Partition against two the one confesses the Partition Partition and the other pleads to Issue and in the Record of Nisi prius the name of the Defendant was omitted by the negligence of the Clerk being written praedictus similiter without more Also the Iury was betwixt the Plaintiff and both the Defendants whereas one of them was not party to the Issue which errors being apparent were amended by the dirâ—ction of the Iustices of Nisi prius quod nota and so the Iury taken Dyer 318. 10. 15. El. 58. The Earle of Kent being reputed but an Esquire The Earle of Kent brings a Writ of Entry by the name of Esquire and the Pannell was returned now by the Heralds he was then newly declared Earle and thereupon he challenged the Array because there was no Knight in the Pannell but it was not allowed for that there was no default in the Sheriff he being commonly reputed an Esquire 150. Nemo debet rem suam sine facto vel defâ—ctu suo amittere Litt. S. 442. Co. Inst pars 1. 262. b. 1. If a man be disseised and he arraigne an Assize against the Disseisor and the Recognitors of the Assize chaunt for the Plaintiff An Assize and the Iustices of Assize will be advised of their Iudgement untill the next Assize c. and in the Interim the Disseisor dyes seised In this case this dying seised shall not toll the Entry of the Disseisee because the bringing of the Assize amounted to a continuall claime and Nemo debet rem suam sine facto vel defectu suo amittere Note that this is a Quaere in Littleton but is since adjudged for good Law Vide supra M. 149. Ex. 17. Litt. S. 443. Co. ibid 263. b. 1. c. 2. If an Abbot dye and during the vacation Descent tolls not Entry a man tortiously enters into part of the Land belonging to the Monastery and dyes thereof seised and afterwards a new Abbot is elected this Descent shall not toll the Entry of the new elected Abbot because this Entry and Descent was not occasioned by any act or default of or in the new Abbot the Land being during the vacation in abayance and custody of the Law and for that by the death of the former Abbot which is the act of God there was no person able to make continuall claime This is also a Quaere in Litt. It is so likewise of Dean and Chapter Mayor and Comonalty Master and Fellowes of a Colledge or any other Corporation aggregate of many where such a Descent happens when they want their head viz. Dean Mayor Mastor c. for then they are not in a capacity to make claime Also if an Vsurpation to a Church be had in time of Vacation this shall not prejudice the Successor to put him out of Possession but that at the next avoydance he shall present Litt. S.
588 589. Co. ibid. 323. b. 3. 3. If my Tenant who payes me a Rent-service in grosse Rent paid to a stranger atturnes and payes it to a stranger this shall not put me out of possession of the Rent albeit the stranger die and a Descent is cast for still I may distraine my Tenant for all in arreare and Nemo redditum alterius invito Domino precipere aut possidere potest Release of warranty 4. If one enfeoff two with warranty Co. ibid 393. a. 1. and the one release the warranty yet the other shall vouch for his moyety A Donative 5. If the Patron of a Church Prebend Chantery Chappell c. Co. ibid. 344. a. 2. Donative doth once present to the Ordinary and his Clerk is admitted and instituted it is now become presentable and shall never be Donative after and then also Laps shall incur to the Ordinary as it shall of other Benefices presentable but a Presentation to such a Donative by a stranger and admission and institution thereupon is meerly void Debt Execution 6. If the Defendant in debt dye in execution Co. l. 5. 86. b. 4. in Blumfeilds case the Plaintiff may have a new execution by Elegit or Fieri facias because the Plaintiff shall not be prejudiced nor the Defendant take benefit by the act or tort of the Defendant in not paying his debt when no default was in the Plaintiff he having pursued the due and ordinary course of Law Lord Mesne and Tenant 7. The King is Lord A. Mesne Co. l. 6. 6. a. 1. in Sir Jo. Molyns case and B. Tenant of the Mannor of D. B. commits treason and after Attainder an Office is found and the Mannor seised into the Kings hand afterwards the King grants the Mannor to C. and his heirs Tenendum de nobis heredibus successoribus nostris aliis capitalibus dominis feodi illius per servicia vide debita de jure consueta These are sufficient words to create a tenure in the Mesne as it was before the Attainder and Forfeiture and the tenure of the Mesne is thereby preserved for it is against reason and equity that the Mesne who did no wrong should lose his services Seisin of rent 8. Where payment of a rent by a Bayliff or Tenant for life Co. l. 6. 59. a. 4. in Bredimans case for years or at will workes a speciall prejudice to the Master or Lessor it shall not be accounted suffcient Seisin thereof as if the Lord hath not had Seisin of his rent within sixty years and the Tenant makes one his Bayliff generally of his Mannor In this case the Bayliff cannot without expresse command of his Master pay this remedilesse rent to the Lord or if he do it otherwise it worketh no Re-seisin thereof so it is also if the Tenant for life for years or at will pay such a rent without order of the Tenant of the Frank-tenement A grant without Attornement 9. If a man be seised of a Mannor part in Lease for life Co. l. 6. 68. a. 1. in Sir Moyle Finches case and other part in Lease for years and he levy a Fine to A. to the use of B. in taile with divers Remainders over In this case B. shall avow for rent or have an Action of Waste without Attornement for when a Reversion is setled in any in Iudgement of Law and he hath no possible meanes to compell the Tenant to atturne and no Laches or default in him in such case he shall avow or have Action of Waste without Attornment for the Rule is Quod remedio destituitur ipsa re valet si culpa absit Quare Impedit abate 10. A Quare Impedit against the Bishop and Incumbent Co. l. 7. 25. b. 4. in Halls case without naming the Patron shall abate for otherwise the Patronage shall be in that case recovered against him who hath nothing in the Patronage and it is against reason that he who is Patron should be dispossest and ousted of his Patronage when he is a stranger and no party to the Writ No damage without notice 11. A. by a writing purporting his Will Co. l. 8. 92 a. 3. in Frances case deviseth Land to B. and his Heires but afterwards without the knowledge of B. enfeoffs C. to the use of B. for life with divers Remainders over provided that B. disturbe not the Executors of A. from carrying away the goods A. dyes B disturbs the Executors the next in Remainder enters upon B. into the Land In this case albeit B. had made disturbance against the words of the Proviso yet he shall not thereby forfeit his terme without notice of the Condition for none shall lose any Estate or Interest which he lawfully hath without some act or default in himselfe and therefore in this case in as much as B. was a stranger to the Feoffment he shall not lose his estate without notice given him of the Proviso Quod nostrum est sine facto sive defectu nostro amitti seu in alium transferri non potest which accords with the opinion of Pophani in Mallories case in the 5. Report 113. b. that the Feoffee of Land or bargaine of a Reversion by Deed indented and inrelled shall not take advantage of a Condition for non-payment of rent reserved upon a Lease upon Demand thereof Co. l. 5. 113. in Mallories case without giving notice thereof to the Lessee The like 12. Co. l. 8. 92. a. 4. in Fraâ—ces case If the estate of the Lord of a Mannor cease by Limitation of an use whereby the use and estate thereof is transferred to another the demand of the rent of a Copy-holder who denies to pay it to him causeth no Forfeiture without giving notice to the Copy-holder of the alteration of the use and estate And so it was adjudged Hill 1. Jac. in Trespasse inter Beconshaw Plaintiff and Southcote and others Defendants So likewise the Bargainee of a Mannor by Deed indented and inrolled shall not take advantage of a Forfeiture of a Copy-holder for denyall of payment of rent without notice to him given of the bargaine and sale for the Law will never compell a man to take notice of acts done amongst strangers Co. ibid. 93. a. 1. or of any uncertainty upon paine of forfeiting a mans Estate or Interest but in such cases notice ought to be given to those that are to suffer the losse It is otherwise when a man binds himselfe to do a thing as to performe an Arbitrement to pay the ovus which such an Auditor assigned shall charge him withall or the like for in such case he takes upon him to doe it Error in a Fine 13. A Fine was levyed of a Mannor and other Lands Co. l. 5. 43. Bohuns case to the value of twenty Marks per annum so as the Kings-silver was forty shillings which was paid but in
hinders a Remittâ—r and the Discontinuee is disseissed and after the Disseisor lets the Land to the Baron and Feme for life this is a Remitter to the Feme but if the Baron and Feme were of covin and consent that the Disseisin should be made then is it no Remitter to the Feme because she is then a Disseiseresse and particeps criminis Howbeit if the Baron were onely of covin and consent to the Disseisin and not the Feme in that case the Feme shall be remitted So as here covin and consent of Baron and Feme doth hinder the Remitter of the Feme Co. ibid. 357. a. 4. and so covin doth in many cases choake a meer Right and the ill manner doth many times make a good matter unlawfull Co. ibid. b. 1. Co. l. 3. 78. a. in Farmers case 11. If a Disseisor Intrudor or Abator do endow a woman that hath lawfull title of Dower this is good and shall bind him that right hath but if a woman be lawfully entitled to have Dower and she is of covin and consent that one shall disseise the Tenant of the Land against whom she may recover her lawfull Dower all which is done accordingly In this case the Tenant may lawfully enter upon her and avoid the Recovery in respect of the covin Co. ibid. b. 2. 12. In all cases The like where a man hath a rightfull and just cause of Action yet if he of covin and consent do raise up a Tenant by wrong against whom he may recover the Covin doth suffocate the right that the Recovery though upon good title shall not bind or restore the Demandant to his right So if Tenent in tail and his Issue disseise the Discontinuee to the use of the Father and the Father dyeth and the Land descendeth to the Issue in this case the Issue is not remitted against the Discontinuee in respect he was privy and party to the wrong but in respect of all others he is remitted and shall deraigne the first Warranty And so note a man may be remitted against one and not against another The like 13. A. and B. Ioint-tenants are intitled to a reall Action against the Heire of the Disseisor A. causeth the Heire to be disseised Co. ibid. against whom A. and B. recover and sue execution In this case B. is remitted for that he was not party to the Covin and shall hold in common with A. but A. is not remitted causa qua supra False Plea 14. He that will have the benefit of the Statute of Glocester Co. ibid. 366. a. 3. Co. l. 8. 53. a. 3. in Sims case cap. 3. 6 E. 1. must plead the truth of his case viz. the Warranty acknowledge the title of the Demandant and pray that the advantage of the Statute may be saved to him and then if afterwards assets descend the Tenant upon this Record shall have a Scire facias c. But if the Tenant plead the Warranty and plead further that assets descended c. and the Demandant taketh Issue that assets descended not c. which Issue is found for the Demandant whereupon he recovereth In this case the Tenant albeit assets do afterwards descend shall never have a Scire facias upon the said Iudgment for that by his false Plea he hath lost the benefit of the Statute Outlawry by 〈◊〉 15. Imprisonment is a good cause to reverse an Outlawry Co. Inst pars 1. 259. b. 2. if it be by Processe of Law in invitum but if it be by consent and covin such Imprisonment shall not avoid an Outlawry because upon the matter it is his own act Attornment 16. Where the Tenant hath notice Co. l. 2. 68. a. 2. in Tookers case that the Seigniory was granted but to one or that the Reversion was granted but of one Acre or that the Reversion was granted for fewer years or that the Reversion was granted for life onely with no Remainder over whereas it was in any of the cases otherwise in such case generall Attornement without true notice of the Grant is void for the usuall pleading which intent is the oracle of the Law is to which Grant he attorned and therefore if he hath not notice of the Grant or which is all one true notice thereof the assent which he gives to it which in truth is but part of the Grant the Law which abhors falsehood will not construe to be Attornment to the true Grant Fine by covin to bar 17. A man possessed of divers parcells of Land within the Mannor of D. whereof some he held for years others at will others by copy Co. l. 3. 77. b. 2. in Farmers case in Margaret Podgers case Co. l. 9. 105. b. 1. and some also in fee demiseth the whole to another for life and then levies a Fine to the Tenant for life and his Heires of so many Acres as amount to the whole Land continues Possession and payes the rents to the Lord five years passe yet in this case the Lord is not barred by the Statute of 4 H. 7. cap. 24. For the makers of that Statute did never intend that such a Fine levyed by fraud and practice of Tenant for years at will or by copy which pretend no title to the Inheritance but intend the disherison of their Lessors or Lords should bar them of their Inheritance and this appeares by the preamble of the said Act where it is said that Fines ought to be of greatest strength to avoid strifes and debates but when Tenant for years at will or by copy make Feoffment by assent and covin that a Fine should be levyed this is not to avoid strife and debate but by assent and covin to begin and stir them up And therefore that Statute did not intend to establish any such estate made and created by such fraud and practice which being fraudulent is upon the matter no estate at all c. vide pl. ibid. A fraudulent â—â—e of goods 18. The grant of goods albeit it be made upon good consideration Co. l. 3. 80. b. 4. in Twines case yet if it be not bona fide but hath trust in it or other badges of fraud as if the Grantor keep them still in his own Possession useth them as his own in disposing of them or otherwise or if they be Sheep and the Grantor brand them with his own mark or when he grants all his Goods and doth not except so much as his wearing apparrell or the like such a Grant is within the Statute of 13 Eliz. 5. and upon a Fieri facias at anothers Suit the Sheriff may seise them as if no Grant at all had been made thereof Vide pl. in that case to the like purpose Queritur ut crescunt tot magna volumina Legis In promtu causa est crescit in orbe dolus Co. l. 4. 26. a. 1. in Kite and Quientons case 19. Pretenced titles of
made twenty moneths after yet this Warranty begins by Disseisin so the intent maketh the act to enure otherwise then it would do for when covin is mixt with the truth it makes all unsavory So in Wimbish and Talboies case in the Com. Eliz. Talbois joyning by covin with W. Talbois in being taken by nihil dicit he was to lose her estate by force of the Stat. of 11 H. 7. and the Issue in tail might before that Statute falsifie a feined Recovery by covin 38. The 11 H. 7. 20. Pl. Co. 59. b. 1. ibid. and all other Statutes made for the suppressing of fraud shall be extended by equity the words of the Statute of Marlebridge cap. 6 are de his qui primogenitos haeredes suos infra aetatem existentes feoffare solent and yet if the first be dead and he enfeoff his second Son which is his heire that is within the equity of the Statute or if he levy a Fine to him which is matter of Record that is also within the equity of the Statute albeit the Statute speaks of Feoffment And the reason is because covin is alwayes abhorred in our Law and Statutes made for the suppression thereof are made for the publick good and therefore shall be extended by equity In like manner 1 H. 7. cap. 1. which gives a Writ of Formedon in Remainder against the perner of the profits was made for the suppression of covin for a Feoffment made to persons unknown to defraud those that right had Pl. Co. 81. b. 4. in Partridge and Stranges case was great covin and deceit in the Law and therefore a Scire facias to execute a Remainder shall be maintainable against the pernor of the profits as it is adjudged in 14 H. 7. fo 31. And to these Statutes and the like made for the suppression of fraud and covin are alwayes to be extended by equity and to have a favourable interpretation and construction And therefore the Statute of 32 H. 8. cap. 9. shall be also extended by equity Co. l. 5. 80. a. in Fitzharberts case being ordained for the suppression of fraud and covin in buying of pretenced titles so that Leases for years as well as higher estates shall be intended by it Warranty 39. The Father Tenant for life the Remainder to the Son and Heire apparent in tail Leases to A. for years with intent that A. should enfeoff B. unto whom the Father should release with Warranty all which is done accordingly This is a Warranty that commenceth by Disseisin for albeit the Warranty be not made at the time of the Disseisin which was upon the Feoffment to B. yet by construction of Law it shall be adjudged to be Warranty that begins by Disseisin by reason of the practice and covin betwixt the confederates for if the Father had made the Feoffment to B. with Warranty and had dyed this Warranty had barred the Heire c. vide pl. ibid. â—ttaint 40. A false Verdict is a contradiction in it selfe Co Inst parâ— 1. 128. 4. and so odious in the Law that in an Attaint Outlawry in the Plaintiff cannot be pleaded in disability of the person 41. The Statute of 31 Eliz. 6. Hob. 75. to prevent Simonie is to be largely expounded though penall The King against the Bishop of Norwich 158. Jus Fraus numquam Cohabitant Co. l. 10. 45. a. 4. in Jennings his case 1. The Statute of 14 Eliz. cap. 8. Recovery by Tenant in taile doth not extend to preserve any Reversion or Remainder expectant upon an estate taile or where the Tenant for life is impleaded and Tenant in tail is vouched for the title of the Act is For avoiding of Recoveries suffered by collusion by Tenant for life c. but a Recovery cannot be said to be by collusion where Tenant in tail is in the Recovery either Tenant in Fait or Tenant in Law as Vouchee for the Law as an incident to his estate hath made the Land and all Remainders and Reversions subject to his pleasure and he hath right and power to bar them all and Jus Fraus numquam Cohabitant And therefore the title of the Act being For avoyding of Recoveries by collusion c. it cannot extend to a Recovery where Tenant in tail is party or privy Pl. Co. 51. a. 2. in Wimbish and Talboies case 2. When truth is mixed with covin that wicked hearb or covin with truth Truth Covin that conjunction and mixture makes all bitter and unsavory and goodnesse is perverted into wickednesse for they cannot continue together no more then fire and water Dyer 55. 9. 35 H. 8. 3. A Verdict is said to be veri dictum Verdict Error which ought to have truth in it and no semblance of fraud or partiality to either party And therefore if a Iury before their agreement eat or drinke at the charge of either of the parties it is good cause of Error to reverse the Iudgement upon such a Verdict for there cannot be truth in such a Verdict which hath such a badge of fraud and falsehood because such practice implyes partiality and suspition 159. Quando aliquid prohibetur fieri ex directo prohibetur per obliquum Litt. S. 361. Co. Inst pars 1. 223. a. 4. 1. If a Feoffment in fee be made upon Condition A Feoffment upon Condition that the Feoffee shall not alien that the Feoffee shall not enfeoff I. S. or any of his Heires or Issues c. this is good for he doth not restraine the Feoffee of all his power howbeit if he enfeoff I. N. with intent and purpose that he should enfeoff I. S. some held that it is a breach of the Condition So if a Feoffment be made upon Condition that the Feoffee shall not alien in Mortmaine this is good because such alienation is prohibited by Law and regularly whatsoever is prohibited by Law may be prohibited by Condition but in this case if the Feoffee enfeoff I. S. with intent that he shall alien the Land in Mortmaine it seemes to be a breach of the Condition In ancient Deeds of Feoffment in fee there was usually this clause Quod licitum sit donatorio rem datam dare vel vendere cui voluerit exceptis viris religiosis Judaeis Co. ibid. 282. a. 3. 2. In an Action upon the case Innovation prohibited the Plaintiff declared for speaking of slanderous words which is transitory and laid the words to be spoken in London the Defendant pleaded a Concord for speaking of words in all the Counties of England save in London and traversed the speaking of the words in London the Plaintiff in his replication denyed the Concord whereupon the Defendant demurred and Iudgement was given for the Plaintiff for the Court said if the Concord in that case should not be traversed it would follow that by a new and subtile invention of pleading an ancient Principle in Law that for
Disclaimer Error 2. If the Tenant disclaime Co. l. 8 61. b. 4. in Beechers case he shall not have a Writ of Error against his Disclaimer because by his Disclaimer he hath barred himselfe of his right in the Land for the words of the Disclaimer of the Tenant are Nihil habet nec habere clamat in illa terra nec die impetrationis brevis originalis c. habuit sive clamavit sed aliquid in illa terra habere deadâ—ocat disclamat And against this he cannot have a Writ of Error to have restitution of the Land against such Disclaimer Vide 6 E. 3. 7. F. N. B. 22. c. 170. None shall take exception to an Error or Act which operateth to his own advantage Co. l. 3. 69. b. 4. Lincoln Colledge case 1. C. and F. Ioynt-tenants for life Collaterall Warranty and to the heires of the body of C. intermarry and have Issue E. who after the death of C. disseiseth F. and suffers a common Recovery F. releaseth to the recoverors with Warranty and dyes also E. dyes without Issue and R. as heire male of the body of C. brings his Formedon in Descender and here the question was whether or no the collaterall Warranty of F. did bar the Demandant or that the heire in tail might have the Land by force of the Statute of 11 H. 7. 20 which gives Entry to the next Heire upon Discontinuance c. of the Inheritance of the Husband by the Feme But it was resolved that this case was out of the intention of the said Act because the intention of that Act was to restraine such women to make Discontinuance Warranty or Recovery in bar or prejudice of the heire in taile or of them in Remainder c. but when the heir in tail himself conveys assures the Land to others the release or confirmation of the Feme with Warranty is but to make perfect and corroborate the estate which the heire in tail hath made and therefore such Warranty is not restrained by the said Act for it shall be intended for the benefit of the heirs in tail and not to their prejudice And this is also the reason why a common Recovery in respect of the intended recompence was not restrained by the Statute of West 2. Co. l. 8. 59. a 3 in Beechers case 2. For the reversall of a Iudgement a man shall not assigne for Error that which maketh for his advantage Assignment of Error as to alleadge that he was essoined where he ought not to have been essoined or that he had a longer day then the common day or that he had ayd granted to him where it was not grantable or the like Vide 7 E. 3. 25. per Herle 8 H. 5. 2. 11 H. 4. 8. F. N. B. 21. f. Co. l. 11. 56. a. Benhams case 3. M. brings a Writ of Annuity against B. and they being at Issue Insufficient Verdict the Iury found for the Plaintiff and also the arrearages but did not assesse any damages or costs whereupon the Verdict was imperfect neither could it be supplyed by a Writ to inquire the damages Howbeit afterwards the Plaintiff released his damages and costs and thereupon had Iudgement whereupon the Defendant brings a Writ of Error and assignes for Error the insufficiency of the Verdict but the Iudgement was affirmed because the Plaintiffs release of the damages and costs was for the Defendants benefit and advantage and therefore ought not by him to be excepted against Vide 22 Eliz. Dyer 369 370. Where in a Writ of Ejectione Custodiae terrae haeredis the Iurors assessed damages intirely which was insufficient for it lyeth not for the heire yet the Plaintiff released his damages and had Iudgment for the Land Note that insufficient Assessment of damages and no Assessment is all one F. N. B. 22. d. 25. c. 4. It is not Error to suffer one to make an Attorney in an Action Attorney in which he ought not to make an Attorney because that is for his advantage 171 Nemo tenetur armare adversarium suum contrase Challenge 1 He that challengeth a Iuror for the hundred or for Cosinage Co. Inst pars 1. 157. a. 2. 4. must shew in what hundred he hath no land and how he is of kin and shall not drive the other party to shew it 2 The Plaintif in a Replevin pleads in barr of an Avowrie for damage fesant Co. l. 5. 78. b. 3. Grayes case that he hath common of Pasture by custom in the place where c. belonging to his Copyhold which custom was traversed and it was found that he had such Common there but withall that every Copyholder had used to pay time out of mind c. pro eadem communia unam Gallinam quinque ova annuatim and it was adjudged that upon this verdict the Plaintif should have Iudgement albeit he omitted in his barr the yearly payment of the Hen and five eggs And the reason was because the Plaintif was not bound to shew more than what made for him and tended to his advantage 172 It favoureth Diligence And therefore hateth Folly and Negligence Waste 1 Waste may be done in houses by suffering them by negligence to be uncovered whereby the spars fasters planchers Co. Inst pars 1. 51. a. 2. b. 2. or other timber of the house become rotten So likewise if he suffer a wall of the sea to be in decay so as by the flowing and reflowing of the sea the Meadow or Marsh adjacent is surrounded whereby the same becomes unprofitable Also the burning of an house by negligence or mischance is waste Waste 2 A prohibition of waste did lye at the Common law against tenant by the Curtesie tenant in Dower and a Guardian in Chivalry Co. ibid. 53. b. 4. because they were in by the Law but not against tenant for life or years because they come in by the Act of the lessor himself and therefore it is imputed to his own folly and negligence if upon granting the term he made not sufficient provision against committing of waste for in that case the Law did not aid him Vide Co. l. 4. 62. b. 3. in Herlakendens case Co. l. 5. 13. b. 3. in the Countess of Salops case Guardian in soccage 3 If Guardian in soccage marry the heir under 14 years of age without a convenient fortune Co. ibid. 88. a. 3. Littl. §. 123. he is compellable to make it good upon his accompt for it will be imputed to his own folly that he married him without provision of a convenient portion answerable to his estate Goods gaged 4 If goods be delivered to one as a gage or pledge Co. ibid. 89. a. 4. and be afterwards stollen from him yet he shall be discharged of them because he hath a property in them and therefore he ought to keep them no otherwise than as his
and bounded by the Rule of Law and reason for discretion is a science of discerning truth from falshood right from wrong shadows from substance and betwixt equity and colourable glosses and pretences and not to doe according to their own wills and private affections Co. l. 6. 50. b. 4. in Boswels case 5 If tenant in tail suffer an usurpation and die Tail Usurpation the issue in tail is remedied by the equity of the first branch of Westm 2. cap. 5. because after the Statute of Westm 2. cap. 1. which created the estate tail and was made the same Parliament the issue in tail could not have a writ of right of advowson and therefore shall be aided by the said first branch as it is held 43 E. 1. 24 25. Vide 26 Ass pl. 4. 8 E. 2. Quare Impedit 167. 24 H. 6. 28. Co. l. 8. 40. a. 4. Grieslyes case 6 Amerciaments Amerciaments whether they are to be affeared in Inferiour Courts by the sutors or in Superiour Courts by the Iudges they are all termed Misericordia because whosoever hath the affearance of them ought to use great moderation Co l. 11. 44. a. 2. in Rich. Godfreyes case 7 The Reasonableness of fines in Courts distresses Fines Distress c. amerciaments and fines at the will of the Lord shall be adjudged by the Iustices and if they be outragious and excessive and by consequent injust and against the Law they have power to moderate them F. N. B. 75. a. c. 8 When an amerciament is excessive or outragious in a Court Baron or other Court which is not a Court of Record for trespass Amerciament or any other offence the Law hath ordained the writ of Moderata Misericordia to be directed to the Lord of the same Court or his Bailifs commanding them to take a moderate amerciament according to the quantity of the trespass c. and thereupon the party grieved may have an Alias Pluries and Attachment if he please See the Statutes of Magna Cart. cap. 14. and Westm 2. cap. 6. F. N. B. 103. b. 9 If a man be bound in a statute merchant Statute Merchant and after make feofment of parcel of his lands to one man and of another parcel thereof to another and the recognisée sues execution upon the Statute and hath execution against the one feoffée here this feoffée shall have an Audita querela against the other feoffée to shew cause why the recognisée hath not execution against his lands as well as against the lands which he hath c. Pl. Co. 17 a. 4. c. in Fogassaes case 10 Both the matter and words of penal Laws shall be taken strictly Penal Laws and not extended by Equity in prejudice of them against whom the penalty is to be inflicted As the Statute of Westm 2. cap. 11. ordains that if Accomptants shall be found in arrear before Auditors Arrestentur Corpora eorum et per testimonium Auditorum ejusdem Compoti mittantur et liberentur proximae Gaolae Domini Regis in partibus illis quousque c. Here the Statute is general that they should be imprisoned by the Auditors and saith not at what time so as by the Letter of the Statute the Auditors may imprison the Accomptants when they please after their accompt yet in 27 H. 6. 8. Tit. Barr 44. Br. Accompt 6. In debt upon arrerages of accompt it is adjudged that if the Auditors do not commit the Accomptant to prison presently after the accompt they can never commit him afterwards because the Statute is penal to him that is to be imprisoned c. Pl. Co. 67. a. 1. Dyve and Manâ—ngh 11 At the Comon Law before the Statute of 23 H. 8. 10. the Sherif had commandment and authority to let to bail such as were mainpernable Bail for the Common Law which is Common reason would alwayes have persons taken by writ bill or warrant upon personal actions or Indictments of trespass to be enlarged by sureties for that in a manner it stands indifferent whether they are guilty or no and then if they should not be guilty and yet restrained of their liberty it would be a great inconvenience which the Law would never suffer 12 Hob. 14. Sir Dan. Norton against Simmes 184 Restraineth a general Act or Rule and sometimes also a Particular contract if there be found any mischief or Inconvenience in them Wife no witness â—or her â—uâ—band 1 Regularly any person of competent age and discretion Co. Inst parâ— 1. 6. b. 4. and against whom there is no just exception by reason of perjury conviction of felony or the like may be admitted a witness in any cause yet in 10 Jac. in Com. Banc. in a case upon the Statute of Bankrupts it was adjudged that a wife cannot be produced as a witness either against or for her husband for that it might be a cause of implacable discord and dissention betwéen the husband and wife and a mean of great inconvenience Tender of marriage Co. ibid. 79 a. 3. 2 By the Statute of Westm 1. cap. 22. Tender of Mariage to an heir female before the age of fourtéen is void which is to be understood where the Lord may hold the land the two years after the 14 for within that time the Statute appointeth the tender but where the Lord cannot have the two years he may tender a marriage to the heir female at any time after the age of 12. and before 14. for so he might have done at the Common Law Frankmarriage Frankalmoâ—gn Co. ibid. 97. a. 4. Littl. §. 138. 3 An Argument drawn from inconvenience is forcible in Law and the Law that is the perfection of Reason cannot suffer any thing which is inconvenient And therefore the Law saith It is better to suffer a mischief viz. peculiar to one than an inconvenience that may prejudice many Frankmarriage is so called because it ought to be fréed of all service to the donor until the fourth degree be past yet the tenant in Frankmarriage shall make fealty to the donor for it were inconvenient that he should hold land and do no service at all for it So likewise tenant in Frankalmoign albeit he be fréed from all temporal service yet he shall say divine service for his Lord for it were inconvenient that he should do no service at all for the land he holds of his Lord. All land holden Co. ibid. 98. a. 1. 4 If an Abbot holds in Frankalmoign and he and the Covent under their Common Seal alien the land to a Lay-man In this case the secular man shall make fealty albeit the Alienors held not by fealty nor any terrene service but only by Spiritual services and those uncertain for in such case the Law createth a new Temporal service out of the land to be done by the Alienee wherewith the Abbot was not formerly charged
the writ should by the non-return of the writ be tortious then the Sherif will never find buyers to whom he may sell any defendants goods by force of any writ of execution which would be inconvenient and great delay of executions which are the fruit and life of every sute 30 If a rent be granted out of the Manor of Dale Rent charge and the grantor grant over Co. l. 7. 24. a. 3. Buts case that if the rent be behind the grantee shall distrain for the same in the Manor of Sale this is no grant of the rent but only a penalty in the Manor of Sale for if the grantée should bring a writ of Annuity that would only extend to the Manor of D. for upon the grant of the distress in the Manor of Sale no writ of Annuity lyeth because the Manor of S. is only charged and not the person of the grantor as to that And therefore the bringing of the writ of Annuity cannot discharge the Manor of S. of any rent And so the Law by construction against the words and intention of the parties shall doe an injury to the grantor to charge him twice which were inconvenient Co. l. 9. 85. a. 4. in Connys case 31 In a writ of Mesne the Paroll shall not demurr for the nonage of the plaintif because it is not reason Parol demur nonage that the Infant should be distrained for the services of the Mesne during his nonage and yet he to have no remedy until his full age but in regard his nonage shall not privilege him from the payment of the rent during his nonage the Law will also give him remedy during that time Writ of Error 32 These two Rules in Law are regularly true Co. l. 11. 41. a. 1. in Metcalfs case 1. That a writ of Error lyeth not upon an award until the principal judgement be given 2. That it lyeth not until the whole matter in the original be determined yet each of these have exceptions For as to the first in Trin. 18 H. 7. in B. R. Rot. 3. E. was indicted for the death of M. before Iustices of Peace in the County of Lincoln whereupon a Capias was awarded and thereupon also an Exigent after which E. dies before any Attainder upon which award of the Exigent his executors bring a writ of Error and it was adjudged that the writ of Error did well lie because by the award of the Exigent his goods and chattels were forfeit and of such awards which tend ad grave damnum of the party a writ of Error lyeth sic de similibus As to the second you shall find in 36 H. 6. Fieri fac 3. That in debt against divers by several praecipes if there be error in the Iudgements against one of them he shall have a writ of Error for in Originals wherein there are several Counts and Error is against one he shall have a writ of Error and the record of his Count and the pleading c. shall be severed from the original and removed into the Kings Bench and yet the Original shall still remain in the Common Place for it would be inconvenient and prejudicial in that case to stay until judgement be given upon the whole original Howbeit where there is one original and one Count he cannot have a writ of Error untill all be determined for the record cannot be in the Kings Bench and the Com. Pl. all at one time Collusion 33 It is provided by the Statute of Marlebridge cap. 6. that the Lord by Knight service shall not lose his custody by feoffment made by Collusion Co. l. 11. 77. b. 3. in Magdalen Colleges case veruntamen non licet eis hujusmodi feoffatos sine Iudicio disseisire fed brevia habeant de hujusmodi custodia sibi reddenda yet if the tenant enfeoff the Villein of the Lord upon collusion the Lord may enter and expell him and shall not be put to his action as it is held in 33 H. 6. 16. for the general words of the Act shall not enable the Villein who is disabled against his Lord by the Common Law and if the Lord should bring an action against him according to the letter of the Act he shall be thereby enfranchised which would be a prejudice to the Lord and was never intended by the Makers of that Act. Intent of the Law performed no breach 34 In every Law there are some things which when they happen Pl. Co. 18. a. 4. in Fogassaes case 19 b. 1. a man may break the words of the Law and yet not break the Law it self and such things are exempt out of the penalty of the Law albeit they are done against the letter of the Law for the breaking of the words of the Law is not the breaking of the Law so as the intent of the Law is not broken and when the words of the Law are broken for the avoiding of greater inconveniences For example it is against the Law for any man to assault bind or beat another yet in the 22. Book of Assises pl. 56. If a man be mad and out of his wits whereby he doth or is likely to do great hurt other men may assault bind and beat him too and justifie it by Law to prevent the hurt and mischief which he may do in that condition So the Statute of Marlebridge cap. 4. prohibits generally that none shall convey a distress out of one County into another yet it is adjudged in 1 H. 6. Tit. Distress 1. that if one hold land of a Manor in another County the Lord may distrain and bring the distress from the land holden of the Manor into the County where the Manor is and this is for the avoiding of a mischief inconvenience for it would be great damage to the Lord if he might not bring the distress to his Manor for the avoidance whereof the Law is not offended albeit the letter of the Law is not observed In like manner there was a Law amongst the Romans that whosoever scaled the walls in the night should be condemned to die yet in the time of warr one scaled the walls in the night to discover the approach of the Enemy and he was by the Senate not only discharged of death but besides was well rewarded for that his service to the Commonwealth for although he thereby infringed the words of the Law yet the grave Senators expounded it to be no breach of the intent of the Law because that Law was made to prevent hurt and danger and not to inhibit benefit and safety to the City So likewise in Fogassaes case the incertainty of the word being caused for the avoiding of a great inconvenience viz. the loss of many mens lives shall excuse the incertainty of the agreement with the Collector Pl. Co. 100 b. in matters of the Crown 35 In an appeal of murder against five Trial. if one Venire
of Record the lessee shall lose all advantages which are not so claimed of Record Prisoners Sherif 14 The Law hath so great a regard and care of executions Co. l. 3. 72. a. 2. in Westhies case which are the fruit and life of every sute that notwithstanding they be matters of Record and the Letters Patents granted to the new Sheriff and the writ of discharge and writ of delivery to the old Sherif yet until the prisoners are delivered unto the new Sheriff they still remain in the custody of the former Sheriff and all this to prevent a new sute and trouble for the recovery of that which is already determined by Law Sâ—ander 15 It one exhibit articles to Iustices of Peace against another Co. l. 4 14. b. 1. in Cutler Dixons case containing great abuses and misdemeanors not only touching the petitioner but many others also and all this to procure him to be bound to the good behaviour In this case the party accused for any matter contained in such articles shall not have an action upon the case because therein the party complainant pursues the ordinary course of Iustice and the Law will not permit actions in such cases lest such as have good cause of complaint should be deterred from doing it for fear of sutes and infinite vexation Common 16 In case of Common by reason of vicinage Co. l. 4. 38. b. 1. in Tirringhams case the one may inclose against the other for he that hath such a Common cannot put his cattel into the land of the other but the Cattel ought to be put into the land where they have Common and then if the Cattel stray into the other land they are excused of trespass by reason of the antient usage which the Law permits to prevent sutes which might arise if actions should be brought for every such trespass when there is no separation or inclosure betwixt their Commons Vide Co. l. 7. 5. b. Sir Miles Corbets case Execution of process 17 In all cases when the processe concerns the King Co. l. 5. 92. b. 3. in Semayns case the Sheriff or other officer upon refusal after demand to open the door may break open the door of the house or use other means to get in to doe execution But in case of a common person the Law doth not permit the Sheriff c. upon request made and denyal as aforesaid to break into the house of the defendant to execute any processe at the sute of any Subject for the great inconvenience that might ensue thereupon because if men as well in the night as in the day should have their houses which indeed are their Castles broken open upon pretence thereof great mischief and damage might fall out for by colour thereof upon any feigned sute the house of any man at any time might bâ— broken open when the defendant might be arrested elsewhere and so men should not be in safety and repose in their own houses And albeit the Sheriff be an officer of great authority and confidence yet it appears by experience that the Kings writs are many times executed and served by Bailifs wâ—o are generally persons of little or no value and therefore not to be trusted with the breaking open and ransacking of houses upon every slight occasion See Co. l. 11. 82. a. 4. Lewes Bowles case Co. l. 5. 101. b. 3. in Penruddocks case 18 If a nusance be levied to the prejudice of anothers franktenement Nusance the Law doth permit the party grieved to abate the nusance before he suffer any prejudice thereby and by that means prevent the damage before he be prejudiced by it Per Popham cum tota Curia Co. l. 5. 115. b. 3. in Folâ—ambs case 19 To prevent any further waste Waste Estrepement a writ of Estrepement lyeth in an action of waste at any time as well before Iudgement as after Iudgement and before execution Co. l. 6. 51. a. 3. in Boswels case 20 To prevent Simonie or any thing that might savour thereof Simonie the Plaintif in a Quare Impedit before the Statute of Westm 2. cap. 5. did at the Common Law recover no damages for the Law doth so abhorr Simonie that it giveth to the Patron no recompence either for his presentment or for his disturbance thereof Co. l. 6. 74. b. 2. in Sir Drue Druries case 21 In Sir Drue Druries case in the 6. Report the Iustices said Wardship Knighthood that it did behoove them to have good consideration in all cases depending before them nor only of the present case in question but likewise of the consequences thereof viz. what general prejudice might happen thereupon either to the King or the Subject So if a ward should be knighted after the grant of the wardship under the Great Seal if his knighthood might excuse him from the value of his marriage when he might be knighted not only by the King but likewise by his Lieutenants in Ireland or elsewhere this would tend very much to the damage both of the King and Subject for none would then purchase any wardship upon such uncertainties and therefore in that case his knighthood shall not excuse him from the value of his marriage which was vested in the Lord upon his ancestors death Co. l. 7. part 1. 18. b. 2. in Calvins case 22 The Common Law by inhibiting an Alien born to be capable of Inheritance in England prevents thrée great inconveniences Alien for otherwise 1. The secrets of the Nation might thereby be discovered 2. The revenues thereof being indeed the sinews of warr and the ornament of peace might be taken and enjoyed by Strangers born 3. It might at last bring the Nation to ruine and destruction 1. Tempore belli for then Strangers might fortifie themselves in the heart of the Realm not much unlike the Trojan horse in Virgil 2. Tempore Pacis for they having gotten into their hands a great part of the Inheritance of the Commonwealth and not being capable to serve of Iuries there would be a failer of Iustice c. Co. l. 9. 56. b. 2. in the Poulters case 23 To prevent mischief and oppression in the Commonwealth Conspiracy Conspirators are Inditable by the Common Law albeit they put nothing in execution by any overt act as if they shall be found guilty of conspiring to indict and acquit any though they put nothing thereof in ure Co. l. 9. 69. â— 4. in Mackallyes case 24 To prevent escapes upon arrests Arrests the Law doth not enjoyn a Serjeant or Bailif sworn and commonly known though not by the party arrested to shew his mace or warrant nor a special Bailif to shew his warrant without demand lest in the mean time the party arrested may escape but it shall be warning and warrant enough to say I Arrest you Things in action 25 To prevent multiplication of controversies and
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
estate is created by Law Pleading a condition Lord. Tenant by curtesie shall not plead a condition to defeat a fréehold without shewing of it because the déed doth belong unto him and therefore it is presumed that he hath it in his custody So likewise a Tenant by the Curtesie shall not plead a condition made by his wife and a re-entry for a condition broken without shewing the déed for albeit his estate he created by Law yet the Law doth presume that he had the possession of the déeds and evidences belonging to his wife Co. ibid. 237. b. 3. 11 One of the reasons why a descent taketh away the entry of him that right hath is Descent a toll entry for that the heir of the disseisor cannot suddenly by intendment of Law know the true state of his title And in regard many advantages follow the possession and tenant the Law taketh away the entry of him that would not enter when he might upon the Ancestor who is presumed to know his title and driveth him to his action against the heir who by intendment may be ignorant thereof Co. ibid. 238. b. 4. 12 At the Common Law Writ of right if Lands were conveyed out of the degrées the demandant was driven to his writ of right for that in regard of such long possession in so many mens hands which the Law doth ever respect and favour the Law did presume that the present tenant had best right to the Land But this is now altered by the Statute of Marlebr cap. 29. which gives a writ of entry in the Post in that case 13 Max. 22 31. Littl. §. 440. Co. 261. 14 If a descent be cast when the disseisée is out of the Realm Descent out of the Realm albeit he be not there in the Kings service that descent shall not take away the entry of him that right hath because he that is out of the Realm cannot by intendment of Law have conusance of the disseisin no more than a thing done out of the Realm can be tried within the Realm by a Iury of 12 men but it is otherwise if such disseisee were within the Realm at the time of the disseisin or the descent cast Co. ibid. 194. b. 4. 15 In a writ of right or an Appeal when the tenant or appellee failed of witnesses evidences or other proofs Battel the Law did institute trial by Battel because the presumption of Law is that God will give victory to him that hath right Co. ibid. 344. b. 1. 16 At the Common Law if the Church were once full Plenarty the Incumbent could not be removed and plenartie generally was a good plea in a Quare Impedit or Assise of Darrein presentment and one of the reasons hereof was for that the Law intended that the Bishop who had Cure of souls within his diocess would admit and institute an able man for the discharge of his duty and his own and that the Bishop would do right to every Patron within his diocess besides Institution is a Iudicial act and in nature of a Iudgement and therefore intended to be just Co. ibid. a. 4. Co. ibid. 294. a. 3. 17 The four Knights Electors of the grand Assise are not to be challenged for that in Law they be Iudges to that purpose Challenge and Iudges and Iustices cannot be challenged because they are intended by Law to do right And for the same reason it is that Noblemen who in case of High Treason are to pass upon a Peer of the Realm cannot be challenged because they are Iudges of the fact and therefore by intendment of Law will give a righteous judgement Res Iudicata pro veritate accipitur Co. ibid. 373. a. 4. 18 If rent be behind for 20 years No averment against presumption in Law and the Lord make an acquittance for the last that is due all the rest are presumed to be paid and the Law will admit no proof against this presumption So if a man be within the four Seas and his wife hath a Child the Law presumeth that it is the child of the husband and against this presumption the Law will admit no proof If a man that is innocent be accused of felony and for fear flyeth for the same albeit he judicially acquitteth himself of the felony yet if it be found that he fled for the felony he shall notwithstanding his innocency forfeit all his goods and chattels debts and duties for as to the forfeiture of them the Law will admit no proof against the presumption in Law grounded upon his flight Vide 79. 1. War anty 19 In a feoffment by deed Co. ibid. 383. b. 2. albeit in the clause of warranty it be not mentioned to whom c. yet it shall be intended to the feoffee Titles 30 A Layman may prescribe in modo decimandi Co. l. 2. 44. a. 4. in the Bp. of Winchesters case Co. ibid. 45. a. 1. but not in non decimando because a Layman is but in some special cases capable of Tithes at the Common Law and therefore without special matter shewed it will not be intended that he hath any lawfull discharge Vide 2 5. Limitation of uses 21 If baron and feme levy a fine of land Co l. 2. 57. a. 4. in Beckwiths case whereof they are seised in right of the feme and the baron only declare the use of the fine this declaration shall bind the feme if her dis-assent appear not for when she joyns with the baron in the fine it shall be intended if the contrary appear not that she joyned also with him in agreement for the declaration of the uses of the fine So if baron and feme sell the land of the feme to another for money by paroll and after levy a fine to the vendee and his heirs this shall bind the feme without any writing proving her assent Vide plus ibid. Dyer 290. pl. 61. Attornment 22 If the reversioner oust his lessée for life Co. l. 2. 68. b. 2. in Tookers case and make feofment in fée and the lessee re-enter this is a good attornment and yet peradventure he had not notice of the feoffment which was made of the land and without notice the attornment is not valid Howbeit in regard it is intended by Law that the lessee cannot be mis-conusant of such feoffments as are made of the land the Law in such case doth imply notice Limitation 23 By the Statute of 32 H. 8. cap. 2. of Limitations Co. l. 4. 10. b 4. in Bevils case in an Avowry or Conusance for rent sute or services the seisin shall be within 40 years before such Avowry or conusance Howbeit that Act shall not extend to such rent or service as by common possibility may not happen or become due within 40 years as if the seigniorie consists of homage and fealty only
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
down a tree where the trees are not exempted this is an implyed determination of the will Lease at will for that it would otherwise be a wrong in the lessor to do it So if a man lease a Manor at will whereunto a Common is appendant and the lessor puts in his beasts to use the Common this is also a determination of the will for otherwise he should be a trespassor Co. ibid. 78. b. 2. 3 By common intendment a will shall not be supposed to be made by collusion for In facto quod se habet ad bonum malum A Will. magis de bono quam de malo lex intendit Co. ibid. 119. a. 3. Littl. §. 179. 4 If there be tenant for life of land the reversion in fee Villein a Villein purchase the reversion and the tenant for life attorns In this case the Lord may justifie to enter upon the Land and claim the reversion and yet shall be no trespassor to the tenant for life for the Law will make construction that he entred to make his claim and not to commit trespass The like Law is also of a reversion after an estate in tail Statute Merchant or Staple Elegit and for years and of the reversion of a Seigniory rent common and any other freehold or inheritance issuing out of any lands or tenements of another Co. ibid. 170. b. 4. If Partition be made by the two Barons in the life-time of their femes coperceners albeit such partition be unequal yet it is not void Pa râ—tion but voidable for it shall be déemed good and lawfull until it be defeated by the entry of either of the femes if she happen to survive her husband There is the like Law of an Infant copercener Co. ibid. 171 a. 4. for it remains good if he defeat it not at his full age Feoffment upon condition 6 If a feoffment be made by deed poll upon condition Littl. §. 376. Co. ibid. 232. and the feoffor haps the deed poll and afterwards the condition is broken wherupon the feoffor re-enters In this case having the deed en poigne albeit it doth not properly appertain to him but to the feoffée yet he may make use of the deed and thereby plead the condition in justification of his entry and title for it will be rather intended that he came to the déed by lawfull Joint trespass than by tortious means Littl. §. 3â—7 So if there be two joynt trespassors and the party trespassed releaseth to one of them In this case also if the other trespassor be sued and have the release en poigne he may plead it in discharge of the trespass causa qua supra Bastard 7 If the husband be within the 4. seas viz. within the Iurisdiction of the King of England if the wife hath issue Co. ibid. 144. a. 2. no proof is to be admitted to prove the Child a Bastard for the question being whether he is legitimate or no the Law will rather deem him legitimate than Proles spurius a bastard And in this case Filiatio non potest probari The like 8 If a man hath issue two daughters the eldest being a Bastard Co. ibid. 244. a. 4. and they enter and enjoy the land peaceably together Here the Law in favour of legitimation will not adjudge the whole possession in the Mulier who indeed hath the only right but in both so as if the Bastard hath issue and dieth her issue shall inherit And in the same case if both daughters enter and make partition this partition shall bind the Mulier for ever The like 9 If the Bastard invite the Mulier to see his house Co. ibid. 245. a. 2. and to see pictures c. or to dine with him or to hawk hunt or sport with him or such like upon the land descended and the Mulier cometh upon the land accordingly this is no interruption because he came in by the consent of the Bastard and therefore the Law will not adjudge the coming upon the land in such case to be any trespass but if the Mulier cometh upon the ground upon his own head and cutteth down a tree or diggeth the soil or take any profit these shall be interruptions For rather than the Bastard shall punish him in an action of trespas the act shall amount in Law to an entry because he hath a right of Entry so it is if the Mulier put any of his Cattel into the ground or command another to do it these do amount to an entry for albeit in these cases the Mulier doth not use any express words of Entry yet these and such like acts do without any words amount in Law to an Entry for acts without words may make an Entry but words without an act viz. Entry into the land c. cannot make an Entry Vide infra 28. M scon inuance 10 If one process be awarded instead of another or a day is given which is not legal this is a miscontinuance of the sute Co. ibid. 325. a. 4. and if the tenant or defendant make default it is good cause of Error but if he appear then is the Miscontinuance salved for albeit in truth his appearance is not legal yet when he appears the Law shall construe it to be lawfull because there is a sute depending against him in Court Dâ—scontinuance of estates 11 If there be tenant for life the remainder in tail Co. ibid. 332 a. 4. and he in the remainder grants it to another in fee by deed and the tenant for life attorns this is no discontinuance of the remainder in tail So it is likewise of a rent charge Advowson in gross Common in gross or the like for the Rule is that a grant by deed of such things as do lie in grant and not in livery of seisin do work no discontinuance and the reason is because the Law makes construction that of such things the grant of tenant in tail worketh no wrong either to the issue in tail or to him in reversion or remainder for in such case the Law adjudged nothing to pass from the tenant in tail but that which he may lawfully grant viz. an estate for his own life Co. ibid. 335. a. 2. 12 If tenant for life make a lease for his own life to the lessor the remainder to the lessor and a stranger in fée Surrender Forfeiture In this case for as much as the limitation should work a wrong by construction of Law it rather inureth to the lessor as a surrender for the one moiety and a forfeiture as to the remainder of the stranger for he cannot give to the lessor that which he had before and as to the remainder to the stranger it is a forfeiture for his moiety and when the lessor entreth he shall take benefit thereof Co. Inst part 1. 381. b. 1. 13 The words of an Act
of Parliament must be alwaies taken in a lawfull and rightfull sence Stat. of Gloc. as in the Statute of Glocester cap. 3. The words in the end of that Act whereof no fine is levied in the Kings Court are to be understood whereof no fine is lawfully or rightfully levied in the Kings Court And therefore a fine levied by the husband alone of the wives land is not within the meaning of that Statute for that fine would work a wrong to the wife but a fine levied by the husband and wife is intended by the Statute for such a fine is lawfull and worketh no wrong So the Statute of Westm 2. cap. 5. saith Ita quod Episcopus Ecclesiam conferat is construed Ita quod Episcopus Ecclesiam legitime conferat and the like in a number of other cases in our books And the general rule is Non praestat impedimentum quod de lure non sortitur effectum Co. ibid. 42. a. 1. 14 If tenant for life infeoff him in the remainder for life Surrender this the Law construes to be a surrender which is a lawfull act and not a forfeiture which implies a wrong Co. ibid. 15 If tenant for life maketh a lease by déed or without déed Lease for life to him in remainder to him in the remainder or reversion in tail or in fée for the term of the life of him in remainder or reversion and after he in remainder taketh wife and dieth In this case his wife shall not be endowed for the Law will adjudge the estate made to him in remainder or reversion a good and lawfull estate and tenant for life shall enjoy the land again And here in regard this can be no surrender because tenant for life did not part with his whole estate the Law rather than to admit of a forfeiture which implies a wrong preserves the first estate for life from being surrendred drowned or forfeited And indéed forfeited it cannot be in another respect for that he in remainder was party thereunto Co. l. 1. 76 a. Bredons case 16 If there be tenant for life remainder in tail remainder in tail No discontinuance or forfeiture and tenant for life and the first remainder levy a fine to one who grants and renders a rent charge to the tenant for life and then the first remainder dies without issue and the second remainder enters and tenant for life distrains for the rent In this case there is neither discontinuance nor forfeiture no discontinuance because each of them grants but his own estate which he may lawfully do no forfeiture because it shall be first construed to be the fine of him in remainder and afterwards of the tenant for life Co. l 2. 67 a. 1 in Tookâ—es case 17 Dower assigned by one Iointenant only Assignment of Dower Attornment or by an Abator or disseisor shall not be avoided by the other Iointenant or the disseisée as it is agréed in 12 Ass pl. 20. because these are lawfull acts so it is said if the disseisor attorn or give seisin to the grantée of a seigniory this shall bind the disseisee for the same reason albeit the grantee of a seigniory cannot compell the disseisor to attorn to him or to give him seisin if he had not seisin before within the time of limitation Vide 8 H. 6. 17. 8 Ass pl. 16. 8 E. 3. 52. 11 H. 4. 29. 39 H. 6. 2. It is likewise said that if the lessor disseise his two lessees for life and enfeoff another and one of the lessees re-enter this act of the one is an attornment in Law for both much more shall an express attornment bind both because these are by construction of Law lawfull acts c. Vide 23. Fine and 5. years pass 18 T. possessed of divers parcels of land within the Manor of S. for years at will and by Copy and of others in fee there Co. l. 3. 79. b. 2. Fermers case demises the whole to C. for life then levies a fine to him and his heirs of so many acres as amount to the whole land continues possession and pays the rents to the Lord Here albeit 5. years pass yet is not the Lord barred for in as much as the lessee had lands in fee simple in the same Town by construction of Law it will be presumed that the fine was levied of the land whereof a fine might be lawfully levied And albeit the fine contained more acres than his own land yet that alters not the case for it is usual almost in all fines to put in more acres than the just content of the land Copyhold 19 If a man seised of Copyhold land in right of his wife surrender it to the use of another in fee who is admitted accordingly Co. l. 4. 23. a. 2. in Copihold cases Bullock and Dibley the baron dies this is no discontinuance to the feme or her heirs but that the feme may well enter neither shall she be put to her Cui in vita or her heir to his sur Cui in vita because the Law will construe it to be such an alienation as he may lawfully make viz. of his estate in right of his wife during the Coverture So if a Copyholder for life surrender to the use of another in fee this is no forfeiture for the like reason and because it passeth by surrender to the Lord and not by livery King tenant pur auter vie 20 If the King being tenant pur auter vie Co. l. 5. 12. a 4. in Englefields case make a lease for 40. years albeit he having but an estate pur auter vie cannot absolutely contract for a lease of 40. years yet without any recital or mention of the estate for life the lease is good because the lease for years is in judgement of Law less than the estate pur auter vie and the King doth not thereby any wrong or prejudice to any neither yet is he deceived in his grant for by construction of Law it is a lease for 40 years if Cestuy que vie so long live Afferment of Amerciaments 21 If a Iury or a Leet tax an amerciament Co. l. 8 40. b. 4. in Grieslyes case this sufficeth without any afferment for the afferment may as well be per totum Homagium as by special Afferrors because the amerciament is the act of the Court and the Afferment the act of the Iury. Vide 10 Edw. 3. 9. 10. 8 Hen. 7. 4. 7 Edw. 3. 15. b. Astlies case 25 Edw. 3. 26 27. Grant of the King 22 The King grants the herbage and pannage of a Park to Markham for life and reciting that estate Co. l. 8. 56. a. 1. The E. of Rutl. case grants to the E. of Rutland for life In this case albeit the King grants to the Earl in possession yet he is not deceived in his grant for reciting and granting as here
just cause the Mulier is barred for ever for the possession of the King when he hath no just cause of seisure shall be adjudged the possession of him for whose cause he seised But if after the death of the Father the Mulier be found heir and within age and the King seiseth In such case the possession of the King is in right of the Mulier and vesteth the actual possession in the Mulier and consequently the Bastard eigne is foreclosed of any right for ever so it is likewise when the King seiseth for a contempt or other offence of the father or of any other ancestor In that case if the issue of the Bastard eigne upon a Petition be restored for that the seisure was without just cause the Mulier is not barred because the bastard could never enter and consequently could gain no estate in the land but the possession of the King in that case shall be adjudged in the right of the Mulier Vide 2 Ass pl. 9. Copyhold 2 If a Copihold estate fall into the Lords hands by escheat Co. l. 4. 31. a. 2. in Frenches case forfeiture or the like and the Lord make a lease thereof for years life or other estate by deed or without deed or if the Lord make a feoffment thereof in fee upon condition and enter for the condition broken or if the Copyhold so forfeited or escheated before any new grant thereof made be extended upon a Statute or Recognisance acknowledged by the Lord or if the feme of the Lord in a writ of Dower hath that land assigned to her In all these cases and albeit these last impediments are by acts in Law yet for as much as all these interruptions are lawful the lands can never after be granted by Copy because after such disposition thereof it was not demised or demisable But if the interruption be tortious as if the Lord be disseised and the disseisor die seised or if the land be recovered against the Lord by a false verdict or erronious judgement In these cases until the land be recovered or the judgement nulled or reversed by the Lord of the Manor the land was not demised or demisable and yet after the land is recontinued it is again grantable by Copy because the interruption was tortious for Non valet Impedimentum quod de jure non sortitur effectum quod contra legem fit pro infecto habetur Restraint to alien 3 If a man make a gift in tail upon condition that the donee shall not alien yet in such case if the donee suffer a Common recovery Co. l. 6. 41. b. 2. in Sir Anthony Mildmayes case that is no breach of the Condition because it is a Conveyance allowed by Law in respect of the intended recompence but if he make a feoffment in fee or any other estate whereby the reversion is tortiously discontinued the donor may enter for the Condition broken for every act which is prohibited by Law or is a tort may be prohibited by condition vide 10 H. 7. 11. So if a feoffment be made to Baron and feme upon condition that they shall not alien yet that doth not restrain their joint alienation by fine because it is lawfull and incident to their estate But their feoffment or alienation by deed is restrained by such a condition for that is tortious and against Law Also if a man enfeoff an Infant in fee upon condition that he shall not alien this cannot restrain him to alien at his full age but during his minority it doth because that is tortious and prohibited by Law Co. l 7. 6 a. 3. in Sendâ—ls case 4 One of the reasons Robbery why the robbing of an house either in the day or in the night is not within the Statute of Winchester for the Hundred to satisfie the damages is for that it is not lawfull for any man to enter into the house of another for the safeguard thereof Co. l. 11. 74. a. 3. Magd. Coll. case 5 Albeit the Friers Carmelites were of a Profession of Religion Carmelites and had not any habitation so as it seemed to be a work of piety and charity to provide an habitation for them yet non facias malum ut inde fiat bonum F.N.B. 36. f. 6 If a man be disseised of a Manor to which an Advowson is appendant Usurpation and the disseisor suffers an usurpation by a stranger to the advowson and after the disseisée re-enters into the Manor he shall present to the advowson when it happens to be void notwithstanding such usurpation Dyer 168. 19. 1 Eliz. 7 Bronker Sherif of Wiltshire to prevent perjury in his office Sheriffs oath did neglect to be sworn in incepto officii which he ought to have done by the antient Common Law of the Realm for which contempt he was fined and imprisoned by decrée in the Star-chamber Dyer 219. 10. 5 Eliz. 8 A man is bound to deliver the key of an house Livery of seisin and quiet possession to the Maior of London to the use of the obligee no person being in the house he locks the door and delivers the key to the Maior out of view A stranger pretending title enters into the house This séems to be no delivery of possession yet verdict was given for it which was afterwards affirmed in Attaint And the reason séems to be for that the impediment was unlawfull 196 Praetextu liciti non debet admitti illicitum Co. l. 11 88. b. 1 in the case of Monopolies 1 The Charter of making and importing Cards being adjudged in the 11 Rep. a Monopoly had a glorious preamble and pretext Monopolies yet was repealed as derogatory to the Kings honor and very pernicious to the Commonwealth And indeed it is true Quod privilegia quae revera sunt in praejudicium Reipublicae magis speciosa habent frontispicia et boni publici praetextum quam bonae et legales concessiones but Praetextu liciti non debet admitti illicitum Dyer 35 6. 33. 29 H. 8. 2 If a lessée hath liberty to fell trées to repair the house Waste and he fells 4. Oaks for that purpose and sells them and buyes 4. other Oaks as good and imployes them towards the repair of the house yet that is waste for the cutting of them down and selling them was a tort so if a man sell the distress which he hath caken and impounded and afterwards finding his error buyes them again and impounds yet their sale is a tort and the impounding of the Cattel afterwards shall not excuse it Dyer 36. b. 38. 29 H. 8. 3 If the lessor be bound to a man in 100 l. and the lessée cuts down 20 Oaks sells them and payes the obligée for the lessor Waste yet an action of waste lyeth against the lessee for felling the trees albeit the money arising upon the sale was converted to the
all the lands belonging to Towns and Boroughs not incorporat to defray the Common Taxes of the Town or to repair the Highwayes or the Church or for sustenance of the poor of the parish or to support other common charges of the parish are conveyed to divers Inhabitants of the parish their heirs in trust to imploy the profits therof to such good uses such good uses albeit prima facie they séem to be within the letter of that Act were never made void by that Statute and it is a thing dishonorable to the Law of the Land to make good uses void And it appears by a case reported by Serjeant Benlowes that it was held in the Common pleas in 5 6. E. 6. that a feoffment to the use of poor people was not within that Act of 23 H. 8. 10. Office 4 In Alton Woods case in the 1. Rep. Exception was taken to an office virtute officii returned into the Chancery for it was said Co. l. 1. 42. b. in Alton Woods case that it ought to have been returned into the Exchequer but upon the view of infinite presidents of offices found before the Escheator virtute officii and returned into the Chancery it was disallowed per totam Curiam Perpetuities 5 In the argument of Corbets case in the 1 Rep. Iustice Glanvile said that betwixt the making of the Statute of 13 E. 1. de donis Co l. 1. 87. b. 4. Corbets case c. 27 H. 8. such a proviso annexed to the estate tail viz. that it shall cease as if the tenant in tail were dead was never seen or heard of and therefore he concluded that it could not be done by Law And so likewise concludes Littl. fol. 23. in like manner that if any action might have been brought upon the Statute of Merton Disparagement cap. 6. De dominis qui maritaverint c. it would be intended that sometimes it would have been put in ure and therefore he concludes that no action can be taken upon that Statute in as much as it was never seen or heard that any action was ever brought thereupon Elections in Corporations 6 Where in the Charters of Corporations it is said Co. l. 4. 77. b. in the case of Corporations that the choice of the Maior Bailiffs Provosts or the like Magistrates or Officers shall be chosen by all the Commonalty or Burgesses if they have been chosen time out of mind by a certain select number of the principal of the Commonalty or Burgesses commonly called the Common Councel or by such like name and not in general by all the Commonalty or Burgesses nor by so many of them as will come to the election such antient and usual elections are good and well warranted by their Charters and by the Law also for in every of their Charters they have power given them to make Laws Ordinances and Constitutions for the better government of their Cities Boroughs c. by force whereof and to avoid popular confusion if they by their common assent do constitute and ordain that the Maior Bailifs or other principal officers shall be chosen by a certain select number of the principal of the Commonalty or Burgesses as aforesaid and prescribe also how such select number shall be chosen such Ordinance and Constitution was resolved in 40 41 Eliz. to be good and allowable and to agree with the Law and their Charters for avoiding of Popular discord and confusion And albeit such an Ordinance or constitution cannot be now produced yet it shall be presumed in respect of such a special manner of antient and continual election which cannot begin without common consent that at first such an Ordinance or Constitution was made Such reverend respect the Law attributes to antient and continual allowance and usage although it begin within time of memory Mos retinenda est fidelissimae vetustatis Quae praeter consuetudinem et morem Maiorum fiunt neque placent neque recta videntur Et frequentia actus multum operatur And according to this Resolution the antient and continual usages have been in London Norwich and other antient Cities and Corporations and God defend that they should be innovated or altered for many and great inconveniences may arise thereupon all which the Law hath well prevented as appears by this Resolution Co. l. 4. 93. a. 4. Slades case 7 Albeit an action of debt lyeth upon a Contract Action upon the case yet the bargainor may have an action upon the case or an action of debt for the same at his election and one of the chiefest reasons of that resolution was for that George Kempe secondary of the Protonotaries of the Kings Bench produced an infinite number of presidents as well in the Common Pleas as in the Kings Bench in the reigns of Hen. 6. E. 4. H. 7. H. 8. by which it appeared that the plaintiffs did Count that the Defendants in Consideration of a sale to them of certain goods did promise to pay so much money c. to which presidents and judgements being of so great number and in so many successions of ages and in the several times of so many reverend Iudges the Iustices in this case gave great regard and so the Iustices in antient time and from time to time have done as well in matters of form as in deciding of doubts and questions as well at the Common Law as in the Construction of Acts of Parliament And therefore in 11 E. 3. Formedon 32. it is held that the antient forms and manner of presidents are to be maintained and observed and in 34 Ass pl. 7. that which is not according to the usage shall not be permitted and in 2 E. 3. 29. The antient form and order is to be observed Vide plus ubi supra Co. l. 5. 32. a. Pettifers case 8 Vpon fieri facias of the Goods of the Testator Devastavit the Sheriff returns nulla bona c. hereupon a writ issues to the Sheriff to enquire by Enquest whether the executors have wasted c. He returns they have and thereupon Iudgement was given of their own goods but the executors suing a writ of error de redditione executionis the execution was reversed because this course of procéeding in such case had béen taken up of later times whereas the antient course was upon the return of Nulla bona to sue a scire fac to the Sheriff to levy c. out of the Testators goods and if it should appear to him that the executors have wasted then out of their own goods for albeit it was said that the said newer course was usual in the Common Bench and more favourable than the antient course was because thereby the Devastavit shall not be returned by the Sheriff only but shall be inquired likewise by an Inquest returned and thereupon a Scire facias ought to be awarded yet judgement was given that the
said proceeding was erronious because invented of later times And the rather for that by the antient course if the Sheriff make a false return the party may have his remedy by action upon the case which is a good mean to inforce the Sheriff to make true and just returns in such cases but by the said new course if the Sheriff take an inquest and return it although it be false yet the party hath no remedy either against the Sheriff or any other which would be inconvenient by which resolution it may be observed by the way how dangerous a thing it is to alter or change the antient forms and courses of Law for albeit a new way may prima facie seem specious and convenient yet afterwards it will prove incommodious by introducing sundry mischiefs which cannot be discovered otherwise than by future experience as in the case above recited which point it were to be wished our late Regulators would well study and consider before they presume to innovate any thing in the Law Co l. 9. 15. a. Aâ—â—â— Bedingfields case 9 In a writ of Dower an essoin was cast and challenged Essâ—in for that by the Statute of Essoins 12 E. 2. it is provided Quod non jacet Essonium in breve de Dote Howbeit because the Common essoin hath been alwaies allowed in a writ of Dower therefore the Iustices did construe that Statute to extend to an essoin of the Kings service and not to the Common essoin And the rather for that the Statute addeth a Reason of that purview viz. Quia videtur deceptio prorogatio Iuris and that is properly to be intended of an essoin of the Kings service which is a delay and prorogation of right for a year Vide 4 E. 3. 36. 4. Ass pl. 2. Long 5 E. 4. 70. Ward 10 Albeit 16 E. 3. Damages 80. and some other books are Co. l. 9. 74. b. 2. in Dr. Husseys case that Damages shall not be recovered in a writ of Ravishment of Ward yet for that it is held in 17 E. 3. 57. and many other books quas vide ubi supra and agreeth with common experience that Damages should be recovered in that writ it was so resolved accordingly Bastardy 11 It appears by the Statute of Merton Co. l. 5. pars 1. 12. a. 1. Merton 20 H. 3. that all the Bishops instanced the Lords that they would consent that all such as were born before Matrimony marriage following after should be legitimate as well as they that were born within Matrimony as to the succession of Inheritance for that the Church accepted such to be legitimate But all the Earls and Barons with one voice answered Nolumus Leges Angliae mutare quae hucusque usitatae sunt et approbatae A writ to the Coroners 12 If a writ be directed to Coroners Coronatoribus de Comitatu Pl. Co. 76 b. 4. Wimbish Willoughby or in Comitatu have the same construction de and in in this case signifying the same thing yet because in in such case hath been most frequently used upon such a direction to the Coroners de ought to be rejected and in retained for the order of the Register is that all writs directed to the Sheriff shall be Vicecomiti de Comitatu but those directed to the Coroners Coronatoribus in Comitatu as an Attachment against the Sheriff for not returning a Replevin is directed Coronatoribus in Comitatu c. So is likewise the writ of Certifying an Outlawry as appears in the book of Entries and so all other writs as a Diem clausit extremum is Escheatori in Comitatu and the like And he that finds fault with this direction argueth against the Register and also against the common usage of the Law heretofore practised Phrase 13 If I give you a pint of wine you shall not have the pint-pot Pl. Co. 85. b. 4. Partridges case but if I give you an Hogshead of wine you shall have the Hogshead for the phrase of the language commonly used expresseth the intent Et a Communi observantia c. 14 A writ of Inquiry being directed to the Sheriff himself to be executed he makes return Hob. 83. Virely and Gunstone Quod mandavit Balivo Hundredi de B. c. Qui quidem Balivus sic sibi respondit And so sets down the Inquisition taken before the Bailiff and 40 l. damages Howbeit upon a writ of Error it was agreed by all the Iudges that the return was insufficient because it was apparently untrue and against Law for that the warrant was directed to the Sheriff himself to be executed in any part of the County and no Venue contained in that Inquest of office as there is in other writs which intitle the Bailiffs of Liberties Howbeit the Court would not reverse the judgement because there were divers of the like kind both in the Kings Bench and Common Pleas especially in Suffolk and Norfolk in later times Vide Hob. 84. Skeat and Oxonbridge such an allowance in a writ of waste Star-chamber 15 In a sute in the Starr-chamber witnesses were examined to prove what was deposed concerning a will in the Ecclesiastical Court Hob. 114. but because depositions were not allowed in the Starr-chamber taken in other Courts they were rejected as a crafty device to induce depositions against the Rule of the same Court 204 Eventus varios Res nova semper habet And therefore it hateth new Inventions and Innovations Co. Inst pars 1. 379. a. 2. 1 Sir Edward Cooke speaking of Iustice Richel his Perpetuity Inventions observes that new inventions though of a learned Iudge in his own profession are full of Inconvenience Periculosum est res novas et inusitatas inducere And that Author saith farther that Littleton in the debate of that case § 721 722 723. hath taught us an excellent point of learning Co. ibid. b. 1. that when any innovation or new invention starts up the best way is to try it by the Rules of the Common Law for they are the true touchstones to sever the pure gold from the dross and sophistications of novelties and new inventions And by this example he saith you may perceive that the Rules of the Common Law which are indéed the Maximes of Reason being soundly applyed to such novelties it doth utterly crush them and bring them to nothing for commonly a new invention doth offend against many Rules and reasons of the Common Law Co. ibid. 282. b. 3. And therefore the antient Iudges and Sages of the Law have ever suppressed innovations and novelties as soon as they have offered to créep up lest the Quiet of the Common Law might be disturbed and so have Acts of Parliament also many times done the like And the Iudges say in 38 E. 3. We will not change the Law which alwayes hath been used And another saith in 2 H. 4. 18. Co. ibid. 303. b.
4. It is better that it be turned to a default than that the Law should be changed or any innovation made And therefore new and subtil inventions ought not to alter any principle of the Common Law Vide supra 184. 21. 159. 2. Co. ibid. 377. b. 4. 2 The Invention devised by Iustice Richel an Irishman born in the time of R. 2. the like by Thirning Chief Iustice in the time of H. 4. were both full of imperfections The like for nihil simul inventum est perfectum and saepe viatorem nova non vetus orbita fallit And therefore new inventions in assurances are dangerous Co. l. 1. 87 a. 4. in Corbets case 3 If a man make a feoffment in fée of land to the use of A. and his heirs every Monday and to the use of B. and his heirs every Tuesday Perpetuity and to the use of C. and his heirs every Wednesday these limitations are void because it is a new invention there being no such fractions of estates found in the Law And therefore not to be permitted for the inconvenience that may ensue thereupon Co. l. 1. 138. a. 3. in Chudlâ—yes case 4 By the Statute of 27 H. 8. of Uses The like some uses were executed presently others by matter ex post facto and others again were extirpated and extinguished by that Act Vses in esse did draw the possession presently by force of the Act Vses limited in futuro and agreeable to the Rule of the Common Law are also if they become in due time in esse within the provision of that Statute but uses invented and limited in a new manner and not agréeable to the antient Common Laws of the land are utterly extirpated and extinct by that Act for it appears by the express letter of the Act that it was the intent of the Parliament to extinguish and root them out and to restore the antient Common Law of the Land Vide plus ibidem Co. l. 5. 32. a. Pettisers case 5 Vpon a fieri facias of the goods of the testator Devastavit the Sheriff returns nulla bona c. And thereupon another writ issues to him to inquire by Enquest whether or no the executors have wasted c. he returns they have and thereupon execution is awarded of their own goods but this award of execution was reversed by writ of Error because that practice had béen taken up of late dayes wheras the antient course was and since the judgement in this case is taken up again to sue a fieri facias to the Sheriff to levy c. of the testators goods and if it appear to him that the executors have wasted c. then of their own goods And in such case an action upon the case will lie against the Sheriff if he make a false return whereas in the other case no such action lies because the Sheriff makes his return by Inquest Perpetuity 6 All perpetuities being new inventions are against the reason and policy of the Common Law Co. l. 6. 40. b. 3. in Sir Anthony Mildmayes case Co. l. 9. 128. a. 4. in Sondayes case for at the Common Law all Inheritances were fée-simple to the end that neither Lords should be defeated of their escheats wards c. nor purchasors or farmers should lose their estates or leases or be evict by the heirs of their grantors or lessors nor such infinite occasions of troubles contentions or sutes should arise And therefore it may be truly averred that the policy and Rule of the Common Law in this point was in effect subverted by the Statute de donis made in 13 E. 1. which ordained a general perpetuity by Act of Parliament for all such as had then made it or would afterwards put it in ure by force whereof all the possessions of England in effect were intailed accordingly which was the cause of the said and divers other mischiefs Howbeit divers attempts were made for remedy thereof in divers Parliaments and many bills exhibited accordingly but they were alwayes upon one pretence or other rejected Indéed the truth was that the Lords and Commons knowing that their estates tail were not forfeitable for felony or treason as their estates of Inheritance were before the said Act and principally in the Barons warrs in the time of H. 3. and finding also that they were not chargeable with the debts or incumbrances of their ancestors and that the sales alienations or leases of their ancestors did not bind them for the lands which were so entailed to their ancestors did alwayes reject such bills And this continued all the residue of the Reign of E. 1. and the Reigns of E. 2. E. 3. R. 2. H. 4. H. 5. H. 6. and until about the 12 of E. 4. when the Iudges upon consultation had amongst them did resolve that an estate tail might be docked and barred by a Common recovery and that by reason of the intended recompence the Common recovery was not within the restraint of the said perpetuity made by the said Act of 13 E. 1. whereby it appears that many mischiefs did arise upon the change of a Maxim and Rule of the Common Law which they who altered it could not discern when they made the said change for Rerum progressus ostendunt multa quae in initio praecaveri seu praevideri non possunt Vide 8. Marshalsie 7 In Sir Geo. Reynels case in the 9 Report Co. l. 9. 97. a. 2. one of the reasons why the office of Marshalsie could not be granted for years was because it was an antient office and had been alwayes granted for life or at will to the end the person to whom it was granted might be certainly known And therefore to grant it for years when it was never known to be so granted before being an Innovation might prove dangerous and of ill consequence to the Commonwealth An Intail docked 8 The docking of an Intail by a Common recovery in 12 E. 4. was no new invention Co. l. 10. 37. b. 2. in Mary Portingtons case but consonant to the opinion of the Sages of the Law even from the making of the Statute De donis as appears by divers authorities in our books viz. in 42 E. 3. 53. in 44 E. 3. 21 22. Octavian Lumbards case in 48 E. 3. 11. b. Jefferey Benchers case in 12 H. 4. 13. b. in 1 E. 4. 5. in 5 E. 4. 2. b. which resolutions and opinions in Law together with divers others of the like kind did as it séems produce the judgement in 12 E. 4. And therefore such barring of an estate tail was not then to be estéemed an innovation or new invention but the Iudges and Sages of the Law then perceiving what contentions and mischiefs had crept into the quiet of the Law by such fettered Inheritances upon consideration of the said Act and of the former exposition thereof by the Sages of the
Law since the making of the same Act did in the said 12 year of E. 4. give judgment that in such case an estate tail should be barred And in Scholasticaes case in 12 Eliz. Pl. Com. 403. it was not thought fit to stand with the honour and gravity of the Court that the question concerning the restraint of a Common recovery which had béen so often debated and resolved should be once moved Vide supra 6. Co. l. 11. 87. a. 3. in the case of Monopolies 9 The Queen grants to one of the Privy Chamber the only making Monopolies and importation of Cards This was adjudged a Monopoly and therefore void and one of the reasons was because the grant was primae Impressionis for no such was ever seen to pass by Letters Patents under the Great seal to that very day And therefore because it was a dangerous Innovation without president or authority of Law or Reason and the Queen deceived in their grant it was adjudged void Dyer 135. 15. 3 4. P. M. 10 A Dedimus Potestatem was granted to Iustice Saunders to receive an Attorney for the defendant in a Quid juris clamat Quid juris clamat but because there could be found no former president for it it was with much difficulty and after long debate allowed by the Iudges and that upon great necessity and weakness of the party 205 Communis Error facit Jus. Co. Inst 1. 52. b. 2. 1 In a deed of feoffment beginning with Omnibus Christi fidelibus Livery by Attorney c. or Sciant omnes per praesentes c. or the like a Letter of Attorney may be contained for one continent may contain divers deeds to several persons But if it be by indenture between the feoffor on the one part and the feoffee on the other part there a Letter of Attorny in such a deed is not good unless the Attorney be made a party in the deed indented howbeit because it hath been commonly used to insert it in the Indenture without making the Attorny party thereunto it hath been permitted to pass but the other way is safest and more legal Communis Error facit Jus. Co. l. 6. 67. a. 4 in Sir Moâ—â—â—inches case 2 Where it is required by the Statute of 1 H. 5. 5. that in every writ original c. in which Exigent shall be awarded Additions Stat. 1 H. 5. Additions should be given to the defendants of their estate degree mystery c. It so fell out that one who was by birth but a Yeoman was commonly called Gentleman And in that case in such a writ brought against him he may have the Addition of Gentleman albeit in truth he is no Gentleman but only by vulgar reputation for in as much as the intention of the Act is that he should have such a name by which he may be known it is sufficient to satisfie the Act of Parliament for Communis error c. 206 So doth a Custom which is reasonable unreasonable contra Co. Inst â—pars 1. 59 b. 4 1 Of fines due to the Lord by the Copyholder Copyhold fines some be by the Change or alteration of the Lord and some by the Change or alteration of the tenant the change of the Lord ought to be by the act of God otherwise no fine can be due but by the change of the tenant either by the act of God or the act of the party a fine may be due for if the Lord do challenge a Custom within his Manor to have a fine of every of his Copyholders of the said Mannor at the alteration or change of the Lord of the Mannor be it by alienation demise death or otherwise This is a custom both against the Law and Reason as to the alteration or change of the Lord by the Act of the party for by that means the Copyholders may be oppressed by multitude of fines by the Act of the Lord But when the change groweth by the Act of God there the custom is good as by the death of the Lord And this was resolved upon a Case in Chancery by all the Iudges and Serjeants of Serjeants Inn in Fleetstreet Trin. 39 Eliz. and so certified into that Court But upon the change or alteration of the Tenant a fine is due unto the Lord because that custom is reasonable 2 Of fines taken of Copyholders some be certain by custom and some be uncertain The like but that fine although it be uncertain Co. ibid. yet ought it to be rationabilis and that reasonablenesse shall be discussed by the Iustices upon the true circumstances of the Case appearing unto them And if the Court where the cause dependeth adjudgeth the fine exacted unreasonable then is not the Copyholder compellable to pay it And so it was adjudged P. 1 Iac. C. B. rot 1845. for all excessiveness is abhorred in Law 3 In former times it hath been doubted whether or no if a Copyholder had béen ousted by his Lord Copyhold custom he might have any other remedy therein than only to sue to his Lord by petition for it seems Co. ibid. 60. b. 3. Littl. §. 77. that if the Copyholder might have any other remedy he could not be properly said to be Tenant at the Will of the Lord according to the Custom of the manor But Magistra rerum experientia hath made this cléer and without question that the Lord cannot at his pleasure put out the lawful Copyholder without some cause of forfeiture and if he do the Copyholder may have an Action of Trespasse against him For albeit he be tenens ad voluntatem Domini yet it is secundum consuetudinem manerii And Britton saith speaking of these kind of Tenants Et ascuns gents sont qui tout franks de sank et tenent terre de nous en villeynage et sont proprement nos sokemans Britton fo 163. Co. ibid. 140. a. 3. et ceux sout priviledges en ties manere que nul ne les doit ouster de tiels tene ments taut come ils font les services que a lour tenements appendant et nul ne poit lour services accressre ne changer a faire autres services ou plus autrement que ils ne solaient And herewith agreeth Sir Robert Danby Cl. Inst of the C. Pl. M. 7 E. 4. 19. and Sir Thomas Brian his Successor M. 21 E. 4. 80. That the Copyholder doing his customs and services if he be put out by his Lord shall have an Action of trespasse against him Consuetudo 4 Consuetudo contra rationem introducta potius usurpatio quam consuetudo appellari debet Again Co. ibid. 113. a 4. Consuetudo ex certa causa rationabili usitata privat communem Legem And Consuetudo praescripta et legitima vincit legem Villeinage fine to mary 5 All customs and prescriptions that are against reason are void Co. ibid. 139. b. 4. Littl.
Treason viz. Petty treason and in 19 H. 6. 47. tit Corone 7. Br. Treason 8. upon an Indictment one was arraigned for killing the wife of his Master which he confessed and thereupon it came into question whether or no he should be drawn and hanged or hanged only and it was adjudged by the advice of all the Iustices of both the Benches that he should be drawn and hanged for that it was treason And there it is not taken within the equity of that Statute which speaks only of killing the Master but rather within the words thereof because Master and Mistress import the same being one person in Law Amerciâ—meâ—t 8 If a feme coveâ—t be outragiously amercied F N. B. 75. d. and thereupon the husband be distrained for it he shall have the writ de Moderata misericordia to relieve himself from such outragious amerciament Villein and Nief 9 If a freeman marry a Nief she shall be free for ever F. N. B. 78. g. albeit the Baron die and she survive and this the Law giveth her as Britton saith in favorem libertatis and it séems reasonable that the Law should be so because she and her husband are but one person in Law and she ought to be of the same nature and condition in Law to all intents with her husband Now therefore her husband being free to all intents without any condition in Law or otherwise and she being of the same nature and condition with her husband if she be once clearly discharged of Villeinage to all intents she cannot be Nief after without some special act done by her self as divorce or Conusance in a Court of Record and this is in favour of Liberty Vide Exod. cap. 21. supra 4. A Lady of Honor. 10 A writ of partition was brought against the Duke of Suffolk and his wife and others per Radulphum Haward Armig. Dyer 59. b. 51 6 7 E. 6. Dominam Annam Powes uxor ejus for so she was named in the writ and exception was taken upon the Misnomer because she ought to have béen named only by the name of her husband and not otherwise And by the opinion of Montague Ch. Iustice and Hales Iustice the exception was good because by the Law of God she is sub potestate viri and therefore her name of dignity ought to he changed according to the degree of her husband notwithstanding the curtesie of the Ladies of Honor and the Court whereupon the plaintifs brought a new writ ad reâ—pondendum Radulpho H. Anna uxori suae nuper uxori Domini Powes defuncti 210 They cannot sue one another nor make any grant one to the other or the like Baron cannot gâ—aâ— to the â—â—mâ— 1 A man may at this day by his deed covenant with others to stand seised to the use of his wife Co. Inst para 1. 112. a. 4. Littl. §. 168. or make a feoffment or other conveyance to the use of his wife for now such an estate may be executed to such uses by the Statute of 27 H. 8. 10. because an use is but a trust and confidence which by such a mean may be limited by the husband to the wife so likewise in places where lands were devisable the husbands before that Statute might by his testament devise his tenements to his wife in fée for life or years because such devise took not effect until after the death of the devisor Howbeit at the Common Law a man could not by any conveyance either in possession reversion or remainder limit an estate to his wife neither yet since the said Statute covenant with his wife to stand seised to her use because he and his wife being one person in Law he can grant nothing to her nor covenant with her Co. ibid. 206. b. 3. 2 If a man be bound with a Condition to enfeoff his wife Bond. the condition is void and against Law because it is against a Maxim of Law viz. that a man cannot make any grant to his wife and yet the bond is good but if he be bound to pay his wife money that is good Et sic de similibus Co. l. 4. 29. b. 3. in Buntings case 3 Albeit he that is admitted to a Copyhold estate is in by him Copyhold that made the surrender yet a man may surrender to the use of his wife because the Baron doth it not immediately to the wife but by two means viz. by surrender of the Baron to the Lord to the use of the wife and by the admittance of the Lord according to the surrender but if the estate did immediately pass from the husband to the wife it could not be good Co. l. 8. 136. a. 2. in Sir Iohn Nedhams case 4 It was adjudged M. 30 31 Eliz. that Feme Executrix where in debt against a feme executrix she pleaded fully administred and it was found that the defendant had taken the Obligor to husband and that the husband was dead this was no release in Law neither yet the debt thereby extinct but only suspended during the Coverture for she could not against a Maxim of Law by taking him to husband make a release to him of the debt 5 Hob. 10. Fryer against Gildridge 211 Upon a joynt Purchase during the Coverture either of them taketh the whole Co. Inst pâ—rs 1. 55. b. 2. 1 If a man be seised of land in right of his wife Emblements and soweth the ground and dieth his executors shall have the Corn and if his wife die before him he himself shall have it But if husband and wife be joyntenants of the land and the husband sow the ground and then the land surviveth to the wife in this case it is said that she shall have the Corn. Vide 8 Ass 21. 8 E. 3. 54. Dyer 316. Co. ibid. 187. a. 4 2 If a joynt estate of land be made to a man and a woman and their heirs before mariage and after they intermarry in this case Baron feme hold by intierties the husband and wife have moities betwéen them but if it be during the Coverture they hold by intireties For example William Ocle and Joan his wife purchased lands to them two and their heirs afterwards William Ocle was attainted of high treason for the murder of E. 2. and was executed Joan his wife surviving him E. 3. granted the lands to Stephen de Bitterly and his heirs John Hawkins the heir of Ioan in a petition to the King discloseth this whole matter and upon a Scire facias against the Patentee hath judgement to recover the lands for that William and Joan were one person in Law Co. ibid. 187. b. 2. Vide Pl. Co. 58. b. 4. Wimbish and Talbois 3 If a feoffment were made before the Statute of Vses 27 H. 8. 10. to the use of a man and a woman and their heirs The like and
and Arbitrators 456. 153 221. 379. 713. 749. Their power not irrevokable 379. A Plea to it revoked 138. Attaint lyes not before Execution 112. By the heire in Villainage 198. No new Evidence to be given in it 605. 711. Attachment of a Debt in London 400. Assets 149. 386. Found in any County 430. Assets by Discent Assumpsit 280. 600. Defeated 123. Assignments 325. Of Dower 579. Assignees in Fait and in Law 708. 451. May vouch 187. Attainder the right of the Heire not forfeited by it 188 Attorneys The Lessor Attorney to make Livery 60. 90. Cannot do more then his Master 66. So of Bayly ibid. Were not allowed by the common Law 152. To deliver Seisin 336. Assize By Joynt-tenants and Tenants in Common 43. Of a Rent after a Disseisin 143. By the Grantee of a Seigniory upon a Fine before Attornement 15. In Consinio Comitatus 225. Amounts to a claime 584. Attornement 707. 770. 143. 155. 184. 255. 326 377. Not compellable to a deseisible estate 33. 601. Where upon Alienations 32. Who shall attorne 33. Paramount a Condition 82. of a Eeme Sole 110. Where it is needfull 13 601. To the particular Tenant vests all Remainders 183. Upon the grant of Rent who ought to attorne 183 184. By one Joynt-tenant good for both 185. 188. 256. Of an Enfant 690. One not to attorne without his Companion 699. Not for a time or upon Condition 508. Void for uncertainty 625. Audita Querela 123. 147. 605. By an Enfant to avoid a Statute 672. To avoid a Statute made by duresse 50. Not after a release 105. Nonsuit in it 335. Averment not against a Presumption in Law 707. Negative Pleas not to be averred 110. Not of that which appeareth 112. Where necessary e contr 613. Avowry 92. For a Rent service upon the person 32. Where title is to be made 165 Made for a Rent where it shall be a bar in Annuity 176. without Attornement 557. 593. Determination of Election 473. Auditors Of the Court of Wards granted to two there shall be no Survivor 747. Authority 733. 374. Created by the parties and by the Law differ 438. Revocable 243. 450. Ancient Demesne 147 148. 276. 292. 369. 708. Award 247. 679. 456. B. BAile 686. 714. Bailement 380. 702. Of Goods 35. 375. Executors of the Bailee shall not take advantage of a Release 5. Bars 233. In diverse respects 163. 479. Defective yet the Plaintiff shall recover 243. 248. In personall and reall Actions 360. In a Writ of Escheat 369. In a Quare Impedit e contr 394. 588. e contr In Mayhm 695. Bar in an Action upon the Case is a bar in Debt 695. Baron and Feme 141. 359. 571. Grant of the Husband without the wife where not good 63. Estates to them is Joynt-tenancy 66. Husband chargeth the Wives Lands 81. Wife can passe nothing without Examination 317. Husband cannot grant to his Wife 765. Hold by Entierties 766. Bastard and Mulier 52. 200. 349. 723. 499 500. Shall vouch 431. Takes by purchase 432. Est nullius filius 500. Battaile in an Appeale 155. Bills Of Revivor not upon Revivor 678. By-laws where good 734. Blood Corrupted not inheritable 246. Body more worthy then Land 224. Bonds taken by the Sheriff where not with the Statute of 23. of H. 6. 250. without date good 390. Bootes where the Lessee may take them without Assignment 244. C. CApias pro fine 52. 711. Lay not at the Common Law for a Debt 354. Carrier 410. Castle-Gard 222. Casualties not devisable 627. Cause the cause ceasing the effect shal cease 29. 30 Charges upon Lands where good è contr 117 118. Upon a Benefice without the Patron 411. Where the person shall be charged although discharged by a Proviso 551. Cestuy que use his Lessees estate determined 38. Champerty 281. Chattells reall returne to the wife 82. Vested 103. 137. What the Husband shall have 769. Challenge 72. 114 167. 292. 677. To the Array and Polls 277. 569. Peremptory 352. Cannot be of the four Knights of the Grand Assize 706. 481. Charters how to be construed 65. Chaplains 64. 76. Certainty where required 629 630 631 632 633. Certificate of the Bishop 156. 291. Of an Accord before a Non omittas 272. Not to be traversed Clergy 106. 357. Claime 550. 553. 609. Where not needfull 601. How it must be made 43. in part good in all 216. Feare of making continuall claime 353. 489. When and where to be made 495. by the Lord of the Villains goods 361. Of Priviledge 366. the Heire Beyond-sea not barred by Non claime 671. in Case of feare made as neer the Land as may be good 487. Circuit of Action 680. Collusion 693. Collations 717 718. Common Recovery common Assurances 742 743 Where bars an estate taile 45. Common Of Vicinage 34. 211. Appendant due of common right 63. Apportionable 238. 548. Ratione Comorantie 269. 287. Without number 576 577. Commoners by Vicinage may enclose one against another 699. Compositions 330. Conditions precedent and subsequent 47. 64. Proviso is a word of Condition 53. 68. A Stranger may take advantage of it 53. Of a Mortgage must be performed 65. Where an estate shall cease upon it 68. Paramount a Discent 81. 83. 293. Of Encreaser 293. Accessarie to the estate 232. Runs with the Lands 255. Intire 259 260. 485. Repugnant 639. è contr 640. subsequent not to be averred 646. Not pleadable without shewing the Deed 324. Words Conditionall in Leases 361 In Law upon Trust 375. Annexed to estates in Lands and of a Recognizance differ 395. In the Disjunctive 442. Apportioned by Act in Law 439. Where by Entry for a Condition the party shall not be in his first estate 607. Impossible void 608. Unreasonable 694. When to be performed presently when in convenient time 491 492 493. Restraines Liberty 483. Performance of them must be averred 485. Concord 415. Conjunction and Copulative how to be taken 13 14. Confirmations void 74 116. 160 161. Of a Rent void to enlarge his estate 59. 255. By the Patron and Ordinary 59. Workes not without Privity 183. Joynt to the Husband and Wife 362. Conformity Joynder in Actions and Fines for Conformity 438. Contracts void 75. Import an Assumpsit 137. Conspiracy 171. Must be brought at least against two 763. Lyeth not after a Pardon 35. Indicted though yet nothing in Execution 700. Contempts 152. Colour of Entry 431. Not to be given where the Plea goes in bar of the right 602. Consent takes away Erroâ—s 481. Contribution 413. Where not compellable upon Audita Querela 36. Where the heir sued shall not have 199. 282. Considerations 413 414. Where blood is no good Consideration e contr 138. What is good within 13 Eliz. cap. 5. 168. To raise Uses 281 Continuall Claime 584 Construction Where one thing shall be taken within another 218 219. Concealments 240. 302 Constitutions 735 Conveyances out of the Statute of 32 H. 8. of Wills 717. By