cannot be defeated without entry and therefore by entry they ought to be made void Co. l. 7. 42. a. 3. in Beresfords case 2 Such an Exposition of a Déed must be made An entail good wiâ—â— menti 〈◊〉 the body â—â—gotten that all the parts thereof may well stand together and that withall it may stand with the rule of Law So if lands be given to the use of Aden and of the heirs male of the said Aden lawfully begotten and for default of such issue to the use of divers others in remainder c. Here albeit there wants the words of the bodie yet is this a good limitation of an estate taile For otherwise it would be against the intent of the Donor and all the remainders over would be void and if these words should be turned into Latine they ought to be rendred thus Et haeredum masculorum de praefato Adeno legitimè procreat and not haeredum masculorum praefati Adeni which is cléerly proved by the subsequent clause and for default of such issue c. For issue cannot be of Aden unlesse the words should be De dicto Adeno and so in this case the one clause is well expounded by the other c. Co. l. 8. 93. a. 1. in Frances case 3 In Replevin the Defendant avows for damage fesant The Plaiâ—â— plea in 〈◊〉 destroyed 〈◊〉 yet recoveâ— the Plaintiff pleads in Barre that the said lands were holden in soccage and that I. S. being thereof seised in fée by his last Will devised them unto him for sixty years if he should so long live c. Vnto which the Defendant pleads that it was true there was such a devise made but after the said devise I. S. enfeoffed certaine persons thereof to the use of the Plaintiff for sixty years if hee should so long live c. whereupon the Plaintiff demurs And in this case it was resolved that although it appeared that the title by which the Plaintiff claimed in his barre to the Avowry was utterly destroyed for the Plaintiff claims by the Will of I. S. which Will appears to be afterwards countermanded by the feoffment which the Avowant afterwards pleads and which the Plaintiff confesseth by his demurrer yet shall the Plaintiff have judgement because his Count is good and the Avowant in his replication to the barre of his Avowry hath done two things For first he hath destroyed the title which the Plaintiff made by the Will And again he hath given to the Plaintiff another title viz. to have the land for 60 years by force of the uses declared upon the feoffment And therefore in as much as upon the whole record according to which the Count ought to judge it plainly appears that the Plaintiff hath a lawful terme in the Lands and that the Defendant had taken his Cattel wrongfully for that cause judgement was given against the Avowant and for the Plaintiff albeit the title which the Plaintiff made for himself was destroyed c. â—etters Paâ—ents and Acts â—f Parliament â—est expoundâ—d by themâ—elves 4 The best Expositor of Letters Patents and Acts of Parliament Co. l. 8. 117. a. 4. in Doctor Bonhams case are the Letters Patents and the Acts of Parliament themselves by the construction and conference of all the parts together Optima statuti interpretatrix est omnibus particulis ejusdem inspectis ipsum statutum Et injustum est nisi tota lege inspecta una aliqua ejus particula proposita judicare vel respondere The count made good by the barre the barre by the replication c. 5 In Doctor Bonhams case in the eighth Report Co. l 8. 120. b. 1. in Doctor Bonhams case although it was admitted that the Plaintiffs replication was not material and the Defendants had demurred thereupon yet in as much as the Defendants had confessed in the barre that they had imprisoned the Plaintiff without cause the Plaintiff had judgement And this is the diversity there taken that when the Plaintiff replies and by his replication it appears that he hath no cause of action there he shall never have judgement but when the bar is insufficient in matter or amounts to a confession of the point in debate and the Plaintiff replies and shews the truth of his matter to enforce his case and in judgement of Law it is not material yet in that case shall the Plaintiff have judgement For 't is true that sometimes the Count shall be made good by the barre and sometimes the barre by the replication and sometimes the replication by the rejoynder c. Howbeit the diversity is that when the Count wants time place or other circumstance that may be made good by the barre so it is also of the bar replication c. as appears in 18 E. 4. 16. b. But when the Count wants substance no barre shall then make it good so likewise of a barre replication c. and with this agrées 6 E. 4. 2. Bone cas nota ibidem dictum Choke Vide 18 E. 3. 34. b. 44 E. 3. 7. a. 12 E. 4. 6. 6 H. 7. 10. 17 H. 7. 3. 11 H. 4. 24 c. But when the Plaintiff makes replication sur-rejoynder c. and thereby it appears that upon the whole record the Plaintiff had no cause of action he shall never have judgement albeit the barre rejoynder c. be insufficient in matter for the Court ought to make judgement upon the whole record and every one shall be intended to make the best of his own case Vide Riegeways case in the third Report 52. And these diversities were also resolved and adjudged between Kendal and Helier M. 25 26 Eliz. in B. R. and M. 29 30. in the same Court between Gallis and Burbry â—he like 6 Albeit the replication be insufficient Co. l. 8. 133. b. 1. in Turners case yet if the bar be also insufficient in matter upon the whole record the Plaintiff shall have judgement It is otherwise when by the replication it appears that the Plaintiff hath no cause of action for there the Plaintiff shall never have judgement although the barre be insufficient As in Debt upon an Obligation with condition to perform covenants in an Indenture the Defendant pleads performance of all the Covenants generally when it appears to the Court that divers of them are in the negative or disjunctive and so the plea in the general affirmative insufficient Yet if the Plaintiff reply and shew a breach of one of the Covenants which by his own shewing is no breach upon which the Defendant demurs judgement shall be given against the Plaintiff because upon the whole record it appears that the Plaintiff hath no cause of action For the Obligation is endorsed with condition to perform Covenants so that the Plaintiff hath no cause of action until there be a breach of Covenant and by the shewing of the Plaintiff himself there is not any breach sufficient in
Earle of Bedfords Ca. yet the Law in many Cases hath consideration of him in respect of the apparent expectation and possibility of his birth for which sée the opinion of Sanders and Browne in Stowells Case for the avoyding of a fine Pl. Co. fol. vide temps E. 1. Tit. Guard 153. 31 E. 1. Tit. briefe 873. for the Guard of such an infant vide 38 E. 3. 7. 41 E. 3. 11 E. 3. Tit. voucher that he shall be vouched in ventresa mere 3 El. Dier 186. An adulterer counsels the Feme to murder the Infant when it should be borne who doth it accordingly in this Case the adulterer is accessory yet at the time of the counsel given the Infant was in ventre sa mere c. Feofment of Cestuy que use good 17 If Cestuy que use after the Stat. of 1 R. 3. and before the Statute of 27 H. 8. had disseised the Disseisor of his feoffées Co. l. 10. 49. in Lampets Case here the use is suspended and depends in possibility to be revived by the entry of the feoffées and yet if he make feoffment in Fée that is good and shall bind in respect that the Law hath consideration of that possibility of the use A possibility â—ay have a â—eing and be â—â—â—feitted 18 H. possessed of an house for 31 yeares deviseth the profits thereof to I. durante viduitate and after deviseth the term to R. and dies Co. l. 10. 52. a. 3. in Lampets Case viz. Tr. 28 El. Rot. 1674. Harrington Rudyards Case I. by the assent of the Executor enters and purchaseth the house in Fée of L. who covenants with I. that the house shall be frée from all former bargaines c. And in an Action of Debt upon an Obligation for the breach of covenants the defendant pleads covenants performed the Plaintiffe assignes for breach the devise to I. and afterwards to R. and that after I. entring into that covenant I. had maried O. upon whom R. entred and thereupon the Plaintiffe demurres And the great Question in the Case was whether R. at the time of the making of the covenant having onely a possibility the covenant did extend unto it or no And it was resolved that the covenant did extend to that possibility and that the possibility had being for that purpose and might be forfeited 19 Vide infra M. 105. in all â—ands may be â—tailed â—â—gh given â— persons unâ—aried 20 If tenements be given to a man and to a woman Co. Inst p. 1. 25. b 4. which is not his wife and to the heires male of their two bodies they have an Estate taile albeit they be not maried at that time and so it is if lands be given to a man which hath a Wife and to a woman which hath a husband and to the heirs of their two bodies they have presently an Estate taile for the possibility that they may marry c. â—eare-say 21 Such thing as one hath by credible heare-say by the example of Litt. â— 720 are not be neglected but are worthy of observation Co. ib. 377. b. 4 for the apparent possibility that they may be true 105 And therefore nothing to be void which by possibility may be good 1 Vide supra R. 104. e. 1. Co. Inst p. 1. 25. b. 4. Co. l 50. b. in Lampets Case 2 If Lands be given to two husbands and their wives Lands intailed to more than two good and to the heires of their bodies begotten this is not a void Grant for the uncertainty but they shall take a joynt estate for life and several inheritances viz. the one husband and his wife the one moity and the other husband and wife the other moity So if lands be given to a man and two women and the heires of their bodies begotten they have a joynt estate for life and every of them several inheritance because they cannot have one issue of their bodies neither shall there be by any construction a possibility upon a possibility viz. that he shall marry the one first and then the other So it is also when land is given to two men and one woman and to the heires of their bodies begotten c. Co. ib. 45. b. 3. 3 Regularly in every Lease for yeares the term must have a certaine beginning and a certaine end for so Bracton saith A Lease for yeares good though uncertain when it shall begin Terminus Annorum certus esse debet determinatus And Littleton also hath these words Pur terme de certaine ans Neverthelesse although before the time it should take effect in possession or interest it do depend upon an incertainty viz. upon a possibile contingent before it begin in possession or interest or upon a limitation or condition subsequent yet is it not void for that uncerrainty as if A. seised of lands in fée grant to B. that when B. payes to A. xx shillings that from thenceforth he shall have and occupy the land for 21 yeares and after B. payes the twenty shillings this is a good Lease for 21 yeares from thence-forth notwithstanding that uncertainty because it was at first possible the twenty shillings should be paid and that being paid the Lease had from thence-forth a certaine beginning and therefore was not void but good ab initio c. So if A. leaseth his land to B. for so many yeares as B. hath in the Mannor of Dale and B. hath then a term in the Mannor of Dale for 10 yeares this is a good Lease by A. to B. of the land of A. for 10 yeares for albeit there appear no certainty of yeares in the Lease yet because by reference to a certainty it may be made certaine it sufficeth If the Parson of D. make a Lease of his Glebe for so many yeares as he shall be Parson there this cannot be made certaine by any-meanes for nothing is more uncertaine than the time of death Terminus vitae est incertus licet nihil certius sit morte nihil tamen incertus est hora mortis but if he make a Lease for three yeares and so from thrée yeares to thrée yeares so long as he shall be Parson this is a good lease for 6 years for it is possible he may so long continue Parson there and then it is good for so long viz. first for thrée yeares and then for thrée yeares more but for the residue it is uncertaine If a man maketh a Lease to I. S. for so many yeares as I. N. shall name this is not void for the uncertainty for when I. N. hath named the yeares then is it a good Lease for so many yeares A man maketh a Lease for 21 yeares if I. S. shall so long live Here albeit the end of his Lease depends upon an uncertainty viz. upon the time of the death of I. S. which is uncertaine yet because it is possible at last to know the certaine
3. Title Corone 367. â—prisonment 2 It séemes reasonable that one Fitz. 116. 0. who is in Prison upon a recognisance shall have a writ of conspiracy upon the Statute called Articuli super cartas 28 E. 1. 10. against the Recognisée if he find him not Bread and water in Prison 3 Albeit a man in Prison by processe of Law ought to be kept in salva arcta custodia and by the Law ought not to go out Co. Inst p. 1. 260. a. 3. though it be with a Kéeper and with the leave or sufferance of the Gaoler But yet imprisonment must be custodia and not poena for Carcer ad homines custodiendos non ad puniendos dari debet â—â—â—se of 〈◊〉 4 To prevent and avoid oppression injure and injustice Co. ib. 266. a. 1 the Law prohibits that a Right or Chose in Action should be granted or transferred to a stranger And therefore saith the Mirrour cap. 2. § 17. Nul charter nul vende ne nul done vault pro penaltment si le Donor nest seisie al temps de contracts de deux droits viz. Del droit de possession Et del droit de propertie Howbeit such a right or thing in Action may be released because that quiets and confirmes the present possession and property and causeth no disturbance or injustice but rather prevents them 138 It favoureth Vertue 139 Hateth Vice â—â—â—ition â—â—nful void 1 A Remainder may enure upon Condition to marrie my Daughter or any other lawfull Condition precedent Pl. Co. 34. b. 4. But if the Condition be to kill a man or to do any other unlawfull Act the Remainder shall not be good for the Condition being unlawful it shall not be of force to gaine any thing in our Law â—â—rd 2 A man makes a Lease for life to B Co. Inst p. 1. 3. 1. Remainder to the eldest Issue male of B. and to the heires males of his body B. hath Issue a Bastard-sonne he shall not take the Remainder for qui ex damnato coitu nascuntur inter liberos non reputentur So it is also if a man make a Lease for life to B. the Remainder to the eldest Issue male of B. to be begotten of the body of Jane S. whether the same Issue be legitimate or illegitimate B. hath Issue a Bastard on the body of Jane S. this Sonne or Issue shall not take the Remainder causa qua suprà And it séemeth also if after the birth of the Issue B. had maried Jane S. so as thereby the Issue becomes Bastard eigne and had a possibility to inherit yet shall he not take the Remainder by the word Issue â—pement 3 If the Wife Elope from her Husband that is Co. ib. 32. a. 4. if the Wife leave her Husband and goeth away and tarrieth with an Adulterer she shall lose her dower until her husband willingly without coertion Ecclesiastical be reconciled to her and permit her to co-habit with him all which is comprehended shortly in these two verses Sponte virum mulior fugiens adultera facta Dote sua careat nisi sponsi sponte retracta And if she goeth willingly with or to the Avowterer this a departure and a tarrying albeit she remaineth not continually with the Avowterer or tarrieth with him against her will or he turne her away also if she co-habit with her Husband by the Censures of the Church In all these Cases she loseth her Dower See more of this matter in the exposition upon the Statute of West 2. 34. 13. E. 1. Vide Co. Inst part 2. Co. ib. 123. a. 4. 4 Some hold that the Bastard of a Niefe shall be a Villain Bastard and others hold that if a Villein hath a Bastard by a Woman and after marrieth the Woman that this Bastard is a Villain but the Law is contrary in both Cases For Vice is so odious in Law that albeit a Bastard be a reputed Sonne yet is he not such a Sonne in consideration whereof an use may be raised because in judgment of Law he is nullius filius And for the same reason where the Statute of 32 H. 8. of Wills speaketh of Children Bastard-children are not within that Statute neither is the Bastard of a Woman a Child within that Statute where the mother conveyes lands unto him It was found by Verdict that Henry the Sonne of Beatrix which was the Wife of Robert Radwel deceased was borne per undecim dies post ultimum tempus legitimum mulieribus constitutum and thereupon it was and judged quod dictus Henricus dici non debet filius praedicti Roberti secundum Legem Consuetudinem Angliae constitutam that being nine moneths according to that of Esdras Vide interroga pregnantem si quando impleverit novem menses suos adhuc poterit matrix ejus retinere partum in semetipsa dixi non potest Domine Howbeit the Prince of Conde father of the Priâ—ce now living and in Rebellion against the King of France this present yeare 1652 was borne 14 moneths after the death of his father and it was adjudged possible by the unanimous opinion of the Physicians of Montpeller by reason of the excessive griefe which the Lady was conceived to take at the death of her husband Co. ib. 123. b. Litt. §. 189 290. 5 Regularly a Villain cannot sue an Action against his Lord Appeale of the Lord for death or Rapâ— by the Villeâ—â— yet sinne and vice are so odious in the eie of the Law that he may have against his Lord an Action of appeale of the death of his father or other Ancestor whose heire he is And if in such an appeale of death it be found for the Plaintiffe the Villein is enfranchised for ever Hinc enim est Fleta l. 1. â— 5. quod eo ipso sunt hujusmodi Domini servos suos amissuri cum de injuriis fuerint convicti And there is no diversity herein whether he be a Villain regardant or in grosse although some have held otherwise Likewise if a Nife be ravished by her Lord she may have an appeale of Rape against him For by the general purview of the Statutes of Westm 1. 13. West 2. 35. 6 R. 2. 6. 11 H. 4. 13 1 E. 4. 1. that give the appeale of Rape the Niefe shall have an appeale of Rape against her Lord And it séemeth by the ancient Authors of the Law that this so heinous an offence was severely punished by losse of eies and privy members However of old time it was felony which you may sée at large in the second part of the Institutes upon West 1. 13. sée also more of Rape in the third part of the Institutes cap. Rape Co. ib. 2â—6 b 2 6 Obligations or other transactions Unlawful acâ— with enjoyne men to doe any Act which is malum in se are invalid and not in Law As if a man be bound upon
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
it is no good plea to say that he hath ratified confirmed c. for the confirmation ought to be pleaded by Deed that it may appeare to the Court to be certaine Dyer 243. 56. 8. Eliz. 15. There was a submission to an Award by Obligation Arbitrement so as it should be made and yeilded in Writing at or before Michaelmas c. the Plaintiff saith that the Arbitrators by arbitrement in writing factum partibus before the day deliberat make an award c. and assignes the breach the Defendant demurres and the Court gave it against the Plaintiff Because 1. it is no direct but onely an argumentative affirmance that the Arbitrators delivered the award 2. He should have pleaded the deliverie according to the condition viz. that it was delivered at or before c. and not before onely 3. Redditum had been a more apt word to answer to yeilded then deliberatum Hab. 38. Capes case 16. Vpon an Assumpsit brought by an Administrator for a promise to the Intestate it is not enough for him to plead the Letters of administration Administrator but he ought to produce them in Court that it may appeare to them that it is as he hath pleaded So upon plea of a Deed the Deed must be shewed in Court Hob. 91. 17. The Auditor of the Court of Wards could set no charge or award processe to answer any charge but upon a Record an office or the like Sir Thomas Puckerings case 255. It Disfavoureth Impossibilities Co. Inst pars 1. 25. b. 4. 1. If Lands be given to a man and two women Lands intailed to a man and two women and the heirs of their bodies begotten in this case they have a joint estate for life and every of them severall Inheritance because they cannot have one issue of their bodies neither shall there be by any construction a possibilitie upon a possibilitie viz. that he shall Marrie the one first and then the other And the same Law it is when Land is given to two men and one woman and to the Heires of their bodies begotten Co. ibid 28. b. 1 2. Lands are given to the husband and wife Generall Taile frustrates Speciall and to the heires of the bodie of the husband the remainder to the husband and wife and to the heires of their two bodies begotten the husband dies without issue In this case the wife shall not be tenant in taile after possibility c. for the rent in speciall taile was utterly voide for that it could never take effect because so long as the husband should have issue it should inherit by force of the generall taile and if the husband die without issue then the speciall taile cannot take effect in as much as the issue which should Inherit the speciall must be begotten by the husband and so the generall which is larger and greater hath frustrated the speciall which is lesser and the wife in that case shall be punished for wast Co. ibid 30. b. 2. 3. A man shall be tenant by the courtesie of a Common sans number Common sans number but a woman shall not be endowed thereof because it is Impossible to divide it Co. ibid 48. b 4. Betrisworths case Co. l. â— 31. b. 4. 4. If a man be seised of an house and of divers severall closes in the same County in fee and makes a lease thereof for years Livery Voyde and afterward maketh a feoffment in fee of the same and makes livery of seisin in the closes the lessee or his wife or servants being then in the house the Livery is voide for the whole because it is impossible for the lessee to be upon every parcell of the land to him demised for the preservation and continuance of his possession therein and therefore his being in the house or any part of the Land to him demised is sufficient to preserve and continue his possession in the whole from being ousted or dispossest A Corporation cannot do homage 5. A single person may do homage either in his owne right or in the right of another as the husband and wife in right of the wife Co. ibid 66. b. 3. the Bishop in right of his Bishopricke the Abbot or Prior in right of his Monastery c. for the Covent are dead persons in Law But a Corporation aggregate of many though capable persons be the same Ecclesiasticall or Temporall cannot do homage as Deane and Chapter Mayor and Commonaltie and the like albeit they be seised of Lands holden by homage because homage must be done in person and it is not possible for a Corporation aggregate of many to appeare in person for albeit the bodies naturall whereupon the Bodie Politique consists may be seene yet the bodie corporate or politique it selfe cannot be seene nor do any act but by Attorney and homage must ever be done in person Reliefe 6. A tenant holdeth of his Lord certaine Lands in soccage to pay yearly a paire of Guilt Spurres or 5 s. in money at the feast of Easter Co. ibid. 90. b. 4. In this case the rent is uncertaine and the tenant may pay which of them he will at the said feast and likewise the tenant may pay which of them he will for reliefe but if the tenant be to attend upon his Lord at the feast of Christmas or to pay 10 s. in that case the releife must be 10 s. because it is impossible to double the attendance upon his Lord at Christmas for that as the common saying is Christmas comes but once a year Homage Ancestrell Acquitall warrantie 7. In case of an expresse Warrantie the heire shall be charged but onely for such lands as he hath by descent from the same ancestor Co. ibid 102. a. 3. who created the Warranty but in case of Homage Ancestrell which is a speciall Warranty in Law the lands generally that the Lord hath at the time of the voucher shall be lyable to execution in value whether he hath them by discent or purchase for it were unreasonable that the tenant should be driven to recover in value onely those lands which the Lord had from that Ancestor who created the seigniory because that is in a manner impossible for that the seigniory must be created before time of memorie and the first creation of the seigniorie did not create the warrantie but the continuance of both sides time out of mind created it No heire female whiles an heire male 8. If a man give lands to another Co ibid 164 a. 2. and to the heires males of his bodie upon condition that if he die without heire female of his bodie that then the donor shall re-enter this condition is utterly voide for it is impossible that he should have an heire female so long as he hath an heire male Condition 9. Regularly it is true that he Co. ibid 202. a. 3. who entreth for
a Condition broken shall be seised in his first estate or of that estate which he had at the time of the estate made upon Condition Howbeit this faileth where there is an Impossibilitie it should be so As if a man seised of lands in right of his wife maketh a feoffment in fee by Deed indented upon condition that the feoffee should Demise the land to the feoffor for his life c. the husband dieth the condition is broken In this case the heire of the husband shall enter for the condition broken but it is impossible for him to have the estate that the feoffor had at the time of the condition made for therein he had but an estate in the right of his wife which by the coverture was dissolved And therefore when the heire hath entred for the condition broken and defeated the feoffment his estate doth vanish and presently the estate is vested in the wife Impossible conditions void 10. In all cases where the condition of a bond recognisance c. Co. Inst parâ— 1. 206. a. 4. is possible at the time of the making of the condition and before the same can be performed the condition becomes Impossible by the act of God of the Law or of the Obligee c. there the Obligation c. is saved but if the condition of a bond c. be Impossible at the time of the making of the condition the Obligation c. is single And so it is also in case of a feoffment in fee with a condition subsequent that is Impossible In that case also the estate of the feoffee is absolute but if the condition precedent be Impossible no State or interest shall grow thereupon As if a man be bound in an Obligation c. with condition that if the Obligor do go from the Church of Saint Peters in Westminster to the Church of Saint Peters in Rome within 3 houres that then the Obligation shall be voide In this case the condition is voyde and impossible and the Obligation standeth good So likewise if a feoffment be made upon condition that the feoffee shall go as is aforesaid the state of the feoffee is absolute and the condition impossible and voide In like manner if a man make a lease for life upon condition that if the lessee go to Rome as aforesaid that then he shall have fee Here the condition precedent is Impossible and voide and therefore no Fee-simple shall in this case accrue to the lessee Co. ibid. 218. a. 2. Pl. Com. 32. a. 4. in Colthrists case And. ibid. 34. b. 4. 11. If a Lease be made with Condition to have fee upon payment of money to the Lessor or his Heires at a certaine day Condition impossible no accruet before the day the Lessor is attainted of Treason or Felony and also before the day is executed Now is the Condition become impossible by the act and offence of the Lessor and yet the Lessee shall not have fee because a precedent Condition to encrease an estate must be performed and if it become impossible no estate shall accrue Co. l. 1. 87. a. 4. in Corbets case Co. l. 6. 40. b. 3. in Sir Anthony Mildmayes case 12. If Coparceners agree to present by turne Perpetuity this may be done being partition as to the Possession so if they agree that one of them shall have it from Easter to Lammas and the other from Lammas to Easter this is good and may be done as to the possession and the taking of the profits but they cannot make severance of the estate of Inheritance in the Land as the one to have it for one time and the other for another for such agreement were impossible and void And therefore if a man intaile his Land to his eldest Son provided that if he go about to alien c. that then his second Son shall have it c. this is void for it is impossible and against reason that an estate should cease as to one and yet continue as to another or that in such case the eldest Son should be dead when one beholds him and in full life when another looks upon him and so to make him as it were halfe alive and halfe dead Vide pl. ibid. Co. l. 2. 51. a. 1. Sir Hugh Chomleys case 13. If there be Tenant in tail Render void the Remainder in tail grants all his estate for the life of Tenant in tail the Remainder to Queen Eliz. In this case the Remainder to the Queen is void because the particular estate which should support it is void for that it is impossible that the Remainder granted during the life of the Tenant in tail should ever take effect in Possession or the Grantee enter to have any benefit of such a Grant Co. ibid. b. 4. and therefore void besides when the Remainder in tail had granted all his estate for the life of Tenant in tail it is not possible the Queen should take any thing when all his estate was granted away before to the first Grantee but in such case the Inheritance in obeyante c. Co. l. 4. 19. b. 2. in Briltridges case 14. If one say that I. S. is a perjured old knave Slander and that is to be proved by a stake parting the Land of A. and B. These words by reason of the insensibility and impossibility of them are not actionable for it is impossible Co. l. 5 8. a. 2. in Justice Windhams case that a stake should prove any thing 15. Regularly if Land be granted to two and their heirs Joynt Grant enures severally they shall take joyntly Howbeit if a Lease be made to an Abbot and a secular man or a gift to two men or two women and the heires of their two bodies begotten in one case the Possession and in the other the Inheritance is severall because it is impossible that an Abbot being a Corporation should take joyntly with a secular person or that two men or two women should have Issue of their two bodies unlesse one of them be an Hermotradite Payment of money 16. The payment of a lesse summe at the day in satisfaction of a greater Co. l. 5. 117. a. 3. in Pinnels case cannot be satisfaction for all for that by no possibility a lesser sum can be satisfaction for a greater but before the day a lesser sum may be taken in satisfaction of a greater and so may any thing else as an Horse Hawke or the like upon the day or before the day because the money paid before the day or a Horse Hawke c. may be as beneficiall for the party as if the money had been paid at the day The Dutchy of Cornewall 17. One cheife reason Co. l. 8. 16. a. 3. in the Princes case to prove the first point in the Princes case whether or no the Dutchy of Cornewall was to be alwayes in the eldest Son of
and the other Husband and Wife the other Moiety and no crosse Remainder or other possibilitie for the improbability thereof shall be allowed in Law where it is once setled and takes effect so likewise if Lands be given to a man and two women and the Heires of their bodies begotten in this case they have a joynt Estate for life and each of them a severall Inheritance because they cannot have one Issue of their bodies neither shall there be by any construction a possibility upon a possibility for the Improbability thereof viz. that he shall marry the one first and then the other The same Law it is also when Land is given to two men and one woman and to the heires of their Bodies begotten Co. l. 2. 51. a 4. in Sir Hugh Cholmelies case in Magdalen Colledge case Co. l. 11. 70. b. 3. 2. A remote possibility is never intended by Law Remainders improbable to take effect And therefore where A. was Tenant in Taile Remainder in Taile to B. B. grants all his Estate to C. for the life of A. this Grant is void because it is impossible it should ever take effect and whereas in that case it was objected that A. might enter into Religion and be profest whereupon the Grantee might enter and enjoy the Land during the naturall life of A. it was answered and resolved That that was a Forraigne possibility and not probable nor imaginable in Law for a possibility which makes a Remainder good must be Potentia propinqua a common possibility and not Potentia remota And therefore a Remainder will not vest in a thing or person that is not in Esse at the time of the Grant made unless at the same time there be Potentia propinqua or a pregnant probability that it may take effect as a Remainder granted to a Corporation not in being at the time of the Grant made is void albeit the Corporation be erected afterwards during the particular Estate because that is Potentia remota and improbable But if a Lease be made for life the Remainder to the right Heires of I. S. this is good for by common possibility that I.S. may dye during the life of Tenant for life and untill he dye his Heires are in him Howbeit if at the time of the limitation of the Remainder there be no such person as I.S. but during the life of Tenant for life I.S. is borne and dyes his Heir shall never take it 2 H. 7. 13. 10 E. 3. 46. as it is agreed in 2 H. 7. 13. So likewise in 10 E. 3. 46. upon a Fine levied to R. he grants and renders to I. and Florence his Wife for life the Remainder to G. the Son of I. in taile the Remainder to the right Heires of I. and in truth at the time of the Fine levied I. had not any Son named G. but after had issue named G. and dyed In this case G. could not take the Remainder in Taile because he was not borne at the time of the Fine levied for when I. had not then any Son named G. the Law doth not expect that he shall have a Son named G. after for that is improbable and Potentia remota c. Obligation payable before statutes 3. Debt due by Obligation shall be payd by an Executor before a Statute acknowledged for the performance of Covenants Co. l. 5. 28. b. Harrisons case when none of them are or perhaps will ever be broken but are things in contingency Futuro and therefore such a possibility which peradventure will never happen shall not barre present and due debts by Obligation or other specialties Contingency 4. When a man by Indenture limits Lands to himselfe for life Co. l. 10. 85 a. 2. in Leonard Lovies his case Remainder to another in taile Remainder to his right Heirs with power to make Leases for Life Lives or Yeares without any restraint of Lives or Yeares and further to the uses to be exprest in his last Will or to the use of such person or persons unto whom he shal by his last Will devise any Estate or Estates thereof In this case the Estate in Taile is incontingency for by those or the like words he may devise the Land to any person in Taile or in Fee And therefore because it is very improbable that the Estate tail may ever take effect it shall not in this case presently vest by the statute of 27 H. 8. but shall be said to be in contingency so as if he by such power alter not the Estates so limited it may happen to take effect but if otherwise it will vanish and come to nothing Vide pl. ibidem Bar to an avowry 5. In Bar to an Avowry for Trespasse in 300 acres of common field Land or Downe Dyer 171. 9. 1 2. Eliz. the Plaintiff to frame himselfe a Title alledgeth in his Barr that A. from whom he derived his Estate was seised of the scite of the Mannor of Dale whereof the said 300 acres were parcell and this Barr was adjudged insufficient for the Improbability that so much Land should be parcell of the scite 162. Uncertainties by which the truth may be inveigled Villain 1. If a man do enfranchise a Villain Cum tota sequela sua Co. Inst pars 1. 3. a. 4. that is not sufficient to enfranchise his children borne before for the uncertainty of the word Sequela Heires 2. If a man gives Lands to one to have and hold to him or his heirs Co Ib. 8. b. 3. 22 H. 6. 15. he hath but an Estate for life for the uncertainty so if a man give Land to two to have and to hold to them two Et heredibus omitting Suis they have but an Estate for life for the uncertainty Co. ibid. 9. a. 2. and Co. ibid. 20. b. 1. 3. To avoid uncertainty Vocabula artis which is commonly the Mother of contention and confusion the Law doth appropriate to it selfe certaine words which may be termed Vocabula artis to expresse diverse things which cannot significantly be expressed by any other words or by any Periphrasis or circumlocution without them as the word Heires for the discent of Inheritance which doth not only extend to his immediate heirs but to his heires remote and most remote born and to be borne Sub quibus vocabulis heredibus suis omnes haeredes propinqui remoti nati nascitari And Haeredum appellatione veniunt haeredes haeredum in infinitum saith Fleta lib. 3. cap. 8. So likewise the Law useth peculiar words for Tenures Persons Offences Formes of Originall Writs Warranty Exchange c. and all this to procure certaine expressions and to prevent uncertainty for the reason aforesaid Co. ibid. 20. b. 1. 4. If a man give Lands to A. Et haeredibus de corpore suo A grant void the Remainder to B. In forma predicta this is a good Estate Taile to
he in the reversion or his heires after the estate taile determined for default of issue may enter into the land by force of that condition and shall not be put to his Formedon in reverter Note Co. Inst pars 1 224. b. that here Littleton doth purposely make parcel of the condition in the copulative 1 viz. that the tenant in taile should alien c. and all the issues die c. for if a gift in taile be made to a man and the heires of his body and if he die without heires of his body that then the donor and his heires shall re-enter this is a void condition for when the issues faile the estate determineth by 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 this case the wife of the donée shall be endowed And therefore Littleton to make the condition good added an alienation which amounted to a wrong and restrained not the alienation onely for then presently upon the alienation the donor c. might re-enter and defeat the estate taile but addeth and die without issue to the end that the right of the estate might be preserved and not defeated by the condition but might be recovered againe by the issue in taile in a Formedon Co. ibid. 125. a. pl. Co. 107. in Fulmerstons Case 2 Note that in a condition consisting of divers parts Conjunction copulative and disjunctive in the copulative as above in the case of Littleton both parts must be performed but otherwise it is when the condition is in the disjunctive for in disjunctivis sufficit alterum esse verum what then if the condition or limitation be both in the copulative and disjunctive as if a man make a lease to the husband and wife for the terme of 21 yeares if the husband wife or any child betwéene them so long live and then the wife dieth without issue shall the lease continue or determine during the life of the husband The answer is that it shall continue for the disjunctive referreth to the whole and disjoyneth not onely the latter part as to the child Pl. 30. El. in C. B. Truepennies Case but also to the barn and feme so as the sence is if the barn feme or any child shall so long live So if an use be limited to certaine persons untill A. shall come from beyond Sea and attain to his full age or die here if he doth come from beyond Sea or attaine to his full age the use shall cease Co. l. 10. 59. a The Bishop of Sarums Case 3 In Avowry exception was taken to the barre Negative pregnant Pleading because where the avowant had alleadged by matter in fact that the office for which the annuitie was due had béen granted to such person or persons as pleased the Bishop of Sarum c. the defendant in his barre had pleaded in the negative that the said office had not béen granted but for the life of one c. and therefore the defendant ought to have concluded hoc quaerit quod inquiratur per patriam whereas he concluded all his plea with hoc paratus est verificare c. sed non allocatur for the Avowant alleadged not that the said office had béene granted c. to divers persons but to such person or persons as pleased the Bishop Et in disjunctivis sufficit alterum esse verum so that the defendant did not traverse what the Avowant had alleadged Pl. Co. 5. b. Fogasses Case 4 The Statute of 1 El. 13. Disjunctive for the payment of Subsidies for Merchandize is in the disjunctive viz. the subsidie not paid or the Collector not agréed with And therefore if either of these be done the intent of the Statute is performed Pl. ibid. 9. a. 5 The Statute of 26 H. 8. 3. is in the disjunctive Disjunctive viz. that every Parson Vicar c. which before they enter upon their benefice doe not satisfie content or pay or compound or agrée to pay to the King the first-fruits c. shall be taken as intruders And therefore although they do not pay down the first-fruits immediately but agree to pay them or as the Comon use is give bond for them it is sufficient Dyer 43. 22. c. 30 H. 8. 6 A Merchant having payed custom for certain Clothes Custome concealed ships them for beyond-sea in a tempest the Marriners for the safeguard of themselves and the ship were forced to throw the Clothes over boord and comming back to the same port they asked the Customer whether or no they might having that misfortune transport as many more Clothes without paying Custome the Customer told them he thought they might which they did accordingly hereupon an Information being brought the issue joyned was Quod Customarium Subsidium non fuerunt solut nec cum Collectore concordat Sed omnino concelat substract contra formam statuti c. And it was found by the Nisi prius at Guild-hall Quod Customarium Subsidium c. non concelat substract contra formam statuti c. And here it was doubted whether the verdict was for or against the King for the verdict had béene perfect if it had béen Quod non fuerunt concelat aut substract if the Iury had intended to find for the defendant but now their intent as it séemes was to acquit the defendant of the concealment but not of the Subtraction 10 Words in construction must be referred to the next antecedent where the matter it selfe doth not hinder it Remainder where good or void 1 If a man gives land to A haeredibus de corpore suo Co. Inst pars 1. 20. b. the remainder to B in forma praedicta that is a good estate to B. because in forma praedicta doth include the other Co. ibid. 385. b. But if a man letteth lands to A. for life the remainder to B. in tail the remainder to C. in forma praedicta this last remainder is void for the uncertaintie Howbeit if the remainder had been the remainder to C. in eadem forma this had been a good estate tail for Idem semper proximo antecedenti refertur Release 2 M. releaseth to N. Omnimodas actiones tà m reales quà m personales Co. l. 8. 154. b. Althams Case sectas quaerelas demanda quaecunque nec non totam dotem suam ac titulum actionem dotis sibi contingent post mortem T. viri sui de aliquibus terris tenementis suis in W. quae vel quas illa praefata M. vel executores sui versus ipsum N c. Here the words of Relation Quae vel quas do referre as well to the special words Dowers c. as to the generall words Actions c. and Demands for it would be against reason that they should referre to the
is to be bound by it And yet if the Father be Tenant for life the remainder to the same 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 this is executed accordingly the father dieth Here this warranty shall not binde 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 So it is if one brother make a gift in taile to another 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 binde the Donor So likewise if the father the 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 also take advantage that in this case the warranty commenced by disseisin though the disseisin was done to another c. Co. l. 5. 79. b. Fitzherberts case Co. ibid. 372. a. 4. 23 By the Statute of the 32 H. 8. cap. 36. Fine barres aâ— entail in reversion a fine with proclamations according to the Statute of 4 H. 7. cap. 24. shall barre the estate taile but not him in the reversion or remainder if he maketh his claime and pursue his action within five years after the estate taile spent c. Howbeit if a gift be made to the eldest son and to the heires of his body the remainder to the father and to the heires of his body the father dieth the eldest son levieth a fine with proclamations c. and dieth without issue this shall bar the second son for the remainder descended to the eldest and therefore what the father might have done by force of a fine the eldest son shall in this case also do c. Co. lib. 3. 84. The case of Fines Dalison 2 El. 7 Eliz. 24 If the Lessor enter for the condition broken Debt for rent after surrender c. or if the Lessee surrender unto the Lessor Here the estate and terme is determined and yet the Lessor shall have an action of debt for the arrearages due before the condition broken or the surrender made as appears in Fitz. N. B. 120. 122. 30 E. 3. 7. 6 H. 7. 3. b. contrary to the booke of 32 E. 3. tit Barre 262. which is not Law and this is in respect of the contract betwixt the Lessor and the Lessee Co. lib. 3. 23. b. 4. Walkers case 25 A man may prescribe in a Water-course leading to his Grist-mill Prescription 〈◊〉 a Waterhouse albeit it was of late time changed from a Fulling-mill to a Grist-mil Et vice versa because that alteration is not of the substance of the prescription but the Mill may be so described to shew the nature and quality of it and doubtlesse at first he might prescribe in the Water-course before any Mill was built Co. l. 4. 87. a. 1. Luttrels case Co. ibid. 26 If a man have Estovers either by grant or prescription belonging to his house Prescription 〈◊〉 Estovers c. although he alter and change the rooms and chambers of the house as to make the Hall to be the Parlour and the Parlour to be the Hall and such like alteration of the quality of the house and not of the house it selfe and without making any new Chimneys whereby the owner of the wood may suffer prejudice or albeit he make new Chimneys or an addition to the house yet spend none of the Estovers in thâ—se new Chimneys or in the part newly added doth in none of these cases destroy the ancient prescription for then many prescriptions would be destroyed There is the same law of Conduits Water-pipes and the like Also if a man have an ancient window in his Hall and after he convert his Hall to a Parlour or any other use yet his neighbour cannot stop it for he can prescribe to have a light in such a part of his house â— corporation â—ranslated enâ—oyes the ancient priviledges 27 If a Corporation hath Franchises and Priviledges by grant or prescription and after they are incorporate by another name Co. ibid. b. 1. as if they were Bailiffs and Burgesses before now they are Major and Cominalty or Prior and Covent before and after they are translated to a Deane and Chapter c. Although in these cases the quality and name of their Corporation is changed and especially in the case of the Prior and Covent for of Regular which are dead persons in the Law they are made Secular yet the new Corporation shall enjoy all the Franchises Priviledges and Hereditaments which the old Corporation had be it by grant or prescription for no man can be prejudiced by it c. A stranger â—ound by a cuâ—tome 28 In debt against an Administrator upon an Obligation Co. l. 5. 83. a. Snellings case the Defendant pleads that the custome of London is that the Administrator shall be bound to pay a debt upon a simple contract as upon an Obligation c. and that he had already payd I. S. c. And in this case it was adjudged that the Plaintiff being a stranger was as well bound by that custome as if he had béen a Citizen Vide 1 E. 4. 6. accord Presentation â—o an Advowâ—on 29 Winsor Plaintiff hath an Advowson of two parts Co. l. 5 102. Winsors case the Defendant of the third the Plaintiff presents one the Incumbent dies then in the time of E. 6. he presents one Parry who in the time of Quéen Mary was deprived quia conjugatus c. whereupon the Defendant presents his Clerke who 1 Eliz. was also deprived by Juell and other High Commissioners and the first sentence adjudged void and Parry restored the Clerk of the Defendant dies Parry also dies the Defendant presents because his Clerk was deprived whereupon the Plaintiff demurres And in this Quare Impedit judgment was given against the Plaintiff for albeit the Clerk of the Defendant was Parson for the time to all purposes and during the first deprivation Parry was not Incumbent yet when the second sentence came then was Parry incumbent againe by force of the first presentation institution and induction and there néeded no new institution c. And by force of the second sentence the Presentée of the Defendant was removed and Parry restored And therefore when Parry dyed which was the last Presentée of the Plaintiff the Defendant shall present as in his turn and by force of the second sentence Parry was
action brought becomes no deed either by rasure addition or other alteration or by breaking the seale c. In this case although it were once a déed yet the Defendant may safely plead Non est factum for without question at the time of the plea which is in the present tense it was not his déed 36 H. 8. Dyer 59. in an action of Debt upon an obligation against Hawood the Defendant pleads non est factum and before the day of apparance of the Inquest the Mice had eaten the Label unto which the seale was fixed by the negligence of the Clerke in whose custody it was Here the Iustices charged the Iurors that if they found the déed to be déed of the Defendant at the time of the plea pleaded they should then give a special verdict which they did accordingly Co. l. 6 15. a. 1. Trepors case 9 If A. Tenant for life and B. in remainder in fée Lease and confirmation joyne in a lease to C. Immediately after the delivery of the déed it is the lease of A. during his life and the confirmation of B. and after the death of A. it is the lease of B. and the confirmation of A. according to the opinion of Dyer and Brown Mich. 6 7 Eliz. fol. 234 235. Co. l. 6. 22. Ambrosia Gorges case 10 If a man marry an Inheritrix of lands holden of the King in Capite and hath issue by her a Daughter and afterwards the Feme die A daughter iâ— ward during the life of her father the Daughter shall not be in Ward because she is yet heire apparant to her Father But if the Father take another Wife and hath issue a Son then shall the Daughter be in ward to the King because the Son is now his heire apparent and not the Daughter And no heire apparent shall be in ward during the life of the Father Co. l. 7. 18. a. Calvins case 11 The time of the birth of a man or woman is chiefly to be considered to make them a Subject borne or not Ante-nati Post-nati and is as it were of the essence of a Subject born For a man cannot be a Subject to the King of England unlesse at the time of his birth he was under the ligeance and obedience of the King of England albeit the Kingdome of the King under whose ligeance he was borne do afterwards descend to the King of England And this is the reason that Ante-nati in Scotland for that at the time of their birth they were under the ligeance and obedience of another King are aliens borne in respect of the time of their birth c. â—â—ttle in â—und tender 〈◊〉 late 12 Tender of the rent upon the land before the Distresse Co. l. 8. 147. 2. 4. The 6 Carpenters case makes the Distresse tortious tender after the Distresse and before the imparkment makes the detainer but not the taking tortious tender after the imparkment makes neither the one nor the other tortious for then it comes too late in regard the cause is then put to the tryall of the Law to be there determined 13 Distinguenda sunt tempora concordabis leges Co. l. 9. 16. b. Anna Bedingfeilds case â—state to the â—st issue in â—ile 14 Thomas Bowles in consideration of marriage with Anne Hide Co. lib. 11. 80. a. 4. Lewes Bowles case covenants to stand seised of the Mannor of D. to the use of himselfe and Anne for their lives and after to their first issue male and the heires male of his body and after to the heirs male of the bodies of Thomas and Anne c. In this case before issue had Thomas and Anne were seised of an estate taile executed sub modo viz. untill issue and then by operation of Law the estates were divided viz. Thomas and Anne became Tenants for life the remainder in taile to the issue the remainder to the heirs male of Thomas and Anne c. â—landerous â—ords 15 A man brings an action upon the Case for these slanderous words Thou art an arrant Knave a Cosener a Traitor Co. l. 10. 131. a. 1. Ja. Osborns case being all spoken together at one and the same time and upon not guilty pleaded the Iurors finde for the Plaintiff and assesse damages generally for all the words herein they did well for all those words taken together make but one scandal and albeit no action lieth for these words Thou art an arrant Knave a Cosener spoken apart by themselves yet being spoken at one and the same time and coupled with the other words and a Traitor which are indéed actionable they aggravate them and make them worse Howbeit if at one time the Defendant calls the Plaintiff Traitor and at another time he calls him arrant Knave and Cosener and the Plaintiff brings an action upon the Case and alleadgeth the said several words spoken at several times as several causes of action theâ—e if upon not guilty pleaded the Iurors assesse damages intirely judgement shall be arrested for all for he grounds his action upon two several scandals whereas one of them is not actionable c. 〈◊〉 perquisite â—y the purâ—hase of a â—illein 16 If a man hath a Villein in right of his wife Co. Inst pars 124. b. 1. and the Villein purchase land he shall have that perquisite in her right but if the Villeine purchase it after issue had then the Baron shall have the perquisite to him and his heires because by the issue he is entitled to be Tenant by the Courtesie in his own right 49 Quod prius est tempore potius est jure Vide Max. 62. Pl. 10. 19. â—emitter 1 One of the reasons of a Remitter is Co. Inst pars 1 347. b. 3. because that title which is first and more ancient is alwayes more sure and worthy And therefore many books in stead of Remitter say that he is En son primer estate or en son melior droit or en son melior estate c. or the like For Quod prius est verius est quod prius est tempore potius est jure c. Confirmation â—st best 2 The Lessée for life made a lease for thirty years Co. ib. 296. a. 3. and after the Lessor and Lessée for life made a lease for 60 years to another which lease for sixty yeares the Lessor did first confirme and after the Lessor confirmed the lease for thirty years and after the Tenant for life died within the thirty yeares In this case the lease for thirty yeares was determined by the death of the Tenant for life and the Lessée for sixty yeares might enter for that albeit the lease for sixty yeares was the later in time yet was it of greater force in Law because the Lessor who had power to confirm which of them he would did first confirm the second lease Inter Unwel and Lodge
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
betwixt them Co. ib. 209 a. 2. 132 If a man be bound to A. in an Obligation with condition to enfeoff B. who is a meer stranger before a day The like the Obligor doth offer to enfeoff B. and he refuseth Here the obligation is forfeit for the Obligor hath undertaken to enfeoff B. and there wants privity betwixt him and B. But if the feoffment hâ—d béen to be made to the Obligée himself or to any other for his behoof a tender and refusal shall save the Bond because of the privity betwixt them So likewise if A. be bound to B with condition that C. shall enfeoff B. In this case if C. tender and D. refuse the obligation is saved for it shall be intended that the feoffment should be made for the benefit of the Obligee which implies privity Co. ib. 245. a. 4. 133 A strangers entry of his own head upon the Bastard eigne to the use of the Mulier Bastard â—â—lier entry is not good without the Muliers consent thereunto afterwards Howbeit the entry of the Guardian in soccage or chivalry of their own heads without the Muliers assent is good to avoyd the title of the Bastard eigne because of the privity for they are no strangers Dyer 29 a. 194 28 H. 8. 134 Tenants in Common cannot make partition without deed Partition but Coparceners may because they are privies and as one heir and by consequent have a three-fold privity viz. in estate person and possession Vide suprà 130. 135 Vide Max. 114. c. 58. Hob. 130. Oates and Frith 56 Equal things cannot drown one another contrà Co. Inst pars 1 273. b. 3. 1 If a man make a lease for ten years the remander for 20 years A release of Lessee for years to Leâ— for years he in the remainder releaseth all his right to the Lessee for ten years In this case the Lessee for ten years hath an estate for 30 years for one chattel cannot drown another neither yet can yeares be consumed in years â—estate taile â—not drown 〈◊〉 be extinct 2 If a gift be made to the eldest son and to the heirs of his body Co. ib. 372. a. 4. the remainder to the father and to the heirs of his body the father dieth the eldest son levieth a fine with proclamations and dieth without issue Co. l. 2. 61. a. in Wiscots case this shall barre the second son because the father while the remainder was in him might by levying a fine have barred the youngest son of taking any benefit by it and therefore when the remainder descends to the eldest son a fine levyed by him shall also be of like force to bar the youngest for that an estate tail can neither drown nor be extinct because such an estate was Fee-simple at the Common Law and may by possibility endure for ever â—ease for life â—y uphold a â—se for years 3 If a man letteth lands to another for life Co. Inst pars 1. 54. b. 4. the remainder to him for 21 years he hath both estates in him so distinctly as he may grant away either of them for a greater estate may uphold a lesse in the same person but not è conversò and therefore if a man make a lease to one for 21 years the remainder to him for term of his life the lease for years is drowned c. â—ond annuls â—ontract and Judgment a â—nd 4 A Statute Staple or obligation in nature thereof Co. l. 6. 45. in Higgins case is but an obligation recorded and an obligation be it of record or not of record cannot drown another obligation but if a man hath a debt by simple contract and he takes an obligation for the same debt or any part thereof the contract is determined 3 H. 4. 17. 11 H. 4. 9 E. 3. 50 51. So when a man hath a debt upon an obligation and by ordinary course of Law hath judgement thereupon the contract by specialty which is of a meaner nature is by judgement of Law drowned and changed into a matter of record which is of an higher nature c. Vide 61. 7 8. â—xtinguishâ—ent of a Seigniory 5 If the Lord be Guardian of the land Co. Inst pars 1 367. a. 3. or if the Tenant maketh a lease to the Lord for years or if the Lord be Tenant thereof by Statute Merchant Statute Staple or Elegit and maketh a feoffment in fée of the land to a stranger he doth hereby extinguish his Seigniory because by his own act he hath vested the Seigniory and Tenancy into one hand by which means the tenancy is drowned which before was but in suspence So if there be Lord and Tenant by fealty and rent Co. l. 6. 70. a. 3. in Sir Moyle Finches case and the Lord disseise the Tenant of the land and make feoffment in fee to another hereby the Seigniory is extinct â—here joynâ—ancy may 〈◊〉 merged â—d where â—ot 6 If a man make an estate to thrée and to the heirs of one of them Co. l. 2 61. a. in Wiscots case there the one of them hath Fée-simple yet the Ioynture continues for it is all but one estate created at the same time and therefore the Fée-simple cannot merge the Ioynture which took effect with the creation of the remainder in fée but when 3 are Ioyntenants for life and after one of them purchaseth the fée or the fée descends upon him there the Fée-simple mergeth the estate for life and severeth the joynture for the estate for life was in esse before and may be merged or surrendred but so cannot the estate for life in the first case c. Vide Pl. ibid. â—enure exâ—ct 7 Land was held of the Archbishoprick by Knight-service Dyer 154. 18. 4. 5 P. M. and in the time of E. 3. this land was given by fine to one Strangwayes in tail the remainder in fée to E. 3. the tenant in tail dies his issue within age In this case by Sanders and others if the King will accept of the remainder the issue shall hold of none nor be in ward to any because the tenure and service are goue and extinct by the Kings Fée-simple â—chy of Lanâ—ster 8 After the Duchy of Lancaster came into the Kings hands Dyer 209. 22. 3 Eliz. albeit the revenue were kept several yet per nomen Regis nomen Ducis dimergibatur for he could not be Soveraign and Subject too Vide 3 H. 6. 57 Things are to be construed Secundum aequalitatem rationis Finch 20. Bract. l. 1. c. 3. 1 This Rule in Law imports a logical vertue a kind of equity as Bracton calleth it where he saith Aequitas est rerum convenientia quae paribus in causis paria jura desiderat omnia bene coaequiparat Et dicitur aequitas quasi aequalitas whose nature is to amplifie inlarge and add to the letter of
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
Act of 31 H. 8. would have put that in the beginning and not in the end after other inferiour conveyances if they had intended to have extended the Act to that But these words by any other mean are to be thus expounded viz. by any such inferior meanes So likewise it hath adjudged that Bishops are not included within the Statute of 13 El. cap. 10. For that Statute begins with Colledges Deanes and Chapters Parsons Vicars and concludes with these words and others having spiritual promotions these last words do not include Bishops causa qua suprà So also in the Statute of West 2. cap. 41. The words whereof are these Statuit Rex quòd si Abbates Priores Custodes Hospitales aliarum Domorum Religiosarum c. These last words include not Bishops as it was holden Dier 1 2. P. M. fol. 109. Causa qua suprà Co. l. 8. 133. a. 1. in Turners Case Et Co. 9. 88. b. 4. in Pinchons Case 6 An Executor or Administrator ought to execute his Office Precedency debts legacâ— and to Administer the goods of the dead lawfully viz. ought to pay all duties Debts and Legacies in such precedency and order as he ought to pay them by the Law and if he vary there-from he shall be taken to do in his owne wrong And therefore he ought first to discharge Iudgements Statutes and Recognisances then Debts and Duties by bond after that Debts upon simple Contract and last of all Legacies c. Vide Co. lib. 5. 28. b. 4. Harrisons Case Co. l. 8. 157. a. 4. in Blackamores Case 7 In an Original writ if the Feme be named before the Baron it shall abate albeit that be nothing but want of forme Feme not for the 〈◊〉 c. 8 Exceptio semper altiùs ponenda est And therefore if a release run thus Exception â—ust come last A. doth acknowledge himselfe satisfied c. of all Bonds Co. l. 9. 53. a. 2. in Hickmots Case c. made by B. and it is agreed that A shall deliver all such Bonds as he hath un-delivered to B except abond of 40 l. wherein B C stand bound c. Here the exception extends to all the premisses and it could not be inserted sooner because the proper place thereof is to come last c. Reservation â—fter the Eâ—â—ates 9 The proper place of a reservation is to come after the limitation of all the Estates and therefore if A left to B Habendum pro uno anno Co. l. 10. 107. a. 1. in Lofields Case c. si in fine anni both parties shall be agreed that the Demise shall be renued or continued for a longer time tunc habend premissa for thrée years rendering yearly durante termino praedicto 40 l. c. In this case the Reservation shall extend as well to the first year as to the other thrée years because the reservation was to be inserted after all the Estates so likewise if a man by déed indented demise lands to A Habendum to him for life the remainder to B and to the heirs of his body and for default of such issue to remain to C in tail or for life Reddendo inde to the lessor and his heirs an annual rent this reservation shall extend not to the last estate onely but to the two former estates also because it could not be conveniently inserted before all the estates were limited for his proper place is to succéed them c. 10 There is an order observed in the Register F. N. B. 2. c. when a man demands divers parcels of Land in his writ The method observed in â—rits which are of divers natures which parcel shall be first specified in the writ and which next to that and so of the rest for which order take these two verses following for your direction Mes uagium Tost um Mol. endinum Col. umbare Gar. dinum Ter. ra Pra. tum Pas tura Bos cus Brue ra mora Junca ria Maris cus Alve. tum Pis caria Red. ditus sectare priora And if a man in his writ will demand ten messuages and ten acres of land and ten acres of meadow and ten of pasture c. and after in his writ will demand the moity or third part of a messuage or of an Acre of land or of meadow or of pasture c. then the form of the writ is first to set down to whole and afterwards the moity or third part F. N. B. 33. m 34 v. c. â—â—esentation turn 11 If two sisters have an advowson which happens to be void the elder sister shall have the first presentment and so shall the baron of the elder sister if he be tenant by the curtesie and the tenant in dower in that case shall have but the third presentment c. 74 Sicut natura non facit saltum Ita nec Lex â—der in writs 1 In writs of Entry sur disseisin if the degrées be not duly observed Co. Inst p. 1. 238. b. 3. and the writ framed accordingly that errour will make it abatable As if a man bring a writ of Entry sur disseisin in the Per or in the Per y cui or in the Post when it ought to be a writ of Entry sur disseisin in the nature of an Assize that is an error whereupon the writ shall abate c. Collations 2 When a Quare impedit is brought against the disturber and the Bishop sir moneths passe Co. l 6. 52. a. 1 in Boswells case in that case the Bishop shall not collate by laps neither yet if other six moneths passe shall the Metropolitan collate for the Metropolitan shall never present by laps but when the inferiour Ordinary might before have collation by laps and doth increase his time so that in this case the first degrée being wanting the other that follow shall fail c. awardship 3 If the tenant make a feofment by collusion Co. l. 9. 120. b. 4. in Quicks ca. c. the Lord ought to recover the land by wrii of right of ward before he can have a writ for the ravishment of the ward c. H. N. B. 143. k. 12. H. 4. 13. b. 33. H. 6. 16. per Priset Co. l. 10. 44. b. 4. in Jennings case 4 If the reversioner in fee and the tenant of a mean estate for life Proximity of Estates respected do both at one and the same time pray to be received the mean estate for life in respect of the immediatenesse and proximity thereof shall be preferred before the reversion in fée for the words of the statute of West 2. cap. 3. which gives that receipt being general viz. admittantur haeredes vel illi ad quos spectat reversio c. the Law which alwayes respects order of proximity prefers the next though little estate be it in remainder or reversion for life
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
â—ings in Aâ—â—n 97 If the King grant his owne recognisance the suit shall be in the name of the grantée but if he grant an obligation forfeited for outlawrie Dier 1. 7. P. 4 H. 8. the suit shall be in the Kings name â—e like Fuit dit 98 Bruerton who was attained 28 H. 8. had certaine obligations Dier 30. b. 208 28 H. 8. which were forfeited to the King and the King grants them to his Wife without any words that it should be lawfull for the grantée to bring Actions thereupon yet the Feme brings an Information in her owne name for the said obligations And upon demurrer thereupon it was adjudged that the Action was well brought because the King onely may grant a thing in Action Finch as Ley French edition Fol. 22. 99 The King may licence things prohibited by Statute The Kings â—cence as to coyn money which is made Felony by the Statute and before that it was lawfull for any one to do it because it is but malum prohibitum But malum in se as to levie a Nusance in the high way the King cannot licence a man to do but after it is done he may pardon it Howbeit if the Statute saith that his licence shall be void there the licence shall have a clause of non obstante 2 H. 7. grants 73. viz. shall say Notwithstanding any Statute to the contrary otherwise it is not good as the Statute of 23 H. 6. 8. ordaines that the Kings grant to be Sheriffe of any County longer then a yeare shall be void notwithstanding that his Patent shall have a Clause of Non obstante yet with a Clause of Non obstante such Patent shall be good Dier 52. 1. 33 H. 8. but not without that Clause Howbeit neither without such a Clause nor with it can he dispence with a Statute before it be made And therefore a licence to carie Bell-mettal out of the Realme notwithstanding any Statute made or to be made is not good if a Statute be made after to prohibit it for he cannot dispence with an Act of Parliament before it be made Howbeit he may in things wherein he hath an inheritance or interest as to grant to own to be discharged of taxes and subsidies to be granted this is good 11 H. 7. 11. b. Finch ibid. 100 Statutes of restraint bind not the King Knâ—ght not bound by Sâ—â— unlesse they concerne the Common-Wealth or he or the thing they concerne be specially named as the Statute of West 2. of entailes binds the King because it concernes the whole Com. Wealth so likewise the Statute of 1 H. 5. cap. 5. That in Indictments addition must be given to the party indicted bindeth the King because Indictments are specially named But if by Statute one be attainted and his Lands forfeit with a proviso that of such Lands as he was seised to the use of any other Cesty que use should enter upon him for it is not for the Common Wealth neither yet is the King named therien Co. l. 4. 35. b. 1. in Bozouns Case 101 When the king by the Common Law cannot make a grant Non obstante there a non obstante of that Common Law will not against the reason of the Common Law make the grant good but when the king may lawfully by the Common Law make a grant and the Common Law onely requires that he be so instructed that he may not be deceived there a non obstante supplying it stands with the reason of the Common Law and shall make the grant of the good And therefore if the King grant a protection in a Quare Impedit or an Assise with a non obstante of any Law to the contrarie such grant is void for by the Common Law a Protection lyeth not in either of those Cases for the damage that may happen to the Plaintife by such great delay And therefore in such Case a non obstante shall not availe where the King by the Common Law cannot grant the thing as it was Ruled in 39. H. 63. 9. Advowson Dier 226. 35. 6 El. 102 The King by his prerogative may make a Sheriffe without the usuall assembly and Election in the Exchequer Dier 288. 54 12 El. 103 The King may demise a Mannor Qâ— Imp. except the Courts and perquisites so cannot a Common Person Dier 351. 22. 18 El. 104 Some books are that by an usurpation the King shall be out of possession and put to his writ of right of Advowson But 35 H. 8. it is there that the King may gaine possession by presentment and plenartie by 6 moneths and that against an infant who is a purchasor Vide Fitzh Tit. Qu. Impedit 151. 8 E. 3. and M. 16 Trin. 38 E. 3. Stat. Westm 2. c. 5. Hob. 126. 105 In a Quare Impedit if the title appeare to the Court to be in the King albeit he be no party to the suite yet they ought to award a writ to the Bishop in his behalfe The Chancellor c. of Camb. against Walgrave 106 The Kings Certificate under his signet Manual was received as evidence in Chancery without exception Hob. 213. 3. in the Case of the Lord Aubignye against the Lord Clifton 82 Likewise the Law giveth greater priviledges to men then to Women Wardship â—ody Father â—ot Mother 1 A. Tenant of Land holden by Knight-service Litt. §. 114. Co. Inst p. 1. 84. a. 3. hath issue B. a Daughter and his heire apparent who being married to C. hath issue and dies A. dies seised and the Land descends to the issue within age In this Case the Lord shall have a wardship of the Land but not the wardship of the body of the heire for none shall be in ward for his body to any Lord during his fathers life It is otherwise where the Father dies living the Mother when the Land holden by Knight-service descends to the issue on the part of the Father because the Law in that Case confides more in and giveth more respect unto the Father then the Mother c. Villein 2 If a Villein taketh a frée woman to Wife Litt §. 187. and have issue betwéen them the issues shall be Villeins but if a Niefe taketh a Frée-man to her Husband their issue shall be Frée Feme no witâ—esse 3 In some Cases Women are by Law wholly excluded to beare testimonie as to prove a man to be a Villein Co. Inst p. 1. 6. b. 4. Mulieres ad probationem status hominis admitti non debent Fleta l. 2. cap. 44. Fitz. title Villein 32. 36 37. 83 The Law tendreth the weaknesse and debility of other persons as those out of the Realme in Prison Femes covert and other Women also Likewise Infants Lunatiques Ideots and such as have other imperfections â—ortion 1 If Coperceners make partition at full age and un-married Co.
and taketh a Lease of the land for 20 years whereby the Common is suspended after the years ended he may claim the Common generally by prescription for that the suspension was but to the possession and not to the right and the Inheritance of the Common did alwayes remain And when a Prescription or Custome doth make a title of Inheritance the party cannot alter or wave the same in pais Litt. §. 430. Co. ib. 257. a 2 4 The Disseisée after claim lawfully made shall have an Action of Trespasse against the Disseisor Claim Trespass Disseisee Disseisor notwithstanding his continuance of possession and occupation and shall recover damages and costs for the first entry before any regresse and after regresse of the Disseisor he shall have an Action of Trespasse with a Continuando and recover as well for all the mean occupation as for the first entry Lit. § 486 487. Co. ib 283. b. 2. 5 If the Disseisée enter upon the heir of the Disseisor which entry is a disseisin The meer râ—gâ— preferred before the possession c. and the heir bring an Assise or writ of Entry in the nature of an Assise he shall recover but if the heir bring a writ of right against the Disseisée he shall be barred because in the writ of right the charge of the grand Assise upon their oath is upon the méer right and not upon the possession c. And albeit in that Case the heir in an Assise or writ of Entry c. may regain the possession from the Disseisée yet shall the Disseisée still retain his ancient right and thereupon may again recover the possession of the land from the heir in a writ of Entry in the per. for the disseisin made unto him by the ancestor of the heir Co. ib. 266. a. 2 c. or otherwise may recover it in a writ of right c. And therefore there is a diversity worthy observation when the possession shall draw the right of the land to it and when not for when the possession is first and then a right cometh thereunto the entry of him that hath right to the possession shall gain also the right which followeth the possession and the right of possession in that Case draweth the right unto it but when the right is first and then the possession cometh to the right albeit the possession be defeated as in the Case aforesaid it is by the heir of the Disseisor yet the right still remaineth So if a woman that hath right of Dower disseise the heir and he recover the land against her yet shall he leave the right of Dower in her Likewise if the heir of the Disseisor be disseised and the Disseisor enfeoff the heir apparent of the Disseisée being of full age and then the Disseisée dieth and the naked right descends to him and the heir of the Disseisor recovers the land against him yet doth he leave the naked right in the heir of the Disseisée that being originally in him in respect of the privity of Descent Also if the heir of the Disseisor be disseised and the Disseisée release to the Disseisor upon condition if the condition be broken it shall revest the naked right c. And so the Disseisée had entred upon the heir of the Dissesor and made a Feoffment in Fée upon â—ondition if he entred for the condition broken and the heir of the â—isseisor entred upon him the naked right should be left in the Disseisée But in these two last Cases if the heir of the Disseisor had entred before the Condition broken then the right of the Disseisée had béen gâ—ne for ever because in the first Case the possession of the disseisor was first and then came the right unto it by the release of the disseisée anâ— in the other Case the possession and right happened both in one and the same instant and in that Case the possession shall relate first And iâ— both Cases untill the breach of the Condition the disseisée had oustâ—d himself of his whole Estate In like manner A. disseiseth the heâ—r of the disseisor and the disseisée releaseth to A. Now hath A. the méere right to the land and therefore if the heire of the disseisor enter into the land and re-gaine the possession that shall draw with it the méere right to the land and shall not re-gaine the possession onely and leave the méere right in A. but by the recontinuance of the possession the méere right is therewith vested in the heire of the disseisor because the possession was in A before the acquisition of the méere right c. â—respass â—illein 6 In an Action of Trespass against Tenant for life 14 H. 7. 5. Keble Finch 30. who pleads villeinage in the Plaintiff and the Plaintiff is found frank no villein yet he in the reversion is not estopped by this verdict for the thing it selfe whereupon the reversion dependeth is not in demand and the Plaintiffe shall recover onely dammages Neither can he in the Reversion have a writ of Error or attaint upon it Otherwise it is in à nativo habendo for there the right of Villeinage commeth in question and he in the Reversion may have an error or attaint 98 Yet it favoureth Possession where the right is equal Happe the â—ardship 1 If a man purchaseth at one time several lands Finch 30. holden of several Lords by Knight-service and dieth the Lord that first can happe the wardship of his heire shall have it Guardian in soccage 2 Husband and Wife purchase soccage land to them and the heires of their body and have issue within fourtéen yeares of age die 8 El. 296. Finch 30. In this Case if the Grand-mother of the part of the Mother of the Issue doe first seise the body she shall have the wardship and not the Grand-father of the part of the Father of the Issue Guardian in soccage 3 If lands holden in soccage be given to a man and the heires of his body and he dieth his heire within the age of 14 yeares Co. Inst p. 1. 88. a. 4. Pl. Co. Carels Case the next Cosen of the part of the Father albeit he be the worthyer shall not be preferred before the next Cosen of the part of the Mother but such of them as first seiseth the heire shall have his custody Guardian in â—occage 4 If a man be seised of lands holden in soccage of the part of his Father and of other lands holden in soccage of the part of his mother Co. ibidem and dieth his Issue being within the age of 14 yeares In this Case such of the next of kin of either side as first happeth the body of the heire shall have him Howbeit the next of the bloud of the part of the Father shall enter into the lands of the part of the mother and the next of kinne of the part of the
these cases he may Co. l 10. 47. b. 3 in Lampets Case 26 A. Lessée for 500 years deviseth to B. for life and after his decease the remainder to C. and the heires of his body this executory devise the remainder to C. and the heires of this body this executory devise may be released to B. but cannot be granted to a stranger it is otherwise of an interest executed Fit 2. N. B. 83. b 27 If the Lord levie aide to marry his Daughter Aide for marring c. and do afterward marry her she shall not have an action against the executors of the father for that money it is otherwise if she were not married in his life time So it is also of the sonne not made Knight c. F. N. B. 120. f 121. c 28 If a man take a feme who is indebted to an alien Baron not chargeable without reco and the feme dies before that Debt is recovered by action in that case the Baron is not chargeable It is otherwise if it were recovered living the feme c. Pl. Co. 52. a. 1. Wimb Talb. Case 29 An heir in tail that hath a Reversion An estate executed and executory div or remainder really executed in him shall not néed to plead specially how he is heir it is otherwise where it is to be executed So if Administrators bring an action of Trespasse for Goods taken out of their own possession they shall not shew the Letters of Administration Otherwise it is for Goods taken in the life of the Intestate for there the possession of the Goods were never executed in them but to be executed Also if a Lease be made for life the remainder in taile and he in the remainder is seised after the death of the Tenant for life his issue shall have a Formedon and shall declare upon the immediate Gift neither yet shall shew the Déed otherwise it is if that estate were to be executed Pl. Co. 51. a. 3. Wimb Talb. Case 9 H. 6. 23. Pl. Co. 56. b. 5. contra 30 A man deviseth land to one for life An estate vested shall remaine the remainder to the right heires male of the Devisor and to the heirs of his body begotten the Tenant for life dies and the next heir of the Devisor being a feme enters and after had a sonne And there it was holden by the best opinion that the some shall not out the feme because the sonne born after shall not take away the land before vested in the feme as heir for default of such person then in rerum natura to take the devise Co. Inst p. 1. 117. a. 3. 31 If lands be given to Villain and to the heires of his body Villain and alien tenantâ— in tail and the Lord enters and after enfranchiseth the Donée and then the Donée hath issue yet that issue shall never have remedie either by Formedon or entry to recover the Land for that it was executed in the Lord before the enfranchisment of the Donée and the Statute de Donis giveth remedy to the Issues of the Donée that have capacity and power to take and retaine such a gift c. 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 in this Case also the King shall detaine the land against the Issue c. â— fâ—eri facias â—câ—ted shall â—d 32 Sale by the Sheriffe upon a fieri facias shall stand Co. l. 8. 76. b. 4. Mathew Manuings Case albeit the judgment afterwards reversed and the Plaintiffe in it restored to the value Dier 363. 24. 〈◊〉 original 〈◊〉 judicial â—ll abate or 〈◊〉 abate 33 There is a diversity betwixt writs real original Co. l. 10. 134 in Read and Redmans Ca. which are as things executory writs real Iudicial which Issue from the judgment being in the nature of a thing executed And therefore if 2 coperceners bring a real Action and the one is summoned and severed and after dies having issue or no Issue in this Case the writ shall abate so likewise if 2 jointenants bring an Assise or other original real Action and the one is summoned and severed and dies the writ shall abate albeit the thing in demand servive But if two coperceners bring a scire facias which is a judicial writ upon a fiue levied c. and the one copercener is summoned and severed then dies without Issue such judicial writ shall not abate And so it is also of two joyntenants Howbeit if the copercener that dies hath issue it shall abate because the right descends â—â—â—ter â—câ—â—ed 34 If lands be given to a man and the heires females of his body Co. Inst p. 1. 357. a. 2 and he maketh a feofment in fée and take backe an Estate to him and his heires and dieth having Issue a Daughter leaving his wife grossement ensuit with a Son and dieth the Daughter is remitted and albeit the Son be afterwards borne he shall not devest the remitter because it was executed â—e feme reâ—ed after â—ontinuâ—e 35 If the Baron discontinue the land of the Feme and go beyond Sea Litt. § 677. Co. Inst p. 1. 356. b. 4. and the discontinuée leases the land to the Feme for life and gives her seisin and after the Baron returnes and dis-agrées to the lease and livery of siesin made to the Feme yet in this Case she is remitted to her ancient Estate because by the lease for life and livery the remitter was executed in the Feme and the Estate for life to the Feme which wrought the remitter is vanished and whole defeated And therefore dis-agréement of the husband can devest the Estate gained by the lease which by the remitter was actually devested before 〈◊〉 plenâ—â—ty â—â—re induâ—â—n 36 A Clerk is not enabled by the Stat. of 25 E. 3. 7. Dier 1. 8. 4 H. 8. by the word possessor to plead in barre before induction for by that his possession is executed and then he is possessor and not before â—eâ—ants in â—â—mon of 〈◊〉 Advowson 37 Thrée Tenants in common 〈◊〉 an advowson make composition Dier 19. a. 194 28 H. 8. that each of them shall present by term if each of them hath once presented by his turn by vertue of the composition in a Qu. Imp. brought after amongst them it is not necessary to shew the composition because it was executed it is otherwise in Case it were not executed And such composition cannot be without writing it is otherwise of coperceners for such composition may be by parol amongst them because they are privies and as one heire and are compellable to make partition â—sâ—uy que use â—render in 〈◊〉 38 Cestuy que use after the Statute of 1
case if the Lord avow upon the Feoffée before tender of the arrerages he shall lose them as it is agréed in 7 E. 3. and 7. H. 4 c. And therefore in as much as in such Case the Common Law forces the Lord to avow upon the Feoffor for that reason at the Common Law such Seisin by the Feoffor necessitas causa was good 〈◊〉 Quare Imâ—â—â— against â—e King or 〈◊〉 19 Regularly Co. l. 7 26. b. 3. Halls Case a Quare Impedit brought against the Bishop and Incumbent without naming the Patron abates yet if the King presents to a Benefice and his Clerk is admitted instituted c. In this case a Quare Impedit may be brought for necessity against the Bishop or Incumbent for it lies not against the King So it was also of the Pope if he had usurped 12 H. 8. 12. 4 H. 7. 15 c. â—n Vicar geâ—â—â—al shall not â—â—â—fie but in 〈◊〉 of necesâ—â— 20 Albeit Co. l. 8. 69. a. 1 Trollops Case regularly the Vicar general cannot certifie excommunication yet he shall certifie it when the Bishop is in remotis aagendis viz. beyond Sea in the Kings Service but the Court must be acquainted therewith by matter of Record viz. by Writ out of the Chancery to direct them and not by the surmise of the party and then for necessity which is alwayes the Law of time for necessitas est lex temporis the Certificate of the Vicar General shall be allowed because no other can then do it for he onely ought to certificate to whom the Court may write to absolve the party as the Bishop or the Chancellor of the Vniversities Fee-simple â—â—th out of 〈◊〉 â—ing by â—â—â—essary withâ—â— Office c. 21 Reversion in the Queen upon an estate taile she grants it to T. in taile upon Condition that if be pay 20 s. Co. l. 8. 1. 6. b. 2. The Lord Staffords case at the receit of the Exchequer he shall have the said Reversion in Fée the Condition is performed the tenant in taile levies a Fine and his issue is barred And in this case the principal point was whether by the Condition performed the Reversion passed to T. And it was held that presently upon payment of the 20 s. by operation of Law the Fée was davested out of the Queen and vested in T. And this by necessity for if it should not vest at the time of the Condition performed it would never vest And therefore if in this Case either Office Petition Monstrance de droit or other thing should be requisite that would make the Quéens Grant void and would dis-able the Quéen to make such a Grant And with this agrées the Lord Lovels Case in the Commentaries for there it is said when the Condition is performed the Fée-simple shall be immediately out of the King without Petition Monstrance de droit or other circumstance for if he must tarry such circumstances then can it not vest presently and by consequent shall never vest because if the estate be not enlarged at the time of the enlargement appointed then shall it never be enlarged And therefore in such Cases for necessity the Fée-simple passeth out of the Quéen without any such circumstances with this also agrées Isabel Goodcheaps Case 49 E. 3. who being seised in Fée of an House in London holden of the King deviseth it to Richard Goodcheap and the heires of his body and for want of such issue to be sold by her Executors and she makes W. D. W. W. and I. de T. her Executors and dies without heir Rich. Goodch dies without issue whereby the House escheates to the King and after one of the Executors dies W. W. refuseth and W. D. sels the House and here the question was whether or no the Sale by one Executor was good but it was agréed by all that if the Sale were good it shall devest the House out of the King and the cause thereof is by necessity of Law for if the Sale did not devest the House at the time of such sale then could there be no Sale at all and the Executors who had but a power could not have any petition Monstrance de droit or other remedy Co. l. 8. 143. a. 2. Doctor Druries Case 22 There is a diversity betwixt mean acts done in Execution of Iustice which are compulsive and acts which are voluntary A diversity betwixt acts compulsive and volunâ—â—â— acts And therefore if erronious judgment be given in Debt and the Sheriff by force of a Fieri facias sell the Defendants term and after the judgment is reversed by a Writ of Error yet the term shall not be restored but onely the summe c. But if a Capias utlagatum be awarded whereby the Sheriff is commanded to take the body ut bona catalla quae per inquisitionem invenerit in manus nostras capias de vero valore c. And by force of this Writ the Sheriff by inquisition takes the Goods and Chattels of the out-lawed person and sels them and after the Out-lawry is reversed in this case the party shall be restored to his Goods and Chattels because the Sheriff was not commanded nor compelled by the Kings Writ to sell them Co. l. 9. 49. a. 4. The Earl of Shrewsburies Case 23 King James grants to the Earl of Shrewsbury the Stewardship of the Mannors of M. and B. An Earl may make a Depâ—ty but in the Patent power of making a Deputy was omitted neverthelesse it was adjudged that hee might make one for if such an Office descend to an Infant Ideot or man of non sane memoriae they by necessity ought to exercise it by Deputy So an Earl for the necessity that the Law intends of his attendance upon the King and the Common-wealth this Stewardship of a base Court shall be exercised by Deputy Co. l. 9. 66. a. 1. Mackallies ca. 24 An arrest in the night is lawful An arrest in the night laâ—ful as well at the suit of a Subject as of the King for the Officer ought to arrest him when he can find him otherwise he may perhaps never arrest him for Qui malè agit odit lucem and if the Officer do not then do it the Plaintiff may have an Action upon the Case against him and recover his losse in damages Therefore by necessity an arrest in the night is lawfull Co. ib. 66. b. 2. 25 The Lords day is not Dies juridicus An arrest the 〈◊〉 Sabbath and therefore judicial acts ought not to be done upon that day but Ministerial acts may in some Cases be lawfully executed upon that day as an arrest for otherwise perhaps they might never be executed and Christ permits Works of Necessity to be done upon that day bonum est benefacere in Sabbato Executors may sell lands in their owne names 26 If Attorneys have power by writing to make Leases by
not hasten it by request and so it is also of an Obligation Co. ib. 208. b 4 also in Bothies Case 4 In some Cases albeit the Condition be collateral The like and is to be performed to the Obligée and no time limited for the doing thereof yet in respect of the nature of the thing the Obligée shall not have time during his life to perform it As if the Condition of an Obligation be to grant an Annuity or yearely Rent to the Obligor during his life payable yearely at the Feast of Easter this Annuity or yearely Rent must be granted before Easter or else the obligée shall not have it yearely at that Feast during his life sic de similibus and so it was resolved by the Iudges of the Common Pleas in Andrewes his Case which sée in Dier 14 Eliz. 311. Co. ibidem Co. l. 6. in Bothies Case sol 30. b. 4. 5 When the Obligor Feoffor or Feoffée is to do a sole Act or labour The like as to go to Rome Jerusalem c. In such and the like Cases the Obligor Feoffor or Feoffée hath time during his life to performe it and cannot be hastned by request And so it is also if a stranger to the obligation or feofment were to do such an Act he also hath time to do it at any time during his life Co. ib. 218. b. 4 Litt. §. 352. 6 If a feofment be made upon Condition The like that the Feoffée shall convey the land to the Feoffor and his Wife to have and hold to them and the heires of their two bodies and for want of such issue to the right heires of the Feoffor here no time being limited the Feoffée by the Law hath time during his life unlesse he be hastned by the Request of the Feoffor or the heires of his body And if the Feoffor die before such re-conveyance the Feoffée as Littleton saith ought to make a conveyance thereof as néere to the intent of the Condition as may be viz. to the Feme for life without impeachment of Waste the Remainder to the heires of his body on the Feme engendred and for default of such issue to the right heires of the Feoffor And yet in this Case also albeit the Feme be a stranger the Feoffée hath time during his life to make the re-conveyance Co. ib. 219. a. 4 l. 2. 79. c. in the Lord Cromwels Ca. and is not bound to make it in convenient time as in some other Cases he shall when a stranger is to take the Estate because the Feoffor who was privy to the Condition was to take jointly with the Feme So it is likewise where the Condition is to enfeoffe the Feoffor and a stranger for then also the Feoffée hath time during his life unlesse he be hastned by request Otherwise it is as hath béen said where the Condition is to enfeoffe a stranger or strangers onely 〈◊〉 like 7 If a Feofment in Fée be upon Condition Co. ib. 219. b 2 l. 2. ubi sup that the Feoffée shall make a gift in taile to the Feoffor the Remainder to a stranger in Fée there the Feoffée hath time during his life as is afore-said because the Feoffor who is party and privy to the Condition is to take the first Estate But if the Condition were to make a gift in taile to a stranger the Remainder to the Feoffor in Fée In this Case the Feoffée ought to do it in convenient time For that the stranger is not privy to the Condition and he ought to have the profits presently â—light 8 The Statute of Winchester 13 E. 1. ordaines Co. l. 7. 6. a. 4. in Ashpoles Case that upon a Robbery committed in the day time the Hundred shall satisfie the damage to the party Robbed and the time here intended is not betwixt Sun and Sun but betwixt twilight and twilight â—â— present â— 9 In the Statute of Westm 2. cap. 12. De servientibus Balivis Co. l. 8. 119. b. 4. in Doctor Bonhams Ca. c. qui ad computum reddendum tenentur c. cum Dominus hujusmodi servientium dederit eis auditores compoti contingat ipsos esse in arreragiis super compotum suum c. arrestentur corpora eorum per testimonium auditorum ejusdem compoti mittantur liberentur proximae Gaolae Domini Regis in partibus illis c. In this Case albeit no time be limited when the accomptant shall be imprisoned yet it ought to be done presently as it is held in 27 H. 6. 8. And the reason thereof is rendred in Fogassaes Case in Pl. Com. 17. viz. that the generalty of the time shall be restrained to the present for the benefit of him upom whom the paine shall be inflicted and with this also agrées Pl. Com. in Stradlings Case 206. b. â—â— demand 10 A man granted a Rent out of certain land pro consilio impenso impendendo Co. Inst p. 1. 144. a. 1. to have and hold to him and to his Assignes for term of his life payable at four Feasts in the yeare and for default of payment upon demand it should be lawful for him to distraine the grantée granted the Rent over The Assignee after one of the dayes demanded the Rent and distrained and the distresse was adjudged lawfull Co. ib. 153. a. 4 For in this Case he néeded not to make a demand at any of the days as in the Case of re-entry but he might demand it when he pleased because it was onely to entitle him to his remedy for his méer duty For it is not necessary that the grantée of a Rent-charge or secke should demand it at the very time when it becometh due but at any time after it is sufficient because this is not like a demand of a Rent upon a Condition in as much as that is penal and overthroweth the whole Estate and therefore in such Case the time of demand must be certain to the end the Lessée Donée or Feoffée may be there to pay the Rent But the demand of a Rent-secke or Rent-charge is onely a formal meane to recover that which is due and therefore in that Case it may be demanded after it is behind at any time whether the Tenant be present or no because remedies for right are ever favourably extended Vide Ho. 207 208. 〈◊〉 of payâ—â— 11 As to the payment of Rent issuing out of land Co. l. 10. 127. b. 3. in Cluns Case there are 4 times of payment The 1 voluntary and not satisfactory and yet good to some special purpose The 2 voluntary and in Case satisfactory and in Case not The 3 legal and satisfactory absolutely and not coercive And the 4 legal satisfactory and coercive As to the 1 Lessée c. pay his Rent before the day this is voluntary and not satisfactory but if it be payd in name of
it out of her and so to revive the discontinuance and revest the wrongful Estate in the discontinuée because Remitters tending to the advancement of ancient rights are very much favoured in Law so likewise if lands be given to a man and the heires females of his body and he maketh a feofment in Fée and taketh back an Estate to him and his heires and dieth having issue a Daughter and leaving his wife Grossement enseint with a Sonne in this Case also the Daughter is remitted and albeit the Sonne be afterwards borne he shall not revest the Remitter Litt. §. 678. Co. ib. 357. a. 3 20 If the Baron discontinue the land of the Feme The like and the discontinuée is disseised and after the disseisor demiseth the land to the Baron Feme for term of their lives this is a Remitter to the Feme for Remitters that restore ancient right are so much favoured in Law that the Estate made by the disseisor who cometh to the land by wrong and upon whom the entry of the discontinuée is lawful doth remit the wife and devesteth all out of the discontinue albeit he hath a warranty of the land Litt. §. 693. Co. ib. 363. b. 1 21 When the entry of a man of full age is congeable Right of entry if he take an Estate of the land for life in taile or in fée he is thereby remitted unlesse it be by Indenture matter of record or otherwise whereby he may be concluded or estopt It is otherwise where he hath but right of action for in that Case by taking such an Estate she shall not be remitted and so observe a diversity betwixt right of action and right of entry when his entry is lawful Co. l. 3. 86. a. 4. in the cases of Fines Iustice Windams Ca. 22 Where alienation was made in mortmaine 17 E. 3. 7. El. 20. Tenant not compellable to attorne A fine is levied of land holden in ancient demesne 31 E. 3. Tit. Ancient demesne 16. an infant levied a fine 36 H. 6. 24. Pl. 19. A fine levied of the reversion of land holden in Capite without licence 45 E. 3. 6. or where Tenant in taile of a reversion or remainder before the Statutes of fines 4 H. 7. 32 H. 8. had levied a fine thereof in all these cases and the like the Tenant was not compellable to attorn because the Estate that passed by the fine was not lawful but either prohibited by the Common Law or by some Statute and for the most part were voidable Co. l. 4. 26. a. 4. in the Copihold cases in Melwiches Case 23 The Lessée of a Copi-holder An Ejectione firmae gâ—anted to a Copiholder for a yeare may maintaine an Ejectione firmae for in as much as his term is warranted by the Law by force of the general Custome of the Realme it is reason that if he be ejected he should have an Ejectione firmae for that it is a spéedy course for a Copi-holder to gaine the possession of the land against a stranger being no more then what right requires to be yielded unto him for the recovery of his Estate Co. l. 5. 28. a. in the cases of Executors in Middletons Case 24 An Executor before probat may release an Action Release by Executor before probat good albeit before probat he cannot bring an Action because of the right of Action that is in him at the Common Law it is otherwise of an Administrator for if A. release and after take administration this shall not barre him for the right of Action was not in him at the time of the release made Vide 18 H. 6. 43. b. Greysbrockes Case Plowd 277 278. 21 E. 4. 24. To Executors prove the will and the third refuseth yet he may afterwards release for the ancient right that remaines in him Litt. fol. 117. If one be bound to pay a summe at the day to come before the day he cannot bring an Action of debt yet a release of all actions before the day barres him because of the present right and duty that he then had in him Co. l. 6. 1. b. in Bruertons ca. 25 If a man hold land by the service of ayding the Sheriffe Tenure for Justice not extinct or to be High-Constable of England which are for the advancement of Iustice for the determination of divers cases belong to the Court of the Constable and Marshal and the Sheriffe is a Minister of Iustice or if the tenure be ad custodiendum Recorda Domini Regis as the Abbot of St. Barthelm in Smithfield held as appeares in the Records of the Tower in 7 R. 2. membr 15. in Dorss in these and the like cases if the Lord purchase parcel of the tenancy yet the whole service remaines quia ista concernunt administrationem Justitiae Co. l. 6. 62. a. 3. in Catesbies Case 26 In Catesbies Case in the 5 Rep. the single point in question was A yeare for laps whether the six moneths of laps to give the Bishop power to collate should be accounted by 28 dayes for each moneth or by the halfe yeare and one of the reasons there alleadged for the account by the halfe yeare was this when a computation in such case is ambiguous it is always requisite to determine it for the reliefe remedy of him that right hath viz. of the Patron and for the preservation of his right to allow him the longest time of the two to the end he may not lose his right 〈◊〉 â—5 H. 8. 6 27 Vpon the Stat. of 35 H. 8. 6. to return a Tales Co. l. 10. 103. b. 2 in Alfrid Denbawds ca. albeit the title thereof is usually decem Tales yet the Sheriffe although there be but one Iuror appeare or all be challenged but one may at first return 11 to that one because it is for the spéeding of trials and that Statute being ordained for the furtherance and advancement of expedition in Iustice shall have a benigne and favourable interpretation â—â—ssisee 〈◊〉 28 If a man be disseised of a Mannor F.N.B. 33. q. to which an Advowson is appendant and the Advowson happen to be void the disseisée may present and have a Quare Impedit albeit he hath not entred into the Mannor by reason of the ancient right that is in him â—â—ers â—â—owson 29 If a man traverse an Office found of a Mannor F.N.B. 34. p. to which an Advowson is appendant and upon the traverse the King demiseth the Mannor to him without making any mention of the Advowson and after the Church is void here he that tenders the traverse shall have the presentment if the traverse be found for him â—â—â—ntment de Bishop 30 If a man recover an Advowson and the six moneths are past F.N.B. 38. f yet if the Church be void the Patron may pray a writ to the Bishop and shall have it and if the
transitory causes of Action the Plaintiff might alledge 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 And the wisdome of the Iudges and Sages of the Law have alwayes suppressed new and oblique inventions in derogation of the common Law whereupon it is said by the Iudges in one Book 38 E. 3. 1. we will not change the Law which hath been alwayes used and another saith 2 H. 4. 18. it is better that it be turned to a default then the Law should be changed or any innovation made Warranty that begins by Disseisin by an oblique grant 3. The Father Tenant for life Co. l. 5. 80. a. 1. Fitzherberts case the Remainder to the Son and Heire apparent in tail Leases to A. for years with purpose that A. should enfeoff B. unto whom the Father should release with Warranty all which is done accordingly this is a Warranty that begins 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 this Warranty binds not because of the covin An oblique Grant of Colledge Lands void 4. The Master and Fellowes of Magdalen Colledge in Cambridge Co. l. 11. 73. b. 1. in Magdalen Colledge case grant an House in London to Queen Eliz. upon Condition that she within three moneths should convey it to Benedict Spinola and his Heirs who doth so accordingly this Grant of the Colledge is void by the Statute of the 13 Eliz. 10. and was not helped by the Statute of Confirmation of the 18 Eliz. 2. for it appeared that the intent of the Master and Fellowes was that they should convey the said House to Benedict Spinola and his heires and therefore that which they could not do de directo they attempt to do ex obliquo to grant it to the Queen and her Successors but upon Condition contained in the same Grant that the Queen within three moneths should grant the House to B. Sp. and his Heires so as it was by this device endeavoured that the Queen who was the Fountaine of Iustice should be made an Instrument of injury and wrong and of the violation of a pious and excellent Law which she her selfe had made for the maintenance of Religion advancement of learning and sustenance of poore people The like In 17 E. 3. fo 59. Co. ibid. b. 4. The Fryers Carmelites who had not then any place of habitation obtaine of one John Merite who was seised of ten Acres of Meadow holden of the Bishop of Winchester to have the said ten Acres of Meadow for a place of habitation for them and because John Merite could not grant unto them the ten Acres by reason of the Statute of Mortmaine by covin contrived betwixt Merite and the Fryers to oust the Bishop of his Seigniory Merite to evade the Statute of Mortmaine grants the ten Acres to the King his Heirs and Successors whereby the Bishops Seigniory might be extinct to the end that the King should grant them over to the Fryers which he did accordingly Howbeit because here there was a practice betwixt Merite and the Fryers to take away the Bishops Seigniory it was adjudged that the Charter should be repealed and that the Carmelites should be distrained to deliver it to be cancelled Lands purchased with the Kings money 6. In Term. Trin 24. E. 3. Rot. 4. in the Exchequer Co. l. 11. 92. b. 4. in the Earle of Devonshires case one Walter Chirton the Kings Customer had purchased certaine Lands with the Kings money and by covin had caused the Vendor to enfeoff his freinds in fee to defraud the King and yet neverthelesse took the Issues and profits of the Land to his own use and those Lands were by inquisition returned with the values into the Exchequer and there by Iudgement were seised into the Kings hands untill c. for albeit the estate of the Land was never in Chirton yet the taking of the estate in the name of others and he in the meane time receiving the profits thereof was all one as if he had taken the estate in his own name especially in the Kings case and the lands being bought with the Kings money Fraudulent Indictment 7. One Verney in the 34 H. 6. Dyer 245. 65. 8. Eliz. being in execution in the Fleet for divers debts as also for Fines to the King returned into the Exchequer caused himselfe to be indicted of Felony with an intent to confesse it and to have his Clergy and so to be out of the temporall Law and then to have his purgation and all this with purpose to defraud his Creditors c. And upon a Corpus cum causa all was removed into the Kings Bench Howbeit the King having notice of the Fraud by a privy Seale commands the Iustices to stay the Araignment c. 160. Rectum est index sui Obliqui Co. l. 10. 24. b. 2. 1. In the Case of Suttons Hospitall Sir Edward Coke excuseth himselfe from answering the Objections in that case at large being Excuse to answer objections as he saith for the most part of no great moment by producing manifest and fallible proofs of the validity of that Incorporation alleadging this Maxime for the ground thereof Rectum index sui obliqui Dyer 234. 16. 7. El. 2. In a Formedon in Descender Formedon a Fine with Proclamations levied in 30 H. 8. was pleaded in Bar and the issue being upon Nul tiel Record at the day the Tenant had the Record but in the Proclamations viz. 5 6 7 8. made in Trin. Terme the yeare of the King was omitted Howbeit because in Easter Terme before and Michaelmas Terme after 30 H. 8. was exprest of necessity it did follow that the said foure Proclamations were also made in the same yeare for they being right by consequence the others were right also And thereupon it was held that he had not failed of the Record 161. It disfavoureth Improbabilities Co. Inst p. 1. 25. b. 4. Co. l. 10. 50. b. 1. in Lampets case 1. If Lands be given to a man and a woman being not his wife Lands intailed and to the Heires males of their two bodies they have an Estate Taile albeit they be not married at that time so it is also where Lands are given to a man which hath a wife and to a woman which hath a husband and the Heires of their two Bodies they also have presently an Estate Taile for the possibility that they may marry But if Lands be given to two Husbands and their Wives and to the Heires of their Bodies begotten they shall have a joynt Estate for life and severall Inheritances viz The one Husband and Wife the one Moiety
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
rerum Co. Inst 1. 68. b 1 Right Interpretations and Etymologies are necessary for Etymologie Ad rectè docendum primum oportet nomina inquirere quia rerum cognitio à rerum nominibus dependet And herewith agreeth that which is said Primò excutienda est verbi vis ne sermonis vitio obstruatur oratio sive lex sine argumentis Co. ibid. 86. b. 2 By the Etymologie of the word Soccagium Soccage Littleton declareth the nature of tht tenure distinguisheth it from Knight service whereby it appeareth that names of things are diligently to be observed for distinction sake and to avoid confusion Nomina si perdas certè distinctio rerum perditur Co. l. 5. 122. a. 3 In Longs case in the 5. Rep. a wound may be as properly said to penetrate as a bullet quia penetro derivatur à penitùs intrò 13 Mala Grammatica non vitiat chartam Co. Inst pars 1. 146 b. 223. b 1 Sir Edward Cooke observes that Littl. Sect. 220. A double Negative in a grant of an Annuity inserts a Proviso for the discharge of the Grantors person with a double Negative viz. nec aliquid in eo specificatum non aliqualiter se extendat c. Here nec and non do in a Grammatical construction amount to an affirmative for Negatio destruit negationem ambo faciunt affiamativum yet the Law that principally respecteth substance doth judge the Proviso to be a Negative according to the intent of the Parties and not according to Grammatical construction to the end the Proviso may take effect Howbeit observe that in Gréek and French a double negative maketh the negation more forcible And therefore Quere whether Littleton being much acquainted with the Law-french doth not expresse that Latin according to the French Phrases False Latine 2 Falsa Orthographia aut grammatica non viâ—iat concessionem Co. l. 9. 48. a. in the Earl of Shrâ—wsburies case semper ille numerus sensus abreviationum accipiendus est ut concessio non sit inanis And therefore if the King grant Tot. ill Maner de D. C. if it be in truth but one Mannor then those abreviations tot ill Maner shall be taken in the singular number for Totum illud Manerium but if they be in truth two distinct Mannors then they shall be taken in the plural number for Tota illa Maneria for otherwise the grant would be void In 32 E. 32. 3. A Scire facias rehearseth that a fine was levied de maneriis B. H. and the conclusion was Quare praedictum Manerium de B H. ingressus est and it was adjudged good with averment that B. and H. were indéed but one Mannor One Office in two persons 3 Letters Patents made to John Periont and Wâ—llim Tooke de officio unius Auditorum curiae suae Wardorum was adjudged good Co. l. 11. 3. a. Auditor Earls Case for albeit the statute enacts that there shall be two persons which shall be called Auditors of the Lands c. so as there shall be two persons and they called two officers yet it is but one office and they are both but unus officiarius and so the Statute it selfe saith Those two persons called Auditors shall be called the fourth officer of that Court And therefore the grant de officio unius Auditoris or unius Auditorum is good enough The like case is adjudged in 9 E. 4. 1. upon the grant de efficio unius Clericorum de Corona in Cancellaria c. according to the Rule Mala grammatica c. False Latine 4 An Indictment or Count shall not be quasht for false Latin or false Orthographie Co. l. 5 121. a. Longs case so that a proper Latin word may be knowne by it as Praefato Reginae Mamilla Diffamo diffinitio for Praefatae Mammilla Defamo Definitio 14 Qui haeret in littera haeret in Cortice Vide Pl. Co. 109. b. c. 1 Although by the words of the Statute of Westm 2. cap. 4. Co. Inst 1. 356. a. 283. a. upon a recovery by default against baron and feme Recovery by default à quòd ei deforceat is not allowed them because the baron is not properly tenant for life but seised onely in the right of his wife and therefore out of the words of that Statute yet the contrary hath béen often adjudged for Westm 2. 4. the Law of England respecteth the effect and substance of the matter and not every nicitie of forme or circumstance Aspices juris non sunt jura parù differunt quaere concordant 2 A man seised of lands in fée levied a fine to the use of himselfe for life and after to the use of his wife Co. ibid. 365. b. No discontinuance St. 11. H. 7. 20. and of the heires male of her bodie by him begotten for her Iointure and had issue male and afterwards he and his wife levied a fine suffered a Common recovery the husband and wife died the issue male entered by force of the Statute of 11 H. 7. 20. this was no discontinuance to barre the issue male but his entry was adjudged lawfull and yet this case is out of the letter of that Statute for she neither levied the fine c. being sole nor with any other after taken husband but it is by her selfe with her husband that made the Iointure B A man is seised of lands in right of his wife and they two levie a fine and the conusée grants and renders the land to the husband and wife in special taile the remainder to the right heires of the wife they have issue the husband dieth the wife taketh another husband and they two levie a fine in fée and the issue entreth this is directly within the letter of the Statute of 11 H. 7. 20. And yet it is out of the meaning thereof because the state of the land moved from the wife so as it was the purchase of the husband in letter and not in meaning Co. ibid. 381. b. 4 By the letter of the Statute of Glocester 6 E. 1. cap. 3. Discontinuance A fine levied by the husband alone of the wives land shall barre the heire for the statute séemes to intend all alienations except by fine because it is there said whereof no fine is levied in the Kings Court Howbeit by the meaning of that Statute the heire shall not be barred Gloc. 3. for such a fine would worke a wrong to the wife but the fine meant by the Statute is a fine levied by the husband and wife together for such a fine is lawfull and worketh no wrong and a fine by the husband onely would worke the same mischiefe for which the Statute ordaines remedie and therefore shall not barre the heire though it be with warrantie unlesse the heire have assets by descent c. Co. l. 5. 5. b. The Lord
by making of him Knight he is out of the ward and custodie of the Lord because after he is Knight he ought to be sui juris and to imploy himselfe in feats of armes to defend the Kingdome c. And none shall pay the forfeiture of mariage but he that after refusal marrieth himselfe during the time that he is in wardship Howbeit the Lord shall immediately after his Knighthood have a writ de valoremaritagii such as in like case is used to be had after the heires full age of 21 years No protection for Wales 40 Since the Statute of 12 E. 1. Calvins case Co. l. 7. 21. b. 3. which incorporateth Wales into England and makes it parcel of England in possession no protection Quia moratur in Wallia will now lye because Wales is now within the Realm of England No wardship after attainder 41 Sir Everard Digby by act executed in his life conveyed his lands to the use of himselfe for life with divers remainders over Digbies case Co. l. 8. 165. b. 4. Co. l. 10. 85. a. 11. and then was attainted and executed for the Power-Treason The question was whether ward of the body or of the third part of the lands should accrue to the King by force of the Statutes of the 32 and 34 H. 8. And it was resolved that their could be neither wardship nor primer seisin in that case because there could be no heire for although there may be wardship and primer seisin where there is no descent as in case when a man grants all his lands holden by déed executed in his life yet there can be no wardship or primer seisin but where there is an heire by reason of whom alone those rights accrue to the King No dower by Guardian 42 During the minority of the heire a writ of Dower lyeth against the Guardian or he may endow the feme without suit if he please Co. l. 9. 16. b. 4. in Anne â—edingfields case but after full age although he hold the land over for the value of the mariage yet no writ of Dower lyeth against him neither can he endow her because after the full age of the heir he is no longer guardian Nusance removed 43 In Assise de nusans or Quod Permittat prosternere Co. l. â— 55 a. 1. in Baltens Case Co. l. 10. 84. b. 4. in Lovers Case c. it is a good plea that the Plaintiff himselfe either before the writ purchased or hanging the writ hath abated the nusance All Soccage Land devised 44 If there be tenant in tail to him and the heires males of his body the remainder in fée to another of land holden by Knight-service in Capite and that is also seised of other lands in soccage in fée and by his will in writing he deviseth all his soccage lands and dies without issue male in this case the devise is good for all the soccage land for the estate of the land holden determines by his death so that there was not any cause of ward at the Common Law so it is likewise 13 El. Dyer 3. if the estate of the land holden be defeated for a condition broken after the death of the tenant Wood or trees excepted 45 If I. grant the Mannor of D. except the wood Co. l. 11. 49. b. 3. Liffords case by this the soil it selfe is excepted but if I. except all my trées growing upon land or pasture out of any wood there by the exception of the trées the soil it selfe is not excepted But sufficient nutriment is reserved out of the land to sustaine the vegetative life of the trées for without that the trées which are excepted cannot subsist But if the Lessor cut them and by the licence of the Lessée root them up in this case the Lessee shall have the soil for cessante causa cessat effectus After pardon no conspiracy 46 If a man be falsely indicted of felonie Fitz. 115. g. and after by Act of Parliament a general pardon is granted of felonies c. Here the party shall not have a writ of conspiracie although he will plead to the indictment and is acquit and will not plead the Act c. because his life was never put in jeopardie which indéed ought to be the cause and ground of the action of conspiracie the felonie being pardoned by the Act. No attaint 47 If a man recover outragious damages by verdict Fitz. 107. b. and release parcel of the damages before Iudgement and hath onely Iudgement of the residue the defendant shall not have attaint for those damages which are so released Goods bailed 48 If a man have goods delivered unto him to deliver over to another and afterwards a writ of detinue is brought against him by him Fitz. 138. m. that hath right to have the goods c. here if the defendant hanging the action deliver the goods over to him unto whom they were given to be delivered this is a good barre of that action Fitz. 139. a. Mich. 34. E. 1. 49 After a divorce made betwixt Baron and feme Divorce the feme shall have a writ of detinue for the goods given with her in mariage not spent Dyer 13. 62. 28 H. 8. Fitz. 152. â— 50 The heire shall be charged by a writ of annuity upon grant of his father if he have assets by descent Annuity but an Annuity shall not be maintainable against the heire by prescription because it cannot be known whether he had any thing by descent from the same ancestor by whom the annuity began c. Plowd 37. a. The Sheriff of Londons case 51 If a prisoner in execution in Ludgate be suffered to go over the Bridge into Surrey though he have a kéeper with him Escape yet that is an escape for being in Surrey which is another County he was without gard and so consequently out of prison c. Plowd ibid. per Chomley 52 If a woman be Warden of the Fleet Prisoners enlarged by mariage or descent and one imprisoned there marieth the woman which is Warden this shall be judged an escape in the woman and the law adjudgeth the prisoner to be at large because he cannot be lawfully imprisoned but under a Warden and he cannot be properly conceived under the ward of his wife And therefore in that case the law adjudgeth him to be at large So if the Warden of the Fleet who hath his office in fée die seised his sonne and heire being then prisoner there and the office descends upon him being in prison here the law will adjudge him out of prison although he hath fetters upon his legs he being then without gard it being impossible that he should kéep himselfe in prison P. 13. E. 4. 8. Plowd ibid. 53 If a Iustice of Peace of one County pursue one into another County for felony comitted in the
writ of Formedon during the life of the tenant for life because of this collaterall warranty descended upon him but after the death of the tenant for life the issue may have that writ if he please Remainder 11 If there be tenant for life the remainder for life Co. l. 5. 76. b. Pagets case 9 Eliz. the remainder in fée and the tenant for life make wast in the trées and after he in the remainder for life die an action of wast is maintainable by him in the remainder for the wast done in the life of the tenant for life So it is likewise where he in the remainder for life after the wast committed surrenders his estate to him in the remainder or reversion in fée For Remoto impedimento Lease by tenant in tail 12 If tenant in taile of lands in capite makes Leases Co. l. 7. 7. b. 8. a. The Earl of Bedfords case not warranted by the Statute of 32 H. 8. 28. and dies his heire under age in this case although the King in right of the heire may avoid those Leases for his time yet if after the Kings interest determined the heire accepts the rent they shall be thereby made good againe So it is also of a subject that is guardian in chivalry Co. ibid. 13 If a Bishop make a Lease By a Bishop not warranted by the Statute so that his successor may avoid it and dies the King shall avoid the Lease during the vacancy of the Bishoprick but after the Kings interest determines if the successor accepts the rent the Lease is made good again Co. l. 8. 71. b. 4 Grerebeyes case 14 Land is given to Baron and Feme and to the heires of their two bodies the Baron makes a feoffment in fée Entry congeable and having issue of the Feme dies the Feme also before entry dies here the estate taile is discontinued so that the issue cannot enter but in this case if the Feme had entred and recontinued the estate taile then had the discontinuance béen purged and the estate tail had béen thereby revested in the Feme and would have from her descended upon the issue and so his entry had béen congeable Fitz. 28. b. 15 A man shall not have execution against the Kings debtor The Kings debtor that hath a Protection because the King ought to be paid first yet if the Plaintiff will undertake to pay the Kings debt he shall have Iudgement and execution for both the debts Co. Inst pars 1 33. a. 4. 16 If the husband alien his land Dower and then the wife is attainted of felonie now is she disabled but if she be pardoned before the death of the husband then is she again entitled to her writ of Dower Co. ibid. 46. a. 4 17 If tenant in fée take wife Dower and make a Lease for yeares and dieth the wife is endowed she shall avoid the lease but after her decease the Lease shall be in force again Co. ibid. 138. a. 4. 18 Regularly Lord and Villain if the Lord sue against his villaine a Praecipe quòd reddat c. that is a manumission yet if tenant in tail of a Mannor whereunto a villain is regardant enfeoffe the recovery of the Mannor and dieth the issue shall have a Formedon aganst the villein and after the recovery of the Mannor he shall seise the villain and the bringing of the Formedon shall work no manumission for that he could not seise him till he had recovered the Mannor which was the principal and at the time of the writ brought he was no villain Co. ibid. 59. a. 2 19 If lands holden by Knight-service be given to an Abbot and his successors albeit he holdeth the lands by Knight-service Wardship revived and shall find a man conveniently arrayed for the warre c. yet upon his death no ward mariage or reliefe is due to the Lord Howbeit if the Abbot with the consent of his Covent alien the lands to a man and his heires there is then ward mariage and reliefe revived c. Littl. § 632. Co. ibid. 336. a. 20 If the baron be seised of land in right of his wife Entry congeable and makes feoffment in fée upon condition and die if the heire do afterwards enter upon the feoffee for the condition broken the entry of the feme is congeable upon the heir because by the entry of the heire the discontinuance was defeated Co. ibid. 174. a. 4. 21 If there be two Coparceners To deraign warranty paâ—â— ramount and one of them makes feoffment in fee of her part to a stranger with warranty if the feoffee be afterwards imlpeaded he cannot have aide of the other Coparcener to deraigne the warranty paramount but he may vouch the feoffor and she may have aide to deraigne the warranty paramount And yet if there be two Coparceners and they make partition and the one of them enfeoffees her sonne and heire apparent and dieth in this case if the sonne be impleaded albeit he be in by the feoffment of his mother yet shall he pray in aide of the other Coparcener to have the warranty paramount for upon the descent the warranty betwixt the mother and the sonne is by Law annulled and then he is in the same condition as if the tenements had descended upon him 22 Vide M. 28. ca. 4. 3. 5. Entry 23 If there be grand-father father and sonne Co. ibid. 265. a. 4. and the father disseise the grand-father and make a feoffment in fée the grand-father dieth the father against his own feoffment shall not enter but if he die his sonne shall enter for remoto impedimento c. Protection 24 Albeit a Protection be allowed by the Court for a yeare Co. ibid. 131. b. 1. yet if it be repealed by an Innotescimus the Re-summons or Re-attachment shall be granted upon the repeal within the yeare for Remoto impedimento c. And albeit some books hold the contrarie yet the later books are of that opinion for otherwise the repeale would serve for little purpose if the Law should not be so taken No accessory without a principal 25 A. was indicted for felony Co. l. 9. 119. b. 2 in the Lord Sanchiars case Temps E. 1. Tit. Mortdancester 46. and B. of the receit of A. A. Essoignes himselfe and is outlawed B. was taken and putting himselfe upon the Inquest was found guilty whereupon B. was attainted and hanged and the Lord entred as in his escheate and after A. came and reversed the outlawrie and pleading to the felony was found not guilty and so was acquit whereupon the heire brings a Mortdancester against the Lord by escheat who comes and shewes all this matter unto which it was demurred in Law whereupon it was awarded that the heire of B. should recover seisin of the land for if B. had béen then
alive he should have gone quit by the acquittal of A. because he could not be a Receiver of a felon when A. was no felon And remoto impedimento c. Vide plus ubi supra 21 Things are construed according to that which was the cause thereof Vide 31. 9. Tenant by courtesie 1 If the King give lands to a man and a woman and to the heires of their two bodies and the woman die without issue Co. Inst pars 1 21. b. 4. 9 H. 3. Dower 202. yet shall the man be tenant in taile after possibility c. But if the King give land with a woman of his kindred in frank-mariage and the woman die without issue the man in the Kings case shall not hold it for his life because the woman was the only cause of the gift but otherwise it is in the case of a common person Frankmariage 2 If lands be given to a man and a woman in special taile Co. ibid. 7 H. 4. 16. a. and they are divorced Causa praecontractus both shall hold the lands for their lives a 13 E. 3. Tit. Ass 19 E 3. Ass 83. 12. Ass 22. 19 Ass 2. But in case of frankmariage if they be so divorced the woman shall enjoy the whole land because she was the cause of the gift So if lands holden in c Plowd Carzibs case soccage be given in special tail and the Donées die the issue being within the age of 14 yeares e 17 H. 3. Gard. 146. 27 E. 3. 29. Co. ibid. 29. b. 3 Co. ibid. 42. a. 4 the next of kinne of the part of the father or of the part of the mother which can hap the custodie shall have it but in case of frank-mariage the heire of the part of the mother shall have it because she was the cause of the gift as aforesaid Co. ibidem 88. a. 4. Formedon 3 If a woman tenant in general tail maketh a feoffment in fée and taketh backe an estate in fée and take an husband and hath issue and dieth the issue may in a Formedon recover the land against the father because he is to recover by force of the estate taile as heire to his mother and is not in that case inheritable to his father the estate tail being the cause and ground of his title An Office 4 A man may have an estate for life determinable at will 3 E. 4. 8. b. as if the King doth grant an office to one at will and also grant a rent to him for the exercise of his office for terme of life this is determinable upon the determination of the office which occasioned the grant of the rent 19. 59. Co. ibid. 85. a. 2 5 If a man make a Lease for yeares of a villeine this cannot be done without déed neither can the Lessée assigne it over without déed Grant of a Villain by deed because it is derived out of a fréehold that lyeth in grant which indéed is the material cause of the grant but a wardship is an original chattel during the minority derived out of no fréehold and therefore as the Law createth without déed so may it also be assigned over without déed Co. ibi 102. a 4 9 E. 2. execut 249. 6 Vpon a judgement in debt Judgement execution the Plaintiffe shall not have execution but onely of that land which the defendant had at the time of the judgement because the action was brought in respect of the person and not in respect of the land But if an action of debt be brought against the heire and he alieneth hanging the writ yet shall the land which he had at the time of the Original purchased be charged for that the action was brought against the heire in respect of the land Co. bid 102. b. 1. 22 Ass Pl. 32. 7 If a man be nonsuit the land onely Amerciament Issues of Jurors which he had at the time of the amerciament assessed shall be charged and not that which he had at the finding of the pledges for the amerciament is not in respect of the land but for his want of prosecution which was a default in his person But the issues of a Iuror shall be levied upon the feoffee albeit they were not lost before the feoffment because he was returned and sworn in respect of the land 8 A tenure of the King in Capite Tenure in gross is said to be a tenure of the King a Bract. f. 87 as of his Crown that is as he is King c Co. ibid. 108 a. 4. ubi Vide praedict Author And therefâ—râ— if one holdeth land of a common person in grosse as of his person and not of any Mannor c. and this Seigniory escheateth to the King yea though it be by attainder of treason he holdeth of the pâ—rson of the King but not in Capite because the original tenure was not created by the King Vide infra M. 25. ca. 10. Co. ibid. 158. a. 3. 15 H. 7. 9. 14 H. 7. 31. 18 E. 4. 3. 9 If the cause of challenge alleaged by the Plaintiff against the Sheriff be pâ—rtiality to either party Challenge and processe be once awarded for such partiality though there be a new Sheriff yet processe shall never be awarded to him but to the Coroners and therefore in that case the entry is Ita quòd Vicecomes se non intromittat But if the cause of Challenge be for that the Sheriff was tenant to either party or the like in that case the processe shall be directed to the new Sheriff and not to the Coroners Co. ibid. 161. a. 2. 44 E. 3. 20. 6 R. 2. Refc 11 11 H. 7. 4. 21 H 7. 40. 34 H. 6. 18. 16 E. 4. 10. Co. l. 9. fol. 22. Case of Avowry Co. ibid. 169. b. 2. 15 H. 7. 14. 29 Ass 23. 29 E. 3. 9. b. 10 If the Lord come to distreine cattle Distress which he séeth then within his fée and the tenant or any other to prevent the Lord to distreine driâ—es the cattle out of the Lords fée into some other pâ—ace not within his fée yet may the Lord freshly follow and distreine the cattle and the tenant cannot make rescous But if the Lord comming to distreine had no view of the cattle within his fée though the â—enant drive them off purposely or if the câ—ttle of themselâ—es after the view goe out of the fée or if the tenant after the view remove them for any other cause then to prevent the Lord of his distresse then cannot the Lord distrein them out of his fée and if he doth the tenant may make rescous 11 If there be thrée Coparceners and they make partition Rent in Coparcenary and one of them grant 20 s. per annum out of her part to her two sisters and their heires for egaltie of partition the grantées are not joynt-tenants of this rent but
that the Lessée shall have sufficient Hedge-boot c. by the assignement of the Lessors Bailiffe Here it was said by Baldwin and Fitzherbert that the Lessée might take such boots by the Common Law and therefore that he might take them without assignement because it is no more than what the Law gives the Lessée priviledge to do but Shelley contrà because it being in the Lessors power to grant the lease upon what termes he pleased the Lessée shall be bound by it albeit the covenant be in the Affirmative and onely on the Lessors part and not in the Negative by way of Covenant or Proviso on the Lessées part For Modus coventio vincunt legem and the Lessée accepted of the Lease upon those termes Quere Dyer 136. Pl. 17. 3 4 P.M. 7 The uses of a fine or recovery may be declared by Indenture or otherwise as well after as before such fine or recovery Uses of a Recovery for so in Arthur Bassets case 3 4. P. M. the uses of a Recovery were by the Indentures declared four yeares after the Recovery and held good enough for Cujus est dare c. 23 Ultra posse non est esse Vice Versa Co. l. 6 58. a. 4. in Bredimaus Case 1 A Right without any estate in Possession A right or remainder after an entall no assets Reversion or Remainder for which good remedie by actionis given is not to be estéemed Assets before it be recovered and reduced into possession So likewise an estate as in rent-seck which descends and for which the heir hath no remedie is not Assets untill he hath gained seisin for want of right want of remedie are in the same equipage and therefore a man shall not be remitted to a Right that is remedilesse as appeares in the Marquesse of Winchesters case in the third Report And in M. 12. and 13. El. betwixt Terling and Trafford it was adjudged that the Reversion expectant upon an estate taile was not Assets because it lay in the Will of the Tenant in Taile to docke and barre it at his pleasure and the Reversioner had no power to prevent it Co. l. 7 8. a. 3. The Earle of Bedfords case 2 In the Earle of Bedfords case in the 7 Report Voidable Leases made good by acceptance it is otherwise of void things ab initio when voydable Leases being void for a time shall be alwayes avoided and when not this diversity was taken and resolved by the Court viz. when the interest of him that makes the avoidance is but for part of the terme So that it appeares there remaines yet a residue and when he that makes the avoidance avoides all the interest so that it appeares no residue can remaine As in the principal case there which was to this effect Tenant in Tail of lands in Capite makes Leases not warranted by the Statute of 32 H. 8. 28. and dies his heire under age Here the King in right of the heir may avoid those Leases during his time onely for after the interest is determined the heire may make them good againe by acceptance of the rent So it is also of a Subject that is Guardian in Chivalry Also if a Bishop since the Statute of 13 El. let voidable Leases and die 2 E. 3. 8. the King during the vacancy may avoid them but the Successor may make them good againe by acceptance of the rent But if the Patron of the Church of D. grant the next avoidance to another and after and before the Statute of 13 El. the Parson Patron and Ordinary make a Lease for yeares rendring rent and the Parson dies the Grantée presents his Clerk who is admitted instituted and inducted and dies this lease was absolutely avoided and could not stand good against the second successor c. Co l. 5. 12. b. 2. Sanders case 3 If a man having land in which there is a Cole mine not open lets the same to another for terme of life or yeares An exception of great timber Mines c. void if the Lessée grant unto another all his interest in the land cum omnibus profic c. except semper reservat sibi haeredibus suis toto benefic profic Miner Angl. Cole mines praedict parcel terrae ac omnibus arboribus Maerearii c. This exception is void for by the exception of the profits of the Mine or of the Mine it selfe the land is not excepted and then by consequent he hath excepted that which he cannot have or take As if a man assigne over his terme except the Timber-trées growing upon the land or the marle or the clay within the ground this is void for he cannot except a thing which doth not by Law belong unto him Where no interest no entry 4 If the Baron within age make feofment in fée of his Wives land and dies his heire shall not enter to avoide this feofment Co. l. 8. 43. b. 1. Whittinghams Case because nothing descended unto him from the Baron for the Law doth not respect what estate the Ancestor granted but what estate he had before the grant and what right or title the Ancestor left to descend to the heire And therefore if an infant being tenant in taile make feofment in fée and die without issue his collateral heire cannot enter to avoide that feoffment for although by his feoffment he granted Fée simple yet when he died without issue nothing descended to the heire in respect of which he might enter So also if lands be given to one and the heires female of his body and he hath issue a sonne and makes feofment in fée and dies within age without issue female the sonne shall not enter for the said infancy because no right in that case descended unto him So likewise if an infant be tenant pur auter vie and make feofment in fée Cestuy quae vie die neither the infant nor his heire shall ever enter upon the feoffée but he in the reversion or remainder c. Discontinuance 5 An estate taile cannot be discontinued but where he Co. Inst pars 1 338. b. 4. that made the discontinuance was once seised by force of the taile except it be by reason of warranty c. according to the Rule in Philosophy Omnis privatio presupponit habitum for he cannot discontinue that which he never had Neither can a person discontinue the Fée simple of his Parsonage because the intire fée and right thereof was never in him Vide M. 52. Ex. 8. Remainder of rent void 6 If I grant a rent out of my land the remainder in fée Pl. Com. 35. 2. this remainder is voide because the rent was newly created by the grant and not in esse before In Colth and Bivishams case Rent not extinct 7 A man makes a Lease for terme of life Dyer 31. a. 210 and afterwards the Lessor makes a
therefore if Tenant in taile seised of divisable lands alien them in fée to his brother who afterwards deviseth the same lands to another with warranty against him and his heires and dies without issue This warranty shall not barre the heire in taile of his Formedon because this warranty did not descend to the issue in taile for that the Vncle of the issue in taile was not himselfe bound to the warranty in his life time neither yet could he warrant the Lands in his life time in as much as the devise could not take effect till after his death And now because the Vncle in his life time was not bound to warranty such warranty cannot descend from him to the issue in tail c. For nothing can descend from an Ancestor to his heire but that which was first in the Ancestor So likewise if a man make feoffment in fée and bind his heires to Warranty this is void as to the heir because the Ancestor himself was not bound c. Tenant in tail cannot grant any remainder of estate 10 He in the remainde in taile bargains and sels his land Co. l. 2. 51. b. 4. 52. a 2. Sir Hugh Chomleys ease and all his estate c. by indenture inrolled c. to I. S and his heirs male c. to have and hold for the life of the tenant in taile the remainder to Qéen Eliz. c. Here the remainder to the Queen is void for when he in the remainder hath granted all his estate to I. S. he cannot limit any farther remainder of it to the Queen because a remainder is but a remnant of the estate of the Grantor and the Queen cannot have any such remnant of estate when he had granted away all his estate before to to I. S. And therefore it was agréed Hill 35. El. in Blithemans case that if tenant in taile in consideration of fatherly love covenant by Déed to stand seised to the use of himselfe for his owne life and after his death to the use of his eldest sonne in taile and after this Covenant the Covenantor takes feme and dies in this case the feme shall be endowed for when tenant in taile hath limited the use to himselfe for his own life he cannot limit any remainder over because an estate for his own life is as long as he himselfe can limit by the Law and therefore the limitation of the remainder is void and by consequent the Dower good c. Entty taken away from issue in tail 11 The Baron seised to the use of himself and his wife for life Co. l. 3. 61. a. 3. Lincolne Colledge case and the heires of the body of the Baron dies the issue in the life of the feme then Tenant of the Frank-tenement for so the pleading was which shall be intended by disseisin for no surrender or forfeiture was alleadged 4 H. 8. suffers a common rocovery with single voucher by agréement that the recoverors shall enfeoffe Litster and others to divers uses and that the feme shall release to them with Warranty which was done accordingly 11 H. 8. the feme dies after that the issue dies and afterwards his issue in the third degrée enters The question was whether the collaterall warranty shall bind for the recovery came not in question because by the pleading it shall be intended that the issue was seised by another Title then the intaile and so the single voucher not material or whether the warranty shall be adjudged void by the Statute of 11 H. 7. 20. And in this case it was resolved that the warranty shall bind the Demandant and was not void by that Statute because when the first issue by the common recovery had against him by his own agréement had disabled himselfe to take benefit of the forfeiture given by the Statute after his death another issue claiming from him shall not take benefit of it for if the Ancestor being in esse at the time of the forfeiture could not enter much lesse shall any person which was not in rerum natura nor had the immediate interest Title or Inheritance at the time of the forfeiture ever enter or take benefit of that Act And although there was error in the recovery yet the Warranty of the feme shall barre the first issue of his writ of Error because by his own act he hath barred himselfe of the entry which the Statute prescribes and the like in effect was adjudged in Sir Geo. Brownes case Co. ibid. 51. b. ◠where the issue in tail in the life of his mother having the reversion in fée levies a fine without proclamations for there the issue against his own fine could not enter although it was erroneous Copihod Custome 12 Custome hath so established and fixed the estate of the Copiholder Co. l. 4. 24. b. 1. Murrel and Smiths case that by the Severance of the Inheritance of the Copihold from the Mannor the Copihold is not destroyed for in as much as the Lord himselfe cannot out the Copiholder no more shall any claiming under him have power to do it because Nemo potest plus juris c. A release by bail not good 13 In debt Marshall was baile for the Defendant Co. l. 5. 70. b. Hoes case Co. Inst pars 1 265. b. 2. and before Iudgement the Plaintife releaseth to Marshall all actions duties and demands and after judgement was given against the Defendant upon whose default Scire facias issued out against Marshall who pleads the said general release but it was adjudged that the release was not effectual to barre the Plaintife because the words of the baile being conditional viz. Si contigit Defend c. non solvere c. there cannot be by the baile any present and certaine duty before judgement given for before that it cannot be known to what summe the debt and damages will amount neither is he that bailes at first bound in any certaine summe but his recognisance being general it shall be reduced to a certainty by the Iudgement A release not good 14 In Trin. 4. El. Rot. 1207. in Com. Banco Co. ibid. 71. b. Dyer 5. El. 217. it was adjudged that by a release of all actions suits and quarrels a covenant before the breaking of it is not released because there is not any cause of action nor any certaine duty before the breaking of it c. Payment of rent by a termor no seisin 15 A. deviseth rent to B. for life out of the Mannor of D. and deviseth the Mannor it selfe to C. for yeares Co. l. 6. 57. a. 4. Bredimans Case C. enters and payes the rent during the term but after the term the Terre-tenant refuseth to pay the rent whereupon B. brings an Assise And in this case it was adjudged by Coke and the other Justices of the C. Pl. that the payment of the rent by the tenant for years was not seisin to bind the
Co. Inst pars 1 167. b. 2. Bracton l. 4. fol. 216. Britt f. 112. a. Ibid. vide Parl. author and the Diseissée bringeth an Assise or if the one Coparcener recover against the other in a Nuper obiit or a rationabili parte it hath béen said by some that the Iudgement shall be that the Demandant shall recover and hold in severalty but Britton is to the contrary for he saith Et si ascuns des parceners soit enget ou disturbe de seisinie per ses autres parceners Un ou plusors al dissiesi vaudra assise per severale pleynte sur ses parceners recovera Mes veny a tener en severalty mes en comune selon ceo que evant le fist Et si deux parceners ou plusors soyet disseisies per les autres parceners chescun parcener avera sa assise en severalte recoverout a tene en comune tout issint serra juge en touts autres brefs de possession entre parceners c. And this séemeth reasonable for she must have her Iudgement according to her playnt and that was of a moity and not of any thing in severalty and the Sheriffe cannot have any Warrant to make any partition in severalty or by Metes or Bounds Joyn-tenants shall do the like 24 If one Ioyn-tenant or Tenant in Common disseise another Co. Inst pars 1 187. a. 2. and the disseisée bring his Assise for the moity in this case though the Plaintife prayeth it yet no Iudgement shall be given to hold in severalty for then at the Common Law before the Statutes of 31 H. 8. cap. 1. and 32 H. 8. cap. 32. by which they are compellable to make partition there might have béen by compulsion of Law a partition betwéen Ioyn-tenants and Tenants in Common but that could not be because by the Rule of Law the Plaintife must have Iudgement according to his plaint and demand which was of a moity and not of any thing in severalty Feoffor Feoffee condition diversity 25 If a man make a feofment in fée upon Condition that the Feoffée before such a day shall re-enfeoffe the Feoffor Co. Inst pars 1 221. b. 3. and the Feoffée take wife entreth into Religion and is profest or make foefment in fée in all these cases the Feoffor may enter presently before the day yea albeit before the day the wife die the Feoffée be deraigned or take back the estate for in all these cases that disability in the Feoffée gives to the Feoffor present advantage of re-entry for the Feoffée being once disabled is ever disabled Howbeit it is otherwise in the case of the Feoffor for if a man make a feofment in fée upon Condition that if the Feoffor or his heires pay a summe of money before such a day and the Feoffor commits Treason is attainted and executed now is there a disability on the part of the Feoffor for he hath no heire but if the heire be restored before the day he may performe the Condition as it was resolved in Sir Thomas Wiats case Trin. 18. Eliz. in C. B. Otherwise it is if such a disability had growne of the part of the Feofféet And the reason of this diversity is because the estate of the land did originally flow from the Feoffor and therefore there remaines still in him an ayery right to have the land again So it is also if the Feoffor enter into Religion and is profest and before the day is deraigned he may in that case also performe the Condition causa quà suprà Dyer 149. 82. 3 4 Ph. M. 26 A feofment was made before the Statute of 27 H. 8. Estate to Baron and Feare joyntenancy to the use of a man and a woman unmaried and of the heires of their two bodies and after they intermarrie and after mariage the husband bargaines and sells the whole land in fée to one of the Feoffées and dies without issue and after the Statute of 27 H. 8. is made the feme claimes the whole by the survivour as Tenant in taile after possibility c. And per Curiam without argument she shall have but a moitie because the Baron and Feme had at first moities as Ioyn-tenants by reason of the Ioyn-tenancie made before marriage c. 26 A derived power cannot be greater than that from which it is derived Derivata potestas non potest esse major primitiva Co. Inst pars 1 162. b. 2. 1 If there be Lord and Tenant and the rent is behind Executors shal not recover â—â—reares and the Lord grant away his Seigniory and dieth the executors shall have no remedie for these arrearages because the Grantor himselfe had no remedie for them when he died in respect of his grant And the words of the Statute of 32 H. 8. 37. which gives remedie for the recovery of arrearages of rent are these in like manner as the Testator might or ought to have done Et sic de similibus Co. ibid. 164. a. 4. 2 If a man hath issue two daughters Coparoeners inherit a like and the eldest hath issue thrée daughters and the youngest onely one daughter here all these shall inherit but the thrée daughters of the eldest shall have no more than the daughter of the youngest viz. a moity because they can enjoy no more than she was to have through whom they claime and that is but a moity c. Vide suprà 25. 5. Littl. § 435. 3 The Attorney of one that is disseised cannot make claime off from the land if the disseisée himselfe durst have gone to the land The Attorney caÌ„not do more then his Master Finch 11. Littl. § 583. Co. ibid. 321. b. 1. Sir Moile Finches case Co. 6. 68. b. 3. 4 If there be Lord and Tenant and the Lord grants his Seigniory by fine to another in fée here A fine of a Seigniory not good without attornment without attornment nothing passeth And therefore in this case if the Conisée die before attornment his heire shall not have it for the heire shall not be in any better estate than his Ancestor was from whom he derives his title So also it is if the Conisée of a fine before attornment bargaine and sell the Seigniory by Déed indented and enrolled the Bargainée shall not distrein because the Bargainor from whom the Seigniory moved had never actual possession 28 Ass Pl. 4. 5 The Bailiffe of a Disseisor shall not say The Bailiff shall not say more then his Master that the Plaintiffe never had any thing in the land for the Master himselfe shall not have that plea because he is not Tenant of the Frée-hold Finch 11. 2 E. 4. 16. 6 The servant shall be estopped to say the Fréehold is his Masters by recovery against his Master though the servant himselfe be a stranger to it for he shall not be in better condition than he in whose right he claimeth
case and the Earle of Leicesters case Plow 400 c. Quae malo sunt inchoata c. A void presentment Fitz. 35 f. 6. 32 A presentment made by a stranger to an Advowson which is appropriate to an Abbey is void be the presentment in the Abbots time or during the vacation and albeit the Clerke be afterwards admitted instituted and inducted yet that cannot make the presentment which was void at first to take effect For Quod initio non valet c. It is otherwise if the Abbot himselfe present c. Co. l. 1. 15. b. 3. Sir William Pelhams case 33 A tenant for life remainder in tail remainder in fée bargains and sels the land in fée to B. who after the Statute of 32 H. 8. cap. 31. A void recovery and forfeiture by tenant for life and before the Statute of 14 El. cap. 8. suffered a recovery wherein A was vouched and vouched over c. and after Iudgement was entred and execution sued upon that recovery yet was the entry of the tenant in tail adjudged congeable for albeit the recovery was not had immediately against A. yet was it adjudged a forfeiture within that Statute of 32 H. 8. and then the suffering of the recovery being a forfeiture it could not afterwards be salved by entring Iudgement and suing execution thereupon Co. Inst pars 1. 46. a. 4. 34 If the Patron grant the next avoydance and after Parson A void grant of Glebe Patron and Ordinary before the Statute had made a lease of the Glebe for yeares and after the Parson dieth and the grantée of the next avoydance had presented a Clerk to the Church who is admitted instituted and inducted and dieth within the terme the Patron presents a new Clerk who is also admitted instituted and inducted here albeit he commeth in under the Patron that was party to the Lease and was Admitted Instituted and Inducted yet because the Lease had no good beginning but was avoided by the Grantees Incumbent who had the whole estate in him it shall not be againe revived but shall be extinct for ever and shall not be maintained against the last Incumbent Co. Inst pars 1 31. b. 4. 35 If a man be Tenant in general taile The last feme not endowed and take a wife and hath issue by her and she dies and after he taketh another wife and dies the last wife shall be endowed because she may have issue which by possibility may inherit But in this case if the husband during his first wives life alien the land in Fee and takes an estate back to him and his wife and the heires of their two bodies and the wife dies the second wife shall not be endowed because during the Coverture when her Title of Dower should take beginning he was seised of an estate taile special and yet here also the Issue that he may have by the last wife is inheritable Co. ibid. 9. a. 1. 36 B. having divers sonnes and daughters Grant to children before birth not good A. giveth lands to B. liberis suis and to their heires the Father and all his Children do take a Fee simple joyntly by force of these words their heires but if he had no child at the time of the Feofment the Child or Children born afterwards shall not take Dyer 58. a. 4. 35 H. 8. 37 Cestuy que use after the Statute of 1 R. 3. 1. Cestuy que us◠and before the Statute of Uses makes a Lease for yeares and after during the terme makes Feofment of the land and gives Livery c. In such case nothing passed by such Feofment because he had nothing in Vse or Possession and then the Statute of R. 3. would not aide him 29 Quod non habet principium non habet finem Where there can be no presentment by lapse 1 If the Bishop be named in the Quare impedit Co. Inst pars 1 344. b. 4. he shall never afterwards present by lapse and then shall neither the Metropolitan nor after him the King do it For the Bishops presentment falling which was to be the first step and begining their power of presenting which should successively follow his must néeds also fail according to the Rule Quod non habet principium non habet finem Right without action no remitter contra 2 Regularly a man shall not be remitted to a Right remedilesse Co. ibid. 349. a. 4. for the which he can have no action And therefore Littleton saith Sect. 661. that the principal cause of a Remitter is when the issue hath no person but himselfe against whom he may bring his Action by which it appeareth that he ought to have just cause of Action for neither an Action without a Right nor a Right without an Action can make a Remitter as if Tenant in tail suffer a Common Recovery In which there is error and after the Tenant in tail disseiseth the Recoveror and dieth here the issue in tail hath an action viz. a Writ of Error but so long as the Recovery remaineth in force he hath no Right and therefore in that case cannot be remitted Idem 3 If B. purchase an Advowson Co. ibid. 349. b. 3. and suffereth an usurpation and six Moneths to passe and the usurper granteth the Advowson to B. and his heires B. dieth his heire is not remitted because his Right to the Advowson was remedilesse viz. a Right without an Action 4 Vide infra M. 38. 1. 7. and 162. 49. Co. Inst pars 1 31. a. 4. 30 He that claimeth Paramount a thing shall never take benefit nor hurt by it Dos de dote peti non potest 1 If there be Grandfather Father and Son Co. Inst pars 1 32. a. 4. and the Grandfather is seised of thée acres of land in fée and taketh wife and dieth this land descendeth to the Father who dieth either before or after entry now is the wife of the Father dowable yet shall she have the thirds but of two acres onely and the wife of the Grandfather shall have for her Dower the other acre intirely because the Dower of the Grandmother is Paramount the Title of the Fathers wife and the seisin of the Father which descended to him be it in Law or actual is defeated and now upon the matter the Father had but a Reversion expectant upon a Fréehold and in that case Dos de dote peti non potest although the Grandmother die living the Fathers wife Dower according to the improved value 2 If the wife be entitled to have Dower of thrée acres of March Co. Inst pars 1 32. a. 3. every one of the value of twelve pence per annum the heire by his industry and charge maketh it good meadow viz. every acre worth ten shillings per annum the wife shall have her Dower according to the improved value and not according to the
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
the sonne is not remitted for the Statute makes the possession in him as the use was before Howbeit it seemeth also that his issue shall be remitted because he claimes paramount the Statute viz. per formam doni for the estate tail is still in being and was not extinct by the Statute And in this case it is not material whether the sonne when he entred was at full age Dyer 54. b. 22. 34 H 8. or under age for it seems he is not remitted albeit he were then under age for if Tenant in taile make a feofment to the use of himselfe and his heires and the Feoffor dies his issue within age and then comes the Statute here the heire shall not be remitted but it seemes his issue may causa qua suprà Vide suprà 5. Dyer 54 b. 1. 34 and 35 H. 8 33 The Kings Tenant of lands holden in Capite before the Statute of Uses suffers a common recovery to the use of his sonne and heire apparant and his wife and of the heires of the bodie of the sonne Wardship after which Statute the sonne hath issue and dies the issue within age In this case the issue shall not be in ward during the life of the Feme for the ancient use of the Fee simple which was paramuont the Statute remaines still in the father albeit he expressed not any use in Fee simple and then by the Statute the possession was vested in the sonne and the feme as the use was and the Fee simple in the father as he was Donor of the use and not as one in remainder of a new Fee simple for that would have altered the case And in the same case if the father had covenanted that the sonne immediately after his decease should have had in possession or in use all his land according to the same course of Inheritance as they then stood and that all men seised or to be seised should stand seised to the uses and intents aforesaid yet the sonne should not be in ward for it had been but a Covenant which changeth not the estate of the Fee simple which was paramount the Statute as afore is said Emblements sown 34 If Tenant pur auter vie sow the land and Cestuy que vie die Dyer 316. 2. 15. Eliz. the Tenant pur auter vie shall have the crop So if the Baron sow the Femes land and the Feme die the Baron shall reap the crop Likewise if the Baron make feofment in fée to the use of himselfe for life the remainder to the use of the Feme for life with remainders over and the Baron sow the land and die his executors shall have the crop and not the Feme or Heire because death being the Act of God it could not be fore-séen or prevented Howbeit if the Baron make feofment in fée to the use of himselfe and his Feme for their lives with remainders over and the Baron sow the land and die the Feme shall have the crop because she was Ioyn-tenant with her husband and hath it by Title paramount the executor So if the Baron sow the land and die and the third part is assigned to the Feme for Dower she shall have the emblements therewithall because she is in of her husbands estate paramount the Title of the executor and likewise shall be endowed de optima possessione of her husband 31 Things are to be construed Secundam subiectam materiam Account by the Guardian 1 It hath béen a question much controverted in the books of the Law at what age of the heir Co. Inst pars 1 89. a. 1. Stat. of Marlebridge 52 H. 3. 17. a Guardian in Soccage was compellable to render an accompt whether at 14 or at 21. And the causes of that doubt have béen both upon the words of the Statute of Marlebridge cap. 17. and likewise upon the original writ of accompt against such a Guardian The words of the Statute are these Cum ad legitimam aetatem pervenerit sibi respondeat c. a 16 E. 3. Wast 100. c And legitima aetas is 21 yeares Also the writ of accompt reciting the said Statute saith Quare cum de communi concilio c. provisum sit quòd custodes c. in Soccagio haeredibus c. cum ad plenam aetatem pervenerint reddant rationabilem compotum c. c 16 E. 2. account 120. 17 E. 2. ibid. 121. c 2 E. 2. account 14 E. 3. ibid. 3 Mar. 137. Kelway 131. Pl. 16 El. Rot. 436. Littl. § 123. Whereupon it was gathered that no action of accompt did lie against the Guardian in Soccage at the Common Law untill the heire were of his lawfull and full age of 21 yeares But legitima aetas as the Statute hath it or plena aetas as the writ doth render it are to be understood secundam subjectam materiam viz. of the heire of Soccage land whose lawfull or full age as to the Custodie or Wardship is 14 and therefore upon consideration had of the said Statute and of all the Books it was adjudged in the Court of Common Pleas P. 16. El. rot 436. that the heire after the age of 14 yeares shall have an Action of accompt against the Guardian in Soccage when he will at his pleasure and with this agrées Littleton Sect. 123. Age of Infant to make a wil. 2 Because Littleton saith Sect. 123 that the Guardian in Soccage shall render an accompt of the mariage money to the heire or his executors some have inferred Co. Inst pars 1 89. b. 2. that an infant of the age of 14 may make a will but the meaning of Littleton in that place is that if after his mariage he accomplish his age of 18 yeares he may then make a will and constitute executors for his goods and chattells for at that age he hath power by the Law to make a Will and the words are to be understood Secundam subjectam materiam and as they may stand with Law and Reason Vide suprà 15. 21. The Kings Councils 3 The King of England is armed with divers Councils Co. Inst pars 1 110. a. 2. viz. Commune Concilium which is the Court of Parliament Another is called Magnum Concilium and this is sometimes applied to the House of Péeres alone and sometimes out of Parliament to the Péeres of the Realme being Lords of Parliament who are called Magnum Concilium Regis Thirdly the King hath a Privy Council for matters of State Fourthly the King hath another Councel for matters of Law and they are his Iudges of the Law Now therefore when it is spoken generally of the Kings Councel it is to be understood secundum subjectam materiam as if matter of Law be concerned then his Councel at Law viz. his Iudges are to be understood if matter of State his Privy Councel c. Co. Inst pars 1 302. b. 1. 4 If the
the acquital 7 If the husband alien his land Co. ibid. 33. a. 4. and then the wife is attainted of Felony Where the Feme shall have dower and where not now is she disabled but if she be pardoned before the death of the husband she shall be endowed So if the Sonne endow his wife at the age of 7 yeares ex assensu patris if she before the death of her husband attaine to the age of 9 yeares the Dower is good for in these two cases the right of Dower tooke effect in the life time of the husband hy reason of the capacity which the wives had to take it But otherwise it is of an original absolute disability as if a man take an Alien to wife and after the husband alien the land and after she is made Denizen the husband dieth she shall not be endoweâ— because her capacity and possibility to be endowed came by the Denization otherwise it were if she were naturalized by Act of Parliament for that makes her as absolutely capable as if she were a subject borne 8 If the Father convey his lands holden by Knight-service either of the King or of any meane Lord Wardship to his middle Sonne in taile Co. ibid. 78. a. 3. 14 El. Dy. 308. 3 Mar. Dy. 130. the remainder to the youngest Sonne in Fée and dieth the eldest being within age and the King or Lord seize the body together with part of the land according to the Statute of 32 and 34 of H. 8. in this case if the middle brother die without issue the King or the Lord shall not have any benefit of the Statute against him in remainder for the Statute was once satisfied and the Statute extendeth not to him in remainder Co. l. 2. 93. 94. Binghams case and Northcots case Co. l. 10. 80. b. Loveyes case â—enures in â—occage 9 When Littleton saith Co. ibid. 86. a. 3. 108. b. 2. Littl. § 118. that every Tenure which is not Knight-service is Tenure in Soccage he there speaketh of Soccage as it is largely taken and so called ab effectu that is all Tenures which hath the like effects and incidents belonging to them as Soccage hath are termed Tenures in Soccage albeit originally service of the Plough was not reserved as if originally a Rose a paire of gilt Spurs a Rent or the like were reserved or that the Tenant should hold the lands to be Ultorem sceleratorum condemnatorum ut alio suspendio Ockam 31. a. 6. alios membrorum detruncatione vel aliis modis juxta quantitatem perpetrati sceleris puniat that is to be a Hangman or Executioner It séemes in ancient times such Offices were not Voluntiers nor to be hired for lucre but were to be bound thereunto by Tenure Co. ibid. 90. a. 3. 10 A Tenant holdeth land of a Bishop by Knight-service Chattel vested which Seigniory the Bishop hath in the right of his Bishoprick the Tenant dieth his heir within age the Bishop either before or after seisure dieth neither the King nor the Successor of the Bishop shall have the Wardship but his Executors for albeit the Bishop hath the Seigniory en auter droit yet the Wardship being but a Chattel he hath it in his own right and a Chattel cannot go in the succession of a Sole Corporation unlesse it be in the case of the King Littl. § 350. Co. Inst pars 1 216. b. 1. 217. a. 4. 11 If land be granted to a man for terme of five yeares upon Condition An estate upon condition to have fâ—â— that if he pay to the Grantor within the two first yeares 40 marks that then he shall have fée or otherwise but for the terme of five yeares and Livery of Seisin is made unto him by force of the Grant in this case the Grantée hath Fée simple conditional c. and if he do not pay to the Grantor the 40 marks within the first two yeares then immediately after those two yeares past the Fée and Frank-tenant is and shall be adjudged in the Grantor c. And the reason of this case is grounded upon the effect that the Livery tooke at first for by the rule of Law a Livery of Seisin must passe a present Fréehold to some person and cannot give a Fréehold in futuro as it must do in this case if after Livery of Seisin made the Fréehold and Inheritance should not passe presently but expect untill the Condition be performed And therefore if a Lease for yeares be made to begin at Michaelmas the remainder over to another in fee if the Lessor make Livery of Seisin before Michaelmas the Livery is voide because if it should worke at all it must take effect presently and cannot expect Co. ibid. 217. b. 1. And there is a diversity in the case above put betwéen a Lease for life and a Lease for yeares for in case a Lease for life with such a Condition to have Fée the Fée simple passeth not before the performance of the Condition for that the Livery may presently work upon the Fréehold but otherwise it is in the case of a Lease for yeares There is also a diversity betwéen Inheritances that lie in grant and Inheritances that lie in Livery for if a man grant an Advowson for yeares upon Condition that if the Grantée pay xx s. c. within the terme that then he shall have Fée the Grantée shall not have Fée untill the Condition be performed sic de similibus But otherwise it is where Livery of Seisin is requisite and therefore if the King make such a Lease for yeares upon such a Condition the Fée simple shall not passe presently because in that case no Livery is made Vide 55. 109. 35. 8. Littl. § 359. Co. ibid. 222. b. 3. 227. b. 4. 12 If a man make a Déed of Feofment to another without Condition and when he gives Livery Livery upon condition he clogs the estate with a Condition in this case the estate takes effect by the Livery and not by the Déed of Feofment and therefore shall be subject to the Condition Co. ibid. 228. a. 1. 13 If a Déed be made and dated in a forraigne Kingdome of lands within England yet if Livery and Seisin be made Livery upoâ— forraigne deed Secundum formam cartae the land shall passe for the land passeth and the grant takes effect by the Livery and not by the Déed Co. ibid. 271. b. 3. 14 There is a diversity betwéen a Feofment of land at this day upon confidence or to the intent to performe his last Will A feofment the use of a Will and a Feofment to the use of such person and persons and of such estate and estates as he shall appoint by his last Will for in the first case the land passeth by the Will and not by the Feofment because after the Feofment the Feoffor was seised in Fée
another if the land which B. had in exchange be evicted from him by an eigne title B. shall enter upon the alienée of A. c. â—edi conâ—â—ssâ— implies â—arranty and 〈◊〉 covenant 4 If a man make a feoffment by this word Dedi Co. l. 5. 117. a. 3. Spencers case which implies a warranty the Assignée of the Feoffee shall not vouch but if a man make a lease for yeares by this word Concessi or Demisi which imports a covenant if the Assignee of the Lessee be evicted he shall have a writ of Covenant For the Lessee or his Assignee hath the yearly profits of the land which encrease by labour and industry and if he should lose the land he should also lose his labour and cost unlesse he were helped by implicite covenant â—ant of a â—ard 5 If the Grantée of a Ward be impleaded Co. l. 5. 18. a. â— Ibid. he shall vouch the Grantor because this word Grant in case of the grant of a Ward being a Chattel reall imports in it selfe a warranty c. Co. l. 6. 36. b. 1. Bishop of Bathes case 6 A. being Lessee for 60 years if he should so long live Lessee from Reversionâ— hath interâ—sâ— termini the reversion in B. and his heirs B. grants a lease to C. Habendum cum post sive per mortem sursum redditionem vel forisfacturam praedicti A. acciderit vacare c. for 60 yeares This last lease vesteth presently in C. in point of Interest and doth not depend in contingency to take effect in possession at the end of the first terme if by any of these accidents the first lease shall happen to be void For in this case these words which of them soever shall first happen are implyed in Law and the lease is not void for the uncertainty which of them will happen first neither hath the Lessee election to choose which of them he pleaseth as if the first Lessee surrender the last terme takes place immediately after such surrender c. Co. l. 7. 34. a. 4. Nevils case 7 If the dignity of an Earldome had been entailed to the heirs male A dignity â—â—â—feitable for treason befoâ—â— 26 H. 8. 13. it might have béen forfeited for Treason before the Stat. of 26 H. 8. cap. 13. by reason of a secret condition in Law annexed unto it for Earls are created for two purposes viz. Ad consulendum regi tempore pacis ad defendendum Regem patriam tempore belli And therefore they wear a Cap and a Robe in token of Counsel and are girded with a Sword to represent them gallant Champions and Cavalliers Now then when such a person against his duty the end of his dignity commits Treason against the King his dignity though entailed is forfeited by that condition tacitè annexed to his estate Vide 32. 17. Co. lib. 7. 40. Bedels case 8 A man by Indenture betwéen him and his wife of one part Bloud is a sâ—ficient consâ—deration to raise an use without expressing it 〈◊〉 his second son on the second part and his third son of the third part in consideration of natural affection and that the land may remaine in his blood covenants to stand seised to the use of himselfe for life after to his Feme for life after of the one moity to one son and of the other moity to the other son In this case the use accrues to the Feme although not named in the considerations of the deed because the expresse limitation of the use to her being his wife imports in it selfe a sufficient consideration c. and the rather because it is not repugnant to the déed So also if I covenant that in consideration of fatherly love and affection to my eldest son I will stand seised to the use of my eldest son for life or in taile and after to the use of my second son in taile and after to the use to such an one my cousin in fee Here albeit the consideration expressed in words respect onely the eldest son yet the consideration apparent in the déed in limiting the use to my second son or to my Cousin is sufficient in Law to raise an use In like manner if I covenant to stand seised to the use of my wife son or cousin this shall well raise an use without any expresse words of a consideration for in that case sufficient consideration appears c. Co. lib. 11. 25. a. Henry Harpers case Co. l. 8. 34. b. 2. Pains case 9 At the Common Law if lands had been given to a woman Tenant by 〈◊〉 courtesie and to the heirs of her body and she had taken husband and had issue and the issue had died and the Feme also had died without other issue by which the inheritance of the land reverted to the Donor In this case the estate of the Feme was determined and yet the Baron shall be Tenant by the Courtesie for that is tacitè implyed in the grant Co. l. 8 82. a. 4. Vivyors case 10 A. is bound to B. upon condition to stand to and abide the award of C. In an action of Debt brought by B. against A. the Defendant pleads that C. made no award the Plaintiff pleads What is to 〈◊〉 pleaded 〈◊〉 an arbitrement revoâ—â— that the Defendant discharged C. c. In this case the Bond is forfeit and the Plaintiff néed not aver that C. had notice of the Countermand for that is implyed in the words of the plea Revocavit abrogavit omnem authoritatem c. because without notice it is no revocation of the authority and therefore if there had not béen notice then the Defendant might have taken issue quòd non revocavit c. and if no notice were given to C. it would have béen found for the Defendant as if a man pleads quòd feoffavit dedit or demisit pro termino vitae that implies livery for without livery it could not be feoffment gift or demise for life And therefore there is a diversity when two things are requisite to the performance of an act and both things are to be â—one by the same party as in the case of feoffment gift demise revocation countermand c. and when two things are requisite to be performed by several persons as upon the grant of a reversion attornment is not implyed in it and yet without attornment the grant hath not perfection but inasmuch as the grant is made by one and the attornment is to be made by another it is not implyed in the pleading of the grant but in the other cases both things are to be done by one and the same party c. Bridges Bentleys case 21 H. 6. 3. accord 28 H. 6. 6. 6 H. 7. 10. To use a manual occupation implies a â—rade 11 James Wagoner was arrested at the suit of the Chamberlain of London Co. lib. 8. 129. a. 2.
Particeps Criminis 11 E. 4. 2. Finch 18. Feoffment good against all but him that right hath 8 A Lessée for years may make a Feoffment Co. ib. 367. a. 3. Littl. §. 698. and by his feoffment a Fée-simple shall passe and if a warranty be annexed to such an estate albeit such a warranty cannot barre the Lessor or his heirs because it commenceth by disseisin yet betwéen the parties such a warranty standeth good for thereupon the Feoffée may vouch the Feoffor or his heirs as by force of a lineal warranty And therefore if a Lessée for years or Tenant by Elegit Statute Merchant Statute Staple c. or a Disseisor incontinent make a feoffment with warranty if the Feoffée be impeached he shall vouch the Feoffor and after him his heire also because this is a covenant real which binds him and his heirs to recompence in value if they have assets by descent to recompence for there is a feoffment de facto and a feoffment de jure And a feoffment de facto made by them that have such interest or possession as is aforesaid is good betwéen the parties and against all men save onely against him that hath right c. The like 9 If before the Statute of 1 R. 3. cap. 9. Littl. §. 701. Co. ib. 369. a. 1 a man had granted a messuage with the appurtenances to certain Barretors for maintenance by a feoffment with warranty by reason whereof the true Tenant durst not abide in the house this warranty commenceth by disseisin shall not binde him that right hath but some have said it shall be of force betwéen the Feoffor and Feoffée c. Lineal collateral warranty 10 If a man hath issue two sonnes and is disseised Littl. §. 707. Co. ib. 371. b. 4. and the eldest son releaseth to the Disseisor by his deed with warranty c. and dies without issue and after the father dies this is a lineal warranty to the younger son because the land by possibility might have descended from the eldest to the younger son but in that case if the younger son release to the Disseisor with warranty and dieth without issue that is a collateral warranty to the eldest son and also to the issue of his body because the eldest son by no possibility could convey the title of the land to himself by meanes of the younger But in the same case if the eldest son die without issue of his bodie then the warranty is lineal to the issues of the body of the younger And so the warranty that was collateral to some persons may become lineal to others And therefore if Tenant in taile hath issue three sons and discontinue the taile in fee and the second son releaseth by his deed to the Discontinuee with warranty c. and after the Tenant in taile die and the second son die without issue this is collateral warranty to the eldest sonne but in case the eldest son die also without issue it becomes a lineal warranty to the youngest c. Difference Barres respects severall 11 An Act of Parliament or the Common Law may make an estate void as to one person and good as to another person For example Littl. §. 708. Co. l. 1. 87. b. 1. Corbets case if lands be given to the Baron and Feme and to the heirs of their two bodies and the Baron levy a fine with proclamations and hath issue and die this fine by force of the Statute of 32 H. 8. cap. 36. shall bar the issue in taile but it shall not bind the Feme so that in respect of one it is a good barre and in respect of another it is no barre So also in a praecipe if one be vouched In that case having regard to the Demandant the Vouchee is Tenant and a release to him from the Demandant is good but having regard to a stranger he is not Tenant and therefore a release to him from a stranger is not good Likewise if one be possest of a terme for years as Executor and surrender it here as to one respect the terme is extinct and as to another respect it is assets c. Co. l. 5. 60. a. 4. in Gooches case 12 If a fraudulent conveyance be made to avoid a debt Fraudulent conveyance the grant is void as to the Creditor by the expresse provision of the Statute of 13 Eliz. cap. 5. but as to all other persons it stands good Co. lib. 6 78. b. The Lord of Aburgavennies case 13 A. and B. are joyntenants for life A charge upo◠one of the Joyntenants and judgement is given for C. against A. in an action of Debt A. releaseth to B. before execution here albeit B. is now in by the Lessor and not by A. and the estate of A. as to all strangers is determined yet as to C. who hath the judgement whereby the moity of A. was charged with the execution the estate of A. during the life of A. hath continuance But in case A. die before execution B. shall hold it discharged c. Co. ibid. 79. a. 14 If there be two joyntenants in fee Joyntenants Rent-charge and the one grants a Rent-charge in fée and after releaseth to the other In this case albeit to some intent he to whom the release is made is in by the first Feoffor and no degrée is made betwixt them yet as to the Grantée of the Rent-charge he is in under the Ioyntenant that releaseth and he that surviveth shall not avoid it after the decease of him that releaseth Vide M. 30. c. 8. Co. ibid. 15 A. and B. are Ioyntenants for life The like the reversion to C. judgement is given against A. in an action of Debt A. releaseth to B. B. dies C. enters Yet as to him that hath the judgement the estate of A. so long as A. liveth hath continuance Co. ibid. 16 If the Baron being seised of a Rent or Common in fée The like for Dower release to the land Tenant this rent is extinct yet having regard to the Feme it hath continuance for she shall be endowed thereof See there many authorities in the point and Co. l. 7. 38. b. 3. Lillingstons case Co. l. 6 79. b. 4. Sir Edward Phittons case 17 In the general pardon of 43 Eliz. there was this proviso General pardon that any Clerk might make a Capias utlagatum at the suit of the Plaintiff against out-lawed persons to the intent to compel the Defendant to answer and that the party shall sue a Scire facias before the pardon in that behalfe shall be allowed but this is onely as having regard to the Plaintiff for as to the King it is an absolute pardon and grant of his goods Lord and Villain c. so that the pardon was available to discharge the Defendant against the King but not to discharge him against the party Plaintiffe
A. be seised of certain lands and A. and B. joyne in a feoffment in fee reserving a rent to them both and their heirs and the Feoffee grant that it shall be lawfull for them and their heirs to distrain for the rent so reserved this is a good grant of a rent to them both because B. is party and privy to the deed as well as A. and the clause of distresse is a grant of the rent to A. and B. But if B. had been a stranger to the deed then B. had taken nothing c. Privies in bloud estate and right A re-entry cannot be transferred 27 If an estate be made upon condition and clause of re-entry Littl. Sect. 347. Co. ib. 214. b. 4. at the Common Law none shall take advantage of such re-entry but only parties or privies As if a man let land to another for term of life by Indenture rendring rent to the Lessor and his heirs and for default of payment a re-entry c. If after the Lessor grant the reversion to another in see and the Tenant attorn c. In this case the advantage of re-entry is gone for ever For albeit if the rent happen to be arrear the Grantee of the reversion may distrain for it because it is incident to the reversion yet shall he not for that cause enter into the land and out the Tenant for that the advantage of re-entry at the Common Law belongs onely to the Lessor himself and unto his heire as privy in bloud unto him and cannot by grant of the reversion be transferred unto another neither yet can it be left in the Lessor or his heirs because he hath departed with his whole estate in the land But if the Lessor has died seised of the reversion his heire should have taken advantage of such re-entry for that he is privy in bloud unto him as aforesaid And therefore there is a diversity between the reservation of a rent and a re-entry for a rent cannot be reserved to the heire of the Feoffor leaving out the Feoffor himself but the heire may take advantage of a Condition which the Feoffor himself could never do As if I enfeoff another of an acre of ground upon condition that if my heir pay to the Feoffee c. xx s. that he and his heirs shall re-enter this condition is good and if after my decease my heire pay the xx s. he shall re-enter for he is privy in bloud and shall enjoy the land as heire unto me So also if a Bishop Arch-Deacon Parson Prebend or any other bodie politique or corporal Ecclesiastical or Temporal make a lease c. upon condition his successor may enter for the condition broken for they are privies in right Likewise if a man have a lease for years and demise or grant the same upon condition c. and die his Executors or Administrators shall enter for the condition broken for they are also privies in right and represent the person of the dead â—eoffor shall â—lead a deed â—oll 28 If feoffment be made by déed Poll upon condition Littl. Sect. 375. and because the condition is not performed the Feoffor enters In this case if either the deed Poll be pleaded by the Feoffée and by that means shewed to the Court or that the Feoffor otherwise happens the possession of the said déed albeit that déed properly belongs to the Feoffée and not to the Feoffor yet because the Feoffor is privy unto it he shall make use of it and be received to plead it Release 29 If two men do trespasse to another who releaseth to one of them by his déed the other trespassor shall make use of that release if he have it to shew because they are parties and privies in the trespasse so likewise if two be bound in an obligation and the Obligée releaseth to one of them both are discharged c. â—â—ir Execuâ—â—â— privies 30 If an action of Debt upon an Obligation be brought against an heire Littl. §. 376. Co. ib. 23â— a. he may plead in barre a release made by the Obligée to the Executors and yet the deed doth properly belong to the Executors and not to him but because both he and they are privies to the Testator such a release shall enure as well to him as to them if he be able to produce it otherwise it shall not avail him Littl. §. 396 397. Co. ib. 242. a. 31 If a man seised of lands in fée hath issue two sons and die seised Privity of bloud and title and the youngest son enters by abatement into the land and having issue dies thereof seised and the issue enters into the land this shall not be a descent to take away the entry of the eldest son or of his heirs because the Law intendeth that the youngest son entred claiming the land as heire to his father and for that the eldest son claimeth also by the same title viz. as heire to his father therefore he and his heirs may well enter upon the second son and his heirs in respect of the privity of bloud betwéen them and of the claim by one and the same title But in the same case if after the fathers death the eldest son had entred and then the youngest son had disseised the eldest and had died seised that had béen a descent to take away the entry of the eldest or of his heirs for that was a plain disseisin and the privity of bloud shall not help that case c. So also where lands were given to the husband and wife and the heirs of their two bodies and they had issue a daughter and the wife died and the husband had issue by another wife four sons and died and the eldest son abated and died seised This descent did take away the entry of the daughter because there wanted privity of title for that they claimed not by one and the same title And in the first case albeit the eldest son hath issue and dieth and that after his decease the youngest son or his heire entreth and many descents be cast in his line Yet may the heires of the eldest son enter in respect of the privity of the bloud and of the same claim by one title But if the youngest son make a feoffment in fée and the Feoffée die seised that descent shall take away the entry of the eldest in respect that the privity of the bloud faileth And admit that the youngest son be but of the halfe bloud to his brother yet is he of the whole bloud to his father and therefore if he entreth by abatement and dieth seised it shall not bar his elder brother of his entry Howbeit if after the decease of the Father a Stranger doth first enter and abate upon whom the youngest son entreth and disseiseth him and die seised this descent shall binde the eldest for he entred by disseisin and not by abatement c. Co. ib. 243. a. 1
K. Bench sits 10 At the Common Law the Court of Marshalsie had jurisdiction of Pleas of the Crown and had a general authority in effect Co. l. 10. 71. a. 73. b. in the case of the Marshalsie as Iustices in Eire had for they were in part the Vicegerents of the Chiefe Justice of England within the Vierge Howbeit after that by the Statute of 28 E. 1. cap. 5. the Iustices of the Kings Bench were enjoyned to follow the Court the general authority of that Court as to those purposes vanished because they being onely the Vicegerents of the Chief Justice in his presence their authority ought to cease for in presentia majoris cessat potestas minoris c An entaile extinct in a Fee-simple 11 Sir Thomas Wyat being seised of divers Mannors in taile Dyer 115. 65 66. 1 2 P. M. the remainder in H. 8. in fee in the beginning of Quéen Maries reign forfeits them for treason whereby they escheat to the Quéen In this case the estate tail was utterly extinct and the Quéen is in of her ancient Fée-simple executed for she cannot be in of the Fée-simple determinable upon the entaile because then there would be two Fee-simples in the Qu which is absurd And therefore rather than so the entaile shall be merged in the Quéens ancient Fée-simple Errour 12 An Exigent is returnable by the roll Octabis Mich. but the writ of Exigent was returnable Mense Dyer 211. 32. 4 Eliz. and the Defendant was out-lawed betwixt Octabis and Mense and this was adjudged error because the roll is of more credit than the writ and determines it 62 The more worthy thing draweth unto it things of lesse worthinesse Finch 23. 1 The body of a man is more worthy than land The bodie more worthy than land therefore land shall follow the nature of the person as a Villein shall make frée land to be Villein-land but Villein-land shall not make a frée man to be a Villein So likewise the Kings land which he hath in his natural capacity Co. Inst pars 1. 15. b. 3. shall be demeaned according to the priviledge and prerogatives of his body royal As if the King hath issue a sonne and a daughter by one Venter and a son by another Venter and purchaseth lands and dieth and the eldest son enters and dies without issue the daughter shall not inherit those lands nor any other Fée-simple lands of the Crown but the younger brother shall have them Where note that neither possessio fratris doth hold of lands which are the possessions belonging to the Crown neither yet doth Half-bloud make any impediment to the descent of lands of the Crown as it fell out in experience after the decease of E. 6. to Quéen Mary and from Quéen Mary to Quéen Eliz. both which were of the halfe blood and yet inherited not onely the lands which King Edward and Quéen Mary purchased but also the ancient lands parcel of the Crown A man that is King by descent on the part of his mother purchaseth lands to him and his heirs and dies without issue this land shall descend to the heir of the part of the mother whereas in the case of a Subject the heire of the part of the father shall have them So King Henry the eighth purchased lands to him and his heirs having issue two daughters Quéen Mary and Quéen Eliz. and after the decease of E. 6. the eldest daughter Quéen Mary did inherit onely all the lands in Fée-simple for the eldest daughter or sister of a King shall inherit all his Fée-simple lands So it is also if the King purchaseth lands of the custome of Gavelkind and die having issue divers sons the eldest son shall onely inherit those lands And the reason of all these cases is as afore is said for that the quality of the person doth in these and many other like cases alter the descent so as all the lands and possessions whereof the King is seised in jure Coronae shall secundum jus Coronae attend upon and follow the Crown And therefore to whomsoever the Crown descends those lands and possessions shall descend also For the Crown and the lands whereof the King is seised in jure Coronae are Concomitantia And the lands and possessions belonging to the Crown do follow and attend upon the Crown as upon the more worthy c. Co. ib. 43. a. 4. 2 When the Royal body politique of the King doth méet with the natural capacity in one person The King no minor the whole body shall have the quality of the Royal politique which is the greater and more worthy For Omne majus trahit ad se quod minus est And therefore in judgement of Law the King Co. ib. 16. a. 1. as King cannot be said to be a Minor because in the Royal body politique there can be no minority So likewise if the right heire of the Crown be attainted of Treason yet shall the Crown descend to him and eo instante without any other reversal the attainder is utterly avoided as it fell out in the case of H. 7. c. Co. ib. 87. b. 3. 3 If a man be seised of a Rent-charge Rent-seck Things in grant follow land Common of pâ—sture or such like inheritance which do not lie in tenure and dieth his heire being within the age of 24 years In this case the heire may choose his Guardian but if he hold lands in soccage together with such like inheritances Then shall the Guardian in soccage not onely take into his hand the lands holden in soccage but such inheritances also because he hath the custodie of the heir c. Co. ib. 114. b. 2. 4 Albeit a man cannot prescribe to have bona catalla proditorum Of felons goods no perscription faelonum c. yet may they or the like priviledges be had obliquely or by a meane by prescription For a County Palatine may be claimed by prescription and by reason thereof to have bona catalla Proditorum felonum c. â—he grant of a â—annor pasâ—eth services 〈◊〉 5 Whatsoever passeth by livery of seisin either in déed or in Law Co. ib. 121. b. 2 may passe without déed and not onely the rents and services parcel of the Mannor shall with the demesnes as the more principal and worthy passe by livery without déed but likewise all other things regardant appendant and appertinent to the Mannor as incidents and adjuncts to the same shall together with the Mannor passe without déed and all these shall so passe without saying cum appertinentiis Priviledges â—â—nct 6 If A. be seised of a Mannor Co. ib. 121. b. 4. whereunto the franchise of waife and stray and the like are appendant and the King purchaseth the Mannor with the appurtenances Now are these Royal franchises remitted to the Crown and not any longer appendant to the Mannor c. Common
not titheable c. cannot be put in execution upon a recognisance statute c. because the office it selfe being an office of trust cannot 26. El. Molins Finch 23. 4 Tithe is not payable of Oaks usually topped and lopped though it be every seven or eight years for the branches are of the nature of the principal viz. the Oake it selfe for which no tithe is to be paid Co. Inst pars 1. 13. a. 1. 5 A man seised as heire on the part of his Mother The effect ensues the cause and the recompence the losse maketh a feoffment in fée to the use of him his heirs Here the use being a thing in trust and confidence shall ensue the nature of the land and shall descend to the heire on the part of the Mother So likewise if a man hath a Seigniory as heire of the part of his Mother and the tenancy doth escheat it shall go to the heir of the part of the Mother Also if the heir of the Mothers part of land whereunto a warranty is annexed be impleaded and vouch and thereupon judgement is given against him and also for him to recover in value and dieth before execution Here the heire of the Mothers part shall sue execution to have in value against the Vouchée for the effect ought to pursue the cause and the recompence shall ensue the losse Co. ib. 42. a. 4. 6 A man may have an estate for term of life determinable at will An estate for life deterâ—â—â—able at will As if the King doth grant an office to one at will and also grants a rent to him for the exercise of his office for the term of his life this is determinable upon the determination of the office Co. ib. 53. a. 3. 7 If Glasse-windows though glased by the Tenant himself be broken down or carried away it is waste for the glasse is part of the house Waste And so it is of wainscot benches doors windows fornaces and the like annexed or fixed to the house either by him in the reversion or the Tenant Co. ib. 122. a. 1 8 Nothing can be properly appendant or appertenant to any thing Advowson appendent 〈◊〉 Demesnes unlesse the principal or superiour thing be of perpetual subsistance and continuance For example an Advowson that is said to be appendant to a Mannor is in rei veritate appendant to the Demesnes of the Mannor which are of perpetual subsistance and continuance and not to resists or services which are subject to extinguishment and destruction Co. Inst pars 1. 124. a. 4. 9 If an Executor hath a Villein for years A perquiâ—â—â— shall accrâ—â— the Executâ— Termor 〈◊〉 and the Villein purchaseth lands in fée the Executor enters In this case the Executor shall have the whole fée-simple of the lands Howbeit because he had the Villein en auter droit as Executor to the use of the dead it shall be assets in his hands as the Villein is And therefore note a diversity betwéen the quantity of the estate and the quality of it for in this and the lik cases the Law respecteth not the quantity of the estate for not onely Tenant in taile and Tenant for life of a Villein shall have the perquisite of the Villein in fée but Tenant for years and Tenant at will also shall have it in fée but it principally respecteth the quality of the estate For in what right the Executor hath the Villein in the same right shall he have the perquisite So it is also in the case of a Bishop that hath a Villein in right of his Church Also if a man hath a Villein in right of his wife he shall have the perquisite also in her right But if the purchase be after issue had then the Baron shall have the perquisite to him and his heirs because by the issue he is entitled to be Tenant by the Courtesie in his own right c. Distresse for owelty of partition 10 Littleton saith § 219. Co. ib. 144. b. 4. that for a Rent-charge the Grantée hath his election either to bring his writ of Annuity or to distrain c. Howbeit of a rent granted for owelty of partition a writ of Annuity doth not lie because it is of the nature of the land descended and therefore for that the Grantée shall onely distrain c. Assise redisseisin 11 If a man recover land in an Assise of Novel disseisin Co. ib. 154. b. 3. whereunto there is a Common appendant or appertenant and after is re-disseised of the Common he shall have a re-disseisin of the Common for it was tacitely recovered in the Assise Coparcenary of rent for owelty c. 12 If there be thrée Coparceners and they make partition Co. ib. 169 b. 2. and one of them grant 20 s. per annum out of her part to her two sisters and their heirs for owelty of partition Here the Grantées are not Ioyntenants of this rent but the rent is in nature of Coparcenary and after the death of the one Grantée the moity of the rent shall descend to her issue in course of coparcenary and shall not survive to the other for that the rent doth come in recompence of the land and therefore shall ensue the nature thereof And if the grant had béen made to them two of a rent of 20 s. viz. to the one ten shillings and to the other ten shillings yet shall they have the rent in course of coparcenary and joyne in action for the same Coparcenary of rent 13 If two Coparceners by déed indented alien both their parts to another in fée Co. ib. 169. b. 4. rendring to them two and their heirs a rent out of the land they are not Ioyntenants of this rent but they shall have the rent in course of coparcenary because their right in the land out of which the rent is reserved was in coparcenary Joyntenancy for life and several Inheritances 14 If land be given to two men and the heirs of their two bodies Co. ib. 183. b. 4. they have joynt estates during their lives and afterwards several Inheritances and therefore if one of them have issue and die the other shall have all the land during his life by right of Survivor but after his death that issue shall enjoy his fathers part and if that issue die without issue the Donor shall enter into that moity and not the issue of him that survived For in as much as originally the inheritance was several the reversion is also several And therefore upon the several determination of the estate in tail the Donor may enter for as upon one joint and intire gift or lease there is one joint and intire reversion so upon several gifts or leases there be several reversions c. Rent reserved enures to both the Joyntenants 15 If two Ioyntenants make a lease for life Co. ib. 192 a. 3.
be revoked So if I make my testament irrevocable yet may I revoke it for my act or my words cannot alter the judgement of the Law and make that irrevocable which of his own nature is revocable c. And therefore if I be bound by obligation to stand to the award of I. S. albeit if I discharge that arbitrement I shall forfeit my bond Yet is my submission in that case revocable and so is the book in 5 E. 4. 3. b. which séems to be contrary in that point well reconciled c. Restraint to demise void 18 The Charter of the Incorporation of Suttons Hospital restrains them to alien or demise but in a certain forme Co. l. 9. 30. b. 4. in the case of Suttons Hospital this is onely a precept and ordinance testifying the Kings desire but binds not in Law So likewise in another part of the same Charter the exemption of the Ordinaries jurisdiction is but a clause declaratory For being a Lay-corporation it neither can or ought to be visited c. A defective â—â—â—re 19 In the case of Monopolies in the 11 Report Co. l. 11. 85. b. 3. in the case of Monopolies the Defendant being charged by the Plaintiffe to have sold Cards c. contrary to the priviledge granted to the said Plaintiff by Letters Patents of Qu. Eliz. c. puts in this barre that the City of London is an ancient City and that within it time out of mind c. there hath béen a society of Haberdashers and that within the said City there was a custom Quod quaelibet persona de societate illa usus fuit consuevit emere vendere liberè mâ—rchandizare omnem rem omnes res Marchandizabiles infra hoc regnum Angliae de quocunque vel quibuscunque personis c. and pleaded farther that he was Civis liber homo de civitate societate illa and that he sold playing Cards c. as was lawful for him to do c. But the Justices gave no regard to this Barre because it was no more than what the Common Law would have said and then no such particular custome ought to have béen alleaged For in his quae de jure communi omnibus conceduntur Consuetudo alicujus patriae vel loci non est alleganda and with this accords 8 E. 4 5. c. Dyer 19. b. 115. 28 H. 8. 20 The Lessor covenants Lessee may take boots without assignment that the Lessée shall have sufficient Hedg-boot by the assignment of his Bailiff In this case for as much as this covenant is in the affirmative and floweth from the Lessor and is no more than what the Law gives a Lessée priviledge to do per Baldwin and Fitzherbert the Lessée may take Hedg-boot without assignment Tamen quaere for Shelley is of another opinion because Cujus est dare ejus est disponere Modus conventio vincunt legem and the Lessée also séems to be bound by the acceptance of the lease upon those termes Ideo quaere Howbeit if I let to one two acres of Meadow and that it shall be lawful for the Lessée to cut the grasse by the assignment of the Lessor yet the Lessée may cut the grasse without my assignment Dyer 179. 45. 2 Eliz. 21 A man seised in fée of lands in Burrough English since the Statute of 27 H. 8. makes a feoffment in fée to the use of himself Burrough English and the heirs males of his body engendred Secundum cursum communis legis and after dies seised accordingly having issue two sons In this case the youngest sonne shall have the land notwithstanding the words before Vide 26 H. 8. 5. Dyer 230. 57. 6 Eliz. 22 The Lord by Knight-service releaseth and confirms to the Tonant to hold by a Spurre In this case Tenure the new reservation is void upon the estate before created Howbeit the tenure by fealty still remains Dyer 238. 36. 7 Eliz. 23 A Coroners Inquest indicts a man of murther quòd fugam fecit Coroners Inquest and upon his arraignment he is acquit and another found guilty ut oportet and it was also found that he did not flie yet he shall forfeit his goods for upon his arraignment in this case the flight shall not be given in charge because they were before forfeited by the Coroners Inquest Hob. 5. Crow and Edwards 24 In debt upon an obligation of 60 l. for the payment of 31 l. 10 s. at Coventry issue was taken that the money was paid at Coventry Trial in forreign County and yet by consent of parties and a paper Rule of Court the issue was tried at London and found for the Plaintiff and judgement given Howbeit upon a Writ of Errour brought in the Exchequer Chamber the judgement was reversed for consent of Parties cannot change the Law Hob. 13. Sir Daniel Norton and Simmes 25 If a Sheriff will make an Vnder-sheriff Sheriffe provided that he shall not serve Executions above 20 l. without his special warrant this proviso is void as being against Law and Iustice For albeit he may choose not to make an Vnder-sheriff at all or may make him at his will and so remove him wholly yet he cannot leave him an Vnder-sheriff and yet abridg his power no more than the King may in case of the high Sheriff himself Vide 167. 52. Hob. 120. Smales and Dale 26 Albeit a Tenant in Common enter into the whole Tenants in Common and claim all expresly yet he cannot thereby dispossesse his companion for the possession of him that so enters is over all lawful as well before such claime as after so as there is no possession altered by such claim and then a sole claim without more can never change the possession and without a change of possession which the Law protects it remains as before and therefore a Coparcener Ioyntenant or Tenant in common can never be disseised by his fellow but by an actual Ouster For the same reason it is that is a Tenant in Common do alone bring an action of trespasse against a stranger his action shall be abated by pleading him Tenant in Common with another albeit his entry were made generally and expresly into all which proves that the entry of one serves for all for else they could not joyn in an action of trespasse 66 Expressio eorum quae tacitè insunt nihil operatur â—pon the Qu. â—ant of the â—version deâ—and must be â—pon the â—â—nd 1 Queen Eliz. le ts for years rendring rent Co. l. 4. 73. Boroughs case payable at the receipt of the Exchequer at Westm Seu ad manus balivorum vel recâ—pturum c. with condition to be void for non-payment c. the Quéen grants the reversion in fée Here the demand of this rent ought now to be made upon the land For in the Quéens case the limiting of
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
R. 3. 1. the 1 of May Dier 57. b. 2. 35 H. 8 makes a lease to one for 20 yeares to begin at Mid-sommer next the feoffées the second of May at the Request of Cestuy que use make a lease of the same Land to the same Lessée for 34 yeares to begin also at Mid-sommer In this Case the acceptance of the last lease is not a surrender of the first but rather a confirmation of the 20 yeares and a new Lease for the 14 yeares for albeit the Lessée had such an Interest which he might grant or forfeit yet in regard the Lessée having not possession his Estate was onely to begin and executorie and not already begun and executed such acceptance could not be a surrender in Law and the rather for that the feoffees had a lawfull and ordinary authority in the Land to make a lease in such Case Dier 67. b. 20. 3 E. 6. 39 For the debt of a Common person upon a Statute after the Inquisition and before the Liberate Statute Staple the same Land may be extended for the Kings debt but it séemes to be otherwise after the Liberate to the Common person for then it is rested in him in nature of a frée-hold Tamen quaere Dier 82. b. 72 7 E. 6. 40 In London upon the attachment of a Debt in a third persons hand albeit the Plaintiffe have judgement against the third person Attachment 〈◊〉 a debt in Lâ—â—don yet before execution served the Plaintiffe may resort to have judgement and Execution against the Defendant being his principal Debtor It is otherwise if the judgement against the third person had béen executed Dier 98. b. 57. 1 Mar. 41 A Fieri facias returnable Quind Pasc was directed to the Shetiffe of Middlesex who returnes Execution quòd cepit bona catalla to the value of part of the debt quòd remanent in custodia sua pro defectu emptorum Error quòd ante return hujus brevis breve de non molestando fuit direct quòd de ulteriore executione supersedeat which writ he also returned annexed to the fieri facias Now this writ de non molestando was awarded in Banco by reason of a writ of Error there brought by the Defendant but the Record was not yet removed because the returne of the writ of Error was Crast Ascent and not before In this Case the Question was whether or no the writ de venditioni exponend should be awarded because the writ of execution was not served nor the propertie of the goods altered notwithstanding the seisure yet at last the writ de venditioni exponend was awarded by Sanders and Browne notwithstanding the supersedeas because as it séemes the writ of Error upon which the supersedeas was founded was but executorie being not then returnable Dier 205. 7. 3 4 El. 42 The Conusor of a Statute hath a Rent-charge Extent and before extent purchaseth parcel of the Land In this Case the Rent is gone and shall not be in Execution But it séemes to be otherwise if the purchase hath béen after the extent of the Rent executed Dier 220. 50. 5 El. 43 A fine was acknowledged by Baron and Feme of the Land of the Feme in the Vacation after Hillary Term by ded potest the Feme being then but 19 yeares of age Fine the writ of Covenant bare teste in Jan. returnable Crast Pur. and the ded potest bare teste thrée dayes after the original and the Quéens silver was entred upon Hillary Term four dayes before the death of the Feme viz. die Venetis in Septinaria Pasch But yet the fine was not engrossed until Wednesday after whereupon the heire of the Feme in Easter Term prayes that the fine should not be delivered to the party nor recorded yet it was notwithstanding the undue practises of the Baron because after the entry of the Quéens silver before the death of the Feme and the engrossing of the fine before Easter Term the fine was perfectly executed 104 Possibility of things â—sibility if â—â—riage 1 If Lands be given to a man and a woman un-married Co. Inst p. 1. 20. b. 4. and to the heires of their two bodies for the apparent possibility of inter-marying they have an Estate taile in them presently So it it also where lands are given to the Husband of A. and the Wife of B. and to the heirs of their bodies for they have also a present Estate taile in them in respect of the possibility Also if a Feme sole do enfeoffe a maried man causa mairimonii prolocuti it is good for the possibility c. â—sâ—bility of â—er 2 If there be Baron and Feme Co. ib. 33 a. 3. and the Feme is above the age of 9 years and under the age of 12 that being the age of consenting to marriage and the Baron of what age so ever die before the Feme attaine the age of 12 yet shall she be endowed in respect of the possibility of consenting at that age which indéed is the consummation of the mariage So if a man take a Wife of the age of 7 yeares and after alien the Land and after the alienation the wife attaineth to the age of 9 yeares and after the husband dieth yet here also the wife shall be endowed for the possibility of being dowable if she attained the age of 9 yeares before the death of the husband for by his death the possibility of Dower is consummate c. â—enants in â—tiall taile â— years old 3 If a man gives land to a man and his Wife and to the heires of their two bodies Co. ib. 28. a. 2. and they live till each of them is an hundred yeares old and have no Issue yet do they continue still Tenants in taile for that the Law in that Case will not sée in them an impossibility of having Children although they be never so old It is otherwise where Land is given to a man and a woman in special taile and woman dies without Issue for there the Law seeth an apparent impossibility that the man should have inheritable Issue by another womon c. 〈◊〉 ex asâ—sâ— by any 〈◊〉 a constant â—it appaâ—â— not good 4 The youngest son and heire apparent cannot endow his wife ex assensu patris Co. ib. 35. b. 2. of lands whereof the Father is seised in fée of the nature of Borough English in respect of the possibility that the Father may have another Son for then the husband is not heire apparent For the same reason it is that Dower ex assensu fratris or consanguinei is not good because albeit he is heire apparent at that time yet for the common possibility that the Brother or Cousin may have Issue and every Issue that he shall so have will exclude the husband from being heire apparent he is no such heire apparent as the Law
because it appeares not to the Court that the Bargainer had quid per quo but if a good consideration can be averred that shall suffice to raise an use albeit no particular consideration be mentioned in the déed Vide plus ibid. â— valuable â—â—sideration â—ust raise an 〈◊〉 26 Tenant in tail Remainder in fée Co. l. 2. 15. a. 3 Wisemans Ca. he in Remainder by déed indented and inrolled in consideration that his Lands shall continue in his name and bloud and for divers other good considerations covenants to stand feised to the use of himselfe and the heires males of his body and for default of such Issue to the use of Quéen El. and her Successors and after Tenant in tail in possession suffers a Common Recovery with voucher In this Case no use was raised to the Quéen by the Indenture for the words for other good considerations are too general to raise an use without special averment that some good consideration was given And that the land shall continue in his name and bloud is no consideration to raise an use to the Quéen for there wants quid per quo c. And contractus dicitur quasi Actus contra Actum The estate tail â—â—ved until 1 â—â—ersal of the erroneous roâ—â—very 27 L. and M. Ioint-tenants for life the Remainder to L. in taile Co. l. 3. 3. 2. 3. The Marq. of Winchesters ca. Remainder to M. L. suffers a recovery erroneously and dies without Issue and N. also dies Here albeit the recovery is erroneous and by consequent not void but voidable by writ of error yet so long as it continues in force N. hath no right in the moity of the Remainder in respect of the intended recompence So also if Tenant in tail suffer a common recovery erroneously and after disseise the recover or and die his Issue shall not be remitted for so long as the recovery remaines in force the Estate taile is barred by reason of the recompence by recovery in value Recovery in â—he a barre 〈◊〉 the Issue 28 Baron and Feme are Ioint-tenants for life Co. l. 6. a. 2. Cuppledikes Case Co. l. 6. 32. a. 2 Sir Will. Fite-Williams Case the Remainder to the husband in tail the husband suffers a recovery as vouchée this harres the Remainder albeit the Feme joynes not for here was a lawful Tenant to the praecipe and the husband comming in as vouchée comes in in privity of the Estate and the recompence goes to the Issue in tail but if the Femes inheritance had béen joint with the Baron it might be doubled whether the Issue bad béen barred yet then it séemes he had béen barred for the moity in respect of the recovery in value of the moity Vide 55. 90. Contribution 29 If a man he seised of two Acres Co. l. 3. 12. b. 4. Sir William Herberts Case the one of the nature of Borough-English and binds himselfe in a Statute or recognisance or if judgment in debt be given against him and he die having Issue two daughters who make partition In this Case if the one be onely charged she shall have contribution and recompence against the other for as one purchasor shall have contribution against the rest Co. l. 3. 18. a. 4. Twines Case ib. 83 a. 4. and also against the heire so one of these two heires shall have it against the other because they are in aequali Jure Nature no good consideration within the Statute of â— 3 El. 5. 30 The words in the proviso of 13 El. 5. concerning fraudulent conveyances upon good consideration bona fide shall not be understood of Nature or Bloud but of some consideration of money or other thing of value for if one being indebted to 5 several persons to each party in 20 l. in consideration of natural affection gives all his goods to his Son or Cosin in this Case in as much as the Creditors shall lose their 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 defeats others shall be of as high and good consideration as the things that are so defeated by it Co. l. 4. 1. b. 2. Vernons Case 31 If a man before the Statute of 27 H. 8. 10. Jointure made before marriage no barre of dower in consideration of a Marriage after to be had with A. had made an Estate of certain lands to her for life in full satisfaction of all the dower which after marriage might accrue to her in any of his lands and after they had intermarried this had not béen any barre of her dower at the Common Law because she had not any title of Dower at the time of the acceptance of the satisfaction but that accrued afterwards Co. lib. 4. 121. a. 4. Bastards Case 32 In every Exchange rightly made this word Excambium imports in it selfe tacitè a condition and also a warranty Exchange implyes a warranty the one to give a re-entry and the other a voucher and recompence and all in respect of the reciprocal consideration the one land being given in exchange for the other but this is a special warranty for upon the voucher by force thereof he shall not recover other land in value but that onely which was so given by him in exchange because in as much as the mutual Consideration is the Clause of the Warranty therefore it shall onely extend to the land reciprocally given and not to any other land Co. l. 5. 87. a. 2. Blumfields ca. 33 Two are bound in an Obligation jointly and severally The Obliger dying in prâ—son satisfies not the debt one is sued and in execution so is the other the first escaps the other brings an Audita querela here the Audita querela lies not for the Action against the Sheriffe upon the escape is not satisfaction of the Debt because he may he worth nothing and if both had béen sued by one writ and several praecipies the entry shall be that there be one execution viz. with satisfaction for they shall both be in execution If the Conusor of a Statute Staple or Merchant escape his lands and goods may be extended so it is also if he dies in prison for execution of the body is not satisfaction for there is a difference betwixt execution which is valuable and which is not valuable execution by the Common Law cannot be had twice as in eviction of lands executed it is otherwise of invaluable satisfaction Also no new can be where execution was final before but there may be where execution was quousque as in the Case above Co. l. 5. 94. á. 1. Barwicks Ca. 34 E. 6. demises for 21 yeares Void consideration make the lease void Quéen El. leases the reversion for 21 yeares to B. who makes several leases in futuro and 23 El. upon
being heir in appearance and he is not bound to dis-able himselfe â—â—ministratiâ—â—â—oid and â—â—able 6 If an Ordinary of a Diocesse commits Administration of Goods Co. l. 5. 29. b. 4. in Princes Case Were and Jefferies Case when they are bona notabilia such Administration is méerly void but Administration committed by the Metropolitan when the defunct had not bona notabilia is onely voidable because he hath Iurisdiction in all the Diocesses within the Province and therefore hath sufficient colour to do it Co. l. 6. 65. a. 3. in Sir Moile Finches Case 7 In 41 E. 3. 19. Rich. Tompson had Issue by Joan before mariage one Agnes and after he marries Joan and makes feofment in fée A Bastard takes by yâ— chase and retakes the Estate to himselfe for life remanere inde Agnetae filiae praedict Rich. Johanne and it was agréed that this was a good remainder without any averment that she was known to be their Daughter for albeit by the Common Law she was not their Daughter yet in as much as she had colour by the Ecclesiastical law which saith subsequens matrimonium tollit peccatum procedens this colour is sufficient in Case of a conveyance to make the remainder good and so note the diversity betwixt descent and purchase c. Co. l. 8. 101. per tout in Sir R. Lechfords Case The better opinion per Coke 8 If there be Bastard eigne and Mulier puisne Mulier beyonâ— sea c. and the Father die seised the Mulier being beyond Sea within age in Prison or of non sanae memoriae and the Bastard enter and continue in peacable possession of the Lands and hath Issue and dies and the lands descend to his Issue here the right of the Mulier is for ever bound because he hath colour of legitimation by the Law of Holy Church and the Common Law respects legitimation before the above-said Imperfections Vide plus ibid. Co. l. 10. 76. b. in the Case of the Marshalsea 9 If a Sheriffe holding his Torne after Michaelmas moneth takes there an Indictment of Robbery it is utterly void Things done by warrant contra being coram non judice But if the Court of the Common Bench in a plea of Debt award a Capias against a Duke Earle or c. which by the Law lyeth not against them and that appeares in the writ it selfe here if the Sheriffe arrest them upon the Capias albeit the writ be against Law yet because that Court hath jurisdiction of the cause the Sheriffe hath colour to do it and shall be excused and herewith accords Dier 60. b. 38 H. 8. So also if a Iustice of Peace make a warrant to arrest one for Felony who is not indicted albeit the Iustice erre in granting the warrant yet he that makes the arrest by force of that warrant shall not be panished by writ of false imprisonment because the Iustice is Iudge of the Cause Plow 83. b. 1. in Strange and Crokers Case 10 In 9 H. 6. it is said that if I grant to B. Maintenance that if my Tenant for life die during my life that then B. shall have the Land for 10 yeares Here if my Tenant be impleaded B. may lawfully maintaine in respect of the Colour of title he hath to the Land Co. Inst p. 1. 148. b. 4. 11 Entry into Religion and profession of a Disseisor shall not cause a descent to toll the entry of the Disseisée Bastard Mulier because it is the Disseisors owne Act and not the Act of God as death is yet if there be Bastard eigne and Mulier puisne and the Bastard before claime enter into Religion it is said such a discent shall toll the entry of the Mulier by reason of the colour of title that the Bastard had to the land and such an heire shall also have his age 114 It prizeth the Acts of God and of the Law more then those that are done by the party Co. Inst p. 1. 18. a. 4. 1 Fée-simple being as Littleton saith the largest Estate of inheritance that is Two Fee-simples one Fée-simple cannot depend upon another by the grant of the party as if Lands be given to A. so long as B. hath heires of his body the Remainder over in Fée here the Remainder is void yet in several persons by Act in Law a reversion may be in Fée-simple in one and a Fée-simple determinable in another by matter ex post facto as if a Gift in taile be made to a Villein and the Lord enter the Lord hath a Fée-simple qualified and the Donor a reversion in Fée but if the Lord enfeoffe the Donor now both Fée-simples are united and he hath but one Fée-simple in him â—â—ires female â—ill not take 2 When a man giveth lands to another man and the heirs female of his body dieth having issue a son a daughte◠〈◊〉 daughter shall inherit for the will of the donor the Stat. working 〈◊〉 it Co. ib. 24. b. 3 25. b. 3. 26. b. 4. which is upon the matter an act in law shall be observed but in case of a purchase it is otherwise for if A. have issue a son a daughter a lease for life is made the remainder to the heirs females of the body of A. A. dieth the heire female can take nothing because she is not heire for she must be both heire heire female which she is not because the brother is heire and therefore the will of the giver cannot be observed because here is no gift and therefore the Statute cannot work thereupon so it is if a man hath a son and a daughter and dieth lands are given to the daughter and the heirs female of the body of her father the daughter shall take nothing but an Estate for life because there is no such person she being not heire but where a gift is made to a man and to the heirs female of his body there the Donée being the first taker is capable by purchase and the heire female by discent secundam formam doni â—â—tes may 〈◊〉 altered 3 Regularly Estates cannot be altered from one to another Litt. §. 33. Co. ib. 28. a. unlesse all that have interest joine in the alteration thereof but by the Act of God estates may be changed without any act done by the parties that are interessed as if lands be given to a man and the heirs that he shall engender of the body of his wife here the wife hath nothing and the man is Tenant in special taile therefore in this Case if the Feme die without issue on her body begotten by the Baron the estate in special tail is by the act of God charged into tenancy in tail after possibility of issue extinct â—â—ging of â—â—tes 4 If a feofment in fee be made to the use of a man and his wife for the term
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
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
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
that a man may grant a Rent charge newly created out of Lands to a man and his Heires upon such a Condition and that in such case it shall be good because the Rent is of his own Creation but this is against the reason and opinion of Littleton Sect. 360. and also against the height and purity of a Fee simple Howbeit the examples aforesaid are to be understood of Conditions annexed to the Grant or Sale it self Condition not repugnant in respect of the Repugnancy and not to any collaterall thing As if A. be seised of Black acre in fee and B. enfeoffeth him of white Acre upon Condition that A. shall not alien black acre the Condition is good because the Condition is annexed to other Land and ousteth not the Feoffee of his power to alien the Land whereof the Feoffment is made and so no Repugnancy to the State passed by the Feoffment And so it is of gifts or Sales of Chattells reall or personall Again A man before the Statute of Quia Emptores terraum might have made a Feoffment in Fee and added further that if hee or his Heires did alien without Licence that then he should pay a Fine this had been good And it is said that then the Lord might have restrained the Alienation of his Tenant by Condition because the Lord had a possibility of Reverter so it is in the Kings case at this day because he may reserve a Tenure to himself Co. ib. 223. b 4. Co. l. 10. 38. b. 4. Mary Portingtons case Co. l. 5. 40. Sir Anthony Mildmayes case 11. If a gift in Taile be made upon Condition that the Donee c. Condition repugnant upon grant of an estate in taile shall not alien this Condition is good to some intents and void to other some for as to all those alienations which amount to any discontinuance of the Estate Taile as Littleton speaketh Sect. 362. or are against the Statute of Westminster 2. the Condition is good without question but as to a common Recovery the Condition is voyd because this is no discontinuance but a Bar and this common Recovery is not restrained by the said Statute of Westminster 2. and therefore such a Condition is repugnant to the Estate Taile for it is to be observed That to this Estate Taile there be diverse incidents First To be dispunishable of Wast Secondly The Wife of the Donee in Taile shall be endowed Thirdly That the Husband of the Feme Donee after Issue shall be Tenant by the Curtesie Fourthly That Tenant in Taile may suffer a common Recovery And therefore if a man make a gift in Taile upon condition to restraine him of any of these incidents the condition is repugnant and void in Law And it is further to be observed That a collaterall Warranty or lineall without assets in respect of the recompence is not restrained by the Statute De donis no more is a common Recovery in respect ot the intended recompence And Littleton ubi supra to the intent to exclude the Common Recovery saith Tiel alienation discontinuance joyning them together Inst pars 1. Co. 224. a. 2. 12. If a man before the Statute Do donis had made a gift to a man The like and to the Heires of his Body upon Condition that after Issue he should not have power to sell this Condition had beene repugnant and void Pari ratione after the Statute a man makes a gift in Taile the Law Tacite gives him power to suffer a common Recovery therefore to add a Condition that he shall have no power to suffer a common Recovery is repugnant and void Co. ibidem 13. If a man make a Feoffment to Baron and Feme in Fee Feoffment to Baron and Feme upon Condition that they shall not alien to some intent this is good and to some other intent it is void for to restraine an alienation by Feoffment or alienation by Deed it is good because such an alienation is tortious and voidable But to restraine their alienation by Fine is repugnant and void because it is lawfull and unavoidable 14. It is sayd that if a man enfeoff an Infant in Fee upon condition Infant that he shall not alien Co. ibid. this is good to restraine alienations during his minority but not after his full age Co. ibid. 15. It is likewise sayd Spirit Corpor. that a man by Licence may give Land to a Bishop and his Successors or to an Abbot and his Successors and add a Condition to it that they shall not without the consent of their Chapter or Covent alien because it was intended a Mortmain that is that it should for ever continue in that Sea or House for that they had it En autor droit for religious and good dses And note That whatsoever is prohibited by the intent of any Act of Parliament may be prohibited by Condition and shall cause no repugnancy Confirmation 16. A Disseisor makes a Lease for one hundred years Co. ibid. 297 a. 2. and the Disseisee confirmes the estate of the Lessee for fifty of those years this is a confirmation of the whole terme for when he had once confirmed the Lessees estate the whole estate was thereby confirmed and therefore afterwards to limit the terme to fifty years onely when the whole terme was confirmed before is repugnant and void but the Confirmation ought to have been of the Land for part of the terme so likewise might the Disseisee confirme part of the Land for part of the terme c. Vide infra 32. Habendum 17. In a Deed or other Conveyance of Land Co. ibid. 299. a. 2. when the Habendum doth either agree in substance with the Premisses or enlarge them the Habendum is good but when it abridgeth the Premisses it is repugnant and void Vide Dyer 272. 30. Repugnant covenant 18. John de Marre made a Charter to John de Burford of Fee-simple and the same day it was covenanted between them Co. ibid. 217. b. 3. 12 E. 2. Voucher 265. that John de Burford should hold the same Tenements for eight years and if Jo. de Marre did not pay to Jo. de Burford one hundred markes at the end of the terme that then the Land should remaine to Jo. de Burford and his heires In this case the subsequent Covenant was repugnant and void for first the Charter of the Fee-simple was absolute and the Covenant being made after the Charter could neither alter the absolute Charter nor upon a Condition precedent give him a Fee-simple that had a Fee-simple before A saving Repugnant 19. I.S. being seised of certaine Land in Fee Co. l. 1. 47. a. in Alton Woods case the same Land is given by Act of Parliament to the King in Fee saving the Estates Rights c. of all persons In this case the Estate of I. S the owner of the Land is not
the Pestilence by reason of the multitude of people and pestering the air whereby it might prove dangerous not only to the Subject but likewise to the King himself and the Great Lords who attend upon his royal person Again if London should be too populous it would become ungovernable by the Magistracy of the City and if that City which is tanquam Epitome totius regni should not be well governed all the parts of the Realm would find the inconvenience thereof whereas when that City shall be well governed all parts of the Commonwealth will be preserved in better order Lastly that City becoming too populous it will not be subject to search c. not only in prejudice of the City it self but likewise of the King and the whole Commonwealth because then fraud and deceit will encrease in all Merchandise and things vendible Plea Accord 27 Accord with satisfaction is a good plea in an Ejectione firmae Co. l. 9. 78 a. 3. Henry Petoes case for that is mixt with trespass and indeed in all actions which suppose a tort to be done where Capias and Exigent do lie there an Accord is a good plea because it redeems the body from imprisonment so as men being at liberty may go about their business which is good for the Commonwealth Co. l. 10. 108. b. 3. Lofiâ—lds case 28 If there be Lord and Tenant by Knight service Tenure and the tenant gives the tenancy to two men and to the heirs of their bodies and they die having issue their issue shall hold severally by Knight service because it is for the defence of the Lord and of the Realm Vide supra 14. Co. l. 11 54. a. The Tailers of Ipswich case 29 An Ordinance of a Corporation Corporation Ordinance that none shall exercise any trade there unless he hath served 7. years as an apprentice in the same and shall also be approved by them to be skilfull therein is not good because against the Common Law which restrained no man from exercising any trade and also prejudicial to the Commonwealth for that it puts a greater restraint upon Tradesmen than the Statute of 5 Eliz. doth ordain in as much as he ought also to be approved by them which the Statute doth not enjoyn for if he be ignorant of his trade an action upon the case lyeth for his misdoing as it did also at the Common Law before the Statute neither doth the Stat. restrain a Taylor or other Artificer retained to exercise his trade in a private house And the Statute of the 19 H. 7. strengthens not any Ordinance against the Law or the Commonwealth though allowed as that Statute ordains the allowance only discharges the penalty of 40 l. for making Ordinances against the Kings prerogative and the Commonwealth Co l. 11. 72. a. b. Magd. Coll. case 30 The King is bound by the Statute De donis though not named Statutes binding the King because it is an Act which concerns the Commonwealth and was ordained for the preservation of the possessions of the Nobility Gentry and others so the Statute of 13 Eliz. 10. made for the prevention of long leases and dilapidations of Colleges Cathedrals Hospitals c. doth bind the King albeit not named because those Corporations were trusted with their possessions pro bono publico for the use of the Commonwealth for the same reason that Act hath in all cases had a benefical and favourable construction to the prevention of all inventions and evasions Co. ibid. 76. a. 2. against the true Intention of the same Act. Co. l. 11. 86 a. 3. b. in the case of Monopolies 31 One of the Chiefest reasons Monopolies why the Monopoly of the sole making and importing of Cards and all other Monopolies are prohibited by Law is for that there are three inseparable incidents to every Monopoly against the Commonwealth 1 The price of the Commodity will be raised for he who hath the sole vendition of any commodity may and will make the price as he pleaseth And this word Monopolium is compounded of these Gréek words μόνοϲ and πωλεομαί id est cum unus solus aliquod genus mercaturae universum emit pretium ad suum libitum statuens And the Poet saith Omnia Castor emit sic fit ut omnia vendat Also it appears by the writ of ad quod damnum F. N. B. 222 that every gift or grant of the King hath this condition either expresly or tacitly annexed unto it Ita quod Patria per donationem iliam magis solito non oneretur seu gravetur And therefore every grant made in grievance or prejudice of the Subject is void Vide 13 H. 4. 14. The second Incident to a Monopoly is that after the Monopoly granted the Commodity is not made so good and merchantable as it was before for the Patentée having the sole trade regards his private benefit only and not the Commonwealth 3. This tends to the impoverishment of divers artificers and others who before by the labour of their hands in their art or trade did sustain themselves and their families in good condition and having also by that means increased their substance were fit and ready to serve the King when néed should require but by the grant of such a Monopoly they are reduced to such necessity that ever after they are constrained to live in idleness and beggary c. Munition Treasure of the King 32 Munition though unserviceable cannot be claimed as fees belonging to the Master of the Ordnance Co. l. 11. 91. b. 4. The Earl of Devons case because they were provided for the defence and safeguard of the King and Commonwealth and therefore albeit the King grant them to him and then he dies yet his executors shall not have them but shall be accountable to the King for them And for the same reason it is that no officer of the King or all of them together can ex officio issue or dispose of the Kings treasure although it be for the honor and profit of the King himself for although it be true that it is for the honor and benefit of the King that good service done unto him should be rewarded yet it ought to be rewarded by the King himself or by his warrant no by other because the treasure of the King being the ligament of Peace the preserver of the Honor and Safety of the Realm and the sinews of Warr all which do much concern the Commonwealth is of so high an estimation in Law in respect of the necessity thereof that the imbezilling of treasure trove although it were not in the Kings Chests was Treason And treasure and other valuable chattels are so necessary and incident to the Crown for the reasons aforesaid that in the Kings case they shall go with the Crown to the successor and not to the executors as in case of a common person as appears in 7
certain of their friends to make partition between them who make partition of the Rooms and Chambers of the Castle assigning some to one and some to another c. this Partition is void because a Castle which is to be kept intire pro bono publico and for the safeguard of the Commonwealth will not admit of any such division albeit such a partition of other lands that are partable had been good in Law and binding to the Coparceners after election of their several Parts Co. ibid. 31. b. 3. Dower Neither shall such a Castle be assigned for Dower albeit the parties consent thereunto because the publique shall be preferred before the privat Co. l. 7. 23. a. 3. Buts case 2 A. seised of black acre in fee Rent out of a lease for years and also possessed of white acre for years grants a rent charge out of both to B. for his life with Clause of Distress c. In this case the estate of the rent being a Franktenement according to the purport of the deed cannot issue out of the term for years but out of the land only which the grantor had in fee-simple because the Franktenement of the rent cannot issue out of a Chattel and the intire rent cannot be Franktenement out of black acre and a chattel out of white acre and to make two rents when one only is granted would be injurious Neither yet can the contract and mutual agreement of the parties charge such a thing with a rent which is not chargeable by Law as out of an Hundred or Advowson 30 Ass Pl. 5. or out of a Fair 14 E. 3. Scire facias 122. The Earl of Kents case Neither can a rent be granted or reserved of any estate of Franktenement out of any other Franktenement which is not mainourable either in possession reversion or by possibility but is only haereditamentum incorporeum for Pacta privata non derogant juri communi And in an Assise they cannot be put in view neither can any distress be taken in them And in the case above albeit white acre be haereditamentum corporeum and mainourable yet in respect of the exility and incapacity of the interest which the grantor hath in it that rent of Franktenement cannot issue out of it but out of the land in fee simple And in that case also in an Assise brought for the rent the land in fee shall be only put in view And if the Grantee should accept a lease or grant of white acre that will not suspend his rent Co. l. 9. 128. a. 4. in Sondayes case 3. Term. Hill 8. Iac. it was resolved by the two Chief Iustices Recovery Title the Chief Baron and the Court of Wards that no condition or limitation be it by act execute or limitation and use or by devise in a last will can barr tenant in tail to alien by a Common recovery for the causes and reasons reported at large in Sir Anthony Mildmayes case in the 6. Report Co. l. 9. 141. b 3. in Beaumonts case 4 If there be Lord and tenant of a Carue of land Confirmation and the tenant hath issue and is attainted of felony and the King pardons him and after the Lord confirms the estate of the tenant and the tenant dies In this case the Lord shall have the land against his own confirmation for the confirmation cannot add to the estate of the tenant a descendible quality to him who was disabled to take the land by descent For Pacta privata juri publico derogare non possunt The like 5 Baron and feme being tenants in special tail Co. ibid. 138. b. 141. b 4. the remainder to the heirs of the Baron the Baron levies a fine to E. 6. who grants to the Earl of Hunt in fee the Baron dies and the Feme enters and the E. of H. confirms her estate Habendum to her and the heirs of the body of the Baron then the Feme dies having issue a son In this case the confirmation is void for it cannot add a descendible quality to the issue in tail who was disabled by the fine to take by descent Again if that confirmation should add to the estate of the feme a descendible quality it would in effect as to that point repeal no less than two Acts of Parliament viz. 4 H. 7. 24. and 32 H. 8. 36. by which the estate in tail is barred as to the issues and the issues are disabled to claim the Land by force of the said estate tail Sed Pacta privata c. Common Recovery 6 Tenant in tail cannot be prohibited by any condition or limitation to barr the issues in tail as also the reversions or remainders Co. l. 10. 38. b. 1. 4. Mary Portingtons case by suffering a Common Recovery much less can he be prohibited to prevent by any such condition or limitation a going about conclusion or agréement to suffer such a recovery for to suffer such a recovery to the purposes aforesaid is an incident so inseparably annexed to an estate tail that it cannot possibly be prohibited by any such condition limitation or other agréement whatsover between the Parties Conventio privatorum non potest c. So likewise Dower or tenancy by the Curtesie cannot be restrained by condition because they are annexed to the estate tail by Law no more than a tenant by the Curtesie or tenant in tail after possibility can be by condition made punishable for waste Also things ordained by Statute cannot be restrained by condition c. as that the tenant in tail shall make no leases according to the Statute of 32 H. 8. 28. or levy a fine according to the Statutes of 4 H. 7. 24. 32 H. 8. 36. to barr the issues for none of these which are incident to his estate by Act of Parliament can be restrained by condition or limitation Auditors of the Wards 7 The King himself cannot do any thing against an Act of Parliament when the subject hath also an interest in it Co. l. 11. 3. b. 4 in Auditor Curles case And therefore albeit the words of the grant to the two persons ordained by the Statute of 32 H. 8. 46. to be Auditors of the Court of Wards be conjunctim divisim et alterius eorum diutius viventis yet that being an office of trust there shall be no survivor thereof for that it being enacted by that Statute that there should be two persons c. which should have a judicial voice the King cannot constitute one only for the Subject by the Act hath interest therein Et securius expediuntur negotia commissa pluribus Howbeit the King may constitute one at one time by one patent and another at another time by another patent And albeit he may so do yet he who is first constituted hath not any judicial voice until the other be constituted also for it is provided by the Statute
tenant shall recover against the heire of the seisin of his mother viz. out of the residue of his mothers lands so much as the assets afterwards descended shall amount unto Here albeit at the making of the said Act being in 6 E. 1. there were no entailed lands for all Inheritance was then viz. before Westm 2. being 13 E. 1. fée simple absolute or conditional yet entailed lands are since taken to be within the equitie of the said Act of Glocester but not to retaine or recover as in case of fée simple lands the lands entailed but onely the lands which should so descend because otherwise there would be occasion of new suits and contention which would be inconvenient for if the tenant after assets descended might retaine or recover the lands entailed then if the assets were aliened the issues inheritable to the estate taile might by writ of Formedon in Descender recover the entailed lands againe which would beget a new suit and no way answer the intention of the said Act being indeed a good provision for fée simple lands but not for lands entailed without such a Construction by equity as aforesaid And therefore in case of entailed lands so aliened with warrantie the tenant shall have a Scire facias out of the rolles of the Iustices before whom the suit depends to recover the lands descended according to the provision of the said Act of Glocester which prevents the aforesaid inconvenience and in just and proportionable equity agrées with the case of Fée simple lands and the Intention of the same Act. Vide infrà 178. 22. and 38. 5. Interpretation of statutes 10 For the sure and true interpretation of all statutes in general be they penal or beneficial Co. l. 3. 7. b. 3. in Heydons case restrictive or inlarging of the Common Law four things are to be considered 1 What the Common Law was before the making of the Statute 2 What was the mischief and defect for which the Common Law did not provide 3 What remedie the Parliament hath resolved and appointed to cure that disease of the Common-wealth 4 The true reason of the remedie And then it is alwayes the office of the Iudges to make such construction as may represse the mischief and advance the remedie and also to suppresse such subtile inventions and evasions as may continue the mischief pro privato commodo and to adde force and life to the cure and remedie according to the true intention of the makers of the Act pro bono publico And upon this ground in Heydons case in the 3 Report the statute of 31 H. 8. Co. l. 3. 8. a. 3. cap. 13. of Monasteries was by all the Barons of the Exchequer adjudged by the general words thereof to extend to Copihold or Customarie estates and by them this Rule was then also agréed That when an Act of Parliament alters the service tenure interest of the land or other thing in prejudice of the Lord or of the Custome of the Mannor or in prejudice of the tenant there the general words of such an Act shall not extend to Copiholds but when the Act is generally made for the common good and no prejudice may accrue by reason of the alteration of any interest service tenure or custome of the Mannor In such case many times Copihold and Customarie estates are within the general purview of such Acts. 16 Quoties in verbis nulla est ambiguitas ibi nulla expositio contra verba expressa fienda est Co. Inst 1. 147 a. Co. l. 7. 24. a. Buts case 1 If a rent be granted out of the Mannor of Dale Rent and the grantor grant over that if the rent be behind the grantée shall distraine for the same in the Mannor of Sale this is no grant of rent only but a penaltie in the Mannor of Sale one reason thereof is because the Law néeds not to make construction that this shall amount to a grant of a rent for here the rent is expresly granted to be issuing out of the Mannor of Dale and the parties have expresly limited out of what land the rent shall issue and upon what land the distresse shall be taken and the Law will not make an exposition against the expresse words and intention of the parties when this way stands with the Rule of Law Co. l. 2 55. a. Bucklers c. se 2 A grants land to B. Habendum tenementa praedicta from Christmas next for life Here this grant is void Grant in futuro for an estate of franktenement cannot commence in futuro and the Law will make construction upon the whole grant And therefore albeit the habendum be void and so in effect is no habendum and thereupon the estate should passe by the premisses as in case of repugnancie or the like yet here no estate shall passe by implication of Law against the expresse limitation of the partie although his limitation be void Co. l. 5. 118. Edriches case 3 A seised of Land in fée Rent grants a rent out of it with clause of distresse to B. for the life of C. and dies the heire lets the land thus charged to D. for life the remainder to E. in fée the rent is behind for divers yeares in the life of D. who dies and also C. B. distrains him in the remainder for all the arrearages incurred in the life of D. In this case he in the remainder shall be charged with them by the last branch of the Statute of 32 H. 8. 37. by which an action of debt is given to the tenant pur auter vie after the death of Cesluy que vie against the tenant in demesne who ought to have paid the rent when it was first due and against his executors and administrators and also that he shall distraine for the same arrearages upon such lands c. out of which the said rents c. are issuing in such manner and forme as he ought or might have done if Cesty que vie had been alive Here I say the latter part of this branch doth expresly charge him in the remainder with the payment of the arrearages And the Iudges in that case said that they ought not to make any interpretation against the expresse letter of the Statute for nothing can so well expresse the intent of the makers of an Act as the direct words themselves for index animi sermo and it will be dangerous to give libertie to make construction in any case again the the expresse words when the intent of the makers appeares not to the contrarie and when no inconvenience may happen upon it And therefore in such cases A verbis legis non est recedendum Devise 4 Land was devised to A. for life Co. l. 6. 6. b. Wildes case the remainder to B. and the heires of his bodie the remainder to C. and his wife and after their discease to their children C. and his wife having
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