such a Husband as would commit Waste But if a stranger commit the Waste without the consent of the Baron that is no Forfeiture because it cannot be then imputed to her folly Co. l. 4. 50. a. 4. in Andrew Ognels case 28. When a thing is due in right and truth Exposition of that and becomes remedilesse by no default in the party to whom it is so due but by the Act of God as by the death of the party or the like In such cases Acts of Parliament which are made to give remedy in such cases ought to have a favourable construction which may extend to advance the remedy proportionably to the mischeif and defect in Law Arrearages recoverable by Executors according to the meaning of the makers thereof And therefore if a man grants a Rent-charge out of his Land and after aliens the Land to a stranger who lets it at will to another the rent is arreare and the Grantee dyes In this case the Executors of the Grantee may distrain for the arrearages by the Statute of 32 H. 8. c. 37. And that the words of that Statute are That it shall be lawfull for the Executor c. to distrain for the arrearages c. upon the Lands so long onely as they remain in the Seisin or Possession of the Tenant in Demesne who ought immediatly to have paid the Rent or of any other claiming by and from him c. Here by the words of this Statute the Executors may onely distrain the Grantor or his immediate Grantee by and from being in the Conjunctive Yet in the case above they may distraine the Tenant at will and the word and shall be taken for or to the end the Lessee at will may be understood to derive his estate from him and so to be comprehended within the purview of that Statute for the reason above alleadged Clergy Appeale 29. By the Statute of 3 H. 7. c. 1. Holcrofts case alleadged in Wrote and Wigges case Co. l. 4. 46. b. An Appeale cannot be brought against the Felon after Clergy had but by consequence before Clergy it may And yet if a Felon be indicted and upon his tryall confesses the fact and prayes Clergy and the Iudges take time and will be further advised and then an Appeale is brought In this case the act of the Court to be advised as to the allowance of the Clergy shall not prejudice the party especially in case of life there being no default in him why he had not his Clergy when he prayed it Benefice Laps 30. If a Clerke be presented admitted and instituted Co. l. 4 79. b. 3. in Digbies case to a benefice with cure above the value of 8 l. and after and before induction to the first he accepts another benefice with cure and is thereunto inducted In this case the first is void by the Statute of 21 H. 8. for the words of the Statute are If any parson having one benefice with cure c. accept and take one other c. and he that is instituted to a benefice is sayd in Law to accept and have a benefice Howbeit although by such institution to the second benefice the first is void by the ecclesiasticall Law without any deprivation or sentence declaratory yet no laps shall in this case incur against the Patron without giving notice to him F. N. B. 35. h. no more then if the Church had become void by resignation or deprivation and yet the Patron may take notice thereof if he please and may present according to the said constitution but he is not bound to take notice thereof at his perill It is otherwise if he had been inducted for then he is to take notice at his perill because the avoydance after induction is declared by act of Parliament whereunto every one is party per Popham totam Curiam Co. l. 5. 13. b. The Countess of Salops case Waste Tenant at will 31. Tenant at will shall not be charged for permissive waste for it is not in his default but in the Lessors he having an uncertaine terme Emblements sowne 32. Tenant for life Remainder in fee Co. l. 5. 85. a. In Henry Knivets case the Tenant for life lets for years the Lessee for years is ousted and the Tenant for life disseised the Disseisor lets for years and his Lessee sowes the Land the Tenant for life dyes the Remainder in fee enters the Lessee of the Disseisor carries away the graine and the Remainder in fee brings an action of Trespasse And in this case it was adjudged that because the Lessee of Tenant for life could not know the end of his terme he had right to the Land and by consequence to the graine as things annexed to the Land and albeit by the death of the Tenant for life his Interest to the Land determined yet the Land being sowen before the death of the Tenant for life his right to the emblements remaines Execution of the body not valuable 33. Vpon a Iudgement in debt Co. l. 5. 86. b. 4. c. in â—lunfeilds case after the Plaintiff hath pursued an Elegit he cannot have a Capias ad satisfaciendum against the body because he hath made his election which he cannot waive so long as the Defendant lives neither yet can he have an Elegit after the party is taken upon a Capias ad satisfaciendum returned serv'd or after the Defendant is in Prison thereupon Howbeit if in such case the party dye in Prison which is the Act of God and can do no wrong the Plaintiff may have recourse to his Elegit or take some other course untill he be satisfied for his death is not the Plaintiffs fault So if there be two bound in an Obligation joyntly and severally and the Plaintiff hath Iudgement against them both and casts them both into Prison out of which one of them escapes and so the debt as to him is discharged and the Plaintiff is to have his remedy against the Sheriff Here albeit the debt seemes to be discharged against the other also because they were joyntly bound and it was but one intire debt yet the other remaining in Prison shall not have his Audita querela but shall there continue untill the whole debt and damages be fully satisfied because corporall Imprisonment is not valuable satisfaction of the debt and it was not in the Plaintiffs default that he did escape Co. l. 5. 10. a in Spencers case 34. Vpon a Writ brought by Journeys accounts A Writ by Journeys accounts Diversity if the first Writ abated by the default of the Demandant himselfe as by his mis-information of the name of the Tenant or of the Towne c. in such case the Demandant shall not have a Writ by Journeys accounts as the Books are in 48 E. 3. 21. 14 H. 4. 23. 22 H. 6. 62. 13 H. 4. Executors 118. But if the Writ abate by the default
of the Clerk as where it abates for false Latine or variance or for default of forme c. there the Demandant shall have the benefit of a new Writ by Journeys accounts because it was the default of the Clerk of the Chancery and not the default of the Demandant himselfe as the Books are agreed in 26 E. 3. Quare Impedit 163. 25 E. 3. 54. 48 E. 3. 5. 14 H. 4. 23. c. So likewise when the Writ abates for want of due Summons for that is the default of the Sheriff and no default in the Demandant and therefore in such case also the Demandant shall have a new Writ by Journeys accounts Co l. 7. 6. b. 3. in Milbornes case Vide Max. 57. Ex. 51. 35. For a Robbery done in the morning ante lucem Hue and cry the Hundred shall not be charged because the Robbery was done in the night And albeit no time be exprest in the Statute of Winchester 13 E. 1. yet by good exposition it shall not extend to Robbery done in the night for no Laches or negligence can be attributed to the Hundred for default of well guarding the Country in the night also in the night they cannot make pursuit after the offendors or inquiry for them and then to charge them when they are deprived of their convenient meanes would be hard Vide 57. 50. Co. ibid. 36. At the Common Law The Towne amercied for homicide done there if one were slaine in a Towne in the day time viz. so long as there was full day light and he that slew him escaped the Towne where the Felony was committed was to be amercied for it and so it is held in 3 E. 3. Corone 238. Dum quis felonice occisus fuit per diem nisi felo captus fuit Tota villata illa oneretur But if such a murder or homicide were done in the night the Towne shall not be amercied by the Common Law because in such case no Laches or negligence can be imputed to the Inhabitants of the Towne For God hath ordained the day for men to worke in and the night for them to rest in And therefore the Prophet saith Posuisti tenebras facta est nox in qua pertranseant bestiae silvae c. sub oritur congregati sunt exit homo ad opus operationem redit vespere And the Poet saith Ut jugulent homines surgunt de nocte latrones Co. l. 5. 27. b. 6. in Sir Hugh Portmans case 37. Bar in Quare Impedit contra If the Plaintiff in a Quare Impedit be non-suited after apparance that is peremptory and a good bar in another Quare Impedit albeit that it be brought within the six moneths because in such case the Defendant upon title made shall have a Writ to the Bishop to admit his Clerke which is a good bar in another Quare Impedit and with this accords 19 E. 4. 9. 22 H. 6. 44 45. 33 H. 6. 1. 55. 20 E. 4. 14. 21 E. 4. 2. b. c. F. N. B. 38. b. So if the Plaintiff in a Quare Impedit discontinue his suit the Defendant upon title made shall have a Writ to the Bishop and therefore this is also peremptory and with this accords 31 H. 6. 15. Likewise if the Plaintiff be made a Knight hanging the Writ the Writ shall abate and the Defendant shall in that case also have a Writ to the Bishop and by consequence that is also peremptory for all these are the Acts of the Plaintiff and he doth them in his own wrong But if the Writ of Quare Impedit within the six moneths abate for false Latine or insufficiency of the forme that is the default of the Clerk and shall not be peremptory to the Plaintiff neither shall the Defendant thereupon have a Writ to the Bishop but the Plaintiff may in such case have a new Writ because in these cases no default can be imputed to the Plaintiff and with this agrees 3 H. 6. 3. 31. H. b. 15. F. N. B. 38. b. h. Vide 34. Ass Pl. 9. So likewise it is if the Writ abate for the mis-naming of the Plaintiff or Defendant if the Plaintiff confesse it the Defendant shall not have a Writ to the Bishop for this may be also the default of the Clerke in writing it and with this accords F. N. B. 38. See also 31 H. 6. 15. Goods stollen in an Inn. 38. If a man come to a common Inn Co. l. 8. 32. a. Caleys case deliver his Horse to the Hostler and say nothing to him whether the Hostler keep him in the Stable or put him into a Pasture abroad without any order from the Owner to put him out to Pasture In this case if the Horse be stollen the Inn-holder shall make him good But if the Owner give order to the Hostler to put him abroad into a Pasture which being done the Horse is stollen or otherwise lost in such case the Inn-holder is excused and shall not answer for him because by the Writ in the Register the Inn-holder is not to answer for more then is within his Inn and all that he is to answer for albeit the guest hath a key delivered to him and locks his goods c. within his Chamber Vide the case at large Amerciament â—here 39. In all Writs of Precipe quod reddat as Writs of right Co. l. 8. 60. b. 4. in Beechers case Formedon Aiel Entry c. Precipe quod permittat as to have Estovers Common c. or Precipe quod faciat as Writs of Customes Services c. if the Demandant be barred or non-suited or his Writ abate for being vicious in matter or forme he shall be amercied but if there be two Demandants and the Writ abates by the death of one of them the other shall not be amercied 48 E. 3. 23. 46 E 3. Account 40. 5 E. 3. 3. 22 H. 6. 7. 38. E. 3. 31. 7 H. 6. 36. 41 Ass 14. The like 40. In all personall Actions as Debt Detinue and the like Co. l. 8. 61. a. 1. in Beechers case without force or desceit to the Court and also in Actions which comprehend force or desceit to a Court of Record if the Plaintiff be barred non-suited or the Writ abate for being vicious in matter or forme he shall be onely amercied not fined but if the Writ abate by the death of one of the Plaintiffs or if one of the Plaintiffs appeare and the other is non-suited which in Law in personall Actions is a non-suit of both he that survives or appeares shall not be amercied for there was no default in him but onely in him that appeared not 47 E. 3. 6 43 Ass 3. 7. H. 6. 36. 38 E. 3. 31. 41 Ass 14. The like 41. In all Actions reall and personall Co. l. 8. 61. 3. in Beechers case if part be found for the Demandant or Plaintiff
like This was termed by the Ancient Philosophers Original Justice which in Adams innocencie was cléere and lightsome but since his fall both in himselfe and his posteritie much darkened and incumbred with original sinne This is also the Law whereof Saint Paul makes mention in his Epistle to the Romans where he saith When the Gentiles which have not the Law Rom. 2.14 15. do by nature the things contained in the Law These having not the Law are a Law unto themselves which shew the work of the Law written in their hearts their conscience also bearing witnesse and their thoughts in the mean while accusing or excusing one another The Law of Reason is that Law which deduceth conclusions from known Principles by ratiocination or discourse of sound reason which Principles are termed Rules or Maximes of Reason Positive Lawes are such Lawes as are framed by the light of the two former for the regular Government of some particular Common wealth And therefore these Lawes are sundry and divers according to the several constitutions of particular places and Countries of this sort is the Common Law of England which being the Municipal Law of this Nation and receiving its light principally from the Law of Reason is many times directed and controuled by the Rules and Maximes thereof Now of these Maximes some are taken out of forreigne Sciences as Theologie Grammar Logique Physiques Moral Philosophy Politicks and Oeconomiques The rest are proper to the Law it self as Law-constructions and Fictions in Law All which will more plainly appear by the Precepts and Examples hereafter following I Maximes of Reason taken out of THEOLOGIE 1 Summa Ratio est quae pro Religione facit It is the highe Reason that makes for Religion Statutes which restrain Alienation of Ecclesiastical livings binde the King though not named 1REgularly Statutes binde not the King Co. l. 8. 14. a. In the case of Ecclesiastical persons Co. l. 11. 70. a Magdalen Colledge Case Co. l. 2. 44. b. In the Bishop of Winchesters Case unlesse he be particularly named yet the King is included within the general words of 13 El. 10. which prohibit Ecclesiasticall persons to make grants of their Livings because the Parliament which made that Statute adjudged such grants to be causes of dilapidations and decay of spirituall livings and hospitality and of the utter impoverishment of successors Incumbents in the same whereupon would necessarily follow decay of true Religion and the spirituall worship of God For it is recorded in History that amongst the ten Persecutions which the Primitive Church suffered there were two the most grievous the one under Dioclesian the other under Julian the Apostate the first endeavoured to destroy all the Professors and Preachers of the Word of God occidit omnes Presbyteros but notwithstanding that Religion still flourished for sanguis Martyrum est semen Ecclesiae yet that was a grievous Persecution But the Persecution under the other viz. Julian was much more grievous and dangerous because as the History saith occidit Presbyterium for it robbed the Church and spoiled spiritual persons of their revenues And thereupon ensues great ignorance in Religion and the service of God and therefore great decay of the Christian profession for none will apply himselfe or his children or any other committed to his charge to the study of Divinity when after long and painfull study they shall have nothing to live upon See more in the Books at large Ecclesiastical livings are in Abeyance 2 The Fee simple of a Parsonage or Vicarage is said to be in Aveyance and this was provided by the providence and wisdom of the Law Co. Inst pars 341. a. for that the Parson and Vicar have curam animarum and were bound to celebrate Divine Service and administer the Sacraments and therefore no act of the predecessor should make a discontinuance to take away the entry of the successor and to drive him to a reall action whereby he should be destitute of maintenance in the mean time Co. ibid. 3 Vpon consideration of all the Books of the Law Ecclesiastical persons cannot injure the Church this diversity is well observed by Sir Edw. Cooke that a Parson or Vicar for the benefit of the Church and his successor is in some cases estéemed in Law to have a Fée simple qualified But to do any thing to the prejudice of his successor in many cases the Law adjudgeth him to have in effect but an estate for life Bract. f. 226. Causae Ecclesiae publicis causis aequiparantur And Ecclesia fungitur vice minoris meliorem facere potest conditionem suam deteriorem nequaquam Brit 143. Vide Co. Inst pars 1 2. b. 4. Littl. §. 146. Co. Inst pars 1. 102. b. 40 E. 3. 27. 5 E. 4. 8. 6 E. 3 51 52. 10 E. 4. 2. a. 21 H. 7. 2◠4 An Abbot Prior Bishop Dean Arch-deacon Prebend Ecclesiastical persons cannot disclaim Parson Vicar or other sole Corporation that is seised in auter droit cannot disclaim because they alone cannot devest any fée which is vested in their house or Church For an Abbot and Prior had their Convent the Bishop his Chapter the Parson and Vicar their Patron and Ordinary and the like of other sole Corporations without whose assent they could passe away no Inheritance And the reason of this was because the wisdome of the Law would never suffer one sole person to be trusted with the disposition of the Inheritance of his house or Church Ecclesiae suae conditionem meliorem facere possunt sine consensu deteriorem non possunt sine consensu Vide infra Max. 178. Pl. 1. Co. l. 6 49. b. Boswels Case Co. Inst pars 1 344. a. Glan l. 13. cap. 18 19 20. Mirror c. 5. § 5. Bract. 238. 240 244 c. 291. Fleta l. 83. c. 11 16 17. Britt 222 223 224. 6 E 3. 28. 39. 52. 39 E. 3. 24. 43 E. 3. 25. 45 E. 3. Quare impedit 39. 31 E. 1. Quare impedit 186. 5 By the Common Law there ought to be in every Parish Persona idonea to serve the Cure The Parson or Vicar ought to be Persona idonea for so it appears by the words of the Quare impedit quod permittat praesentare idoneam personam which Epithete idonea includes abilitie in erudition and doctrine honesty in his conversation and diligence in his function and all this to instruct the People of God in true Religion and good conversation and to avoid contention And to the intent that he who hath so great a charge may effectually and peaceably intend it the Common Law provides that after Institution he shall not be subject to actions and so neglect his duty by losing his time in suits and vexations of Law Not to be removed after institution by a common person nor after induction by the King And therefore at the Common Law if a stranger had presented his Clerke and
ought not for any such writ to have ceased to serve the Exigi facias without commandment from the same Court out of which it issued and thereupon the Sheriffe was amercied Dyer 170. 1 2 Eliz. and another Exigi facias issued out Nor by the Escheator The Escheator also ought not to desist from the execution of his office notwithstanding any such command to the contrarie from the King And therefore we find in 1 Eliz. That after the death of the Lord Powes a Mandamus being directed to the Escheastor of Salop to find the office he takes the presentment of the Iury in p per and adjournes them over to another day to take it in Parchment and by Indenture before which day the Quéen sends a Supersedeas at the suit of one Herbert and his wife And it was adjudged that the Escheator ought not to have obeyed that Supersedeas 7 The Law disfavoureth an excomunicate person Excommunication Jury 1 It is a good plea in abatement of a writ to say Litt. § 201. Co. Inst pars 1 133. b. Co. ibid. 158. a. that the Plaintiffe is excommunicate Doct. Stud. l. 1. cap. 6. 2 The old Bookes have said that if a man be excommunicate he ought not to serve of a Iurie Jews 3 A Iew born in England took wife a Iew borne also in England Co. ibid. 31. b. Rot. Parl. 26 E. 1. Rot. 1. the husband was converted to the Christian faith purchased lands and enfeoffed another and died the wife brought a writ of Dower but was barred thereof and the reason yeelded in the record is this Quia verò contra justitiam est quod ipsa dotem petat vel habeat de tenemento quod fuit viri sui ex quo in conversione sua noluit cum eo adhaerere cum eo converti c. 4 Infidels are accounted in Law to be perpetui inimici Infiels with whom a Christian ought to have no peace but perpetual enmitie and hostilitie according to that of the Apostle 2 Cor. 6.15 Quae autem concordia Christo cum Belial Co. l. 7. 17. a. b. in Calvins case aut quae portio fideli cum infideli And the Law saith Judaeo Christianum nullum serviat mancipium nefas enim est quem Christus redemit Blasphemum Christi in servitutis vinculis detinere Regist 282. Infideles sunt Christi Christianorum inimici and herewith agréeth the book in 12 H. 8. fol. 4. where it is holden that a Pagan cannot have or maintaine any action at all and upon this ground there is a diversitie betwéene the Conquest of a Country of a Christian Prince and the Conquest of a Country of an Infidel The power of a Conquerour for if a Prince obtaine a Christian Country by Conquest seeing that he hath vitae necis potestatem he may at his pleasure alter and change the Lawes of that Nation but untill he do make an alteration the ancient Lawes thereof shall remain Howbeit if a Christian Prince should conquer a Country of an Infidel and bring them under subjection there ipso facto the Lawes of the Infidel are abrogated for they be not onely against Christianitie but against the Law of God and nature contained in the Decalogue And in that case untill certaine Lawes be established amongst them the Prince by himselfe or such Iudges as he shall appoint shall judge them and their causes according to natural equity and original Iustice in such sort as Kings in ancient time did within their Kingdomes before any certaine municipal Lawes were established But where a Prince hath the Government of a Nation by descent seeing that by the Lawes of the Nation he doth inherit that Authority he cannot change the Lawes thereof without the consent of the People assembled in Parliament II Maximes of Reason taken from GRAMMAR 8 The Rules from Grammar are infinite in the Etymologie of words and in the Construction of them what their nature is single what joyned with others c. A Lease with condition to take the profits 1 IF a man make a Lease for yeares reserving a rent with a condition Co. Inst pars 1 203. a. that if the rent be behind the Lessor shall re-enter and take the profits untill thereof he be satisfied in this case the profits shall be accompted as parcel of the satisfaction and during the time that he so taketh the profits he shall not have an action of debt for the rent for the satisfaction whereof he so taketh the profits but if the condition be that he shall take the profits untill he be satisfyed and paid of the rent without saying thereof or to the like effect there the profits shall be accompted no part of the satisfaction but onely to hasten the Lessee to pay it and untill he be satisfied he shall take the profits to his owne use Commencement of a Lease 2 If a lease be made Habendum sibi à die confectionis Col. l. 5. 94. a. in Barwicks Case the day of the making is excluded for a vel ab is dictio significativa primi termini à quo sicut dictio usque termini ad quem a vel ab accipitur excl sivè Vide infra 1â— Max. 34. 2. Possession derived 3 Possessio is derived à Pos and sedeo Co. l. 6. 57. b. in Bredimans Case because he that is in possession may sit down in repose and quiet so also seisina is derived à sedendo for untill he hath seisin all is Labor Dolor vexatio spiritus but when he hath seisin he may sit down and rest Howbeit Quaere whether or no possessio be derived of Post and sedeo because he that hath possession sits downe last and seisina seemes to be derived of the French word seiser which signifies to lay hold on Tempus semesâ—â—e 4 Tempus semestre being spoken in the singular number as appears in the Dictionaries signifieth half a year or six moneths Co. l. 6. 62. a. in Catesbies Case viz. such six moneths qui conficiunt dimidium anni there is a great diversitie in our coÌ„mon spéech between a Twelve-moneth being the singular number wch includes a whole yeare according to the Kalender and twelve moneths in the plural number which shall be computed according to 28 dayes for every moneth Vide 31. 13. Co. l. 8 85. b. in Sir Richard Pexhals Case 5 A. deviseth to B. 100 Shéep and ten Bullocks Devise and 10 l. issuing and payable yearely out of his lands here the last and disjoynes the rent from the Shéep and Bullockes It is otherwise if he had devised them thus 100 Shéep ten Bullockes and 10 l. yearely for then the and connexeth them all together and then they are all to be paid yearely out of the lands Co. l. 10. 133. a Osborns Case 6 Words which passe under the name of Latin are of four
before the more remote though great estate in fée c. And with this accords 24. E. 3. 32. in Pierce Grimsteads case Co. l. 11 99 a. 4 in James Baggs case 5 If a Major and Aldermen of a Town corporate Upon a faâ— return the Court caâ—â—â— proceed which have power by Charter or presciption to dis-infranchise do dis-infranchise one of their members and upon motion in the Kings Bench the Iudges there do award a writ unto them to restore him or otherwise to signiffe the cause c. and they certifie sufficient cause to remove him but it is false In this case the Court cannot thereupon award another writ to restore him neither yet can any issue be taken thereupon because the parties are strangers and have no day in Court Howbeit the party grieves may well have an Action upon the special matter against those that made the certificate and aver that it is false And if it be found for him and he obtain judgment against them so that if may appear to the Iustices that the causes of the return are false then shall they award a writ of restitution and not before and this is proved by the reason of the Book in 9. H. 6. fol. 44. where it is holden that upon a Corpus cum causa if the cause returned be sufficient but indéed false the Court ought to remand the prisoner and he is thereby put to no mischief for if they had no authority to imprison him or that the cause certified be false he may have a Writ of false Imprisonment against them c. Vide Fitz. Tit. corpus cum causa p. 2. the case of 9. H. 6. well abridged F. N. B. 19. i. 6 In a Writ of false Judgment upon a Writ of right patent No errour bâ—fore all câ—â—fied c. or a Writ of right close the plaintiffe shall not assign his errors before all the Record be certified viz. not onely the original but likewise all the residue of the Record F. N. B. 20 e. 22 f. 7 In a Writ of Error when the Record is removed When erroâ— are to be â—signed the Plaintiffe shall assign his Errors before he shall have a Scire facias against the Defendant ad audiendum errores c. Howbeit he shall have a Scire facias before the Record shall be entred for it shall not be entred before the parties have day by the Scire facias c. F. N. B. 38. o. 8 Vpon a Quare Impedit if the Sheriff return tardè and the Defendant appears and the Plaintiff is demanded and comes not in Upon a 〈◊〉 return no 〈◊〉 to the Bishâ—p in this case the Defendant shall not have a Writ to the Bishop c. because no Writ was served against him for he ought to have the Writ served against him before he can have that priviledge c. F. N. B. 39. e. 9 When a man sues a Quare Impedit against another A Certificâ— of an accâ— before 〈◊〉 admittaâ— and after they hanging the suit he sues a ne admittas to the Bishop c. and after they accord in the Co. Pl. to present by turn to that advowson in this case a special Writ shall issue out of the Chancery to the Bishop to admit the Clerk of him who ought by that accord and composition to present to the first turne but first the King ought to send a Certiorare to the Iustices of the Com. Pl. to certifie him in his Chancery of the accord there and upon that Certificate the King shall send his Writ to the Bishop as aforesaid c. A Writ de secunda super oâ—eratione 10 In a Writ de admensuratione pasturae F. N. B. 126. 1. all the Commoners shall be admeasured viz. as well those that were not parties to the writ as those that were but yet if any of them which where not parties c. surcharge the Common after admeasurement they shall not forfeit their cattel nor yet the value of them which were in the pasture above the due number because they were not parties to the first writ neither shall the party that complains recover dammages against them in that writ for such surcharge for a writ de secunda super oneratione lieth not save onely against him against whom the first Writ was sued c. 11 In an Assise of Fresh-force in London against Jekef Foxley and Agnes his wife Matter of fact first to be found and then that in Law to be resolved and eleven other whereof ten appeared by Baily Pl. Co. 91. a. 1. in the Case of the Fresh-force in London against Foxley and others and plead No such Agnes the wife of Foxley in rerum natura and demand judgment of the plaint quod inquiratur per Assisam si c. Nul tort nul diss c. and the others plead the same plea by Attorney And the Plaintiffes as to the plea in abatement of the Plaint demur in law and as to the other plea they pray the Assise And whether the writ should abate or not was argued at Guild-hall by the Councel of both parts before the Assise was taken but afterwards the Councel of the Plaintiffs perceiving that the matter was argued before time for the Assise ought first to have inquired all the matter and if they had found the exception and had also found a disseisor and tenant then would it have been time to have disputed what the Law have determined in that case and not before they therefore prayed the Court when the Assise was sworn that they might first inquire of the matter pleaded in abatement of the Plaint which was done accordingly c. for the course formerly run was preposterous and not suitable to such orderly procéeding as the Law requires And so it was found that there was no such Agnes c. and yet the writ did not abate for the rest c. 75 A digniori fieri debet Denominatio Resolutio Quod ei deâ—rceat for teâ—ant in Dowâ—r and by the â—ourtesie 1 It hath been a question in our Books Co. Inst p. 1. 353. a. 4. whether upon a Recovery had by default in an Action of Wast against tenant in dower or by the Courtesie a Quod ei deforceat lyeth by the Statute of West in cap. 4. For some have holden that in an Action of Waste although it be brought against a tenant in Dower or by the Courtesie that have a Frée-hold yet the damages are the principal because they were recoverable against the tenant in Dower and by the Courtesie by the common Law and the Statute of Glocester gave the place wasted but for a penalty so as the nature of the Action say they remaineth still to be personal for that the dammages are the principal c But the best opinion is conceived to be that albeit in that Action the dammages may be the more
Alien that is condemned in an information shall have a writ of Error to relieve himselfe Et sic de similibus â—â—eading 12 If an Alien that is no Alien Enemy Co. ibid. b. 2. in Calv. Case ubi suprà commence a suit the Tenant or Defendant may plead in dis-ability and ought at last to demand Iudgement Si il sera respondue But if an Alien Enemy bring a suit he shall conclude to the Action by saying Judgement si action Co. ib. 156. b. 4 and 129. a. 1. 13 It is a principal Challenge to the Poll Juror that the Iuror is an Alien born and that is propter defectum Patriae or rather ligeanciae as Littleton hath it or Subjectionis as Bracton Co. l. 7. 6. a. 4 in Calvins Case 14 It is to be observed that it is nec Coelum nec Solum Ligeance makes a Subject born neither the Climate nor the Soil but ligeantia obedientia that make a man to be a Subject born for if enemies should come into this Kingdome and possesse a Town or Fort and have issue there that issue is no Subject to the King of England though he be born upon his Soil and under his both Climate and Meridian because he was not born under the ligeance of a Subject nor under the protection of the King Co. ib. 15 If an Alien of a Countrey in league with the King come into this Kingdome and here commit Treason An Alien in league shall be indicted It is otherwise of an alien Enemy who shall be punished by Martial Law c. he shall be indicted for it and procéeded against according to the municipal Law of the land and the indictment shall begin and end as other indictments do viz. the beginning shall be contra Dominum Regem c. and it shall also end thus Contra ligeantiae suae debitum c. Onely in the middle these words shall be omitted naturalem Dominum suum c. as it was resolved in Hill 36. Eliz. in the Case of Stephano Ferrara de Gama and Emanuel Ludovico Tinoco two Portugals born who comming into England under the safe Conduct of Quéen Elizabeth and living here under her protection joyned with Doctor Lopez in treason against her Majesty But if an alien enemy come to invade this Land and be taken in war he cannot be indicted of treason for it because the indictment cannot conclude Contra ligeantiae suae debitum for he never was in the Kings protection nor ever ought any manner of ligeance unto him but malice and enmity and therefore in that Case such an Alien shall be put to death by Martial law And so it was in 15 H. 7. in the Case of Perkin VVarbeck who being an Alien born in Flanders feigned himself one of the sons of E. 4. and invaded this Kingdome with intent to take upon him the Royal Dignity but being taken in war it was resolved by the Iustices that he could not be punished by the Common Law but before the Constable and Marshal according to Martial Law and so he was according to that Law adjudged to be hanged drawn and quartered and was in that manner executed accordingly Co. ibid. 17. a. 16 Every Alien is either a friend that is in league An alien friend and enemy c. or an enemy that is in open war c. Every alien enemy is either so pro tempore a temporary enemy for a time or perpetuus perpetual or specialiter permissus permitted in a special manner An alien friend so long as he so continues to be may acquire by gift or purchase Lands c. but cannot hold them he may also have Leases and Goods for Trade and Commerce sake maintain personal actions c. as is above-said But if such an Alien become an Enemy as all Aliens friends may then is he utterly dis-abled to maintain any action or get any thing within this Realm but a perpetual enemy though there be no Wars by fire and sword between them cannot maintain any Action or get any thing within this Realm such as are all Infidels which are in law estéemed perpetui inimici because the Law presuming that they will not be converted that being remota potentia betwéen them as with Devils whose Subjects they are and the Christian there is perpetual hostility and can be no peace For as the Apostle saith 2 Cor. 6.15 Quae autem concordia Christo cum Beliali aut quae portio fideli cum infideli And the Law saith Judaeo Christianum nullum serviat mancipium Nefas enim est quem Christus redemit Blasphemum Christi in servitutis vinculis detinere Register 282. Infideles sunt Christi Christianorum inimici And herewith agréeth the Book in 12 H. 8. fol. 4. where it is holden that a Pagan cannot have or maintain any action at all And upon this ground there is a diversity betwéen the Conquest of a Kingdome of a Christian King and the Conquest of the Kingdome of an Infidel For if a King come to a Christian Kingdome by Conquest séeing that he hath vitae necis potestatem he may at his pleasure alter and change the Lawes of that Kingdome but untill he doth make an alteration of them the ancient Lawes thereof shall remain Howbeit if a Christian King should conquer a Kingdome of an Infidel and bring them under his subjection there ipso facto the Lawes of the Infidel are abrogated for that they be not onely against Christianity but against the Law of God and Nature contained in the Decalogue And in that Case until certain Lawes be established amongst them the King by himself or such Iudges as he shall appoint shall judge them and their Causes according to natural equity in such sort as Kings in ancient time did within their Kingdomes before any certain municipal Lawes were given But if a King hath a Kingdome by title of Descent there séeing by the Lawes of that Kingdome he doth inherit the Kingdome he cannot change these Lawes himself without consent of Parliament c. As for an Alien Enemy that is inimicus permissus he is an Enemy that comes into the Realme by the Kings Conduct c. Vide 7. 4. The Defendant pleaded an Alien 17 In an Action brought by a Subject against an Alien Co. ibid. 25. a. 4. in Calvins Case the Subject shall plead that the Defendant is an Alien born for the benefit of the King to the end that the King upon Office found may seise that whereof the Alien is seised or possest and also that the tenant may yield the same to the King and not to the Alien because the King hath best right thereunto Flea against an Alien 18 In an Action real against an Alien born Dier 2. 8. 6 H. 8. it is a good plea in dis-ability of the person to say that he is an Alien born otherwise in Actions personal but against an
in an action of debt for otherwise they should be without remedy Vide supra 11. Co. l. 8. 57. b. 2. in Bredimans case 33. Regularly a Precipe lyeth not against a Termor Writ of Dower against Guardian because he cannot tender seisin Howbeit against a Guardian in Chivalry who is upon the matter but a Termor being but possest of a Chattell viz. the Wardship a Writ of Dower lyeth because otherwise the tenant in Dower should be without remedy for in such case no Writ of Dower lyeth against the Heire as it is adjudged in 9 H. 6. 6. Trevils Case Co. l 6. 65. b. 1. in S r Mâ—â—le Finches case 34. Misnosmer If William Abbot of Worcester purchase a Writ by the name of Thomas Abbot of Worcester the Writ shall abate because he may purchase a new one Howbeit if he with the consent of the Covent grant to the Burgesses of Worcester common of pasture out of certaine lands by the name of Thomas Abbot of Worcester when his name is William the grant is good because there is certainty enough to make certain the name of the Grantor viz. Abbot of W. Nihil facit error nominis cum constat de persona And otherwise the Grantees should be without remedy for they cannot have a new Grant Avowry and wast without attornment c. 35. If a man be seised of a Mannor part whereof in Lease for life Co. l. 6 68. a. 1. in Sir Moyle Finches case and part in Lease for yeares and he levies a Fine to A. to the use of B. in taile with divers remainders over In this case B. shall avow for the rent and have an action of Waste without any attornement for when a reversion is setled in any in judgement of Law and he hath not any possible meanes to compell the Tenant to attorne and no Laches or default is in him in such case he shall avow and have an action of Waste without attornement for the Rule is Quod remedio destituitur ipsa re valet si culpa absit So in 20 E. 3. Contra formam Collat. because the founder cannot have the Writ of Contra formam Collationis of an Advowson he shall present without any suit because otherwise he should be without remedy Likewise in 7 E. 3. and 3 H. 7. A man shall be Tenant by the Curtesie of a rent or Advowson albeit the woman dye before the day incurr or the avoydance fall Also the Lord in Mortmain or of a Villaine claimes a reversion by such claime the Law vests the reversion in him and he shall avow and bring an action of Waste without attornement because he hath no meanes to compell the Tenant to attorne There is the same law of Letters Patents and of a demise of a reversion as appeares in 34 H. 6. for in all these cases abest culpa and the party should be otherwise left without remedy Vide supra 6. A Quare Impedâ— shall not abate for the death of the Patron 36. If a Quare impedit be brought against the Patron and Incumbent and the Patron dye hanging the Writ Co. l. 7. 26. b. 2. in the cases of Quare Impedits Vide Co. l. 10. 134. b. 4. in Read and Redmans case the death of the Patron shall not abate the Writ as it is adjudged in 9 H. 6. 31. For here are two mischeifs the one if the Writ shall abate the disturbance shall be left unpunished and albeit the Writ be well commenced yet the Plaintiff shall be without remedy for there will want a disturber and the other mischiefe is if the Writ do not abate but the Piaintiffe proceeds to Iudgement and Execution the true Patron shall be out of possession And therefore in as much as in the one case if the right Patron be put out of possession he hath remedy by a Writ of right to recontinue the Advowson and in the other case if the Writ shall abate the Plaintiff shall be without remedy which of the two is the greater mischiefe for this cause the Writ shall stand and shall not be abated with which accords 7 H. 4. 20 b. 13 H. 8. 13. 9 H. 6. 57. For the same reason it is that a Quare impedit brought by Coparceners or Ioyntenants shall not abate by the death of one of them or brought by Baron and Feme shall not abate by the death of the Feme because otherwise the Plaintiff if the six moneths are past shall be without remedy as the Books are in F. N. B. 35. b. 38 E. 3. 43. 37 H. 6. 11. 7 H. 4. 19. 14 H. 4. 12. 9 H. 6. 30. 57. 1 H. 5. 13. 17 E. 3. 11. 7 E. 3. 304. Co. l. 7. 30. a. 4. in cases of the discontinuance of Processe Discontinuance of suits by demise of the â—ing 37 At the common Law regularly by demise of the King all suits were discontinued for remedy whereof the Statute of 1 E. 6 7. was ordained yet since that Statute if an Originall were not returned before the death of the King it was lost for the words of that Statute are Depending in any Court Howbeit at the Common Law before that Statute in an Appeale of death if the Writ were delivered to the Sheriff within the yeare and before the returne thereof or that the Sheriff doth any thing in it the King dyes and the yeare is expired before the day of the returne In this case the common Law gave remedy to the Plaintiff viz. a Certiorari out of the Chancery returnable in the Kings Bench and thereupon the Plaintiff had re-attachment although it came not in by the returne of the Sheriff but by the Certiorari And the reason is for the necessity of the matter for otherwise the Plaintiff who lawfully purchased his Writ within the yeare without any default in him shall lose his appeale the yeare being past And therefore in as much as by act in Law the Writ is discontinued the Law gives a meane to revive it to the end the party should not be without remedy So if a man purchase a Formedon against the Parnor of the profits within a yeare after the title accrued if before the returne of the Writ c. the King demiseth his Crowne the Writ shall be removed into the Common Bench by Certiorari and thereupon he shall have a Resummons for the mischiefe c. for otherwise he should be left without remedy as is holden in 10 E. 4. 13. b. and 14. a. Co. l. 7. 39. b. 2. in Lillingstons case 38. If a man grant a rent-charge for life out of his land Arreare of rent sued by Executors with Proviso not to charge his person and the rent is arreare and the Grantor infeoff A. and the rent is arreare in his time and after A. enfeoffs B. and the rent is also arreare in his time and after the Grantee dyes his Executors shall have an action
be a default or defect than that the Law should be changed 13 Albeit the King hath a prerogative above others F. N. B. 7. b. Finch 84. that he may sue in what Court he pleaseth as to bring a Quare Impedit or a writ of Escheat of Lands in London retornable in the Kings Bench yet he cannot change the nature of the writ otherwise than the Law gives power to him and others or hath been formerly used Assise of Fresh force in London 14 In an Assise of Fresh force in London before the Maior and Aldermen against Foxley and Agnes his wife and 11 others Pl. Co. 90. b. 4. 10 of them appear by Bailiff and plead No such woman as Agnes the wife of Foxley in rerum natura and demand judgement of the Plaint and that it should be inquired by the Assise c. and the others plead the same plea by Attorney And it was adjudged that the Plaint should not abate but should stand good against all the rest save only Agnes And this resolution was given upon the advice of Iustice Hales to Southcote then Iudge of the Hustings where the sute was brought because as Hales said all the books went that way and not one the other way And therefore he advised Southcote to follow the judgements formerly given Trial of accessory 15 An accessory shall not be arraigned as accessory before all the principals be attainted Pl. Co. 99. b. because it had béen alwaies the usual course in such cases so to procéed and therefore it seemed the best way to the Court to pursue the same order that the Sages had formerly used and the rather for that he may not be accessory to one and yet may be found accessory to another Common Recâ—very 16 In the case of a Common Recovery Co. l. 2. 74. a. 3. in the L. Cromwells case he that enters into the warranty may if he please save his rent issuing out of the land yet if he enter into the warranty generally it may be saved by covenant and agréement in the Indenture made before the recovery as may be agreed betwixt them and this in favour of Common Recoveries which are the Common assurance of land the usual form whereof shall not be altered by any special matter of Entry saving his rent or condition but they ought to be saved by the Indenture dehors For Conveiances which are used for Common assurances of land shall be expounded and construed according to common allowance without prying into them with Eagles eyes And therefore Pasch 35 Eliz. in Dormers case it was adjudged in the Kings bench that a Common Recovery may be had of an advowson So was it also adjudged in the Exchequer in Sir Will. Pelhams case that if a Common Recovery be suffered by tenant for life it is a forfeiture of his estate and the reason of both these Iudgements was because that a Common Recâ—very is by usage a Common conveyance as a fine feoffment c. And it is said in Trevilians case 514. that in Common Recoveries the common usage and the intent of the parties are to be respected for a Common Recovery had against Baron and Feme shall barr the feme of her dower and yet the feme shall not have any recompence in value and therefore in strictness of reason it is strongly to be maintained that Common usage and the intent of the parties make this barr according to these rules Non recedendum est a Communi observantia Minime mutanda sunt quae certam habuerunt interpretâ—â—onem And these Rules hold not only in a Common Recovery but much strongger in a fine which is also a Common assurance of land for in case of a Recovery the Vouchée may enter into the warranty saving his action rent condition c. and yet because Common usage hath allowed it herâ—tofore they may be better saved by covenant and agréement as aforesaid Howbeit in a fine no saving can be contained therein and therefore by necessity and according to common usage alwayes allowed they ought to be saved by the direction and Rule of a precedent covenant and grant Vpon which ground it was adjudged in 6 E. 2 tit Estoppel 2. that if a man and his wife enfeoff two by déed to have and to hold to them and their heirs and after the feoffor and his wife levy a fine sur conusance de droit to them and the heirs of one of them yet this is no conclusion but that both of them may have the fée-simple as they had it before 203 A Communi Observantia non est recedendum Littl §. 371. Co. Inst pars 1. 229 b 4. Vide Max. 203. 1. 1 The making of an Indenture in the third person is the most sure way because it is most commonly used whereby it appeareth Indentures in the third person that the form which is most commonly used in conveyances is the safest Magister Rerum usus It is provided by the Statute of 38 E. 3. 4. that all Penal bonds in the third person be void and holden for none wherein some Books viz. 40 E. 3. 1. 2 H. 4. 10. 8 E. 4. 5. seem to differ but they being rightly understood there is no difference at all for the Statute is to be intended of Bonds taken in other Courts out of the Realm and so it appeareth by the preamble of that Act being indéed principally intended of the Courts at Rome and so it appeareth by Iustice Hankford in 2 H. 4. In which Courts bonds were taken in the third person so as such bonds made out of the Realm are void but other bonds in the third person are resolved to be good as well as Indentures in the third person by the opinion of the whole Court in 8 E. 4. Co. ibid. 303. a. 3. 2 The antient forms of Courts are to be duly observed Pleading as Cum dimisit or Cum dedit and not to say that he was seised and demised c. and yet if he say so it maketh not the Count vitious But in a barr replication or other kind of pleading the party must allege a seisin in the Lessor or Donor and antient forms of pleading are also to be observed Co. l. 1. 24 b. 3. in Porters case 3 The Statute of 23 H. 8. 10. ordains that if any grant of land Charitable uses c. shall be made in trust to the use of any Churches Chapels Church-wardens Guilds Fraternities Commonalties Companies or Brotherhoods c. all such uses shall be void they being no corporations but erected either of devotion or else by common consent of the people yet this Statute doth not make good and charitable uses not savouring of any superstition to be void as to find a Grammar-school to sustain poor people or any other such good use but only superstitious â—ses because that Statute hath been alwayes by the Common opinion so taken to be for almost