261. b. 29 In an action upon the case upon Assumpsit the Plaintiff counts Trial of a fact done in France that the defendant at London did assume that such a Ship should sail from Melcomb Reg. unto Abiville in France safely without violence c. and that the Ship sayling thitherwards was arrested by the King of France upon the River of Somme within the Kingdome of France c. And issue was joyned whither the ship was so arrested or not and before Wray Chief Justice in London it was found for the Plaintiff and in arrest of judgement it was moved that this issue arising méerly from a place which was out of the Realme could not be tried and that if it might be tried in England the trial should be by a Iury taken out of Melcomo because by common intendment they might be best acquainted with the arrest But it was resolved that although it be true that where the contract and the performance thereof are both of them done or to be done beyond sea there will want trial in our Law yet in this case the Assumpsit which is the ground and original cause of the action being made at London the trial thereof must of necessity be there also The like case was adjudged in P. 28. El. betwixt Hugh Gynue Plaintiff and Evangelist Constantine Defenaâ—t Co. 7. 6. a 4. Calvins case 30 It is neither Coelum nor Solum but Ligeantia and Obedientia One may be born in England and yet not within the Kings allegiance that make the subject borne for if enemies should come into the Realm and possesse a town or fort and have issue there that issue is no subject to the King of England although he be born upon his soile and under his meridian because he was not borne under the ligeance of a subject nor under the protection of the King c. And therefore when Stâ—phano Ferrara de Gama and Emanuel Lewes Tinoco two Portugals born comming into England under Qu. El. safe conduct and living here under her protection joyned with Doctor Lopez in treason within this Realme against her Majestie In that case two points were resolved 1 That their indictment ought to begin that they intended treason contra Dominam Reginam c. omitting these words naturalem Dominam suam and ought to conclude contra ligeantiae suae debitum But if an alien enemy come to invade this Realm and be taken in warre he cannot be indicted of treason for the indictment cannot conclude contra ligentiae suae debitum because he never was in the Kings Protection nor never owed any manner of ligeance unto him but malice and enmity And therefore such an alien enemy shall be put to death by Martial Law As it was in the case of Perkin Warbeck Anno 15 H. 7. who by the opinion of the Iudges was to be executed by Martial Law which was done accordingly Co. l. 7. 15. a. 3. Calvins case 31 Albeit since K. James tooke upon him the Crown of England A Postnatus cannot be noble in England without creation a Postnatus in Scotland or any of his posterity be the heir of a Nobleman of Scotland and by his birth is legitimated in England so that he may inherit Lande as well as a natural borne subject yet he is none of the Péers or Nobility of England For his natural ligeance and obedience due by the Law of nature maketh him a subject and no alien within England But that subjection maketh him not noble within England because Nobility had his first original by the Kings Creation and not of nature Co. l. 7. 2. a. 4. Bulwers case 32 Vide 3 E. 3. Tit. Assize 446. In debt if a man count of a lease Lease made of Land in another countrey for years in one County of land in another County he ought to bring his action in the County where the Lease was made and not where the land lies for the contract made by the Lease is the ground and cause of the action The action to be laid where the cause began 33 The Plaintiff counteth Co. ibid. 1. Bulwers case that H. H. recovered against him 20 l. in Banco and died before execution and that the Defendant deceptivè outlawed him after Iudgement in the name of H. H. and thereupon impâ—isoned him in Norfolke laying his action in that County where he was imprisoned whereupon the Defendant making objection that the action ought to have béen layd where the wrong did begin by the purchase of the cap. ad satisfact exigit cap. utlag viz. in London It was resolved that the action was well layd in Norfolke where the Imprisonment the most visible wrong was being indéed the chiefe ground and cause of the action Waste and a writ of right of ward to be brought in where the land lies 34 If a Lease be made in one County Co. ibid. 2. b. Bulwers case 14 E. 3. 3. and the land lies in another the action of wast shall be brought where the land lies and not where the Lease was made although the terme be past for the land and damages or damages onely for the wast which is local shall be recovered and are the ground and cause of the suit So also in all actions real if any issue arise upon the land 29 E 3. 3. 38 H. 6. 14. 22 R. 2. Breve 937. or in any action in which the possession of the land or a thing local or that which ariseth upon the land by reason thereof is to be recovered all these shall be brought in the County where the land lies As in a writ of right of ward of land or a writ of intrusion of ward they shall be brought in the County where the land lieth although the refusal or the Seigniory be in another County Likewise in a writ of right of ward of the body onely that shall be brought in the County where the land lies for it is in the right and sawours of the land 21 E. 3. 42. 30 E. 3. 25. 9 E. 3. 12 13. 10 E. 3. 7. But the writ of Ravishment of ward shall be brought where the Ravishment was and not where the land is or where the bodie is carried for that action is founded upon the Ravishment c. 36 H. 6. 14. 22 R. 2. Bre. 937. 12 Eliz. Dyer 289. Condition of Viciâ—age 35 If the Commons of the Town of A. and of the Town of B. are adjacent Co. l. 7. 5. b. 3. Sir Miles Corbets case and ought to have Common promiscuè the one with the other because of vicinage and within the Town of A. there are fifty arcres of Common and in the Town of B. 100 acres of Common In this case the Inhabitants of the Town of A. cannot put more cattle into their Common of 50 acres than it will well kéep without any respect at all to the Common within the Town of B.
contrà â—e shall be endowâ— 1 If a man be Tenant in fée taile generall Co. Inst pars 1 31. b. 4. F.N.B. 149. f. and makes a Feofment in fée and takes back an estate to him and his heires in fée and then takes wife and hath issue and dies his wife shall not be endowed for that her title of Dower is grounded upon the estate in fée which her Husband had during the coverture Now that Fée-simple vanished by the remitter of the heire in taile and therefore her title of Dower must néeds vanish also For her issue hath not the land by the descent of the Fée-simple but by force of the intaile There is the same law where the Tenant in taile disseiseth the discontinuee c. â—ery voyd 2 When a déed of Feoffment is void in it selfe Co. ibid. 48. b. 1. if livery be made according to the forme and effect of that déed the livery is also voyd As if A. by déed give land to B. to have and to hold after the death of A. to B. and his heirs this is a voyd déed because he cannot reserve to himselfe a particular estate and if livery be made according to that déed the livery is likewise voyd because the livery referreth to a deed that hath no effect in Law and therefore cannot worke Secundam formam effectum of that déed c. 〈◊〉 action of â—st gone 3 Regularly none shall have an action of Wast Co. ibid. 53. b. 3. unlesse he hath the immediate estate of inheritance and therefore if hanging an action of Wast an estate taile determines and the Plaintiff becomes Tenant in taile after possibility c. the action of Wast is gone â—cting of â—ses shall 〈◊〉 now forâ—the the land 4 In ancient time Co. ibid. 92. b. 4. amongst divers wayes that lands might escheat or be forfeited to the Lords of whom they were holden this was one if the Tenants did erect Crosses upon their Houses or Tenements in prejudice of the Lords to the end the Tenants might claim the priviledge of the Hospitalers and so defend themselves against their Lords by such erecting of Crosses they were subject to forfeit their tenancies but now since it hath pleased God by the light of the Gospel to banish out of our Church and Common-wealth all such superstitious reliques the danger of forfeiting Lands that way is also banished â—mage may â—epealed 5 Regularly it is true which Littleton saith Co. ibid. 103. b. 3. Littl. §. 148. that when a Tenant hath once done homage to his Lord he is excused for term of his life to make homage to any other Alienée or heirs of the Lord Howbeit it faileth in this case following A. holdeth of B. as of the Mannor of Dale whereof B. is seised in taile B. discontinueth the estate taile and taketh back an estate in Fée-simple A. doth homage to B. B. dieth seized and the Issue in taile entreth In this case A. shall do homage again to the heire in taile of B. because he is remitted to the estate tail and the estate in fée that his father had in respect whereof the homage was done is vanished and therefore the homage it selfe is also vanished for the heire in taile is in of a new estate in respect whereof A. ought to doe a a new homage So likewise it is when the Tenant hath done homage and the Mannor is afterwards recovered from the Lord in a Praecipe quod reddat c. by a Stranger In this case also the Tenant shall do homage againe to the Stranger because the estate of him that received the first homage is defeated by the recovery c. It is otherwise when the Mannor is aliened to a Stranger or descends to the heire without defeasance as aforesaid of the original estate Co. ibid. 128. b. 3. 6 When the ground or cause of an Action faileth Where tâ—â— ground oâ— action faâ— all is gooâ— there must néeds the Action it selfe also faile as if an out-lawed person brings an Action the ground and cause of which Action is forfeited by the Out-lawry as in an Action of Debt Detinue or the like there the Defendant may plead the Out-lawry it selfe in barre of that Action and shall thereby conclude the Plaintife It is otherwise in real or personal Actions where the damages are uncertaine as in trespasse of Battery of Goods of breaking his Close and the like and are not forfeited by the Out-lawry for there the Out-lawry must be pleaded in disability of the person Co ibid. 138. a. 4. 7 Tenant in Taile of a Mannor whereunto a Villain is regardant No maâ—sion by 〈◊〉 brought 〈◊〉 Lord. enfeoffeth the Villaine of the Mannor and dieth Here the issue after recovery of the Mannor in a Formedon against the Villaine may seise the Villaine and the bringing of that Writ in this case shall worke no manumission because at the time of the Writ brought he was no Villaine and the estate by reason whereof he might claime the priviledge of manumission being defeated the manumission it selfe is also defeated Co. ibid. 147. a. 4. 41 E. 3. 13. per Finchden 8 A man by Déed grants a rent of 40 s. to another out of the Mannor of D. to have and perceive to him and his heires Rent oâ— land erâ—â— and grants over by the same deed or by another that if the rent he behind the Grantée shall distraine in the Mannor of S. Here both the Mannors are charged the one with the rent the other with a distresse the one issuing out of the land the other to be taken upon the land And in this case if the Mannor of D. be evicted by an eigne Title all the rent is extinct and so by consequence both the Mannors discharged but if the Mannor of S. be onely evicted all the rent doth still remain c. Co. ibid. 158. a. 4. 9 If a Pannel upon a Venire facias be returned and also a Tales Challeâ— and the array of the Principal is challenged if the Triors quash the array of the Principal they shall not trie the array of the Tales for now it is as if there had been no apparance at all of the Principal Pannel but if the Triors affirme the array of the Principal then shall they also trie the array of the Tales c. Co. ibid. 223. b. 1. 224. a. 3. 10 If a Feofment be made upon Condition that the Feoffée shall not alien in Mortmaine this is good Good coâ—ons because the Condition is backed by a Statute Law for such Alienations are prohibited by the Statute of Mortmaine And regularly whatsoever is prohibited by Law may be prohibited also by Condition be it malum prohibitum or malum in se In ancient Déeds of Feofment in Fée there was most commonly a clause Quòd licitum sit donatorio rem datam dare vel vendere cui voluerit exceptis
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
forma is material So if a feofment be pleaded by déed and it is traversed absque hoc quod feoffavit modo forma upon this collateral Issue modo forma are so essential that the Iury cannot find a feofment without déed 8 Lord and Tenant by fealty onely and the Lord distraines the Tenant for Rent Litt. §. 484. Modo forma Lord and Tâ—nant the Tenant brings an Action of Trespass against the Lord for his cattle so taken and the Lord pleads that the Tenant holds of him by fealty and certain Rent and for the Rent he distrained c. And the Tenant saith that he holds not of him modo forma as he supposeth and thereupon they are at Issue and it is found by Verdict that he holds of him per fidelitatem tantum In this Case the writ shall abate and yet he held not of the Lord in manner as the Lord had alleadged But the matter of the Issue being found viz that the Tenant holds of him that sufficeth to abate the writ albeit the Lord distraine the Tenant for other services then are due Co. ib. 282. a. 1. 9 If A. be appealed or indicted of Murder Modo forma Murder Manslaughter viz. that he of malice prepensed killed B. A. pleads that he is not guilty modo forma yet the Iury may find the Defendant guilty of man-slaughter without malice prepensed because the killing of B. is the matter and malice prepensed is but a Circumstance Co. ib. a. 2. 10 In Assise of darrien presentment Darrien presentment if the Plaintiffe alleadge the avoydance of the Church by privation and the Iury find the voydance by death the Plaintiffe shall have judgement for the manner of the voydance is not the title of the Plaintiffe but the voydance is the matter c. Co. ibid. a. 3. 11 If a Guardian of an Hospital bring an Assise against the Ordinary he pleadeth Deprivation ab Ordinary as Patron that in his visitation he deprived him as Ordinary whereupon Issue is taken and it is found that he deprived him as Patron yet the Ordinary shall have judgement for the deprivation is the substance of the matter Co. ib. 282. a. 3 12 The Lessée covenants with the Lessor not to cut downe any trées c. And binds himselfe in a bond of 40 pounds for performance of covenants the Lessée cuts downe ten trées Breach of covenant the Lessor bringeth an Action of debt upon the bond and assigneth a breach that the Lessée hath cut downe 20 trées whereupon Issue is joyned and the Iury finds that the Lessée cut down ten yet judgement shall be given for the Plaintiffe For sufficient matter of the Issue is found for the Plaintiffe Litt. §. 485. Co. ibid. 282. a. 4. c. 13 In a writ of Trespass for battery or for goods caried away In actions transitory the place must not be traversed if the Defendant plead not guilty in the manner as the Plaintiffe supposeth and it is found that the Defendant is guilty in another towne or at another day then the Plaintiffe supposeth yet he shall recover For in Actions brought for things transitory the wrong being done in one towne the Plaintiffe may not onely alleadge it in another towne but also in another County and the Iurors upon not guilty pleaded are bound to find for the Plaintiffe Neither can the assault battery taking of goods c. alleadged in another County be traversed without special cause of justification which extendeth to some certain place as if a Constable of a Towne in another County arrest the body of a man that breakeeh the peace there he may traverse the County Howbeit he must not stay there but must say farther and all other places saving in the towne whereof he is Constable So it is also in an Action for taking of goods for in that Case also if the Defendant justifie for damage feasant in another County he may traverse as before But where the cause of the justification is not restrained to a certain place which is so local that it cannot be alleadged in any other towne as in the Cases before alleadged and the like then albeit the Action be brought in a forraigne County yet he must alleadge his justification in the County where the Action is brought As if a man be beaten in the County of Middelsex and he bringeth his Action in the County Buck. the Defendant cannot plead that the Plaintiffe assaulted him in the County of Middelsex c. and traverse the County but he must plead his justification in the County of Buck. for that the cause of his justification is good in any place So it is likewise in Case of Bailement of goods and other Cases for transitory things as for example In an Action upon the Case the Plaintiffe declared for speaking of slanderous words which is transitory and layd the words to be spoken in London the Defendant pleaded a concord for speaking of words in all the Counties of England saving in London and traversed the speaking of the words in London the Plaintiffe in his replication denied the concord whereupon the Defendant demurred and judgement was given for the Plaintiffe for the Court said that if the concord in that Case should not be traversed it would follow that by a new and subtile invention of pleading an ancient principle in Law that for transitory causes of Action the Plaintife might alleadge the same in what place or County he would should be subverted which ought not to be suffered And therefore the Iudges of both Courts allowed a traverse upon a traverse in that Case c. Now the ground that ruleth all these Cases is this because the Law respects more the cause of the Action which is the substance of the suit then the place where the Act was done which is but circumstance c. â—ubstance cerâ—ainely alâ—eadged conâ—yance not 14 That which is alledged by way of conveyance or inducement to the substance of the matter néed not to be so certainely alleadged Co. ib. 303. a. 4. as that which is the substance it selfe And where a matter of Record is the foundation or ground of the suit of the Plaintiffe or of the substance of the plea there it ought to be certainly and truly alleadged otherwise it is where it is but conveyance because that is but circumstance c. â—ea insufficiâ—â— 15 When a Count barre replication Co. l. 8. 133. b. 1. Turners Case c. is defective in respect of omission of some circumstance as time place c. there it may be made good by the plea of the adverse party but if it be insufficient in matter and substance it cannot be salved Co. l. 8. 120. b. D. Bouch. Case â—â—cient pleaâ—â—ngs 16 In the Raignes of E. 2. E. 1. and upwards Co. ib. 303. b. a Co-l 7 25. a in Buts Case Co. ib.
his Office is to determine secundum allegata probata and the duty is to acquaint him with their grievances and with all the Causes of their differences which if they or either of them omit to do the Law presumes it is for their own advantage to conceal them And therefore such Concealment shall not annul the award that is made albeit it be made onely of part Co. l. 8. 120 b. 3. in Doctor Bonhams Case 24 It is presumed that every one will make the best of his own Case And therefore in any suit or action Pleading when the Plaintiff makes Replication Surrender c. whereby it appeares that upon the whole Record the Plaintiff hath no cause of Action he shall never have Iudgment albeit the Barre Rejoynder c. be insufficient in Matter for the Court ought to judge upon the whole Record and will suppose that the Plaintiff hath managed his own Cause as well as he can Co. l. 8 133. a. 4. in Turners Case So in an Action of Debt brought against an Executor he pleads two Recoveries against him in a Court of Record which amount to the whole in his hand but sheweth not that the Corporation had jurisdiction to hold Court either by Prescription or by Patent And it did also appear by the Count in that Court that the Action of Debt was brought for 100 l. without mentioning any Obligation and therefore it was to be intended that there was no Obligation and then the Executor was not chargeable in an action of Debt upon a single Contract And in this Case albeit the Defendant in his Barre acknowledged that the Debt was by Obligation yet that shall not make the Count good which the Law presumes the Plaintiff hath made as full as he could Co. ibid. b. 2. 25 In Debt upon an Obligation with Condition to perform Covenants in an Indenture Pleading the Defendant pleads performance of all the Covenants generally and it appeares to the Court that divers of them are in the Negative or Disjunctive and so the Plea being in the general Affirmative is insufficient yet if the Plaintiff reply and shew a breach of one of the Covenants which by his own shewing is not any breach upon which the Defendant demurres In this Case judgment shall be given against the Plaintiff because upon the whole Record it appeares that the Plaintiff had no Cause of Action and it will be alwayes intended that every one will make the best of his own Cause Co. l. 8. 135. a. in Sir John Nedhams Case 6 In Debt to Administrators upon Administration committed by the Bishop of R. the Defendant pleads Administration committed to himselfe by the Arch-Bishop of Canterbury Administraâ—â—on because the Intestate had bona notabilia the Plaintiff replies that that Administration was repealed In this Case because the Defendant did not shew in his barre that the Intestate had bona notabilia in certaine It shall be intended that he had not bona notabilia in divers Diocesses yet the Administration committed by the B. of C. is not in this case void but onely voidable â—â—ving a 〈◊〉 27 It is not expected that Tenant by Statute or Elegit c. should a déed of the land because they come to the possession thereof by execution of Law and against the will of the terre-tenant Co. lib. â—â—4 b. 4. in Doctor Leyfeilds Case but Tenant by the courtesie ought to shew a release made to his wife for the law presumes he hath both that and her in his power 〈◊〉 Paâ—â—â—â—â— â—â—gestion 28 The suggestion of the party being inserted in Letters Patents raiseth alwayes suspicion Co. l. 10. 110. a. 2. c. in Legats Case because the Law presumes it is inserted to work him some advantage So if the King by his Letters Patents grant White-acre and Black-acre to I. S. with this clause quae quidem praemissa c. à nobis concelata detenta fuerunt c. This in judgement of Law is the suggestion of the Patentée and shall make the grant void So in 19 E. 3. tit Grant 58. the King by his Letters Patents grants licence to appropriate the Advowson of D. to the Prior of C. quae quidem advocatio non tenetur de nobis and in truth the Advowson was held mediately of the King here the licence was held void for the Booke saith the suggestion was falfe vide plus ibid. â—â—son 〈◊〉 Christian 29 If a Parson or Vicar hath a pension out of another Church F. N B. 51. B. and the pension is with-drawne or another parson takes or claimes it in this case the Parson or Vicar that ought to have may sue for it in the Court Christian and he shall not be stopped by a prohibition but shall have consultation Also upon the prescription he may have a writ of Annuity for it at his Election but if he once bring a writ of Annuity for it he shall never after sue for it in the Court Christian 〈◊〉 â—â—change 30 If the Baron exchange land and after die F. N. B. 149. n. if the Feme hath dower of the land taken in exchange she shall not have dower also of the land given in exchange â—â—â—t-charge â—â—â—y 31 Vpon grant of an Annuity out of land for yeares for life F.N.B. 152. a. or in fée which clause of distresse the grantée hath his Election if it be behind whether he will distraine or bring his writ of Annuity for it Howbeit if once he do either he is for ever after concluded for doing the other for the Law supposeth he will make choise of that which tends to his best advantage The time is â—im that 〈◊〉 benefit 32 Where a man is to have benefit upon an act Pl. 16. a. 4. in Fogassaes ca. which is first to be done by himselfe and no time is limited when it shall be done the Law saith that he may do it at his pleasure as if a man make a feofment upon Condition that if he pay the Mortgagée 20 l. that then he shall re-enter here in as much as no day of payment is limited the Mortgager may pay it when he pleaseth for he is to have the benefit viz. the land again So if one grant to another that when he shall take his daughter to wife he will give him 20 l. in this Case because no time is limited for the taking of his daughter to wife he may take her when he will So in Fogassaes Case in the Comentaries in as much as the payment of the subsidie was to be made unto the Collector upon the weying of the woad and a time is limited for the weying the Law referres the time thereof to the will of the Collector â—â—â—antages â—â—lected â—â—â—covin 33 In Wimbish and Tabbois Case in the Comentaries one argument to prove covin in the Feme there was Pl. 55. b. 2. in Vimbish
Villein to the stranger in respect of his confession So likewise in a writ of â—ativo habendo if the Plaintiffe as he ought offereth in his Count to prove the Villeinage by the Cousins and kindred of the Defendant and thereupon produceth the Vncles of the Defendant who upon examination confesses themselves to be Villeins to the Demandant this confession being entred of record doth so bind that albeit they were frée before yet they and the heirs of their bodies are by this confession bound and Villeins for ever c. â—â—â—chisâ—â— 6 If the Lord deliver seisin of Lands to his Villein Litt. §. 206 108. Co. ib. 138. a. 4 b. 3. to hold in fée fée taile for life or for yeares or make him any other certaine Estate or if the Lord sue against his Villein a praecipe quod reddat and recover or be non-suit or sue against his Villein any other personal action as debt account covenants trespass or the like These are maâ—â—missions because in the first Case the Lord may enter into the land of his Villein and in the other may imprison his Villein or take his goods at his pleasure without suit but by such suits the Lord maketh the Villein to be a person able to render the Lord in the first Case the land and in the other damages by course of Law In like manner if before indictmest the Lord bring an appeal of felony against his Villein whereupon the Villein is acquit this is an enfranchisement because upon the aquittal the shall recover damages against the Lord by the Statute of West 2. cap. 12. quia multi per malitiam c. In summe wheresoever the Lord giveth to the Villein a just cause of Action he is enfranchised and therefore if the Lord kill his Villein his son and heire shall have an appeale and thereby the heire shall be enfranchised because the offence of the Lord gave to the heire a just cause of Action against the Lord. 〈◊〉 in 〈◊〉 7 If there be two Coperceners Co. ib. 14â— b. 2 and the one bring a Rationabili paâ—â—e or a Nuper obijt against the other and the defâ—ndant claimes by purchase and disclaimes in the bloud here the Plaintife shall have a Mortdancester against her as a stranger for the whole Co. ib. 170. b. 4 8 When partition is made by the two Barons in the life time of their Femes Coperceners although such partition be unequal Unequal partition Feme covert Infant yet it is not void but voidable For if after the decease of the husband the wife entreth into the unequal part and agreeth thereunto this shall bind her and her heires for ever There is the same Law of an Infant when his part is unequal Co. ib. 171. a. 4 for by his entry at full age the partition is made good for ever Co. ib. 172. b. 3 173 a. 3. Litt. §. 260 261. 9 If a man having Issue two Daughters die seised of Fée-simple lands and also of as much in taile Coperceneâ— of fee-simplâ— and entâ—â—â— Lands and the eldest sister takes the entailed land for her proper part an the youngest sister enters into the Fée-simple lands and having issue aliens them to a stranger and dies In this Case the issue in taile may enter into the intailed lands and occupie them in Copercenery with her Aunt for it was the folly of the eldest sister to take the entailed lands for her part Litt. §. 286. Co. ib. 185. a. 3 10 If there be joint-tenants in fée Joint-tenanâ— Rent-charge Release and the one granteth a Rent charge out of his part and dieth in this Case the survivor shall hold the land discharged of the Rent because he claimeth the land by a title paramont viz. from the first feoffor and not by his companion but here if after the land is charged with the rent the other joint-tenant accept of a release from his ompanion that so charged the land in such case he shall hold the land charged with the rent for now by acceptance of such release he is not in by survivorship but from his companion Co. ib. 202. a. 2 11 The demand of a Rent or other sum to take advantage of a re-entry or condition broken ought by the law to be made where no other place or time is limited for the payment thereof upon the Land at the most notorious place there as at the fore-dore gate Demand of Rent c. upâ—â— a re-entry Condition or the like and at the last part of the day so as the money may be conveniently numbred before Sun set yet if upon the day of payment thereof the lessée or feoffée happen to méet the lessor or feoffor upon any part of the Land although it be not the most notorious place or at any time of the last day although it be not the last part as afore-said in such case if the Lessor or feossor refuse it In Wades Ca. Co. l. 5. 14. b. 2 he shall not take advantage of a re-entry or Condition broken as afore-said for by such refusal being his owne Act he hath barred himselfe of that advantage Co. ib. 202. b. 3 12 A. is bound to B. to pay 10 l. to C. A. tenders to C. Payment 〈◊〉 stranger and he refuseth in this Case the bond is forfeit for it shall be imputed the folly of A. to undertake to pay it to C. of whom he had no power to compel him to receive it Co. Inst p. 1. 209. a. 2 Co. l. 6. 31. a. 2 in Bothies Ca 13 If a man be bound to A. in an obligation with condition to enfeoffe B. who is a méere stranger before a day Obligation with Condition to enseâ— the obligor doth offer to enfeoffe B. and he refuseth the obligation is for the obligor hath taken upon him to enfeoffe him and his refusal cannot satisfie the condition because no feofment is made but if the feofment had béen by the condition to be made to the obligée or to any other for his benefit or behoofe in such Case a tender and refusal shall save the bond because he himselfe upon the matter is the cause wherefore the Condition could not be performed and therefore shall not give himself cause of action so also if A. be bound to B. with Condition that C. shall enfeoffe D. In this Case if C. tender and D. refuse the obligation is saved for the obligor himself undertaketh to do no act but that a stranger shall enfeoffe a stranger and in such case it shall be intended that the feofment should be made for the benefit of the obligée Litt. §. 340 Co. ib. 210. a. 4 14 If A. make feofment or be bound to B with condition to pay 20 l. No place â— payment at such a day no place being limited for the payment thereof here A. is bound to seeke B. if he be in
Church be void when the writ comes to the Bishop the Bishop is bound to admit his Clerk and it séemes also reason if the Patron after the six moneths present to the Bishop the Church being then void that the Bishop ought to present his Clerk in respect of the right that is in the Patron 31 If the King write to the Iustices to prorogue the Assise F.N.B. 153. h. because the defendant is in his service c. yet the Iustices ought to procéed and not to cease for that writ because it is for the advancement of Iustice and to do right â—â—e Judges 〈◊〉 to give â—â—â—eous â—â—ment 32 In Dive and Manninghams Case in the Commentaries Pl. Co. 66. b. 3. Dive and Manninghams Case 84. b. 4 in Partridges Case albeit the Defendant had pleaded Judgment si action whereas he ought to have pleaded non est factum Dive the Sheriffe having taken a bond of a man in execution to secure himselfe which was void by the expresse words of the Statute of 23 H. 6. 10. notwithstanding such default in right pleading the Iudges finding the Sheriffe to have no iust cause of action because that Statute made the bond cléerely void gave judgment against Dive the Plaintiffe So H. 7. E. 4. 31. Fitz. Title judgment 50. where an action of trespass was brought against Tâ—lly and Woddy for five boxes with writings taken c. Tilly pleads not guilty and Woddy makes title to him by a gift and the Plaintiffe traverseth the gift and upon these matters they were at issue and Tilly was found guilty and the issue was found for Woddy and against the Plaintiffe And here albeit the Issue was found against Tilly yet by the cléere opinion of the Court the Plaintiffe shall not have judgment against him for it was found betwixt the Plaintiffe and Woddy that the Plaintiffe had no title and therefore the Iudges ex officio ought to give judgment against him vide plus ibid. â—â—â—ter to 〈◊〉 and 〈◊〉 33 If land be given to Baron and Feme in special taile Co. Inst p. 1. 354. a. 3. and after the husband alien the land in fée and take backe an Estate to him and his wife for their lives in this Case the husband against his owne alienation if he had taken the estate to himselfe alone could not have béen remitted but when the estate is made to the husband and wife albeit they be but one person in law and no moities betwéen them yet for that the wife cannot be remitted in this case unlesse the husband be remitted also and for that remitters are much favoured in law because thereby the more ancient and better rights are restored again therefore in this case in judgment of law both husband and wife are remitted Co. ib. 194. a. 3 34 A release by the disseisée to one of the disseisors shall enable him to hold out his companion because they are in méerely by wrong A release to usurpation howbeit if two men do usurpe by a wrongfull presentation to a Church and their Clerk is admitted instituted and inducted and the rightful Patron release to one of them this shall enure to them both for that the usurpers came not in méerely by wrong but their Clerk is in by admission and institution which are Iudicial Acts and usurpation shall work a Remitter to one that hath a former right Co. ib. 297. a. 2 35 There is a diversity betwixt a bare assent without any right or interest and an assent coupled with a right or interest Attornment Confirmation and therefore an Attornment cannot be made for a time or upon Condition because that is a bare assent but if a Parson make a lease for 100 years the Patron and Ordinary may confirme 50 of those years for they have an interest and may charge in time of vacation so if a disseisor make a lease for 100 yeares the disseisor may confirm parcel of those years but then it must be by apt words for he must not confirme the lease or demise or the Estate of the Lessée because then the addition for parcel of the term would be repugnant when the whole was confirmed before but the confirmation must be of the land for part of the term c. Co. ib. 277. b. 4 36 If A. disseiseth B. to the use of C. and B. releaseth to A. this shall take away the agréement of C. to the disseisin because otherwise it should make him a wrong-doer so if the disseisor be disseised and the disseisée releaseth to the second disseisor this taketh away the right of the first disseisor had against the second for a relation of an Estate gained by wrong shall never defeat an Estate subsequent gained by right against a single opinion in 14 H. 8. 18. never seconded by any other since Hob. 13. Sir Daniel Nortons Case 37 If the Vnder-Sheriffe Covenant with the High Sheriffe Skeriffes that he will not serve executions of above 20 l. without his special warrant this Covenant is void because it is against Law and Iustice 142 That which is not tortious in it selfe cannot be tortious to any Co. lib. 11. 98. b. 1. in Edw. Seymers Case 1 If there be Tenant in taile Remainder in taile Remainder not devested the Reversion in in Fée to the Tenant in taile the Tenant in taile bargaines and sels the land and levies a Fine to the bargainée who enfeoffes I. S. in this Case by the feofment of the bargainée to I. S. the Remainder in tail is not displaced or put to a right for the bargainée had an Estate in Fée-simple determinable upon the death of the Tenant in taile without issue and when he made the feofment his determinable Fée-simple in possession and his absolute Fée-simple expectant upon the Estate taile in remainder did pass and did not devest the remainder for the feofment which is not tortious in it selfe cannot be tortious to another 143. Interest Reipublicae ne Curia Domini Regis deficeret in Justicia exhibenda A Letter of Attorney a Pâ—nnell 1. If a man make a Letter of Attorney to two to do any act Co. Inst pars 1. 181. b. 3. if one of them dye the survivor shall not do it but if a Venire facias be awarded to four Coroners to impannel and return a Iury and one of them dye yet the other shall execute and returne the same because this last is for the execution of justice Tenants is common shall joyne in Assize 2. If there be two Tenants in Common of 20 s. Rent Co. ibid. 197. a. b. a pound of Pepper or such like thing as will admit severance if they be arreare they shall bring several Assises for them because of their severall titles but if the Rent be an intire thing which cannot be severed or divided as an Hawke Horse or the like in such case they shall joyne in the
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
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
Norfolke and counts that to out-law him Maliciosè de captivè machinatus est And the doubt in this Case was whether or no the Action of the Case were rightly laid in Norfolke or should have rather béen laid in London where the Out-lawry was had which caused the imprisonment and a forfeiture of all the Goods of B. But it was resolved that it was well laid in Norfolke because the first Action was brought there and there also was the visible tort viz. the Imprisonment For it is a Maxime in Law Quod ibi semper debet fieri triatrem ubi Juratores meliorem possunt habere facti notitiam When matter in one County dependeth upon matter in another County the Plaintiff hath Election to bring his Action in which of the two he pleaseth except the Plaintiff upon the general issue pleaded may be prejudiced in his trial as if two conspire in one County to indict another in another County and do it an Action may be brought in either Howbeit if any other but the Conspirators indict him it shall be brought where the Conspiracy was If Manasse be mad in Essex whereby my Tenants recide in London I shall have my Action in Essex and not in London for I have nothing in London If an action be founded upon two things material and traversable in two several Counties an Action may be brought in either of them An Annuity granted in one County to be paid in another the action shall be brought where the Grant was He that is robbed may have an Appeal of Felony for it in every County where the Goods but an Appeal of Robbery will lye onely where the fact was done a Lease for yeares made in one County of Land in another Debt shall be brought where the Lease was made and waste also where the Land lyeth Every Action which concerns the life of a man shall be brought where the offence was committed Every issue which ariseth upon an action in which Land shall be recovered shall be brought where the Land lyeth as in right of Ward of Land or Body intrusion of Ward forfeiture of Marriage valore maritagii and Quare Impedit But Ravishment of Ward where the Ravishment was and a Quare non admisit where the refusal was Before the Statute of 7 R. 2. cap. 10. An Action for Land in divers Counties or for Common in one County appendant to Land in another was brought by several Writs n both Counties but since that Statute by on Writ in Confinio Comitatum A per que servitia shall be brought where the note of the fine was levied Dier 46. 8. 31 H. 8. 11 At the Common Law if a man had been wounded in one County and had died in another The Venire where the Venire to try the Issue should have been out of both Counties except in London and Middlesex because such a Iury there could not joyne and in such case the Issue was onely tryable in the K. B. but this Law is altered by 2 3 E. 6. 24. Dyer 38 50. 29 H. 8. 12 An appeal was brought against two accessaries for abetting in London to a Robbery committed in the County of Wilts Appeal wheâ— brought and the appeal was brought in the County of Wilts but by the better opinion it séemes it ought to have béen brought in London where the Abetment was because the Iury there might have best notice thereof but this is now also setled by 2 3 E. 6. 24. Dyer 51. b. 18. 33 H. 8. 13 If a man maks a Lease for yeares rendring rent Demand of rent and if the rent be behind by the space of a Moneth after the day of payment that then the term shall cease In this case if the rent is reserved to be paid at some place out of the Land upon failer of payment or due tender of the rent at that place the Lessor may enter without making any Demand upon the Land but if the rent were payable upon the Land or no place named where it should be paid upon such failer the Lessor cannot enter without demanding the rent upon the Land because the rent is payable there of right Co. l. 5. 83. b. in the Case of Market overt 14 If Plate be stolne and sold openly in a Scriveners Shop upon the Market day for every day in London is Market day Market overâ— except Sunday such Sale shall not alter the property but the party shall have restitution for a Scriveners Shop is not a Market overt for Plate because none will look there for any such thing Et sic de similibus c. but if the Sale had béen openly in a Goldsmiths Shop in London so as every one that should stand or passe by the Shop might have séen it such sale shall alter the property Howbeit if such Sale be in a Goldsmiths Shop behind a curtain hanging cubbord in a Ware-house or some other part of the House So as passengers cannot observe it such Sale shall not alter the property for such places are no Market overt And observe that the reason of this case extends to all the Markets overts in England Vide Max. 186 32. 191 3. Dyer 270. 25. 10 Eliz. 15 In Debt upon an Obligation to perform Covenants brought in London the Issue was Place of triaâ— whether or no the Defendant was verus possessor of certaine Lands in the County of Bedford at the time of the Indenture and it was the opinion of the Court that the most apt place for that trial was in Com. Bedford and not in London Vide Dyer 305 58. Trial in Ireâ—â—nd 16 If a Peer of Ireland commit Treason in Ireland Dyer 360. b. 20 Eliz. he cannot be tried in England by the Statutes of 26 H. 8. 13. 35 H. 8. 2. 5 6 E. 6. 11. for he is not a Subject of England but of Ireland and the trial in Ireland is by Parliament and not per Pares â—ender of â—ent 17 If a Rent be reserved upon a Lease Hob. 8. Bakers Case and the Lessee bound by Obligation to pay it In this Case the Lessée is bound to pay it without demand Howbeit he is not bound to seek the Lessor but to tender it onely upon the Land for he hath bound himself to pay it but still as a Rent and at the place which the Law assignes â—â—bt for Arâ—arages 18 In Debt brought by an Executor for Arrearages of a Rent-charge due in the life of the Testator Hob. 37. Pines Case the action ought to be brought in the County where the Land lyeth out of which it issueth 19 Vide Hob. 78. Don Diego c. concerning Causes triable in the Admiralty c. 79. Palmer against Pope Maximes of Reason taken out of Morality 135 The Law favoureth Charity â—â—nder by any 〈◊〉 an Ideot 1 Vpon a Mortgage if the Mortgageor die Co. Inst p. 1. 206.
is deprived and that thereupon it belongs to the Patron to present for Notitia dicitur a noscendo and Ex vi termin it ought to be speciall and certaine for Notitia non debet claudicare Co. l. 35. b. 1. The Bishop of Bathes case 51. If one let the Mannor of D. to I. S. for so many yeares An uncertain Lease as I. N. hath in the Mannor of S. and he hath ten years in it such Term shall I. S have in the Mannor of D. so if a Lease be made to another during the minority of I. S. and he is of the age of ten yeares this is a good Lease for 11 years if I.S. so long live because such Leases have a certaine commencement and a certaine end but if the wife of I.S. be great with childe and a Lease be made untill the issue in ventre sa mere shall come to full age this is no good Lease for the uncertainty for at the time when the Lease is to take effect it is uncertain when the child will be borne and by consequent the commencement continuance and end of that Lease is uncertaine and therefore void So if a man let Land of the value of 20 s. per annum untill 21 l. be levied of the Issues and profits without Livery this is but a Lease at Will for the uncertainty for it is not certain that the Land will hold to be every yeare of one and the same yearely value vid. plus ibidem 52. Vide Max. 36. 1. Co. l. 6. 60. a. 3. Gatewards case 53. Common by reason of Commonancy is against reason Common for commonancy for such a Common is transitory and utterly uncertaine because it followes the person and that for no certain time or estate but only during his inhabitancy which kind of Interest the law will not suffer for custom ought to extend to that which hath certainty and continuance Co. l. 8. 68. b. Trolops case 54. A Bishop certifies in generall that I.S. is excommunicate Excommunication this is not good for the uncertainty for he ought to certifie the particular cause in certaine wherefore he was excommunicate Co. l. 8. 91. a. 4. Frances case 55. If Land be devised to I.S. upon condition that he suffers his Executors to carry away his goods Devise disturbance by Parol is no breach of the Condition but the heir that claimes interest must alledge some speciall disturbance in certaine by some act done as by shutting the doors upon them laying hands upon them or the like whereunto the other party may make a certaine answer and whereupon a certain issue may be taken whereof the Iury may enquire and the Court may judge whether it be a sufficient breach of the Proviso or no. Co. l. 8. 121. a. 1. in Doctor Benhams case 56. Regularly Uncertain plea. those that have power to impose Fine and Imprisonment except a Court of Iudicature shall plead the particular cause in certain wherefore the party was so fined or imprisoned and not in a generall or uncertaine manner because in such Cases upon an Action brought by the party fined or imprisoned the cause is traversable as the Fine and Imprisonment in Doctor Bonhams case and the Acts and Orders of Commissioners of Banckrupts for they are traversable and therefore ought not to be uncertainly pleaded Co. l. 8. 135. a. 4. in John Nedhams case 57. An Administrator cannot plead uncertainly and in generall The like that the Intestate had Bona notabilia but he ought to plead them in certain for otherwise it will be intended that the Intestate had not Bona notabilia in severall Diocesses Co. l. 8. 155. a. 3. in Edw. Althams case 58. If a man by Deed gives goods to one of the sons of I. S who hath divers Sons here he shall not take averment which son he meant for by judgement of Law upon this Deed this gift is void for the uncertainty which cannot be supplyed by averment Vide 11 E. 4. 2. Co. l. 9 18. a. 2. Ann Bedingfeilds case 59. In Dower upon plea of detainer of Charters in bar thereof Detainer of Charters the heir must shew the certainty of the Charters or that they are in a chest or box locked or sealed to the end that a certaine Issue may be joyned thereupon and it is not enough to plead detainer of Charters in generall for that is an insufficient plea for the uncertainty See also Co. l. 9. 110. a. 2. Co. l. 9. 25. a. 2. in the case of Strata Mercella 60. In the case of the Abbot De Strata Mercella Uncertain plea. the Defendant pleaded Quod pred Abbas licite habuit bona felonum c. And yet shewed not his case in so certain and speciall manner that the Court might adjudge whether the Abbot by the Law had Felons goods or no And thereupon his plea was adjudged insufficient for the Vncertainty So also it is agreed in 22 E. 4. 40. The Lord Lisles case where one was bound in an Obligation upon Condition that he should come to B. such a day and shew the Obligee or his Councill a sufficient discharge of an Annuity of 40 s. which he claimed out of two houses c. And in Debt upon this Obligation the Defendant pleaded that he came to B. at the day aforesaid and there offered to shew to the Plaintiff and his Councill a sufficient discharge and that they refused to see it upon which the Plaintiff demurred in Law And it was adjudged that the plea was insufficient for the plea ought to have alledged what manner of discharge in certain he offered to shew viz. a Release unity of possession or other matter of discharge whereupon the Court might have adjudged whether it had been sufficient or no. Ravishment of Gard an uncertain verâ—â—ct 61. In Ravishment de Gard Co. 9. 74. a. 3. in Doctor Huâ—sers case according to the Statute of Westm 2. 35. The Iurors found generally that the Ward was married and that at the time of his marriage he was eighteen years old and upwards c. and this was adjudged an insufficient Verdict because it is not only thereby left uncertain who procured him to be married viz. Whether the Ravishor a stranger or the Plaintiff himselfe or that the Ward of his own accord married himselfe but also it is uncertaine in the time when he was married whether before or after the Ravishment And therefore it is well sayd in 30 E. 3. 23. That the Verdict ought to be such that the Iudges may cleerly proceed to Iudgement and by consequent ambiguous and uncertaine Verdicts are insufficient and void as in 40 E. 3. 15. in Debt against Executors they plead fully administred c. the Iurors finde that they have goods in their hands but do not say to what value and for this uncertainty their Verdict was held insufficient and void See more authorities
action upon his case as well as the Lord and so there might be infinite actions for one default neither yet are they in such case without remedy for they may and ought to sue in the Court Christian and there shall have it redressed Co. l. 5. 104. b. in Boulstones case 6 A man cannot have an action upon the case for damage by the Pigeons of a Dove-house Dove-house because then every man might have the like And therefore it hath béen held that if any man except the Lord of a Manor erect a Dove-house Prat and Sternes case it is presentable in the Leet Sed quaere de hac for it hath been since otherwise adjudged See the E. of Northumberlands case Poph. Rep. 141. Trin. 16. Jac. Co. l. 6. 8. b. 4. in Ferrers case 7 If the plaintif be barred by judgement upon demurrer Vexatious sutes confession or verdict in personal actions he is barred for ever and in real actions he must have recourse to his action of an higher nature and at last shall be finally barred in his writ of right if the Grand Assise find against him So likewise before the Statute of Marlbridge when the degrees were past and before the Statute of Westm 2. upon loss by default there was no remedy but by writ of right And the reason of the Common Law in these and the like cases was to avoid Multiplicity and Infiniteness of sutes trials recoveries and judgements in one and the same case And therefore in the judgement of the Law it was thought more profitable for the Commonwealth and more for the honour of the Law in some cases rather to leave some without remedy and to put others to their writ of right without any respect of Coverture Infancy or the like than that there should not be a convenient time for the ending of actions and sutes See the judgement in redisseisin and post diss F. N. B. 188 190. and the punishment inflicted by the Law in such case See also the Register 206. 208. And indeed without such a strict course there may be much oppression committed under colour and pretence of Law for so a rich and malitious man may by actions and sutes infinitely vex him that hath right and in the end for the avoiding of charge and vexation Compell him to forsake his right all which was remedied by the Rule and Reason of the antient Common Law the neglect whereof by introducing trials of rights and titles of Inheritance and franktenement in personal actions in which there is no end or limit of sutes hath brought with it four main Inconveniences 1. Infiniteness of verdicts recoveries and judgements in one and the same cause 2. Sometimes contrarieties of verdicts and judgements one against another 3. Continuance of sutes by 20 30 and 40 years to the utter impoverishing of the parties 4. All this tends to the dishonor of the Common Law which utterly abhorrs Infiniteness and protraction of sutes And herein the excellency of the Common Law is to observed viz. That the receding from the true institution thereof introduceth many Inconveniences and the observation of it is alwayes accompanied with peace and quiet the end and center of all human laws See the Epistle to the 4. Report fol. 1. b. 8 Vide Max. 180. ca. 3. 186 25. 183 The Law construeth things with Equity and Moderation Convenient time 1 In 18 E. 4. 22. Co. l. 3. 27. a 1. A man is bound to make an obligation immediately yet he shall have convenient time to do it In Butler and Bakers case Escape 2 For as much as Escapes are very penal to Sherifs Co. l. 3. 44. a. 4. in Baytons case Bailifs of Liberties and Keepers of Prisons the Iudges have alwayes made such favourable construction as the Law will permit in favour of them being Officers and Ministers of Iustice and will never adjudge one to make an escape upon any strict construction for albeit the Sherif or other officer that keeps prisoners ought not to suffer one in execution to goe at large by Bail or Baston but ought to keep them in salva arcta custodia and according to the Statute of Westm 2. cap. 11. which ordains quod carceri mancipentur in ferris to the end they may the sooner pay their Creditors yet if one be arrested upon a Capias ad satisfac and the Bailifs upon a habeas Corpus bring him to Westm and at his request carry him to Lambeth in Surrey and at the day of return deliver him to the Kings Bench This shall be adjudged no escape neither shall the prisoner thereupon have an Audita querela against the Creditors So it is likewise if the prisoner had of his own accord gone to Lambeth so as he had returned in time to be delivered into Court at the return of the writ as it was adjudged in Charnicks case Sheriff of the County of Bed in 31 Eliz. So if one be Sherif of two Counties hath several prisoners in execution in each County upon two habeas Corpora against two of them he may bring the one prisoner out of the one County into the other and then carry both the prisoners up according to the several writs to him directed and this shall not be adjudged any escape in the Sherif Also If a prisoner in execution escape and flie into another County and the Gaoler make fresh sute after him and taking him puts him into the Gaol again this shall be adjudged no escape for that upon fresh sute the Gaoler took him again and put him in prison before any action brought against him And in the cases above produced upon habeas Corpus the Sherif is not strictly bound to keep the direct way to West in recta linea so as he have him at the return of the writ and then deliver him into Court for if the effect of the writ be pursued it sufficeth Copihold Fines 3 Where fines in a Copyhold Manor are uncertain Co. l. 4. 27. b. 3. in Hubbert Hamonds case the Lord ought not to demand or exact excessive or unreasonable fines and if he do the Copyholder may deny to pay it without danger of forfeiture and it shall be determined by the opinion of the Iustices before whom the matter depends upon a demurrer or at the trial whether the fine demanded were reasonable or no for if Lords might assess fines excessively at their pleasure all the estates of Copiholders which are a great part of the Realm and have continued time out of mind would be at the will of the Lords to defeat and destroy which would be inconvenient And thus it was adjudged in the Common place in Hoddesdons case Sewers 4 Notwithstanding that the words of the Commission of Sewers give authority to the Commissioners to do according to their discretions Co. l. 5. 100. a. 3. in Rooks case yet their proccedings ought to be limited
therefore it is not reason that one particular person should bring the action for by the same reason that one person may have an action for it by the like reason every one may likewise have an action for it and so by that means the party may be punished 100. times for one and the same cause which were both unjust and unreasonable Co. l. 8. 61. a. 4 in Beecheâ—s case 7 In all causes real or personal Amerciaâ—ent when there is but one demandant or plaintif and divers tenants or defendants the demandant or plaintif may be divers times amerced but where there is but one tenant or defendant he shall not be twice amerced Co. l. 11. 43. b. 4. in Râ— Godfreyes case 8 If a man be convicted in the County Court before the Sherif in a Writ of Recaption he shall be only amerced Amerciament because it is not a Court of Record but if he be convicted in a Writ of Recaption before the Iustices viz. in a Court of Record he shall be fined and imprisoned but then he shall not be amerced for that were to punish him twice for one and the same offence Co. l. 11. 51. b. 1. in Lifords case 9 If my disseisor be disseised and after I re-enter Disseisin I cannot have an action of trespass against the second disseisor because then he would be doubly charged for one and the same offence viz. by me and the first disseisor And therefore by a fiction in Law I shall recover all the mesne profits against the first disseisor his servants and others who have committed trespasse by his Command and in his right F. N. B. 39. d. 10 If a man hath a Quare Impedit against one Damages and the defendant hath also an Assise of Darrein presentment against the plaintif and recovers in the Darrein presentment and the plaintif is non-sute in the Quare Impedit In this case the defendant shall have two judgements against the plaintif viz. to have a writ to the Bishop in both Actions and two writs shall be awarded to enquire of damages Howbeit he shall not pay damages twice for one and the same disturbance F.N.B. 43. g. 11 Where one is sued in the Common Bench and in the Court Christian for the same thing a prohibition lyeth Prohibition 12 Vide Hob. 2. Incerti temporis nominis Debt A debt shall not be twice satisfied Hob. 128. Pa Coke 13 Two Informations exhibited the same day against the same man for the same offence shall be both quashed Information 186 It flyeth and preventeth all occasions of Evill Co. Inst pars 1. 88. b. 1. Littl. §. 123. 1 The heir of lands in Soccage under the age of 14. shall not be committed to the custody of any person Heir in soccage unto whom the Inheritance by any possibility may or can descend lest by undirect practice he may gain the Inheritance to himself And therefore if a man hath issue two sons by several venters and having lands holden in soccage of the nature of Borough English dyeth the younger brother within the age of 14 years the elder brother of the half bloud shall not have the custody of the land because by possibility the elder brother may inherit the land for if the youngest die without issue and the land descâ—nd to the uncle the elder brother of the half bloud may be heir unto him And therefore the Rule in Lib. Rubr. cap. 70. is Nullus haeredipetae suo propinquo vel extraneo periculosa sarè custodia committatur And herewith also agrée our antient Authors as Bracton l. 2. fol. 87. Brit. fol. 163. Fleta l. 1. cap. 10. Fortesc cap. 40. Howbeit it is otherwise in the Civil Law Vide Fort. ibidem Co. ibid. 100. a. 3. 2 To prevent sutes and troubles Writs of Prevention there are six writs in Law that may â—e maintained Quia timet before any molestation distress or impleading As 1. A writ of Mesne before he be distrained 2. A Warrantia cartae before he be impleaded 3. A Monstraverunt before any distress or vexation 4. An Audita querela before any execution sued 5. A Curia Claudenda before any default of inclosure 6. A Ne injuste vexes before any distress or molestation And these are called brevia anticipantia writs of Prevention To prevent false verdicts 3 To prevent false verdicts Co. ibid. 228 a. 1. if the Iury after their evidence given unto them at Barr do at their own charges eat or drink either before or after they be agréed on their verdict it is finable but it shall not avoid the verdict Howbeit if before they be agréed on their verdict they eat or drink at the charge of the plaintif if the verdict be given for him it shall avoid the verdict but if it be given for the defendant it shall not avoid it Et sic e converso Howbeit if after they are agréed on the verdict they eat and drink at the charge of him for whom they do pass it shall not avoid the verdict The like 4 If the plaintif after evidence given Co. ibid. a. 2 and the Iury departed from the barr or any for him do deliver any letter from the plaintif to any of the Iury concerning the matter in issue or any evidence or any escrowl touching the matter in issue which was not given in evidence it shall avoid the verdict if it be found for the plaintif but not if it be found for the defendant sic e converso But if the Iury carry away any writing unsealed which was given in evidence in open Court this shall not avoid the verdict albeit they should not have carried it with them The like 5 By the Law of England a Iury after their evidence given upon the issue ought to be kept together in some convenient place Co. ibid. without meat or drink fire or candle which some Books call an Imprisonment and without Spéech with any unless it be the Bailiff and with him only if they be agréed After they be agréed they may in causes betwéen party and party give a verdict and if the Court be risen give a privy verdict before any of the Iudges of the Court and then they may eat and drink and the next morning in open Court they may either affirm or alter their privy verdict and that which is given in Court shall stand But in criminal causes of life and member the Iury can give no privy verdict but they must give it openly in Court Law-wager 6 In no case where a contempt trespass Co. ibid. 295. a. 2. deceit or injury is supposed in the defendant he shall wage his Law because the Law will not trust him with an Oath to discharge himself in those cases Only in some other cases as debt detinue and accompt the defendant is allowed by Law to wage his
so penned Vide 7 H. 7. 14. 39 E. 3. 12. yet if they be entred in the Parliament Roll and alwayes allowed for Acts of Parliament it shall be intended that they were by authority of Parliament although no mention be therein made of Lords or Commons Writs not to be changed 7 Writs formed and of course viz. Originals Co. l. 8 48. a. 4. in Iehu Webos case were at first authorised by Parliament and without Parliament they cannot be altered or changed but shall still remain the same albeit they may in some cases seem incongruous as the original writ De Assisa ultimae praesentationis was formed in these words Quis Advocatus tempore pacis praesentavit ultimam personam quae mortua est This form shall hold and cannot be changed albeit the Incumbent resigned as appears in 18 E. 2. Tit. Ass de dar pres 20. F. N. B. 31. h. So likewise the writ of Warrantia Cartae is formed thus Quod juste c. warrantizet B. unum Messuagium in D. c. unde cartam habet c. And yet if he be held to warranty by force of an exchange or by Homage ancestrel the form of the writ shall not be altered Vide 9 E. 4. 49. 21 H. 6 â— F. N. B. 134. and many other cases may be put upon this ground Arbitrement 8 A. being bound to stand to the award of B. countermands the authority of the arbitrator In this case the bond is forfeit Co. l. 8. 82. b. 4. in Vinyors case because the Condition is that A. the obligor should stand to and abide c. the rule order c. which form was invented by prudent antiquity to the end he should not revoke the submission And it is good alwayes to pursue in such cases the antient forms and presidents which are full of knowledge and wisdom Co. l. 9. 11. b. 3. in Dowmans case 9 The defendant in an Assise makes title by a recovery suffered by A. to certain uses the plaintif confesseth the recovery Declaration subsequent but withall saith it was to the use of A. and his heirs in fée and traverseth that it was to the uses mentioned by the defendant The Iury find that the recovery was suffered as the defendant had alleged and that by Indenture subsequent the intent of the parties to the recovery was declared to be as the defendant had alleged In this case such subsequent declaration was adjudged good for that no mischief or inconvenience could ensue upon that construction and if it should be otherwise construed great inconvenience might follow thereupon because the inheritances of many Subjects in England depend upon such declarations subsequent or at least upon Indentures which in truth were delivered after the recoveries suffered or the Fines levied and this resolution concurrs with the common opinion of men learned in the Law and Common experience and alterations of such opinions as concern assurances of inheritances would prove dangerous and be of ill consequence in the Commonwealth Co. l. 10. 40. a. 3. in Mary P rtingtons case 10 At this day to question the validity of a Common recovery to barr an estate tail albeit the land recovered in value be not had Common Recovery or the tenant in tail after judgement and before execution die is as great an absurdity as to deny Common and known Principles and if any should be so impudent as to dispute against that or any other of the legal Pillars of the Common assurances of the lands and inheritances of the Subjects he ought not to be heard And therefore in a cause depending before the Lords at a Parliament in Qu. Eliz. time One Hoord an Vtter-barrister of Councel with one Vernon who was barred by a Common Recovery rashly and with great malevolence inveighing against Common Recoveries not knowing the reason and foundation of them was with great gravity and some acrimony reproved by Sir James Dyer then Chief Iustice of the Common pleas who said that he was not worthy to be of the profession of the Law that durst speak against Common Recoveries which were the very sinews of the assurances of Inheritances and founded upon great reason and authority Semper in fictione Iuris subsistit aequitas Et contra principia negantem non est disputandum Co. l. 11. 35 a. 3. Alexander Powlters case 11 In Alexander Powlters case in the 11 Rep. it being doubted upon the penning of the several Statutes of 23 H. 8. 1. 25 H. 8. 3. 1 E. 6. 12. 5 6 E. 6. 10. 4 5. P. M. 4. whether or no one guilty of House-burning should be allowed his Clergy House-burning The Iudges had conference with divers Clerks of Assise and other antient Clerks to the end they might be satisfied of the usual course therein And for that upon view of many Records it appeared that the Principals and Accessories before had béen alwayes outed of their Clergy in case of House-burning except one in Essex before Sir John Puckering and his Companion Iustices there the said Powlter had judgement to be hanged for setting an house in Newmarket on fire whereby most of the Town was burnt and therefore was ordered to be hanged in Chains c. Co. l. 11. 83. a. 2. Lâ—wâ—s Bowles case 12 B. covenants to stand seised of the Manor of D. to the use of himself and his wife for life without impeachment of waste Waste the remainder to his 1. 2. and 3. sons successively in tail the remainder to the heirs of the bodies of B. and his wife with other remainders over they have issue a son then B. dies the wife enters the son dies a péece of a Barn parcel of the premisses is blown down by wind the wife causeth 30 loads of timber blown down to be carried from off the Manor for which he in the remainder brings an action of Trover and Conversion And upon the argument of this cause two questions were moved 1. Whether or no the wife shall be tenant in tail after possibility or that she shall have the privilege of tenant in tail after possibility viz. to make waste 2 Admitting she shall not have the privilege c. whether the clause without impeachment of waste gives to her propeâ—â—y in the timber so thrown down by the wind whereupon it was resolved that she had a property in the timber and might convert it to her own use for that as was said it was the continual and constant opinion of former times that these words without impeachment of waste do give power to the lessée to make waste to his own use and it would be dangerous now to recede therefrom And as it was said by the Iudges in 38 E. 3. 1. So the present Iudges did say in this case We will not change the Law which hath alwayes been used Also it is well said in 2 H. 4. 10. It is better that there should
homage Ancestrell again so it is if a Copihold escheat and the Lord maketh a feoffment in fée upon Condition and entreth for the condition broken it shall never be Copihold again because in both these cases the custome or prescription which supported and was the cause of the tenure is interrupted and that being once broken is become remedilesse The land evicted the Annuity is gone The mariage failing the land revests 17 If a man grant an annuitty ppruna acra terrae Co. ibid. 204. a. 2. if the acre of land be evicted by an elder title the annuity shall cease so if it be pro decimis and the grantee be disturbed or pro consilio or quòd praestaret consilium and the grantee refuse to give counsel the annuity shall in these cases cease likewise if a woman give lands to a man and his heires causa matrimonii praelocuti in this case if the man refuse to marry her she shall have the land againe to her and her heires but it is otherwise in case of a man Co. ibid. 238. a. 4. 18 If a disseisor make a gift in taile A dying seised and yet no descent to take c. and the Donee discontinueth the fée and after disseise the discontinuee and dieth seised this discent shall not take away the entry of the diseissée For the discent of the Fée simple is vanished and gone by the Remitter And albeit the issue be in by force of the estate taile yet the Donée died not seised of that estate and of necessity there must be a dying seised Co. ibid. 239. a. 2. 19 When the degrées are past so as a writ of Entry in the Post doth lye yet by event it may be brought within the degrées again A writ out of the degrees may be reduced as if the disseisor enfeoffe A. who enfeoffes B. who enfeoffes C. or if the disseisor die seised and the land descends to A. and from him to B. and from him to C. Now are the degrées past and yet if C. enfeoffe A. or B. now is it brought within the degrées again Co. ibid. 242. b. 1. 20 If the eldest sonne hath issue and dieth A descent when privity of bloud faileth and after his decease the younger sonne or his heire entreth and many descents cast in his line yet may the heires of the eldest sonne enter in respect of the privity of bloud and of the same claime by one title But if the younger sonne make a feoffment in fée and the feoffée dies seised that discent shall take away the entry of the eldest in respect that the privity of bloud faileth Co. ibid. 285. a. 4. 21 If an action of wast be brought by Baron and feme in remainder in special taile Death voidâ— the action and hanging the writ the wife dieth without issue the writ shall abate because every kind of action of wast must be ad exhaeredationem Co. ibid. 291. a. 4. Execut. 7. 22 If the bodie of a man be taken in execution upon a Ca. sa and the Plaintiffe releaseth all actions Release of debt excuseth execution yet shall he still remaine in execution but if he release all debts duties or judgements he is to be discharged of the execution because the debt or the dutie or the judgement which is the cause of the execution is discharged Co. ibid 312 a. 1. 23 The Reason that Littleton giveth of the difference betwéen a rent-service and a rent-charge is Avowry for a rent service upon the person for that in rent-service the avowry shall allwayes be made upon the person but in rent-charge never upon the person but upon the Land charged Now here it may be said that this reason is taken away by the Statute of 21 H. 8. 19. For by that Statute the Lord needs not avow for any rent or service upon any person in certaine and then by Littletons reason there néedeth no privity to the attornment of a Seigniory for say they Cessante causa ratione legis cessat lex As at the Common Law no aide was grantable of a stranger to an Avowrie because the Avowrie was made of a certaine person but now the Avowrie being made by the said Act of 21 H. 8. upon no person therefore the reason of the Law being changed the Law it selfe is also changed and consequently in an Avowrie according to that Act aid shall be granted of any man and the like in many other cases which case is granted to be good Law But albeit the Lord as hath béen said may take benefit of the Statute yet may he avow still at his election upon the person of his tenant and albeit the manner of the Avowrie be altered yet the privity which is the true cause of the said difference remaineth as to an Attornment Littl. § 568. Co. ibid. 316. a. 3. 24 If the reversion of Lessée for life be granted Upon alienation the grantee shall attorn and Lessée for life assigne over his estate the Lessée cannot attorne but the attornment of the Assignée is good because as Littleton saith it behoveth that the tenant of the land do attorne and after the assignement there is no tenure or attendance c. betwéen the Lessée and him in reversion so likewise if Lessée for life assigneth over his estate upon condition he having nothing in him but a condition shall not attorne but the assignée may attorne because he is tenant of the land The assignee of tenant by possession shal â—attorn 25 Tenant in taile after possibility of issue extinct shall not be compelled to attorne for the inheritance which was once in him Co. ibid. 316. a 4. but his assignée shall be compelled to attorne because then that priviledge is lost the assignée having in him onely a bare estate for life Release of quarrels is release of Act. 26 Quaerela being derived à quaerendo properly concerneth personal actions or mixt at the highest Co. ibid. 292. a. 3. for the Plaintiff in them is called Quaerens and yet if a man release all quarrels it is as beneficial as all actions for by it all actions both real and personal are released because by the release of all quarrels all causes of actions are released albeit no action be then depending for the same Where the estate is defeasible the tenant is not compelâ—able to attorn 27 It is a general rule that when the grant by fine is defeasible Co. ibid. 318. a. 4. 36 H. 6. 24. there the tenant shall not be compelled to attorne As if an infant being seised of a reversion levie a fine thereof this is defeasible by writ of error during his minority and therefore in this case the tenant shall not be compelled to attorne so likewise if before the Statutes of 4 H. 7. 24. and 32 H. 8. 36. a tenant in taile had levied a fine the tenant could not have béen
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
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 copâ—rcenary not survive to the other for that the rent doth come in recompence of the land and therefore shall ensue the nature thereof if the grant had been made to them two of a rent of 20 s. viz. to the one 10 s to the other â—0 s. yet shall they have the rent in course of coparcenary and shall also joyn in action for the same Co. l. 5. 8. a. 2. Cases of Leases Justice Windhams case The like 12 If two Coparceners by deed indented alien both their parts to another in fee Co. ibid. 169. b. 4. 38 E. â— 26. b. rendring to them two and their heires a rent out of the land In this case they shall not be joyn-tenants of that rent but shall have it in course of coparcenary because their right in the land out of which the rent is reserved was in coparcenary Joyn-tenants and tenants in common 13 If two tenants in Common be disseised Littl. § 311. Co ibid. 195. b. 3. each of them shall have a several assize for his moity because they claime and are seised by several titles but if 20 joyn-tenants be disseised they shall have but one assize in all their names because they have but one joynt title The like 14 If there be three joyn-tenants Littl. § 312. Co. ibid. 196. a. 1. and one releaseth to one of his companions all his right c. and after the other two are disseised of the whole In this case the two others shall have one assize in both their names for the two parts because at the time of the disseisin they held them by a joynt title but as to the other third part he to whom the release was made ought to have a several assize of that in his owne name because of that part he is tenant in common and hath title to it by force of the release and not onely by force of the joynture Coparceners 15 If two Coparceners have issue each of them a sonne and die Littl. § 313. Co. Inst pars 1 196. a. 4. and the sonnes before partition are disseised in this case they shall joyn in an Assize for although they claime by several titles in respect of the several descents from their mothers yet in as much as the land intirely descended from their grand-father to their mothers they are in Law accompted Parceners and a writ de partitione facienda lyeth betwixt them and consequently shall have but one Assize Tenants in common 16 In real and mixt actions tenants in common shall sever in action because they have several freeholds and claim by several titles Co ibid. 195. b. 3. 198. a. 2. but they shall have actions personal joyntly in all their names as an action of trespass of accompt against the Bailiff of their Mannor or the like and in this case also the survivor takes place because these actions found in the personalty and not in the realty and the trespass and damage done unto them which indéed is the cause of the action is joynt and therefore ought to be joyntly prosecuted and shall also joyntly survive and the same Law is of Coparceners Moâ—tgage 17 If the feoffée in mortgage before the day of payment Littl § 339. Co. ibid. 209. b. which should be made unto him make his executors and die and his heire enters into the land as he ought c. It séemes in this case that the feoffor ought to pay the money at the day appointed to the executors and not to the heire of the feoffée because the money at the first accrued unto the feoffée in the nature of a duty and it shall be intended that the estate was made by reason of the lending of the money by the feoffée or in respect of some other duty A mad man 18 In criminal causes as felony Co. ibid. 247. b. 1. ubi vid. Pl. an Plowd 19. a. c. the act and wrong of a mad man shall not be imputed to him for that in those causes Actus non facit reum nisi mens sit rea and he is said to be Amens that is sine mente And therefore his madnesse being the cause thereof and not his intention he is excusable C. l. 4. 124. b. 2. Beverleys Case Entry and â—laim 19 Littleton saith that if a man having title to enter into lands Co. ibid. 253. b. 1 2. dare not do it for feare of beating mayming or death that then he ought to approach as néere the land as he dare to make his claime yet in this case every doubt or feare is not sufficient for it must concern the safety of his person not of his houses or goods for the fear of burning his houses or of taking away or spoyling his goods are not sufficient causes to make him forbear to make his entry or claime upon the land because he may recover the same againe or at least damages to the value of them without any corporal hurt And here also though the feare do concerne the person yet it must not be a vaine feare but such as may justly cause a constant man to be affraid by reason of some overt act as if the adverse party lye in wait in the way with weapons or by words menace to beat Bract. lib. 2. 16. b. Brit. 19. 66. c. maime kill or imprison him c. Talis enim debet esse metus qui cadere potest in virum constantem qui in se continet mortis periculum corporis cruciatum Co ibid. 266. a. 3. 20 If the Donee in taile discontinue in fee Discontinuance of an estate tail the reversion of the Donor is turned to a naked right and here if the Donor release to the discontinuee and the Donee die and the issue in taile doth recover the land against the discontinuee he shall recover no more then the estate taile and must then by consequence leave the reversion in the discontinuee for he can recover no more than was due to him by the gift of the Donor which was the cause and ground of his title neither yet in this case shall the Donor have the reversion againe against hâ—s own release Co. ibid. 355. a. 2. 21 Whereas divers hold opinion that upon a recovery had by default in an action of Wast against tenant in Dower or by the courtesie Waste a Quòd ei deforceat lyeth not because the default is not the cause of the judgement For notwithstanding the default there goeth forth a writ to enquire de vafto facto quod vastum predict A. the defendant fecit So as the defendant may give evidence and the jurors may find for the defendant that no wast was done as in an assize albeit it be awarded by
nec è converso for the original cause of this condition by reason of vicinage was not for profit but to prevent suits in Champion Countries for the reciprocal escapes of the one Town into the other Condition precedent and subsequent 36 In all cases when an interest or estate commenceth upon a Condition precedent Co. l. 7. 10. a. 1. Ughtreds case be the Condition or Act to be performed by the Plaintife or Defendant or any other or be the condition in the affirmative or the negative there the Plaintife ought to shew it in his Count and averre the performance of it for there the interest or estate commenceth in him by the performance of the Condition and is not in him till the Condition be performed but it is otherwise when the interest or estate passeth presently and vests in the grantée and is to be defeated by matter ex post facto on Condition subsequent be the Condition or Act to be performed by the Plaintife or Defendant or by any other and be the Condition in the affirmative or the negative there the Plaintife may count generally without shewing the performance of it and it shall be pleaded by him that will take advantage of the Condition or matter ex post facto for every one ought to alleadge that which makes for him and is for his advantage but none shall be compelled to produce that which makes against him Vide infra 25. 20. A Copiholder may lop trees 37 The Lord of a Copihold Mannor Co. l. 8. 63. Swaynes case within which the Copiholders might by custome lop the timber trées for estovers and necessary repaire of fences c. makes a Lease thereof to A. for 21 years excepting the timber trées A Copihold tenant having lands upon which such timber grew surrendred his estate to another who was admitted by A. the Lessée of the Mannor and lops the trées for necessary repair of fences Now the question was whether the Copihold tenant being admitted by A. who had no interest of the trées by reason of the exception Co. l. 4. 21. a Browns case fol. 23. b Clark and Pennyfathers case fol. 24. a. P. 26. Eliz. 29. b. 2. Buntings case had power to lop them because Nemo potest plus juris ad alium transferre quám ipse habet And it was resolved that he might lawfully lop them because the estate of a Copiholder is not derived out of the estate or interest of the Lord of the Mannor for the Lord is but as it were an Instrument to convey the grant of the Copihold but the Custome of the Mannor after the grant is made is that which establisheth and makes it firme to the Grantée So that although the grant be new yet the title of the Copiholder to the profit of the trées is ancient and so ancient that by force of the Custome it excéeds the memory of man Vide Co. 4. 27. b. Taverners case 28 b. Westicks case Vide 30. 22 23. Co. l. 9. 81. Agnes Gores case 38 Gore the husband of Agnes being sick It may be murder though not intended Roper the father of Agnes procures an Electuary of Martin the Apothecary by the advise of Doctor Grey into which Agnes secretly puts Rats-bane to poison her husband and the 18 of May gives part thereof to her husband who thereupon became very sicke Roper also and another eating part thereof became very sick at last Martin being taxed for making the Electuary in that manner the 21 of May stirres it and also eats part thereof and dies the next day And it was resolved by all the Iudges of England that this was murder in Agnes and that this case did not differ from Sanders case in the Commentaries Plowd 474. although Martin by stirring it made the poison more forcible for the stirring c. without putting in the poison could not be the cause of his death and the Law joynes the murderous intention of Agnes in putting the poison into the Electuary to kill her husband with the event which insued thereupon viz. the death of Martin for the putting in of the poison was the cause and the poisoning and death of Martin was the event Quià eventus est qui ex causa sequitur dicuntur eventus quià ex causis eveniunt So if A. puts poison into wine with an intention to kill B. and C. conceiving it to be sugar stirres it drinks it and dies this is murder in A. It is otherwise where Rats-bane is layd with an intention to kill rats and one takes it eats it and dies for there was no felonious intent c. Co. l. 9. 85. a. Connyes case 39 Vpon grant of a Mannor An Infant shal do his services c. attornement of an infant being tenant of the same Mannor is good and in a Per quae servitia against an infant that hath the tenancy by descent he shall not have his age because at first the Lord departed with the land in consideration that the tenant should hold of him performe services pay a yearely rent c. and the tenant is in Law called tenant paravaile because the Law presumes that he hath benefit and availe above the services which he doth and the rent which he payes to the Lord And therefore it is against the reason and purpose of the creation of the tenure that when the heire hath the tenancy paravaile by descent he should not pay the annual rent c. which was reserved upon the Creation of the tenancy And this is the reason that the heire of the tenant who hath the tenancy by descent may be distreined for the rent c. arrere during the minority and shall not therefore have his age c. Co. l. 9. 113. a. Maryes case 40 For every féeding of the Cattle of a stranger upon a Common Trespass for common contrà the Commoner shall not have an Assise nor action upon the case as his case lies but the depasturing ought to be such per quòd le Commoner c. Common de pasture c. for his Cattle c. habere non potuit sed proficium suuminde per totum idem tempus amisit c. So that if the trespasse be so little that he hath not any losse but that still sufficient remaines for him to depasture his cattle In that case the Commonor shall not take the Strangers Cattle damage fesant neither shall he have any action for it but the tenant of the soile may in that case have an action So if a servant be beaten the Master shall not have an action for that battery except that by reason thereof he loseth his servants service but the servant for every slight battery may have an action and the cause of this diversity is for that the Master receiveth no damage by the personal battery of his servant but by reason of a per quod per quod
servitium c. amisit So that the original Act is not the cause of his action but the consequent upon it viz. the losse of his service and the same reason holds in the case of a Common as above said A release of remainder of a temr good 41 Quando diversi desiderantur actus ad aliquem statum perficiendum Co. l. 10. 49. a. 14 Lampets case plus respicit lex actum originalem quia cujusque rei potissima pars est principium And therefore if A. possest of a Lease for the terme of 500 yeares demiseth the terme to B. for life the remainder to C. and the heires of his body and makes B. his executor and dies and after B. is possest of the Lease C. releaseth to B. all his right in the terme In this case although it was objected that the release was void because C. at the time of the release had no estate in him but onely a possibility the whole estate and terme of yeeres being in B. so that after the death of B C. might enter upon the Lease againe notwithstanding the release yet it was resolved that C. by that release had extinguished all his right and title in the term and had fixed it in B. because the devise by A. and the assent of B. the executor appearing by his acceptance of the release were as the original and fundamental causes of the interest of C. and the death of B. is but a meane to bring the Lease in possession and gives nothing at all for that the whole interest accrues by the devise and is executed by the assent of the executor and therefore C. had not onely a possibility Fulwoods case Co. l. 4. 66. b. but likewise such an interest as might well be released c. But in that case a grant by C. to a Stranger had béen void The Commissioners of Sewers 42 Every Statute Ordinance and Provision Co. l. 10. 140. a Kigheleyes case which is to be made by force of the Commission of Sewers ought to consist of 4 causes 1 The Material cause which is the substance 2 The Formal cause and that is the manner with convenient circumstance 3 The Efficient cause and that is their authority according to their Commission 4 The Final cause and that is pro bono publico nunquam pro privato The consideration whereof will be as so many Sea-marks to direct the Commissioners how to stéere in the execution of their charge and how to order the liberty which is given them by the Statute of 23 H. 8. 5. viz. to make such Ordinances c. according to their owne wisedomes and discretions c. which words are meant and ought to be interpreted according to Law and Justice For every Iudge or Commissioner ought to have duo grana salis viz. unum sapientiae ne sit insipidus alterum conscientiae ne sit diabolus And discretion is well described to be scire per legem quid sit justum Fine in a Leet ought to be distinct and not joynt 43 In a Léet a fine of 6 li. put upon all the Iurors joyntly Co. l. 11. 42. b. Godfreyes case by the Steward because they would not present a thing which by the custome of the Mannor they ought to present is not duly imposed but ought to have béen assessed upon them severally for that the cause which occasioned the fine is several because the refusal of each of them is several and personal and the refusal of one is not the refusal of another and therefore if some of them refused and the rest be readie to present onely those that refuse are to be fined c. Damage feasant 44 If a man take beasts damage fesant Fitz. 69. g. and the other offers sufficient amends and he refuseth c. Here if he sue a replevin c. for the Beasts he shall recover damages onely for the detinue of them and not for their taking for that the cause of taking them was lawfull Fitz. 79. h. 45 The Peace ought no be granted against any without good cause Binding to the Peace and therefore by the ancient course of the Law the party complaining used to make oath before a Master of the Chancery that he was in feare c. of some corporal damage and did not take that oath for malice against his adversary the like ought to be observed by the Iustices of the Kings-Bench and of Peace Fitz. 95. d. 46 If a man winne anothers money with false dice Cheating at Dice he that is deceived may have an action of Deceit against the party so deceiving him And in this case although the Defendant do not entice the Plaintife to play yet it séemes he may well maintaine that action against the Defendant because the excitation to play at dice is not the cause of the action but the casting of the false dice c. by which he wonne the money c. Fitz. 104. l. 47 If a man acknowledge a Statute Staple Dures or Statute Merchant by dures c. he may have an Audita quarela to avoid it because the imprisonment was the cause thereof Plowd 19. a. Fogassaes case 48 If a man by dures be compelled to seale a bond Dures or other compulsion he shall avoid it So if a mans arme be drawne by compulsion and by that occasion the weapon in his hand kills another that is not felony Likewise if an infant under the yeares of discretion or a man de non sane memory kill a man they shall be excused because their ignorance and not any wicked intention was the cause thereof M. 20. H. 7. 12. per Rede Plowd 26. b. 4. Colthrist and Bivishams 49 If one retaine another to serve a yeare for 20 s. wages here Wages for a years service if the servant demand the 20 s. he ought to shew that the time is past viz. that the yeare is expired and he ought to plead certain because his action is given in respect of the yeare past and of a thing done in time and the time is parcel of the cause of the demand and precedes the demand Plowd 98. a. Matters of the Crown 50 In Olivers case in the Commentaries All principall in Murder those that stood by and abbetted the Murderers were as well principals as those that killed him because the number of them then present and ready to strike him shall be adjudged the cause of his terror and of the abatement of his courage and an occasion to make him despaire of defending himselfe and by consequent that terror was the cause of receiving his wounds and the wounds the cause of his death Plowd 99. b. 101. a. Matters of the Crown 51 Amongst the matters of the Crowne in the Commentaries Murder though the party intended not killed divers persons having a malicious intention to murder Doctor Ellis killed his
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
pursued in suppression of the mischiefe and advancement of the remedy as by this case it appeareth A Fine levied by the husband onely is within the letter of the Statute of Glocester 6 E. 1. cap. 3. but the mischiefe was that the heire was barred of the inheritance of his mother by the warranty of his father without Assets And this Act intended to apply a remedie viz that it should not barre unlesse there were Assets and therefore the mischiefe is to be suppressed and the remedy advanced 31 E. 3. Joynder in aid 10. Finch 13. 10 The Vouchée cometh into the Court to be viewed View of vouchee and being viewed is awarded of full age yet he shall not be driven to answer till he come in to the same intent by other processe 19 E. 4. 3. Finch 13. 11 The Vouchée upon a Grand cape ad valentiam Apparance of vouchee shall not loose the lands though he cannot save his default because the processe is onely to this end viz. that he should appeare Finch 13. 50 Ass Pl. 2. Finch ibid. 12 A man that is warned by Writ to answer to a matter Not forced to answer to two several things shall not be driven to answer any other matter than is contained in that writ though the King be party As if by Office it be found that lands in Chiefe descended to I. S. a fool natural and that A. occupieth them whereupon a Scire facias goeth out against A. to answer why the lands should not be seised into the Kings hands for the Idiocy of I. S. upon which A. commeth in and pleads that I. S. when he was of perfect memory made a release to one B. who enfeoffed A. This is good enough without shewing any licence of Alienation to discharge himselfe for the purchasing of those lands Fine with Proclamations 13 Tenant in taile general having issue a daughter Co. l. 3. 50. b. 3. â—u slowes case levies a fine in Trinity Terme and dies in August following the issue immediately brings a Formedon and hanging the Writ the Proclamations are made yet in this case the issue is barred for the end of making the Proclamations is not to barre the entaile because that is barred before by the fine but the onely end of making the Proclamations by the Statute of 32 H. 8. is to distinguish the fine that shall barre the estate taile from a Fine at the Common Law for the Fine that shall barre such an estate shall be levied according to the Statute of 11 H. 7. viz. with proclamations c. Statute 32. H. 8. 17. 14 The Statute of 32 H. 8. cap. 37. saith Co. l. 4. 51. b. 4 Andrew Ognels case that the husband shall have an action of debt for the arrearages due in the life time of his wife out of any estate which he held in her right And this is to be understood as well of arrearages due before as after mariage for in that Statute the end of naming the Feme wife is onely to declare and describe the condition of the Feme and not to imply that the arrearages ought to incur after the coverture Where a Writ is to be returned and where not 15 There is an apparent diversity betwéen a Capias in processe Co. l. 5. 90. a. 3. Hoes case Tres 33 El. Mounts case and a Capias ad satisfaciendum for if the Capias in processe be not returned the arrest is torcious because there the end of the arrest is that the party may appeare and answer the Plaintife But in all Writs of execution when the Sheriffe alone doth execute them as a Capias ad satisfaciendum habere facias sesinam or possessionem fieri facias liberat c. if the execution be duly served it is good although the Writ be not returned for there the Plaintife hath the end and effect of his suit and then nothing else is to be done on his part afterwards But in case of an Elegit because the extent is to be made by inquest and not by the Sheriffe alone that ought to be returned otherwise it is nothing worth Collation no disseisin 16 If a Bishop collate without Title to a Church presentable Co. l. 6. 50. a. 1. Boswels case and his Clerke is inducted yet this shall not put the right Patron out of possession for that is nothing else but a provision to the end divine Service may be celebrated untill the Patron present and it is no more than belongs to his Office to do Dignity entailed forfeited 17 If the Dignity of an Earledome had béen intailed to the heires male Co. l. 7. 34. a. 4. Nevils case it might have béen forfeited for Treason before the Statute 26 H. 8. cap. 13. by reason of a secret Condition in Law annexed unto it for Earles are created for two purposes viz. Ad consulendum Regi tempore pacis ad defendendum Regem patriam tempore belli and therefore they wear a Cap of honour and a Robe as they are Councelors and are girded with a sword to represent them gallant Champions and Cavaliers Now then when such a person against his duty and the end of his dignity commits Treason against the King his dignity though entailed is forfeited by that Condition implicitly annexed to his estate Vide 42. 7. The end to be pursued 18 The Scope and end of every matter is principally to be considered and if the Scope and end of the matter be satisfied Pl. co 18. a. 1. Fogassues case then is the matter it selfe and the intent thereof also accomplished And therefore in Fogassues case in the Commentaries because the King had meanes of being intitled to the Custome of the Woad viz. by causing it to be weighed and the end and Scope of the Statute being in that case performed he was not to incurre the penalty of forfeiting the Woad 19 To let a prisoner in execution go at large upon bond c. is expressely against the Statute of 23 H. 6. Plowd com 67 a. 4. Dive against Maningham cap. 10. Sheriffs bond void because the end and intent of making that Statute was to prevent all such bonds c. made for that purpose that abuse having béen much practised by Sheriffes before the making of that Statute Dyer 48. 19. 32 H. 8. 20 If the Plaintife importune a Iuror to appeare and passe upon the verdict according to his conscience Juror albeit he was not summoned by the Sheriffe or his ministers to appeare yet this is not any unlawfull practise or cause of challenge of the Iuror because the end why he was impanelled was to discharge a good conscience upon the verdict Co. l. 5. 87. a. 3. In Blumfields case 21 In debt when the Plaintife hath had execution of the Defendants lands and after the lands are evicted Execution in such case before the Statute of
accession of the estate for life Co. l. 8. 142. b. 1. in Doctor Druries case 47 If a man hath judgement in a Quare Imepedit Quare Iâ—â—dit Errour and hath a Writ to the Bishop and the Bishop refuseth to admit his Clerk Here the Plaintiff upon this collateral matter of refusall may have a Writ of Quare non admisit but if the Defendant reverse the Iudgement by a Writ of Error and after the Plaintiff in the Quare Impedit brings his Quare non admisit the Defendant may plead no such record and so bar the Plaintiff of bringing that Writ Vide 26 E. 3. fol. 75. per Wilby and Hill In like manner Execution Errour Escape if A. be taken by the Sheriffe in execution at the suit of B. upon an erroneous Iudgement and after make an escape and after the judgement is reversed by a Writ of Error the action upon the escape is lost c. Ibid. the principall case 48 If the return of an Exigent be erroneous Exigent â—â—neous the Outlawry which is grounded thereupon is erroneous also because the Writ of Exigent is the warrant by which they proceed to the Outlawry Vide Proctors case 5 Eliz. Dyer 223. Ibid. 143. b. 2. 38 H. 6. 4. 12. 49 One that had cause of priviledge in Banco is arrested in London Priviledge Supersedeâ— and delivers a Supersedias notwithstanding which the Recorder gives judgement and he is taken in execution and is thereupon removed in Banco by a Corpus cum causa And here because after the Supersedeas delivered there was a Nullity in the proceeding and judgement the Court without Writ of Error awarded that he should be discharged of the Execution c. Ibid. 143. a. 1. 50 If two Iudgements are given Two judgements The first dâ—feated and the last depends meerly upon the first as upon his foundation there if the first fundamental judgement be reversed by Writ of Error or Attaint the last which appears in the Record to depend upon it shall be reversed also as in Assise and Redisseisin so of a judgement upon the original and another judgment in a Scire facias so also of a judgement against the Tenant and another against a Vouchee and the like c. Conusee of a Statute 51 The Conusee of a Statute Staple in a writ of Detinue of the same Statute upon garnishment recovers by erroneous Iudgement against the Garnisee and hath the Statute delivered unto him Ibid. 142. b. 7 H. 6. 4â— a. the Garnisée brings a writ of Error Garnishment and the Conusee sues execution upon the Statute and hath it Here albeit the Garnisee reverse the judgement yet inasmuch as the Statute was executed that execution shall not be avoided by the reversall of the judgement because the judgement was onely to have the Statute delivered Judgement Execution and the Execution upon the Statute is a thing executed not at all depending upon the judgement And yet in this case by the opinion of Coke Chiefe Iustice the Garnisee shall have remedy upon the reversal of the judgement by an Audita quaerela Audita Quaerela because the cause and ground of the Collateral Action is disproved and annulled by the reversall of the first judgement and the first Plaintiff restored to his first action upon which he may have his first and due remedie Executors have execution The Will annulled 52 Executors have judgement in account Ibid. 143. b. 4. per Coke chief Justice and for the arrerages have the Defendant in execution and afterwards the Testament was annulled because the Testator was an Idiot and the Record spirituall was removed into the Chancery by Writ and then sent into the Kings Bench where the Action was brought And hereupon the Defendant brought an Audita quaerela Audita Quaerela for that the Testament was disproved and it was resolved in the Exchequer Chamber an 35 H. 8. that the Audita quaerela would well lie A Melius Inquirend erroneous 53 It was found by Mandamus 2 Jac. that P. S. held the Mannor of O. in Soccage of Qu Co. l. 8. 168. a. Paris Slaughters case Eliz. as of her Mannor of N. In 7 Jac. a Melius Inquirendum was awarded reciting the former office to enquire whether the Mannor of O. at the time of the death of P. S. was holden of the King in Capite c. whereupon an office was found that at the time of the death of P. S. the said Mannor of O. was holden of Qu Eliz. by Knight service as of her Mannor of N. and that at the taking of the inquisition it was holden of the King c. In this case the Melius was repugnant in it selfe because it was impossible for the Iury to finde the Mannor holden of King James at the death of P. S. which was in the fourth year of Qu Eliz. for then it must needs be holden of the Queen King James being then King of Scotland c. Now therefore albeit the Iury by the Inquisition had rightly found the tenure of the Mannor and that their finding thereof in that respect was good and according to the truth of the case yet because it was not warranted by the Melius which was the ground of their Inquisition all was adjudged insufficient and void and a new Melius inquirendum was awarded An Idiot examined in Chancery 54 A man that is found an Idiot from his nativity by office Co. l. 9. 31. b. 4 in the case of the Abbot of Strata Mercella may come into the Chancery and pray to be examined or by his friends he may pray to be brought thither and if it be found upon examination that he is no Idiot the office thereof found and all the examination which was by force of the Writ or Commission are utterly void without any traverse monstrance de Droit or any other suit Assumpsit deâ—eaâ—â—d 55 An Executrix in consideration Co. lib. 9. 94. a. 4. Will. Banes case that the Plaintiff will forbeare till Michaelmas to sue for a debt due by the Testator to the Plaintiff upon lone promiseth to pay it at Michaelmas and in an Action upon the case brought against her upon that promise pleads non assumpsit here the consideration of forbearance is good because although it be no benefit to the promiser yet is it damage to the Plaintiff And yet in this case if in rei veritate the debt were not due debt Per Coke chief Justice or the Executrix had not assets at the time of the promise she may give that in evidence and shall be thereupon ayded for then in truth there was not any consideration upon which the assumpsit might be grounded because to forbeare a debt which was not due or wherewith she was not chargeable could be neither benefit to the Defendant nor damage to the Plaintiff Co. l. 9. 139. a. 3.
141. a. 4. in Beamonts case 7 H. 4. fol. 16. 56 Baron and Feme being Tenants in special taile A marriage dissolved anâ— so an intaile grounded thereon are divorced viz. by such a divorce which dissolves the marriage ab inito and the Baron and Feme à vinculo matrimonii in this case they have ever after but an estate for their lives because the marriage which was the onely means whereby they might have had heirs inheritable of the estate taile being dissolved the estate taile it selfe is thereby also determined and extinct Co. l. 10. 76. a. 4. the case of the Marshalsea 57 When a Court hath jurisdiction of the cause Erroneous proceeding in Court and procéeds inversa ordine or erroneously there no action will lie either against the party that sues or against the Officer that executes the precept or processe of the Court But when the Court hath not jurisdiction of the cause there all the procéeding is coram non judice and actions will lie against them without any regard of the precept or processe c. for the rule is Judicium à non suo judice datum nullius est momenti See the booke at large Co. l. 10. 96. a. 〈◊〉 Edw. Seyâ—â—ors case 24 E. 3. 28. in Caloys case 58 Tenant in taile Dower detâ—â—mined the remainder in taile to A. the reversion in fée to himselfe bargains and sels the land to B. and his heirs Here by the déed indented and inrolled c. the Bargainée hath an estate descendable to his heirs but determinable upon the death of the Tenant in taile and hath also the reversion in fée exepctant upon the estate in remainder in taile and here likewise the Feme of the Bargainée will be endowed but in this case if the Tenant in taile die the Dower which depended upon that estate shall determine also Co. l. 10. 96. b. 1. Edw Soymors case 59 Tenant in taile Warranty dâ—termined the remainder in taile to A. the reversion in fée to himself bargains and sells the land to B. and his heirs and afterwards also levies a fine to B. his heirs with warranty c. In this case albeit A. be the next heir to the Tenant in taile yet shall not this warranty bar his remainder For every warranty ought to be knit and annexed to an estate for that a warranty hath his essence by dependancy upon some estate Now in this case at the time of the fine levyed the warranty was annexed to the Fée-simple determinable upon the death of the Tenant in taile without issue and also to the reversion in fée but doth not extend to the estate of A. in the remainder for that was not displaced nor devested but did still continue in him because A. at the time of the fine levyed and after was seised of his remainder Now then if the warranty at the time of the creation of it were annexed to an estate the Conusée by his Feoffment or other act cannot extend if farther than it was at the time of the creation of it And therefore when the estate taile unto which the warranty was annexed is determined by the death of the Tenant in taile without issue the warranty which hath his essence by dependancy is also determined because then there is no estate left to support it c. 30 E. 3. casu ultimo in Henry Pigots case Co. l. 21. 27. b. 60 In Assise before Stouffe and others in the Countrey A man unlâ—tered not bound the Tenant pleads feoffment of the Plaintiff to him by déed of the land in plea to have and to hold to him and his heirs comprehending a letter of Attorney to deliver Seisin Warranty void as welâ— the deâ—d c. and in truth the Plaintiff was a lay man not lettered and the déed with the warrant of Attorney was read unto him according to the form of an estate tail and upon the same intent he sealed and delivered the déed with the letter of Attorney in it to deliver Seisin In this case the déed did not binde the man unlettered but was adjudged void And therefore albeit the déed and the warrant of Attorney were two several clauses and that the said warrant was well and truly read unto him yet because the same warrant did depend upon the feoffment and had relation unto the estate in fee that warrant of Attorney was adjudged void also c. Warranty defeated 61 If a man enfeoffe another of land with warranty by deed F. N. B. 135. g. if the Feoffee make feoffment over and take back an estate in fee Here the estate unto which the warranty was annexed being destroyed the warranty it selfe is also destroyed and in this case he shall not have a warrantia cartae because he is in of another estate The father in by tort the heire by remitter the Feme not endowed 62 If a man hath title of action to recover land and after he enters F. N. B. 149. f. and disseiseth the Tenant of the land and dieth seized by which his heir enters here the heir is remitted to the title that his Ancestor had and the Feme of the Baron that so dieth seized shall lose her dower because that estate which the Baron had is determined for that was an estate of fee by tort and the heire hath an estate of fee which was in his Ancestor by right c. Feme not endowed of the rents but of the land 63 If a man make a gift in taile reserving rent to him and his heirs F. N. B. 149. g. and after the Donor taketh Feme and dieth and the Tenant in taile also dies without issue Here the Feme of the Donor shall not be endowed of the rent because the rent is extinct for it was reserved upon an estate taile which is determined But in this case albeit the estate taile of the rent is determined yet shall the Feme be endowed of the land because that doth still continue and is not determined as is the rent A remainder must have an estate to support it 64 By the rule of the Law a remainder ought to have a preceding estate to support it And if that preceding estate faile Pl. Co. 35. a. in Colthrists case the remainder fails also As if a lease for life had been made to a Monk the remainder in fee this remainder had been void because the Monk had no capacity to take the estate for life and so the estate preceding the remainder is void and then ex consequente the remainder is void also Appropriation disappropriate Ancient Demesn restored 65 A Church appropriated to a spiritual Corporation 3 E. 3. 74. b. becometh disappropriate if the Corporation be dissolved Finch 14. 66 A dissesor of Lands in ancient Demesn 49 E. 3. 8. the Lord confirms unto him to hold at the Common Law the Dissesee re-entreth Now shall
temporary and a disability absolute and perpetual As if a man be attainted of Treason or Felony this is absolute and perpetual disability by corruption of Blood and shall barre any of his posterity to claime any hereditament in Fée-simple as heire unto him or to any other Ancestor paramount him But when a man is onely disabled by Parliament without any attainder to claime any dignity for his life this is a personal disability for his life onely and his heire after his death may claim as heire to him or to any of his Ancestors above him c. And upon this diversity Thomas Lord De la ware Anno 39 Eliz. was restored to the place in Parliament originally belonging to his Family Wast by Baron 11 Where a lease is made to the Baron and Feme for terme of life or yeares the Feme shall not be punished for Waste F.N.B. 59. â— committed by the Baron after the Barons death M. 3. E. â— Battery 12 When a corporal hurt or damage is done to a man 12 H. 8. 12. as to beat him c. if he or the party beaten die the action is gone Finch 17. Covenant by Lessor 13 The Lessor covenants to pay quit-rents during the terme 1 2 P.M. 114. Finch 17. and dieth his Executors shall not pay them for it is a personal covenant which dieth with the person Debt against Executors 14 In debt against Executors who plead fully administred Dyer 32. 2 28 29 H. 8. and they gave in evidence to the Inquest that they had paid divers debts upon contracts made by the Testator whereas this suit was upon an obligation whereupon the Plaintiff demurres And it séemed to the Iustices that there was no cause to delay it because they were not compellable to pay such debts for that they die with the person and the Plaintiff had judgement de bonis testatoris Quit-rents 15 The Lessor covenants with the Lessée to pay and beare all quit-rents c. not naming his Executors or Assignes If the Lessor die Dyer 114. a. 60 1 2 P. M. his Executors are not bound according to the opinion of divers Iustices Tamen quaere Covenant implyed and expresse 16 If there be Tenant for life remainder in fée Dyer 257. 13. 9 Eliz. and Tenant for life demise for 15 yeares and die he in remainder enters and the termor brings covenant against the Executors of the Lessor upon the Demise onely which is but an implyed covenant and it was adjudged it would not lie albeit the lease were by Indenture unlesse it had béen broken in the life of the Testator it is otherwise also of an expresse covenant But an implyed covenant is personal and dies with him Vide Stat. 32 H. 8. 34. Note that if the heire out the termor of the father covenant lies against him upon the demise for the privity Vide Max. 55. Licence to retaile wines 17 Quéen Mary grants to one licence to sell Wines by retaile with a non obstante the Statute of 7 E. 6. 5. and doth not limit how long Dyer 270. 22. 10 Eliz. but there is a commandment in the Patent to the Officers to permit him to do it during his life And it was held by Dyer and Sanders that it was durante bene-placito onely and that the pleasure determined by the death of the Quéen the commandment ceased also by her death Warden of the Fleet. 18 Whitacres brings an action of Debt against the Executors of the Warden of the Fleet upon an escape in the life of the Testator Dyer 322. 25. 15 Eliz. and it was adjudged it would not lie because the offence was but trespasse which died with the person And by the Common Law debt did not lie against the Warden but an action upon the Case until the Statute of 1 R. 2. 12. which gives debt against the Warden but speaks neither of Heire or Executor It is otherwise where the recovery is in the life of the Warden 48 Things do enure diversly according to the diversity of the time Purchase by Inhabitants 1 The Parishioners or Inhabitants or probi homines de Dale Co. Inst pars 1. 3. a. 2. or the Church-wardens are not capable to purchase lands but goods they are unlesse it were in ancient time when grants were allowed to passe by such names Grant to commoners 2 An ancient grant by the Lords to the Commoners in such a waste Co. ibid. that a way leading to their Common should not be straitned was good but otherwise it is of such a grant at this day And so in ancient time a grant made to a Lord hominibus suis tà m liberis quà m nativis or the like was good but they are not of capacity to purchase by such a name at this day c. Co. l. 9 28. a. 3. in the case of the Abbot of strata Marcella 3 When an ancient grant is general obscure or ambiguous A charter interpreted as the Law was when it was made it shall not be now interpreted as a Charter made at this day but it shall be construed as the Law was taken at the time when such ancient Charter was made and according to the ancient allowance upon record Vide ibid. many authorities in the point Vide suprà 25. 22. Co. Inst pars 1. 21. b. 3. 4 If the Donor give lands in liberum maritagium reserving a rent Frankmarriage the fifth degree this reservation shall take no effect till the fourth degrée be past but after that time the rent shall be paid according to the reservation Littl. Sect. 19. Finch 18. Co. ib. 147. b. 1. 5 If a man grant a rent out of Black-acre to one and to his heires Rent-charge and seck and grant to him that he may distrain for this in the same acre for term of his life this is a rent charge for his life and a rent seck afterwards Diversis temporibus Co. l. 7. 24. b. 3. Buts case Co. ib. 171. a. 3. 6 Judicis officium est ut res ita tempora rerum Quaerere quaesito tempore tutus eris Co. ib. 178. a. 4. 7 A gift in Frankmarriage was before the Statute of Westm 2. Frankmarriage out of use a Fée-simple and since that Statute a Fée-taile So as it is true that the gifts do continue as Littleton saith Sect. 271. but not the estates for the estate is changed as appeares in the same Author Cap. Fee-taile And albeit Littleton saith Sect. 271. that such gifts have béen alwayes since used and continued yet now they are almost grown out of use and serve now principally for Moot-cases and questions in law that thereupon were wont to rise Co. l. 5. 119. b. 1. in Whelpdales case 8 When an obligation was once a deed Non est factâ—â— when a deed was and is no deed and after before
formal attornment because the Baron cannot attorn to himselfe and his wife in his wives right yet his acceptance of the déed is a good attornment in Law to vest the services in the Feme and her heirs but during the coverture they are suspended c. Grant of the Seigniory to tenant for â—ife of the tenant 11 If there be Lord and Tenant Littl. §. 562. Co. ib. 314. a. 1 and the Tenant make a lease to a man for terme of his life saving the reversion to himselfe Here if the Lord grant the Seigniory to the Tenant for life in fée albeit as to all things concerning the right the Seigniory hath his being as if the Tenant die without heire the tenancy shâ—ll escheat to the Grantée c. yet as to the possession during the particular estate the Grantée shall take no benefit of the Seigniory and therefore during that time he shall have no Rent Service Wardship Reliefe Heriot or the like because these duties belong to the possession and he cannot do or pay them to himselfe Remitter 12 The principal cause Littl. Sect. 661. Co. ib. 349. a. 4. Littl. 665. Littl. 680. 682 683 684 c. why a Tenant in taile in many cases is remitted is because as Littleton saith there is no person against whom he may sue his Writ of Formedon for none is Tenant of the Franktenement but himself and against himself he cannot sue c. There is the same reason also of other Remittâ—rs Finch 19. Co. l. 33. a. 3. in the Marq. of Winchesters case Voucher asâ—ignee 13 If a man make a feoffment in fee to A. his Heirs and Assignes Co. ib. 385. b. 2. A. enfeoffeth B. in fée who re-enfeoffeth A. he or his Assignes shall never vouch because he cannot be his own Assignée but if B. had enfeoffed the heire of A. he might vouch as Assignée for the heire of A. may be Assignée to A. inasmuch as he claimeth not as heire Warranty 14 If Tenant in taile make feoffment to his Vncle Co. ib. 389. b. 3. 390. a. 1. Littl. Sect. 743. and after the Vncle make a feoffment in fée with warranty c. take again an estate to him in fee and then enfeoff a stranger without warranty and die without issue and the Tenant in taile die Here the issue in taile shall not be barred by the warranty made to the first Feoffee because that warranty by the Vncles resuming an estate in fee of the land is utterly defeated For if the warranty should have stood in force then should the Vncle have warranted it to himselfe which could not be c. â— selfe act â—â—id 15 A man cannot present himselfe to a Benefite Finch 19. 8 H. 6. 29. 3 El. Dyer 188 make himselfe an Officer sue himselfe or summon himselfe and therefore if a Sheriffe suffer a common recovery it is Error because he cannot summon himselfe Finch 19. 16 A man cannot be judge and party in a Suit No Judge of two Beâ—châ— at once And therefore if a Iustice of the Common Place be made a Iustice of the Kings Bench though it be but hac vice it determineth his Patent for the Common Place for if he should be Iudge of both Benches together he should control his owne judgments because if the Common Pleas erre that error shall be reformed in the Kings Bench. Co. l. 1. 174. a. 3. Diggs case 17 If a man by Indenture covenant to stand seised to the use of himselfe for life the remainder to others in tail The Feoffâ—â— in without 〈◊〉 try or claâ—â— c. and also reserve unto himselfe power of revocation and doth revoke the uses accordingly immediately upon such revocation the uses so limited are determined without entry or claim because he himselfe was Tenant for life of the land and he cannot enter or make claim upon or against himselfe c. And therefore it is agreed in the 20 E. 4. 18 19. that if a Feoffment be made upon collateral condition and before condition performed the Feoffée demiseth the land to the Feoffor if after the Feoffor perform the condition the land shall be immediately in the Feoffor without entry or claim because he himselfe is already in possession thereof So likewise if a Villain purchaseth rent issuing out of the Lords land that rent shall be in the Lord without entry or claime causa qua suprà Co. l. 2. 51. b. 4. Sir Hugh Cholmleys case 18 It is holden in 7 E. 3. that if the Advowson of the Church of Dale be granted to the Parson of Dale and to his Successors None can present hiâ— self this is void as to the Successor because the Successor can never take any benefit thereof by way of presentation for he cannot present himself c. Co. l. 4. 55. a. 1. The Sadlers case 19 In all cases at the Common Law No traâ—â—â— or action against the King when the King was seised of any estate of Inheritance or Franktenement by any matter of record he that right had could not by the Common Law have any travers or real action upon which he might have an Amoveas manum for that the King by his Writ could not command himselfe but he was put to his Petition of right in the nature of his real action to be restored to his Franktenement and Inheritance 4 H. 6. 12. 24 E. 3. 23. 1 H. 7. 3. 4 E. 4. 21. 9 E. 4. 52. Co l. 8. 68. b. 3. John Trollops case 20 If a Bishop himselfe be sued Bishop Eâ—communiâ—â—on and he pleads in disability of the party Plaintiff excommangement by himself or his Commissary who is as his Deputy albeit it be for another cause than that in question yet that shall not disable the Plaintiff because in this case the Bishop himselfe is party and with this agrées 16 E. 3. Excom 5. 5 E. 2. Excom 27. 5 E. 3. 8. 8 E. 3. 69. 18 E. 3. 58. 9 H. 7. 21. b. 10 H. 7. 9. Co. l. 8. 118. a. 1. Doctor Bonhams case 21 The President and five elect of the Colledg of Physitians in London ought not to be Iudges to give Sentence or Iudgement Judge and party Ministers to make summons and parties to have the moity of the forfeiture albeit they have an Act of Parliament to protect them viz. 14 H. 8. cap. 5. For Nemo debet esse judex in propria causa imò iniquum est aliquem suae rei esse judicem Co. ib. 118. b. 3. 22 If an Act of Parliament grant to any to hold or have Conusance of all manner of Pleas arising before him within his Mannor of Dale The like yet he shall hold no plea wherein himselfe is party For Iniquum est c. Co. 9. 123. b. 4. Anthony Lowes case 23 The Duchie of Lancaster before it was united to the Crown Duchy
debt of the Master and the Assumpsit of the servant Alfords case Hob. 91. the L. W. Howards case 14 Jac. 67 In the Starre-Chanber in a cause betwéen the Lord William Howard Plaintif and Bell and others Defendants Tenant right It was holden by Coke and Hobert that the Tenants of a Mannor claiming Tenant right which the Plaintife being Lord of the Mannor supposed to be void in Law might all joyne together in a peaceable manner to defend the cause being common to them all and therefore though some particular persons were sued yet the rest might defend the suit upon their common charge And the reason was for that the title being one against all There was in effect but one defence and one Defendant for the trial of one mans case tried all And therefore the Courts of Iustice do every day deny them to be witnesses one for another in such general cases as in cases of Common Modus decimandi and the like wherein also it is many times ordered for avoiding of multiplicity of suits that a trial be had in one mans case for all Now therefore as they are acknowledged parties to their prejudice in defence so likewise reason requires that they should be in like manner allowed to be parties for their advantage And so it was said it had béen ruled in that Court before in the case of the Lord Grey of Groby yet the Lord Chancellor séemed to be of a contrary mind and cited a President to that purpose in 8 Eliz. Hob. 120. 68 The Law doth not allow any man to strike in private revenge of ill words And the reason of the wisdom of the Law in that case is Words and blowes because there is no proportion betwéen words and blowes but he that is strucken may strike again per Hobert in the Lord Darcies case of the North against Gervase Markham 58. In quo quis delinquit in eo de jure est puniendus Co. Inst pars 1. 233. b. 2. 1 If a Keeper of a Parke kill any Déer without warrant A Parker forfeits his offâ—â— for wast or fell or cut any Trées Woods or Vnderwoods and convert them to his own use it is a forfeiture of his office for the destruction of vert is by a mean destruction of venison So it is also if he pull down the lodge or any house within the Parke wherein hay is used to be put for féeding of the Déer or the like it is a forfeiture of his Office for in quo quis delinquit in eò de jure est puniendus Co. l. 3. 11. b. 4. Sir William Herberts case 2 At the Common Law Goods liable for debt recovered and the person for Trespasse if a common person had sued a Recognisance or Iudgment for debt or damages he could not have had the body or lands of the Defendant in execution but in such case should have had execution onely of his goods and Chattels or of graine or some other present profit which grew upon the land for which purpose the Common Law gave the Sheriffe power either by a Levari facias to levie them upon his Lands and Chattels or by a Fieri facias upon his Goods and Chattels for in as much as he failed to satisfie the debt and damages by his Goods and Chattels or the issues and profits of his land reason required that they onely should be taken in execution and not his body or lands On the other side if a man commit any force for as much as his body is a chief agent therein the Common Law doth then subject his body to imprisonment which is the highest execution whereby he loseth his liberty untill he hath both satisfied the party and made fine to the King and therefore it is a rule in Law that in all actions quare vi armis a Capias lieth and where a Capias lieth in process there after judgement a Capias ad satisfaciendum lyeth and there also the King shall have a Capias pro fine And with this agrées 8 H. 6. 9. 35 H. 6. 6. 22. E. 4. 22. 40 E. 3. 25. 49. E. 3. 2. and many other books Howbeit by the Statutes of Marlbridge cap. 23. and Westm 2. cap. 11. a Capias was given in accompt for at the Common Law the process in accompt was distresse infinite and after by the Statute of 25 E. 3. cap. 17. Such processe was given in debt as in accompt c. And as concerning the other abovesaid Writs of execution viz. a Levari facias and a fieri facias they ought to be sued within the year after the Iudgement or the Recognisance acknowledged otherwise at the Common Law the Plaintife or Conusée was driven to his writ of debt Howbeit now by the statute of Westm 2. cap. 45. a Scire facias is given and by the statute of West 2. cap. 18. Cum debitum fuerit recuperatum c. the Elegit is given for a moity of the land c. which was the first Act that subjected land to the execution of a Iudgement or of a Recognisance which is in the nature of a Iudgement F. N. B. 265. g. And by the Statute of 13 E. 1. De mercatoribus 27 E. 3. cap. 9. 23 H. 8. cap. 6. upon a Statute Merchant or Staple all the lands which the Conusor hath at the time of the Conusance shall be extended in whose hands soever they afterwards come c. Howbeit in debt against the heir upon an obligation made by the Ancestor the Plaintife by the Common Law shall have all the land which descends unto him in execution against him and yet he shall not have execution of any part thereof against the father himselfe but the reason hereof is because otherwise the Plaintife would be without remedie for the Common Law gives an action of debt against the heir and then if he might not have execution of the land against the heir he should reap no fruit by his action because the Chattels of the debtor belong to the Executors or Administrators c. Goods too high appraysed delivered to the appraysors 3 The Statute of 13 E. 1. Pl. Co. 82. b. 3. in Partridge vers Strange and Croker called the Statute merchant binds all the lands of the Conisor to the execution and provides that they shall be delivered to the Conisée upon reasonable extent and speaketh not a word of the delivering them to the extendors in case they extend them too high yet they shall be delivered to the extendors in that case by the equity of the Statute of Acton Burnel made before viz. anno 11 E. 1. which saith that the goods praysed too high shall be delivered to the Praysors themselves at the rate they set them For reason requires that they should be punished by the same meanes that they intended to to punish others Vide Max. 57. 44. and 57. Adonibezek 4 Quum autem fugerat Adonibezek
Feme shall be admeasured Howbeit hée may well assigne her lesse Omne majus c. Pl. Co. 83. a. 2. Partridges case Co. Inst pars 1. 369. a. 4. 41 Where the Statute of 32 H. 8. cap. 9. Pretenced title c. prohibiteth the buying or selling of any pretenced rights or titles in the plural number yet the buying or selling of any one right or title is also prohibited by the same Statute for the singular is included in the plural Pl. Co. 86. b. 3. per Hales Partridges case Vide suprà 12. Pl. Co. 86. a. 4. in Partridges case per Hales 42 The Statute of the 1 H. 5. cap. 3. recites Entry into land that some people do of late use to forge divers false deeds and muniments c. And therefore it ordaines that the party so grieved may have his suit in that case c. Here that Statute speaks of false déeds c. in the plural number yet if a man forge one false déed onely he shall incurre the penalty of that Statute So likewise the Statute of 5 R. 2. cap. 7. forbids that none shall make entry into any lands or tenements except in case where entry is given by the Law Yet if one enter onely into one tenement he shall be punished notwithstanding that Statute is in the plural number for the plural number contains in it the singular number and more c. Pl. Co. 87. a. 3. Partridges case 43 Where the Statute of 32 H. 8. cap. 9. prohibits the buying Pretenced 〈◊〉 to a lease c. of any pretenced rights c. a lease for years is prohibited as well as an estate in fée in taile or for life for under the word any the lesse estate shall be conteined in the greater So also the Statute of 23 H. 6. Sheriffs cap. 10. prohibits that no Sheriff shall let to farme in any manner his County c. whereby he is restrained to let to farme any part of his County because the lesse is contained in the greater c. Co. l. 5 pars 1. 34. b. 4. in the K. Ecclesiastical law 44 It was adjudged in the Court of Common Pleas by Dyer Weston Ecclesiastical persons may resign to the King and the whole Court that a Deane or any other Ecclesiastical person may resigne to the King as divers did to King E. 6. because the King hath the authority of the supream Ordinary For Cui licet quod majus est non debet quod minus est non licere Co. Inst pars 1 129. a. 2 45 If the King by his prerogative may make one An alien maâ—denizen that is an alien born an absolute Denizen viz. Quòd ille in omnibus tractetur reputetur habeatur teneatur gubernetur tanquam ligens noster infra dictum regnum nostrum Angliae orâ—undus c. à fortiori he may grant to such an Alien a particular denization viz. Quòd in quibusdam curiis suis Angliae audiatur ut Anglus quod non repellatur per illam exceptionem quòd sit Alienigena natus in partibus transmarinis c. to enable him to sue onely or may grant him a denization sub conditione c. Devise for Executors â—hall sell 46 If a man deviseth his land to A. for life Co. ib. 112. b. 3. and that after his decease it shall be sold by his Executors generally and make thrée or four Executors and during the life of A. one of the Executors dieth and then A. dieth the other two or thrée Executors may sell for the greater number includes the lesse and the plural number of Executors still remains whereby the words of the Will are also satisfied It is otherwise if before the Statute of 21 H. 8. 4. he had made but two Executors and one had died or if he had made I. S. I. N. and I. D. his Executors by name and one of them had died for then the words of the Will had not béen satisfied which in such case giving but a bare power must be thereby observed so also if he had devised it to be sold by his sons in law being thrée and one dies the other two might have sold it but not if there had béen onely two and one die or refuse before sale Vide Rule 110. 21. Isabel Goodcheaps case 49 E. 3. Arbitrament 47 The submission to an award betwixt A. and B. was general Co. l. 8 98. a. 2. Baspoles case viz. of all actions c. and the award was that A. should pay B. 20 pound And in this case it was objected that it did not appeare that the matter of the arbitrament was the matter onely that was betwixt them because the submission was general of all actions demands c. And therefore if the arbitrament were not made of all the matters in controversie the Award was void But the Award was adjudged good because when the submission is general of all actions c. Generale nihil certi implicat and therefore it stands well with the generality of the words that there was but one cause depending in controversie betwixt them And Omne majus continet in se minus But it is otherwise where the submission is of certain things in special c. Waste 48 The Lessée covenants to cut no trées Dyer 115. b. â—7 1 2 P. M. and gives bond to perform covenants the Lessée cuts ten trées and the Lessor sues him upon the bond and assignes for breach the cutting of twenty trées he pleads that he did not cut twenty trées upon which they are at issue and the Iury found that he cut onely ten yet judgement was given for the Plaintiffe for the other tenne trées were but surplusage and omne majus c. Lease by a â—rebend 49 A Prebend of Sarum makes a lease for seventy years the Bishop Dyer 338. 43. 17 Eliz. Deane and Chapter confirm the Bishop being Patron and Ordinary for 50 years and no more In this case the demise and all conteined in the Indenture was adjudged good for 50 years 60 Additio probat minoritatem â—e is Fee-â—â—mple 1 When you finde it said in any Book Co. Inst pars 1. 189. a. 3. that a man is seised in fée without saying more it shall be understood in Fée-simple and not in Fée-taile unlesse there be but unto it such an Addition Fee-taile c. And therefore in Heraldry the younger sonnes give the differences And in France by Monsieur without any addition or other title is to be understood the Kings onely brother and by Madame without more the Kings onely sister and therefore they are said in French to be Monsieur sans queüe and Madame sans queüe viz. without any other addition or title But if there be in France any occasion of naming any other Lord or Lady they are always named with their proper and peculiar title as Monsieur de
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
62 yeares without impeachment of wast And after A. le ts to B the Mannor for 30 yeares from the expiration of the former ease of 30 yeares the first 30 yeares expire the Lessée cut the trees the Lessor brings an Action of wast And Iudgement was given for the Plaintife for by the accept of the future Lease the lease for 62 yeares was presently and actually surrendred because it could not be surrendred in part and in force for the residue of the term and the Lessée by such acceptance affirmed the Lessor to have ability to make a new lease which he could not do so long as the first lease stood in force so likewise if the Lessee for 20 yeares accept a lease for three yeares to begin ten yeares after this is a present surrender of the whole term for the last ten yeares cannot be surrendred and the first ten still remain in esse because that would make fractions of the term which is in its nature intire Neither can he that hath a lease for 20 yeares surrender the last ten yeares by any expresse surrender saving unto him the first ten yeares c. Co. lib. 5. 11. b. 3. 56. a. 1. Knights Case 54 Two Houses are let to one man An intire condition the one for 4 l. Rent per annum the other for 20 s. per annum with proviso that if the said Rent of 5. l. be behind in part or in all then the Lessor shall re-enter these Houses afterwards escheate to the King who after grants that upon which the â—0 s per annum is reserved to I. S. the Rent thereof is arreare In this case the Patentée cannot enter for the Condition broken because albeit the Rents were severall yet the Condition was intire by the expresse reservation and gives in intire re-entry into all for default of payment of any part of the Rent and therefore by the severance of any part of the reversion all the condition as to all common persons is destroyed Howbeit the whole condition remaines intirely in the King with the reversion of the other House and that is in respect of his prerogative c. â—he whole â—â—rm one inâ—â—â—e day 55 The Lessée for yeares brings an ejectione firme Co. lib. 5. 74. b. 1. in Wymarks Case the Defendant saith that before the lease the Lessor bargained and sold to him in Fée by indenture inrolled within six moneths whereby he was seised untill diseised by the Lessor who let the land c. The Plaintife pleades that the bargaine c. was upon Condition which was broken c. the Defendant demurres and sheweth cause according to the Statute viz. Because the Plaintiff shewed not forth the Indenture of the Condition And in this case judgement was given for the Plaintife because when any deed is shewed in Court the deed by judgement of Law remaines in Court all the term in which it is shewed but at the end of the term if the deed be not denied then the Law adjudgeth it in the Custodie of the Partie to whom it belongs for all the term in Law is but one day and therefore the deed shall be intended to remaine in Court all the terme in which it is shewed for the term in that case is Intire and will admit of no fractions And so by consequent the Plaintife may in such case take advantage of the Condition comprised in the deed shewed forth by the Defendant himselfe so he do it in the same term as afore-said c. â—erdict and â—amages inâ—â—â—e 56 Goods were cast super arenas aqua salsa minimè coopertas Co. l. 5. 108. a. 3. in Sir Henry Constables Case Manerii de B. infrà fluxum refluxum maris and another parcell were floting super aquas maris refluent ex arenis ejusdem Manerii infrà fluxum c. The Patentée of the Mannor and Fée of Holdernesse in Com. Ebor. brings an Action of Trespasse against him that seised them to the use of the Lord Admiral And the Iurie assessed damages intirely for all In this case judgement was given against the Plaintife because the Goods so floting upon the Waters called Flotsam did not of right belong to him but to the Lord Admiral And therefore the Verdict being intire viz. given for both and so the damages of the wrecke being thereby made un-severable from those of the Flotsam the Plaintife could take nothing by his wort So in Trespasse 21 H. 7. 34. b. the Defendant justifies for part and Pleads not guilty for the residue the Iury inquire of one of the things and tax damages intirely here the whole Court against Fineux adjudged it not good 22 E. Dier 369. accord M. 14 15 El. in Trespas by Pooly for his Servant beaten and his Close broken and said not per quod servitium amisit upon non culp the Iury assessed damages intirely and it was adjudged not good See 9 H. 7. 3. M. 30 31 El. inter Moore Bedle in Assumpsit where the Plaintiff layes two breaches whereof one was insufficient upon non assumpsit the Iury assessed damages intirely And in this case there were two resolutions 1 It shall be intended that they gave damages for both 2 Because the Plaintifs had no cause for one of the allegations â—â—tire serviâ—â— the judgement was to be reversed in the Exchequer Chamber c. 57 Concerning intire Services Co. lib. 6. 1. in Bruertons Case and where they may be apportioned â—arranty inâ—â—â—e and where not see Bruertons Case per tout Co. l. 6. 1. and John Talbots Case in the 8. Rep. fol. 108. 58 Warrantie is an Intire thing which will not suffer partition but shall always either intirely remaine or be intirely annulled Co. lib. 6. 126. Morrices Case and therefore if there be two Ioyntenants with Warrantie and petition is made between them by judgement in a writ de partitione facienda by force of the Statute of 31 H. 8. cap. 1. in this case the Warrantie shall remaine to each of them intirely because upon the Kings writ they are compellable by the Statute unto which every one is Partie to make partition and so the Partie persuing his remedie according to the Act shall not receive any prejudice by the operation of the same Act unto which every one is partie but if they had made partition by deed by consent since the said Act albeit they were compellable by writ to make partition yet in as much as they did not pursue the Statute to make partition by writ for that cause such partition remaines as it was before at the Common Law and by consequent the Warrantie is gone as it was agréed in 29 El. 3. tit Garr because the Warrantie is indivisible and cannot be parted as the Land may Co. lib. 6. 23. The Marqu of Winchesters Case 59 The Marcquesse of Winchester by will as it was supposed A will for Lands and Testament 〈◊〉
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
and the same law be parcel of the lawes of England as well as of all other Nations and is immutable and that post-nati we of England are united by birth-right in obedience and ligeance which is the true cause of natural subjection by the law of Nature It cleerly followed that Calvin the Plaintiffe in that cause being borne under one ligeance to one and the same King could not be an alien borne And there is great reason as it was then alledged that the law of Nature should direct that Case wherein five natural operations were remarkable 1 The King had the Crowne of England by birth-right being naturally procreated of the bloud Royal of this Realme Secondly Calvin the Plaintiffe was naturalized by procreation and birth-right since the descent of the Crowne of England Thirdly Ligeance and obedience of the subject to the Soveraigne due by the Law of Nature Fourthly Protection and government also due by the Law of Nature Fiftly It was presently said that this Case of Calvin in the opinion of divers was more doubtfull in the beginning but the farther it procéeded the cleerer and stronger it grew and therefore that the doubt did arise from some violent passion and not from any reason grounded upon the Law of Nature quia quantò violentus motus qui sit contra naturam appropinquat ad suum finem tantò debiliores tardiores sunt ejus motus sed naturalis motus quantò magis appropinquat ad suum finem tanto fortiores velociores sunt ejus motus And for as much as in case of an alien Borne you must of necessitie have two federal ligeances to two several persons but in this Case one person alone is head of both and the post-nati and we now joyned in ligeance so that one head which was copula tanquam oculus of that Case And ligeance of the subjects of both Kingdomes being due to their Soveraigne by one and the same Law viz. by the Law of Nature the post-nati cannot be aliens of either Kingdome but ad invicem naturalized subjects of both for Non adversatur diversitas regnorum sed regnantium non patriarum sed patrum patriarum non coronarum sed coronatorum non legum municipalium sed Regum Majestatum c. Mother guardian 1◠If the Grand-father hath issue a Sonne F. N. B. 1◠and the Sonne take Wife and hath issue and die the Mother of the issue shall have the Wardship of the issue which is her owne Sonne and not the Grand-father Albeit the issue may have the Land which ought to descend unto him from the Grand-father that the Mother shall not have it c. No champerty in the Sonne 13 The Statute of Articuli sup cartas cap. 11. provides Pl. Co. 88. b. 3. Partriges case that no Minister or other whatsoever to have part of the things which are in Plea shall undertake businesses which are so in plea yet if the Tenant hanging a percipe quod reddat against him enfeoffe his Sonne and heire apparent this shall be out of the danger of that Statute as it is taken in 6 E. 3. 274. in a writ of Champertie see it also in Fitz. Champertie 10. and the reason of this is for that the Sonne cannot be said a Maintainer of the Father because he is bound to aide and assist his Father when and as often as he may being enjoyned so to do by the Law of nature c. The Son may a bet his mother 14 By the Statute of West 2. cap. 12. it is ordained Pl. Co. ibid. that in an appeale it shall be inquired who were the Abettors and that they shall render damages to the partie acquit Neverthelesse if the heire abet his Mother to bring the appeale although it is within the words of that Statute yet shall he be out of the danger of it And so Herle tooke it in 6 E. 3. 274. For Common Law and reason say that he ought to be aiding to his Mother and may also abet her Considerations to raise uses 15 Affection for the provision of heires male that one shall engender Finch 25. Co. Inst p. 1. 21. b. 1. Brotherly love c. are good consideration to raise an use But long Acquaintance and familiarity are not Howbeit consideration of Mariage is more favoured in Law then any other Maintenance 16 The Sonne may maintaine his Father and one Brother another c. Finch ibid. 17 Brothers or Cofins shall not wage Battel in a writ of right Finch ibid. c. The Wife may relieve her Husband 18 A Statute Finch ibid. that maketh it Felonie to receive or give meat and drink to one that committeth such or such an offence the partie so receiving or giving having knowledge thereof stretched not to a Woman that receiveth or giveth meat and drink to her Husband in such a Case c. Privitie in Bloud strongest 19 You shall finde three manner of Privities spoken of in the Law Co. l. 8. 42. b. 4. 44. a. 4. in Whittinghams Case viz. Privitie in Bloud Privitie in Estate and Privitie in Law Privite in Bloud is that between the Ancestor the Heire Privitie in Estate as between Iointenants Baron and Feme Donor and Donée Lessor and Lessée c. Privies in Law are as when the Law without Bloud or Privitie of Estate casts the Land upon one and makes his entry Congeable as the Lord by escheate the Lord that enters for Mortmaine Lord of a Villein c. Now of these three sorts of privities onely the first which is by bloud and therefore most natural shall take advantage of Infancie Coverture non sanae memoriae c. and not the other two And therefore if an Infant Tenant in Fée-simple make a Feoffement and die his Heire shall enter There is the same Law also of heires special and of heires general and special unto whom the right of entry descends per formam doni or by the Custome as all Lands in Gavelkind Borough-English c. It is otherwise of privies in Estate and in Law And therefore if the Donée in tale within age make feoffment in Fée and die without issue the Donor shall not enter Because there was onely privitie in Estate betwée them and no right accrued to the Donor by the death of the Donée So if there be two Iointenants in Fée within age and the one makes Feoffment in Fée of his moitie and dies the sur-vivor cannot enter by reason the Infancie of his Companion Because by his Feoffment the joyntenure was severed so long as the Feoffment remaines in force and therefore in such Case the Heire of the Feoffor shall have a dum fuit infra aetatem or shall enter into the moitie In like manner Privies in Law as the Lord by escheate c. shall never take advantage of the Privitie of Infancie because they are strangers to it And in that
Crown that in the Kings Case they shall go with the Crown to the successor and not to executors as in case of common persons as appears in 7 H. 4. 43. and 44 E. 3. 42. Neither yet doth every warrant serve for the issuing of the Kings treasure for it cannot be done by Parol or by the privy Signet but ought to be done under the Great Seal or Privy Seal It was also further resolved in this Case that albeit Sir VValter had thus received the Quéens treasure to his own use yet inasmuch as he received it without lawful warrant he knowing that it was the Quéens treasure the Law makes privity in the Quéens Case and therefore she might charge him as an Accomptant And so it was also adjudged in the Exchequer in Jurdens Case P. 31. Eliz. Rot. 150. Neither yet is it of necessity that the Kings money or goods should come into the hands of the Testator for if he were onely a mean or Instrument whereby the King was put to loss or damage he shall be charged with so much as he hath so endamaged the King and shall be compelled at the Kings Suit reddere rationem thereof which is in nature of an Accompt for which there is a notable president in M. 30. E. 3. Rot. 6. Porters Case which sée in Co. l. 11. 92. b. in the Earl of Devonshires Case And therefore it was also resolved in Sir VValter Mildmayes Case that the Quéen might either charge the executors of Sir VValter or those that made such unlawful warrant at her election And if they were dead their executors c. for in as much as they were in their life-time chargeable by the Law in that Case if they die before judgement against them without question their executors shall be charged because where the Testator is by the Law chargeable to satisfie the King for losse or dammage done unto him his death shall not dispence therewith but that his Executors shall be also chargeable to the King c. F. N. B. 5. l. 65 In a Praecipe in Capite the Tenant shall not plead Protestaâ—â— that the Tenements are not holden of the King albeit the writ supposeth as much but he ought to take it by protestation and to plead other matter in barre if he have any matter to plead â—ender Di. â—ark 66 In a writ of Right F. N. B. 5. m. the Demandant ought to count of his own seisin or the seisin of his Ancestor c. yet the seisin is not traversable but the tenant may tender a Di. mark to enquire of that seisin c. and if it be found with the tenant that the Ancestor was not seised the Demandant shall be barred Howbeit if the King be party Demandant the Tenant shall not tender a Demy Mark to enquire of the seisin but he ought to plead in bar and there the tenant shall not imparâ— without the assent of the Kings servants The King may â—â—cuse appeaâ—â—nce 67 The King by a writ de warrantia diei may command the Iustices to excuse the Defendant of appearing at the day F. N. B. 17. b. whereunto he was adjourned to appear in proper person And whether the Cause alledged in the writ be true or false it is not material when the King certifies that he is in his service for it séems by the words of the writ that the King by his Prerogative may warrant that default for a day And so also it séemes that if the tenant in a Praecipe quod reddat at the great Cape or petit Cape returned make default that before judgment upon that default the King may command such a writ to the Iustices rehearsing that the tenant was in his service c. and commanding them that his default should not turn to his prejudice And it stands with reason that the King may do it because every one is bound to serve the King in his affairs c. â—â—nipresence 〈◊〉 his Courts 68 If false Iudgment be given for the King in any Action or Suit F. N. B. 21. b. 107. q. Finch 81. the party grieved shall have a writ of Error and assign Errours without suing any Scire facias against the King ad audiend errores because the King is alwayes present in Court and that is the cause that the form of Entry in all Suits for the King is Edvardus Herbert Miles Attornatus Domini Regis generalis qui pro domino Rege sequitur venit hic in Curia c. And doth not say Dominus Rex per Edvardum Herbert Attornatum suum c. And therefore it is also that the King cannot be Non-suit that all Acts of Parliaments that concern him are general and the Court must take notice of them without pleading them for he is in all and all have their part in him c. â—ake Attorâ—ys 69 It séems that before the Statutes which ordain F. N. B. 25. c. e. â— 26. a. that a man may make Attorneys c. the Iustices neither would nor could suffer the Plaintiffe or Defendant Demandant or tenant to make Attorneys in any Action or Court whatsoever yet the King by his Prerogative even before those Statutes might grant to a man power to make Attorneys and by his Writs or Letters might command the Iudges to admit and receive them c. and that without any cause shewed in the writ c. â—â—e King canâ—â—t be Jointâ—ant 70 In the Register there is the form of a writ F. N. B. 32. g. wherein a common person is joyned with the King in a Quare Impedit which runs thus Rex vice comiti c. praecipe R. de C. quod justè c. permittat nos P. de T. praesentare c. But Fitz. saith in his N. B. that the common opinion in his time was that the King should have the whole presentment sole and should have a sole Action c. although he séems to hold the contrary himself Ideò quaere â—sent again 71 If the King recover by a Quare Impedit F. N. B. 34. f. and after ratifie the Estate of the Incumbent yet at the next avoidance the King shall present because the Recovery and Iudgement for him were not executed â—â—â—sent by 〈◊〉 72 In a Frée Chappel of the Kings F. N. B. 34. â— where the Dean ought to give the Prebends if he make not collation within six moneths unto them then shall the King present unto them by Laps as Ordinary F. N. B. 34. k. 73 If the Bishop make collation and die before induction Not inducted or instalment and the King seise the temporalties he shall have that presentment because the Church is not full against the King until the Parson or Prebend be inducted or installed F. N. B. 35. a. 74 If the Kings tenant hath title to present to an Advowson Advowson Ward Present which is void
and the six moneths passe and after the Kings tenant dies before the Bishop presents by laps and leaves his heir within age and in ward to the King In this case the Bishop shall not present by laps but the King shall have the presentment by reason of the ward c. F. N. B. 35. p. 75 In a Quare Impedit for the King Not stopt albeit the Defendant hath a writ to the Bishop against the King yet the King may sue a new Quare Impedit against the party of the same avoidance and make another title F. N. B. 37. f. 76 The King may sue a Ne admittas after the six moneths past Ne admittas where he hath a Quare Impedit or an Assise de Darrein presentment depending because Nullum tempus occurrit Regiâ— It is otherwise in the Case of a common person because the Bishop may then present by laps the title of presentment being devolved to him c. F. N. B. 38. e. 77 In a Quare Impedit betwéen two strangers The Kings title if the title appears to the Court for the King they award a writ to the Bishop for the King accordingly F. N. B. 60. i. 78 Vpon grant of a Reversion Wast Attornment although it be by fine the Grantée cannot bring an Action of wast against the tenant before Attornment but if the King grant a Reversion by his Letters Patents the Grantée may have an Action of waste before Attornment F. N. B. 85. a. 79 At the Common Law every man may go out of the Realm for Merchandizing Peregrination Ne exeâ—s regâ— absque lier 〈◊〉 Regis or other Cause whatsoever pleased him without the Kings licence and he was not to be punished for it Howbeit because every man is by Law bound to defend the King and his Realm therefore the King at his pleasure may by his Writ de securitate invenienda quòd se non divertat ad partes exteras sine licentia Regis command that he shall not go out of the Realm without his licence c. And if he doth it he may be punished for dis-obeying the Kings Command And it séems that this Commandement may be made by the Kings Writ under the Great Seal Privy Seal or Privy Signet For in this Case the Subject is bound to take notice of every Seal the King hath as well as of the Great Seal F. N. B. ibid. c. The King may do the like by his Proclamation in Case he cannot be found to have the Writ served upon him which if he obey not it is a contempt for which he shall make fine to the King Note that by the Statute of 5 R. 2. cap. 2. it was ordained that none should go out of the Realm without the Kings licence which continued in force until 4 Jac. and then by the Statute of 4 Jac. cap. 1. that Clause of that Statute was repealed So that at this day it séems that the Subject hath the same liberty that he had at the Common Law Dier 296. 19. yet by the words in the beginning of the writ which are these Rex A. de B salut c. Quia datum est nobis intelligi quod tu versus partes exteras absque licentia nostra clà m destinas te divertere It séems he cannot go out of the Realm unlicensed by the King c. As Dyer observes 165. p. 6. Ideo quaere de hoc Protection 80 If after the King hath granted to one his protection F. N. B. 92. b. c. any man takes his Goods or enters into his Lands c. or beats his Servants c. the partie grieved shall have a special writ directed to the Seriffe to inquire of them and to certifie it before the King c. And it séemes that the King shall make processe against them by venire facias as upon an Indictment and that they shall make fine hereupon Sea-banks Sâ—wers 81 The King ought of Right to have and defend his Realme as well against the brâ—akings in of the Sea F. N. B. 133. a. as against enemies that it be not drowned or wasted and to provide remedy for it And also to provide that his subjects have their passages throughout the Realme by Bridges and safe Wayes And therefore if the Sea-bankes be broken or Sewers and Gutters be not scoured that the fresh waters may have their direct Course the King may and ought to make a Commission to inquire thereof c. And to hear and determine those defaults But now matters that concerne Sewers are regulated by direct late Statute viz. 23 H. 8. 5. 13 El. 9. c. Priority Wardship 82 If a Man hold of the King by Posteriority F. N. B. 142. f. and of another man by priority and after the King grants to the Quéen the Seigniory for terme of life and after the Tenant dies his heire within age In this Case the Quéen shall have the wardship of the body having no regard to the Posteriority Because the Reversion of the Seigniory remaines still in the King It had béen otherwise if the King had granted it in remainder to another in Fée for then it seemes they should not have had the priority c. Annuity 83 If the King grant an Annuity to one for terme of life or yeares F. N. B. 152. k. it ought to be expressed in the grant by whose hands he shall receive that Annuity as to say by the hands of the Sheriffe of S. or by our Baylife of the Mannor of S. and then the Sheriffe or Baylife shall have allowance upon that Patent shewing if he pay it And if there be not such words in the grant of the Annuity then the grant is void For he cannot sue to the King for it and no person is bound to pay it unto him if he be not named and expressed in the Patent c. â—yde â—â—ayer Procedendo 84 If a Man pray in Ayde of the King F. N. B. 253. e. f. and the Ayde is granted then shall it be awarded that he shall sue to the King in the Chancery And the Iustices of the Common Pleas shall cease until a Writ De procedendo in loquela come unto them c. And then they may procéed in the Plea until it go on so farre that Iudgement ought to be given c. For the Plaintiffe And then also the Iudges ought not to procéed to Iudgement until another Writ De procedendo ad judicium be brought unto them And if the King certifie the Iustices by his writ that the Lands are seised into the Kings hands then also shall they surcease until a writ De procedendo loquela be sent into them c. And if it appeare to the Iustices upon Record that the Tenements are seised into the Kings hands or if it appeare to the Court by the pleading and shewing of the Parties that the
A. his heires c. pay to B. 100 l. after B. hath issue under age and dies the marriage takes not effect In this case the estate is executed in the heir of B. and shall have relation to the making of the Indenture c. But if the Grantée of a Reversion die no attornment can be done to his heir So it is also where the Devisée dies before the Devisor c. Pl. Co. Brets and Rigdens case 345. Vide Shelleys case where the Indenture bound the land albeit execution was not taken out till after his death for the estate was executed by the Indenture and Recovery before execution which shall have a retro-spect to the Indenture And 11 H. 7. 12. Where the heir shall have execution upon a fine But if the Feoffor or Feoffée die before entry feoffment by livery within view shall not take effect So also in the Rector of Cheddingtons Case Co. l. 1. 155 156 by the death of Tho. the term is not certaine nor can vest in his executors Co. l. 3. 86. a. 1. The Case of Fines 20 If the Bishop or Baron make a Lease for life Bishop Baron and after grant the Reversion in Fée and the Lessée for life die in the life of the Bishop or of the Baron this is a Discontinuance It is otherwise if the Lessée for life survive the Bishop or Baron A thing execuâ—ed unalterable 21 H. recovers 75 l. in B. R. and assignes it by Déed inrolled to Queen El. in satisfaction of a due Debt as Collector of the Fifteens Co. l. 5. p. 2. 9â— Hoes Case provided if the Lord Treasurer and Barons of the Exchequer or any two of them dis-allow the assignment c. and revoke it by writing under their hands that then the assignment shall he void after the Defendant brings Errour and the judgment is affirmed and 5 l. Costs given after by Writ of Prerogative the Land of the Defendant was extended and Goods seised to the value of the Debt And afterwards three Barons revoke the assignment after the death of the Plaintiffe because the Plaintiffe had satisfied the Debt and his executor sues a Scire facias for the 75 l. and 5 l. Costs But it was adjudged that after execution had by the Queen which was the effect of the assignment the Revoâ—ation came too late for he that hath power of Revocation cannot revoke a thing lawfully executed So a Letter of Attorney cannot be revoked after it is executed Vide 7 H. 6. 42. and 7 H. 4. 2. The Debtée is out-lawed the Debtor payes to the King the Out-lawry is reversed In this case the Debtor shall recover against the Debtée So if the Goods of an out-lawed person be sold c. he shall have restitution of the Goods Co. l. 8. 96. b 4. in Mannings Case but upon a Fieri facias c. onely the value Vide 3. E. 3. 51. Recompence in value once lawfully executed shall not be devested albeit the title of the Demandant be afterwards dis-affirmed and evicted Remainder executed 22 If a remainder be once executed Co l. 8. 88 a. 1. in Buckmeres Case in a Writ of Formedon in the Descender he shall never speak of that remainder but the general Writ of Formedon in the Descender shall serve in that case and he shall count of an immediate Gift for a Formedon in remainder he cannot have after the remainder is once executed But if a Lease for life be made the remainder in tail to A. the remainder in tail to B. if A. die without issue in the life of the Tenant for life and B. put to his Formedon in the remainder in his Formedon he ought to make mention of the remainder to A. albeit it was determined and spent for the Demandant in the Formedon in remainder ought to make mention of all the precedent remainders in tail because in that case the remainder was never executed by way of descent 〈◊〉 London suit â—opt before â—â—dgment 23 The Mayor of London may alter the course of Iustice in a cause hanging before the Sheriffes viz. to send for the parties Co. l. 8. 1â—6 a 3 in the Case of the City of London and to stop the suit also if he find the Plaintiffe already satisfied but so he cannot do after judgment and this he may do by a custome there Judgment exâ—cuted irrevocable 24 There is a diversity betwixt a thing Collateral executory Co. l. 8 142. a. 1 Doctor Druries Case and executed for when an erronious judgment is given and after the judgment is reversed by Writ of Error Collateral acts executory are barred thereby as if a man hath judgment in a Quare impedit and hath a Writ to the Bishop and the Bishop refuse here the Plaintiffe upon this Collateral matter of refusal may have a Quare non admisit but if the Defendant reverse the judgment in a Writ of Error and after the Plaintiff in the Quare impedit brings a Quare non admisit the Defendant may plead no such Record Vide 26 E. 3. 75. per Willy and Hill So if A. in execution at the suit of B. upon erronious judgment and after escapes and after the judgment is reversed by Error the action upon the escape is gone for he may plead no such Record because without a Record the action is not maintainable but in that case if the Plaintiffe bring an action of Debt against the Sheriffe or Gaoler upon the escape and hath judgment and execution and after the first judgment is reversed yet this judgment upon that Collateral matter being executed shall remaine in force 7 H. 6. 42. a. Notwithstanding such reversal of the first judgment The Conusée of a Statute Staple in Detinue thereof upon Garnishment recovers by erronious judgment against the Garnishée and hath the Statute delivered unto him 4 H. 7. 11. the Garnishée brings a Writ of Error and the Conusée sues execution upon the Statute and hath it Here albeit the Garnishée reverse the judgment yet this execution shall not be avoided thereby because the Statute is already executed Likewise if a man recover by erronious judgment and present to a Benefice or enter into the perquisite of a Villain and after the judgment is reversed by Error yet because these Collateral acts are executed they shall not be afterwards devested Co. l. 11. 40. a. 3 in Metcalfes Cases 25 Vpon an interloqutory award of a Court Error lieth not till after judgment which is not definitive a Writ of Error lyeth not such as are these quod computer that the shall take an Assise in Waste to inquire of the Wasts in trespasse to inquire of damages In partitione facienda quod partitio fiat In admeasurement quod admensuratio fiet that a man shall be ousted of aide and the like upon which the Defendant shall not bring a Writ of Error but after judgment in
the Plaintiffe himselfe confesse that they committed the Trespass severally there the writ shall abate and so observe the diverstty betwixt the finding of a Iury and the confession of the party because this is his own Act but that the Act of the Iurors F. N. B. 11. c. 62 If there be Lord and Tenant Distresse for more Rent then is due justifiable and the Tenant payes the Lord a greater Rent then is due to him and that voluntarily without cohersion of distresse here the Lord having gained seisin of so much Rent may distraine the Tenant for such surplussage of Rent and the Tenant cannot avoid the Lord in his avowry because of the seisin which the Lord had of so much Rent Howbeit he may have remedy by the writ of Ne injuste vepes grounded upon the Statute of Magna Carta cap. 10. but before that Statute he had no remedy as it séemes 〈◊〉 none by â—â—ance 63 In a writ of Entry sur disseisin F.N.B. 21. c if the original writ wants these words Quam clamat esse Jus haereditatem suam it is error yet if the Tenant admit the writ and pleads to the action and loseth he shall not assigne this default in the writ for error because he hath admitted the writ by his plea So likewise in a writ of detinue of Charters if the Plaintife in his Count declare not the certainty of the land it is a just cause of error yet if the defendant admit the Count good and pleads to the Action and loseth by judgment in a writ of error sued by him he shall not Assigne this default in the Count for error because he hath admitted it for good by his Plea Tamen quaere â—esentment â— an Advowâ— 64 A man may have an Assise of darrein presentment F. N. B. 13. q. l. albeit neither he nor his Ancestors presented to the last avoidance As if Tenant for life or years or in Dower or by the courtesie suffer an usurpation to the Church c. and die he in reversion that is heire to the Ancestor that last presented shall have an Assise of darrein presentment if he be disturbed But if a man presents and after grants the Advowson for life to another who suffers an usurpation or two or thrée usurpations and dies In this Case at the next avoidance he in the reversion shall not have an Assise of darrein presentment if he be disturbed to present because the Lessée was in by his own Act Howbeit his heire may have it but that is by the provision of West 2. cap. 5. So likewise if a man present to an Advowson and after let if for term of years and then the Church becomes void and the Tenant for yeares presents and after the Incumbent dies and the Lessor presents and is disturbed in this Case it séemes the Lessor shall not have an Assise of darrein presentment causa quà suprà And the termer for years presented in his own right â—â—â—ative 65 If a man hath a Chappel or Chantery Donative F.N.B. 35. e. and he presents once to the Ordinary his Clerke to that Chappel or Chantery In this Case he shall never make Collation afterwards but he ought to present to the Bishop and if he present not within six moneths the Ordinary shall have advantage of the lapss 〈◊〉 utrum 66 If a Parson receive Rent or fealty of the Tenant for the land aliened by his Predecessor he shall not have a juris utrum during his life F.N.B. 50. e. but his Successor may have it Recognisance â—â—charged 67 If the Recognisor enfeoffe a stranger of one parcel of the land charged and likewise enfeoffe the Recognisée of another parcel thereof F.N.B. 104. n. 105. e. and afterwards the Recognisée sues execution against the Recognisor and the other feoffée In this Case the feoffée shall have an Audita quaerela against the Recognisée and thereby discharge his land because the Recognisée hath discharged his parcel of the land by his owne Act. â— warrantia â—â— and â—â—cher 68 If a man be impleaded in any Action F.N.B. 134. i. in which he may vouch the party against whom he hath a warranty in such Case he shall not have a warrantia cartae against him but he ought to vouch him to warranty and if he vouch him not in such Action he shall never after have any action of warrantia cartae against him to maintain his title F. N B. 142. k. 69 If there Lord and Tenant and the Tenant make feofment by collusion and the Lord accept the services of the feoffée In this Case Wardship Collusion the Lord shall not afterwards have the wardship of the Tenants heir nor averre the Collusion F. N. B. 144. 0. 70 If a man be intitled to have a writ of Escheate Acceptance barres Escheate and he accepts the homage of the Tenant in this Case he shall not have a writ of Escheate against him afterwards because he hath accepted him for his Tenant So also it séemes reasonable if he accept fealty of him that in such Case also he shall not have a writ of Escheate Howbeit it is not so of Rent because the former are solemne services which the law respects more then Rent Vide suprà Max. 91. Pl. 19. Pl. Co. 66. a. 2. in Dive and Maninghams Case 71 When a man demurres he is to do it generally Pleading anâ— special demuâ— and not upon any special matter for otherwise he is tied up to that special matter and cannot take advantage of any other error or default in the declaration or other pleading And therefore in Dive and Maninghams Case in the Commentaries where the Defendant concludes unde ex quo scriptum praedictum non fuit factum sub tale conditione quali per Statutum fieri deberet petit judicium Here this special conclusion hath so straightned the Defendant that if the obligation were void for any other cause then what is mentioned in the conclusion the Defendant could not have benefit thereof by Order of Law So also in 34 H. 6. which is there also quoted where one deviseth a reversion of a Tenant for life to another in fée per nomen omnium terrarum tenementorum quae in manibus le Devisor ad tunc fuerunt and the heire of the Devisée brings an Action of waste reciting in his count the special grant ut suprà And the Defendant saith ex quo pro narrationem praedictam apparet that the Devisor did not devise the reversion but by the words ut suprà and the Tenant for life then held the tenements and that nothing of the reversion by the general words passeth to the Devisée and so he demands judgement c. And thereupon the Plaintiffe also demurred And there it was held that in as much as the Defendant had demurred in a point in special and hath rehersed the
of debt afterwards because both actions charge the person The like Law is of an Assise and of a writ of entry in nature of an Assise and the like â—â—der of 〈◊〉 2 If a feofment be made of a wood upon Condition to pay a certaine Rent the Demand ought to be made at the Wood-gate Co. ib. 202. a. 1 or at some high way tending through the Wood or other most notorious place there And if one place be as notorious as another the feoffor hath election to demand it at which he will and albeit the feoffée be in some other part of the wood ready to pay the Rent yet that shall not avail him sic de similibus Co. ib. 210. a. 1 Litt. §. 339. 3 If upon a Mortgage the money be limited to be payd to the feoffée Payment of Mortgage money and before the day of payment he make his Executors and die in this Case the Mortgageor shall pay it to the Executors albeit they be not named or if it be limited to be paid to the Mortgagee or his heirs then if he die it ought to be paid to his heire because named but if to his heires or executors the Mortgageor hath election to pay it to either So likewise if the Condition be to pay it to the feoffée his heirs or assignes and the feoffée make feofment over it is in the election of the feoffor to pay the money to the first or second feoffée at his pleasure and so if the first feoffée die the feoffor may pay the money either to the heire of the first feoffée or to the second feoffée at his election for the Law will not enforce the feoffor to take knowledge of the second feofment nor of the validity thereof whether the same be effectual or not but at his pleasure Litt. §. 341. Co. ib. 211. b. 2 4 If feofment in fée be made reserving Rent An Assâ—se oâ— entry and for default of payment a re-entry this is a Rent-secke and in this Case if the feoffor be once seised of the Rent which after is denied him it is at his election whether he will have an Assise of Novel disseisin for the rent arrere or enter for the Condition broken but after a recovery in Assise he cannot have recourse to his re-entry because by bringing the Assise he affirmes the continuance of the Estate Litt. §. 454. Co. ib. 268. b. 1. 312. a. 1. 5 Before the Statute of 21 H. 8. 19. Avowry at laâ— or by Seat the disseisée might compel the Lord to avow upon him but since that Statute if the Lord distraine upon any of the Lands and Tenements holden c. he may avow c. upon the same Lands c. as in Lands c. within his fée or Seigniory c. without naming of any person certaine and without making avowry upon a person certaine and therefore at this day the Lord hath his Election either to avow according to the Common Law or by force of the said Statute as by the word may in the same Statute is imported Littl. § 478. Co. ib. 278. b. 3 6 If a man be disseised by an Infant who aliens in fée Several reâ—dies by acâ— or entry and the alienée dies seised and his heire enters the disseisor being still within age In this Case it is in the Election of the Dissefsor to have a writ of dum fuit infra aetatem or a writ of right against the alienée or otherwise he may make his entry into the land without any suit or recovery And so it is to be observed that many times the Law doth give a man several remedies and of several kinds as in this Case by action and by entry by action either by writ of right or dum fuit infra aetatem Littl. §. 496 497 478. Co. Inst p. 1. 286. b. 1. 7 When a man hath several remedies for one of the same thing A remedy 〈◊〉 remaine aâ— a release be it real personal or mixt albeit he releaseth one of his remedies yet he may use the other So where a man may enter into lands and also have an Action real given him by the Law to recover them In this Case if the Demandant release to the Tenant all manner of actions real yet the Demandants entry is not thereby taken away because nothing is released but the Action And so it is also of thnigs personal as if a man wrongfully takes my goods albeit I release to him all actions personals yet I may by Law take my goods out of his possession In like manner if I have any cause to have a writ of detinue of my goods against another here albeit I release unto him all Actions personals yet I may by Law take my goods out of his custody because no right of the goods is released but onely the Action â—lent diâ— or a◠〈◊〉 8 If one bold of me by Rent-service which is a service in grosse Litt. § 588 589. and not by reason of my Mannor and another that hath no right claimes the Rent and receives it of my Tenant by cohersion of distresse or otherwise and disseiseth me by taking the Rent albeit such a disseisor die so seised in taking the Rent yet after his death it is at my election either to distraine for the Rent or taking him to be a disseisor to have an Assise against the pernor of the profits â—ine or aâ— 9 If an Abbot Bishop or Husband in the right of his Wife Co. ib. 3 27. b. 2 seised of a Rent or any other Inheritance that lies in grant had aliened it was in the Election of the Successor or Wife after the death of her Husband to claime the Rent c. or to bring an Action for such alienation did not worke a discontinuance and so it is also by construction of the Statute of West 2. cap. 1. in Case of Tenant in Taile â—tes waivâ— by Feme â—ert 10 If Lands be given to the Husband and Wife and their heirs Co. ib. 357. a. â— the Husband makes a feofment in fée the feoffée giveth the land to the Husband and Wife and the heirs of their two bodies the Husband dieth In this Case the wife may elect which of the Estate she will for both Estates are waivable and her time of Election and power of waiver accrewed unto her first after the decease of her Husband â—echer of 〈◊〉 heires 11 Inderaigning a warranty against heires in Gavelkind Co. ib. 376. a. 4 the eldest may be vouched as heire to the warranty and the other sonnes also in respect of the Inheritance descended unto them So likewise the heire at the Common Law and the heire of the part of the mother may be both vouched yet in both these Cases the heire at the Common Law may be vouched alone at the election of the Tenant â—nveyance â—y several 〈◊〉 12
supra Re-disseisin against the feoffee 3. A re-disseisin doth lye against the Re-disseisor Co. ibid. 154. b. 2. but likewise against his Feoffee for otherwise the Re-disseisor might prevent the Plaintiff of his Re-disseisin and so take advantage of his owne wrong Challenge to the Array 4. If the Plaintiff or Defendant have an Action of debt against the Sheriff this is a good cause of challenge to the Array Co. ibid. 159. a. 2. but albeit the Sheriff hath an Action of Debt against either party this is no good cause of challenge for the failer of paying a debt to the Sheriff is a wrong and against Law and if either party might challenge for such cause he should take advantage of his own wrong Cattell disâ—ained out of 〈◊〉 fee 5. If the Lord come to distraine Cattell Co. ibid. 161. a. 2. Co. L. 9. 22. a. 3 in the cases of Avowry 44 E. 3. 20. per Thorpe which he seeth then within his fee and the Tenant or any other in his behalfe to prevent the Lord to distrain drive the Cattell out of the Lords fee into some other place yet may the Lord freshly follow and distraine the Cattell and the Tenant cannot make rescous albeit the place in which the Distress is taken is out of his fee for if by such a shift the Tenant might prevent the Lord of his Distress he should take advantage of his own wrong And therefore in such case in Iudgment of Law the Distresse is taken within his fee and so shall the Writ of Rescous suppose in case the Cattell be rescued but it is otherwise of cattell to be distrained for Damage-feasant for they must be Damage-feasant at the time of the Distress Condition abâ—â—â—re Bond not valid 6. If a man make a Feoffment in fee upon Condition Co. ibid. 206. b. 2. that the Feoffee shall re-enfeoff him before such a day and before that day the Feoffor disseise the Feoffee and hold him out by force untill the day be past In this case the estate of the Feoffee is absolute for the Feoffor is the cause wherefore the condition cannot be performed and therefore shall never take advantage for the non-performance thereof So it is also if A. be bound to B. that J. S. shall marry J. G. before such a day and before the day B. marry with J. he shall never take advantage of the Bond for that he himself is the mean that the Condition could not be performed Obligation 〈◊〉 7. If a man be bound to A. in an Obligation to enfeoff B. who is a meere stranger before a day Co. ibid. 209. a. 2. the Obligor doth offer to enfeoff B. and he refuseth In this case the Obligation is forfeite for the Obligor hath taken upon him to enfeoff him and his refusall cannot satisfie the Condition but if the Feoffment had been by the condition to be made to the Obligee or to any other for his benefit or behoof a tender and refusall shall save the Bond because he himselfe upon the matter is the cause wherefore the Condition could not be performed and therefore shall not take advantage thereof to give himselfe cause of Action thereby Co. Inst pars 1. 210. b. 3. Litt. S. 340. 8. If Feoffment be made upon Condition to pay the Feoffee twenty pounds upon a certaine day In this case Tender excused the Feoffor is bound to find out the Feoffee and to make tender thereof unto him if he be in England but if he be out of the Land he is not bound to seek him nor to go out of the Realme unto him Neither shall the Feoffee take advantage of his own absence but the Feoffor shall enter into the Land as if he had duly tendred it according to the Condition because the Feoffee himselfe was the cause that the Feoffor could not make due tender at the day limited for the payment thereof Litt. S. 355 356. Co. ibid. 220. b. 4. â— 9. If Feoffment be made upon condition to enfeoff another Disability or to make a gift in tail to another c. And the Feoffee before the performance of the Condition enfeoffs a stranger or makes a Lease for terme of life In this case his Feoffee or Lessee shall not have the Land for then he should take advantage of his own wrong but the Feoffor and his Heires may enter because the Feoffee hath disabled himselfe to performe the Condition So it is also if he had made but a Lease for years for the estate ought to be in the same plight at the time of the re-enfeoffment that it was in at the time when he took the estate Litt. S. 383. Co. ibid. 236. a. 4. 10. If Lands be devised to be sold by his Executor in this case Laches the Executor is bound by the Law to sell them as soone as he can for otherwise he shall take advantage of his own Laches Co. ibid. 238. b. 2. 11. If there be Grand-father Father and Son and the Son disseiseth one and enfeoffeth the Grand-father who dyeth seised Grandfather Father and Son and the Land descendeth to the Father Now is the Entry of the Disseissee taken away but if the Father dye seised and the Land descend to the Son In this case is the Entry of the Disseisee revived and he may enter upon the Son who shall take no advantage of the descent because he did the wrong unto the Disseisee And the Law were the same if the Land had not descended to the Sonne but the Sonne had been in by purchase as by Feoffment in fee in tail or for life from his Father yet may the Disseissee enter upon him for he shall in no kind take advantage of his own wrong Litt. S. 395. Co. ibid 242. a. 1. 12. If a Disseisor enfeoff his Father in fee The like and the Father dye seised whereby the Land descends to the Disseisor as his Son and Heire c. In this case the Disseisee may well enter upon the Disseisor notwithstanding the descent because he being particeps criminis shall take no advantage of his own wrong for albeit a descent be cast and the Entry of the Disseisee taken away yet if the Disseisor cometh to the Land againe either by descent or purchase of any estate of Free-hold the Disseisee may enter upon him or have his Assise against him as if no descent or mean conveyance had been causa qua supra Co. ibid. 247. a. 3. in Beverleys case Co. l. 4. 125. a. 3. 13. The heir of one that is non compos mentis as an Ideot A Drunkard Lunatique c. shall after his Ancestors death avoid a descent but neither a drunkard himselfe nor his heir shall avoid it for albeit some are of such a beastly humor to be in a manner alwayes in that condition yet neither he nor his heire shall thereby avoid a
this amounts to an Attornement in Law yet without notice given of this Feoffment to the Lessee the Feoffee shall not make demand of the Rent reserved upon the Lease by Entry for the Condition broken for although he may in that case distraine or have an Action of Debt for the Rent or an Action of Waste because in his Avowry or Count he may alledge the Feoffment whereof the Lessee might then have notice yet he cannot demand the rent upon the Condition without notice for then it would not be possible for the Lessee to know to whom he should pay the rent to save his terme nor to have notice of the Feoffment in such case before he should have forfeited his terme So if the Lessor bargaine and sell the Reversion by Deed indented and inrolled the Bargainee albeit here needs no Atturnement shall never take benefit of a Condition upon demand of a rent without giving notice to the Lessee of the bargaine and sale for although the bargaine and sale by Deed indented and inrolled be upon Record yet for as much as it may be inrolled in so many Courts in secret manner the Law will not force all the Farmers of England who have Conditionall Leases to make every six moneths such infinite search to save their termes but the Law in such cases for the preservation of the Interest and Terme of the Lessee compells the Bargainee who is to take benefit of the Condition to give notice thereof to the Lessee who is a meer stranger thereunto Per Popham and not denyed by the rest of the Iustices Co. l. 7. 4. b. 3. in Bulwâ—rs caâ—e 12. Deceit Contrivance of the passages in deceit need not to be alleadged specially for it sufficeth in such cases to say maliciose deceptive machinatus fuit c. without alleadging particulars because such passages are so secret and uncertaine that they cannot be known or tryed Co. l 7. 6. a. 3. in Sendâ—s case 13. Robbery Robbery of an house by day or by night is neither within the letter nor meaning of the Statute of Winchester 13 E. 1. because when a Robbery is done in an house it is so secretly done that the Hundred cannot take notice thereof It is otherwise of Robbery upon the High-way for that is openly done and therefore the Hundred may of themselves take notice thereof Co. l. 8. 602. 1. in Beechers case 14. If the Defendant or Tenant plead a false Deed made to him Deniall of a Deed sine amerciament or deny his owne Deed and it be found against him or if relicta verificatione cognovit actionem he shall be fined for his falshood Quia certi debemus esse de proprio facto but if one deny the Deed of his Ancestor or plead a Deed made to his Ancestor and it is found against him yet he shall not be fined but onely amercied Quia de alieno facto So if one deny a Recovery or other Record whereunto he is party he shall not be fined for it is not his act but the Act of the Court and he doth not deny the Record absolutely but non habetur tale recordum The pedigree of the Donee not named 15. If a man brings a Formedon in Reverter or Remainder as heire Co. l. 8. 88. a. 3. in Buckmeres case Pl. Co. 56 a. 1. omission of an eldest Son which survived his Father or the like in the pedigree on the part of the Donor or of him in Remainder shall abate the Writ but on the part of the Donee albeit the Donee had many issues in the lineall descent inheritable to the estate taile and which held the Land the Demandant need not name any of the Issues in the Clause Et quae post mortem but he shall say Et quae post mortem le Donee ad ipsum reverti debet eo quod le Donee obiit without Issue because the Demandant is a stranger to the pedigree of the Donee and therefore by intendment knoweth it not An uncertaine Plea good 16. In debt against an Administratrix Co. l. 9. 110. a. 3. in Meriel Treshams case the Defendant pleads one Recognizance of eight hundred pounds and another of one thousand pounds the Plaintiff replies that the eight hundred pounds Recognizance was for the payment of 400 l. which is paid that the 1000 l. Recognizance was for the performance of Covenants which are not broken yet both kept on foot uncancelled by Covin of the Defendant In this case the replication of the Plaintiff is good notwithstanding the uncertainty for albeit he neither pleads a Defeasance for the payment of the foure hundred pounds nor what Covenants in particular they were for which the one thousand pounds Recognizance was entred into yet the replication is good because the Creditor is a stranger to them and hath no meanes by Law to know the particular certainties A Deed not shewed 17. He that claimes a thing or any Right or Interest out of it Co. l. 10. 93. b. 4. in Doctor Leyfeilds case or justifies in right of the Grantee in such cases the first Grant ought to be produced As the second Grantee of a Rent-charge shall shew the first Grant and so shall his Bayliffs c. but where a man is a stranger to a Deed and claimes nothing contained in the Grant nor any thing out of it nor doth any thing in the right of the Grantee as Bayliff or Servant there he may plead the Patent or Deed without shewing it Damages where counted for and where not 18. There is a Diversity betwixt personall Actions and reall Actions Co. l. 10. 117. a. 2. in Robert Pilfords case wherein damages are to be recovered for in personall Actions the Plaintiff shall count for damages because he may know in certaine what damage he hath suffered before the Writ purchased and those he shall onely recover but in reall Actions the Demandant shall never count for damages because he is to recover damages hanging the Writ which being uncertaine he shall not count for them but shall have them assessed after by Writ of Inquire as in a Writ of Entry sur Disseisin or in the nature of Assize as it was held in 33 H. 6. 47. a. Parson impersâ—â—ee 19. When a thing is beyond time of memory Co. l. 11 10. a. 2. Priddle and Nappers case a man is not compellable to prove the Commencement thereof as where a Prior and his Predecessors have been Parsons Imparsonees of a Church time out of mind proofe of the Commencement thereof and whether it were by appropriation or union is dispensed withall because by intendment no such proof can be made Action of Account 20. Fitz. N. B. 117. c. c. If a man having cause to bring an Action of Account against one as his Bayliff or Receivor makes his Executors and dye In this case his Executors shall have that Action for that
and put to a right because he that hath the estate in him cannot be put to his Action Entry or Claime for that he hath already that which Action Entry or Claime can vest in him or give him And therefore in vaine was the bargaine and sale and Fine when they could not alter the estates of them in Remainder Co. l. 10. 90. a. 4. in Doctor Leyfields case 19. Colour shall not be given in any Action Colour to the Plaintiff where the Plea goes in bar of the right for it were in vaine to give colour of right and to bar it after As in Assize or Writ of Entry in nature of an Assize if collaterall Warranty be pleaded and the Defendant relye upon it or if an Estoppell be pleaded or Fine levyed with Proclamations c. there is no need of any colour to be given because the Plaintiff is barred albeit he had right So it is also where the Plaintiff conveys the title unto him by Letters Patents of the King or by Act of Parliament for that bars the right c. it is otherwise where the Possession is onely barred c. vide pl. ibid. P. C. 8. b. 3. in Fogassaes case 20. When a man is not bound to doe a thing Not tyed to answer in a Plea concerning it he need not make answer thereunto as in Fogassaes case exception was taken for that the suerty was not named that was bound for answering the custome and it was said that because the Statute speaks of no surety and the agreement might be good without surety it had been in vain to speak of it or to make answer thereunto and thereupon that exception quasht Death not traversable 21. In a Formedon in Reverter or Remainder P. C. 32. b. 1. Colthrist versus Bevishin a man shall not shew the death of the particular Tenant because it is but a Conveyance and not traversable nor issuable So in Colthrist and Bevishins case the Defendant shall not shew the deaths of Henry and Elenor Bevishin because the Plaintiff Colthrist should have traversed it and said that they were alive he should confesse that he had not title to the Land before their lives and would have destroyed his own Action And therefore in regard their deaths were not traversable it was in vaine for the Defendant to shew it by consequent he shall not be compelled to do it Covin 22. A man need not shew any speciall cause of Covin when it is apparent P. C. 49. b. 2. in Wimbish and Talboies case Ibid. 55. b. 3. as when Feme Tenant in tail for her Ioynture by Covin appeares in a Formedon in Remainder brought against her by one that pretends title in Remainder and she appeares the first day without Essoine View c. and Iudgement is had against her by nihil dicit here the Covin is apparent and need not be specially shewed for it is in vaine to shew that which is apparent of it selfe So it is a vaine thing to aver that an Horse bought which wants eyes is blind when it is apparent that he must be blind when he wants eyes If the Tenant enfeoff his Son within age by collusion the Lord shall seise him for his Ward and shall not be forced to shew this Collusion in speciall causa qua supra Pretenced titles 23. In an Action upon the Statute of 32 H. 8. 9. against buying pretenced titles P. C. 81. a. 4. in Partridges case against Strange and Croker the Plaintiff need not aver the title or right to be pretenced because the Statute declares and intends the title to be pretenced when neither his Ancestors nor those from whom he claimes have injoyed the Land in Possession Reversion or Remainder nor received the rents or profits thereof for a yeare before the purchase thereof and therefore because it were in vain for him to aver the pretenced title because the Statute makes it so he shall not doe it 153. Non licet quod dispendio licet Surrenders 1. M. Leases for twenty one years to S. and is bound to make a new Lease to S. upon surrender of the old Co. l. 5. 21. a. 4. in Sir Antohny Maines case M. Leases to another for eighty years by Fine and S. brings an Action of debt upon the Bond In this case albeit S. may surrender and ought to do the first act viz. to surrender yet M. hath forfeited his Bond although S. never surrender for S. shall not now be forced to surrender because if he should surrender M. cannot now make him a new Lease which w s the effect and end of the Surrender for by such Surrender S. will lose his old terme without possibility of having a new one And Non licet quod dispendio licet Parson not to â—esigne 2. I. Parson of the Church of G. was bound in an Obligation to the Prior of E. to resigne his Church to the Prior for a certaine Pension Co. l. 5. 21. b. 1. ibid. 14 H. 4. 19. a. as it should be agreed the Parson and Prior agree for a Pension of C. s. yet the Parson refused to resigne And 14 H. 4. 19. a. it was the opinion of all the Court that albeit they were agreed of the Pension yet the Parson was not bound to resigne untill he might be sure of his Pension and that could not be without Deed And therefore in such case the Parson was not bound to resigne untill the Prior should â—ender a Deed of the Pension whereby he might be sure 〈◊〉 it 154. It favoreth Truth Faith and Certainty Vide Max. 41. â—9 Co. Inst pars 1. 139. a. 3. 1. Regularly upon a nonsuit the Demandant or Plaintiff may againe commence an action of like nature c. Howbeit in an Attaint Nonsuit in Attaint peremptoria if the Plaintiff after apparance be nonsuit it is peremtorie and he is thereby barred from ever bringing an attaint against the first iury againe and the reason is for the faith that the Law gives to the verdict and for the terrible and fearefull judgment that should be given against the first jury if they should be convicted and therefore upon the nonsuit the Plaintiff shall be imprisoned and the pledges amercied Vide infra 11. Co. ibid 227. b. 3. Co. ibid b. 4. L. S. 366. 2. A speciall verdict or at large may be given in any action A speciall verdict and upon any issue be the issue generall or speciall because the truth of the cases may be the better discovered and discussed and justice and right donâ— so if a man seised of lands in fee le ts them for life without Deed rendring rent upon condition of re-entry upon non-payment of the rent whereupon if the lessor enter and the lessee bring an assise of Novel Disseisin the jurors may find the matter at large and the Iudges ought to adjudge it for the tenant albeit
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
of a clause in the Roll which were expressed in the Writ and Returne Hob. 128. Pie and Coke 82. Two Informations exhibited the same day against the same party for one and the same offence Iudgement shall be given for neither for the uncertainty Vide Hob. ibid. for an Inrolment of a Deed 129. Wilton for an Amerciament in a Leet 163. Impersonalitas non concludit nec ligat Co. Inst 1. 352. b. 1. Pl. Co. 398. a. 1. 1. An Estoppell shall not be spoken impersonally as to say ut dicitur An Estoppell or the like but it ought to be a precise affirmation of that which maketh the Estoppell neither yet doth a recitall conclude any thing because it is no direct affirmation The Earle of Leycesters case in Plowd 164. Generale nihil certi implicat Generall words 1. Co. Inst 1. 33. a. 3. Dodingtons case If the King or a common person grant omnia illa messuagia in tenura l. B. scituate in W. whereas in truth they lye in D. In this case because the grant is generall and is restrained to a certaine Towne the Patentee or Grantee shall not have any Lands out of that Towne unto which the generalty of the Grant refers Slander 2. If one saith to another that he is perjured Co. l. 4. 15. a 4. Stanhop and Bilths case or that he hath forsworn himselfe in such a Court such words of slander are actionable for by these words it appeares that he hath forsworne himselfe in a judiciall proceeding but if one say to another that he hath a Mannor and hath gotten it by swearing and forswearing these words will beare no Action because they are too generall and words which shall charge any with an Action in which damages shall be recovered ought to have convenient certainty So if one call another Villain Rogue Varlet or the like or tels him that he is forsworn such words are not actionable because they are accounted words of heate and passion and benignior sententia in verbis generalibus seu dubijs est praeferenda for Actions of slander shall not be maintained by any strained construction or argument because they are more frequent now-a-dayes then in times past Schisme 3. Co. l. 5. 58. a. 4. Spâ—cots case It is not a sufficient allegation for the Bishop who refuseth to present to a benefice to say that the Presentee is a Schismatick in generall but he ought to accuse him of some Schisme or heresie in certaine to the end the Court may consult with Divines to know whether if be Schisme or no and thereupon make Iudgement whether the originall cause of refusall be just or no. Arrests 4. When the Sheriff Bayliffs or Serjeants arrest one C. l. 6. 54. a. 4. The Countess of Rutlands case it is not sufficient for them to say in generall words I arrest you but they ought upon the arrest to shew at whose Suit out of what Court for what cause they do it and when the Processe is returnable to the end that if it be upon an Execution he may pay it and free his person from Imprisonment and if upon a meane Processe either to agree with the party or to put in bail according to Law Errors 5. In Assignment of Errors a generall Assignment is not good F. N. B. 20. h. as to say in omnibus erratum est for that expresseth no certainty but the Assignment ought to be speciall and certaine as to say in hoc erratum est c. and to shew the certainty of the things and againe to say in hoc erratum est and to shew another thing sic de singulis in which he will assigne Errors Arbitrement 6. The submission to an award betwixt A. and B. was generall Co. l. 8 98. a. 2. Baspoles case viz. of all Actions Demands c. And the Award was that A. should pay B. twenty pounds And in this case it was objected that it did not appeare that the matter of the Arbitrement was the matter onely that was betwixt them because the submission was generall of all Actions Demands c. And therefore if the Arbitrement were not made of all the matters in controversie the award was void Howbeit the award was adjudged good because when the submission is generall of all Actions Demands c. Generale nihil certi Implicat and therefore it stands well with the generalty of the words that there was but one cause depending in controversie betwixt them 165. Dolosus versatur in generalibus Co. l. 3. 80. b. 4. Twines case 1. P. being indebted to T. in foure hundred pounds A fraudulent Deed. and to C. in two hundred pounds C. brings an Action of debt P. possessed of goods to the value of three hundred pounds makes a gift to T. in part of payment by the name of all his Goods and Chattells but continues the Pessession and imployes them to his own use to prevent the execution of a Fieri facias at the Suit of C. Here one of the badges of Fraud alleadged in that Grant was for that it was generall viz. of all his Goods c. Co. l. 5. 57. b. 4. Specots case 2. Schismatiquâ— It is not a sufficient allegation for a Bishop upon refusall of a Clerk to say in generall that he is a Schismatique Heritique or the like but he ought to accuse him of some crime or Error in particular because if such generall allegation shall be admitted Bishops at this day might at their pleasure deprive all Patrons of their Presentations Vide 164. 3. for Dolosus versatur c. 166. Variance Co. Inst 1. 131. a. 4. 1. A materiall Variance between a Protection Protection and the Record doth avoid it Co. ibid. 53. a. 3. 183. a. 1. 2. If the Tenant do or suffer waste to be done in Houses Waste yet if he repaire them before any Action brought there lyeth no Action of Waste against him Howbeit he cannot in such case plead Non wast fait for by reason of the Variance between the Evidence and such a Plea the Issue wil be found against him but he must plead the speciall matter according to the truth of his case Co. ibid. 282. b. 4. 3. In Battery Not guilty is a good Issue Battery where the Defendant committed no Battery at all but regularly at the common Law if the Defendant hath cause of Iustification or excuse then can he not plead not guilty for then upon the Evidence it shall be found against him because by such a Plea he confesseth the Battery and upon the Issue cannot justifie it but he must plead the speciall matter and confesse and justifie the Battery for otherwise the Variance of the Evidence from his Plea will cause the Iury to find him guilty The like Law is in many other cases and therefore it is a learning necessary to be
known because the losse of many causes dependeth thereupon As in Battery if the Defendant can justifie the same to be done of the Plaintiffs own assault he must plead it specially and must not plead the generall Issue Co. ibid. 4. In Trespasse of breaking his Close Trespasse upon not guilty he cannot give in Evidence that the Beasts came thorough the Plaintiffs Fence which he ought to keep nor upon the generall Issue justifie by reason of a Rent-charge Common or the like Co. ibid. 283. a. 1. 5. In Detinue the Defendant pleadeth non detinet Detinue in this case he cannot give in Evidence that the goods were pawned to him for money and that it is not paid but he ought to plead it Howbeit he may give in Evidence a gift from the Plaintiff for that proveth he detaineth not the Plaintiffs goods Co. ibid. 6. In Waste upon the Plea non fecit vastum Waste he may give in Evidence any thing that proveth it no Waste as by tempest lightning enemies or the like but he cannot give in Evidence justifiable Waste as to repaire the House or the like for that will cause a Variance between the Evidence and the Issue Co. ibid. l. 5. 119. Whelpdales case 7. If two men be bound in a Bond joyntly and the one is sued alone Joynt Obligees he may plead this matter in Abatement of the Writ but he cannot plead non est factum for it is his Deed though it be not his sole Deed See Whelpdales case where a man may safely plead non est factum where not and former books that treat of that matter well reconciled Co. Inst 1. 303. b. 4. See also more of this matter Co. Inst ubi supra c. And here note that in matter of pleading to prevent variance each party must be very circumspect in the ordering thereof least his Replication depart from his Count or his Rejoynder from his Bar Et sic de cetaeris Likewise what is departure in pleading and what not See Co. Inst 1. 304. per totam paginam pl. Co. 105. b. Variance inter Writ and Count. 8. Co. l. 5. 37. a. 4. Bishops case Co. l. 8. 163. a Blackamores case In an Action upon the case Variance was found betwixt the Writ and the Count in the Defendants name for in the Count he was named George and in the Writ Christopher and after Iudgement for the Plaintiff in the Common Place upon a Writ of Error in the K. B. the Iudgement was reversed by reason of that variance for the Statute of 18 Eliz. 14. gives remedy where there is no Originall Writ but not where there is a Writ and a materiall variance betwixt the Writ and Count c. Variance inter Originall and Judgement 9. There ought not to be any variance betwixt the Originall Writ Co. l. 9. 74. a. 1. Doctor Husseyes case and the Iudgement given thereupon but the Iudgement ought to be conformable to the Originall because it is grounded thereupon And therefore in Ravishment of Ward if the Action be grounded upon the Statute of Westm 2. 35. according to the forme of the Writ there prescribed the Plaintiff cannot have Iudgement at the Common Law but the Iudgement ought to be conformable and pursuant to the Originall Writ which is the Foundation and ground of the Iudgement Vide plus ubi supra Variance of names 10. The Dean and Cannons of Windsor Co. l. 10. 124. b. 2. Linne Regis case Winâ—ates case 29. 30. Eliz. Hob. 124. were incorporate by the Statute of 22 E. 4. by this name The Dean and Cannons of the Kings free Chappell c. And in the Raigne of P. and M. they made a Lease of certain Lands by this name The Dean and Cannons of the King and Queens free Chappell c. And in an Ejectione firmae brought by Wingate against Hall M. 29. and 30. Eliz. the Lease for that variance was adjudged void The like 11. Merton Colledge in Oxford Co. ibid. 125 a. 2. was incorporate by Act of Parliament anno 1. M. Per nomen Guardiani Scholarium Domus sive Collegii Scholarium de Merton c. And they made a Lease per nomen domus sive Collegii de Merton omitting Scholarium Merton Colledge case in B. R. And in an Ejectione firmae H. 30. Eliz. This omission was agreed to be a variance in substance to quash the Lease for the sayd Act hath Baptized the Colledge by the name of the Colledge of the Schollars of Merton and they made the lease by the name of the Colledge of Merton himselfe who in truth was the Founder Aud quer 12. In an Audita querela F. N. B. 104. 5. variance betwixt the Writ and the Record shall cause the Writ to abate Variance inter brief and â—â—â—nt 13. In Debt upon the Statute of 32 H. 8. 9. Pl. Co. 79 b. 4. Partridges case made against buying pretenced Titles c. That Statute was recited in the Count to commence the 28 of Aprill anno 32 H. 8. whereas it did begin the 28 of Aprill anno 31 H. 8. and was continued by prorogations untill 32 H. 8. and for that variance the Count was adjudged defective The like 14. In 20 H. 6. A man brings a Writ of Forger of false Weights Pl. ibid. 84. b. 3. and the Writ was Diversa facta munimenta c. and he counts but of Deed only and Per totam curiam for that variance the Writ shall abate Writ and Count. 15. In a Writ De consuetudinibus servitiis if the Demandant say F. N B. 15 1. 7 De reddibus arreragiis c. These words prove that the Demandant himselfe was seised of the Services and then if he count in such a Writ of the Seisin of his Ancestor and not of his own Seisin for that variance the Writ shall abate Dyer 150. 85. 3 4. P.M. 16. The Corporation of Eaton Colledge was erected by H. 6. A void lease Per nomen praepositi Collegii Regalis Collegij beatae Mariae de Eaton c. And in the time of E. 6. a Lease was made by Sir Thomas Smith and the Fellowes Per nomen Praepositi sociorum Collegii Regalis de Eaton and adjudged void for the variance Dyer 191. 22. 2 3 Eliz. 17. The relict of a Copyholder pleaded a Custome Custome to have the Copyhold during her life after her husbands death and upon the evidence the custome appeared to be only Durante viduitate and thereupon the Defendant demurring to the Evidence Iudgement was given against her Dyer 219. 11. 5. Eliz. 18. A man declares for the debt of 20 l. upon the sale of Wood Debt and gives in evidence but for twenty Markes it shall be found for the Defendant as if there had been variance in the things
may aver him to be tenant of the land as the writ supposeth for the benefit of his damages which otherwise he should lose or otherwise he may pray judgement and enter at his election but where no damages are to be recovered as in a Formedon in descender and the like there he cannot averr him tenant but pray his judgement and enter for thereby he hath the effect of his fute and Frustra fit per plura c. And therefore if tenant in tail discontinue Littl. §. 691. and his issue bring a Formedon against the discontinuée and the discontinuée pleads that he is not tenant but utterly disclaims in the tenancy of the land In this case the judgement shall be that the tenant shall go without day and after such judgement the issue may enter into the land notwithstanding the discontinuance One patent better than two 2 When the King was to grant a reversion Co. l. 8. 167. a. 1. in the Earl of Cumberlands case the antient form was to recite the first grant and then to grant the reversion and besides by another patent to grant the lands in possession by which way a good estate passed to the patentee Howbeit to pass these several grants in one and the same patent is as good and effectual in Law as to pass them in several patents and frustra fit per plura c. Seisure Office 3 If the Office of the Marshalsie be forfeit Co. l. 9. 95. b. 3. in Sir Geo. Reynolds case the King shall be in possession thereof by seisure without office so it is also of the Temporalties of a Bishop or of a Prior Alien because the certainty of these appear in the Exchequer frustra fit c. In some cases also the King shall be in possession by office without seisure as of lands tenements offices c. which are local and whereof continual profit may be taken as where it is found by office that a condition is broken or that one attainted of felony is seised of land c. or in case of the ward of land c. In all these cases the King is in possession by office without any seisure 2 H. 6. 1. b. Finch fol. 54. 4 One that is in Court ready to joyn with the defendant may do it without process Vouchee as the vouchee the lessor of the plaintif being prayed in aid of when the defendant in a replevin avows upon him Or the Mesne when the Lord paramount avows upon him but joynder in aid cannot be by Attorney without process Co. l. 5. 21. Sir Anthony Maines case 5 M. leases for 21 years unto S. and covenants to make a new lease to S. upon the surrender of the old Covenant to surrender M. leases to another by fine for 8. years and hereupon S. without surrender of the old lease brings an action of Covenant against M. In this case the covenant is broken albeit S. do not surrender which ought to be the first act because it were in vain for him to do it in regard M. hath disabled himself to take the surrender or to make a new lease 4 E. 3. 170. 6 The demandant may waive issue upon Counterplea of voucher Waiver of issue and grant the voucher for if the Enquest pass the tenant cannot have more 1 H. 6. 4. b. 7 One that is a debtor to the King of Record in the Exchequer Kings debtor if he be seen in Court may be brought in to answer without process Dyer 59. ◠14. 36 H. 8. 8 In Replevin the defendant hath return awarded upon Nonsute of the plaintif Replevin and upon Returno habendo the Sherif returns averia elongata per Querentem and thereupon Withernam is awarded and the defendant hath delivered unto him as many of the plaintifs goods whereupon the Plaintif is to sue a second deliverance In this case he shall sue the second deliverance for the first distress and not for the Cattel delivered upon the Withernam for the Cattel of the first distress being the cause of the Withernam being delivered the other upon the Withernam will be also discharged Dyer 19◠24. 2 3. El. 9 The Sherif of Midd. had an attachment of privilege against one Kemp Cap. satisfac an attachment and likewise a Capias ad satisfaciendum against him at the same plaintifs sute both returnable the same term into the C. B. but the attachment was returnable first upon which he brings his body into Court and said he would return the Ca. sa at the day of return thereof Howbeit upon motion of one of the Protonotaries the Iustices sent the defendant to the Fleet and discharged the Sherif of him and would not stay untill the return of the Ca. Sa. there being a former judgement against him upon Record Vide Dyer 214. 47. Dyer 204. 1. 2. Eliz. Vpon nihil dicit in waste a writ issueth Waste that the Sherif in propria persona accedat ad locum vastatum to enquire of the damages and it was held good and not to enquire of the waste for that was confest by the Nihil dicit neither is it in such case necessary that he should then go in person according to West 2. cap. 25. for that is only in vasto inquirendo where the Defendant makes default to the distress 178 Expedit Reipublicae ut sit finis Litium 1 Regularly an Abbot Prior Bishop Abbot Annuity or other sole Corporation cannot disclaim Co Inst p rs 1. 103. a. 1. or do any act to the prejudice of their house or benefice but what may be avoided by the successor yet if an Abbot Bishop c. acknowledge the action in a writ of Annuity this shall bind the successor because he cannot falsifie it in an higher action and Expedit reipublicae ut sit finis Litium Vide supra Max. 1. case 4. 93 10. So it is likewise in an action of debt upon an Obligation Statute or Recognisance for there must be an end of sutes and Res judicata pro veritate accipitur Challenge 2 If the plaintif allege a cause of challenge against the Sherif Co. ibid. 158 a. 3. 18 E. 4. 8. the process shall be directed to the Coroners and if any cause against any of the Coroners process shall be awarded to the rest if against all of them then the Court shall appoint certain Elisors or Esliors so nanamed of the French word eslire to choose because they are named by the Court against whose return no challenge shall be taken to the array Howbeit challenge may be yet made to the Polles but that shall be also presently examined and setled in Court For Expedit reipublicae c. Partition 3 A partition of intailed lands betwéen parceners Co. ibid. 173. b. 1. being equal at the time of the partition shall bind the issues in tail for ever albeit
defendant pleads Judgement barr to the bond That the plaintif hath recovered upon the same bond and that the judgement thereupon is removed by Error into the Kings Bench and was not yet reversed And this was adjudged a good plea because the judgement takes away the strength of the bond and if after judgement he might sue the same party upon the same bond he might do it infinitely and consequently the defendant might be infinitely amerced for upon every Iudgement the defendant shall be amerced and if he be a Peer of the Realm the amerciament is 100 s. and so the defendant might be infinitely amerced upon one and the same obligation which would be mischievous Et interest Reipublicae ut sit finis litium Co. l. 7. 43. Kenns case 17 A bill of reviver upon a bill of reviver shall not be suffered for the infiniteness Bill of reviver no more than a writ by Iourneys accompts upon a former writ of the same nature for so they might be had infinitely Barrettry 18 A Barrettor is in judgement of Law accounted one of the most dangerous and pernicious vermin in the Commonwealth Co. l. 8. 37. in the case of Barretry because whereas the Law endeavoureth to settle peace and amity and to suppress discord and contention he is seminator litium oppressor vicinorum suorum either by force and open Maintenance of possessions or the like or by fraud and malice under colour of Law as by multiplicity of unjust and feigned sutes Informations or the like to the end he may by that means enforce poor people ad redimendum vexationem to give him money or otherwise to compound with him c. A bitrement 19 Vpon an award albeit the parties do not discover all their differences to the Arbitrators so as they determine some C. l. 8. 98. a. 4. in Baspoles case and leave the rest undetermined yet the award is good because otherwise many Arbitrements might be avoided for the one or the other of the parties may conceal a trespass done to him or some other secret cause of action and so avoid the Arbitrement which were inconvenient for Expedit reipublicae c. Accord 20 Accords are much favoured in Law Co. l. 9. 79. b. 4. in Peytoes case because they prevent and compose sutes and controversies amongst neighbours Et concordiâ parvae res crescunt discordiâ maximae dilabuntur And therefore it was adjudged P. 3 sac rot 1033. that an Accord with satisfaction was a good plea in barr in Eden and Blakes case Fines 21 The general Statute of 32 H. 8. 36. Co. l. 11. 75. a. 1. of Fines shall bind the King though he be not named because it was ordained for the setling and quieting of estates and the prevention of debates and controversies in the Commonwealth in Magdalen College case Assets descended a barr 21 The Statute of Glocester in 6 E. 1. cap. 3. ordains Co. l. 52. b. 4. in Syms case Pl. Co. 110. Fulmerstons case that where tenant by the curtesie aliens his wives inheritance with warranty if assets descend from the heir he shall be barred for the value of the inheritance so descended and if lands after descend that then the tenant shall recover against the heir of the seisin of his mother viz. out of the residu of his mothers lands so much as the assets afterwads descended shall amount unto Here albeit at the making of this Act being in 6 E. 1. there were no intailed lands for all Inheritance was then viz. before Westm ◠being 13 E. 1. feesimple absolute or conditional yet intailed lands are since taken to be within the equity of the said Act of Gloc. but not to retain or recover the lands intailed but only the lands which should so descend because otherwise there would be occasion of new sutes and contention which the Law hates and abhorrs for if the tenant after assets descended might retain or recover the lands intailed then if the assets were aliened the issues inheritable to the estate tail might by writ of Formedon in descender recover the intailed lands again which would beget a new sute and no way answer the Intention of the said Act being indéed a good provision for féesimple lands but not for lands entailed without such a construction by equity as aforesaid And therefore in case of entailed lands so aliened with warranty the tenant shall have a Scire facias out of the Rolls of the Iustices before whom the sute depends to recover the lands descended according to the provision of the said Act of Glocester which in just and proportionable equity agrées with the case of the feesimple lands and the Intention of the same Act. Vide supra 15. 9. infra 186. 8. 179 Circuit of Action Co. Inst part 1. 265. a. 3. 1 Littleton saith § 446. If the father be disseised Rebutter and the son having only a possibility release to the disseisor without warranty such release is void Howbeit if there be a warranty annexed to the release then the son shall be barred for albeit the release cannot barr the right because the son had no right in the land in the life of the father yet the warranty may rebut and barr him and his heirs of a future right which was not in him at that time And the reason which in all cases is to be sought out wherefore a warranty being a covenant real shall barr a future right is for avoiding of circuit of action which is not favoured in Law viz. That he who made the warranty should recover the the land against Terre-tenant and then the Terre-tenant by force of the warranty should have as much land in value against the warrantor which course would occasion Circuit of action and more trouble than needs Mauxels case 7. b. Finch 2 Where the father enfeoffeth his son and heir apparent with warranty and dieth Voucher the son in a praecipe brought against him may immediately vouch his fathers feoffor for the Law will not suffer him to vouch himself according to Max. 54. and so when he comes in as vouchee he may darraign the first warranty to avoid Circuit of Action Finch fol. 14. Fr. Edit F. N. B. 18. f. 3 In false Iudgement against an Abbot the plaintif was non-sute False Judgement and the Abot had a Scire facias against the plaintif to shew cause why he should not have execution returnable quindena Paschae at which day the plaintif appears and assigns his errors and tenders security to sue cum effectu and prays a Scire facias against the Abbot ad audiendum errores and the opinion of the Court was that he might assign his errors against the Abbot without suing out any Scire facias against him Finch pag. 55. 4 In an action of waste upon a lease for years by déed Waste wherein the lessor granteth to the
of Record the lessee shall lose all advantages which are not so claimed of Record Prisoners Sherif 14 The Law hath so great a regard and care of executions Co. l. 3. 72. a. 2. in Westhies case which are the fruit and life of every sute that notwithstanding they be matters of Record and the Letters Patents granted to the new Sheriff and the writ of discharge and writ of delivery to the old Sherif yet until the prisoners are delivered unto the new Sheriff they still remain in the custody of the former Sheriff and all this to prevent a new sute and trouble for the recovery of that which is already determined by Law Sâ—ander 15 It one exhibit articles to Iustices of Peace against another Co. l. 4 14. b. 1. in Cutler Dixons case containing great abuses and misdemeanors not only touching the petitioner but many others also and all this to procure him to be bound to the good behaviour In this case the party accused for any matter contained in such articles shall not have an action upon the case because therein the party complainant pursues the ordinary course of Iustice and the Law will not permit actions in such cases lest such as have good cause of complaint should be deterred from doing it for fear of sutes and infinite vexation Common 16 In case of Common by reason of vicinage Co. l. 4. 38. b. 1. in Tirringhams case the one may inclose against the other for he that hath such a Common cannot put his cattel into the land of the other but the Cattel ought to be put into the land where they have Common and then if the Cattel stray into the other land they are excused of trespass by reason of the antient usage which the Law permits to prevent sutes which might arise if actions should be brought for every such trespass when there is no separation or inclosure betwixt their Commons Vide Co. l. 7. 5. b. Sir Miles Corbets case Execution of process 17 In all cases when the processe concerns the King Co. l. 5. 92. b. 3. in Semayns case the Sheriff or other officer upon refusal after demand to open the door may break open the door of the house or use other means to get in to doe execution But in case of a common person the Law doth not permit the Sheriff c. upon request made and denyal as aforesaid to break into the house of the defendant to execute any processe at the sute of any Subject for the great inconvenience that might ensue thereupon because if men as well in the night as in the day should have their houses which indeed are their Castles broken open upon pretence thereof great mischief and damage might fall out for by colour thereof upon any feigned sute the house of any man at any time might bâ— broken open when the defendant might be arrested elsewhere and so men should not be in safety and repose in their own houses And albeit the Sheriff be an officer of great authority and confidence yet it appears by experience that the Kings writs are many times executed and served by Bailifs wâ—o are generally persons of little or no value and therefore not to be trusted with the breaking open and ransacking of houses upon every slight occasion See Co. l. 11. 82. a. 4. Lewes Bowles case Co. l. 5. 101. b. 3. in Penruddocks case 18 If a nusance be levied to the prejudice of anothers franktenement Nusance the Law doth permit the party grieved to abate the nusance before he suffer any prejudice thereby and by that means prevent the damage before he be prejudiced by it Per Popham cum tota Curia Co. l. 5. 115. b. 3. in Folâ—ambs case 19 To prevent any further waste Waste Estrepement a writ of Estrepement lyeth in an action of waste at any time as well before Iudgement as after Iudgement and before execution Co. l. 6. 51. a. 3. in Boswels case 20 To prevent Simonie or any thing that might savour thereof Simonie the Plaintif in a Quare Impedit before the Statute of Westm 2. cap. 5. did at the Common Law recover no damages for the Law doth so abhorr Simonie that it giveth to the Patron no recompence either for his presentment or for his disturbance thereof Co. l. 6. 74. b. 2. in Sir Drue Druries case 21 In Sir Drue Druries case in the 6. Report the Iustices said Wardship Knighthood that it did behoove them to have good consideration in all cases depending before them nor only of the present case in question but likewise of the consequences thereof viz. what general prejudice might happen thereupon either to the King or the Subject So if a ward should be knighted after the grant of the wardship under the Great Seal if his knighthood might excuse him from the value of his marriage when he might be knighted not only by the King but likewise by his Lieutenants in Ireland or elsewhere this would tend very much to the damage both of the King and Subject for none would then purchase any wardship upon such uncertainties and therefore in that case his knighthood shall not excuse him from the value of his marriage which was vested in the Lord upon his ancestors death Co. l. 7. part 1. 18. b. 2. in Calvins case 22 The Common Law by inhibiting an Alien born to be capable of Inheritance in England prevents thrée great inconveniences Alien for otherwise 1. The secrets of the Nation might thereby be discovered 2. The revenues thereof being indeed the sinews of warr and the ornament of peace might be taken and enjoyed by Strangers born 3. It might at last bring the Nation to ruine and destruction 1. Tempore belli for then Strangers might fortifie themselves in the heart of the Realm not much unlike the Trojan horse in Virgil 2. Tempore Pacis for they having gotten into their hands a great part of the Inheritance of the Commonwealth and not being capable to serve of Iuries there would be a failer of Iustice c. Co. l. 9. 56. b. 2. in the Poulters case 23 To prevent mischief and oppression in the Commonwealth Conspiracy Conspirators are Inditable by the Common Law albeit they put nothing in execution by any overt act as if they shall be found guilty of conspiring to indict and acquit any though they put nothing thereof in ure Co. l. 9. 69. â— 4. in Mackallyes case 24 To prevent escapes upon arrests Arrests the Law doth not enjoyn a Serjeant or Bailif sworn and commonly known though not by the party arrested to shew his mace or warrant nor a special Bailif to shew his warrant without demand lest in the mean time the party arrested may escape but it shall be warning and warrant enough to say I Arrest you Things in action 25 To prevent multiplication of controversies and
Copyholders holding of a Manor parcel of the Rectory the Court granted a Prohibition to prevent further waste Hâ—b 62. Paâ—row Lâ—wâ—llyn 33 The privat delivery of defamatory Letters was criminal and censurable in the Starr-chamber and now as it seems Star-chamber inditable in the Upper Bench because such quarrellous Letters tend to the breach of the peace and to the stirring of Challenges and quarrels and therefore the means of such evils as well as the end are to be prevented 187 It moderateth the strictness of the Law it self Co. I st part 1 13. â— 1. 1 A Protection Moraturae or Profecturae have these clauses in them Protection Praesentibus minimè valituris si contingat ipsum c. a custodia Castri praedicti recedere Or si contingat iter illud non accipere vel infra illum terminum a partibus transmarinis redire according to the provision of the Statute of 13 R. 2. 16. nevertheless if he return into England and came over to provide Munition Habiliments of warr victuals or other necessaries it is no breach of the said conditional clauses nor against the said Act for that in judgement of Law coming for such things as are of necessity for the maintenance of the warre Moratur he doth stay according to the intention of the Protection and Statute aforesaid Annuity 2 If A. be seised of lands Co. ibid. 144. b. 2. and he and B. grant a rent charge to one in fée this prima facie seems to be the grant of A. and the confirmation of B. but yet the grantee may have a writ of annuity against both Howbeit if two men grant an annuity of 20 l. per annum to another although the persons be several yet he shall have but one annuity but if the grant be Obligamus nos et utrumque vestrum the grantee may have a writ of annuity against either of them but he shall have but one satisfaction Iudgement 3 An action of trespass was brought against Tilly and Woody for five boxes with charters taken c. Tilly pleads not guilty H. 7. E. 4. fol. 31. Title Judgement 50 Pl. Co. 66. b. 3. Dyve and Maningham and Woody makes title to him by a gift and the plaintif traverseth the gift and thereupon they were at issue and Tilly was found guilty and the issue was found for Woody against the plaintif In this case albeit the issue was found against Tilly yet the plaintif had not judgement against him for it was found betwixt the plaintif and Woody that the plaintif had not title and then in as much as it appeared to the Iudges by the Record that the plaintif had not title they ex officio ought to give judgement against the plaintif The like 4 An action of trespass was brought by lessee for years of Cattel taken the defendant saith P. 10 E. 4. fol. 7. Title Office del Court 7. Br. 29. Pl. Co. ibid. that the Lessor held of him by divers services c. and for so much arrear he took the Cattel the plaintif saith there is nothing arrear c. and hereupon they were at issue and it was found for the plaintif And yet per totam Curiam the plaintif shall not have judgement for albeit the defendant admitted the writ good yet the Court did abate it because it appeared unto them that the defendant was Lord against whom an action of trespass lyeth not Marbr 3. for the Statute saith Non ideo puniatur dominus c. Appeal 5 In an appeal by a feme of the death of her father Pl. Co. ibid. albeit the defendant affirm the writ yet the Court ex officio ought to abate it for it appears to the Court that no feme may have an appeal of the death of any save of her husband by the Statute of Magna Carta cap. 34. which was in affirmance of the Common Law Non est fâ—ctuÌ„ 6 In debt upon an obligation Pl. Co. 66. b. 4. if the defendant conclude his plea with Iudgement si action whereas his plea should have been non est factum yet if the Iustices find that it was not his deed so as the plaintif had no cause of action they ought ex officio to give judgement against the Plaintif Vide 11. 9. Attaint 7 The Statute of 23 H. 8. 3. Dyer 201. 65. 3 El. â— of Attaints lyeth as well against executors as the party himself albeit the party that recovers upon the false verdict be only named in that Statute for that Statute being made in mitigation of the rigor of the Common Law shall be taken by equity and the words against the party that hath judgement are superfluous for it lyes against any that enjoyeth the thing lost 188 Verba semper accipienda sunt in mitiori sensu Slander 1 If one say to another that he is perjured Co. l. 4. 15. b. 1. in Stâ—nhop Blithes case or that he hath forsworn himself in such a Court by these words an action may be maintained for by these words it appears that he hath forsworn himself in a judicial proceeding but to charge another generally that he hath forsworn himself is not actionable because he may be forsworn in usual communication And benignior sententia in verbis generalibus seu dubiis est praeferenda Vide 178 11. Co. l. 4. 15. b. 3. in Yeamans case 2 Yeamans charged Hext being then a Iustice of Peace in these words For my ground in Allerton Hext seeks my life Slander These words being taken in mitiori sensu were not actionable 1. because he may seek his life lawfully upon just cause and his land may be holden of him 2. seeking of his life is too General and for seeking only no punishment can be inflicted by the Law Co. l 4. 17. b. 4. in Iames Rutleches case 3 In an action upon the case for words Slander as an Innuendo cannot make the person certain which was uncertain before so neither can an Innuendo alter the matter or sense of the words themselves as to say that such an one was full of the Pox innuendo the French Pox this Innuendo doth not perform his proper office for it strives to extend the general words the Pox to the French pox by Imagination of an Intent which is not apparent by any precedent words unto which the Innuendo may referr And the words themselves shall be taken in mitiori sensu Co. l. 4. 20. a. 1. in Barhams case 4 Barham brings an action upon the case against Nethershall Slander the words were these Mr. Barham did burn my barn innuendo a barn with corn with his own hands and none but he And it was adjudged that they were not actionable for it is not felony to burn a barn unles it be parcel of a Mansion-house or full of Corn And in this and the like
cases agitur civiliter and not criminaliter and verba accipienda sunt in mitiori sensu Also the Innuendo will not serve when the words themselves are not slanderous Co. l. 6. 6. a. Sir Iohn Molyns case 5 E. 3. is Lord the Abbot of Westm Mesne Tenure and C. tenant of the Manor of D. the tenant is attainted of treason and office thereof found E. 3. grants the Manor to Sir Iohn Molyns and his heirs Tenendum de nobis haeredibus successoribus nostris et aliis capitalibus dominis feodi illius per servitia inde debita de Iure consueta In this case the question was of whom and how this Manor was holden And here albeit it was objected that the Tenendum being by the services inde thence due at which time nothing was due to the Mesne the Mesnalty continued still extinct and therefore that it was holden immediately of the King yet it was adjudged that by those words of the Patent the Mesnalty was revived for when those words may be interpreted two manner of wayes viz. either immediately of the King or mediately by the Mesne reason requires that the words should be understood in the milder sence especially when that appears to be the Kings intention and tends more to his honour and it is not reasonable that the Mesne who offended not should lose his tenure Co. l 6. 6. b. Wheelers case 6 H. 8 grants land Tenure Tenendum de nobis et haeredibus nostris per servitium unius Rosae Rubeae Annuatim ad festum Nativitatis Sancti Iohannis Baptistae solummodo pro omnibus omnimodis aliis servitiis And this was adjudged tenure in soccage in Chief and not tenure in Capite by Knightservice for albeit it was objected that the patentée could not hold onely by the Rose because homage or at least fealty was incident to every tenure and therefore that the King was deceived in his grant yet it was resolved that for as much as fealty is incident to every rent service the Law annexeth fealty to the rent and these words viz. Pro omnibus aliis servitiis are to be understood of other services which the Law doth not imply or add to it so as the tenure shall be by a Rose and fealty and this is the benign construction of Law as near the Kings intention as may be by which construction the said words pro omnibus aliis servitiis have some effect and shall not be rejected as vain and of no force Co. l. 6. 66. b. Sir Moyle Finches case 7 When a Manor hath once had the reputation of a name Name in reputation by which it hath been commonly known albeit the demesnes be afterwards severed from it so as it ceaseth to be a Manor yet in grants fines or other amicable conveyances it may pass still by the name of a Manor but not in Adversary writs c. so if I have a Park by the license and grant of the King and by the name of a Park it is commonly known and after I surrender my patent to the King by which in Law it remains no longer a Park yet it having once obtained the name of a Park in truth it is a good ground for the reputation and continuance of the name of a Park afterwards and by that name may pass in conveyances And all this by a favourable construction of Law c. Remainder vests 8 If land be granted to A. for life the remainder to B. for life Pl. Co. 32. a. 2. in Colthrist Beinshâ—ns case and if B. die living A. that then it shall remain to C for life In this case this word then shall not be intended presently during the life of A. as these words prima facie do seem to import but they shall have a beneficial construction viz. that then it shall remain as a remainder ought to doe that is to say to vest then and to be executed after the death of A. So if a gift in tail be made upon condition that if he doe such an act that then the land shall remain to his right heirs this word then is not so to be understood as if it should avoid the estate tail and to be executed presently upon the act performed but it is to be intended that upon the act performed the remainder shall vest and after the estate ended shall be executed and not before 189. Construeth things according to Common possibility or intendment And therefore Judges 1 Regularly Iudges ought to adjudge according to common intendment of Law Co. Inst part 1. 78. b. 1. Parson 2 By intendment of Law every Parson or Rector of a Church is supposed to be resident on his benefice unlesse the contrary be proved Vide 2 3. Manor 3 By common intendment one part of a Manor shall not be of another nature than the rest A Will. 4 By common intendment a Will shall not be supposed to be made by collusion BonuÌ„ Vicinus Possibilia 5 In facto quod se habet ad bonum malum magis de bono quam de malo lex intendit Lex intendit vicinum vicini facta scire Nulla impossibilia aut inhonesta sunt praesumenda vera autem et honesta et possibilia Guardian Ward 6 Lex semper intendit quod convenit rationi As in this case the Guardian shall have the custody of the land until the heir come to his full age of one and twenty years because by intendment of Law the heir is not able to do Knight service before that age which is grounded upon apparent reason Iurors 7 By the Common Law in a plea real mixt or personal Co. ibid. 157. a. 1. 158. b. 2. there ought to be 4. of the Hundred where the cause of action ariseth returned for their better notice of the cause for vicini vicinorum facta praesumuntur scire Howbeit by the Statute of 27 Eliz. 6. In a plea personal if two Hundreders appear it suffiseth And in an Attaint albeit the Iury is double yet the Hundreders are not double Fee-simple 8 When a man is said to be seised in fee without more Co. ibid. 189. a. 2. Littl. §. 293. it shall be intended in fee simple and it shall not be intended by this word in fee that a man is seised in fee tail unless this addition be put to it fee tail for fée shall be taken secundum excellentiam for the highest and best fee and that is fee simple Verdict 9 If a verdict find that a man hath duas partes Manerii Co. ibid. 190. b. 3. c. in tres partes divisas this shall not be intended to be in common but if the verdict be in tres partes dividendas then it séems that they are tenants in Common by the Intendment of the verdict Co. ibid. 226. a. 1. 10 The Lord by escheat albeit his
jointenants of the land and the husband soweth the ground and the land surviveth to the wife 8 Ass pl. 21. 8 E. 3. 54. Dyer 316. It is said that she shall have the Corn and not the executors and the Law seems to be so because they were as one person in Law and held by intietties Co. ibid. 75. b. 4. 6 The tenure by Knight service being at first ordained for the defence of the Commonwealth both against domestique insurrections and forein invasions a Militia being indeed the chief pillar that supports a Commonwealth the due observance thereof was strictly enjoyned by the Laws of Edward the Confessor Knight service where you shall find it thus provided Lamb. 135. Debent enim universi liberi homines c. secundum feodum suum secundum tenementa sua arma habere illa semper prompta conservare ad tuitionem regni servitium dominorum suorum juxta praeceptum Domini Regis explendum et peragendum And William the Conquerer confirmed that Law in these words Statuimus et firmiter praecipimus quod omnes Comites Barones Milites et Servientes universi liberi homines totius regni nostri praedicti habeant teneant se semper in armis et in equis ut decet et oportet et quod sint semper prompti parati ad servitium suum integrum nobis explendum peragendum cum semper opus adfuerit secundum quod nobis debent de feodis et tenementis suis de jure facere c. The like 7 The tenure by Knight service because it was instituted for the Guard and defence of the Commonwealth was so much favoured in Law Co. ibid. 76. b. 4. that betwixt the making of the Statutes of 4 H. 7. 17. and 27 H. 8. 10. of Uses there might lie two wardships for one and the same land as if Cestuy que use before the Statute of 27 H. 8. had died his heir within age the Lord should have had the wardship of his heir by force of the Statute of 4 H. 7. and if the feoffée had died his heir within age the Lord should have had the wardship of his heir also viz. by the course of the Common Law And at the Common Law before the making of those Statutes there might be two wardships in respect of the same land as if tenant by Knight service had made a gift in tail the remainder in fee and tenant in tail had made a feoffment in fee and died his heir within age the Lord should have had the wardship of him and if the feoffee had died his heir within age Co. ibid. 77. a. 1. the Lord should have also had the wardship of his heir and of the land so likewise if tenant by Knight service make a gift in tail and the donee maketh a feoffment in fee and the donee dieth his heir within age the donor shall have the wardship of him because he is his tenant in right but if the feoffee dieth his heir within age the Lord paramount shall have the wardship of his heir because en fait he is tenant to him c. And the Common Law did not remedy this inconvenience because that tenure was deemed serviceable for the Commonwealth Tillage 8 Agriculture or Tillage is much favoured and of great esteem Co. ibid. 85. b. 1. because it is very profitable for the Commonwealth concerning which the goodness of the habit is best known by the privation For by laying of lands used in tilth to pasture six main inconveniences doe daily encrease 1. Idleness Co. l. 4. 39. a. in Tirringhams case which is the beginning and ground of all mischiefs 2. Depopulation and decay of Towns 3. Husbandry which is one of the greatest Commodities of the Realm is decayed 4. Churches are destroyed and the service of God neglected by diminution of Church-livings as by decay of Tithes c. 5. Injury and wrong is done to Patrons and Gods Ministers And 6. The defence of the land against forein Enemies is enfeebled and impaired the bodies of Husbandmen being more strong and able and patient of cold heat and hunger than of any other from which Inconveniences necessarily follow these consequences 1. The displeasure of Almighty God 2. The subversion of the Policy and good government of the Realm And all this appeareth in our books And therefore the Common Law giveth arable land antiently called Hyde or Gaine the precedence before Meadows Pastures Woods Mines or any other ground whatsoever And averia carucae the beasts of the Plough have in some cases more privileges than other cattel c. This imployment was also of high estimation amongst the antient Romans Co. Inst part 1. 161. a. 1. in so much that the grave Senators themselves would put their hand to the plough c. If the Lord will distrain averia carucae where there is a sufficient distress besides the tenant may make rescous O Fortunatos nimium sua si bona norunt Agricolas quibus ipsa procul discordibus armis Fundit humo facilem victum justissima Tellus Virg. in Georg. Co. ibid. 99. a. 2. 9 An Abbot or Prior c. who holdeth lands by Knight service Abbot Prior. albeit he ought not in respect of his profession to serve in war in proper person yet must he find a sufficient man conveniently arrayed for the warr to supply his place And if he can find none then must he pay Escuage c. for his possession doth not privilege him but that the Kings service in his warr must be done which belongeth to his tenure and concerneth both the honor and safety of the Common-wealth Co. ibid. 127. a. 4. Bract. lib. 6. fo 6. 10 The life and members of every subject are under the safeguard and protection of the King Life and Member for as Bracton saith Vita et membra sunt in potestate Regis And herewith agréeth a notable Record Pasch 19 E. 1. coram Rege Rot. 36. Northt Vita membra sunt in manu Regis to the end that they may serve the King and the Commonwealth when occasion shall be offered And therefore if the Lord mayhem his Villein the King shall punish him for mayheming his subject Villein by fine ransom and imprisonment until the fine and ransom be paid because he hath thereby disabled him to do the King and Common-wealth service Co. ibid. 130. a. 4. 11 The Protections Quia Profecturus which concerns services of warr as the Kings souldier Protections c. and Quia Moraturus which concerns wisdom and counsel as the Kings Ambassador or Messenger pro negotiis regni being for the publique good of the Realm privat mens actions and sutes must be then suspended for a convenient time for Jura publica anteferenda privatis and again Jura publica ex privatis promiscue decidi non debent And the cause of granting
Peace against another Slander containing divers great abuses and misdemeanors to the intent to have him bound to the good behaviour In this case the party accused shall not have for any matter contained in such Articles any action upon the case because he hath pursued the ordinary course of Iustice in such case provided And if actions shall be permitted in such cases they who have just cause to complain would not dare to make such complaint Co. ibid. Siâ— R ch Buckleys case for fear of infinite vexation So if a man had exhibited a Bill in the Star-chamber against another containing divers scandalous accusations albeit they were false yet no action upon the case would lie for them if they were examinable in that Court because the procéeding was in a Course of Iustice whereunto the Law giveth favour because it tends to the good of the Commonwealth See Dyer 11 Eliz. 285. pl. 37. Co. l. 4. 37. a. 2. in Tirringhams case 20 In antient time when a Lord enfeoffed another of arable land Tillage to hold of him in Socage viz. per servitium Socae the feoffée ad manutenendum servitium Socae had Common in the wasts of the Lord for his necessary Cattel that gained and compossed the land not only because that liberty was tacite implyed in the feoffment for he could not plow and compass the land without cattel and they could not live without pasture to sustain them but such Common appendant was principally given him for the maintenance advancement of tillage which is much regarded and favoured in Law because it is one of the chiefest supports of the Commonwealth so as such Common appendant is of Common right and began by operation of Law and in favour of tillage and therefore needs not prescription as it was held in 4 H. 6. 22 H. 6. which it ought to have if it were against common right Howbeit it is only appendant to the antient arable Hyde and Gaine and only for horses and oxen to plow the land and for Cows and Sheep to manure it And all this for the melioration and advancement of tillage as aforesaid And with this agrees 37 H. 6. 34. per tot Cur. and 29 H. 8. 4. Co. l. 4. 124 b. 2 in Bâ—verleys case 21 No felony or murder can be committed without a felonious intent and purpose Nam ideo dicta est felonia Non compos mentis quia fieri debet felleo animo And therefore a Mad man cannot commit felony because he cannot have a felonious intent so likewise if a feme Non compos mentis kill her husband it cannot be Petty treason Howbeit in some cases Non compos mentis may commit high treason as if he kill or offer to kill the King that is high Treason For the King est Caput et salus Reipublicae a capite bona valetudo transit in omnes and for that cause their persons are so sacred that no man ought to offer them violence and if he do he is Reus criminis Laesae Majestatis Co. l 5. 63. a 2. in the Chamberlâ—â—n of Londons case 23 The Inhabitants of a Town without any custom may make Ordinances or By-laws for the repair of the Church By-Lawes or of an High-way or any other such thing which is generally for the good of the Commonwealth and in such case the greater part shall bind all without any custom Vide 44 E. 3. 19. Also Corporations may make Ordinances or Constitutions without custom or the Kings charter for things which concern the Commonwealth as reparations of the Church common High-ways or the like Vide 8. E. 2. Assise 413. 21 E. 4. 54. 11 H. 7. 13. 21 H. 7. 20 40. Co. l. 5. 63. â— 4. 23 The Act of the Common Councel of London for bringing of Cloth to Blackwell-Hall to be searched Constitutions and the imposition of a penny for tallage upon every Cloth were adjudged lawfull constitutions because they were beneficial to the Commonwealth and not for any privat profit Constitutions 24 In 37 Eliz. 1695. The Term being appointed to be kept at St. Albons Co. l. 5. 64. a. Clerks case a Constitution was made there for the assessing of a sum of money for the preparing of Courts and other necessaries for the Term and every Inhabitant was enjoyned to pay his respective assesment on pain of imprisonment Clerk an Alderman who also consented to the assessment refused to pay his proportion and thereupon being imprisoned by the Mayor did bring an Action of false Imprisonment against the Mayor and had judgement to recover because the Constitution was against Magna Charta cap. 29. Nullus liber homo imprisonetur c. Howbeit if the Constitution had béen upon a pein of a reasonable sum of money and distress or action of debt for the recovery thereof the Mayor might have justified the distress or action because it was pro bono publico that the Town should make provision for the Term and the rather for that E. 6. who did incorporate them had granted them power to make Ordinances Albeit Corporations within time c. cannot have that privilege but by Parliament when it is pro commodo privato See Co. l. 8. 127. b. Penalties of Statutes not transferrable 25 When a Statute is made by Parliament for the publique good of the Realm Co. l. 7. 36. b. 3. in the cases of Penal Statutes the King cannot give the penalty or benefit thereof to any subject or give him power to dispence with it or to make a warrant to the Great Seal for licenses in such case to be made for when a Statute is made pro bono publico and the King as the head of the Commonwealth and the Fountain of Iustice and Mercy is by all the Realm trusted with it this confidence and trust is so inseparably annexed to the Royal person of the King in so high a point of Soveraignty that he cannot transferr it to the disposition or power of any private person or to any private use because it is committed to the King by all his Subjects for the Common good and if he might grant the penalty of one Act he may also grant the penalty of two and so in infinitum Dangerous to have London too populous 26 The Custom in London that a Foreiner shall not sell by retail Co. l. 8. 127. b. 2. in the case of the City of London was adjudged good because it was beneficial not only for the Citizens but likewise for the whole Commonwealth for that it would prevent the confluence of people from all parts of the realm to London which confluence might produce 3. great inconveniences 1. Impoverishment of all the good Towns in England 2. Depopulation of Towns in every Country 3. Destruction in the end of all trades and tradesmen in every part of the Realm Besides it might be a means to increase
or lessee at will and take husband Co. l. 5. 50. a. 4. Hensteads case this determines not the will because after the mariage the feme herself cannot countermand or determine the lease at will no more than where she and her husband make a lease at will rendring rent during the coverture or if a lease be made to them at will for she hath submitted herself and all her will to her husband And so a fewe covert may have a tenant at will or be a tenant at will and yet she herself cannot countermand it because she by her intermariage hath put her couutermanding power in this case which concerns not franktenement or Inheritance into the mouth of her husband so if baron and feme demise land at will and the baron dies this is no countermand of the will but the lease continues still Security of the peace 8. The will of the wife ought by the law of England to be subject to the will of her husband that to make her obedient thereunto F. B. 81. f the Common-law doth seem to allow him to give her lawfull and reasonable chastisement For if the husband threaten to beat or kill his wife she may have a writ de securitate pacis against him but such writ shall have this clause in it Quod ipse praef A. bene honeste tractabit gubernabit ac damnum malum aliquod eidem B. de corpore suo alitèr quà m ad virum suum ex causa regiminis castigationis uxoris suae licitè rationabiliter pertinet non faciet nec fiei procurabit quovismodo Compellatis c. Pl. Co. 37. a. 2. in Plats case 9. If the office of the warden of the Fléet which is an office in fée descend to a feme sole Escape and she maries one imprisoned there upon an execution this shall be adjudged an escape in the feme who is warden and the Prisoner albeit he be within the walls of the prison is thereby enlarged for he cannot be lawfully imprisoned but under a warden and he cannot be under the guard of his wife and therefore the law will adjudge him at large Co. Inst pars 1. 3. a. 1. 10. A feme covert cannot take any thing of the gift of her husband Purchase by a feme covert but is of capacity to purrhase of others without the consent of her husband Howbeit her husband may disagrée thereunto and devest the whole estate but if he neither agree nor disagree the purchase is good Howbeit after his death albeit her husband agreed thereunto yet she may without any cause to be alleged waive the same and so may her heirs also if after the decease of her husband she herself agreed not thereunto Dyer 271. 27 10 Eliz. 11. The baron is outlawed and his feme waived Baron and feme outlawed the feme comes in in ward by process and hath a charter of Pardon In this case she shall be discharged of the Imprisonment but the charter could not be allowed because she could not have a Scire facias against the Plaintif without her husband for that her will is subject unto his FINIS THE TABLE A. ABatement of Writ 683. 695. Where dissability abates it not 38. Of a Quare Impedit 90. 247. 557. Of a Formedon for an omission in pedegree 597. Abatement in Lands where it is no bar 564. Abayance 633. Abbot and Prior. 676. 732. Abjuration 342. 345. 391. Ab initio 486. Acceptance 169. 460 461. Of a Rent where it makes a Lease good 40. 141. 458 Makes voidable Leases good not so of void 54 103. Where a good bar 59. 579. Of Rent no Confirmation 572. Of a Deed makes Attornement good 458. Of one thing in liew of another 461. Bars Escheats 470. O counterfeit money after receiving of it shall not give advantage to alter for the Condition broken Accruer 771. Of estate 194. Accord With satisfaction where a good Plea 64. Accessary No Accessary without a Principall 4â— 713. Actions To be layed where the cause ariseth 47. Where the ground of it failes all is gone 114. Intire 252. Popular 331. Reall and personall 363. Where to be brought 495. Acts The originall Act where to be considered 62 Done to a mans selfe 169 170 171. Voluntary and Compulsary 422. against common right 548. Actions upon the Case 573. For wo ds 159. 678 690. 703 704. 734. 762. For Nusances 95. 696. Lyes not for erecting a Dove cote 684. Upon abatement of goods lost or spoyled by negligence 670. Acts of Parliament 331. Bâ—st expound themselves â—49 Judges to take notice of them 29â— Do no wrong 580. Repugnant void 641. 644. Account 715. Against Guardian in Socoge and when 85. Not against the Executors of the Accountant 155. 597. Must be grounded upon privity 175. Of Merchants 738. Accusation None bound to accuse himselfe 486. Acquittance 97. 464. Advantages Not taking of them is an Inlet to Covin 457. Administrators and Administration 456. Where they shall not sue Execution 83. In Law 140. Ought to execute their office faithfully 340. Of bona Notabilia 218. Composition shall not prejudice 330. Admeasurement Of Acres how to be 482. Advowson 251. 290. 610. Appendant 143. After Partition remaines appendant 228. Appendant to one Acre 234. To the Demesnes 236. Admission and Institution 709. Age. 346. 347. By the civill Law 348. Agreement and Disagreement 454 455. Aide 31. To deraigne the Warranty 40 Of the King 307. Allegiance 134. 288. One may be borne in England and yet not within the Kings Allegiance 46. Is due to the naturall person 88 An inseperable incident 136. Due by nature 279. Is not locall 287. Alienations by Tenant in tail where no bar 72. By Tenant by the Curtesie no bar 206. Of a Villaine purchasor 291. Alien 291. 345. May trade 95. Not Inheritable 160. In league may be indicted but not alien Enemy 344. May have and maintaine Actions personal may purchase to the use of the King Amendment of a Record 594. Amercement upon a Nonsuit upon what Lands 42. in Courts Baron and Leet 335. Of the Towne for Manslaughter 588. Teâ—med Misericordia 686 afferred 725 The Câ—untry not amerced for not apprehendâ—ng of Felons for fâ—lon s in the night 488. Annuity 703. What 155. Extinct by Eviction of the Land 31. Not maintainable against the Heire by Prescription 36. Where good hy Prescription 69. Good and yet the Land evicted 576. Annuall sum not severable 240. Ann and Jour 489 To bring Appeale to make claime 489. Appeales 391. 768. Not by the Lord against his Villain 104. 500. By the Villain against the Lord 110. Of Mayhm 680. Malicious abhorred in Law 499. Apportionment and Division Castles where dividable 91. Estovers Advowsons and things intire not apportionable 255. 455. Approvement 208. Apt words 606. Appropriation 710. Disappropriate 125. Appendant and Appurtenant 284. Arrests 355. 424. The Bayly must shew his Warrant 700. Erronious 590. Arbitrament
the Mesne during his nonage which indeed he cannot avoyd and shall not have remedy till his full age but inasmuch as his nonage shall not priviledge him from the payment of the rent during his nonage the Law also in that case gives remedy to him during his nonage c. Co. l. 9. 133. b. 3 Matth. Meves rase 55 A. seised of Gavelkind land Equality 〈◊〉 the third 〈◊〉 descending holden in soccage of I. S. and of other lands holden in Capite devised part thereof to B. the eldest sonne of his son being dead and the rest to his youngest son and dies B. being within age In this case it was resolved that the King shall have his third part out of each several part so that the charge shall be equal and shall not fall upon one of the parts onely Vide 35 H. 8. Br. Testam 19 E. 3. Ass 178. 21 22 Eliz. 366. b. Dyer Equity of executing a recognisance 56 If a man be bound in a Statute Merchant F. N. B. 103. b. Pl. Co. 72. Rosses case Co. l. 3. 12. b. 4. Sir Will. Herberts case and after make a feoffment of parcel of his lands to one man and of another parcel of his lands to another man and the Recognisée sues execution upon the Statute and hath execution against one of the Feoffées Here that Feoffee shall have an Audita quaerela against the other Feoffee to shew cause why the Recognisee shall not have execution against the lands of that other Feoffee as well as against the lands which he hath c. Equity of a later statute from a former 57 The Statute Merchant made 13 E. 1. Pl. Co. 82. b. 3. Partridg vers Strange and Croker binds all the lands of the Conisor to the execution and provides that they shall be delivered to the Conisee upon reasonable extent but speaks not a word that they shall be delivered to the Extendors in case they extend them too high yet they shall be delivered to the extendors by the equity of the Statute of Acton Burnel made before viz. Anno 11 E. 1. which saith that the goods praysed too high shall be delivered to the Praysers themselves at the rate they set them c. Vide 44. And yet the Statute Merchant is a penal law A Judgement bars a new action 58 If a man bring an action of Debt upon an Obligation Co. lib. 6. 46. a. 2. in Higgins case and he is barred by judgement so long as that judgement stands in force he cannot have a new action pari ratione when he hath judgement in an action upon the same Obligation so long as that judgement remains in force he shall not have a new action Copihold fines must be 59 If the fines of Copiholders of a Mannor be uncertain Co. l. 11. 44. a. 4. in Richard Godfreys case the Lord cannot demand or exact excessive or unreasonable fines but if he do the Copiholder may refuse to pay the fine and the reasonablenesse thereof shall be determined by the Iustices c. Quà m rationabilis debet esse finis non definitur sed omnibus circumstantiis inspectis pendet ex justiciariorum discretione And so it was adjudged in C. B. betwéen Stallon and Brady P. 9. Jac. Rot. 1845. Vide Co. l. 4. 47. b. reasonable 60 An advowson descends to two Coparceners Dyer 55. 5. 34 35 H. 8. one of them being within age and in ward the Guardian marries with the elder the Church is voyd the Guardian presents in the name of both the sisters and the Church is void again when the younger sister comes to full age In this case it séems the eldest shall have the Presentation if the younger sister will not joyn with her for this shall be said the commentâ—ment of the Turn because the presentment was before in both their names Quaere tamen because it may be imputed to the folly of the Baron who would not present in his and his wives name when he had full power to do it according to Max. 117. Coparceners Presentment Verdict 61 If a Iury eat or drink before their agreement at their own costs Dyer 55. 10. 34 35 H. 8. that offence is unable but if it be at the costs of either party it is cause of Errour in the judgement that passeth upon such a verdict because it implies affection and suspition 62 Vide Max. 178. 22. Prohibition against committing of waste 63 If a Parson of a Church and A. be Tenants in Common of a Wood and A. endeavours to make Waste Co. l. 11. 49. a 2. in Richard Lifords case the Parson for the preservation of the timber trées shall have a prohibition against him that he shall not make Waste and the reason thereof is said to be for that if the Parson of a Church will waste the inheritance of his Church to his private use in felling the trées the Patron may have a prohibition against him for the Parson is seised as in right of his Church and the Glebe is the Dower of his Church for thereof it is said to be endowed and so say many ancient records and therefore inasmuch as a prohibition lyeth against him reason requires that he shall have like remedy against him who holds with him in common See likewise ubi supra a notable case wherein the Bishop of Duresme is inhibited to commit Waste in the Woods belonging to his Bishoprick at a Parliament holden at Carlisle in the 35 E. 1. by the ordinary remedie at the Common Law by prohibition out of the Chancery c. Vide F. N. B. 49. 3. 11 H. 7. 12. b. 64 A man binds himselfe and his heirs in an obligation having heirs and leaving lands both of the part of the father and of the mother Lands equally charged In this case both the heirs shall be proportionably charged Co l. 2. 25. b. 4. In the case of Bankrupts Dyer 186. 68. 2 Eliz. 65 The Statute of 1 M. 7. ordaines that all Fines Fines whereupon proclamations are not duely made by reason of the adjournment of any term by Writ shall be as good as if that terme had béen holden from the beginning to the end and proclamations therein made according to the Statute of 4 H. 7. 24. The said Statute of 1 M. speaks of the adjournment of the whole terme yet if part of the terme be onely adjourned that is taken to be within the equity of the same Statute as it hapned in 2 Eliz. when in Tr. T. there were but two dayes dies juridici Dyer 230. 56. 6. Eliz. 66 A Servant makes a bill Contract by a servant testifying the buying of ware to the use of his Master and this without seal in which he binds himselfe to pay the debt In this case debt lyeth not against the Servant but action upon the case for it is the