goods and chattels for the great regard that the Law hath to the life of a man Howbeit if Thieves assault a mans house to robb or murther him and the owner or his servants kill any of the Thieves in defence of himself and his house this is not felony neither shall he lose any thing thereby And with this agrées 3 E. 3. Tit. Corone 303. 305. 26 Ass pl. 23. So likewise it is held in 21 H. 7. 39. that a man may justifie to assemble his friends and neighbours to defend his house against violence but not to go with him to the Market or elsewhere to guard himself from violence And all this to establish quiet and tranquillity in the Commonwealth Co. l. 5. 125. a. 2. in the cases of Libels 14 Every Libell which is called famosus Libellus Libels seu infamatoria scriptura is made either against a privat man or against a Magistrate or publique person if it be made against a privat person it deserves a severe punishment for albeit the Libel be only made against one yet it invites all of the same family kinred or society to revenge and so tends by consequence to quarrels and disturbance of the peace and quiet of the Commonwealth and may be the cause of effusion of bloud and of great inconvenience If it be against a Magistrate or other publique person that is yet a greater offence for this concerns not only the breach of the peace but the scandal of Government because what greater scandal can there be to Government than to have corrupt and wicked Magistrates to be substituted by the King to govern his Subjects under him Neither can there be greater imputation to the State than to permit such corrupt men to sit in the sacred seat of Iustice and to have any medling in or concerning the administration of Iustice which conceit being fixt in the minds of the people may be a cause of tumults and sedition to the great disturbance of the quiet and repose of the Commonwealth F N.B. 81. d. 15 Albeit Iustices of Peace have not express authority given them by their Commission to take recognizance for the keeping of the peace yet the Law gives them thereby that power ex congruo in order to the publique quiet of the Commonwealth for that they are thereby Constituted to be Conservatores Pacis and impowred to cause men to kéep the peace and to hear and determin offences committed against the peace and quiet of the Realm The Common Law giveth also power to the Sheriff either upon a writ of Supplicavit or without such a writ to take a Recognizance for the kéeping of the peace because he also is Conservator Pacis and to that end and purpose hath the guard and custody of the County committed to him for the time that he continues Sheriff as appears by the words of his Commission and Patent Rex c. Commissimus vobis Custodiam c. And what the Iustices or he do in that behalf is matter of Record and so ought to be déemed for that it concerns the Publique peace and tranquillity of the Commonwealth A man may go beyond sea 16 By the Common Law any man may go out of the Realm to imploy himself as a Merchant or to undertake a pilgrimage F.N.B. 85. a. or for any other cause at his pleasure without demanding license of the King neither shall he incurr any punishment for so doing Howbeit because every man in right is bound to defend the King and his realm and to preserve the publique repose and tranquillity of the Common-wealth from forein invasions from abroad and intestine sedition and insurrection at home the King may at his pleasure command by his writ De securitate invenienda quod se non divertat ad partes exteras sine licentia Regis under the Great Seal Privy Seal or Signet that he shall not go beyond sea without the Kings license And if he do he shall be fined for disobeying the Kings command Vide 3. Uses 17 In case of a Feoffment or other conveyance Co. Inst pars 1. 237. a. 2. whereby the feoffée or grantée c. is in by the Common Law a Proviso for a power of Revocation is meerly repugnant and void but in a voluntary conveyance which passeth by raising of Vses being executed by the Statute of 27 H. 8. 10. and now become very frequent by such a Proviso it is lawfull for the Covenantor at any time during his life to revoke any of the said Vses c. And these revocations are alwaies favourably interpreted bâ—cause now to interrupt that Course would disturb the Publique quiet of the Realm many mens Inheritances depending thereupon Warranty collateral 18 In 50 E. 3. Rot. Parl. 77. it was attempted in Parliament to have a Statute made Co. ibid. 373. b. 1. that no man should be barred by a warranty collateral but where Assets descend from the same Ancestor but it could never take effect because it would weaken common assurances and by consequence disturb the peace and quiet of the Commonwealth Remainders 19 For as much as in coveyances Co. Inst pars 1. 299. a. 2. limitations of Remainders are usual and common assurances it is dangerous by conceipts and nice distinctions to bring them in question as hath of late time been attempted lest thereby the quiet repose of the Commonwealth may be interrupted Descent to toll Entry 20 The Statute of the 32 Hen. 8. 33. concerning descents to toll entries shall be understood of a descent upon any disseisin Dyer 219. 7. 5. Eliz. albeit the words are of entries with strength And this large interpretation of the words is given for the better preservation of the peaâ—e and quiet of the Country By the Opinion of all the Justices Descent of the Royal line 21 In the Starre-Chamber the Countesse of Shrewsbury was fined 1000 l. and committed to the Tower Hob. 235. for that being called to the Council Table and Interrogated what she knew or had heard or thought of a supposed child which was rumored that the Lady Arrabella should have had she refused obstinately to make any answer because it was judged that this was a question of State and proper for the Council Table to take cognizance of for there is not one thing that doth more concern the peace and quiet of a kingdom than the certainty of the Royal line c. 201 Conventio seu beneficium privatorum non potest publico juri derogare Vide supra 198 29. Co. Inst pars 1. 166. a. 4. Littl. §. 244 1 No privat contract or agreement Partition which varies from the ordinary course of Law and sounds in prejudice of the Commonwealth or Common right shall be deemed good in Law as if a Castle that is used for the necessary defence of the Realm descend to two or more Coparceners and they by agreement choose
like This was termed by the Ancient Philosophers Original Justice which in Adams innocencie was cléere and lightsome but since his fall both in himselfe and his posteritie much darkened and incumbred with original sinne This is also the Law whereof Saint Paul makes mention in his Epistle to the Romans where he saith When the Gentiles which have not the Law Rom. 2.14 15. do by nature the things contained in the Law These having not the Law are a Law unto themselves which shew the work of the Law written in their hearts their conscience also bearing witnesse and their thoughts in the mean while accusing or excusing one another The Law of Reason is that Law which deduceth conclusions from known Principles by ratiocination or discourse of sound reason which Principles are termed Rules or Maximes of Reason Positive Lawes are such Lawes as are framed by the light of the two former for the regular Government of some particular Common wealth And therefore these Lawes are sundry and divers according to the several constitutions of particular places and Countries of this sort is the Common Law of England which being the Municipal Law of this Nation and receiving its light principally from the Law of Reason is many times directed and controuled by the Rules and Maximes thereof Now of these Maximes some are taken out of forreigne Sciences as Theologie Grammar Logique Physiques Moral Philosophy Politicks and Oeconomiques The rest are proper to the Law it self as Law-constructions and Fictions in Law All which will more plainly appear by the Precepts and Examples hereafter following I Maximes of Reason taken out of THEOLOGIE 1 Summa Ratio est quae pro Religione facit It is the highe Reason that makes for Religion Statutes which restrain Alienation of Ecclesiastical livings binde the King though not named 1REgularly Statutes binde not the King Co. l. 8. 14. a. In the case of Ecclesiastical persons Co. l. 11. 70. a Magdalen Colledge Case Co. l. 2. 44. b. In the Bishop of Winchesters Case unlesse he be particularly named yet the King is included within the general words of 13 El. 10. which prohibit Ecclesiasticall persons to make grants of their Livings because the Parliament which made that Statute adjudged such grants to be causes of dilapidations and decay of spirituall livings and hospitality and of the utter impoverishment of successors Incumbents in the same whereupon would necessarily follow decay of true Religion and the spirituall worship of God For it is recorded in History that amongst the ten Persecutions which the Primitive Church suffered there were two the most grievous the one under Dioclesian the other under Julian the Apostate the first endeavoured to destroy all the Professors and Preachers of the Word of God occidit omnes Presbyteros but notwithstanding that Religion still flourished for sanguis Martyrum est semen Ecclesiae yet that was a grievous Persecution But the Persecution under the other viz. Julian was much more grievous and dangerous because as the History saith occidit Presbyterium for it robbed the Church and spoiled spiritual persons of their revenues And thereupon ensues great ignorance in Religion and the service of God and therefore great decay of the Christian profession for none will apply himselfe or his children or any other committed to his charge to the study of Divinity when after long and painfull study they shall have nothing to live upon See more in the Books at large Ecclesiastical livings are in Abeyance 2 The Fee simple of a Parsonage or Vicarage is said to be in Aveyance and this was provided by the providence and wisdom of the Law Co. Inst pars 341. a. for that the Parson and Vicar have curam animarum and were bound to celebrate Divine Service and administer the Sacraments and therefore no act of the predecessor should make a discontinuance to take away the entry of the successor and to drive him to a reall action whereby he should be destitute of maintenance in the mean time Co. ibid. 3 Vpon consideration of all the Books of the Law Ecclesiastical persons cannot injure the Church this diversity is well observed by Sir Edw. Cooke that a Parson or Vicar for the benefit of the Church and his successor is in some cases estéemed in Law to have a Fée simple qualified But to do any thing to the prejudice of his successor in many cases the Law adjudgeth him to have in effect but an estate for life Bract. f. 226. Causae Ecclesiae publicis causis aequiparantur And Ecclesia fungitur vice minoris meliorem facere potest conditionem suam deteriorem nequaquam Brit 143. Vide Co. Inst pars 1 2. b. 4. Littl. §. 146. Co. Inst pars 1. 102. b. 40 E. 3. 27. 5 E. 4. 8. 6 E. 3 51 52. 10 E. 4. 2. a. 21 H. 7. 2◠4 An Abbot Prior Bishop Dean Arch-deacon Prebend Ecclesiastical persons cannot disclaim Parson Vicar or other sole Corporation that is seised in auter droit cannot disclaim because they alone cannot devest any fée which is vested in their house or Church For an Abbot and Prior had their Convent the Bishop his Chapter the Parson and Vicar their Patron and Ordinary and the like of other sole Corporations without whose assent they could passe away no Inheritance And the reason of this was because the wisdome of the Law would never suffer one sole person to be trusted with the disposition of the Inheritance of his house or Church Ecclesiae suae conditionem meliorem facere possunt sine consensu deteriorem non possunt sine consensu Vide infra Max. 178. Pl. 1. Co. l. 6 49. b. Boswels Case Co. Inst pars 1 344. a. Glan l. 13. cap. 18 19 20. Mirror c. 5. § 5. Bract. 238. 240 244 c. 291. Fleta l. 83. c. 11 16 17. Britt 222 223 224. 6 E 3. 28. 39. 52. 39 E. 3. 24. 43 E. 3. 25. 45 E. 3. Quare impedit 39. 31 E. 1. Quare impedit 186. 5 By the Common Law there ought to be in every Parish Persona idonea to serve the Cure The Parson or Vicar ought to be Persona idonea for so it appears by the words of the Quare impedit quod permittat praesentare idoneam personam which Epithete idonea includes abilitie in erudition and doctrine honesty in his conversation and diligence in his function and all this to instruct the People of God in true Religion and good conversation and to avoid contention And to the intent that he who hath so great a charge may effectually and peaceably intend it the Common Law provides that after Institution he shall not be subject to actions and so neglect his duty by losing his time in suits and vexations of Law Not to be removed after institution by a common person nor after induction by the King And therefore at the Common Law if a stranger had presented his Clerke and
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
cause of deprivation as it appears 9 E. 4. 34. So likewise if a Prior suffer dilapidations that is a sufficient cause to deprive him as it was holden 29 E. 3. 16. 20 H. 6. 36. Neverthelesse if in these or the like cases there be but an endeavour or enterprize without doing any such act there can be no cause of deprivation for in such cases Voluntas non reputatur pro facto 37 Acta exteriora indicant interiora Secreta Co. Inst pars 1. 257. b. 1. 10 H. 7 12. 1 One may commit a forcible entry in respect of the armour or weapons which he hath that are not usually born Forcible enâ—â— what and when or if he do use violence and threats to the terrour of another And if thrée or four go to make a forcible entry albeit one alone use the violence all are guilty of force So also if the Master cometh with a greater number of servants then usually attend on him it is a forcible entry Co. l. 8. 146. a. 4. The six Carpenters case 2 When entry authority or licence is given to any by the Law Upon entry by Law if treâ—passe be committed he is a trespasser ab initio and he misuseth it he shall be a trespasser ab initio but where entry authority or licence is given by the party and he misuseth it there he shall be punished for the misdeed but shall not be a trespasser ab initio And the reason of this diversity is because in case of generall authority or licence given by the Law the Law judgeth by the act subsequent quo animo or to what intent he entred for Acta exteriora c. but when the party gives authority or licence himselfe to do any thing he can for no cause subsequent punish that which is done by his owne licence and authority And therefore when as the Law gives authority to enter into an Inne or Tavern to the Lord to distraine to the owner of the soile to distrain damage fesant to the Reversioner to sée whether wast be committed to the Commoner to enter into the land to see his Cattell or the like vide 12 E. 4. 8. b. 21 E. 4. 19. b. 5 H. 7. 11. 9 H. 6. 29. b. 11 H. 4. 75. b. 3 H. 7. 15. 28 H. 6. 5. Here if he that enters into the Inne or Taverne commit trespasse as if he cary any thing away from thence or if the Lord that distraines for rent or the owner for damage fesant weary or kill the distresse or if hee that enters to view the wast do hurt to the houses or stays there all night or if the Commoner cut down a trée c. In these and the like cases the Law will adjudge that he entred for that purpose and therefore in as much as the Overt act which he doth is a trespasse he shall be adjudged a trespasser ab initio as it appears in all the aforesaid Books 3 If a Purveyor take my Cattle for the Kings houshold by force of his Commission A purveyor a trespasser that is lawfull but if he sell them in the Market Co. ibid. b. 3. then is the first taking of them forcious and with this accords 18 H. 6. 19. b. The use of a recovery may be declaimed afterwards 4 In many cases an Act subsequent shall declare the intention of a generall Act precedent as Peter Vavasor octabis Hill suffers a recovery Co. l. 9. 11. a. 3 DowmaÌ„s case and by indenture made 15 of February betwéen him and the recoverors limits the uses and dies Dowman and his wife the daughter and heire of Peter c. brings an Assise against him unto whom the use was limited but could not recover because the subsequent Indenture did sufficiently declare the intention of the parties at the time of the precedent recovery So if Tenant in taile hath issue two daughters and die and the eldest enter into the whole and after thereof make feoffment with warranty this is lineall warranty for the one moity and collaterall for the other for the feofment subsequent doth declare the intention of the general entry viz. that it was onely for her selfe or otherwise it would be warranty which should begin by disseisin for the one moity A distress sold makes it a trespasse and with this agrees Littleton cap. Garr fol. 160. If the Lord come upon the tenancy and take and drive away an oxe if he impound him the taking of him shall be adjudged as for a distresse but if he kill him that subsequent act declareth what his intention was ab initio and so shall he be déemed a trespasser c. as aforesaid and with this agrées 12 E. 4. 8. b. 28 H. 6. 5 c. Lord Mesne and Tenant distresse 5 If there be Lord Mesne and Tenant Co. l. 9. 22. b. 3. The case of Avowrie and the Mesne payes his rents and doth his services due to the Lord and yet the Lord will distrain the Tenant peruvail and put his cattle into the pound for them In this case the Mesne at the Tenants instance ought to take out his cattle and to put his own into the pound and then if the Lord will not suffer the Mesne so to do the Lord shall be déemed a trespasser ab initio for the Lord doth not then use the cattle in the nature of a distresse c. and with this accords 13 E. 4. 6. Intention may be adjudged murder 6 Roper the father of Agnes the wife of Gore Co. l. 9. 81. b. 3. Agnes Goreâ— case in love to his sonne in law Gore being sicke procured an Electuary of one Martin an Apothecary by the advice of Doctor Grey into which Agnes did secretly put Rats-bane with purpose to poyson her husband and May 18 gives part thereof to her husband who thereupon became very sicke Roper also eate thereof and likewise became very sicke add last of all Martin being taxed for it stirs it and eates it May 21. and May 22 dies This was adjudged murder in Agnes albeit she intended nothing against Martin and that peradventure the stirring of it by Martin might make it have more force to kill him For in this case the Law joyns the murderous intention of Agnes in putting the poyson into the Electuary to kill her husband with the event which ensued thereupon viz. the death of Martin for the putting of the poyson into the Electuary is the cause and the death of Martin is the event Quia eventus est qui ex causa sequitur dicuntur eventus quia ex causis eveniunt And the stirring of the Electuary by Martin without the putting of the poyson therein by Agnes would not have caused his death A delivery to the party without words 7 An actual delivery of a writing sealed to the party himselfe Co. l. 9. 136. b. 4. Thorough goâ—dâ— case without any words at all is a
99. b. 4. Matters of the Crown c. 35 Divers persons were accused for murthering of a man Principal and Accessory whereof some did actually murther him and were fled others stood by aiding and abetting those that committed the murther and these last were taken and arraigned as principals c. Besides these there was one Gittin indicted as accessary unto them all but stay was made of his arraignment until he might be arraigned as Accessary to them all at one time for he could not be arraigned as Accessary to them that were escaped because they were not yet attainted c. Co. Inst pars 1. 96. b. Littl. § 137. 36 Where the Common or Statute-law giveth remedy in soro seculari whether the matter be temporal or spiritual the Conusance of that cause belongeth to the Kings temporal Courts onely Remedy is foro seculâ—i for spiritual things unlesse the jurisdiction of the Ecclesiastical Court be saved c. As if an Abbot or Prior hold of his Lord by Divine Service certain and that service is not performed the Lord hath his remedy in foro seculari for if he distrain for not doing it he shall upon his avowry recover damages at the Common Law viz. in the Kings Temporal Court for the not doing of it And if issue be taken upon the performance of the Divine Service it shall be tryed by a Iury of twelve men because albeit the service be spiritual yet the Seigniory as also the damages to be recovered are temporal It is otherwise of service by Frankalmoign which is always uncertain Co. ib. 96. a. 4. for there the right being méerly spiritual and the remedie onely by the Ecclesiastical Law the Conusance thereof doth belong to the Ecclesiastical Court c. Co. l. 11. 27. b. 3. in Henry Pigots case 37 In 30 E. 3. casu ultimo a deed of feoffment A letter of â—torney void though read right to one unlettered in which a warrant of Attorney to deliver seisin was inserted was read to him that was to be the Feoffor being a man unlettered in the form of an estate tail but was indéed a feoffment in fée and the warrant was read truly as it was writ and both were sealed and delivered and seisin given accordingly Howbeit in this case the déed was adjudged void because read in another form c. and the warrant of Attorney albeit it were truly read was adjudged void also because it depended upon the feoffment and had relation to the estate in fée Vide 84. 8. A Villeins estate not the lands before â—ecovery of the Villein 38 Servi fugitivi dicuntur esse in statu libero Bract. l. 5. cap. 10. § 3. fo 7. a. donec dominus versus eos sibi perquisirit per legem terrae nec habebit potestatem aliquam in eis vel liberis suis terris aut aliis bonis ipsorum donec corpus quod principale est disrationaverit A condition or â—ovenant runs â—ith the land 39 A lease is made to Baron and Feme by indenture Dyer 12. 65. 28 H. 8. in which there is a Proviso that if they or their Executors shall be disposed to sell and alien the terme that then the Lessor shall have the first offer he giving for it as much as another will give And here the question was whether this was a condition or a covenant and the better opinion séems to be that it is rather a condition than a covenant Howbeit whether it be the one or the other it runs with the land So as albeit the Feme joyned not in the Indenture nor was party thereunto yet if she survive the Baron she shall hold the land charged with the condition or covenant as an accessary thereunto So in 38 E. 3. a feoffment was made by déed with divers covenants and one of the Feoffées sealed it and the other not but yet occupied the land and survived and it was resolved the Survivor should be bound by the covenants and seale of his companion Qui sentit commodum sentire debet onus Vide M. 236. A penalty for â—ot singing â—asse c. 40 An Abbot with the assent of his Covent grants for them and their Successors to a man and his heires Dyer 24. 149. 28 H. 8. to finde one of his Monks to sing Masse Mattens and Vespers every Holiday in such a Chappel and grants over that toties quoties defectus fuerit in aliquo c. that they will forfeit to him and his heirs five pound In this case if by a failer of the service the nomine poenae of 5 l. be forfeit the heire shall have an action of Debt for it and not the Executors for the heire having an inheritance in the penalty it follows the nature of the land given to the religious house as an accessary thereunto â—isseisor and â—isseisee 41 After regresse of the Disseisée Dyer 31. 219. 28 H. 8. the Disseisée shall have the grain of the Disseisor albeit they be severed from the land by the Disseisor per totam Curiam and in B. R. in Sayes case â—rincipal and â—â—ettor 42 At the Common Law before the Statute of 2 3 Edw. 6. 24. Dyer 38. 50. c. 29. H. 8. in an appeal of Robbery the Abettors were to be prosecuted in the same County where the Robbery was committed and where the Principal was attainted and not where the abetment was proved to be But that Statute hath now setled it in the County where the Abettors shall be taken â—uardian 43 If a man be seised of a Rent-charge Rent-secke Co. Inst pars 1. 87. b. 3. Common of pasture or such like Inheritances which lie not in tenure and die his heire within the age of fourtéen years In this case the heire may choose his Guardian But if he hold any land in Soccage the Guardian in Soccage shall take into his custody as well the Rent-charges c. as the land holden in Soccage because he hath the custody of the heir which is the Principal â—â—rrender 44 By surrender of the Letters Patents themselves Dyer 179. 44. 2 Eliz. the Duplicate thereof though it bée also under the Great Seale is also gone 45 Vide Hob. 4. Musgrave against Wharton 64 Things accessary are of the nature of the Principal 40 Ass Pl. 25. 1 A servant procureth another to kill his Master No accessary this is no petty Treason in the servant because it is but felony in the other which is the principal Finch 23. 7 H. 6. 19. b. 2 A Parson grants an Annuity with a Nomine poenae A Parsons successor chargeable the Successor shall be charged with the Nomine poenae due in his Predecessors life and not his Executors Finch 23. 26 H. 8. Dy. 7. Finch 23. 3 The profits of the office of a Filizer Profits of a Filizers office not chargeable Lop
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
as it were by way of excuse to give the special matter in evidence as to say that it was se defendendo or in defence of his house in the night against Theeves and Robbers or the like Co. l. 3. 11. b. 4. in Sir Will. Herberts case 16 The liberty of a man is of such high estéeme in the consideration of Law that he could not at the Common Law he imprisoned At the Common Law to capias for 〈◊〉 c. unlesse he were guilty of committing some force for the Law being the preserver of the Common peace of the Land abhorres all force as one of her capital Enemies and therfore as concerning such as commit force the Common Law subjects their bodies to imprisonment as to one of the highest Executions of Law whereby they lose their liberty until they have made agréement with the party and fine to the King for which cause it is a Rule in Law that in all Actions Quare vi armis a Capias lies and where a Capias lies in process there after judgement a Capias ad satisfaciendum lies and there also the King shall have a Capias pro fine And with this agrées 8 H. 6. 9. 35 H. 6. 6. 22 E. 4. 22. 40 E. 3. 25. 49 E. 3. 2. and divers other Books But at the Common Law if a common Person had sued a recognisance or judgement for debt or damages he could not have the body of the Defendant nor his lands unlesse in some special case in execution but was onely in such case to have execution either of his goods and chattels by fieri facias or of his graine or other present profits which encreased upon the land by levati facias both which writs were to be sued within the yeare after the judgement or recognisance acknowledged and if he had neither the one of the other within the yeare the Plaintiffe or Conusée was then put to his writ of debt c. And then by the Statute of Westm 2. cap. 45. a scire facias was given and by cap. 18. cum debitum fuerit recuperatum c. an Elegit of the moity of the land which was the first Act that subjected land to the execution of a judgement or recognisance and with this agrées F. N. B. 265. q. And then by the Statute of 13 E. 1. de Mercatoribus 27 E. 3. cap. 9. and 23 H. 8. cap. 6. In case of a Statute Merchant or staple all the lands which the Conusor had the day of the conusance shall be extended in whose hands soever they come c. Also by the Statute of Malbridge cap. 23. and of West 2. cap. 11. A capias was given in accompt for at the Common Law processe in accompt was distresse infinite and after by the Statute of 25 E. 3. 17. the like processe was given in the debt as in accompt before which two last recited Statutes the body of the Defendant was not liable to the execution in accompt or debt c. neither yet was the land liable in debt as afore-said save in the Kings case and in the case of an heire in by descent and chargeable by the Obligation of his Ancestor c. Co. l. 4. 40. 2. 3. Darleys Case 17 In P. 25 E. Wotherel brings an appeal against Dorley of murder the Defendant pleads not guilty and he was found guilty of homicide Life shall 〈◊〉 be twice 〈◊〉 in jeopardy for the same offence and had his Clergy and after he was indicted of murder and thereupon arraigned at the Quéens suit and he pleaded the former condition in the appeale at the suit of the party And it adjudged a good barre because the life of a man is so precious in judgemedt of Law that it shall not be twice put in jeopardy for one and the same offence The like is agréed in Brooks Case H. 28 El. and P. 33 El. in Vaux his Case which sée Co. l. 4. 45. a. Nâ—â— compos â—â—tis shall not lose his â—ife for felony 〈◊〉 murder 18 Every Act that a man de non sanae memoriae doth Co. ibid. 124. in Beverleys Case either concernes his life his lands or his goods also every Act that he doth is either done in pais or in a Court of Record All Acts which he doth in a Court of Record concerning his lands and goods shall bind himselfe and all other persons for ever Also all Acts which he doth concerning his lands and goods in pais in some cases shall bind himselfe onely during his life and in some case shall bind for ever c. But as for his life the Law of England is that he shall not lose that albeit he kill a man and thereby make himselfe subject to be indicted for felony or murder c. The death of a â—an grievously punished by the Law 19 The Law surpriseth the life of a man Co. ibid. 2. 4. in Beverleys Case that it inflicteth grievous punishment upon them that are guilty of taking away and destroying it for the malefactor in that case shall 1. Lose his life 2. Lose it after an ignominious and odious manner viz. by hanging for he shall be hanged betwixt heaven and earth as unworthy of both 3. He shall lose his bloud both in respect of his ancestry for he is estéemed as a Terrae-silius without any Ancestor and also in respect of his posterity for his bloud is corrupt and he leaveth behind him neither heire nor posterity 4. He loseth his lands 5. His goods And in such case also the King shall have Annum diem vastuna to the intent that his Wife and his Children should be cast out his houses demolished his trées eradicated and stockt up his meadowes broken up and ploughed and all that he hath for his comfort delight and sustenance wasted and destroyed because he hath in such a felonious manner offended against the Law and all this is ut poena ad paucos metus ad omnes perveniat c. Upon an Arâ—â—st the cause 〈◊〉 be shewâ—d 20 The Law so provideth for the preservation of a mans liberty Co. l. 6. 54. 2. 4. in the Countesse of Rutlands Case that no general arrest is déemed legall without shewing the particular cause wherefore he is arrested And therefore the Sheriffe or any other by his authority which makes an arrest of the person of another ought upon the arrest to shew at whose suit out of what Court for what cause he doth it and when the processe is returnable to the intent that if it be upon an execution he may pay the money and so frée his body from imprisonment and if it be upon a mesne processe may either agree with the party or put in baile according to the Law and so make his apparence accordingly c. â—he Coll. of â—ys cannot â—â—mmit 21 An Act of Parliament Co. lib. 8. 120. a. 3. Doctor Bonhams Case that gives power of