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
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
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.
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.
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
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
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
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
made twenty moneths after yet this Warranty begins by Disseisin so the intent maketh the act to enure otherwise then it would do for when covin is mixt with the truth it makes all unsavory So in Wimbish and Talboies case in the Com. Eliz. Talbois joyning by covin with W. Talbois in being taken by nihil dicit he was to lose her estate by force of the Stat. of 11 H. 7. and the Issue in tail might before that Statute falsifie a feined Recovery by covin 38. The 11 H. 7. 20. Pl. Co. 59. b. 1. ibid. and all other Statutes made for the suppressing of fraud shall be extended by equity the words of the Statute of Marlebridge cap. 6 are de his qui primogenitos haeredes suos infra aetatem existentes feoffare solent and yet if the first be dead and he enfeoff his second Son which is his heire that is within the equity of the Statute or if he levy a Fine to him which is matter of Record that is also within the equity of the Statute albeit the Statute speaks of Feoffment And the reason is because covin is alwayes abhorred in our Law and Statutes made for the suppression thereof are made for the publick good and therefore shall be extended by equity In like manner 1 H. 7. cap. 1. which gives a Writ of Formedon in Remainder against the perner of the profits was made for the suppression of covin for a Feoffment made to persons unknown to defraud those that right had Pl. Co. 81. b. 4. in Partridge and Stranges case was great covin and deceit in the Law and therefore a Scire facias to execute a Remainder shall be maintainable against the pernor of the profits as it is adjudged in 14 H. 7. fo 31. And to these Statutes and the like made for the suppression of fraud and covin are alwayes to be extended by equity and to have a favourable interpretation and construction And therefore the Statute of 32 H. 8. cap. 9. shall be also extended by equity Co. l. 5. 80. a. in Fitzharberts case being ordained for the suppression of fraud and covin in buying of pretenced titles so that Leases for years as well as higher estates shall be intended by it Warranty 39. The Father Tenant for life the Remainder to the Son and Heire apparent in tail Leases to A. for years with intent that A. should enfeoff B. unto whom the Father should release with Warranty all which is done accordingly This is a Warranty that commenceth by Disseisin for albeit the Warranty be not made at the time of the Disseisin which was upon the Feoffment to B. yet by construction of Law it shall be adjudged to be Warranty that begins by Disseisin by reason of the practice and covin betwixt the confederates for if the Father had made the Feoffment to B. with Warranty and had dyed this Warranty had barred the Heire c. vide pl. ibid. â—ttaint 40. A false Verdict is a contradiction in it selfe Co Inst parâ— 1. 128. 4. and so odious in the Law that in an Attaint Outlawry in the Plaintiff cannot be pleaded in disability of the person 41. The Statute of 31 Eliz. 6. Hob. 75. to prevent Simonie is to be largely expounded though penall The King against the Bishop of Norwich 158. Jus Fraus numquam Cohabitant Co. l. 10. 45. a. 4. in Jennings his case 1. The Statute of 14 Eliz. cap. 8. Recovery by Tenant in taile doth not extend to preserve any Reversion or Remainder expectant upon an estate taile or where the Tenant for life is impleaded and Tenant in tail is vouched for the title of the Act is For avoiding of Recoveries suffered by collusion by Tenant for life c. but a Recovery cannot be said to be by collusion where Tenant in tail is in the Recovery either Tenant in Fait or Tenant in Law as Vouchee for the Law as an incident to his estate hath made the Land and all Remainders and Reversions subject to his pleasure and he hath right and power to bar them all and Jus Fraus numquam Cohabitant And therefore the title of the Act being For avoyding of Recoveries by collusion c. it cannot extend to a Recovery where Tenant in tail is party or privy Pl. Co. 51. a. 2. in Wimbish and Talboies case 2. When truth is mixed with covin that wicked hearb or covin with truth Truth Covin that conjunction and mixture makes all bitter and unsavory and goodnesse is perverted into wickednesse for they cannot continue together no more then fire and water Dyer 55. 9. 35 H. 8. 3. A Verdict is said to be veri dictum Verdict Error which ought to have truth in it and no semblance of fraud or partiality to either party And therefore if a Iury before their agreement eat or drinke at the charge of either of the parties it is good cause of Error to reverse the Iudgement upon such a Verdict for there cannot be truth in such a Verdict which hath such a badge of fraud and falsehood because such practice implyes partiality and suspition 159. Quando aliquid prohibetur fieri ex directo prohibetur per obliquum Litt. S. 361. Co. Inst pars 1. 223. a. 4. 1. If a Feoffment in fee be made upon Condition A Feoffment upon Condition that the Feoffee shall not alien that the Feoffee shall not enfeoff I. S. or any of his Heires or Issues c. this is good for he doth not restraine the Feoffee of all his power howbeit if he enfeoff I. N. with intent and purpose that he should enfeoff I. S. some held that it is a breach of the Condition So if a Feoffment be made upon Condition that the Feoffee shall not alien in Mortmaine this is good because such alienation is prohibited by Law and regularly whatsoever is prohibited by Law may be prohibited by Condition but in this case if the Feoffee enfeoff I. S. with intent that he shall alien the Land in Mortmaine it seemes to be a breach of the Condition In ancient Deeds of Feoffment in fee there was usually this clause Quod licitum sit donatorio rem datam dare vel vendere cui voluerit exceptis viris religiosis Judaeis Co. ibid. 282. a. 3. 2. In an Action upon the case Innovation prohibited the Plaintiff declared for speaking of slanderous words which is transitory and laid the words to be spoken in London the Defendant pleaded a Concord for speaking of words in all the Counties of England save in London and traversed the speaking of the words in London the Plaintiff in his replication denyed the Concord whereupon the Defendant demurred and Iudgement was given for the Plaintiff for the Court said if the Concord in that case should not be traversed it would follow that by a new and subtile invention of pleading an ancient Principle in Law that for
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
further by the same deed that the grantee may distrain for the same rent in the tenancy Here albeit a distress were incident to the rent in the hands of the Grantor and although the tenant attorn to the grant yet cannot the grantee distrain for the distress remaining as an incident inseparable to the Seigniorie the tenant should then be subject to two several distresses of two several men which would be oppressive and inconvenient So it is likewise if the Lord in that case grant the rent in tail or for life saving the fealtie and further grant that the grantee shall distrain for it Here also albeit the reversion of the rent be a rent service yet the donee or grantee shall have it but as a rent seek and shall not distrain for it Coperceners 16 Estovers appendant to freehold Corodie uncertain Homage Co. ibid. 164. b. 4. Fealty Piscary uncertain Common sans number or the like shall not be divided between Coperceners for that would be a charge to the tenant of the soil The Lord Mountjoyes case 17 The Lord Mountjoye seised of the Manor of Canford in see Co. ibid. did hy deed indented and inrolled bargain and sell the same to Browne in fee who in the deed covenants that the Lord Mountjoye and his heirs shall digg ore and turf in the wastes of the said Manor And in this case thrée points were resolved 1. That this did amount to a grant of an Inheritance to the Lord Mountjoye 2. That notwithstanding this grant Browne and his heirs might dig also and like to the case of Common sans number 3. That the Lord Mountjoye might assign his interest to one two or more but then if it were to two or more they could make no division of it but work together with one stock neither could the Lord Mountjoye c. assign his interest in any part of the waste to one or more for that might work a prejudice and a surcharge to the tenant of the land And therefore if such an uncertain Inheritance descendeth to two Coperceners it cannot be divided between them Causâ quâ suprâ Tender of â—ebt in court 18 If an Obligation of 100 l. be made with condition for payment of 50 l. at a day and at the day the obligor tender the money Co. ibid. 207. a. 3. and the obligee refuseth the same yet in an action of debt upon the obligation if the defendant plead the tender and refusal he must also plead that he is yet ready to pay the money and tender the same in Court because the 50 l. are parcel of the obligation and not perishable but if a man be bound in 200 quarters of wheat for the delivery of 100 quarters if the Obligor tender at the day the 100 quarters c. he shall not plead uncore prist because albeit they are parcel of the obligation yet they are bona peritura and it is inconvenient and a charge for the Obligor to keep them Littl. §. 419. Co. ibid. 253. b. 19 Before a man can bring his action for the recovery of lands Entry and Claim whereunto he hath title or right the Law requires that he first make his entry and claim his right or title upon the land which entry gives him possession and seisin of the same and where he may enter a bare claim from off the land will not serve to give him seisin thereof yet if by reason of menacing words lying in wait in the way with weapons or the like he dare not enter upon the land in such case the Law gives him this liberty that if he claim his right as near the Land as he dare go for fear of such bodily hurt as may cadere in virum constantem that claim shall give him seisin as well as if he had entred upon the land Littl. §. 434. And if the party be sick decrepit or recluse he may do it by his servant c. Littl. §. 440. Co. ibid. 261. 20 The Rule of Law is that where a disseisor dies seised Descent a fuller Enâ—â—y it takes away the entry of him that right hath yet if the disseisee at the time of the disseisin and descent were not in England or the dominions thereunto belonging such descent shal not take away his entry because being beyond sea by intendment he could not have notice of the disseisin and yet without any folly or laches in him he should lose his right which were inconvenient and unjust Co. ibid. 282. b. 3. 21 In an action upon the case the plaintif declared for the speaking of slanderous words which is transitory Action of Slander 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 plaintif in his replication denied the Concord whereupon the defendant demurred and judgement was given for the plaintif for the Court said that if the Concord in that case should not be traversed it would follow that by a new and subtil invention of pleading an antient principle in Law viz. that for transitory causes of action the plaintif may allege the same in what place or County he will 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 wisdom of the Iudges and Sages of the Law hath alwayes suppressed new and subtil inventions in derogation of the Common Law Vide infra 193. 1. Co. Inst part 1. 315. a. 4. 22 Regularly in all actions an Infant shall have his age Attornment and yet if an Infant have lands by purchase or descent he shall be compelled to attorn in a per quae servitia and no mischief to the Infant at all for when he comes to full age notwithstanding such attornment he may disclaim to hold of him or may say that he holds by lesser services but a great mischief would fall upon the Lord if the Infant should not attorn or his attornment should not be good for then the Lord should lose his services in the mean time So likewise an Infant is compellable to attorn in a Quid juris clamat in case where he is lessee Vide Connys case Co. l. 9. 85. b. 1. Co. ibid. 54. a. 1. 23 A Guardian shall not be punished for waste done by a stranger it is so penal to him Waste because for waste he shall lose the wardship both of the body and of the Land albeit the waste be but to the value of 20 s. and if that suffiseth not to satisfie for the waste then shall he answer damages of the waste over and above the loss of the ward It is otherwise in case of Tenant by the Curtesie tenant in Dower tenant for life years c. for they shall answer for waste done by a stranger
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
default yet may the tenant give evidence and the Recognitors of the Assize may find for the tenant And therefore in these or the like cases the tenant or defendant non amittit per defaltum as the Statute and Littleton speak and they cite F.N.B. in the point Littl. Sect 674 675. West 2. c. 4. Fitz. 155. e. Neverthelesse others do hold the contrary because albeit in the writ of wast judgement is not given only upon the default yet the default is the principal and the cause of awarding the writ to enquire of the wast as an incident thereunto and the Law alwayes hath respect to the first and principal cause of a thing from whence it takes the first rise and being Co. ibid 364. a. 4. 10 H. 6. 10. 31 H. 6. Entry congeable 54. 22 Where Ioyn-tenants or Coparceners have one and the same remedie if the one enter the other shall enter also Joyn-tenants and tenants a common but where the remedies be several there it is otherwise As if two Ioyn-tenants or Coparceners joyne in a real action where their entry is not lawfull and the one is summoned and severed and the other pursueth and recovereth the moity the other Ioyn-tenant or Coparcener shall enter and take the profits with her because their remedie was one and the same But where two Coparceners be and they are disseised and a descent is cast and they have issue and die if the issue of the one recover her moity the other shall not enter with her because their remedies were several and yet when both have recovered they are Coparceners againe So if two Ioyn-tenants seised of lands the one of full age the other under age be disseised c. And the disseisor die seised and his issue enter the oâ—e of the Ioyn-tenants being still under age And after that he comes to full age the heir of the disseisor lets the lands to the same Ioyn-tenants for their two lives This is a remittor of the moity to him within age because his entry was congeable but the other Ioyn-tenant hath but an estate for life in the other moiâ—y by force of the Lease because his entry was taken away Lit. l. § 656. c. as you shall find it in Littleton Sect. 696. If A. and B. Ioyn-tenants in fée be disseised by the father of A. who dieth seised his sonne and heire entreth he is remitted to the whole and his companion shall take advantage thereof Otherwise here in the case of Littl. for that the advantage is given to the infant more in respect of his person than of his right whereof his Companion shall take no advantage But if the Grand-father had disseised the Ioyn-tenants and the land had descended to the father and from him to A. and then A. had died the entry of the other would have béen taken away by the first descent and therefore he should not have entred with the heir of A. c. Warranty that begins by disseisin 23 If A. de B. be seised of an house Littl. § 368. and F. de G. enter into the same house clayming it to him and his heires and make a feofment thereof with warranty to certaine Barrettors in the Country to be maintained by them by reason whereof A. de B. dare not stay in the house but goes out This is warranty that beginnes by disseisin because that feofment was the cause why A. de B. left the possession of the same house Tenant in tail the reversion in the King 24 If a subject make a gift in tail Co. ibid. 372. b. 3. the remainder to the King in fée Albeit the words of the Statute of 34 H. 8. cap. 20. be whereof the reversion or remainder at the time of such recovery had shall be in the King c. yet séeing the estate taile was not originlly created by the King the estate taile may be barred by a Common recovery So likewise if Prince H. sonne of H. 7. had made a gift in taile the remainder to H. 7. in fée which remainder by the death of H. 7. had descended to H. 8. So as he had the remainder by descent yet in this case also a Common recovery would have barred the estate taile No fine before admitance 25 Popham Chief Justice said that it was adjudged in Sands his case Co. l. 4 28. a. 3. Copihold cases Hubbert and Hamons case that no fine was due to the Lord either upon surrender or descent untill admittance For the admittance is the cause of the fine and if after the tenant denie to pay it that is a forfeiture And so it was also resolved by Wray and Periam in a case betwixt Sir Nich. Bacon and Flatman The cause must be shewed why the Bishop refuseth to admit 26 If a Clerke be presented to a Bishop to be admitted to a Benefice and he refuseth him in pretence of insufficiency or other defect Co. l. 5. 58. a. â— Specots case In a Quare impedit the Bishop ought to alleadge some particular crime or cause why he did not admit him and not generally quòd non est idoneus quod est criminosus schismaticus inveteratus or the like For although it belongs not to the Kings Court to determine schismes or heresies yet the original cause of the suit being matter whereof the Kings Court hath conusance the cause of the schisme or heresie for which the presentée is refused ought to be alleadged in certaine to the intent that the Kings Court may consult with Divines to know whether it be schisme or no and if the party be dead may thereupon direct the Iury which is to try it Felons goods for flying cannot be forfeited by prescription 27 If a man flie for felony his owne goods are not forfeited Co. ibid. 109. b. 1. Foxlâ—yes case untill it be found by the indictment before the Coroner in case of death or otherwise lawfully found upon record that the felony was the cause of his flight For if the goods of any shall be forfeited onely by reason of this flying without more then a man may have such goods so forfeited by prescription as he may have waifs estrayes treasure trowe c. but in as much as bona fugitivorum are not forfeited untill the flight be lawfully proved upon record and because things forfeited by matter of record cannot be claymed by prescription which is a matter in suit for this cause they cannot be claymed by prescription 28 Deodands are the goods which caused the death of the party killed by misfortune Co. ibid. 110. b. 4. and are not forfeit Deodands not forfeited by prescription in England untill it be found upon record that they were the cause of his death and therefore they cannot be claimed by prescription no more than bona fugitivorum for which Vide suprà 27. M. 30 31. El. Co l. 6. 47. b. Dowdales case Co. Inst pars 1
32 H. 8. 5. the Plaintife could not have had a new execution for the execution of lands was valuable and accounted in Law for a satisfaction and to avoid infinitenesse there could be but one valuable satisfaction or execution with satisfaction at the Common Law but execution of the body is not a valuable execution and therefore the Plaintife after the Defendants death may have new execution untill he be fully satisfied for that is the end and fruit of his suit Et finis rei attendendus est fines mandatorum Domini Regis per rescripta sua viz. brevia diligenter sunt observandi 22 Hob. 8 case of Essoines 33 Qui adimit medium di rimit finem Littl. § 237. 1 Rescous Replevin Dissesin of reâ—â— and Inclosure are thrée sorts of Rent Service because as Littleton saith the Lord is by them disturbed of the meanes to come by his rent Co. Inst pars 1. 161. a. 4. 2 The turning of the whole streame that runnes to a Mill is a disseisin of the Mill it selfe 9 Ass 19. Mirr cap. 2. Sect. 15. Britt 108. 114. Turning a water-course 118. 141. Co. ibid. 3 If a man be disturbed to enter and manure his land Disturbance this is a Disseisin of the land it selfe for Qui obstruit additum destruit commodum 26 Ass 17. 3 E. 4. 2. per Littl. 49 E. 3. 14. b. And therefore where it is said that a man shall not be punished for suing of Writs in the Kings Court be it of right or wrong it is regularly true Replevin but it faileth in the special case of the Writ of Replevin for the cause aforesaid Fitz. N. B. 42. S. 22 E. 3. 15. 43. Ass 40. 43 E. 3. 20. Faux judgement 10. 8 E. 4. 15. per Moile 2 R. 3. 19. Littl. § 240. Co. ibid. 162. a. 3. Bract. l. 2. 16. Brit. 19. 88. Fleta l. 3. 5. 7. If the Lord of a rent Service Terrified from distraining or the Grantée of a rent charge or Seck be going upon the way to distraine for the rent and the Tenant hearing it forestalls his way and threatens him in such sort that he dare not procéed for feare of the losse of life or member this is also a Disseisin of the rent causa qua supra But this must not be vagus vanus timor sed talis qui cadere possit in virum constantem and not in hominem vanum meticulosum talis enim debet esse metus qui in se continet mortis periculum corporis cruciatum Co. ibid. 172. b. 1. 13 E. 3. Leg. 50. 5 An Infant cannot make his Law of non summons for Infant shal â—â—wage according to the Maxime in Law Minor jurare non potest And therefore in that case the default shall not grieve him for séeing the meane to excuse the default is taken away by Law the default it selfe shall not prejudice him Co. ibid. 233. b. 3. 15 E. 4 3. 5 E. 4. 26. 6 If the Kéeper of a Parke fell or cut any Trées Woods The Keeper 〈◊〉 a Park making wast or Vnder-woods and convert them to his own use this is a forfeiture of his office for destruction of the vert is by a meane destruction of venison So it is also if he pull down any house wherein the hey wherewith the Déer are fed is usually put for that also tendeth to the destruction of the Déer 28 H. 8. Beudloes enter evesque de Londres Hieron Co. l. 9. 50. 95 96. 99. Escape 7 If a Gaoler that hath a prisoner in his custodie upon execution Co. ibid. 260. a. 3. Boytons case suffereth him to go at large though it be with a Keeper he is liable to an escape for he ought to kéep him in salva arctà custodia to the end he may the sooner pay his debt Co. l. 3. 43. b. 4. Entry Release of all actions 8 Where a man may enter Co. Inst pars 1. 286. a. 3. Co. l. 8. 152. a 1. Sir Edward Althams case a release of all Actions doth not barre him of his right because he hath another remedie viz. to enter But where his entry is not lawfull there a release of all actions is by consequence a barre of his right because he hath released the meane whereby he might recover his right As if the Disseisée release all Actions to the heir of the Disseisor which is in by descent he hath no remedie to recover the land because he had no other meanes to recover it but by Action and of that he is barred by his Release An Alien hâ—ndred of Trade 9 To hinder an Alien from getting into his hands by Gift Trade Co. l. 7. Calv. case 17. a. or other lawfull meanes any treasure or other personal goods whatsoever as also an house for his necessary habitation and conveniencie of trading and from maintaining any Action for the same were in effect to denie unto him Trade and Traffick which is the life and support as of every Island so more especially of this Kingdome Release of all demands 10 The reason Co. l. 8. 154. a. 3. Sir Edward Althams case why a Release of all Demands doth barre a man of all his Right Title and Interest in any Lands Tenements Gâ—ods Chattels c. is because by such a Release the meanes and remedies of recovering them are utterly extinct and so by consequence the right and Interest in the things themselves Nusances 11 If a man by erecting a Building or a Wood-pile doth stop up or hinder the light of his neighbours house Co. l. 9. 58. a. 2. Aldreds case or if by building an Hogs cote néer his neighbours dwelling-house he much annoyes the same or makes the aire infectious or unholsome an Action upon the case will lie in either of these cases for hereby he hinders and interrupts the peaceable dwelling of his neighbour which is the principal end for which the house was at first erected A Legacie of a Lease 12 A. possest of a Lease for 500 yeares deviseth it to B. for life the remainder to C. and his heires and dies Co. l. 10. 51. b. 3. Lampets case here albeit the whole terme be in B. and C. hath nothing but a possibility or a future Interest and therefore cannot grant it over yet in as much as the Legacie or Devise to C. is in esse and present and therefore may be discharged the Interest also which springs from the Legacie may likewise be discharged for Qui distruit medium distruit finem And therefore if oâ—e devise to another 20 l. when he comes to the age of 24 yeares and die the Legatorie after the age of 21 yeares may release this Legacie and devise and although he afterwards attaine to the age of 24 yeares he shall be barred to recover it and yet in this case a Release of all
by such defeasible title admit any of the Tenants upon surrender made to the use of another or gives admittance to the heire upon descent such admittances are good because grounded upon the custome of the Mannor and therefore such acts are lawfull and quodam modo judicial which he may be forced to do in a Court of Equity and for that cause such admittances will binde those that right have c. Copihold â—ce leased â—e custome is â—estroyed 41 If a Copihold estate be forfeit or escheat Co. l. 4. 3. 1. a. 3. Frenches case or otherwise fall into the Lords hands if the Lord make a lease for years thereof or for life or any other estate by déed or without déed or suffer if before any new grant thereof to be extended upon a Statute recognizance or the like or if the Feme of the Lord have it assigned unto her in dower c. In all these cases and the like the custome which supports the Copihold tenure being destroyed the tenure it selfe is also destroyed so that it shall never after be granted by Copie or holden by Copie of Court Roll Howbeit after it is so forfeited or escheated as aforesaid the Lord may kéep it as long as he please in his hands before he makes any voluntary grant of it and yet the Custome shall be preserved because it is all that while demised or demisable and so it ought to be by the Custome c. â—ease void â—on a void â—nsideration 42 The Kings patentée for years assigns divers parcells of the land to other severall persons still reserving to himselfe part thereof Co. l. 5. 94. a. 1. Barwicks case and takes another lease in reversion for 21 years the principall consideration whereof was the surrender of the old lease whereof he had assigned divers parcels to others as aforesaid And after 3 years of the last lease were expired in consideration of the surrender of the same last lease the King grants him another of all the same land for thrée lives In this case the last grant of the lease for lives was adjudged void because when the Patentee took the second lease the consideration thereof was the surrender of the first lease which could not be any good consideration for that he had before assigned divers parcels of the land to others and then the King was deceived in his Grant and by consequent the second lease was void Now therefore the surrender of the second lease which was void being the consideration of granting the last lease for lives that last lease being granted upon a consideration which was not valuable must néeds be void also â—meys acâ—ats 43 If a Writ abate for Non-tenure of all Co. l. 6. 10. a. 4. Spencers case the Demandant shall not have a new writ by Journeys accounts because the first writ was taken out without cause or ground 33 H. 6. but a praecipe of a Mannor being abated for non-tenure of parcell the Demandant shall have a Writ by Journeyes accounts because the Tenant is Tenant of the residue for which the Writ is brought and it were hard to force the Demandant to discover in whom the estate of every parcell of the Mannor stands 4 E. 3. 159. â—dable leaâ— 44 When voidable leases being void for a time Co. l. 7. 8. a. 2. The Earl of Bedfords case shall be ever after avoided and when not this difference is taken viz. when the interest of him that makes the avoydance is but for part of the terme so that after his interest determined a residue of the terme doth still remain and when he that makes the avoydance so avoyds the whole interest that no part of the terme at all doth remain after such avoidance As if Tenant in taile of Lands in Capite make leases not warranted by the Statute of 32 H. 8. 28. and die his heire being under age In this case although the King in right of the heir may avoid those leases for his time yet if after the Kings interest determined the heir accepts the rent they shall be thereby made good again But if the Patron of the Church of D. grant the prochein avoidance to another and after and before the Statute of 13 Eliz. the Parson Patron and Ordinary had made a lease for years rendring rent and the Parson had died and the Grantée had presented a Clerk who had béen admitted instituted c. in this case that lease had béen absolutely destroyed and the Successor although the Patron that was party to the lease present him shall avoid it c. Co. l. 8. 43. b. 4. in Whittinghams case 4 H. 6. fol. 2. 45 A man seized of certain Lands in right of his wife Deseasable 〈◊〉 states makes feoffment by déed indented of it to certain persons upon condition that they shall let the Land again unto the Baron and Feme for their lives with divers remainders over in taile the remainder to the right heirs of the Baron and after the Baron dies the Feoffées let the Land to the Feme for life the remainders over in taile the remainder to the right heirs of the Feme whereas it should have béen to the right heirs of the Baron In this case when the heir of the Baron enters for the condition broken by his entry the feoffment that made the discontinuance is defeated and so by consequence the discontinuance it self is defeated also so that the Feme may enter and shall be in as of her former estate Co. l. 8. 75. a. 3. in the Lord Staffords case per Coke chief Iustice 46 When one estate is to increase upon another estate by force of a condition precedent the first estate ought to be permanent Estates by â—â—cruer which may serve as a firme foundation whereon to build the future estate and not removeable at the will of the Grantor or Lessor And therefore if a man grant an Advowson to another at will upon condition that if he do such an act he shall have fée In this case the estate at will is no such foundation as the Law requires to support the encrease of an estate of Franktenement or Inheritance for the Grantor may determine his will before the performance of the condition and so avoid his owne grant and a Lease at Will cannot support a remainder over So likewise if a man grant an Advowson Rent c. for years upon condition if the Lessée within a yeare pay 10 s. he shall have for life and if he pay 20 s. within another yeare after he shall have fée the Lessée performs both conditions yet shall he have but for life for the estate for life at the time of the Grant was but in contingency which is no foundation upon which a greater estate may encrease because a possibility cannot encrease upon a possibility and the estate of Fee-simple cannot encrease upon the estate for years for that is drowned by the
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
The case of the City of London upon the forfeiture of the paine of 5 l. for that he non existens libera persona c. usus est manuali occupatione de Tallow-chandler c. And upon the return of the Habeas Corpus into the Kings Bench the Court tooke advisement upon that part of it whereby it was averred that he non existens c. usus est manuali occupatione de Tallow-chandler c. and shewed not that he sold any Candles c. For if he made them for his owne use and sold none for gaine he might well do it as every one is permitted to bake or brew c. for their own use c. but it seemed to be implyed by the same averment that it was his trade by which he got his living viz. by selling the commodities of his Trade and not that he made them onely for his own use For it is not properly said that one useth a manual occupation when he onely doth it for himselfe as he that brews or bakes for his own use cannot be properly said to use the occupation of Brewer or Baker c. Malice praepence implied in indictments 12 If one kill a Minister of Iustice in the execution of his office Co. lib. 9 67. b. 3. Mackallies case the Indictment may well be general viz. that the Prisoner felonicè voluntariè ex malitia sua praecogitata c. percussit c. without alleadging any special matter for the evidence will well maintain the Indictment inasmuch as in this case the Law implies malice praepence So if a Thiefe which offers to to rob a true man kils the true man in resisting the Thiefe this is murder of malice praepence or if one kill another without any provocation or without any malice praepence that can be proved the Law adjudgeth that to be murder and implies malice And in both these cases they may be indicted generally that they killed de malice praepence for malice implied by the Law being given in evidence is sufficient to maintaine the generall indictment And so it was adjudged in Mackalleyes case for killing Fells a Serjeant of London Nuper implies the time past 13 If a man plead Co. l. 10. 59. b. 1. The Bishop of Sarums case Co. l. 10. 75. b. 2. The case of the Marshalsea that such a grant made per Iohannem nuper Episcopum Sarum c. was void These words nuper Episcopum c. imply and import that now he is not Bishop of Sarum Jurisdiction of a Court prohibited 14 When a Court is prohibited by Statute to hold plea of certaine causes if one be sued there contrary to that Statute he may not onely have a Supersedeas in the nature of a prohibition to cause the Iudge to cease proceeding but likewise shall have an action upon that Statute against the party that sues contrary to the same Statute notwithstanding that it is in course of legal proceeding and that the words of the Statute do not expressely give any such action to the party for that way of reliefe is a benefit which as a consequent is implied in every such Statute Co. lib. 11. 76. a. 4. Magdalen Colledge case 15 By the Statute of 18 Eliz. cap. 2. Good conâ—â—â—â—ration impâ—â—ed no conveyances of the Quéen are confirmed but such as are for the satisfaction of debts c. and other good consideration for so it is in the preamble and although good is omitted in the body of the Act yet it is necessarily implyed not onely by the connexion of the pâ—eamble to the purview but also by this word consideration which as in 16 Eliâ— Dyer 336. is a cause or occasion meritorious requiring a mutual recompence in Déed or in Law Co. lib. 11. 86. b. 3. The case of Monopolies 16 It appears by the Writ of Ad quod damnum in F. N. B. 222. Monopoliâ—â— that every gift or grant of the King hath this condition either expresly or implicitely annexed unto it Ità quòd patria per donationem illam magis solito non oneretur sèu gravetur And therefore every grant made in grievance or prejudice of the Subject is void Co. l. 11. 98. a. 4. James Bags case 17 There is a condition in Law tacitè annexed to the fréedome or liberty of a Citizen or Bâ—rgesse which if he break A Freemaâ— a Corporaâ— he may be dis-infranchised as if he commit any act which is against the duty and trust of his fréedome and to the prejudice of the City or Burrough and against the Oath which he tooke when he was made Frée-man these are causes of his removal Fitz. N. B. 134. f. 18 If the Tenant holds of his Lord by Homage Ancestrel Homage Ancestrel impâ— a warranty and is impleaded Albeit he hath no charter of it yet shall he have a Writ of Warrantia Cartae against the Lord for that tenure implies a Warranty Fitz. ibid. g. 19 If a man without deed makes a gift in taile Warranty aâ—plied or a lease for life rendring rent and after he is impleaded in an action wherein he cannot be vouched In that case he shall have a Writ of Warrantia cartae against the Donor or Lessor or his heire that hath the reversion for the reversion and the rent reserved makes a Warranty in Law by the Statute of Bigamis cap. ultimo albeit he hath no déed of it Fitz. ibid. h. 20 If a man grant land by these words Dedi concessi Dedi implies a warranty c. he shall be bound to Warranty during his life but not his heirs unlesse he be thereunto especially charged by the Grantor for these words Dedi concessi c. imply a Warranty and if the Feoffée be impleaded he shall have a Writ of Warrantia cartae against the Feoffor by force of those words in the deed c. 4. Dyer 26. 171. 28 H. 8. 21 Russell brings an action upon the case against A. for saying that he was a false Thiefe An action of the case for words and that such a night he would have robbed him to his damage c. And A. comes Et defend it vim c. quoad propalationem c. querens non fuit damnum in forma qua c. to which plea the Plaintiff demurred in Law and Iudgement was given for him because by implication the words are confessed and no damage can be more grievous then taking away a mans good name and a Writ of Inquiry was awarded 22 Vide Max. 19. Pl. 1. Dyer 41. 4. c. 30 H. 8. 23 In a Replevin the Plaintiff is non-suit Replevin Second deliverance whereupon the Defendant had a Returno habendo but about the same time the Plaintiff prays a Writ of second deliverance and had it and both the Writs were in the Sheriffs hands at one time unserved In this case the Writ of
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
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
that Service is not performed the Lord hath his remedy in foro seculari because the Service being certain proof thereof may be made in a temporal Court It is otherwise of tenure in frank-almoigne for that Service being spiritual and uncertain must be deâ—â—ned and recovered in foro Ecclesiastico in an Ecclesiastical Court unto which Court the Connusance of that cause doth properly belong c. Tenants in common for Rent arrear 9 If two tenants in common of Lands in fée make a gift in tail Co. ibid. 197. Litt. §. 314. or a lease for life reserving a yearly rent and a pound of pepper and an hawk and an horse and they are seised of that service and afterwards all the said service being arrear they distrain for it and the tenant makes rescâ—us In this Case as to the rent and pound of pepper they 〈◊〉 have two several Assises because the two tenants in common hold the reversion unto which that service is incident by several titles but as to the hawk and horse albeit they be tenants in common c. they shall joyn in the Assise for one of them above by himself cannot make his plaint in Assise for the moity of an hawk or of an horse because the Law will never suffer any man to demand any thing against the order of nature or reason as it appeareth by Littleton § 129. Lex enim spectat naturae ordinem c. Conditional â—eoffments â—or obligations 10 If A. enfeoff B. of Black acâ—e Co. ib. 208. b. 4 upon condition that if C. enfeoff B. of White acre A. shall re-enter In this Case C. hath time during his life to make the feoffment if B. doth â—oâ— hasten it by request and so likewise of all Obligation Howbeit in some Cases although the condition be collateral as aforesaid and is to be performed to the Obligée and no time limited c. yet in respect of the nature of the thing the Obligor shall not have time during his life to perform it As if the condition of an Obligation be to grant an Annuity or yearly rent to the Obligée during his life payable yearly at the Feast of Easter this Annuity or yearly rent must be granted before Easter or else the Obligée shall not have it at that Feast during his life sic de similibus And so it was resolved by the Iudges of the Common Pleas in Andrews case for which see Dier 14. Eliz. 311. â—he like 11 If a feofment or bond be made upon condition Co. ib. 210. a. 4 that the Feoffor or Obligor shall pay a certain sum of money to the feoffée or obligée at such a day but no place limited for the payment thereof In this case the Feoffor or Obligor ought to séek out the feoffée or obligée to make payment thereof accordingly if he be to be found within England c. for in case of an Obligation the Law was alwayes clear and in case of a feofment although it hath béen sometimes controverted yet at this day that doubt is setled it having béen oftentimes resolved that séeing the money to be paid is a sum in grosse and collateral to the title of the land the feoffor must tender the money to the person of the feoffée and it is not sufficient for him to to tender it upon the land otherwise it is of a rent that issueth out of the land Howbeit if the condition of a bond or feoffment be to deliver twenty Quarters of wheat or twenty loads of timber or the like the Obligor or Feoffor is not bound to carry the same about and to séek the Feoffée or Obligée but the Feoffor or Obligor before the day must go to the Feoffée or Obligée and know where he will appoint to receive it and there it must be delivered And so note a diversity betwéen money and things ponderous or of great weight Likewise if the Condition of a Bond or Feoffment be to make a Feoffment there it is sufficient for him to tender it upon the Land because the State must passe by livery c. Co. ibid. 285. b. 3. 12 Every man shall plead such pleas as are proper for him Pleas of a disseisor and apt for his defence to be pleaded As a disseisor that hath nothing in the land may plead a release of Actions personal because damages are to be recovered against him and therefore for his defence he may plead it But a release of Actions real he cannot plead because he hath no Estate in the land And none shall plead a release of Actions real in an Assise but the tenant of the land Et sic de caeteris Co. ibid. 338. a. 3. 13 A particular Estate of things that lie in grant cannot commence without déed Things that lie in grant and consequently that Estate cannot be surrendred without déed but albeit a particular Estate be made of Lands by déed yet may it be surrendred without déed in respect of the thing demised because the particular Estate might have béen made without déed And so on the other side if one be tenant by the Courtesie or tenant in Dower of an Advowson Rent or other thing that lies in grant albeit there the Estate began without déed yet in respect of the nature and quality of the thing that lies in grant it cannot be surrendred without déed And so if a Lease for life be made of Lands the remainder for life albeit the remainder for life began without déed yet because Remainders and Reversions though they be of lands are things that be in grant they cannot be surrendred without déed c. Co. ibid. 144. a. 3. 14 A Rent cannot be granted out of a Piscarie a Common No rent oâ—â— of things incorporeal an Advowson or such like incorporeal Inhabitants but out of lands or tenements whereunto the Grantée may have recourse to distrain or which may be put in view to the Re-cognitors of an Assise And although it be out of Lands or tenements yet it must be out of an Estate that passeth by the Conveyance and not out of a right as if the Disseisée release to the Disseisor of Land reserving a rent the reservation is void sic de similibus Co. l. 4. 43. b. 4. in Bibithes Case 15 John Goffe the brother and heir of R. Goffe No accessorâ—e before the 〈◊〉 in manslâ—â—â—hter brings an Appeal of murder of the said R. Goffe against Bibithe as principal and against Hoell David as accessarie before and against David Thomas as accessarie after The principal pleads not guilty and by nisi prius in the County of Manmouth he was found guilty of man-slaughter and not guilty of murder and in this Case it was resolved per Popham Chiefe Iustice totam Curiam in the Kings Bench that Hoell David was discharged because there could not be any accessory before the fact in Case of man-slaughter for
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
Case if the Donée enfeoffe the Donor that is a dis-continuance because so there is a mean Estate that otherwise would suffer wrong and yet would be remedilesse there is the same Law also where the Donée enfeoffes the Donor and a stranger c. for that is also a discontinuance of the whole Land c. â—eme not ouâ—ed 3 If a Feme covert be tenant for life Co. ib. 335. a. 4 and the husband make a feofment in fée and the Lessor enter for the forfeiture this shall not out the woman from her just right for here albeit the reversion was revested yet the dis-continuance did still remain at the Common Law Co. ibid. 369. b. 2 4 If there be tenant for life Statute of 〈◊〉 H. 8. 9. Pretenced rights the remainder in fée by lawful and just title he in the remainder may obtain and get the pretenced right or title of any stranger and shall not thereby incur the penalty of the Statute of 32 H. 8. cap. 9. not onely for that the particular Estate and remainder are all one or that it is a mean to extinguish the séeds of troubles and suits but likewise because by the doing thereof there can happen no prejudice to any stranger Howbeit if a disseisor make a Lease for life lives or years the remainder for life in tail or in fée he in remainder cannot take a promise or covenant that when the Disseisée hath entred upon the Land or recovered the same that then he should convey the Land to any of them in remainder thereby to avoid the particular estate or the interest or estate of any other For the words of the Proviso be buy obtain get or have by any reasonable way or mean and that is not by promise or covenant to convey the land after entry or recovery because that is neither lawful being against the expresse purview of the body of the Act neither yet reasonable because it is to the prejudice of a third person Co ibid. 393 a. 2 5 If one man enfeoffe two with warranty Warranty and the one releaseth the warranty yet the other shall vouch for his moity Co. ibid. 298. a. 2. 6 If a Lease be made to an infant for life the remainder in fée Infant the infant at his full age dis-agrées to the Estate for life yet the remainder good for that it was once vested by gooo title and it is no reason that the practice betwixt the Feoffor and the Infant should prejudice him in remainder who is a stranger c. Litt. §. 636. Co. ib. 338. a. 6 7 If a Feme inheritrix take Baron and have issue a son Feme Inheritrix and the Baron die and she takes another Baron and the second Baron lets the land which he hath in right of his wife to another for term of life and after the Feme dies and after the tenant for term of life surrenders his Estate to the second Baron c. In this Case the son of the Feme may immediately enter which he could not have done if the tenant for life had not surrendred And therefore here Res inter alios acta liberis prodest c. Co. lib. 6. 1. b. Bruâ—rtons case 8 When the tenant holds by an intire service Intire Service as by the payment of an horse or an hawk c. yearly In that Case if the Lord purchase any part of the Land the whole service is extinct but if the tenant alien the Land in parcels to several men that shall give the Lord who is a stranger an advantage and benefit so that every one of the Alienées shall pay an horse hawk or the like For Res inter alios actae nemini nocere debent sed prodesse possent c. Co. lib. 2. 67. a 4. in Tookers Case 9 If the reversion of two tenants for life Attornment or the Rent or Seigniory of two joynt-tenants be granted by fine In a Quid juris clamat quem redditum reddit or a Per quae servitia against such joynt-tenants the one shall not be permitted to attorn without his companion because if the one attorn alone he may prejudice his companion as if he will not claim to be dis-punished of waste or condition to have fée or a future term c. for upon general attornment in Court of Record the Lessée shall lose all advantages which are not claimed upon Record because this question is demanded of him Quid juris clamat c. And therefore he shall have no more then he claims upon Record And for this cause one of the joynt-tenants alone by himself shall not be permitted to attorn upon Record in regard of the manifest prejudice which might happen to his companion in case it should be attornment of both c. Co. lib. 3. 29. a 3. in Butler and Bakers Case 10 It is said that as relations shall extend onely to the same thing Relation and to the same intent so shall they also onely extend betwéen the same parties and shall never be strained to the prejudice of a third person who is neither party nor privy to the said Act And therefore if a man make a feoffment of a Mannor by Déed or without déed and a long time after the livery the tenants attorn to the Feoffée In this Case the attornment by necessity and ut res magis valeat shall have relation by fiction of Law to passe the services ab initio yet this relation shall not charge the tenants for the arrerages in the mean time So if Feoffée upon condition grant a Rent-charge of the land and after the Grantée brings a writ of Annuity here ab initio this was an Annuity betwéen the Grantor the Grantée but as to the feoffor who is a stranger and is entituled to enter for the Condition broken it shall have no relation to his prejudice Likewise in 30 E. 3. 17. in a Dum fuit infra aetatem against Richard Spellow the tenant saith that his father was seised and died seised and so prayeth his age the Demandant counterpleads the age because the tenant and his father were joyntly enfeoffed and to the heirs of the father And it was adjudged that the tenant should not have his age for albeit this refusal of taking the land by purchase shall have relation as to himself yet as to the Demandant who is a stranger it shall not have relation to delay his Action when in truth the tenant had the frank-tenement by purchase Devise of the third part descended 11 W. B. and his wife were seised in tail of the Mannor of Hinton Co. l. 3. 29. b. 2 in Butler and Bakers Case for the Ioynture of the wife holden in Capite and W. B. was also seised of land in Fobbing which Mannor and Lands did amount to a full third part of all his lands he was likewise seised of the Mannor of Thoby
Rubro cap. 78. where it is said Qui servum suum liberat in Ecclesia vel Mercato vel Comitatu vel Hundredo coram testibus palà m faciat liberas ei vias portas conscribit apertas lanceam gladium vel quae liberorum arma in manibus ei ponat c. Co. ibid. 139. a. 4. Littleton §. 209 8 The Law doth tender much the liberty and fréedome of the subject in general But especially of a Commialty A Custome 〈◊〉 have a fine sâ— marrying tâ— Daughter void as if a Lord of a Mannor will prescribe that there is a Custome within his Mannor that every Tenant that marieth his Daughter to any man without the Lords licence shall pay a fine to the Lord this is a void Custome to bind a Frée-man for every Frée-man may marry his Daughter to whom he and the pleaseth And therefore to claim such a fine by a general Custome within a Mannor is against the fréedom of a Frée-man that is not bound thereunto by particular term tenure c. Howbeit such a Custome will hold amongst Villeins or amongst Frée-men that hold in Villeinage or base tenure c. Co. ib. 156. b. 1 9 At the Common Law upon an indictment or appeal of Treason Peremptory Challenge or Felony the Prisoner might in favorem vitae challenge peremptorily viz. 35. which was under the number of thrée Iuries But by the Statute of 22 H. 8. cap. 14. the number was reduced to 20. in petty Treason Murder and Felony and in Case of high Treason and Mis-prision of high Treason it was taken away by the Statute of 33 H. 8. cap. 23. and afterwards by the Statute of 1 2 Ph. M. cap. 10. the Common Law was revived So that now for any Treason the Prisoner shall have his challenge to the number of thirty five as before And so it was resolved by the Iustices upon conference betwéen them in the Case of Sir Walter Raleigh and George Brooks Co. ibid. 157 b. 4 And albeit the Offender be not arraigned upon the Crime it self but the issue is joyned upon a collateral point yet shall the party have such challenges as aforesaid As if a man be out-lawed for Treason or Felony at the Kings suit and the party for avoyding thereof alledgeth Imprisonment or the like at the time of the Out-lawry In this Case although the Issue be joyned upon a collateral point yet shall the party in favorem vitae have such challenges as if he had béen arraigned upon the offence it self because this also by a mean concerneth his life And it is to be observed that this kinde of challenge is called peremptory because the party may challenge peremptorily upon his own dislike without shewing any cause at all Howbeit if the Defendant challengeth for cause he must shew the cause presently and then also albeit the Iuror be tried indifferent yet may the party afterwards challenge him peremptorily And all these priviledges concerning Challenges are granted to the Defendant in favorem vitae c. â—n criminal Cases no priâ—y verdict 10 By the Law of England Co. ibid. 158 a. 2. a Iury after their evidence given upon the issue ought to be kept together in some convenient place without meat or drink fire or candle which some Books call imprisonment and they are to have no spéech with any unlesse it be the Bailiff and with him onely after they are agréed When they are so agréed they may in Causes betwéen party and party 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 which concern life and member the Iury can give no privy Verdict but must alwayes give it in open Court and canâ—â—t be discharged by the Court or any other until they have given up their Verdict accordingly c. Life liberty â—espected more â—â—n Infancy 11 Regularly no Laches shall be adjudged in an Infant Co. ibid. 227. b. 2. yet if an Infant hath a Villein that is fled into ancient Demesne and he claim him not within a year and a day that Non-claim of the Villein shall take away the seisure of the Infant and this is in favorem libertatis So if an Infant bring not an appeal of the death of his Ancestor within a year and a day he is barred of his appeal for ever and this is in favorem vitae for the Law respects more liberty and life then the priviledge of infancy â—eare of maâ—ng continuâ—al claim 12 Doubt or fear that concernes the safety of the person of a man Co. ib. 246. a. 2 as Battery Maheim Imprisonment Death c. is sufficient cause to excuse him from going upon the land to make his Claim so that he approach as néer the land as he dare for such doubt or fear but fear of having his houses burnt or of the taking away or spoiling of his goods is no sufficient cause to excuse him because he may recover the same or dammages to the value thereof without any corporal hurt And therefore in such Case he shall go upon the Land to make his claim c. Talis enim debet esse metus qui cadere potest in virum constantem qui in se continet mortis periculum corporis cruciatum Et nemo tenetur se infortuniis periculis exponere 〈◊〉 Felony Out-lawry may be reverâ—ed by plea. 13 If a man be out-lawed Litt. § 419. Co. ib. 259. b. 2 there is two manner of wayes to reverse it viz. by Plea or by writ of Error by plea for when the Defendant cometh in upon the Capias utlagatum c. he may by Plea reverse the same for matters apparent as in respect of a Supersedeas omission of processe variance and other matter apparent in the Record so he do it the same term as some hold But for any matters in fact as Death Imprisonment Service of the King c. he is driven to his writ of Error Neverthelesse in Case of felony he may plead these matters of fact also and that is in favorem vitae c. Co. ibid. 274 b. 2 Finch 29. 14 An expresse manumission of a Villein cannot be upon a Condition subsequent For once frée in that Case and ever frée A Villein free ever And this in favorem libertatis It is other wise of a Condition precedent in the same Case c. Co. ibid. 283 2. 3. 15 The life of a man is so precious in the eie of the Law Life precâ—â—â— in the eie of the Law that it will not suffer by way of plea to justifie in the killing or death of a man And therefore in that Case he shall be received
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
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
being heir in appearance and he is not bound to dis-able himselfe â—â—ministratiâ—â—â—oid and â—â—able 6 If an Ordinary of a Diocesse commits Administration of Goods Co. l. 5. 29. b. 4. in Princes Case Were and Jefferies Case when they are bona notabilia such Administration is méerly void but Administration committed by the Metropolitan when the defunct had not bona notabilia is onely voidable because he hath Iurisdiction in all the Diocesses within the Province and therefore hath sufficient colour to do it Co. l. 6. 65. a. 3. in Sir Moile Finches Case 7 In 41 E. 3. 19. Rich. Tompson had Issue by Joan before mariage one Agnes and after he marries Joan and makes feofment in fée A Bastard takes by yâ— chase and retakes the Estate to himselfe for life remanere inde Agnetae filiae praedict Rich. Johanne and it was agréed that this was a good remainder without any averment that she was known to be their Daughter for albeit by the Common Law she was not their Daughter yet in as much as she had colour by the Ecclesiastical law which saith subsequens matrimonium tollit peccatum procedens this colour is sufficient in Case of a conveyance to make the remainder good and so note the diversity betwixt descent and purchase c. Co. l. 8. 101. per tout in Sir R. Lechfords Case The better opinion per Coke 8 If there be Bastard eigne and Mulier puisne Mulier beyonâ— sea c. and the Father die seised the Mulier being beyond Sea within age in Prison or of non sanae memoriae and the Bastard enter and continue in peacable possession of the Lands and hath Issue and dies and the lands descend to his Issue here the right of the Mulier is for ever bound because he hath colour of legitimation by the Law of Holy Church and the Common Law respects legitimation before the above-said Imperfections Vide plus ibid. Co. l. 10. 76. b. in the Case of the Marshalsea 9 If a Sheriffe holding his Torne after Michaelmas moneth takes there an Indictment of Robbery it is utterly void Things done by warrant contra being coram non judice But if the Court of the Common Bench in a plea of Debt award a Capias against a Duke Earle or c. which by the Law lyeth not against them and that appeares in the writ it selfe here if the Sheriffe arrest them upon the Capias albeit the writ be against Law yet because that Court hath jurisdiction of the cause the Sheriffe hath colour to do it and shall be excused and herewith accords Dier 60. b. 38 H. 8. So also if a Iustice of Peace make a warrant to arrest one for Felony who is not indicted albeit the Iustice erre in granting the warrant yet he that makes the arrest by force of that warrant shall not be panished by writ of false imprisonment because the Iustice is Iudge of the Cause Plow 83. b. 1. in Strange and Crokers Case 10 In 9 H. 6. it is said that if I grant to B. Maintenance that if my Tenant for life die during my life that then B. shall have the Land for 10 yeares Here if my Tenant be impleaded B. may lawfully maintaine in respect of the Colour of title he hath to the Land Co. Inst p. 1. 148. b. 4. 11 Entry into Religion and profession of a Disseisor shall not cause a descent to toll the entry of the Disseisée Bastard Mulier because it is the Disseisors owne Act and not the Act of God as death is yet if there be Bastard eigne and Mulier puisne and the Bastard before claime enter into Religion it is said such a discent shall toll the entry of the Mulier by reason of the colour of title that the Bastard had to the land and such an heire shall also have his age 114 It prizeth the Acts of God and of the Law more then those that are done by the party Co. Inst p. 1. 18. a. 4. 1 Fée-simple being as Littleton saith the largest Estate of inheritance that is Two Fee-simples one Fée-simple cannot depend upon another by the grant of the party as if Lands be given to A. so long as B. hath heires of his body the Remainder over in Fée here the Remainder is void yet in several persons by Act in Law a reversion may be in Fée-simple in one and a Fée-simple determinable in another by matter ex post facto as if a Gift in taile be made to a Villein and the Lord enter the Lord hath a Fée-simple qualified and the Donor a reversion in Fée but if the Lord enfeoffe the Donor now both Fée-simples are united and he hath but one Fée-simple in him â—â—ires female â—ill not take 2 When a man giveth lands to another man and the heirs female of his body dieth having issue a son a daughte◠〈◊〉 daughter shall inherit for the will of the donor the Stat. working 〈◊〉 it Co. ib. 24. b. 3 25. b. 3. 26. b. 4. which is upon the matter an act in law shall be observed but in case of a purchase it is otherwise for if A. have issue a son a daughter a lease for life is made the remainder to the heirs females of the body of A. A. dieth the heire female can take nothing because she is not heire for she must be both heire heire female which she is not because the brother is heire and therefore the will of the giver cannot be observed because here is no gift and therefore the Statute cannot work thereupon so it is if a man hath a son and a daughter and dieth lands are given to the daughter and the heirs female of the body of her father the daughter shall take nothing but an Estate for life because there is no such person she being not heire but where a gift is made to a man and to the heirs female of his body there the Donée being the first taker is capable by purchase and the heire female by discent secundam formam doni â—â—tes may 〈◊〉 altered 3 Regularly Estates cannot be altered from one to another Litt. §. 33. Co. ib. 28. a. unlesse all that have interest joine in the alteration thereof but by the Act of God estates may be changed without any act done by the parties that are interessed as if lands be given to a man and the heirs that he shall engender of the body of his wife here the wife hath nothing and the man is Tenant in special taile therefore in this Case if the Feme die without issue on her body begotten by the Baron the estate in special tail is by the act of God charged into tenancy in tail after possibility of issue extinct â—â—ging of â—â—tes 4 If a feofment in fee be made to the use of a man and his wife for the term
a capias he doth well but if he thereupon returne a non est inventus Sheriffes 〈◊〉 return he shall be adjudged a trespassor ab initio And in such Case in false imprisonment brought against him it is sufficient for him to alleadge that he was Sheriffe and that the capias came to him and that by force thereof he tooke and imprisoned the party and then to demand judgment si action and ought not to say that he returned non est inventus because that makes against him that is makes him a trespassor ab initio but the false returne ought to be alleadged by the Plaintiffe who is to take advantage thereof â—â—ed and â—â—in 4 If the Ecclesiastical Court will enjoyne a man to be examined upon oath for the discovery of any covin or fraud concerning himselfe Hob. 84. Spendlow a Prohibition lyeth for albeit the original cause belongs to their Conizance yet the covin and fraud are criminal and the avowing of the Act to be done bona fide is punishable both in the Starre-chamber and by the penal Law of fraudulent gifts and therefore not to be extorted out of himselfe by his oath 126 Nec se infortuniis periculis exponere 1 In making continual claime if the adverse party lie in waite in the way with Weapons or by words menace to beat mayhem or kill the party that would enter in such Case the Law allowes a claime made as néere the land as he dare approach for feare of death or other bodily hurt Howbeit saith Bracton Talis debet esse metus qui cadere potest in virum constantem qui in se continet mortis periculum corporis cruciatum Et nemo tenetur se infortuniis periculis exponere And therefore every doubt or feare is not sufficient for it must concerne the safety of the person of the man and not his houses or goods for the feare of burning his houses or taking away or spoiling his goods is not sufficient because he may recover the same or damages to the value thereof without any corporal hurt But if the Iury upon a special Verdict do find that the disseisée did not enter for feare of corporal hurt this is sufficient and it shall be intended that they had evidence to prove the same Also it séemeth that feare of imprisonment is sufficient because such a feare sufficeth to avoid a bond or a Déed for the Law hath a special regard to the salfety and liberty of a man and imprisonment is a corporal damage a restraint of liberty and a kind of captivity For the time of doing things it countenanceth more 127 Things done in time of Peace than in time of Warre â—â—â—sin in 〈◊〉 of warre 1 If a man be seised of tenements in fée by occupation in time of Warre and thereof die seised in time of Warre Litt. §. 412. Co. Inst p. 1. 249 a. c. and the tenements descend to his heire such descent shall not out any man of his entry Vide 7. E. 2. Now a time of Peace is when the Courts of Iustice be open and the Iudges and Ministers of the same may by Law protect men from wrong and violence and distribute Iustice to all on the other side when by invasion insurrections rebellions or the like the peacable course of Iustice is disturbed and stopped so as the Courts of Iustice he as it were shut up nam inter arma silent Leges then it is said to be a time of Warre And the trial thereof is by the records and Iudges of the Courts of Iustice for by them it will appeare whether Iustice had her equal course of procéeding at that time or no And this shall not be tried by Iury but by them as afore-said And therefore albeit during these late troubles the Courts of Iustice sate duly at Westminster as in other times of Peace yet quaere whether an occupation and discent at that time within the Kings Quarters would barre the disseisée for although they sate yet had they no power there to execute their judgment Co. ib. 249. b. 2 4. 2 If a man be disseised in time of Peace The like and the descent is cast in time of Warre this shall not take away the entry of the disseisée So likewise in real Actions the Explees or taking of the profits are layed tempore pacis 6 E. 3. 41. Co. l. 2. 93. a. 3 in Binghams Case F. N. B. 31. i. for if they were taken tempore belli they are not accounted off in Law And as it is in Case of discent so it is also in Case of presentation for no usurpation in time of Warre putteth the right Patron out of possession albeit the Incumbent come in by institution and induction And time of warre doth not onely give priviledge to them that be actually in Warre but to all others within the Kingdome And albeit the admission and induction be in time of Peace yet if the presentment were in time of warre it putteth not the right Patron out of possession 3 The Law countenanceth more the procéeding against a Felon in time of peace then in time of Warre And therefore if a man commit Felony in time of Peace he shall by judgment forfeit his lands thrée manner of wayes 1 quia suspensus per collum 2 quia abjura vit regnum 3 quia utlagatus est but they who are hanged by Martial Law in favorem belli forfeit no lands 128 Things done in the day more then those done in the night Co. Inst p. 1. 135. a. 4. Mirr l. 5. §. 1. 1 It is not lawfull to hold pleas in the night time or before Sun-rise And therefore the Mirroir saith No pleas the night Abusion est que lon tient pleas par Dimenches v. Sondayes ou par outres jours defenders or devant le Soleil levy ou nectanter c. Co. ib. 142. a. 3 2 For damage fesant a man may distraine in the night No distressâ— the night because otherwise it may be the beasts will be gone before he can take them but for a Rent or service the Lord cannot distraine in the night but it ought to be done in the day time and so it is also of a Rent-charge Vide suprà 110. R. 4. Co. l. 7. 6. b. 2. in Milbornes Case 3 For Robbery committed in the morning ante lucem No pursuit the night the Hundred shall not be charged And albeit no time be specified in the Statute of Winchester 13 E. 1. yet it shall not extend to Robbery done in the night because no laches or negligence can be adjudged in the Hundred for default of a good guard in the night Neither can they in the night make pursuit or inquire after them for as the Scripture saith The day is made for man to labour in and the night to rest Note that the Statute of 27 El. 13. hath altered this Law
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
and part against him or all or part against one of the Tenants or Defendants and nothing or but part against the other the Demandant or Plaintiff shall be amercied except no default be found in the Demandant or Plaintiff And therefore in Trespasse of Battery against Baron and Feme supposing the Battery to be done by both and the Feme is onely found guilty c. and the Baron acquit yet the Plaintiff shall not be amercied for the Plaintiff cannot have any other Writ in such case and therefore because no default was found in him he shall not be amercied in this case The Kings ward dyes before homage 42. The Kings Tenant in Capite under age is to remaine in Ward Co. l. 8. 172. a. Hales case Prerogativa Reg. cap. 3. and the King is to receive the profits of his land untill he do his homage and that cannot be untill he have sued out his Livery And if at his full age he tender his Livery he is to have three moneths to perfect it Howbeit if after such tender by the Act of God viz. death he is prevented to perfect it the King shall not receive the profits after such tender but the next heire shall have them and after such tender he might in that case sell the Land or any part thereof and the sale shall be good notwithstanding the Kings hands upon it Co. l. 9. 87. a. 4. in Pinchons case 43. It is a Rule in Law Where wager of Law in the Testator Executors not chargeable that where the Testator might have waged his Law his Executors shall not be charged with that duty contra because that advantage is lost by the act of God viz. by death and therefore shall not be imputed to any default of his So debt lyeth not against Executors for the dyet of their Testator because he might in that case have waged his Law and so have freed himselfe thereof which advantage being lost by his death and no fault of his his Executors who represent his person shall not be prejudiced thereby Howbeit if a Prisoner in the Tower for treason receive his diet of the Lievtenant and dye the Lievtenant shall have an Action of debt against his Executors for such diet of the Testator and the reason is because in that case the Testator could not in his life time have waged his Law as it is adjudged in 27 H. 6. 4. b. in Thomas Bodulgats case And the reason why no wager of Law lyeth in such case is because every Goaler ought to keep his Prisoner in salva arcta custodiae and so must of necessity finde him victualls c. Vide pl. ibid. Co. ibid. 87. b. 4. 44. In 14 H. 6. 19. b. R. G. brings a Writ of debt of ten marks against T.T. and others Executors of W. W. and counted The like that the Testator had retained the Plaintiff to be with him for a yeare in the art of limming of Books paying him ten marks per annum and there Martin held that the Action of the Executors was not maintainable And he took a difference betwixt this case of a Limmer and that of a common Labourer for a Labourer shall be compelled to labour and his salary is put in certaine by the Statute and therefore there is no reason that the Servant should lose by the death of his Master being bound by the Law to serve which shall not be said to be his default but the Act of God and the Law Howbeit in the case of a Limmer he was not compelled by the Law to serve And so when he made the Covenant it was his owne act and folly and no act in Law and he might have taken a Specialty And this is good Law but the true reason of that difference is because in the Case of a common Labourer the Testator could not wage his Law but in that of a Limmer he might c. Vide pl. ibid. Co l. 10. 76 b. 2. in the case of the Marshalsey 45. If the Court of Common Bench in Plea of debt award a Writ of Capias against a Duke Earle Erroneous arrests c. which by the Law lyes not against them and this appeares in the Writ it selfe yet if the Sheriff arrest them by force of the Capias albeit the Writ is against Law neverthelesse the Court having Iurisdiction of the cause the Sheriff shall be excused because there is no default in him but in the Court and with this accords 38 H. 8. Dyer 60. b. So it is likewise if a Iustice of Peace makes a warrant to arrest one for Felony who is not indicted albeit the Iustice ers in the Warrant yet he that makes the arrest by force of that Warrant shall not be punished by a Writ of False Imprisonment because is is not his fault but the Iustices who is Iudge of the cause and with this agrees 14 H. 4 16. Co. l. 11. 27. a 3 in Henry Pigots case 46. If the Obligee himselfe alter the Obligation in any point materiall or not materiall by interlining addition racing or the like An Obligation void or not void by rasure c. that shall make the Obligation void but if a stranger do it without the Obligees privity in a point not materiall that shall not avoid the Deed as if an Obligation be to be made to the Sheriff for apparance c. and in the Obligation after the sealing and delivery thereof these words Vicecom Comit. Oxon are interlined by a stranger without the privity of the Sheriff yet the Obligation remaines good notwithstanding such interlining by a stranger without the Obligees privity in regard it was not conceived to be a point materiall Benedicto Winchcombe his name and sirname being there inserted before and being done by a stranger it shall not in that case prejudice the Obligee Refusall of Clerk 47. Where the Bishop refuseth the Clerke of the Patron for non-ability or crime he shall not present by Laps F. N. B. 35. i. unlesse he have first given notice to the Patron of the insufficiency of his Clerk the Patron neglect to present within the six moneths for in such case after the six months past the Patron shall have a Writ to the Bishop if the Church be void and the Bishop have not in the meane time collated 48. If one sell another a peice of Cloath and warrant it to be of a certaine length in this case if the peice be not of that length F. N. B. 98. k. a Writ of Disceit lyeth against the Vendor albeit the Warranty be but by Parol Custome of Woad uncertaine by tempest 49. In Fogassaes case in the Coment Pl. Com. â— b. 1. in Fogassaes case the storme at Sea being a thing that could by no possible meanes be prevented and that causing the uncertainty of the quantity of the Woad and there being no meanes of knowing the certainty thereof
their Custody to charge him with a Capias ad satisfaciendum to prevent an escape upon the Capias was condemned by all the Court of Starre-Chamber in the Countesse of Rutlands case because by the colour of Law and Iustice they by such feigned meanes do contrary to Law and Iustice and so cause Law and Iustice to be the Author of wrong and Injustice Seisin of rent 30. If A. having a Rent-seck issuing out of the Mannor of D. Co. l. 6. 58. a. 1. in Bredimans case granted unto him but no seisin thereof plots with B. to disseise the Ter-tenant to the end that after such disseisin B. may give him seisin of the Rent this seisin shall not bind the disseisee or he that right hath for the Covin makes it unlawfull Fraudulent Leases 31. The Father leases by Fraud and dyes Co. l. 5. 72. b. in Burrells case the Son knowing of it or not sels the Land in this case the Vendee shall avoid those Leases by the statute of 27 Eliz 4. so it is also where the Father leases to the Son who assignes fraudulently and then sells the Land c. False Deed. 32. If a man deny the Deed of his Ancestor Co. l. 8 60. a. 1. in Beechers case 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 delicto c. But if the Tenant or Defendant plead a false Deed made to him or deny his own Deed and it is found against him or if he relicta verificatione cognoscit actionem he shall be fined for his falsity quia certi debemus esse de proprio facto Co. l. 8. 127. a. 1. in the City of Londons case 33. Where the custome is Inward shop that no Forraigner shall sell in any open Shop in paine to be fined he is a greater offender that trades there in an inward Shop or Chamber for such places are more dangerous and offensive then outward Shops because they may there use deceit and are not subject to search Qui male agit odit lucem omnia delicta in aperto leviora sunt See there likewise the case of the Prior of Dunstable to the like purpose Co. l. 8. 134. Mary Shipleys case 34. If an Executor plead pleni administravit Executor assets and assets be found by the Iury in his hands they shall pay the debt as far as they will answer but if they come short he shall answer the damages of his own goods for his false Plea Co. l. 9. 17. b. 1. in Ann Bedingfeilds case Co. ibid. 19. a. 3. 35. If a Feme having title of Dower do deceitfully detaine the Charters which concerne the Lands Rebutter in Dower out of which she is to have Dower assigned that is a good rebutter of the Action in a Writ of Dower brought by her against the Heire So if she deceitfully conceale and detaine the heire the Guardian in Chivalry may plead it against her in bar of her Dower but he cannot plead detainer of Charters which concerne the heire because they shall not be delivered to him Co. l. 9. 20. b. 4. in the case of Avowry 34. The Law will never suffer falsehood to suppresse truth Avowry and therefore if there be Lord and Tenant by Fealty and Rent and the Tenant make a Lease for years and the Lord distraines when there is no Rent or Services behind the Cattell of the Tenant and avowes upon a meere stranger as his true Tenant with purpose to charge the Plaintiff unjustly In this case the Lessee upon shewing the whole matter in speciall may pray in aid of the Lessor and shall thereby compell the Lord to avow upon the Lessor as his true Tenant and the false Avowry of the Lord upon the stranger who is not Tenant shall not annoy the Lessee against the truth of his case quia veritas nihil veretur nisi abscondi Co. l. 10. 110. a. 2. in Arthor Legats case 35. A false suggestion in the Kings Grant being the words of the Patentee makes the Patent void Void Patents upon false suggestion As where the King grants fifteen Acres of Land as concealed whereas they being parcell of a Mannor the profits thereof are duely answered to the King though occupyed by an Intrudor yet because they are onely detained and not concealed but suggested onely to be concealed the Patent is void So in 19 E. 3. tit grant 58. The King by his Letters Patents gives licence to appropriate the Advowson of D. to the Prior of C. Quae quidem advocatio non tenetur de nobis c. and in truth the Advowson was held of the King and the licence was held void for the Book saith that the suggestion was false And in 21 E. 4. 48. if the King grant the Mannor of D. c. Quod quidem manerium ad manus nostras devenit ratione eschaet c. and in truth the Mannor did not come to the King by escheat in this case also the Grant was void and the reason that Hussey cheife Iustice there gives is for that the falsehood comes of the surmise of the party Co. l. 11. 73. b. 4. 74. a. 4. in Magdalen Colledge case 36. A Grant to the Queen by the Master and Fellowes of Magdelen Colledge in Cambridge The like of an House in London rendring 15 l. per annum Rent upon Condition that she should re-grant it to Benedict Spinola Merchant Dâ—nizen and his heires was adjudged void because they made use of the Queens Prerogative to alien the Lands of the Colledge which they were prohibited to do by the Statute of 13 Eliz. within which Statute the Queen is included So if one intending to sell his Land had by Fraud conveyed it by Deed inrolled to the Queene with purpose to deceive the Purchasor and after he sels the Land for a valuable consideration and makes conveyance accordingly in this case the Purchasor shall enjoy the Land against the Queen by the Statute of 27 Eliz. 4. for albeit the Queen is not excepted yet the act being generall and made for suppressing of fraud shall bind the Queen c. vide pl. ibid. Covin in Feoffment Recovery Remitter 37. In Trin. 19 H. 8. fo 12. Br. Remitter 1. Pl. Co. 51. a. in Wimbish and Talboies case ibid. 54. b. 4. If one disseise the Discontinuee in tail by covin to the intent to enfeoff the Issue in tail within age who had no knowledge of the covin he enfeoffs him accordingly in this case by the better opinion the Issue in tail shall not be remitted notwithstanding his good title and the onely cause hereof is the covinous intent for covin may alter the matter where the title is good so if my Ancestor disseise me to the intent to make Feoffment with warranty to bar me here albeit the Warranty be
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
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
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
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
sutes Co. l. 10. 48. a. 3. in Lampets case great oppression of the people principally of terre-tenants and the subversion of the due and equal execution of Iustice the wisdom and policy of the Sages and Founders of our Law have provided that no possibility right title or thing in action shall be granted or assigned to strangers and as they cannot be granted by the act of the party so right of action cannot be transferred by act in Law as unto the Lord by escheat neither shall the Lord of a Villein have things in action as appears in 22 Ass pl. 37. c. Co. l. 3. fol. 1. And in the Marquess of Winchesters case Right of action to land was not given to the King by an Act of Attainder And all this was for the quiet and repose of terre-tenants Howbeit all rights titles and actions may by the like prudence and policy of the Law be released to the terre-tenant for the same reason of his repose and quiet and for the avoidance of contentions and sutes and that every one may live in his vocation in peace and plenty Ecclesiastical livings 26 To preserve Ecclesiastical possessions from alienation in prejudice of the Successor Co. l. 10. 60. a. 3. in the Bish of Sarums case the prudence of the Sages of the Law did provide that no sole Corporation should be trusted with the disposition of his possessions as to bind his Successors but in such case they were to have the consent of others as the Bishop was to have the consent of his Dean and Chapter the Abbot of his Covent the Parson of his Patron and Ordinary sic de caeteris Auditor of the Court of Wards 27 The Law to prevent any miscarriage in matters of Iudicature hath provided Co. l. 11 4. a. 2. in Auditor Curles case that no judicial office shall be granted in reversion and the rule of Law in this point is Officia Judicialia non concedantur antequam vacent And the reason is to prevent a great inconvenience which may insue thereupon for that he who at the time of the grant in reversion may be able and sufficient to supply the office of Iudicature and to administer equal justice to the Kings Liege people may before the office fall become unable and insufficient to perform it And therefore the Kings grant of the office of Auditor of the Court of Wards unto John Churchil and Iohn Tooke in reversion after the death of Walter Tooke and William Curle was adjudged void because it was an office of Iudicature in that Court and therefore could not be granted in reversion Error in London 28 If a man hath judgement given for him in London in the Sheriffs Court F.N.B. 24. a. or before the Maior and Sheriffs in the Hustings of London and the defendant to delay the execution of the judgement sues a writ of Error to remove the Record before the Maior c. in the Hustings or before certain Commissioners if the judgement be given in the Hustings c. and afterwards the defendant eloyns his goods goods out of the City or wasts them to the intent that the plaintif should not have execution of those goods In this case the plaintiff may have a special writ directed to the Maior and Sherifs to take order that so many of the goods of the defendant as amount to the value of that which is recovered may be safely kept to satisfie the plaintif if he shall have the judgement affirmed for him so as execution of the former judgement may be made c. of the same goods c. Security of the Peace 29 Before a man can have security of the Peace against another F.N.B. 79. h. lest the cause of his complaint may arise rather from malice than any just ground of fear the party complainant ought first to make oath that he requires the Peace against the other for the safeguard of his body and not out of malice And this course is stil used in the K. B. and before Iustices of Peace And it was also the usual course in the Chancery to make such oath before a Master of that Court before he could have it granted but of later times that course hath been left in Chancery which Fitzharbert saith is not well done because such prosecution for the most part procéeds rather from malice than any just cause of fear F.N.B. 113 a. 30 The King of right ought to save and defend his Realm as well against the Sea as against Enemies Oyer Terminer for Nusances that it be not surrounded and laid waste and to provide remedy for the same and also to take order that his subjects may have their passage throughout the Realm by bridges and safe wayes c. And therefore if the banks of the Sea be broken or the Sewers and drains be not scowred that the fresh waters may have their direct course the King for the prevention of such damage as may happen by reason of such defaults might by the Common Law before any Commissions of Sewers c. grant commissions to inquire hear and determine such defaults Pl. Co. 67. a. 2. in Dyve Maninghams case 31 The persons mentioned in the second branch of the Statute of 23 H. 6. 10. viz. such as were in ward by Condemnation Bailment exemption Capias utlagatum or excommunicatum surety of the peace or committed by command of the Iustices or Vagabonds refusing to serve were not bailable by the Common Law before that Statute for the Inconveniences which might ensue thereupon Co. l. 5. 83. b. in the case of Market overt 32 No sale of stoln goods but in a Market overt Market overt alters the property And therefore if stoln plate be openly sold in London or elswhere in any other market overt in a Scriveners shop that sale alters not the property because it is no market overt for plate it is otherwise if it be openly sold in a Goldsmiths shop but if the sale be there behind a hanging or Cupboard or in a ware-house or other part of the house and not openly that passengers may observe it such sale alters not the property And this the Law hath ordained to prevent felony c. Vide Max. 191. 3. 134. 14. Co. Iâ—st pars 1. 6. b. 4. 31 It was resolved in the C. B. Pasc 10. Feme covert no witnesse for the Baron Iac. that a wife cannot be produced as a witness either against or for her husband and one of the reasons of that resolution was in respect it might be a cause of implacable discord and dissention betwixt the husband and wife and a mean of great inconvenience H b. 36. Druries case 32 Drury brought a Quare Impedit against Kent the Incumbent and others and upon surmise made to the Court Prohibition that Kent did fell timber upon the Glebe and upon the lands of
c. hereupon C. brings a writ of Error c. and for one of the Errors assigns that albeit Ludlow be a Court of Record yet it is not such a Court as is intended by the Statute for causes of that nature for that the antient usage in all such popular actions or informations hath been that albeit the Informer tam pro domina Regina quam pro ipso exhibits the Information yet if the defendant pleads a special plea the Quéens Attorney shall reply alone and it was intended by the makers of the said Act that the sute should be in such a Court where the Kings Attorney may attend for the benefit which the King may have by such a sute and that is in the four Courts at Westminster And thereupon the Iudgement was reversed Vide Dyer 236. 24. Admission and Institution 32 He that comes in by Admission and institution Co. l. 6. 49. b. 1. in Boswels case comes in by a judicial act and the Law presumes that the Bishop who hath the cure of the Souls of all within his diocess for which he shall answer at his fearfull and final account in respect whereof he ought to defend them from all Schismatiques Heretiques and other Instruments of the devil will not do or assent to any wrong to be done to any Parsonage within his diocess but if the Church be litigious will inform himself of the truth de Iure Patronatus and so do right Peer agâ— 33 The person of a Peer of the Realm or a Countess Baroness Co. l. 6. 52. b. 3. in the Countess of Rutlands case c. by marriage or descent ought not to be arrested for debt or trespass because the Law presumes that they have sufficient in lands and tenements whereby they may be distrained and therefore in such cases issues only shall go out against their lands And albeit a Countess Baroness c. in respect of her sex cannot sit in Parliament yet she is a Peer of the Realm and shall be tried by her Peers as appears by the Statute of 20 H. 6. cap. 9. which is but a declaration of the Common Law Vide plus ibidem Cestuy que use 34 If Cestuy que use had granted his use by his will Co. l. 6. 76. a. 3. in Sir Geo. Cursons case no collusion could have been averred upon such a will to obtain the wardship of his heir for Nemo praeâ—umitur esse immemor suae aeternae salutis et maxime in articulo mortis et omne testamentum morte consummatum est And therefore the Statute of 4 H. 7. 10. which gives the wardship of Cestuy que use makes exception when any will is by him declared Vide 27 H. 8. 14. Divorce 35 Ch. and Eliz. were divorced in the Court of Audience ratione aetatis minoâ—is et impubertatis Eliz. after they had lived ten years together and had issue a daughter Co. l. 7. 43. b. Kennes case and afterwards Ch. marrying another woman by another Sentence in the Ecclesiastical Court the first marriage was declared void the second good and liberty given them ad exequenda conjugalia obsequia The second wife dies and Ch. marries a third wife and hath issue another daughter The last daughter is found heir by office the first traverseth the office by bill in the Court of Wards And in this case it was resolved that albeit the first was in truth a lawfull marriage yet the Sentence of divorce being in force no averment could be admitted against it because the Spiritual Iudge having jurisdiction thereof before the Sentence were repealed it was intended by Law to be Iust and our Law gave credence thereunto for Res Judicata pro veritate accipitur See Dyer 13. pl. 62. Co. l 9. 52. b. 4 in Hickmols case 36 If the Obligee confess himself to be discharged of all bonds betwixt him and the Obligor Release of bonds this by intendment of Law is a release or discharge of all bonds betwixt them for albeit the word discharge is not properly said of the part of the Obligee but of the Obligor for the Obligor is to be discharged yet in judgement of Law such an acknowledgement amounts to a discharge of the Obligor of all such duties Co. l. 9. 109. Meriel Treshams case 37 In debt against an executor he cannot plead quod ipse non habet c. aliqua bona c. praeter bona Plea of Executor c. quae non sufficiunt ad satisfacienda debita praedicta but he ought to plead quod non habet c. bona c. praeterquam bona catalla ad valentiam of a certain summ non ultra quae eisdem debitis obligata onerabilia existunt for the first plea is insufficient for the uncertainty vide Max. 162. pl. 61. and the other he ought to plead because he being privy and representing the person of the testator hath by intendment of Law notice of the certainty and certain value of the goods and therefore in such case ought to plead certainly as aforesaid The like Law is of an administrator for the goods of the Intestate Co. l. 11 13. a. 1. in Priddle and Nappâ—rs case 38 Of Impropriations formerly given to Monasteries Appropriations not only those which were truly Impropriate but likewise such as had been and were so in reputation were given to H. 8. by the intendment of the Statutes of Dissolution for albeit in those Statutes there is a saving of rights yet the Founders Donors c. are excepted out of that Saving so as they are bound by the body of the Act. Co l. 11. 16. a 4. in Doct. G anâ—s case 39 A Prescription Tites that every Inhabitant in the parish is to pay 2 s. in the pound according to the value of their houses yearly instead of Tithes is a good prescription because by intendment of Law the commencement thereof might be lawfull for it might be so by composition for the land before the houses were built 40 It is a Principle in Law that a barr is good if it be certain Plea in barr to a common intent good to a common intent Pl. Co. 28. a. 4. Colchrist Bernshin Vide ibid. 31. a. 33 a. 4. â—6 a. 3. as if a Messuage be demised to A. for life the remainder to B. for life si ipse B. vellet inhabitare in messuagio praedicto c. Here in an Action brought by the lessor for the recovery of the Messuage c. upon the condition broken it is a good barr for B. to say that after the death of A. he entred without averring the time of his entry viz. immediately after the death of A. because by intendment of Law it will be presumed he did so enter So if one plead in barr that A. died seised and that B. entred as son and heir to A. this is a good barr
certain of their friends to make partition between them who make partition of the Rooms and Chambers of the Castle assigning some to one and some to another c. this Partition is void because a Castle which is to be kept intire pro bono publico and for the safeguard of the Commonwealth will not admit of any such division albeit such a partition of other lands that are partable had been good in Law and binding to the Coparceners after election of their several Parts Co. ibid. 31. b. 3. Dower Neither shall such a Castle be assigned for Dower albeit the parties consent thereunto because the publique shall be preferred before the privat Co. l. 7. 23. a. 3. Buts case 2 A. seised of black acre in fee Rent out of a lease for years and also possessed of white acre for years grants a rent charge out of both to B. for his life with Clause of Distress c. In this case the estate of the rent being a Franktenement according to the purport of the deed cannot issue out of the term for years but out of the land only which the grantor had in fee-simple because the Franktenement of the rent cannot issue out of a Chattel and the intire rent cannot be Franktenement out of black acre and a chattel out of white acre and to make two rents when one only is granted would be injurious Neither yet can the contract and mutual agreement of the parties charge such a thing with a rent which is not chargeable by Law as out of an Hundred or Advowson 30 Ass Pl. 5. or out of a Fair 14 E. 3. Scire facias 122. The Earl of Kents case Neither can a rent be granted or reserved of any estate of Franktenement out of any other Franktenement which is not mainourable either in possession reversion or by possibility but is only haereditamentum incorporeum for Pacta privata non derogant juri communi And in an Assise they cannot be put in view neither can any distress be taken in them And in the case above albeit white acre be haereditamentum corporeum and mainourable yet in respect of the exility and incapacity of the interest which the grantor hath in it that rent of Franktenement cannot issue out of it but out of the land in fee simple And in that case also in an Assise brought for the rent the land in fee shall be only put in view And if the Grantee should accept a lease or grant of white acre that will not suspend his rent Co. l. 9. 128. a. 4. in Sondayes case 3. Term. Hill 8. Iac. it was resolved by the two Chief Iustices Recovery Title the Chief Baron and the Court of Wards that no condition or limitation be it by act execute or limitation and use or by devise in a last will can barr tenant in tail to alien by a Common recovery for the causes and reasons reported at large in Sir Anthony Mildmayes case in the 6. Report Co. l. 9. 141. b 3. in Beaumonts case 4 If there be Lord and tenant of a Carue of land Confirmation and the tenant hath issue and is attainted of felony and the King pardons him and after the Lord confirms the estate of the tenant and the tenant dies In this case the Lord shall have the land against his own confirmation for the confirmation cannot add to the estate of the tenant a descendible quality to him who was disabled to take the land by descent For Pacta privata juri publico derogare non possunt The like 5 Baron and feme being tenants in special tail Co. ibid. 138. b. 141. b 4. the remainder to the heirs of the Baron the Baron levies a fine to E. 6. who grants to the Earl of Hunt in fee the Baron dies and the Feme enters and the E. of H. confirms her estate Habendum to her and the heirs of the body of the Baron then the Feme dies having issue a son In this case the confirmation is void for it cannot add a descendible quality to the issue in tail who was disabled by the fine to take by descent Again if that confirmation should add to the estate of the feme a descendible quality it would in effect as to that point repeal no less than two Acts of Parliament viz. 4 H. 7. 24. and 32 H. 8. 36. by which the estate in tail is barred as to the issues and the issues are disabled to claim the Land by force of the said estate tail Sed Pacta privata c. Common Recovery 6 Tenant in tail cannot be prohibited by any condition or limitation to barr the issues in tail as also the reversions or remainders Co. l. 10. 38. b. 1. 4. Mary Portingtons case by suffering a Common Recovery much less can he be prohibited to prevent by any such condition or limitation a going about conclusion or agréement to suffer such a recovery for to suffer such a recovery to the purposes aforesaid is an incident so inseparably annexed to an estate tail that it cannot possibly be prohibited by any such condition limitation or other agréement whatsover between the Parties Conventio privatorum non potest c. So likewise Dower or tenancy by the Curtesie cannot be restrained by condition because they are annexed to the estate tail by Law no more than a tenant by the Curtesie or tenant in tail after possibility can be by condition made punishable for waste Also things ordained by Statute cannot be restrained by condition c. as that the tenant in tail shall make no leases according to the Statute of 32 H. 8. 28. or levy a fine according to the Statutes of 4 H. 7. 24. 32 H. 8. 36. to barr the issues for none of these which are incident to his estate by Act of Parliament can be restrained by condition or limitation Auditors of the Wards 7 The King himself cannot do any thing against an Act of Parliament when the subject hath also an interest in it Co. l. 11. 3. b. 4 in Auditor Curles case And therefore albeit the words of the grant to the two persons ordained by the Statute of 32 H. 8. 46. to be Auditors of the Court of Wards be conjunctim divisim et alterius eorum diutius viventis yet that being an office of trust there shall be no survivor thereof for that it being enacted by that Statute that there should be two persons c. which should have a judicial voice the King cannot constitute one only for the Subject by the Act hath interest therein Et securius expediuntur negotia commissa pluribus Howbeit the King may constitute one at one time by one patent and another at another time by another patent And albeit he may so do yet he who is first constituted hath not any judicial voice until the other be constituted also for it is provided by the Statute
Law since the making of the same Act did in the said 12 year of E. 4. give judgment that in such case an estate tail should be barred And in Scholasticaes case in 12 Eliz. Pl. Com. 403. it was not thought fit to stand with the honour and gravity of the Court that the question concerning the restraint of a Common recovery which had béen so often debated and resolved should be once moved Vide supra 6. Co. l. 11. 87. a. 3. in the case of Monopolies 9 The Queen grants to one of the Privy Chamber the only making Monopolies and importation of Cards This was adjudged a Monopoly and therefore void and one of the reasons was because the grant was primae Impressionis for no such was ever seen to pass by Letters Patents under the Great seal to that very day And therefore because it was a dangerous Innovation without president or authority of Law or Reason and the Queen deceived in their grant it was adjudged void Dyer 135. 15. 3 4. P. M. 10 A Dedimus Potestatem was granted to Iustice Saunders to receive an Attorney for the defendant in a Quid juris clamat Quid juris clamat but because there could be found no former president for it it was with much difficulty and after long debate allowed by the Iudges and that upon great necessity and weakness of the party 205 Communis Error facit Jus. Co. Inst 1. 52. b. 2. 1 In a deed of feoffment beginning with Omnibus Christi fidelibus Livery by Attorney c. or Sciant omnes per praesentes c. or the like a Letter of Attorney may be contained for one continent may contain divers deeds to several persons But if it be by indenture between the feoffor on the one part and the feoffee on the other part there a Letter of Attorny in such a deed is not good unless the Attorney be made a party in the deed indented howbeit because it hath been commonly used to insert it in the Indenture without making the Attorny party thereunto it hath been permitted to pass but the other way is safest and more legal Communis Error facit Jus. Co. l. 6. 67. a. 4 in Sir Moâ—â—â—inches case 2 Where it is required by the Statute of 1 H. 5. 5. that in every writ original c. in which Exigent shall be awarded Additions Stat. 1 H. 5. Additions should be given to the defendants of their estate degree mystery c. It so fell out that one who was by birth but a Yeoman was commonly called Gentleman And in that case in such a writ brought against him he may have the Addition of Gentleman albeit in truth he is no Gentleman but only by vulgar reputation for in as much as the intention of the Act is that he should have such a name by which he may be known it is sufficient to satisfie the Act of Parliament for Communis error c. 206 So doth a Custom which is reasonable unreasonable contra Co. Inst â—pars 1. 59 b. 4 1 Of fines due to the Lord by the Copyholder Copyhold fines some be by the Change or alteration of the Lord and some by the Change or alteration of the tenant the change of the Lord ought to be by the act of God otherwise no fine can be due but by the change of the tenant either by the act of God or the act of the party a fine may be due for if the Lord do challenge a Custom within his Manor to have a fine of every of his Copyholders of the said Mannor at the alteration or change of the Lord of the Mannor be it by alienation demise death or otherwise This is a custom both against the Law and Reason as to the alteration or change of the Lord by the Act of the party for by that means the Copyholders may be oppressed by multitude of fines by the Act of the Lord But when the change groweth by the Act of God there the custom is good as by the death of the Lord And this was resolved upon a Case in Chancery by all the Iudges and Serjeants of Serjeants Inn in Fleetstreet Trin. 39 Eliz. and so certified into that Court But upon the change or alteration of the Tenant a fine is due unto the Lord because that custom is reasonable 2 Of fines taken of Copyholders some be certain by custom and some be uncertain The like but that fine although it be uncertain Co. ibid. yet ought it to be rationabilis and that reasonablenesse shall be discussed by the Iustices upon the true circumstances of the Case appearing unto them And if the Court where the cause dependeth adjudgeth the fine exacted unreasonable then is not the Copyholder compellable to pay it And so it was adjudged P. 1 Iac. C. B. rot 1845. for all excessiveness is abhorred in Law 3 In former times it hath been doubted whether or no if a Copyholder had béen ousted by his Lord Copyhold custom he might have any other remedy therein than only to sue to his Lord by petition for it seems Co. ibid. 60. b. 3. Littl. §. 77. that if the Copyholder might have any other remedy he could not be properly said to be Tenant at the Will of the Lord according to the Custom of the manor But Magistra rerum experientia hath made this cléer and without question that the Lord cannot at his pleasure put out the lawful Copyholder without some cause of forfeiture and if he do the Copyholder may have an Action of Trespasse against him For albeit he be tenens ad voluntatem Domini yet it is secundum consuetudinem manerii And Britton saith speaking of these kind of Tenants Et ascuns gents sont qui tout franks de sank et tenent terre de nous en villeynage et sont proprement nos sokemans Britton fo 163. Co. ibid. 140. a. 3. et ceux sout priviledges en ties manere que nul ne les doit ouster de tiels tene ments taut come ils font les services que a lour tenements appendant et nul ne poit lour services accressre ne changer a faire autres services ou plus autrement que ils ne solaient And herewith agreeth Sir Robert Danby Cl. Inst of the C. Pl. M. 7 E. 4. 19. and Sir Thomas Brian his Successor M. 21 E. 4. 80. That the Copyholder doing his customs and services if he be put out by his Lord shall have an Action of trespasse against him Consuetudo 4 Consuetudo contra rationem introducta potius usurpatio quam consuetudo appellari debet Again Co. ibid. 113. a 4. Consuetudo ex certa causa rationabili usitata privat communem Legem And Consuetudo praescripta et legitima vincit legem Villeinage fine to mary 5 All customs and prescriptions that are against reason are void Co. ibid. 139. b. 4. Littl.