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
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.
ought not for any such writ to have ceased to serve the Exigi facias without commandment from the same Court out of which it issued and thereupon the Sheriffe was amercied Dyer 170. 1 2 Eliz. and another Exigi facias issued out Nor by the Escheator The Escheator also ought not to desist from the execution of his office notwithstanding any such command to the contrarie from the King And therefore we find in 1 Eliz. That after the death of the Lord Powes a Mandamus being directed to the Escheastor of Salop to find the office he takes the presentment of the Iury in p per and adjournes them over to another day to take it in Parchment and by Indenture before which day the Quéen sends a Supersedeas at the suit of one Herbert and his wife And it was adjudged that the Escheator ought not to have obeyed that Supersedeas 7 The Law disfavoureth an excomunicate person Excommunication Jury 1 It is a good plea in abatement of a writ to say Litt. § 201. Co. Inst pars 1 133. b. Co. ibid. 158. a. that the Plaintiffe is excommunicate Doct. Stud. l. 1. cap. 6. 2 The old Bookes have said that if a man be excommunicate he ought not to serve of a Iurie Jews 3 A Iew born in England took wife a Iew borne also in England Co. ibid. 31. b. Rot. Parl. 26 E. 1. Rot. 1. the husband was converted to the Christian faith purchased lands and enfeoffed another and died the wife brought a writ of Dower but was barred thereof and the reason yeelded in the record is this Quia verò contra justitiam est quod ipsa dotem petat vel habeat de tenemento quod fuit viri sui ex quo in conversione sua noluit cum eo adhaerere cum eo converti c. 4 Infidels are accounted in Law to be perpetui inimici Infiels with whom a Christian ought to have no peace but perpetual enmitie and hostilitie according to that of the Apostle 2 Cor. 6.15 Quae autem concordia Christo cum Belial Co. l. 7. 17. a. b. in Calvins case aut quae portio fideli cum infideli And the Law saith Judaeo Christianum nullum serviat mancipium nefas enim est quem Christus redemit Blasphemum Christi in servitutis vinculis detinere Regist 282. Infideles sunt Christi Christianorum inimici and herewith agréeth the book in 12 H. 8. fol. 4. where it is holden that a Pagan cannot have or maintaine any action at all and upon this ground there is a diversitie betwéene the Conquest of a Country of a Christian Prince and the Conquest of a Country of an Infidel The power of a Conquerour for if a Prince obtaine a Christian Country by Conquest seeing that he hath vitae necis potestatem he may at his pleasure alter and change the Lawes of that Nation but untill he do make an alteration the ancient Lawes thereof shall remain Howbeit if a Christian Prince should conquer a Country of an Infidel and bring them under subjection there ipso facto the Lawes of the Infidel are abrogated for they be not onely against Christianitie but against the Law of God and nature contained in the Decalogue And in that case untill certaine Lawes be established amongst them the Prince by himselfe or such Iudges as he shall appoint shall judge them and their causes according to natural equity and original Iustice in such sort as Kings in ancient time did within their Kingdomes before any certaine municipal Lawes were established But where a Prince hath the Government of a Nation by descent seeing that by the Lawes of the Nation he doth inherit that Authority he cannot change the Lawes thereof without the consent of the People assembled in Parliament II Maximes of Reason taken from GRAMMAR 8 The Rules from Grammar are infinite in the Etymologie of words and in the Construction of them what their nature is single what joyned with others c. A Lease with condition to take the profits 1 IF a man make a Lease for yeares reserving a rent with a condition Co. Inst pars 1 203. a. that if the rent be behind the Lessor shall re-enter and take the profits untill thereof he be satisfied in this case the profits shall be accompted as parcel of the satisfaction and during the time that he so taketh the profits he shall not have an action of debt for the rent for the satisfaction whereof he so taketh the profits but if the condition be that he shall take the profits untill he be satisfyed and paid of the rent without saying thereof or to the like effect there the profits shall be accompted no part of the satisfaction but onely to hasten the Lessee to pay it and untill he be satisfied he shall take the profits to his owne use Commencement of a Lease 2 If a lease be made Habendum sibi à die confectionis Col. l. 5. 94. a. in Barwicks Case the day of the making is excluded for a vel ab is dictio significativa primi termini à quo sicut dictio usque termini ad quem a vel ab accipitur excl sivè Vide infra 1â— Max. 34. 2. Possession derived 3 Possessio is derived à Pos and sedeo Co. l. 6. 57. b. in Bredimans Case because he that is in possession may sit down in repose and quiet so also seisina is derived à sedendo for untill he hath seisin all is Labor Dolor vexatio spiritus but when he hath seisin he may sit down and rest Howbeit Quaere whether or no possessio be derived of Post and sedeo because he that hath possession sits downe last and seisina seemes to be derived of the French word seiser which signifies to lay hold on Tempus semesâ—â—e 4 Tempus semestre being spoken in the singular number as appears in the Dictionaries signifieth half a year or six moneths Co. l. 6. 62. a. in Catesbies Case viz. such six moneths qui conficiunt dimidium anni there is a great diversitie in our coÌ„mon spéech between a Twelve-moneth being the singular number wch includes a whole yeare according to the Kalender and twelve moneths in the plural number which shall be computed according to 28 dayes for every moneth Vide 31. 13. Co. l. 8 85. b. in Sir Richard Pexhals Case 5 A. deviseth to B. 100 Shéep and ten Bullocks Devise and 10 l. issuing and payable yearely out of his lands here the last and disjoynes the rent from the Shéep and Bullockes It is otherwise if he had devised them thus 100 Shéep ten Bullockes and 10 l. yearely for then the and connexeth them all together and then they are all to be paid yearely out of the lands Co. l. 10. 133. a Osborns Case 6 Words which passe under the name of Latin are of four
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
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
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
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
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
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
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
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
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
goods and chattels for the great regard that the Law hath to the life of a man Howbeit if Thieves assault a mans house to robb or murther him and the owner or his servants kill any of the Thieves in defence of himself and his house this is not felony neither shall he lose any thing thereby And with this agrées 3 E. 3. Tit. Corone 303. 305. 26 Ass pl. 23. So likewise it is held in 21 H. 7. 39. that a man may justifie to assemble his friends and neighbours to defend his house against violence but not to go with him to the Market or elsewhere to guard himself from violence And all this to establish quiet and tranquillity in the Commonwealth Co. l. 5. 125. a. 2. in the cases of Libels 14 Every Libell which is called famosus Libellus Libels seu infamatoria scriptura is made either against a privat man or against a Magistrate or publique person if it be made against a privat person it deserves a severe punishment for albeit the Libel be only made against one yet it invites all of the same family kinred or society to revenge and so tends by consequence to quarrels and disturbance of the peace and quiet of the Commonwealth and may be the cause of effusion of bloud and of great inconvenience If it be against a Magistrate or other publique person that is yet a greater offence for this concerns not only the breach of the peace but the scandal of Government because what greater scandal can there be to Government than to have corrupt and wicked Magistrates to be substituted by the King to govern his Subjects under him Neither can there be greater imputation to the State than to permit such corrupt men to sit in the sacred seat of Iustice and to have any medling in or concerning the administration of Iustice which conceit being fixt in the minds of the people may be a cause of tumults and sedition to the great disturbance of the quiet and repose of the Commonwealth F N.B. 81. d. 15 Albeit Iustices of Peace have not express authority given them by their Commission to take recognizance for the keeping of the peace yet the Law gives them thereby that power ex congruo in order to the publique quiet of the Commonwealth for that they are thereby Constituted to be Conservatores Pacis and impowred to cause men to kéep the peace and to hear and determin offences committed against the peace and quiet of the Realm The Common Law giveth also power to the Sheriff either upon a writ of Supplicavit or without such a writ to take a Recognizance for the kéeping of the peace because he also is Conservator Pacis and to that end and purpose hath the guard and custody of the County committed to him for the time that he continues Sheriff as appears by the words of his Commission and Patent Rex c. Commissimus vobis Custodiam c. And what the Iustices or he do in that behalf is matter of Record and so ought to be déemed for that it concerns the Publique peace and tranquillity of the Commonwealth A man may go beyond sea 16 By the Common Law any man may go out of the Realm to imploy himself as a Merchant or to undertake a pilgrimage F.N.B. 85. a. or for any other cause at his pleasure without demanding license of the King neither shall he incurr any punishment for so doing Howbeit because every man in right is bound to defend the King and his realm and to preserve the publique repose and tranquillity of the Common-wealth from forein invasions from abroad and intestine sedition and insurrection at home the King may at his pleasure command by his writ De securitate invenienda quod se non divertat ad partes exteras sine licentia Regis under the Great Seal Privy Seal or Signet that he shall not go beyond sea without the Kings license And if he do he shall be fined for disobeying the Kings command Vide 3. Uses 17 In case of a Feoffment or other conveyance Co. Inst pars 1. 237. a. 2. whereby the feoffée or grantée c. is in by the Common Law a Proviso for a power of Revocation is meerly repugnant and void but in a voluntary conveyance which passeth by raising of Vses being executed by the Statute of 27 H. 8. 10. and now become very frequent by such a Proviso it is lawfull for the Covenantor at any time during his life to revoke any of the said Vses c. And these revocations are alwaies favourably interpreted bâ—cause now to interrupt that Course would disturb the Publique quiet of the Realm many mens Inheritances depending thereupon Warranty collateral 18 In 50 E. 3. Rot. Parl. 77. it was attempted in Parliament to have a Statute made Co. ibid. 373. b. 1. that no man should be barred by a warranty collateral but where Assets descend from the same Ancestor but it could never take effect because it would weaken common assurances and by consequence disturb the peace and quiet of the Commonwealth Remainders 19 For as much as in coveyances Co. Inst pars 1. 299. a. 2. limitations of Remainders are usual and common assurances it is dangerous by conceipts and nice distinctions to bring them in question as hath of late time been attempted lest thereby the quiet repose of the Commonwealth may be interrupted Descent to toll Entry 20 The Statute of the 32 Hen. 8. 33. concerning descents to toll entries shall be understood of a descent upon any disseisin Dyer 219. 7. 5. Eliz. albeit the words are of entries with strength And this large interpretation of the words is given for the better preservation of the peaâ—e and quiet of the Country By the Opinion of all the Justices Descent of the Royal line 21 In the Starre-Chamber the Countesse of Shrewsbury was fined 1000 l. and committed to the Tower Hob. 235. for that being called to the Council Table and Interrogated what she knew or had heard or thought of a supposed child which was rumored that the Lady Arrabella should have had she refused obstinately to make any answer because it was judged that this was a question of State and proper for the Council Table to take cognizance of for there is not one thing that doth more concern the peace and quiet of a kingdom than the certainty of the Royal line c. 201 Conventio seu beneficium privatorum non potest publico juri derogare Vide supra 198 29. Co. Inst pars 1. 166. a. 4. Littl. §. 244 1 No privat contract or agreement Partition which varies from the ordinary course of Law and sounds in prejudice of the Commonwealth or Common right shall be deemed good in Law as if a Castle that is used for the necessary defence of the Realm descend to two or more Coparceners and they by agreement choose
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
MAXIMES OF REASON OR THE REASON OF THE COMMON LAW OF ENGLAND BY EDMOND WINGATE late of Grayes-Inn E sq LONDON Printed by R. W. L. for W. Lee A. Crook D. Pakeman H. Twiford G. Bedell T. Dring J. Place and are to be sold at their Shops MDCLVIII TO THE READER READER I Am determined the common Apologies importunity of Friends and written first for my privat advantage shall have no room in this letter It is more agreeable to my nature to acknowledg that these leaves had their Principles and Origination from a meer design of Publick good if any thing shall appear gratefull let the intention be encouraged if there be defects let Humanity be considered If there be Errors let frailty be pardoned If my Labours may be hints and incitements to persons of larger abilities to expose to the World the Nobler products of their more improved Reason in discourses of this Nature I shall esteem my self recompenced above the damage of the sharpest censure It will not be of concernment to offer here my reflections upon the first Rudiments of all Common-Wealths being agreed that since our Nature and the Powers of our Souls were degraded in Adam there is an absolute necessity that our Passions and Exorbitancies should be charm'd and confin'd by Politick Combinations Civil Appointments and Lawes without these the World would be but an Arena sine Calce a great Bedlam T is without complement to my profession when I affirm that this Nation was eminently blessed with the choisest Composures and had as great a share of wisdom infused into the Fundamental and Architectonical principles upon which our Government is built as any Society under Heaven can boast of Observe the harmony betwixt the Lawes and the Genius of the people The Religious ties and sacred confinements of Royalty the strict Guards set upon propriety the flourishing wealth and peaceful fruitions of those Estates with which our own Virtue or Industry or the benignity of Providence endowed us all these are to be reckoned as the amiable fruits of those Sanctions which the wisdom of our Fore-fathers transmitted to us Now all Lawes that are Just and Prudent ought to be viewed as Radii and Effluxes from the Eternal Wisdome having their Exemplar Cause and bright Idea in God himself The mediate Author of these is humane Reason exalted and purified by Learning and Experience and enlightned by the Divine Spirit I presume there is no fear of Sosinians in Law and that attempts may be made without danger to discover how the vast multitude of Cases that Follies or Passions or Necessities of men have obliged us to be acquainted with are all accountable and reducible to some few Theses which being prime Emanations and Grand Maximes of Reason govern and resolve the subordinate Miscellanie of queries and may serve for a Clue and Conduct through the Labyrinth of that perplext variety Saving us the labour of Chargeing our Memories with every particular which in the result is lesse apt to profit then to burden and confound us I do not despaire but that every Student who seriously intends to become his Gown shall find some satisfaction in noting the same Key to open so many Locks when he sees such a number of Cases obeying one ruling Axiome attesting its Supremacy as they are strung upon the thread of the same Reason But whatever the successe be if my Lord Verulam speaks true that it deserves praise to make wishes that are not absurd it will easily be granted that when such Wishes are pursued vvith endeavours if they merit nothing else they may certainly lay claime to pardon EDMOND WINGATE An Advertisement to the Reader COURTEOUS READER BE pleased to mend with thy pen the numbers of some pages in this Book namely from folio 192 to folio 325 and then will the Table at the end of this Book exactly agree with the printed pages which otherwise in those folio's will be 10 short THE ORDER Of the Maximes of Reason Or the Reason of the COMMON LAW OF ENGLAND Maximes viz. From Theology I. SVmma ratio est quae pro Religione facit It is the highest Reason that makes for Religion fol. 3 II. Nunquam prospere succedunt res Humanae ubi negliguntur Divinae Humane Laws never succeed well where Divine Rites are neglected fol. 6 III. To such Laws as have Warrant in holy Scripture our Law giveth credence e contr fol. 6 IV. The Jurisdiction of the Ecclesiasticall Law ought to be bounded by the Common Law fol. 7 V. Dies Dominicus non est juridicus fol. 7 VI. Gravius est divinam quam Temporalem laedere Majestatem fol. 8 VII The Law disfavoureth an Excommunicate person fol. 9 From Grammar VIII The Rules from Grammar are infinite in the Etymoligy of words and in the construction of them what their nature is single what joyned with others c. fol. 11 IX In conjunctivis oportet utrumque in disjunctivis sufficit alteram partem esse veram fol. 13 X. Words in Construction must be referred to the next Antecedent where the matter it self doth not hinder it fol. 15 XI The Law delighteth in apt Expressions fol. 16 XII Nomina si nescis perit cognitio rerum fol. 18 XIII Mâ—la Grammatica non vitiat chartam fol. 18 XIV Qui haeret in littera haeâ—et in Cortice fol. 19 XV. Talis interpretatio fienda est ut evitetur absurdum inconveniens ne judicium sit illusorum fol. 21 XVI Quoties in verbis nulla est ambiguitas ibi nulla expositio contra verba expressa fienda est fol. 24 XVII Maledicta expositio est quae corrumpit textum fol. 26 XVIII Nimia subtilitas in lege reprobatur fol. 26 From Logick XIX Cessâ—nte causa cessat effectus fol. 29 XX. Remoto impedimento emergit actio e contr fol. 38 XXI Things are construed according to that which was the cause thereof fol. 41 XXII Cujus est dare ejus est disponere fol. 53 XXIII Vltra posse non est Esse vice versa fol. 54 XXIV Nemo potest plus juris ad alium transferre quam ipse habet fol. 56 XXV Things are construed according to that which was the beginning of them fol. 62 XXVI Derivata Potestas non potest esse major primitiva fol. 66 XXVII Vnam quodque Dissolvitur eo modo quo Colligatum est Nihil tam conveniens naturali aequitati unumquodque dissolvi eo ligamine quo ligatum est fol. 68 XXVIII Things grounded upon an evill void beginning cannot have good perfection fol. 72 XXIX Quod non habet Principium non habet finem fol. 79 XXX He that claimeth Paramont a thing shall never take benefit nor hurt by it fol. 79 XXXI Things are to be Construed secundam subjectam materiam fol. 85 XXXII According to the End fol. 91 XXXIII Qui adimit medium dirimit finem fol. 94 XXXIV According to the effect fol. 96 XXXV He that cannot have or
if they be distrained to come to them they may have a writ out of the Chancery for their discharge All other clerks also within orders though not beneficed have the like priviledge And the reason of this is to the end they should attend their function Co. l. 11. 70. b. in Madg. Col. case M. 10 H. 6. 8. 3 I. S. brings an action of debt against I. Rector of T. in com B. the defendant saith A Parson ought to be resident that before the day of the writ purchased he dwelt at B. in com N. Et non allocatur for a Parson shall be intended by Law to be alwayes resident upon his benefice for the cure of souls which he hath there and the Parson who hath cure of souls and is a non-resident non est dispensator sed dissipator non speculator sed spiculator And therefore no such thing shall be presumed F. N. Br 175. 4 A Parson to the end he may give his continual attendance upon that sacred function is fréed from all personal charges The like that may hinder him in his calling And therefore he shall not be chosen Bailiffe Réeve Beadle or other officer for land annexed to his Church And all this by the course of the Common Law F. N. Br. 34. l. for the same reason it is that if a Parson have a Parsonage and after take another benefice without a dispensation the first benefice is void and the Patron thereof may present for this avoydance is called a Cession because the taking of the last makes him neglect the first F. N. Br. 175. Br. Dismes 16 5 To the end that Religion may not be neglected Tithes due onely to the Parson of common right but preserved and daily increased the Common Law giveth to the Parson of common right the tenth of all manner of yearely encrease which are called Dismes or Tithes the due payment whereof tendeth much to the continuance and establishment of the true Religion and the due worship of God Co. l. 2. 44. b. The Bishop of Winchesters case And therefore albeit a meere lay man may prescribe in modo decimandi yet he cannot so doe in non decimando because he is but in special cases capable of tithes at the Common Law and therefore without special matter shewed it shall not be intended that he hath any lawful discharge And for this cause in favour of holy Church although it may have lawfull commencement the law will not suffer such prescription in that case nor put it to the trial of lay men who will perhaps rather strain their consciences for their private benefit that give the Church the duties that belong to her Vide infra 186. 11. Co. l. 5. 63. a. 44 E. 3. 19. 6 The Inhabitants of a Town without any custome may make ordinances or by-laws for reparation of the Church By-Lawes and in that case the greater part shall bind all the rest without any Custom The Chamberlain of Londons case Prisot 3 To such Lawes as have warrant in holy Scripture our Law giveth credence contra Co. Inst pars 1 128. b. 1 In the raigne of King Alfred Outlawed persons had capita Lupina and untill a good while after the Conquest no man could have been out-lawed but for felonie and then the out-lawed person was said to have Caput Lupinum because he might be put to death by any man as a Wolfe that hateful beast might and in ancient time the head of either of them being brought to the chiefe place of the County or Franchise where they were killed the partie so killing them was to have a Mark for his paines Howbeit in the beginning of the raigne of E. 3. it was resolved by the Iudges for avoiding of inhumanitie and effusion of Christian bloud that it should not be lawfull for any man but the Sheriffe only and that upon lawfull warrant to put to death any out-lawed person though it were for felonie in pain to suffer death as in case of killing another man One attainted of a Praemunire 2 It was lawfull for any man to put to death a man attainted of a Praemunire because he was also without the Kings protection Co. ibid. 129. b and therefore subject to be destroyed as the Kings enemy but this was taken away by the wisedome of Queen Eliz. and her Parliament 5 El. 1. as a libertie not becoming a Christian Common-wealth Lepers 3 The Law of England for removing of Lepers by the writ de leproso amovendo from the societie of men to some solitarie place is grounded upon the law of God Levit. 13.44 45 46. Numb 5.1 2. Co. ibid. 135. b 4 In Cholmeleys case in the 2 Rep. fol. 51. Co. l. 11. 70. b. in Magdel Colledge case where a reversion expectant upon an estate in taile was granted to one for the life of the tenant in taile A Monkish life condemned it was said that by possibilitie this grant for life may take effect for tenant in taile having no issue may become a Monk and enter into religion and then the grantée may have it during his naturall life but it was there resolved that such superstitious and irreligious profession shall not be presumed in law A Law against Charity void 5 If a Statute be made directly against the Law of God Doct. Stud. l. 1. cap. 6. as if it should be ordained that none should give Almes to any in what necessitie soever he were or the like such Statute ought to be adjudged void 6 Such Canons Constitutions Ordinances Co. l. 5. part 1. 32. b. in the case of the Kings Ecclesiastical Law and Synodals provincial Ecclesiastical Laws as have béen allowed by general consent and custome within the Realme and are not contrariant or repugnant to the Lawes Statutes and Customes of the Realme nor to the damage or hurt of the Kings Prerogative royall are still in force within this Realme as the Kings Ecclesiasticall Lawes of the same 4 The Jurisdiction of the Ecclesiastical Law ought to be bounded by the Common Law Spiritual Laws 1 The Spiritual Laws mentioned in Littleton Sect. 648 are such Ecclesiasticall Lawes as are allowed by the Laws of this Realme Co. Inst pars 1 344. a. Co. l. 5. pars 1. 32. b. Jurisdiction Stat. 35 H. 8. 19 33 H. 6. 34. 32 H. 6. â—8 viz. which are not against the Common Law whereof the Kings prerogative is a principal part nor against the statutes or customes of the Realme Prerogative and regularly according to such ecclesiasticall Lawes the Ordinarie and other Ecclesiastical Iudges do procéed in causes within their Conisance and this Iurisdiction was so bounded by the Ancient Common Lawes of the Realme and so declared by Act of Parliament 5 Dies Dominicus non est juridicus The Lords day 1 In all the four terms the Lords day is not Dies
Law doth not allow Misnomer 2 In a conveyance of lands in Kent certain lands lying in Beamston were excepted by the name of the Mannor of Beamston Co. l. 6. 6 4. b. Sir Moyle Finches case whereas it had indéed formerly béen a Mannor but was none at that time yet was it adjudged to be well excepted And in the Argument of this point it was said that the Law favours not advantages of misnaming otherwise then as the strict rule of Law requires no not in writs which may be abated and new ones purchased much lesse in grants or other conveyances in which case they cannot have new ones And therefore if two be joyned in a writ the one shall not plead the Misnamer of the other as it is agréed in 14 H. 6. 3. 33 E. 3. Mainten de briefe 63. In an action against baron and feme albeit they are one person in Law yet the one shall not plead the Misnomer of the other so in trespasse in Heldernesse at W. the defendant pleads in respect of Misnomer that it was neither Town Hamlet or place known c. the Plaintiff replyeth it was without shewing in certaine either that it was a Town hamlet or place known And all this in detestation of nice and dilatorie exceptions Nice constructions 3 Cook Chief Iustice of the C. Pl. in the Earle of Rutlands case in 8 Rep. 6 Jac. complaines together with the other Iudges of the same Court Co. l. 8. 56. b. The Earl of Rutlands case that then of late time divers nice and strained constructions of Letters Patents had béen made and many of them upon slight grounds had béen brought in question with purpose to subvert the force and effect of them which practice said they did much tend to the dishonour of the King and wrong of the subject and was cléerly against the true reason and ancient Rule of Law as did manifestly appeare in all their Books because such nice and captious pretence of certainty confounds true and legal certainty Indictment 4 In Mackallies case in the 9 Rep. exception was taken to the indictment which said Co. l. 9. 66. be Mackallies case in Curia dicti Domini Regis in computatorio suo scituato in Parochia sancti Michaelis in Wood-street London and did not shew in what Ward the said Parish was but it was not allowed for as it was holden in 7 H. 6. 36. b. every Ward in London is as an hundred in the Country and every Parish in London as a town in the hundred and it is not necessarie to declare in what hundred a town is neither yet in what Ward a Parish is And therefore such nicety is to be avoided as néedlesse Vide plus ibidem Exception to a Charter c. 5 Exception was taken against the confirmation of the Charter of Queens Colledge in Oxford Co. l. 11. 20. a. 22. a. Doctor Ayrays case ann 8 Jac. because it was sub nomine Aulae Reginae whereas the Charter it selfe was Aulae Scholarium Reginae but not allowed So in 17 E. 3. 48. one was named Burgensis de novo castro super Tinam and the exception was taken that a Burgesse ought to be of a certain Town and not of a Castle but it was not allowed Exception to a Charter c. for the ancient Sages of the Law did alwayes reject such niceties concerning appellations and names when the thing intended might be thereby well enough known and distinguished III Maximes of Reason taken out of LOGICKE 19 Cessante causa cessat effectus The Corporation failing the land revests in the Donor IF Land holden of I. S. be given to an Abbot and his successors or to any other Corporation In this case if the Abbot and all the Covent die so that the bodie Politique is dissolved Co. Inst pars â— 13 b. 2. the Donor shall have againe the land and not the Lord by Escheate because in the case of a bodie Politique the fée simple is vested in their politique capacity created by the policy of man and therefore the Law doth annex a condition in Law to every such gift and grant that if such bodie Politique be dissolved the Donor or Grantor shall re-enter for that the cause of the gift or grant faileth But no such condition is annexed to the estate in fée simple vested in any man in his natural capacity but in case where the Donor or Feoffor reserveth to him a tenure and then the Law doth imply a condition in Law by way of Escheate Wedlock ceasing the Dower ceaseth 2 The wife shall be endowed of the lands c. of her husband â—o ibid. 32. a. 4 if the mariage continue till his death but if the husband and wife be divorced à vinculo matrimonii as in case of precontract consanguinity affinity or the like but not à mensa thoro onely as for adultery the Dower ceaseth For ubi nullum matrimonium ibi nulla dos See Dyer 13. a. The tenure ended the distress ceaseth 3 For the rent due the last day of the terme Co. ibid. 47. b. 3 the lessor cannot distraine because the terme is ended and therefore some use to reserve the last halfe yeares rent at the feast of St. John Baptist before the end of the terme so as if the rent be not then paid he may distraine betwéen that and Michaelmas following The tenure ended the estople ceaseth 4 If a man takes a lease for years of his own land by déed indented the estopel doth not continue after the terme ended Co. ibid. 47. b. 4 m. 31. 32. Eliz. Londons case Co. l. 4. 54. a. 3. for by making of the lease the estopel doth grow and consequently by the end of the lease the estopel determines and that part of the Indenture which belonged to the Lessée doth after the terme ended belong to the Lessor which should not be if the estopel continued Vide 40. 32. Co. ibid. 76. a. 1 5 If after the Lord hath the wardship of the bodie and land The Seigniory extinct the Wardship ceaseth the Lord doth release to the Infant his right in the Seigniory or the Seigniory descendeth to the infant he shall be out of ward both for the body and land for he was in ward in respect he was not able to do those services which he ought to do to his Lord which now are extinct and Cessante causa cessat causatum And Littleton saith that tenure by Knight-service draweth unto it ward mariage c. So as there must of necessity be a tenure continuing Upon release of all debts the Land in execution is also released So likewise if the CoÌ„nusor in a Statute merchant be in execution and his land also and the Conusée release to him all debts this shall discharge the execution For the debt was the cause of the execution and of the continuance of
compelled to attorne because it was defeasible by the issue in taile But those Statutes have given a farther strength to fines to barre the issue in taile and therefore the reason of the Common Law being thereby taken away Co. lib. 3. 86. the tenant in this case shall be compelled to attorne as it was adjudged in Justice Windhams case A discontinuance reduced 28 A. maketh a gift in taile to B. who maketh a gift in taile to C. C. maketh a fâ—ffoment in fée and dieth without issue Co. Inst pars 1 327. b. 3. B. hath issue and dieth the issue of B. shall enter for albeit the feoffment of C. did discontinue the reversion of the fée simple which B. had gained upon the estate taile made to C. yet could it not discontinue the right of entail which B. had that being discontinued before And therefore when C. died without issue then did the discontinuance of the estate tail of B. which passed by his livery cease and consequently the entry of the issue of B. is lawfull DiscoÌ„tinuance determined the issue in tail may enter 29 Tenant in taile makes a lease for the life of the Lessée Littl. Sect. 620 Co. ibid. 333. a. 2. and after sels the reversion to a stranger the tenant for life dies the grantée of the reversion enters in the life of the tenant in taile this as a discontinance in fée and here if the tenant in taile die his issue cannot enter but is put to his Formedon because the estate was executed in the grantée of the reversion in the life of the tenant in tail but in this case if the lessée for life had survived the tenant in taile the entry of the issue had béen lawfull because by the death of the Lessée the discontinuance was determined and consequently the grant made of the reversion gained upon that discontinuance is void also Discontinuance defeated 30 When estates of lands c. which worke discontinuances Littl. § 632. Co. ibid. 336. a. 4. are defeated the discontinuances themselves are also defeated As if the husband be seised of land in right of his wife and make feoffment of fée upon condition and die here if afterwards the heire enter upon the feoffee for the condition broken the entry of the feme is congeable upon the heire because by the entry of the heire for the condition broken the discontinuance is defeated DiscoÌ„tinuance defeated upon surrender 31 If tenant in taile make a lease for life whereby he gaineth a new reversion if tenant for life surrender Co. ibid. 338. a. 4. the estate for life being drowned the reversion gained by wrong is vanished and gone and he is tenant in taile again against the opinion obiter of Portington 21 H. 6. 53. Advowson usurpation 32 If B. purchase an Advowson Co. ibid. 349. b. 2. and suffereth an usurpation and six moneths to passe and after the usurper granteth the Advowson to B. and his heires B. dieth his heire is not remitted because his right to the Advowson was remedilesse viz. a right without an action for a remitter can never enure but upon a right recoverable by action Co. ibid. 356. a 1. 33 If a recovery had béen had against tenant for life by default before the Statute of West 2. cap. 4. Quod ei defeâ—ceat West 2. cap. 4. he was at the Common Law remedilesse because he could not have a writ of Right in respect of the meanesse of his estate Littl. Sect. 674. And therefore then if a feme Lessée for life of a house had lost by default and had after taken husband and the recover or had let the house to the baron and feme for their two lives in this case the feme could not have béen remitted because her estate was remedilesse as aforesaid But now since that Statute she shall in that case be remitted because she may now regaine her estate by a Quòd ei deforceat given by that Statute for when an Act of Parliament or a custome doth alter the reason or cause of the Common Law thereby the Common Law it self is also altered Alterata causa ratione legis alteratur lex cessante causa ratione legis cessat lex Co. l. 12. a. 2. per Popham The Lord Buckhursts case 34 A. enfeoffes B. with warranty Writings to whom here A. shall have the writings which comprehend the warranty and not B. because if B. be impleaded A. may be vouched But if B. die without heire the warranty made to B. is vanished and A. cannot be vouched And therefore in this case the writings belong to the Lord by escheat Co. l. 4. 38. b. 1. per Wray in Tirringhams case How and Redmans case in B. R. 35 In case of common of vicinage one Commoner may inclose against another Common of vicinage for he that hath such a common cannot put his cattle into the land of another but he ought to put them into his own land where they have common and if they stray into the other ground he is excused of trespasse by reason of the ancient usage which the Law allowes to take away suits which may arise if actions shall be brought for every such trespasse when no separation or inclosure is betwixt the Commoners For cessante causa cessat effectus Co. l. 4. 62. b 2 Herlakendens case 36 When a man makes a lease for life or yeares Trees selled are the Lessors the Lessée hath but a special interest or property in the trées which are great timber as things annexed to the land so long as they remaine annexed unto it but if the Lessée or any other sever hem from the land the property and interest of the Lessée is thereby determined and the Lessor may take them as things which were parcel of his inheritance and in which the interest of the Lessée is determined 15 E. 4. 20. b. Co. l. 5. 13. b. in the Countess of Shrewsburies case Co. l. 5. 119 b. 3 In Whepdales case 37 If the bailée of goods as of a horse c. kill them The bailee of goods may lose the privity the Bailor shall have a general action of trespass against him because by the killing of them the privity is determined which restraineth the action of trespass in that case 38 If the Lessée makes wast Waste and before any action brought repaires the place wasted and after the Lessor brings an action of wast the action is not maintainable for the iurors ought to sée the wast and cessante causa c. Sir Drue Druries case Co. l. 6. 74. b. 4. 39 When the heir within age is made Knight after tender of marriage made unto him although whiles he is yet within age Forfeiture of mariage not paid after Knighthood he marry elsewhere yet he shall not pay the forfeiture of the mariage for
by making of him Knight he is out of the ward and custodie of the Lord because after he is Knight he ought to be sui juris and to imploy himselfe in feats of armes to defend the Kingdome c. And none shall pay the forfeiture of mariage but he that after refusal marrieth himselfe during the time that he is in wardship Howbeit the Lord shall immediately after his Knighthood have a writ de valoremaritagii such as in like case is used to be had after the heires full age of 21 years No protection for Wales 40 Since the Statute of 12 E. 1. Calvins case Co. l. 7. 21. b. 3. which incorporateth Wales into England and makes it parcel of England in possession no protection Quia moratur in Wallia will now lye because Wales is now within the Realm of England No wardship after attainder 41 Sir Everard Digby by act executed in his life conveyed his lands to the use of himselfe for life with divers remainders over Digbies case Co. l. 8. 165. b. 4. Co. l. 10. 85. a. 11. and then was attainted and executed for the Power-Treason The question was whether ward of the body or of the third part of the lands should accrue to the King by force of the Statutes of the 32 and 34 H. 8. And it was resolved that their could be neither wardship nor primer seisin in that case because there could be no heire for although there may be wardship and primer seisin where there is no descent as in case when a man grants all his lands holden by déed executed in his life yet there can be no wardship or primer seisin but where there is an heire by reason of whom alone those rights accrue to the King No dower by Guardian 42 During the minority of the heire a writ of Dower lyeth against the Guardian or he may endow the feme without suit if he please Co. l. 9. 16. b. 4. in Anne â—edingfields case but after full age although he hold the land over for the value of the mariage yet no writ of Dower lyeth against him neither can he endow her because after the full age of the heir he is no longer guardian Nusance removed 43 In Assise de nusans or Quod Permittat prosternere Co. l. â— 55 a. 1. in Baltens Case Co. l. 10. 84. b. 4. in Lovers Case c. it is a good plea that the Plaintiff himselfe either before the writ purchased or hanging the writ hath abated the nusance All Soccage Land devised 44 If there be tenant in tail to him and the heires males of his body the remainder in fée to another of land holden by Knight-service in Capite and that is also seised of other lands in soccage in fée and by his will in writing he deviseth all his soccage lands and dies without issue male in this case the devise is good for all the soccage land for the estate of the land holden determines by his death so that there was not any cause of ward at the Common Law so it is likewise 13 El. Dyer 3. if the estate of the land holden be defeated for a condition broken after the death of the tenant Wood or trees excepted 45 If I. grant the Mannor of D. except the wood Co. l. 11. 49. b. 3. Liffords case by this the soil it selfe is excepted but if I. except all my trées growing upon land or pasture out of any wood there by the exception of the trées the soil it selfe is not excepted But sufficient nutriment is reserved out of the land to sustaine the vegetative life of the trées for without that the trées which are excepted cannot subsist But if the Lessor cut them and by the licence of the Lessée root them up in this case the Lessee shall have the soil for cessante causa cessat effectus After pardon no conspiracy 46 If a man be falsely indicted of felonie Fitz. 115. g. and after by Act of Parliament a general pardon is granted of felonies c. Here the party shall not have a writ of conspiracie although he will plead to the indictment and is acquit and will not plead the Act c. because his life was never put in jeopardie which indéed ought to be the cause and ground of the action of conspiracie the felonie being pardoned by the Act. No attaint 47 If a man recover outragious damages by verdict Fitz. 107. b. and release parcel of the damages before Iudgement and hath onely Iudgement of the residue the defendant shall not have attaint for those damages which are so released Goods bailed 48 If a man have goods delivered unto him to deliver over to another and afterwards a writ of detinue is brought against him by him Fitz. 138. m. that hath right to have the goods c. here if the defendant hanging the action deliver the goods over to him unto whom they were given to be delivered this is a good barre of that action Fitz. 139. a. Mich. 34. E. 1. 49 After a divorce made betwixt Baron and feme Divorce the feme shall have a writ of detinue for the goods given with her in mariage not spent Dyer 13. 62. 28 H. 8. Fitz. 152. â— 50 The heire shall be charged by a writ of annuity upon grant of his father if he have assets by descent Annuity but an Annuity shall not be maintainable against the heire by prescription because it cannot be known whether he had any thing by descent from the same ancestor by whom the annuity began c. Plowd 37. a. The Sheriff of Londons case 51 If a prisoner in execution in Ludgate be suffered to go over the Bridge into Surrey though he have a kéeper with him Escape yet that is an escape for being in Surrey which is another County he was without gard and so consequently out of prison c. Plowd ibid. per Chomley 52 If a woman be Warden of the Fleet Prisoners enlarged by mariage or descent and one imprisoned there marieth the woman which is Warden this shall be judged an escape in the woman and the law adjudgeth the prisoner to be at large because he cannot be lawfully imprisoned but under a Warden and he cannot be properly conceived under the ward of his wife And therefore in that case the law adjudgeth him to be at large So if the Warden of the Fleet who hath his office in fée die seised his sonne and heire being then prisoner there and the office descends upon him being in prison here the law will adjudge him out of prison although he hath fetters upon his legs he being then without gard it being impossible that he should kéep himselfe in prison P. 13. E. 4. 8. Plowd ibid. 53 If a Iustice of Peace of one County pursue one into another County for felony comitted in the
County where he is Iustice Power lost and he takes him in the other County In this case he is his prisoner in the County where he takes him and ought there to be imprisoned and he cannot send or convey him to the Gaol of the County where he committed the felony for he is not his prisoner there and being out of his proper County his authority ceaseth as to that other County So if the Marshal hold plea of a thing done out of the verge or the Admiral of a thing done in the body of the County it shall be void for their authority extends to a certaine place and within a certain precinct and not elsewhere and if he which takes Sanctuary goes out any man may take him because he hath lost his priviledge Plowd 72. b. Sir Thomas Popes case 54 If the Conisée of a Recognisance according to the Statute of 23 H. 8. cap. 6 sell several parts of his lands to several feoffées No discharge by the Conusees purchase of part reserving also part thereof to himselfe if execution be sued against his part in an Audita quaerela he shall not compel any of the feoffées to contribute And therefore by the same reason the purchase of part by the Conisée shall not discharge the execution for the execution of the Conisée shall be discharged in consideration that he shall be contributory if he were Feoffée and not Conisée and then in as much as he shall not be contributory if he were Feoffée and not Conisee his purchase of part shall not discharge the execution being Conisée quià cessante causa c. Co. Inst pars 1 70. b. 3. 55 If the King had given lands to an Abbot and his successors to hold by Knight-service this had béen good Lands held by Corporations in Knights Service and the Abbot should have done homage and found a man c. or have paid escuage But there was no wardship or reliefe or other incident belonging thereunto yet if the Abbot with the assent of his covent had conveyed the land to a natural man and his heirs now wardship and reliefe and other incidents belonged of common right to the tenure And so it is if the King give lands to a Major and Communalty and their successors to be holden by Knight-service In this case the Patentées shall do no homage neither shall there be any wardship or reliefe onely they shall find a man c. or pay escuage But if they convey over their lands to any natural man and his heires now homage ward mariage reliefe and other incidents belong thereunto quià cessante ratione legis cessat ipsa lex Lord and Villain 56 If villanage be pleaded by the Lord in an action Real Co. ibid. 127. b. 4. 18 E. 4. 6. 7. personal or mixt and it is found that he is no villaine the bringing of a writ of errour is no enfranchisement because thereby he is to defeat the former judgement and if in the mean time the plaintiffe or demandant bring an action against the Lord he néed make no protestation so long as the record remaines in force for at that time he is frée but the Lord shall be restored to all by the writ of errour Waste 57 If lands be given to two and to the heires of one of them Co. ibid 247. b. 3. he that hath the fée simple shall not have an action of wast upon the Statute of Glocester against the Ioyntenant for life but his heir shall maintaine an action of waste against him upon that Statute So that in this case the heir shall maintaine that action which the Ancestor could not Dower 58 If the husband alien his land Co. Inst pars 1 33. a. 4. and then the wife is attainted of felony now is she disabled but if she be pardoned before the death of the husband she shall be endowed Also if the sonne endow his wife at her age of 7 yeares ex assensu patris if she before the death of her husband attaine to the age of nine yeares the dower is good Office and Rent 59 The King granteth to one an office at will Finch 8. Co. ibid. 42. a. 4 3 E. 4. 8. and ten pounds yearly rent during life pro officio illo here if the King put him out of his office the rent shall cease 21. 4. Guardian in Soccage 60 The executor or husband after the death of the wife guardian in Soccage shall not retain the wardship 7 El. 293. b. Finch 9. Co. Inst pars 1 89. a. 1. for the guardian hath it not to his owne use but for the benefit of the heire and the executor or husband by common intendment beare not such affection to the Infant as the testator or his wife did which was the cause that the law gave them the wardship A Pardon 61 If a stroke be given the first day of May 13 El. 401. Finch 9. and the King pardon him the second day of May all felonies and misdemeanors the party smitten dieth the third day of May so as this is no felony till after the pardon yet is the felony pardoned for the misdemeanors being pardoned all things pursuing it are also pardoned Livery 62 The King hath a Ward pur cause de gard 13 E. 4 10. b. Finch 9. and after maketh Livery to the first Ward the second Ward shall not sue Livery Coparceners 63 If two coparceners make a lease reserving a rent Finch 9. they shall have this rent in common as they have the reversion But if afterwards they grant the reversion excepting the rent they shall be from thenceforth Ioyntenants of the rent Challenge 64 It is no principal Challenge to a juror 14 H. 7. 2. Finch 9. that he hath married the parties mother if she be dead without issue for the cause of favour is removed Entry 65 If an Infant tenant in taile make a feofment in fée and die Co. Inst pars 1 337. a. 2. his issue may enter but if after the feofment made he be attainted of felony and dieth the entry of the issue is taken away for his entry is not lawful in respect of his estate onely but of his bloud also which is corrupted Formedon and therefore in that case he is driven to his Formedon Villain 66 Si mulier serva copulata fit libero c. partus habebit haereditatem Bract. lib. 4. fol. 298. b. Idem l. 1. c. 6. mater nullam dotem quià mortuo viro suo libero redit in pristinum statum servitutis nisi haeres ei dotem fecerit de gratia Co. Inst Pl. 1. 123. a. 2. Co. Inst pars 1 174. a. 4. 67 If one coparcener maketh feoffment in fée Coparceners and after her feoffée is impleaded and voucheth the feoffor she may have aide of her Coparcener to deraign a warranty
alive he should have gone quit by the acquittal of A. because he could not be a Receiver of a felon when A. was no felon And remoto impedimento c. Vide plus ubi supra 21 Things are construed according to that which was the cause thereof Vide 31. 9. Tenant by courtesie 1 If the King give lands to a man and a woman and to the heires of their two bodies and the woman die without issue Co. Inst pars 1 21. b. 4. 9 H. 3. Dower 202. yet shall the man be tenant in taile after possibility c. But if the King give land with a woman of his kindred in frank-mariage and the woman die without issue the man in the Kings case shall not hold it for his life because the woman was the only cause of the gift but otherwise it is in the case of a common person Frankmariage 2 If lands be given to a man and a woman in special taile Co. ibid. 7 H. 4. 16. a. and they are divorced Causa praecontractus both shall hold the lands for their lives a 13 E. 3. Tit. Ass 19 E 3. Ass 83. 12. Ass 22. 19 Ass 2. But in case of frankmariage if they be so divorced the woman shall enjoy the whole land because she was the cause of the gift So if lands holden in c Plowd Carzibs case soccage be given in special tail and the Donées die the issue being within the age of 14 yeares e 17 H. 3. Gard. 146. 27 E. 3. 29. Co. ibid. 29. b. 3 Co. ibid. 42. a. 4 the next of kinne of the part of the father or of the part of the mother which can hap the custodie shall have it but in case of frank-mariage the heire of the part of the mother shall have it because she was the cause of the gift as aforesaid Co. ibidem 88. a. 4. Formedon 3 If a woman tenant in general tail maketh a feoffment in fée and taketh backe an estate in fée and take an husband and hath issue and dieth the issue may in a Formedon recover the land against the father because he is to recover by force of the estate taile as heire to his mother and is not in that case inheritable to his father the estate tail being the cause and ground of his title An Office 4 A man may have an estate for life determinable at will 3 E. 4. 8. b. as if the King doth grant an office to one at will and also grant a rent to him for the exercise of his office for terme of life this is determinable upon the determination of the office which occasioned the grant of the rent 19. 59. Co. ibid. 85. a. 2 5 If a man make a Lease for yeares of a villeine this cannot be done without déed neither can the Lessée assigne it over without déed Grant of a Villain by deed because it is derived out of a fréehold that lyeth in grant which indéed is the material cause of the grant but a wardship is an original chattel during the minority derived out of no fréehold and therefore as the Law createth without déed so may it also be assigned over without déed Co. ibi 102. a 4 9 E. 2. execut 249. 6 Vpon a judgement in debt Judgement execution the Plaintiffe shall not have execution but onely of that land which the defendant had at the time of the judgement because the action was brought in respect of the person and not in respect of the land But if an action of debt be brought against the heire and he alieneth hanging the writ yet shall the land which he had at the time of the Original purchased be charged for that the action was brought against the heire in respect of the land Co. bid 102. b. 1. 22 Ass Pl. 32. 7 If a man be nonsuit the land onely Amerciament Issues of Jurors which he had at the time of the amerciament assessed shall be charged and not that which he had at the finding of the pledges for the amerciament is not in respect of the land but for his want of prosecution which was a default in his person But the issues of a Iuror shall be levied upon the feoffee albeit they were not lost before the feoffment because he was returned and sworn in respect of the land 8 A tenure of the King in Capite Tenure in gross is said to be a tenure of the King a Bract. f. 87 as of his Crown that is as he is King c Co. ibid. 108 a. 4. ubi Vide praedict Author And therefâ—râ— if one holdeth land of a common person in grosse as of his person and not of any Mannor c. and this Seigniory escheateth to the King yea though it be by attainder of treason he holdeth of the pâ—rson of the King but not in Capite because the original tenure was not created by the King Vide infra M. 25. ca. 10. Co. ibid. 158. a. 3. 15 H. 7. 9. 14 H. 7. 31. 18 E. 4. 3. 9 If the cause of challenge alleaged by the Plaintiff against the Sheriff be pâ—rtiality to either party Challenge and processe be once awarded for such partiality though there be a new Sheriff yet processe shall never be awarded to him but to the Coroners and therefore in that case the entry is Ita quòd Vicecomes se non intromittat But if the cause of Challenge be for that the Sheriff was tenant to either party or the like in that case the processe shall be directed to the new Sheriff and not to the Coroners Co. ibid. 161. a. 2. 44 E. 3. 20. 6 R. 2. Refc 11 11 H. 7. 4. 21 H 7. 40. 34 H. 6. 18. 16 E. 4. 10. Co. l. 9. fol. 22. Case of Avowry Co. ibid. 169. b. 2. 15 H. 7. 14. 29 Ass 23. 29 E. 3. 9. b. 10 If the Lord come to distreine cattle Distress which he séeth then within his fée and the tenant or any other to prevent the Lord to distreine driâ—es the cattle out of the Lords fée into some other pâ—ace not within his fée yet may the Lord freshly follow and distreine the cattle and the tenant cannot make rescous But if the Lord comming to distreine had no view of the cattle within his fée though the â—enant drive them off purposely or if the câ—ttle of themselâ—es after the view goe out of the fée or if the tenant after the view remove them for any other cause then to prevent the Lord of his distresse then cannot the Lord distrein them out of his fée and if he doth the tenant may make rescous 11 If there be thrée Coparceners and they make partition Rent in Coparcenary and one of them grant 20 s. per annum out of her part to her two sisters and their heires for egaltie of partition the grantées are not joynt-tenants of this rent but
the rent is in nature of coparcenary and after the death of the one grantée the moity of the rent shall descend to her issue in course of copâ—rcenary not survive to the other for that the rent doth come in recompence of the land and therefore shall ensue the nature thereof if the grant had been made to them two of a rent of 20 s. viz. to the one 10 s to the other â—0 s. yet shall they have the rent in course of coparcenary and shall also joyn in action for the same Co. l. 5. 8. a. 2. Cases of Leases Justice Windhams case The like 12 If two Coparceners by deed indented alien both their parts to another in fee Co. ibid. 169. b. 4. 38 E. â— 26. b. rendring to them two and their heires a rent out of the land In this case they shall not be joyn-tenants of that rent but shall have it in course of coparcenary because their right in the land out of which the rent is reserved was in coparcenary Joyn-tenants and tenants in common 13 If two tenants in Common be disseised Littl. § 311. Co ibid. 195. b. 3. each of them shall have a several assize for his moity because they claime and are seised by several titles but if 20 joyn-tenants be disseised they shall have but one assize in all their names because they have but one joynt title The like 14 If there be three joyn-tenants Littl. § 312. Co. ibid. 196. a. 1. and one releaseth to one of his companions all his right c. and after the other two are disseised of the whole In this case the two others shall have one assize in both their names for the two parts because at the time of the disseisin they held them by a joynt title but as to the other third part he to whom the release was made ought to have a several assize of that in his owne name because of that part he is tenant in common and hath title to it by force of the release and not onely by force of the joynture Coparceners 15 If two Coparceners have issue each of them a sonne and die Littl. § 313. Co. Inst pars 1 196. a. 4. and the sonnes before partition are disseised in this case they shall joyn in an Assize for although they claime by several titles in respect of the several descents from their mothers yet in as much as the land intirely descended from their grand-father to their mothers they are in Law accompted Parceners and a writ de partitione facienda lyeth betwixt them and consequently shall have but one Assize Tenants in common 16 In real and mixt actions tenants in common shall sever in action because they have several freeholds and claim by several titles Co ibid. 195. b. 3. 198. a. 2. but they shall have actions personal joyntly in all their names as an action of trespass of accompt against the Bailiff of their Mannor or the like and in this case also the survivor takes place because these actions found in the personalty and not in the realty and the trespass and damage done unto them which indéed is the cause of the action is joynt and therefore ought to be joyntly prosecuted and shall also joyntly survive and the same Law is of Coparceners Moâ—tgage 17 If the feoffée in mortgage before the day of payment Littl § 339. Co. ibid. 209. b. which should be made unto him make his executors and die and his heire enters into the land as he ought c. It séemes in this case that the feoffor ought to pay the money at the day appointed to the executors and not to the heire of the feoffée because the money at the first accrued unto the feoffée in the nature of a duty and it shall be intended that the estate was made by reason of the lending of the money by the feoffée or in respect of some other duty A mad man 18 In criminal causes as felony Co. ibid. 247. b. 1. ubi vid. Pl. an Plowd 19. a. c. the act and wrong of a mad man shall not be imputed to him for that in those causes Actus non facit reum nisi mens sit rea and he is said to be Amens that is sine mente And therefore his madnesse being the cause thereof and not his intention he is excusable C. l. 4. 124. b. 2. Beverleys Case Entry and â—laim 19 Littleton saith that if a man having title to enter into lands Co. ibid. 253. b. 1 2. dare not do it for feare of beating mayming or death that then he ought to approach as néere the land as he dare to make his claime yet in this case every doubt or feare is not sufficient for it must concern the safety of his person not of his houses or goods for the fear of burning his houses or of taking away or spoyling his goods are not sufficient causes to make him forbear to make his entry or claime upon the land because he may recover the same againe or at least damages to the value of them without any corporal hurt And here also though the feare do concerne the person yet it must not be a vaine feare but such as may justly cause a constant man to be affraid by reason of some overt act as if the adverse party lye in wait in the way with weapons or by words menace to beat Bract. lib. 2. 16. b. Brit. 19. 66. c. maime kill or imprison him c. Talis enim debet esse metus qui cadere potest in virum constantem qui in se continet mortis periculum corporis cruciatum Co ibid. 266. a. 3. 20 If the Donee in taile discontinue in fee Discontinuance of an estate tail the reversion of the Donor is turned to a naked right and here if the Donor release to the discontinuee and the Donee die and the issue in taile doth recover the land against the discontinuee he shall recover no more then the estate taile and must then by consequence leave the reversion in the discontinuee for he can recover no more than was due to him by the gift of the Donor which was the cause and ground of his title neither yet in this case shall the Donor have the reversion againe against hâ—s own release Co. ibid. 355. a. 2. 21 Whereas divers hold opinion that upon a recovery had by default in an action of Wast against tenant in Dower or by the courtesie Waste a Quòd ei deforceat lyeth not because the default is not the cause of the judgement For notwithstanding the default there goeth forth a writ to enquire de vafto facto quod vastum predict A. the defendant fecit So as the defendant may give evidence and the jurors may find for the defendant that no wast was done as in an assize albeit it be awarded by
nec è converso for the original cause of this condition by reason of vicinage was not for profit but to prevent suits in Champion Countries for the reciprocal escapes of the one Town into the other Condition precedent and subsequent 36 In all cases when an interest or estate commenceth upon a Condition precedent Co. l. 7. 10. a. 1. Ughtreds case be the Condition or Act to be performed by the Plaintife or Defendant or any other or be the condition in the affirmative or the negative there the Plaintife ought to shew it in his Count and averre the performance of it for there the interest or estate commenceth in him by the performance of the Condition and is not in him till the Condition be performed but it is otherwise when the interest or estate passeth presently and vests in the grantée and is to be defeated by matter ex post facto on Condition subsequent be the Condition or Act to be performed by the Plaintife or Defendant or by any other and be the Condition in the affirmative or the negative there the Plaintife may count generally without shewing the performance of it and it shall be pleaded by him that will take advantage of the Condition or matter ex post facto for every one ought to alleadge that which makes for him and is for his advantage but none shall be compelled to produce that which makes against him Vide infra 25. 20. A Copiholder may lop trees 37 The Lord of a Copihold Mannor Co. l. 8. 63. Swaynes case within which the Copiholders might by custome lop the timber trées for estovers and necessary repaire of fences c. makes a Lease thereof to A. for 21 years excepting the timber trées A Copihold tenant having lands upon which such timber grew surrendred his estate to another who was admitted by A. the Lessée of the Mannor and lops the trées for necessary repair of fences Now the question was whether the Copihold tenant being admitted by A. who had no interest of the trées by reason of the exception Co. l. 4. 21. a Browns case fol. 23. b Clark and Pennyfathers case fol. 24. a. P. 26. Eliz. 29. b. 2. Buntings case had power to lop them because Nemo potest plus juris ad alium transferre quám ipse habet And it was resolved that he might lawfully lop them because the estate of a Copiholder is not derived out of the estate or interest of the Lord of the Mannor for the Lord is but as it were an Instrument to convey the grant of the Copihold but the Custome of the Mannor after the grant is made is that which establisheth and makes it firme to the Grantée So that although the grant be new yet the title of the Copiholder to the profit of the trées is ancient and so ancient that by force of the Custome it excéeds the memory of man Vide Co. 4. 27. b. Taverners case 28 b. Westicks case Vide 30. 22 23. Co. l. 9. 81. Agnes Gores case 38 Gore the husband of Agnes being sick It may be murder though not intended Roper the father of Agnes procures an Electuary of Martin the Apothecary by the advise of Doctor Grey into which Agnes secretly puts Rats-bane to poison her husband and the 18 of May gives part thereof to her husband who thereupon became very sicke Roper also and another eating part thereof became very sick at last Martin being taxed for making the Electuary in that manner the 21 of May stirres it and also eats part thereof and dies the next day And it was resolved by all the Iudges of England that this was murder in Agnes and that this case did not differ from Sanders case in the Commentaries Plowd 474. although Martin by stirring it made the poison more forcible for the stirring c. without putting in the poison could not be the cause of his death and the Law joynes the murderous intention of Agnes in putting the poison into the Electuary to kill her husband with the event which insued thereupon viz. the death of Martin for the putting in of the poison was the cause and the poisoning and death of Martin was the event Quià eventus est qui ex causa sequitur dicuntur eventus quià ex causis eveniunt So if A. puts poison into wine with an intention to kill B. and C. conceiving it to be sugar stirres it drinks it and dies this is murder in A. It is otherwise where Rats-bane is layd with an intention to kill rats and one takes it eats it and dies for there was no felonious intent c. Co. l. 9. 85. a. Connyes case 39 Vpon grant of a Mannor An Infant shal do his services c. attornement of an infant being tenant of the same Mannor is good and in a Per quae servitia against an infant that hath the tenancy by descent he shall not have his age because at first the Lord departed with the land in consideration that the tenant should hold of him performe services pay a yearely rent c. and the tenant is in Law called tenant paravaile because the Law presumes that he hath benefit and availe above the services which he doth and the rent which he payes to the Lord And therefore it is against the reason and purpose of the creation of the tenure that when the heire hath the tenancy paravaile by descent he should not pay the annual rent c. which was reserved upon the Creation of the tenancy And this is the reason that the heire of the tenant who hath the tenancy by descent may be distreined for the rent c. arrere during the minority and shall not therefore have his age c. Co. l. 9. 113. a. Maryes case 40 For every féeding of the Cattle of a stranger upon a Common Trespass for common contrà the Commoner shall not have an Assise nor action upon the case as his case lies but the depasturing ought to be such per quòd le Commoner c. Common de pasture c. for his Cattle c. habere non potuit sed proficium suuminde per totum idem tempus amisit c. So that if the trespasse be so little that he hath not any losse but that still sufficient remaines for him to depasture his cattle In that case the Commonor shall not take the Strangers Cattle damage fesant neither shall he have any action for it but the tenant of the soile may in that case have an action So if a servant be beaten the Master shall not have an action for that battery except that by reason thereof he loseth his servants service but the servant for every slight battery may have an action and the cause of this diversity is for that the Master receiveth no damage by the personal battery of his servant but by reason of a per quod per quod
servitium c. amisit So that the original Act is not the cause of his action but the consequent upon it viz. the losse of his service and the same reason holds in the case of a Common as above said A release of remainder of a temr good 41 Quando diversi desiderantur actus ad aliquem statum perficiendum Co. l. 10. 49. a. 14 Lampets case plus respicit lex actum originalem quia cujusque rei potissima pars est principium And therefore if A. possest of a Lease for the terme of 500 yeares demiseth the terme to B. for life the remainder to C. and the heires of his body and makes B. his executor and dies and after B. is possest of the Lease C. releaseth to B. all his right in the terme In this case although it was objected that the release was void because C. at the time of the release had no estate in him but onely a possibility the whole estate and terme of yeeres being in B. so that after the death of B C. might enter upon the Lease againe notwithstanding the release yet it was resolved that C. by that release had extinguished all his right and title in the term and had fixed it in B. because the devise by A. and the assent of B. the executor appearing by his acceptance of the release were as the original and fundamental causes of the interest of C. and the death of B. is but a meane to bring the Lease in possession and gives nothing at all for that the whole interest accrues by the devise and is executed by the assent of the executor and therefore C. had not onely a possibility Fulwoods case Co. l. 4. 66. b. but likewise such an interest as might well be released c. But in that case a grant by C. to a Stranger had béen void The Commissioners of Sewers 42 Every Statute Ordinance and Provision Co. l. 10. 140. a Kigheleyes case which is to be made by force of the Commission of Sewers ought to consist of 4 causes 1 The Material cause which is the substance 2 The Formal cause and that is the manner with convenient circumstance 3 The Efficient cause and that is their authority according to their Commission 4 The Final cause and that is pro bono publico nunquam pro privato The consideration whereof will be as so many Sea-marks to direct the Commissioners how to stéere in the execution of their charge and how to order the liberty which is given them by the Statute of 23 H. 8. 5. viz. to make such Ordinances c. according to their owne wisedomes and discretions c. which words are meant and ought to be interpreted according to Law and Justice For every Iudge or Commissioner ought to have duo grana salis viz. unum sapientiae ne sit insipidus alterum conscientiae ne sit diabolus And discretion is well described to be scire per legem quid sit justum Fine in a Leet ought to be distinct and not joynt 43 In a Léet a fine of 6 li. put upon all the Iurors joyntly Co. l. 11. 42. b. Godfreyes case by the Steward because they would not present a thing which by the custome of the Mannor they ought to present is not duly imposed but ought to have béen assessed upon them severally for that the cause which occasioned the fine is several because the refusal of each of them is several and personal and the refusal of one is not the refusal of another and therefore if some of them refused and the rest be readie to present onely those that refuse are to be fined c. Damage feasant 44 If a man take beasts damage fesant Fitz. 69. g. and the other offers sufficient amends and he refuseth c. Here if he sue a replevin c. for the Beasts he shall recover damages onely for the detinue of them and not for their taking for that the cause of taking them was lawfull Fitz. 79. h. 45 The Peace ought no be granted against any without good cause Binding to the Peace and therefore by the ancient course of the Law the party complaining used to make oath before a Master of the Chancery that he was in feare c. of some corporal damage and did not take that oath for malice against his adversary the like ought to be observed by the Iustices of the Kings-Bench and of Peace Fitz. 95. d. 46 If a man winne anothers money with false dice Cheating at Dice he that is deceived may have an action of Deceit against the party so deceiving him And in this case although the Defendant do not entice the Plaintife to play yet it séemes he may well maintaine that action against the Defendant because the excitation to play at dice is not the cause of the action but the casting of the false dice c. by which he wonne the money c. Fitz. 104. l. 47 If a man acknowledge a Statute Staple Dures or Statute Merchant by dures c. he may have an Audita quarela to avoid it because the imprisonment was the cause thereof Plowd 19. a. Fogassaes case 48 If a man by dures be compelled to seale a bond Dures or other compulsion he shall avoid it So if a mans arme be drawne by compulsion and by that occasion the weapon in his hand kills another that is not felony Likewise if an infant under the yeares of discretion or a man de non sane memory kill a man they shall be excused because their ignorance and not any wicked intention was the cause thereof M. 20. H. 7. 12. per Rede Plowd 26. b. 4. Colthrist and Bivishams 49 If one retaine another to serve a yeare for 20 s. wages here Wages for a years service if the servant demand the 20 s. he ought to shew that the time is past viz. that the yeare is expired and he ought to plead certain because his action is given in respect of the yeare past and of a thing done in time and the time is parcel of the cause of the demand and precedes the demand Plowd 98. a. Matters of the Crown 50 In Olivers case in the Commentaries All principall in Murder those that stood by and abbetted the Murderers were as well principals as those that killed him because the number of them then present and ready to strike him shall be adjudged the cause of his terror and of the abatement of his courage and an occasion to make him despaire of defending himselfe and by consequent that terror was the cause of receiving his wounds and the wounds the cause of his death Plowd 99. b. 101. a. Matters of the Crown 51 Amongst the matters of the Crowne in the Commentaries Murder though the party intended not killed divers persons having a malicious intention to murder Doctor Ellis killed his
a man and a woman and their heires before mariage the husband and wife have moities betwéen them Lands given to Batre and feme but if it be after mariage each of them taketh the whole And therefore in this last case if the husband be attainted of Treason or selleth away the land after her husbands death she shall recover the whole as it fell out in the case of William Ocle who was attainted for murthering E. 2. Finch 41. Co. ibid. 209. b. 2. 18 E. 4 18. 19 H. 6. 54. 20 E. 3. account Pl. 70. 8 In a Mortgage the agréement precedent ought to guide the payment subsequent and therefore in case the feoffée die The conditio◠of a mortgage must be performed and it is agréed betwéen the feoffor and the executors of the feoffée that at the day and place the whole sum shall be paid and that afterwards some part thereof shall be restored this is no performance of the Condition for hereby the state shall not be devested out of the heire which is a third person without a true and effectual payment and not by a shadow and colour of payment Co. l. 5. 96. Goodales case Co. ibid. 248. b. 1. Littl. § 410. Pl. Co. Dame Hales case 6 E. 3. 41. c. 9 Littleton saith that a descent Descent by entry into Religion which happens upon the disseisors entring into Religion shall not take away the entry of the heire yet his entry into Religion is not the cause of the descent but his profession for albeit he enter into Religion yet before he be profest no descent can happen But in this case the Law doth respect the original act and that is his entry into Religion which was his own act and whereupon the profession followed by which profession the descent hapned for Cujusque rei potissima pars principium est And againe Origo rei inspici debet and therefore Littleton attributeth the cause of the discent rather to the deisseisors entring into Religion which was the first act to procure a descent than to his profession which followed thereupon Co. ibid. 372. b. 3. T. 23 El. in the Court of Wards 10 To prevent the barring of an estate taile An entail and the reversion in the King when the reversion is in the King according to the Stat. of 34 H. 8. 20. it is necessary that the estate tail should be created by a King and not by any Subject albeit the King be his heire to the reversion And therefore if the Duke of Lancaster had made a gift in taile and the reversion descended to the King yet was not that estate restreined by that Statute and so of the like Co. l. 5. 15 16. in Wisemans case Vide 21. 8. 33 Ass Pl. 7. 11 If a servant departed out of his Masters service kill his Master upon a malice that he bare him whilest he was his servant Malice prepence it is petty Treason Finch 10. 10 El. Dyer 266. b. 12 A erects a Shop upon the Kings Fréehold No possession against the King the King grants the land to B. in fée A. before entry or seisure of the Shop by the Kings Patentée continueth the possession and dieth seised This is no descent to toll the Patentées entry For by his first erecting of the Shop he could gaine nothing against the King Finch 11. Co. lib. 2. 93. a. 3. Binghams case 6. E. 3. 410. 13 It was said in Binghams case in the 2 Report The original act considerable that when divers accidents are requisite to the consummation of a thing the Law in many cases respects rather the beginning and original cause then any thing else As in 6 E. 3. 41. if a man present to another mans Church in the time of warre and thereupon the presentée is admitted instituted and inducted in time of peace Here the Law gives such regard to the original act viz. the presentation that all which followes thereupon although it be done in time of peace Co. l. 1. 106. Shelleyes case shall be avoided And upon the same reason was Shelleys case adjudged in the 1 Report fol. 106. Grant by baron without feme not good 14 If land be given to Baron and Feme Co. l. 3. 5. b. 3. Owen and Morgans case Co. l. 3. 34. b. 4. Butler and Bakers case and to the heires of their two bodies engendred and the Baron alone suffers a common recovery this shall not bind the estate taile And albeit in this case the Baron which suffers the recovery survives the Feme that is not material for the Law shall adjudge upon the case as it was at the time of the recovery Tenure according to limitation 15 If Land be given to a man and his heires to hold by Soccage during his life and after his decease to hold by Knight-service Littl. § 698 699 700. Here shall be no ward because the tenure by Knight-service begins in the sonne and the Father during his life holds by Soccage And è converso if lands be given to a man and his heires to hold by Knight-service during life and after his decease in Soccage Here likewise shall be no ward because immediately upon the death of the tenant the Knight-service determines and then also the tenure in Soccage begins in the sonne Warranty that begins by disseisor not good 16 If the sonne purchaseth land Co. l. 4 37. a. Tirringhams Case and letteth the same to his father for terme of yeares the father enfeoffes another in fée and binds himselfe and his heires to warranty the Father dies by which the warranty descends to the sonne this warranty shall not barre the sonne from his entry or recovery by assise c. because this warranty begins by disseisin In like manner is it if the father or any other Ancestor be tenant at will by Elegit by Stature Merchant or Statute Staple and make feofment with warranty as aforesaid c. Such warranty shall not barre because it begins by disseisin c. There is the same reason of Guardian in Knight-serice or in Soccage which make such feofment with warranty So also if the father and sonne be Ioyn-tenants in fée and the father make feofment with warranty c. and dies this shall not barre the sonne of his moity causa quae suprà Common appendant due of common right 17 The beginning of common appendant by the ancient Law was in this manner 37 H. 9 34. per totam curiam 29 H. 8. 4. when the Lord of a Mannor did enfeoffe a man of arable land to hold of him in Soccage viz. per servitiam Socae as every such tenure at the beginning as Littleton saith was the feoffée ad manutenendum servitium Socae was to have Common in the Lords wastes for such necessary beasts as were to plow and compasse his land and therefore such Common appendant is
and that it shâ—ll be referred to the Sheriff of Bedford For the returne contained an extent of land in the County of Bedford and none could do thâ—t but the Sheriffe of Bedford and the whole summe of the execution was referred to â—im and that could not be so unlesse the Sheriffe of Bedfoâ—d had â—ade the return c. Release of actions 18 If a man be outlawed in an action personal by processe upon the original and after brings his writ of Error Here if he Co. Inst pars 1 289. a. 2. Littl. § 503. at whose suit he was out-â—awed will plead against him a release of all actions personal that seemes to be 〈◊〉 plea for by the said action he shall recover nothing in the personalty but onely to reverse the out-lawry Howbeit in the same case a release of the writ of Error is a good plea And sâ— note that an action real or personal doth imply a recovery of someâ—hing in the realty or personalty or a restitution to the same buâ— a writ implyeth neither of them c. â—oint and several covenant 19 S. and his wifâ— brings a Action of Covenant against B. upon Covenant made by Indenture triâ—artite Co. l. 3. 18. b. 4. In Slingbies case in which B. Covenants with the Plaintifes and with I. S. and his wife assignatis suis cum quolibet queliâ—et eorâ—m that he was sole seised of the land c. And in a writ of Error in the Exchequer Chamber it was adjudged that the Action would not lie because the other Covenantées ought to have joyned with the other Plaintifes and this diversity was agréed when it appears by the Count that each of the Covenantées hath or ought to have a several interest or â—state there the Covenant by these words cum quolibet eorum is several but when they have a joynt interest there the words cum quolibet eorum are void and signifie nothing As if a man let black acre to A. white acre to B. and gréen acre to C. and Covenant with them quolibet eorum that he is right owner of them c. In this case in respect of the said several intâ—rests by the said words quolibet eorum the Covenant is made several But if he demise thâ—se acres to them joyntly then those words cum quolibet eorum are void for a man by his Covenant unlesse in respect of several interests cannot first make the Covenant joynt and then make it several by those or the like words cum quolibet eorum because albeit divers persons may bind themselves quemlibet eorum and so the Obligation shall be joynt or several at the election of the Obligée yet a man cannot bind himselfe to thrée and to every of them to make it joynt or several at the election of several persons for one and the same cause for that the Court will be in doubt for which of them they should give Iudgement which the law will not suffer as it is held in 3 H. 6. 44. for there one brings a Replâ—vin against two of one oxe who made several avowries each of them by himselfe in his own right and there by the advice of all the Iustices both the Avowries did abate for his inconvenience that if both the issues should be found for the Avâ—wants the Court could not give Iudgement to them severally of one and the same thing c. Vide 11. Co. l 9 96. a. 3. â—n Sir Geo. Reynolâ— case 20 When two distinct matters of Record amount to an office When a Sâ—iâ—â— facias and when not sometimes there ought to be a Scire facias before the King doth seise And sometime not according to the several subject matter As if it be found by Office that the Mannor of D. is holden of the King and it appears also by fine upon Record that the Mannor of D. is aliened in Mortmaine In this case there ought to be a Scire facias in which it may appeare by averrement that it is all one and the same Mannor for they may be two several Mannors of one name and that he that aliened it was thereof seised because both those matters upon record without such averrement will not put the party to answer but when the identity of the thing appeares to the Court and that it cannot be divers there the two matters shall then also amount to an office and the King may seise without a Scire facias As in the case of Sir John Savage who was Sheriffe of the County of Worcester for life by Letters Patents under the Great Seal for he being indicted of two voluntary escapes of Felons it was holden per Curiam in B. R. that those words amounted to an Office and that the King was seised without a Scire facias And the reason was because it appeared to the Court that there could be but one Sheriffe in one County and therefore there was no néed of any Scire facias in that case c. Co. l. 7. 26. in Maunâ—ons case 21 In a Quare impedit Advowson â—tron when the Advowson is likely to come in question the writ shall abate unlesse the Patron be therein named but when the presentation onely is to be recovered and not the Advowson neither yet the Patron to be put out of possession In that case the Writ is adjudged good without naming the Patron c. 7 H. 4 25. 27 Co. Inst pars 1 52 a. 3. 22 If Lessée for life make a Déed of Feofment Livery by the Lessor and a Letter of Attorney to the Lessor to make Livery and the Lessor maketh Livery accordingly notwithstanding all that he shall enter for the forfeiture but if Lessée for yeares make a Feofment in Fée and a letter of Attorney to the Lessor to make Livery and he maketh Livery accordingly this Livery shall bind the Lessor and shall not be avoided by him for the Lessor could not make Livery as Attorney to the Lessée because he had no Fréehold whereof to make Livery but the Fréehold was in the Lessor c. 23 If Tenant in taile make a Lease for yeares of lands Fine by Tenant in taile and after levie a fine Câ—â—â—id 332. b. 3. this is a discontinuance for a fine is a feofment of Record and the Fréehold passeth but if Tenant in Taile maketh a Lease for his own life and after levie a fine this is no discontinuancâ— because the reversion expectant upon a State of Freehold which lyeth onely in grant passeth thereby c. 24 Vide Max. 101. Pl. 7. â—orcible Entry â—â—taint 25 If a writ of forcible entry and detainer be brought against A. and five more and the Iury find all guilty of the forcible entry Dyer 141. 45. 3 4 P.M. and onely A. of the detainer in this case if the verdict be false albeit the original writ be intirely brought against all yet the six shall
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
cause of deprivation as it appears 9 E. 4. 34. So likewise if a Prior suffer dilapidations that is a sufficient cause to deprive him as it was holden 29 E. 3. 16. 20 H. 6. 36. Neverthelesse if in these or the like cases there be but an endeavour or enterprize without doing any such act there can be no cause of deprivation for in such cases Voluntas non reputatur pro facto 37 Acta exteriora indicant interiora Secreta Co. Inst pars 1. 257. b. 1. 10 H. 7 12. 1 One may commit a forcible entry in respect of the armour or weapons which he hath that are not usually born Forcible enâ—â— what and when or if he do use violence and threats to the terrour of another And if thrée or four go to make a forcible entry albeit one alone use the violence all are guilty of force So also if the Master cometh with a greater number of servants then usually attend on him it is a forcible entry Co. l. 8. 146. a. 4. The six Carpenters case 2 When entry authority or licence is given to any by the Law Upon entry by Law if treâ—passe be committed he is a trespasser ab initio and he misuseth it he shall be a trespasser ab initio but where entry authority or licence is given by the party and he misuseth it there he shall be punished for the misdeed but shall not be a trespasser ab initio And the reason of this diversity is because in case of generall authority or licence given by the Law the Law judgeth by the act subsequent quo animo or to what intent he entred for Acta exteriora c. but when the party gives authority or licence himselfe to do any thing he can for no cause subsequent punish that which is done by his owne licence and authority And therefore when as the Law gives authority to enter into an Inne or Tavern to the Lord to distraine to the owner of the soile to distrain damage fesant to the Reversioner to sée whether wast be committed to the Commoner to enter into the land to see his Cattell or the like vide 12 E. 4. 8. b. 21 E. 4. 19. b. 5 H. 7. 11. 9 H. 6. 29. b. 11 H. 4. 75. b. 3 H. 7. 15. 28 H. 6. 5. Here if he that enters into the Inne or Taverne commit trespasse as if he cary any thing away from thence or if the Lord that distraines for rent or the owner for damage fesant weary or kill the distresse or if hee that enters to view the wast do hurt to the houses or stays there all night or if the Commoner cut down a trée c. In these and the like cases the Law will adjudge that he entred for that purpose and therefore in as much as the Overt act which he doth is a trespasse he shall be adjudged a trespasser ab initio as it appears in all the aforesaid Books 3 If a Purveyor take my Cattle for the Kings houshold by force of his Commission A purveyor a trespasser that is lawfull but if he sell them in the Market Co. ibid. b. 3. then is the first taking of them forcious and with this accords 18 H. 6. 19. b. The use of a recovery may be declaimed afterwards 4 In many cases an Act subsequent shall declare the intention of a generall Act precedent as Peter Vavasor octabis Hill suffers a recovery Co. l. 9. 11. a. 3 DowmaÌ„s case and by indenture made 15 of February betwéen him and the recoverors limits the uses and dies Dowman and his wife the daughter and heire of Peter c. brings an Assise against him unto whom the use was limited but could not recover because the subsequent Indenture did sufficiently declare the intention of the parties at the time of the precedent recovery So if Tenant in taile hath issue two daughters and die and the eldest enter into the whole and after thereof make feoffment with warranty this is lineall warranty for the one moity and collaterall for the other for the feofment subsequent doth declare the intention of the general entry viz. that it was onely for her selfe or otherwise it would be warranty which should begin by disseisin for the one moity A distress sold makes it a trespasse and with this agrees Littleton cap. Garr fol. 160. If the Lord come upon the tenancy and take and drive away an oxe if he impound him the taking of him shall be adjudged as for a distresse but if he kill him that subsequent act declareth what his intention was ab initio and so shall he be déemed a trespasser c. as aforesaid and with this agrées 12 E. 4. 8. b. 28 H. 6. 5 c. Lord Mesne and Tenant distresse 5 If there be Lord Mesne and Tenant Co. l. 9. 22. b. 3. The case of Avowrie and the Mesne payes his rents and doth his services due to the Lord and yet the Lord will distrain the Tenant peruvail and put his cattle into the pound for them In this case the Mesne at the Tenants instance ought to take out his cattle and to put his own into the pound and then if the Lord will not suffer the Mesne so to do the Lord shall be déemed a trespasser ab initio for the Lord doth not then use the cattle in the nature of a distresse c. and with this accords 13 E. 4. 6. Intention may be adjudged murder 6 Roper the father of Agnes the wife of Gore Co. l. 9. 81. b. 3. Agnes Goreâ— case in love to his sonne in law Gore being sicke procured an Electuary of one Martin an Apothecary by the advice of Doctor Grey into which Agnes did secretly put Rats-bane with purpose to poyson her husband and May 18 gives part thereof to her husband who thereupon became very sicke Roper also eate thereof and likewise became very sicke add last of all Martin being taxed for it stirs it and eates it May 21. and May 22 dies This was adjudged murder in Agnes albeit she intended nothing against Martin and that peradventure the stirring of it by Martin might make it have more force to kill him For in this case the Law joyns the murderous intention of Agnes in putting the poyson into the Electuary to kill her husband with the event which ensued thereupon viz. the death of Martin for the putting of the poyson into the Electuary is the cause and the death of Martin is the event Quia eventus est qui ex causa sequitur dicuntur eventus quia ex causis eveniunt And the stirring of the Electuary by Martin without the putting of the poyson therein by Agnes would not have caused his death A delivery to the party without words 7 An actual delivery of a writing sealed to the party himselfe Co. l. 9. 136. b. 4. Thorough goâ—dâ— case without any words at all is a
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
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
action brought becomes no deed either by rasure addition or other alteration or by breaking the seale c. In this case although it were once a déed yet the Defendant may safely plead Non est factum for without question at the time of the plea which is in the present tense it was not his déed 36 H. 8. Dyer 59. in an action of Debt upon an obligation against Hawood the Defendant pleads non est factum and before the day of apparance of the Inquest the Mice had eaten the Label unto which the seale was fixed by the negligence of the Clerke in whose custody it was Here the Iustices charged the Iurors that if they found the déed to be déed of the Defendant at the time of the plea pleaded they should then give a special verdict which they did accordingly Co. l. 6 15. a. 1. Trepors case 9 If A. Tenant for life and B. in remainder in fée Lease and confirmation joyne in a lease to C. Immediately after the delivery of the déed it is the lease of A. during his life and the confirmation of B. and after the death of A. it is the lease of B. and the confirmation of A. according to the opinion of Dyer and Brown Mich. 6 7 Eliz. fol. 234 235. Co. l. 6. 22. Ambrosia Gorges case 10 If a man marry an Inheritrix of lands holden of the King in Capite and hath issue by her a Daughter and afterwards the Feme die A daughter iâ— ward during the life of her father the Daughter shall not be in Ward because she is yet heire apparant to her Father But if the Father take another Wife and hath issue a Son then shall the Daughter be in ward to the King because the Son is now his heire apparent and not the Daughter And no heire apparent shall be in ward during the life of the Father Co. l. 7. 18. a. Calvins case 11 The time of the birth of a man or woman is chiefly to be considered to make them a Subject borne or not Ante-nati Post-nati and is as it were of the essence of a Subject born For a man cannot be a Subject to the King of England unlesse at the time of his birth he was under the ligeance and obedience of the King of England albeit the Kingdome of the King under whose ligeance he was borne do afterwards descend to the King of England And this is the reason that Ante-nati in Scotland for that at the time of their birth they were under the ligeance and obedience of another King are aliens borne in respect of the time of their birth c. â—â—ttle in â—und tender 〈◊〉 late 12 Tender of the rent upon the land before the Distresse Co. l. 8. 147. 2. 4. The 6 Carpenters case makes the Distresse tortious tender after the Distresse and before the imparkment makes the detainer but not the taking tortious tender after the imparkment makes neither the one nor the other tortious for then it comes too late in regard the cause is then put to the tryall of the Law to be there determined 13 Distinguenda sunt tempora concordabis leges Co. l. 9. 16. b. Anna Bedingfeilds case â—state to the â—st issue in â—ile 14 Thomas Bowles in consideration of marriage with Anne Hide Co. lib. 11. 80. a. 4. Lewes Bowles case covenants to stand seised of the Mannor of D. to the use of himselfe and Anne for their lives and after to their first issue male and the heires male of his body and after to the heirs male of the bodies of Thomas and Anne c. In this case before issue had Thomas and Anne were seised of an estate taile executed sub modo viz. untill issue and then by operation of Law the estates were divided viz. Thomas and Anne became Tenants for life the remainder in taile to the issue the remainder to the heirs male of Thomas and Anne c. â—landerous â—ords 15 A man brings an action upon the Case for these slanderous words Thou art an arrant Knave a Cosener a Traitor Co. l. 10. 131. a. 1. Ja. Osborns case being all spoken together at one and the same time and upon not guilty pleaded the Iurors finde for the Plaintiff and assesse damages generally for all the words herein they did well for all those words taken together make but one scandal and albeit no action lieth for these words Thou art an arrant Knave a Cosener spoken apart by themselves yet being spoken at one and the same time and coupled with the other words and a Traitor which are indéed actionable they aggravate them and make them worse Howbeit if at one time the Defendant calls the Plaintiff Traitor and at another time he calls him arrant Knave and Cosener and the Plaintiff brings an action upon the Case and alleadgeth the said several words spoken at several times as several causes of action theâ—e if upon not guilty pleaded the Iurors assesse damages intirely judgement shall be arrested for all for he grounds his action upon two several scandals whereas one of them is not actionable c. 〈◊〉 perquisite â—y the purâ—hase of a â—illein 16 If a man hath a Villein in right of his wife Co. Inst pars 124. b. 1. and the Villein purchase land he shall have that perquisite in her right but if the Villeine purchase it after issue had then the Baron shall have the perquisite to him and his heires because by the issue he is entitled to be Tenant by the Courtesie in his own right 49 Quod prius est tempore potius est jure Vide Max. 62. Pl. 10. 19. â—emitter 1 One of the reasons of a Remitter is Co. Inst pars 1 347. b. 3. because that title which is first and more ancient is alwayes more sure and worthy And therefore many books in stead of Remitter say that he is En son primer estate or en son melior droit or en son melior estate c. or the like For Quod prius est verius est quod prius est tempore potius est jure c. Confirmation â—st best 2 The Lessée for life made a lease for thirty years Co. ib. 296. a. 3. and after the Lessor and Lessée for life made a lease for 60 years to another which lease for sixty yeares the Lessor did first confirme and after the Lessor confirmed the lease for thirty years and after the Tenant for life died within the thirty yeares In this case the lease for thirty yeares was determined by the death of the Tenant for life and the Lessée for sixty yeares might enter for that albeit the lease for sixty yeares was the later in time yet was it of greater force in Law because the Lessor who had power to confirm which of them he would did first confirm the second lease Inter Unwel and Lodge
A. be seised of certain lands and A. and B. joyne in a feoffment in fee reserving a rent to them both and their heirs and the Feoffee grant that it shall be lawfull for them and their heirs to distrain for the rent so reserved this is a good grant of a rent to them both because B. is party and privy to the deed as well as A. and the clause of distresse is a grant of the rent to A. and B. But if B. had been a stranger to the deed then B. had taken nothing c. Privies in bloud estate and right A re-entry cannot be transferred 27 If an estate be made upon condition and clause of re-entry Littl. Sect. 347. Co. ib. 214. b. 4. at the Common Law none shall take advantage of such re-entry but only parties or privies As if a man let land to another for term of life by Indenture rendring rent to the Lessor and his heirs and for default of payment a re-entry c. If after the Lessor grant the reversion to another in see and the Tenant attorn c. In this case the advantage of re-entry is gone for ever For albeit if the rent happen to be arrear the Grantee of the reversion may distrain for it because it is incident to the reversion yet shall he not for that cause enter into the land and out the Tenant for that the advantage of re-entry at the Common Law belongs onely to the Lessor himself and unto his heire as privy in bloud unto him and cannot by grant of the reversion be transferred unto another neither yet can it be left in the Lessor or his heirs because he hath departed with his whole estate in the land But if the Lessor has died seised of the reversion his heire should have taken advantage of such re-entry for that he is privy in bloud unto him as aforesaid And therefore there is a diversity between the reservation of a rent and a re-entry for a rent cannot be reserved to the heire of the Feoffor leaving out the Feoffor himself but the heire may take advantage of a Condition which the Feoffor himself could never do As if I enfeoff another of an acre of ground upon condition that if my heir pay to the Feoffee c. xx s. that he and his heirs shall re-enter this condition is good and if after my decease my heire pay the xx s. he shall re-enter for he is privy in bloud and shall enjoy the land as heire unto me So also if a Bishop Arch-Deacon Parson Prebend or any other bodie politique or corporal Ecclesiastical or Temporal make a lease c. upon condition his successor may enter for the condition broken for they are privies in right Likewise if a man have a lease for years and demise or grant the same upon condition c. and die his Executors or Administrators shall enter for the condition broken for they are also privies in right and represent the person of the dead â—eoffor shall â—lead a deed â—oll 28 If feoffment be made by déed Poll upon condition Littl. Sect. 375. and because the condition is not performed the Feoffor enters In this case if either the deed Poll be pleaded by the Feoffée and by that means shewed to the Court or that the Feoffor otherwise happens the possession of the said déed albeit that déed properly belongs to the Feoffée and not to the Feoffor yet because the Feoffor is privy unto it he shall make use of it and be received to plead it Release 29 If two men do trespasse to another who releaseth to one of them by his déed the other trespassor shall make use of that release if he have it to shew because they are parties and privies in the trespasse so likewise if two be bound in an obligation and the Obligée releaseth to one of them both are discharged c. â—â—ir Execuâ—â—â— privies 30 If an action of Debt upon an Obligation be brought against an heire Littl. §. 376. Co. ib. 23â— a. he may plead in barre a release made by the Obligée to the Executors and yet the deed doth properly belong to the Executors and not to him but because both he and they are privies to the Testator such a release shall enure as well to him as to them if he be able to produce it otherwise it shall not avail him Littl. §. 396 397. Co. ib. 242. a. 31 If a man seised of lands in fée hath issue two sons and die seised Privity of bloud and title and the youngest son enters by abatement into the land and having issue dies thereof seised and the issue enters into the land this shall not be a descent to take away the entry of the eldest son or of his heirs because the Law intendeth that the youngest son entred claiming the land as heire to his father and for that the eldest son claimeth also by the same title viz. as heire to his father therefore he and his heirs may well enter upon the second son and his heirs in respect of the privity of bloud betwéen them and of the claim by one and the same title But in the same case if after the fathers death the eldest son had entred and then the youngest son had disseised the eldest and had died seised that had béen a descent to take away the entry of the eldest or of his heirs for that was a plain disseisin and the privity of bloud shall not help that case c. So also where lands were given to the husband and wife and the heirs of their two bodies and they had issue a daughter and the wife died and the husband had issue by another wife four sons and died and the eldest son abated and died seised This descent did take away the entry of the daughter because there wanted privity of title for that they claimed not by one and the same title And in the first case albeit the eldest son hath issue and dieth and that after his decease the youngest son or his heire entreth and many descents be cast in his line Yet may the heires of the eldest son enter in respect of the privity of the bloud and of the same claim by one title But if the youngest son make a feoffment in fée and the Feoffée die seised that descent shall take away the entry of the eldest in respect that the privity of the bloud faileth And admit that the youngest son be but of the halfe bloud to his brother yet is he of the whole bloud to his father and therefore if he entreth by abatement and dieth seised it shall not bar his elder brother of his entry Howbeit if after the decease of the Father a Stranger doth first enter and abate upon whom the youngest son entreth and disseiseth him and die seised this descent shall binde the eldest for he entred by disseisin and not by abatement c. Co. ib. 243. a. 1
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
if the estates be not equal albeit the parties agrée Exchange yet is the exchange void for the agréement of the parties cannot make that good which the Law maketh void Co. ib. 53. b. 2. 7 If a man make a lease for life and by déed grant Waste that if any waste or destruction be done that it shall be redressed by neighbours and not by suit or plea Yet in this case an action of waste shall lie because the place washed cannot be recovered without a plea. Co. ib. 62 b. 3. Littl § 82. 8 If a man let lands to another to hold to him and his heirs at the will of the Lessor these words to the heirs of the Lessee are void Lease to one and his heirs at will because in this case if the Lessee die and his heir enter the Lessor shall have an action of Trespasse against him and that before the Lessor enters for that by the death of the Lessée the lease is absolutely determined Co. ib. 66. b. 2. 9 In the making of Homage the saving for other Lords Salve la foy Homage que se doy c. a mes autres Seigniors is not of necessity but onely added for explanation sake For the homage is referred onely to the Tenements which the Tenant holdeth of that Lord to whom he doth the Homage Co. ib. 191. a. 2. 30 Ass Pl. 8. Co. l. 4. 73. b. 1. Boroughs case 10 Lande given to two Et uni eorum diutius viventi Jointenancy they make partition and one of them grants his part to a stranger In either of these cases if one of them die the Lessor shall have again the moity of him that dieth for Uni eorum diutius viventi are but idle words because without them the Iointenant by course of Law is to have all in case he survive Finch 24. Co. ib. 212. b. 4. 11 Where the condition is certain viz. for the payment of 20 l. or the like the Obligor or Feoffor cannot at the time appointed pay a lesser sum in satisfaction of the whole because it is apparent Payment of a summe that a lesser sum of mâ—â—ey cannot be a satisfaction for a greater Littl. § 345. Co. ib. 213. a. 2. 12 If a man enfeoff another upon condition A sum reserved to a strâ—â—ger no renâ— that he and his heirs shall render unto a stranger a yearly rent of 20 s. c. and that if he or his heirs fail to pay it that then it shall be lawful for the Feoffor and his heirs to re-enter Albeit this reservation be by indenture whrein the 20 s. reserved is named to be an annual rent yet is it never the more a rent for that because although the stranger be seised of it and then failer is made yet can he not have Assise for it and for that the estate moved not from the stranger neither yet was he party to the déed c. But such a sum reserved in that case is onely a pain set upon the Tenant which if he pay not c. the Feoffor may enter c. Co. ib. 224. b. 2. 13 If a gift in tail be made to a man and to the heirs of his body Issue falling the Dâ—â—â—â— may â—â—ter and if he die without heirs of his body that then the Donor and his heirs shall re-enter this is a void Condition For when the issues faile the estate determineth by the expresse limitation and consequently the adding of the Condition to defeat that which is determined by the limitation of the estate is void and in that case the wife of the Donée shall be endowed c. Littl. § 446. Co. ib. 265. a. 14 These words in a release Release of future inteâ—â—â—â— void Quae quovismodo in futurum habere potero are void in Law For no right passeth by a release but onely the right which the Releasor hath at the time of the release made for if there be father and sonne and the father is disseised and the son living the father releaseth by his déed to the Disseisor all the right that he hath or may hereafter have in the land without clause of warranty c. and after the father dies c. the son may lawfully enter upon the possession of the Disseisor notwithstanding such release because he had no right in the land in the life of his father but the right descended unto him after the release made by his fathers death c. A perpetuity void 15 A man gives land to Mary and Joane two sisters Et haeredibus de corporibus eorum legitime procreatis by which they had a joynt estate for life and several Inheritances and the Donor intending Co. l. 1. 84. b. 3. in Corbets case per Anderson 8 Ass Pl. 33. that neither of them should break the joynture but that the Survivor should have all per jus accrescendi added this clause sub hac forma quòd illa quae illarum diutius vixerit tenebit terram illam integram c. But in as much as his intent was contrary to Law for that cause if the joynture were severed by fine levied the Survivor shall not have the part so severed by reason of the said clause which he did insert of his own conceit and imagination repugnant to law and reason c. A will repugnant void 16 For the construction of Wills Co. l. 1. 85. b. 4. in Corbets case this rule was taken by the Justices in the argument of Corbets case in the first Report that an estate which by the rules of the Common Law cannot be conveyed by act executed in the life of the Devisor by advice of Counsel learned in the Law cannot be devised by his last Will he being intended at that time to be inops consilii As if a man devise land to another for ever there the Devisée hath fée because such an estate may be conveyed by act executed c. But if he devise farther that if the Devisée doth not such an act that another shall have the land to him and his heirs this were void because such a limitation if it were by act executed would be void c. An authority revocable 17 If a man be bound in an Obligation to stand to abide observe Co. l. 8. 82. a. 2. in Vinyors case c. the rule arbittement c. yet he may countermand it for a man cannot by his act make an authority power or warrant to be uncountermandable which by the Law and of its own nature is countermandable As if I make a letter of Attorney to make Livery or to sue an action in my name or if I assigne Auditors to take an accompt or make a Factor or submit my selfe to an arbitrement albeit these are made by words expresly irrevoâ—able or if I grant or am bound that all these shall stand irrevocably yet they may
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
the land In this case the Rent and Escuage shall be apportioned but the Homage and Fealty shall still remain intire for the residue of the land still remaining in the Tenants hand because he still holds the residue of the land of him and then he must hold it by some service or other and therefore those services being in their nature unseverable and intire they shall totally remain being indéed the fréest and least chargeable services that the Tenant can hold by c. Co. ib. 150. a. 1. 14 Albeit in some cases a Rent-charge The charge of a stature not apportionable which is in his nature intire may by act in Law be apportioned as when the Grantée of the rent comes to the land by descent or the like Yet in such cases the writ of Annuity faileth because that writ being grounded upon the grant by déed which is intire must be sued for the whole and cannot be sued for part Also a rent in respect of the realty may be apportioned but the personalty is indivisible and shall not be severed no not by act in Law As if execution be sued of body and lands upon a Statute Merchant or Staple and afterwards the inheritance of part of those lands descends to the Conusée In this case all the execution is avoided for the duty being intire and personal cannot be divided c. Annua nec debitum judex non separat ipsum Co. ib. 15â— b. 2. 15 A Rent-service is of its own nature apportionable Rent-service becomes rent-seck Howbeit if it be changed from Rent-service to a Rent-seck by severance thereof from the Seigniory it thereupon becomes intire and unsevâ—â—able according to the nature of a Rent-secke And therefore if there be Lord and Tenant by fealty and certain rent and the Lord by déed grant the rent in fée fée-taile or for life saving the fealty the rent which before was Rent-service is by that severance of it from the Seigniory made a Rent-seck and then if the Grantée purchase part of the land out of which that rent is issuing the whole rent is extinct 16 If a man be seised of two acres of land in two several Counties Co. ib. 153. b. 4. and maketh a lease of both of them reserving two shillings rent In this case albeit several liveries be made at several times yet is it but one intire rent in respect of the necessity of the case and he shall distrain in one County for the whole rent and make one avowry for the whole c. A County intire for livery 17 Every County is as it were an intire body of it selfe Finch 79. Littl. § 418. so that upon a feoffment of lands in many Towns in one County livery of seisin made in one parcel in any one of those Towns in the name of all sufficeth for all the lands in all the other Towns within the same County but upon a feoffment of lands in divers Counties there must be livery of seisin in every County For entry In like manner Littl. § 417. Co. ib. 252 b. 4. if a man have cause to enter into lands lying in divers Towns in the same County if he enter into one parcel thereof lying in one Town in the name of all the lands in the same County by such entry he hath as good possession of all those lands as if he had entred into every parcel but if they lie in several Counties there must be several entries Co. ib. 153. b. 4. So likewise if a man de disseised of a rent issuing out of lands lying in divers Towns within one and the same County he shall néed to bring but one Assise for the recovery of that rent c. But if the lands lie in several Counties he shall have several Assises in confinio Comitatus and in either County shall make his pliant of the whole rent Howbeit there shall be but one Patent to the Iustice And this Assise in confinio Comitatus is given by the Statute of 7 R. 2. Stat. 7. R. 2. 10. For no Assise lay in that case at the Common Law but the party might distrain for the whole rent in either County The like for â—ervices 18 If a man hold divers Mannors or lands in divers several Counties by one tenure and the Lord is deforced of his services Co. ib. 154. a. 2. he shall have several writs of customes and services viz. For every County one writ returnable at one day in the Court of Common Pleas and thereupon Count according to his case by the Common Law But if the Tenant in that case do cease the Lord shall not have several writs of Cessavit ut suprà For the writ of Cessavit is given by Statute of West 2. cap. 21. and the form and manner of that writ is therein prescribed for which cause it is holden in our books that in that case a Cessavit lay not at the Common Law c. â— Villein adâ—owson c. â—ndivisible 19 Of Inheritances some be intire and some several and of intire Co. ib. 164. b. 3. some be divisible and some indivisible c. If a Villein descend to two Coparceners this is an intire inheritance and albeit the Villein himself cannot be divided yet the profit of him may for one Coparcener may have him one day or wéek and the other another day or wéek c. They may likewise have an Advowson in coparcenary and may present by turns because that is also an intire Inheritance which cannot be divided â—stovers â—â—ots and â—ings uncerâ—in not diviâ—ble 20 If a man have reasonable Estovers as House-boot Co. ibid. b. 4. Hay-boot c. appendant to his Frée-hold they are so intire as they shall not be divided betwéen Coparceners So if a Corodie incertain be granted to a man and his heirs and he hath issue divers daughters this Corodie shall not be divided betwéen them It is otherwise of a Corodie certain for thereof partition may be made Likewise Homage Fealty Piscary uncertain Common sans number and the like cannot be divided betwéen Coparceners and the two last not onely because they are intire but also because it would be a charge to the Tenant of the Soile if such hereditaments should be devisible the interest in them being unlimited c. Co. ib. 190. a. 3. 21 If a Corodie be granted to two men and their heirs In this case Grant of a Corodie to two because the Corodie is incertain and cannot be severed it shall amount to a several grant viz. to each of them one Corodie for the persons be several and the Corodie is personal and the grant shall be taken most strongly against the Grantor Littl. § 314. Co. ibid. 197. 22 If two Tenants in Common of lands in fée make a gift in taile or a lease for life to another rendring to them yearly a certain rent Tenants in common
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 〈◊〉
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
in the Case of a common person Co. ib. 31. b. 4. 2 If a Common Person take an Alien to Wife and die An alien albeit he were seised of Lands in Fée or Fée taile yet shall not his Wife be endowed but if the King take an Alien borne and die she shall be endowed by the Law of the Crowne And yet Edmund brother to E. 1. married the Quéen of Navarre Rot. Parl. 26 E. 1. Rot. 1. and died And it was resolved by all the Iudges that she should be endowed of the third part of all the Lands whereof her husband was seised in fee. Co. ib. 90. a. 4. F. N. B. 33. p. q. r. 3 If a Bishop hath an Advowson and the Church becomes void Bishop Advowson and the Bishop dies neither the Successor nor the Executors shall present but the King because it is but a Chose in action Co. ib. 388. a. 2. F. N. B. 33. p. q. r. 4 A man holds the mannor of D. whereunto an Advowson is appendant of the King by Knights-service the Church becomes void Advowson Wardship Eâ—ecutors and then the Tenant dies his heire under age in this Case the King shall present and not the Executors of the Tenant And this is by reason of a prerogative that belongeth to the King to provide for the Church being void for where the tenure by Knight-service is of a Common Person the Executors of the Tenant shall present c. Co. ib. 108. b. 2. 5 Tenure by rendring yearly to the Lord a Bow a Sword Petty Serjeancie Soccage a Dagger a Gantlet or such other small things belonging to warre in Case of a Common Person is nothing else but plain soccage ab effectu because it had such effects and incidents as belong to soccage and neither ward nor marriage c. But in the Kings Case in respect of the dignity of the Kings Person it obtaineth the Name of Petie Serjeancie c. Co. ib. 118. a. 2. Litt § 177 178. 6 If a Villain purchase Land and alien it before the Lord enter Villein pâ—â—chas Land 〈◊〉 goods seisâ—â— the Lord is barred for ever For before the Lord enters he hath neither jus jure nec jus ad rem but onely a possibilitie of an Estate which Estate he must gaine by his entry And therefore if the Villain doth by way of prevention alien before the Lord doth enter the Lord is for ever barred of the possibilitie which he had to enjoy the Land Si autem servus vendiderit feodum Fleta l. 3. c. 13 Britt fol. 98. a. 19 E. 2. Dow. 171. quod sibi haeredibus perquisiverit antequam Dominus seisinam inde caeperit valet donatio Dominus sibi ipsi imputer quod tantum expectavit saith Fleta Howbeit if the Kings Villain purchaseth Land and alieneth before the King upon an Office found for him doth enter yet the King after Office found shall have the Land Quia nullum tempus occurrit Regi And yet after Office found the King shall not have the mean profits because the title commenceth by the seisure Litt. §. 178. It is otherwise of Goods in the Kings Case For if the Kings Villain acquire any Goods or Chattels the property of them is in the King before any seisure or Office And it is well said of an Ancient Author Mirr cap. 3. Britt fol. 88. Al Roy quant al droit de la Corone on á franch Estate ne poet nul temps accurre and another speaking in the Person of the King saith Nul temps nest limit quant á mes droits c. â—â—narty 7 Where a Church is presentative Co. ibid. 119. b. 4. 344 a. 4. it is full by admission and institution against any common Person but against the King it is not full before Induction â—â—een purâ—â—s sue 8 By the Common Law the Wife of the King of England is an exempt Person from the King Co. ibid. 132. a. 4. Co. l. 4. 23. b. 2. Clerke Pennyfathers Case and is capable of Lands and tenements of the gift of the King as no other Feme covert is and may sue and he sued without the King for the wisedome of the Common Law would not have the King whose continuall care and study is for the Publique circa ardua Regni to be troubled and disquited for such private and petty causes So as the wife of the King of England is of ability and capacity to grant and to take to sue and to be sued as a Feme sole by the Common Law Also the Quéen of England hath many other prerogatives viz. She shall find no pledges for such is her dignity as she shall not be amerced â—â—ince Neither she nor the Kings Son are restrained by the Statute of 1 H. 4. c. 6. concerning grants by the King In a Quare Impedit brought by her some say that plenarty is no plea no more then in the Case of the King â—â—enarty Baiâ—â—â—e Hundred If any Bailiffe of the Quéenes bring an Action concerning the Hundred he shall say In contemptum Domini Regis Regiâ—ae The Quéen shall pay no toll c. â—enancie part â—â—iened diâ—â—â—ain in all 9 If the Quéenes Tenant alien a certain part of his tenancie to one Co. ibid. 133. b. 1. and another part to another the Quéen may distraine in any one part for the whole as the King may do but other Lords shall distraine but for the rate Ane therefore where the Quéen so distraineth there lyeth a writ de onerando per rata portione â—rit of right â—â—rected Also the writ of right shall not be directed to the Quéen no more then to the King but to her Bailif otherwise it is when any other is Lord. â—yde counterâ—leaded 10 In case of Ayde prayer of the Quéen Co. ibidem it is Domina Regina inconsulta and the cause of the Ayde prayer shall not be counterpleaded no more then in the Kings Case And see where the ayde shall be granted of the King and Quéen and where of the Quéen onely and she of the King 14 E. 3. Voucher 110. 21 E. 3. 53. 22 E. 3. 3. b. 17 E. 3. 65. 10 E. 3. 17. 5 E. 3. 4. 15 E. 3. Ayde del Roy 66. 10 E. 3. 18. 26 H. 6. Ayde le Roy 24. â—â—otect Marleâ—â— distresse 11 A protection shall be allowed against the Queen Co. ibidem but not against the King neither shall the Quéen be sued by petition but by a praecipe The Quéen is not bound by the Statute of Marlebridge for driving a distresse into another County â—eath treason â—â—wag 12 If any do compas the death of the Quéen Co. ibid. 133. b. 2. and declare it by any over fact the very intent is treason as in the Case of the King No man may marry the Quéen Dowager without the
Crown that in the Kings Case they shall go with the Crown to the successor and not to executors as in case of common persons as appears in 7 H. 4. 43. and 44 E. 3. 42. Neither yet doth every warrant serve for the issuing of the Kings treasure for it cannot be done by Parol or by the privy Signet but ought to be done under the Great Seal or Privy Seal It was also further resolved in this Case that albeit Sir VValter had thus received the Quéens treasure to his own use yet inasmuch as he received it without lawful warrant he knowing that it was the Quéens treasure the Law makes privity in the Quéens Case and therefore she might charge him as an Accomptant And so it was also adjudged in the Exchequer in Jurdens Case P. 31. Eliz. Rot. 150. Neither yet is it of necessity that the Kings money or goods should come into the hands of the Testator for if he were onely a mean or Instrument whereby the King was put to loss or damage he shall be charged with so much as he hath so endamaged the King and shall be compelled at the Kings Suit reddere rationem thereof which is in nature of an Accompt for which there is a notable president in M. 30. E. 3. Rot. 6. Porters Case which sée in Co. l. 11. 92. b. in the Earl of Devonshires Case And therefore it was also resolved in Sir VValter Mildmayes Case that the Quéen might either charge the executors of Sir VValter or those that made such unlawful warrant at her election And if they were dead their executors c. for in as much as they were in their life-time chargeable by the Law in that Case if they die before judgement against them without question their executors shall be charged because where the Testator is by the Law chargeable to satisfie the King for losse or dammage done unto him his death shall not dispence therewith but that his Executors shall be also chargeable to the King c. F. N. B. 5. l. 65 In a Praecipe in Capite the Tenant shall not plead Protestaâ—â— that the Tenements are not holden of the King albeit the writ supposeth as much but he ought to take it by protestation and to plead other matter in barre if he have any matter to plead â—ender Di. â—ark 66 In a writ of Right F. N. B. 5. m. the Demandant ought to count of his own seisin or the seisin of his Ancestor c. yet the seisin is not traversable but the tenant may tender a Di. mark to enquire of that seisin c. and if it be found with the tenant that the Ancestor was not seised the Demandant shall be barred Howbeit if the King be party Demandant the Tenant shall not tender a Demy Mark to enquire of the seisin but he ought to plead in bar and there the tenant shall not imparâ— without the assent of the Kings servants The King may â—â—cuse appeaâ—â—nce 67 The King by a writ de warrantia diei may command the Iustices to excuse the Defendant of appearing at the day F. N. B. 17. b. whereunto he was adjourned to appear in proper person And whether the Cause alledged in the writ be true or false it is not material when the King certifies that he is in his service for it séems by the words of the writ that the King by his Prerogative may warrant that default for a day And so also it séemes that if the tenant in a Praecipe quod reddat at the great Cape or petit Cape returned make default that before judgment upon that default the King may command such a writ to the Iustices rehearsing that the tenant was in his service c. and commanding them that his default should not turn to his prejudice And it stands with reason that the King may do it because every one is bound to serve the King in his affairs c. â—â—nipresence 〈◊〉 his Courts 68 If false Iudgment be given for the King in any Action or Suit F. N. B. 21. b. 107. q. Finch 81. the party grieved shall have a writ of Error and assign Errours without suing any Scire facias against the King ad audiend errores because the King is alwayes present in Court and that is the cause that the form of Entry in all Suits for the King is Edvardus Herbert Miles Attornatus Domini Regis generalis qui pro domino Rege sequitur venit hic in Curia c. And doth not say Dominus Rex per Edvardum Herbert Attornatum suum c. And therefore it is also that the King cannot be Non-suit that all Acts of Parliaments that concern him are general and the Court must take notice of them without pleading them for he is in all and all have their part in him c. â—ake Attorâ—ys 69 It séems that before the Statutes which ordain F. N. B. 25. c. e. â— 26. a. that a man may make Attorneys c. the Iustices neither would nor could suffer the Plaintiffe or Defendant Demandant or tenant to make Attorneys in any Action or Court whatsoever yet the King by his Prerogative even before those Statutes might grant to a man power to make Attorneys and by his Writs or Letters might command the Iudges to admit and receive them c. and that without any cause shewed in the writ c. â—â—e King canâ—â—t be Jointâ—ant 70 In the Register there is the form of a writ F. N. B. 32. g. wherein a common person is joyned with the King in a Quare Impedit which runs thus Rex vice comiti c. praecipe R. de C. quod justè c. permittat nos P. de T. praesentare c. But Fitz. saith in his N. B. that the common opinion in his time was that the King should have the whole presentment sole and should have a sole Action c. although he séems to hold the contrary himself Ideò quaere â—sent again 71 If the King recover by a Quare Impedit F. N. B. 34. f. and after ratifie the Estate of the Incumbent yet at the next avoidance the King shall present because the Recovery and Iudgement for him were not executed â—â—â—sent by 〈◊〉 72 In a Frée Chappel of the Kings F. N. B. 34. â— where the Dean ought to give the Prebends if he make not collation within six moneths unto them then shall the King present unto them by Laps as Ordinary F. N. B. 34. k. 73 If the Bishop make collation and die before induction Not inducted or instalment and the King seise the temporalties he shall have that presentment because the Church is not full against the King until the Parson or Prebend be inducted or installed F. N. B. 35. a. 74 If the Kings tenant hath title to present to an Advowson Advowson Ward Present which is void
and the six moneths passe and after the Kings tenant dies before the Bishop presents by laps and leaves his heir within age and in ward to the King In this case the Bishop shall not present by laps but the King shall have the presentment by reason of the ward c. F. N. B. 35. p. 75 In a Quare Impedit for the King Not stopt albeit the Defendant hath a writ to the Bishop against the King yet the King may sue a new Quare Impedit against the party of the same avoidance and make another title F. N. B. 37. f. 76 The King may sue a Ne admittas after the six moneths past Ne admittas where he hath a Quare Impedit or an Assise de Darrein presentment depending because Nullum tempus occurrit Regiâ— It is otherwise in the Case of a common person because the Bishop may then present by laps the title of presentment being devolved to him c. F. N. B. 38. e. 77 In a Quare Impedit betwéen two strangers The Kings title if the title appears to the Court for the King they award a writ to the Bishop for the King accordingly F. N. B. 60. i. 78 Vpon grant of a Reversion Wast Attornment although it be by fine the Grantée cannot bring an Action of wast against the tenant before Attornment but if the King grant a Reversion by his Letters Patents the Grantée may have an Action of waste before Attornment F. N. B. 85. a. 79 At the Common Law every man may go out of the Realm for Merchandizing Peregrination Ne exeâ—s regâ— absque lier 〈◊〉 Regis or other Cause whatsoever pleased him without the Kings licence and he was not to be punished for it Howbeit because every man is by Law bound to defend the King and his Realm therefore the King at his pleasure may by his Writ de securitate invenienda quòd se non divertat ad partes exteras sine licentia Regis command that he shall not go out of the Realm without his licence c. And if he doth it he may be punished for dis-obeying the Kings Command And it séems that this Commandement may be made by the Kings Writ under the Great Seal Privy Seal or Privy Signet For in this Case the Subject is bound to take notice of every Seal the King hath as well as of the Great Seal F. N. B. ibid. c. The King may do the like by his Proclamation in Case he cannot be found to have the Writ served upon him which if he obey not it is a contempt for which he shall make fine to the King Note that by the Statute of 5 R. 2. cap. 2. it was ordained that none should go out of the Realm without the Kings licence which continued in force until 4 Jac. and then by the Statute of 4 Jac. cap. 1. that Clause of that Statute was repealed So that at this day it séems that the Subject hath the same liberty that he had at the Common Law Dier 296. 19. yet by the words in the beginning of the writ which are these Rex A. de B salut c. Quia datum est nobis intelligi quod tu versus partes exteras absque licentia nostra clà m destinas te divertere It séems he cannot go out of the Realm unlicensed by the King c. As Dyer observes 165. p. 6. Ideo quaere de hoc Protection 80 If after the King hath granted to one his protection F. N. B. 92. b. c. any man takes his Goods or enters into his Lands c. or beats his Servants c. the partie grieved shall have a special writ directed to the Seriffe to inquire of them and to certifie it before the King c. And it séemes that the King shall make processe against them by venire facias as upon an Indictment and that they shall make fine hereupon Sea-banks Sâ—wers 81 The King ought of Right to have and defend his Realme as well against the brâ—akings in of the Sea F. N. B. 133. a. as against enemies that it be not drowned or wasted and to provide remedy for it And also to provide that his subjects have their passages throughout the Realme by Bridges and safe Wayes And therefore if the Sea-bankes be broken or Sewers and Gutters be not scoured that the fresh waters may have their direct Course the King may and ought to make a Commission to inquire thereof c. And to hear and determine those defaults But now matters that concerne Sewers are regulated by direct late Statute viz. 23 H. 8. 5. 13 El. 9. c. Priority Wardship 82 If a Man hold of the King by Posteriority F. N. B. 142. f. and of another man by priority and after the King grants to the Quéen the Seigniory for terme of life and after the Tenant dies his heire within age In this Case the Quéen shall have the wardship of the body having no regard to the Posteriority Because the Reversion of the Seigniory remaines still in the King It had béen otherwise if the King had granted it in remainder to another in Fée for then it seemes they should not have had the priority c. Annuity 83 If the King grant an Annuity to one for terme of life or yeares F. N. B. 152. k. it ought to be expressed in the grant by whose hands he shall receive that Annuity as to say by the hands of the Sheriffe of S. or by our Baylife of the Mannor of S. and then the Sheriffe or Baylife shall have allowance upon that Patent shewing if he pay it And if there be not such words in the grant of the Annuity then the grant is void For he cannot sue to the King for it and no person is bound to pay it unto him if he be not named and expressed in the Patent c. â—yde â—â—ayer Procedendo 84 If a Man pray in Ayde of the King F. N. B. 253. e. f. and the Ayde is granted then shall it be awarded that he shall sue to the King in the Chancery And the Iustices of the Common Pleas shall cease until a Writ De procedendo in loquela come unto them c. And then they may procéed in the Plea until it go on so farre that Iudgement ought to be given c. For the Plaintiffe And then also the Iudges ought not to procéed to Iudgement until another Writ De procedendo ad judicium be brought unto them And if the King certifie the Iustices by his writ that the Lands are seised into the Kings hands then also shall they surcease until a writ De procedendo loquela be sent into them c. And if it appeare to the Iustices upon Record that the Tenements are seised into the Kings hands or if it appeare to the Court by the pleading and shewing of the Parties that the
fuit infra aetatem but for the moity onely Feofment 14 When an Infant makes a feoffment being within age Co. ibid. 337. b. 2 3. Litt. §. 635. he may enter either within age or at any time after full age and likewise after his death his heire may enter meliorem enim conditionem facere potest minor deteriorem nequaquam Also a special heire shall take advantage of the Infancy of the Ancestor Borough-English as if tenant in taile of an Acre of the Custome of Borough-English make a feoffment in fée within age and dieth the youngest Son shall avoid it for he is privy in bloud and claimeth by descent from the Infant Special taile So likewise if Tenant in taile to him and the heires Female of his body make a feoffment in Fée and dieth within age having issuing a Son and a Daughter the Daughter shall void the feoffment And so note by the way that a cause to enter by reason of the Infancy is not like to conditions Warranties and Estoples which even descend to the heire at the Common Law 15 If Tenant in taile enfeoffe his heire apparent Co. ibid. 350. b. 1. Litt. §. 664. the heire being of full age at the time of the Feofment Feofment reâ—â—â— and after the Tenant in taile dies this is no remitter to the heires Because it was his folly that he being at full age would take such a feofment But such folly cannot be adjudged in the heire if he had béen within age at the time of the feofment made in respect of his tender yeares and want of experience 16 If tenant in taile enfeoffe a Feme in Fée and die and his issue within age takes the same Feme to Wife â—aile â—eme Remitter Litt. §. 665. this is a remitter to the Infant within age and the Feme then hath nothing Because no folly can be judged in him being within age at the time of the Espousals It is otherwise if such heire were of full age at the time of the Espousals For then the heire hath nothing but right of his wife c. There is the same Law Co. ibid. 351. b. 4. where the Tenant in taile Enfeoffes his issue being within age and the wife of the issue in fée and dieth for in this Case also the issue is remitted c. 17 If a Feme seised of lands in fée take Baron Co. ibid. 351. b. 4. Litt. §. 666. who aliens the same lands in fée and the Alienée lets the Lands to the Baron and Feme for life saving the Reversion to the Lessor and his Heirs In this Case the Feme is remitted and is seised of the Lands in her Demesne as of fée as she was before because the reprisal of the Estate shall be adjudged in Law the act of the Baron and not of the Feme so that no folly can be adjudged in the Feme who was covert at the time of making the Lease And in this Case the Lessor hath nothing in the Reversion because the Feme is seised in fée c. And here Litt. §. 648 669. if the Lessor sue an Action of wast for wast committed by the Baron albeit the Baron cannot against his own feofment and reprisal bar the Lessor by shewing the remitter to his Feme c. yet in such an Action if the Baron make default to the great distresse and the Feme pray to be received and is received accordingly she may well shew the whole matter and how she is in her remitter and so shall she bar the Lessor of his Action c. for regularly in every Case where the Feme is received for default of the Baron she shall in pleading have the same advantage that a Feme sole hath c. There is the same Law if the Alienée had made the Lease by Déed indented or by Fine because in taking a thing by Fine the Feme is never examined c. Co. ib. 353. a. 1 18 If a Feme covert be received in an Assise and plead a Record Assise Disseisor and fail she shall not therefore be adjudged a Disseisor as she should be if she were sole c. So if a Feme covert onely levy a Fine executory and a Scire facias is brought against her and her husband if she be received upon the default of the husband she shall bar the Conusée which if she had béen sole she could not do c. Co. ib. 353. a. 3 19 In the acknowledging of a Fine by a Feme covert Fine Examination least she should be deceived or any way abused her examination ought to be secret and to this effect viz. whether she be content to levy a Fine of such lands naming them particularly and distinctly and the state that passeth by the Fine of her own voluntary free will and not by threats menaces or any other compulsory means Litt. §. 677. Co. ib. 356. b. 3 20 If the Baron dis-continue the land of the Feme Remitter and the Discontinuée lets the same land to the Feme for term of her life and gives her seisin thereof accordingly In this Case whether the Baron were out of the Realm when the Lease was made or within the Realm or whether the Baron agrée to the Lease or no neverthelesse the Feme in this Case is remitted It had béen otherwise if she had béen sole at the time of the Lease made for then she could not have béen remitted c. Litt. § 696. Co. ib. 364. a. 4 21 If two Ioint-tenants of lands in fée the one of full age Remitter the other under age are disseised and the disseisor dies seised and his Issue enters one of the Ioint-tenants being still within age and after he attains his full age the heir of the Disseisor lets the Lands to both the Ioint-tenants for their lives this is a remitter as to the moity to him that was within age because his entry was congeable But the other hath but an Estate for life in the other moity because his entry was taken away by the dying seised c. for the Infant being favoured in Law had right of Entry whereas the other had onely right of action c. 22 At the Common Law before the Statute of 11 H. 7. cap. 20. Warrantie if tenant in Dower had aliened the Land in fée with warranty Litt. §. 725 7â—6 Co. ib. 380. a. 3 and thâ—t warranty had descended to the Heir who was to inherit the land in Dower the Heir had béen thereby barred to demand the same land Howbeit if the Heir were within age at the time of the warranty descended upon him In that Case the Heir might enter and avoid the Estate either within age or at any time after his full age but if he were within age at the time of the alienation with warranty and became of full age before the descent of the warranty
Bedfords case 29 When a Subject is Guardian in Chivalry Voidable Leases he in the right of the heir within age and in his Guard shall avoid voidable Leases for so long time as he hath interest in the Lands by reason of the Wardship but this shall not prejudice the Heir of his election to make the Leases good by acceptance of the Rent c. when he shall attain his full age For Custos statum haeredis in custodia sua existentis meliorem non deteriorem facere potest The Law is also the same when the King is Guardian c. Co. l. 861. b. 4. in Beechers ca. 30 Infants shall not be amercied Amerc Pledges and consequently shall not finde pledges by reason of the weaknesse of their age And therefore in that Case the entry is Ideo in miserecordia sed perdonatur quia Infans Vide 43 Ass Pl. 45. 44 E. 3. tit Amerc 10. 3 E. 3 Enfant 14. 14 Ass Pl. 17. 41 Ass Pl. 14. 17 E. 3. 75. Bracton fol. 254. F. N. B. 195 h. Co. l. 8. 99. b. 4. in Sir Richard Letchfords cas 31 A Custome that the Lord shall seise Copiholds after thrée Proclamations at thrée Courts and non-claim by the heir Copiholds Proclamation Non-claim c. shall not binde the Heir that is beyond Sea extra Maria at the time of the Proclamations made so it is also of an Infant non compos mentis or one in prison because in judgment of Law they are not bound to make claim neither yet by intendment can they have notice thereof for if these four persons were excused by the Common Law though they made not claim within a year and a day after a Fine levied or a Recovery in a writ of Right being matters of record and of extraordinary high esteem in the Law so that they were not barred of their right notwithstanding their non-claim A Fortiori shall not Proclamations made in a base Court and in a private corner be any bar unto them c. Vide 5 E. 3. 222. and 7 E. 3. 335. Also if in a real Action a Recovery by default be had against a man in prison it shall not binde him but he may reverse it by writ of Errour as appears 5 E. 3. 50. b. 4 E. 2. Disceit 51. Littleton 102. b. Co. l. 9. 76. b. 4. in Combes case 32 Where the custome is Custome Feofment Age 15. that an Infant at the age of 15. may make a feofment he cannot do it by Attorney because the Custome that inables any person disabled by the Law ought to be pursued and an Infant cannot make any thing to passe out of him by Attorney Vide 11 H. 4. 33. Co. l. 9. 85. a. â— in Connys case 33 Albeit the tenant of a Mannor that is within age may be distrained for rent arrear and neither in that Case Distrain per quae serviâ— nor in a per quae servitia brought against him when the tenancy descends shall have his age because at first the Lord departed with the land in consideration that the tenant should hold of him pay his rent do his services c. And although upon grant of the Mannor by Fine he may be compelled to Attorn in such a writ and if he Attorn upon grant thereof in pais the Attornment is good yet in a writ of Customes and Services which is a writ of Right in his nature A writ of Custom Serv. Age. and in which Iudgement final shall be given against an Infant that is in by descent he shall have his age although it be upon his own Cesser because he knoweth not what arrerages to tender before judgement and that is a writ of right in his nature and if he make not true tender he shall lose the land And so it was adjudged in 28 E. 3. 99. Vide 9 E. 3. 50. 14 E. 3. Age 88. 31 E. 3. Age 54. 2 E. 2. Age 132. And albeit such an Infant do attorn in a Per quae servitia Attornment that can be no mischief unto him for notwithstanding his Attornment within age he may at his full age disclaim to hold of him or may say that he holds not of him or may acknowledge he holds of him but by lesse or other services And with this seems to accord 26 E. 3. 63. 32 E. 3. Per quae servitia 9. and Age 33. Vide 2 E. 2. Age 77 78. 37 H. 8. Attornment Br. Quid Juris clamat 34 In a Quid Juris clamat brought by an Infant the tenant saith 43. E. 3. sol 5. 32. E. 3. cited per Coke Ch. Justice l. 9 85 b. 2. in Connys Case that he holds the land for term of life of a Lease of the Infants Ancestor who granted that he should not be impeached of waste by déed which he shewed forth to the Court Waste And in this Case because the Plaintiff was within age and so could not acknowledge the déed during his non-age it was adjudged that he should stay untill his full age Neverthelesse in this Case if when the Infant attains his full age the Defendant attorns by judgement of Court Parol Demur No prejudice this shall not any way trench to the Infants prejudice For albeit the Attornment were after his full age yet in as much as there was no Laches in the Infant but that he brought his writ de quid juris clamat to force the tenant to attorn the delay which was till his full age which the Law provided for his benefit shall not turn to his prejudice And therefore by judgement of law which doth wrong to none he shall have as much advantage as well for the arrerages of rent as for waste done as if the Tenant had Attorned at the time of the Plea pleaded Devise Tail Conclusion 35 There was a Clause annexed to an Estate tail devised by will to a Feme sole Co. l. 10. 42. b. 4. in Mary Portingtons Case per Coke Ch. Justice that if she should apparently and willingly conclude and agree to dis-continue the Estate c. that then the land should from thenceforth remain to another c. the Feme takes husband and they two conclude and agrée with J. S. to suffer a recovery of the Land with intention to make void the Estate and thereupon a common recovery was suffered accordingly c. And in this Case Coke Chief Iustice was of opinion Feme covert â—an passe noâ—hing without â—xamination 〈◊〉 writ that such conclusion of a Feme covert was of no force neither yet could be any cause of forfeiture for no Feme covert shall be barred by her confession of her inheritance or frank-tenement but when she is examined by due course of Law 15 E. 4. 8. 44 E. 3. 28. Vide 14 E. 4 5. And none hath power to examine a Feme covert without writ Vide 21 E. 3. 43. John de
Holbornes Case And this is the cause that if Baron and Feme acknowledge a Statute or Recognizance this is void as to the Feme albeit she survive her Baron as it was holden P. 17 Eliz. in the Countesse of Lennox Case So if Baron and Feme acknowledge a Déed to be enrolled and it is enrolled accordingly this also is void as to the Feme Vide 29 H. 8. Faits enroll Br. 14. and 7 E. 4 5. 16 H. 7. 5. and 21 E. 3. 43. And the reason is because no such writ is depending against the Baron and Feme upon which the Feme may by the Law be examined F.N.B. 104. k. But if an Infant acknowledge a Statute or Recognisance it is not void but voidable by Audita quaerela Statute Recognizance during his non-age And the cause of the diversity is for that the Iudge in case of an Infant may by inspection know his age but not know whether a woman be covert or no. And the use is alwayes upon a common Recovery against Baron and Feme to examine the Feme and to grant a Dedimus potestatem to take upon examination her Conusance as in Case of a Fine for in that Case also there is a writ upon which she may be examined Vide 44 E. 3. 28. Howbeit a common Recovery against an Infant although he appear by Guardian Common Recovery shall not binde him for an Infant hath not such a disposing power upon the Land as Baron and Feme have but is utterly disableo by Law to convey or transferre his Inheritance or Frank-tenement to others during his minority And at this day a common Recovery appeares to be a Common Conveyance or Assurance of Lands c. Co. l. 11. 77. a. 4. in Magd. Coll. Case 36 If an Infant had conveyed lands to Quéen Eliz. by déed inrolled that grant had not béen established by the Act of 18 El. cap. 2. 18 El. cap. a. Grant al Roy. Fine which was made for the confirmation of grants made to the Quéen from primo to that time c. because the person of the Infant during his minority was absolutely disabled to make any conveyance at all by the Common Law So likewise if an infant had levied a fine to Quéen Eliz. and afterwards the said Act was made yet the infant notwithstanding the Statute might have reversed such fine by writ of Error And so it was resolved M. 32 33 El. in B. R. per Wray Chief Iust totam Curiam in Vaughans Case Co. ib. 78. a. 3. There is the same Law if Baron and Feme had made a grant of the Land of the Feme to the Quéen Baron Feme for neither had his béen made good by the said Act to have bound the feme after the Coverture or her heires Because the person of the feme covert is dis-abled to convey her Land unlesse it be by fine upon due examination and so also was it holden in the aforesaid Case of Vaughan 37 If an infant hath a Mannor by descent Advowson Usurpation unto which an Advowson is appendant F. N. B. 34. x. and suffers an usurpation to the Advowson when the Church happens to be void and after grants the Mannor in fée at his full age and after that the Advowson happens to be void again In this Case the infant shall present and not the feoffée for the Advowson was severed by the usurpation and yet the infant may present 38 If a Lease be made to Baron and Feme for life or yeares Waste the Feme shall not be punished for wast done by the Baron F.N.B. 59. i. Finch 26. after the Barons death 39 A man may have a Writ of accompt against a Feme Accompt as receptrix denariorum F.N.B. 110. d. or against a Chaplain But a man shall not have a Writ of accompt against an infant 40 Women shall not be compelled nor distrained to come to the Sherifs turne F.N.B. 161. a. b or to Leets and if they be distrained Femes nemy jure in Lees Dit Wayve they may sue the writ de exoneratione sectae c. to excuse themselves of that service and thereupon they may also have alias plura and attachment c. And for as much as Femes shall not be sworne in Léets to the King as men of the age of twelve yeares or upwards shall be when a Woman is out-lawed she is said to be waived and not out-lawed for she was never put nor sworne to the Law but a man is said to be out-lawed because he is or ought to be sworne to the Law and then for contumacy he is put out of the Law and so is said to be ut lagatus quasi extra legem positus And by the Rule of the Register two Women may joyne in such a writ c. 41 If an infant of tender age viz. under the yeares of discretion kill a man Felonie that is not felony in him Pl Co. 19. a. 2. in Fogassues Case because he wanted discretion and understanding and therefore the Law imputes it to his ignorance which he hath at that age by nature and so no default in him and therefore it is called In voluntary ignorance For he cannot be wise and dâ—scréet though he would but is ignorant by compulsion and therefore shall be excused And such an Act is properly said to be ex ignorantia where involuntary ignorance is adjudged to be the cause thereof Felonie So if a man de non sanae memoriae kill another albeit he hath broken the words of the Law yet he hath not broken the Law because he hath not any memory or understanding but mere ignorance which falls upon him by the hand of God and therefore the Law imputes it to involuntary ignorance and not to him so that he shall be excused for the doing of it c. Stat. 11 H. 8. cap 20. 42 The makers of the Statute of 11 H. 8. 20. Pl. Co. 50. b. 3. in Winbish and Talbois Case per Hales in consideration of the frailty and inconstancy of Women ordained that Law to restraine them from the alienation of the Lands of their deceased Husbands and because they did conceive that they might by flattering words be easily deluded and inticed to covin therefore they ordained in that Act a penalty against them as a bridle of their inconstancy to prevent them from being in that manner seduced c. Dower best possession 43 A Woman shall be endowed of the best possession of her Husband Finch 26. as if the Husband holds of Jo. S. per iij. d. who held over of an other by xx d. and Jo. S. release to the Husband so as now the Husband holds by xx d. the wife being endowed of this land shall hold onely by the third part of iij. d. and not of xx d. Dumbe 44 If a dumbe person bring an Action he shall
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
Alien that is condemned in an information shall have a writ of Error to relieve himselfe Et sic de similibus â—â—eading 12 If an Alien that is no Alien Enemy Co. ibid. b. 2. in Calv. Case ubi suprà commence a suit the Tenant or Defendant may plead in dis-ability and ought at last to demand Iudgement Si il sera respondue But if an Alien Enemy bring a suit he shall conclude to the Action by saying Judgement si action Co. ib. 156. b. 4 and 129. a. 1. 13 It is a principal Challenge to the Poll Juror that the Iuror is an Alien born and that is propter defectum Patriae or rather ligeanciae as Littleton hath it or Subjectionis as Bracton Co. l. 7. 6. a. 4 in Calvins Case 14 It is to be observed that it is nec Coelum nec Solum Ligeance makes a Subject born neither the Climate nor the Soil but ligeantia obedientia that make a man to be a Subject born for if enemies should come into this Kingdome and possesse a Town or Fort and have issue there that issue is no Subject to the King of England though he be born upon his Soil and under his both Climate and Meridian because he was not born under the ligeance of a Subject nor under the protection of the King Co. ib. 15 If an Alien of a Countrey in league with the King come into this Kingdome and here commit Treason An Alien in league shall be indicted It is otherwise of an alien Enemy who shall be punished by Martial Law c. he shall be indicted for it and procéeded against according to the municipal Law of the land and the indictment shall begin and end as other indictments do viz. the beginning shall be contra Dominum Regem c. and it shall also end thus Contra ligeantiae suae debitum c. Onely in the middle these words shall be omitted naturalem Dominum suum c. as it was resolved in Hill 36. Eliz. in the Case of Stephano Ferrara de Gama and Emanuel Ludovico Tinoco two Portugals born who comming into England under the safe Conduct of Quéen Elizabeth and living here under her protection joyned with Doctor Lopez in treason against her Majesty But if an alien enemy come to invade this Land and be taken in war he cannot be indicted of treason for it because the indictment cannot conclude Contra ligeantiae suae debitum for he never was in the Kings protection nor ever ought any manner of ligeance unto him but malice and enmity and therefore in that Case such an Alien shall be put to death by Martial law And so it was in 15 H. 7. in the Case of Perkin VVarbeck who being an Alien born in Flanders feigned himself one of the sons of E. 4. and invaded this Kingdome with intent to take upon him the Royal Dignity but being taken in war it was resolved by the Iustices that he could not be punished by the Common Law but before the Constable and Marshal according to Martial Law and so he was according to that Law adjudged to be hanged drawn and quartered and was in that manner executed accordingly Co. ibid. 17. a. 16 Every Alien is either a friend that is in league An alien friend and enemy c. or an enemy that is in open war c. Every alien enemy is either so pro tempore a temporary enemy for a time or perpetuus perpetual or specialiter permissus permitted in a special manner An alien friend so long as he so continues to be may acquire by gift or purchase Lands c. but cannot hold them he may also have Leases and Goods for Trade and Commerce sake maintain personal actions c. as is above-said But if such an Alien become an Enemy as all Aliens friends may then is he utterly dis-abled to maintain any action or get any thing within this Realm but a perpetual enemy though there be no Wars by fire and sword between them cannot maintain any Action or get any thing within this Realm such as are all Infidels which are in law estéemed perpetui inimici because the Law presuming that they will not be converted that being remota potentia betwéen them as with Devils whose Subjects they are and the Christian there is perpetual hostility and can be no peace For as the Apostle saith 2 Cor. 6.15 Quae autem concordia Christo cum Beliali aut quae portio fideli cum infideli And the Law saith Judaeo Christianum nullum serviat mancipium Nefas enim est quem Christus redemit Blasphemum Christi in servitutis vinculis detinere Register 282. Infideles sunt Christi Christianorum inimici And herewith agréeth the Book in 12 H. 8. fol. 4. where it is holden that a Pagan cannot have or maintain any action at all And upon this ground there is a diversity betwéen the Conquest of a Kingdome of a Christian King and the Conquest of the Kingdome of an Infidel For if a King come to a Christian Kingdome by Conquest séeing that he hath vitae necis potestatem he may at his pleasure alter and change the Lawes of that Kingdome but untill he doth make an alteration of them the ancient Lawes thereof shall remain Howbeit if a Christian King should conquer a Kingdome of an Infidel and bring them under his subjection there ipso facto the Lawes of the Infidel are abrogated for that they be not onely against Christianity but against the Law of God and Nature contained in the Decalogue And in that Case until certain Lawes be established amongst them the King by himself or such Iudges as he shall appoint shall judge them and their Causes according to natural equity in such sort as Kings in ancient time did within their Kingdomes before any certain municipal Lawes were given But if a King hath a Kingdome by title of Descent there séeing by the Lawes of that Kingdome he doth inherit the Kingdome he cannot change these Lawes himself without consent of Parliament c. As for an Alien Enemy that is inimicus permissus he is an Enemy that comes into the Realme by the Kings Conduct c. Vide 7. 4. The Defendant pleaded an Alien 17 In an Action brought by a Subject against an Alien Co. ibid. 25. a. 4. in Calvins Case the Subject shall plead that the Defendant is an Alien born for the benefit of the King to the end that the King upon Office found may seise that whereof the Alien is seised or possest and also that the tenant may yield the same to the King and not to the Alien because the King hath best right thereunto Flea against an Alien 18 In an Action real against an Alien born Dier 2. 8. 6 H. 8. it is a good plea in dis-ability of the person to say that he is an Alien born otherwise in Actions personal but against an
then two they shall present by turne according to their several ages viz. the eldest first the second next the third next c. Co. Inst p. 1. 185. b. 3. 14 Two Femes jointenant of a lease for yeares In joynture a tenure tâ—â— Baron shaâ— not have 〈◊〉 one of them taketh a husband and dieth In this Case the moity of the term shall go to the survivor and not to the husband for allthough all chattels real are given to the Husband if he survive yet the survivor betwéen the jointenants is the elder and therefore the more worthy title and after the marriage the Feme continued sole possessed for if the husband had died and the Feme survived the Feme should have had it and not the Executors of the husband but otherwise it is of personal goods â—â—ardian in â—â—cage 15 If there be thrée Brethren the yongest holdeth land in soccage Co. ib. 88. a. 3. and hath Issue and dieth his Issue within the age of 14 yeares In this Case both the Vncles are in equal degrée and yet the eldest shall be Guardian because in equal degrée the Law preferreth him as the more worthy 16 At the Common Law if Cestuy que use and his Feoffées joyne in a feofment grant or demise generally Co. l. 2. 35. b. 4 in Sir Rowland Heywards Case this shall be by construction of Law the feoffement grant or demise of the feoffées who were owners of the land and passed the Estate by the Common Law not by Cestuy que use who had nothing but a trust and confidence and derived onely his authority by the Statute of 1 R. 3. as it is agréed in 21 H. 7. and the Common Law in such Cases shall be by its owne construction preferred before the power of Cestuy que use given onely by Statute 17 Vide M. 44. ex 12. â—emove all 〈◊〉 a Record 18 If a Record of the C. B. be removed into the K. B. for error Dier 32. 6. 28. 29 H. 8. or the like the C. B. cannot write to the K. B. to send it because the K. B. is an higher Court then the C. B. but the Record ought to be first certified into the Chancery by Certiorare and then to be sent from the Chancery into the C. B. by a mittimus Howbeit if it were an inferiour Court the C.B. may writ to it for any Record c. 19 If a man be entitled to have a writ of escheate F. N. B. Br. 144. o and he afterwards accept the Homage or fealty of the Tenant he shall not after such acceptance have a writ of escheate Howbeit in such Case after the acceptance of Rent he may have a writ of escheate because Homage and Fealty are solemne and more worthy services then rent and therefore the Lord doth respect them more then it doth that Vide infrà Max. 117. Pl. 50. â—ourts 20 If a Statute makes a thing an offence Dier 23. 6. 27. 7 Eliz. which was not so at the Common Law and inflict a penalty for it to be recovered in any of the Courts of Record such offence or penalty is not determinable in any other Court save onely in the four usuall Courts at Westm Howbeit where no Court is limited the King shall have his prerogative in any Court 92 The Law respecteth life and liberty most and the Person above his possessions â—e Lords 〈◊〉 station 1 If a Villein as Executor in mothers right c. Litt. §. 192. Co. Inst p. 1. 124. b. 2. 126 a. 4. brings an action against his Lord if the Lord in his plea make not protestation that he is his Villein c. the Villein shall be thereby enfranchised albeit the Issue be found for the Lord And this is in favorem libertatis â—al of Vilâ—age 2 If a Villein sue an action of Trespass or other action against his Lord in one County and the Lord saith Litt. §. 193. Co. ibidem b. 4 that he ought not to be answered because he is his Villein regardant to his mannor in another County and the Plaintife saith that he is frée and no Villein this shall be tried in the County where the Plaintife had conceived his Action and not in the other County where the Lord saith he is Villein And this is in favorem libertatis for impius crudelis indicundus est qui libertatis non favet Angliae jura in omni casu libertati dant favorem saith Fortescue cap. 42. Co. ib. 137. b. 2 3 If a Villein be once manuntised Once maâ—â—mitted for tâ—â— manumitted albeit he afterwards becomes ingratefull to the Lord in the highest degrée yet the manumission remaines good for the Common Law giveth this in favorem libertatis wherein it differeth from the Civil Law for libertinum ingratum leges Civiles in pristinam redigunt servitutem sed leges Angliae semel manumissum semper liberum indicant Finch 29. gratum ingratum Litt. §. 205. Co. ib. 137. b. 4 4 If the Lord make to the Villein an Obligation Power of bringing to â—ctions c an enfranchisment or grant unto him an annuity or a lease for yeares c. the Villein is thereby enfranchised for when the Lord enabled the Villein to have an Action against him as for debt annuity c. or giveth the Villein a certain and fixed Estate in lands c. as a Lease for yeares c. this amounteth to an Enfranchisement not onely during the years but for ever And albeit the lease be made to the Villein without déed yet it is an Enfranchisement for ever c. Co. ib. 139. a. 3 Fitz. N. B. 78. f. i. 5 In a writ de nativo habendo Non-suit pâ—emptory 〈◊〉 nat hab 〈◊〉 so in a lib. pâ— non-suite after apparence is peremptory for thereby the Villein is enfranchised And so it is if two be Plaintiffes in nativo habendo if one be non-suite that is the non-suit of both and no summons and severance doth lye in that Case although it is a Real Action And this is in favorem libertatis for in a libertate probanda non-suit after apparence is not peremptory neither is the non-suit of one the non-suit of both Co. ib. a. 3. 6 Non-suit in an appeale of murder rape robbery In an appeâ— non-suit peremptory c. after apparance is peremptory and this is in favorem vitae for if the Defendant be acquitted and take out processe upon the Statute of Westm 2. cap. 12. against the Appellant and Abettors or if he purchase his original writ for that cause he may be non-suit c. Co. ib. 137. b. 3. 7 The Law and the Wisedom of our Ancients have always had so much respect to liberty Solemnity in manumission that in ancient time manumissions used to be made with a great deale of Ceremony and solemnity as appeares in Libro
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.
the Rent Ipsae etenim leges cupiunt ut jure regantur Ibid. 13. a. 1. 2 If the heir of the part of the Mother of land The heir of the Voucher shall sue execution whereunto a Warranty is annexed is impleaded and vouch and judgment is given against him and for him to recover in value and dieth before Execution the heir of the part of the Mother shall sue Execution to have in value against the Vouchée for the effect ought to pursue the Cause and the recompence shall ensue the losse Co. Inst p. 1. 21. b. 1. 3 If lands be given by these words The word Frank-marriage create inheritance in Frank-marriage according to the Rules of Law then do these words create an estate of inheritance in special tail For the consideration of Marriage is in that case more favoured in Law then any other consideration in respect of the mutual recompence Ibid. 47. b. 3. 4 The Lessor for yeares must be seised of the Lands demised at the time of the Lease made The Lessor must be seised for in every Contract there must be quid pro quo because contractus est quasi actus contra actum And therefore if the Lessor hath nothing in the Land the Lessée hath not quid pro quo nor any thing for which he should pay the rent And in that case he may also plead that the Lessor non demisit and give in evidence the other matter Ibid. 78. a. 2. 5 If the Father enfeoffe his eldest Sonne Purchase bâ—â—â— fide a voideth Wardship or any of his younger Sonnes or others for the making of his Wife a Ioynture advancement of his Daughters payment of his Debt of the like and die his heir within age the heir shall be in Ward for his body and a third part of the land by construction of the Statutes of 32 34 of H. 8. but if his eldest Sonne or any of his younger Sonnes purchase Lands of the Father which are holden by Knight-service bona fide for a reasonable value the heir shall neither be in Ward nor pay Primer seisin Leonard Loveys Case Co. l. 10. 83. Ibid. 89. a. 4. 6 If a Guardian or a Bâ—yliff receive the conts and profits of the Lands and be robbed without their default or negligence A Carrier shalâ— answer Good robbed they shall be allowed them upon their Account but it is otherwise of a Carried H. Woodliefe Curties for he hath his Hiâ—e and thereby implicitely undertaketh the safe Delivery of the Goods delivered unto him and therefore shall answer the Value thereof if he be robbed of them Ibid. 99. b. 4. Pl. 306. b. Sheringtons Case 33 H. 6. 6. 39 H. 6. 29 7 The Mesne ought to acquit men of Religion Tenant in Frankalmeâ— ought to be acquit which hold of him in Frankalindigne of all Services to the Lord paramount for it is their duty to make prayers for their Founder and his heires and in consideration of those prayers the Founder c. is bound to pay to the Chief Lord all Rents and Services issuing out of that Land 14 E. 3. Mesne 7. Ibid. 101. a. 2. 18 H. 6. 2. b. per Newton 9 H. 3. Voucher 277. 8 If the Lord grant the Services of his Tenant by Homage Ancestrel Homage Ancestrel mixtures a Warranty in lanâ— the Tenant shall not be compelled in a per quae servitia to attorn unlesse the Conusée will grant in Court to warrant the Land unto him and if the Tenant vouch by force of this Warranty in Law it is a good Counter Plea that the Tenant or any one of his Ancestors recessit de servitio suo fecit servitium suum A. B. sine aliqua coactione de sua propria voluntate Ibid 102. a. 1. 9 If at a Sequatur sub suo particulo No Warraâ— Cartae or voâ—cher after a recovery in value both Tenant and Vouchée make default and the Demandant hath judgment against the Tenant and after brings a Scire facias to have Execution the Tenant may have a Warrantia Cartae or if he were impleaded by a stranger he may vouch again but if he had judgment to recover in value he shall never have a Warrantia Cartae or vouch again for by this judgment to recover in value he hath benefit of the Warranty Ibid. 102. a. 3. 10 The Lord that hath received Homage of his Tenant being vouched is thereby barred to disclaime â—â—ed eie for an 〈◊〉 c. 11 By the Ancient Law of England Ibid. 127. a. 3. if the Defendant in an appeale of Mayhem had béen found guilty the judgment against the Defendant had béen that he should lose the like member that the Plaintiffe had lost by his meanes as an hand for hand an eie for an eie c. 40 Ass 9. Mirror cap. 4. v. 5. Sect. 18. Britton cap. 25. fol. 144 145. Fleta lib. 1. cap. 38. The issue inâ—aile not barâ—ed without â—ecompence 12 In Littletons Case Ibid. 173. a. 1. § 260. where the eldest Sister hath the intailed Lands and the youngest the fée-simple Lands if the youngest daughter alien part of the Land in fée-simple and dieth so as a full recompence for the Land entailed descends not to her Issue her Issue may wave the taking of any profits of the fée simple lands and enter into the Land entailed for the Issue in taile shall never be barred without a full recompence Part of the â—â—me no satiâ—faction 13 Where the Condition is for the payment of 20 l. the Obligor or Feoffor cannot at the time appointed pay a lesser summe in satisfaction of the whole because it is apparent Ibid. 212. b. 4 Co. l. 5. 17. Pinnels Case that a lesser summe of money cannot be a satisfaction for a greater In Estate inâ—ile charged â—ithout fine or â—â—covery 14 It is commonly held Ibid. 143. b. 1 that Tenant in tail cannot alien or charge the Land in tailed without fine or recovery yet if a Disseisor make a gift in tail and the Donée in consideration of a release by the Disseisée of all his right to the Donée granteth a Rent-charge to the Disseisée and his heires proportionable to the value of his right this shall bind the Issue in tail albeit the Estate taile continue And this is in respect of the natural recompence â— Benefice â—harged withâ—â—â— the Paâ—â— 15 If there be Parson Patron and Ordinary Ibid. 343. b. 4. and the Parson by the Ordinance and assent of the Ordinary grant an Annuity to another having quid pro quo in consideration thereof this shall bind the Successor of the Parson without consent of the Patron â—nnanty my be anâ—exed to inâ—â—rporal â—â—â—ngs 16 Regularly a Warranty is onely annexable to frée-holds or inheritances corporeal yet to preserve mutual recompence Ibid. 366. a. 4 it may also be annexed to
case if the Lord avow upon the Feoffée before tender of the arrerages he shall lose them as it is agréed in 7 E. 3. and 7. H. 4 c. And therefore in as much as in such Case the Common Law forces the Lord to avow upon the Feoffor for that reason at the Common Law such Seisin by the Feoffor necessitas causa was good 〈◊〉 Quare Imâ—â—â— against â—e King or 〈◊〉 19 Regularly Co. l. 7 26. b. 3. Halls Case a Quare Impedit brought against the Bishop and Incumbent without naming the Patron abates yet if the King presents to a Benefice and his Clerk is admitted instituted c. In this case a Quare Impedit may be brought for necessity against the Bishop or Incumbent for it lies not against the King So it was also of the Pope if he had usurped 12 H. 8. 12. 4 H. 7. 15 c. â—n Vicar geâ—â—â—al shall not â—â—â—fie but in 〈◊〉 of necesâ—â— 20 Albeit Co. l. 8. 69. a. 1 Trollops Case regularly the Vicar general cannot certifie excommunication yet he shall certifie it when the Bishop is in remotis aagendis viz. beyond Sea in the Kings Service but the Court must be acquainted therewith by matter of Record viz. by Writ out of the Chancery to direct them and not by the surmise of the party and then for necessity which is alwayes the Law of time for necessitas est lex temporis the Certificate of the Vicar General shall be allowed because no other can then do it for he onely ought to certificate to whom the Court may write to absolve the party as the Bishop or the Chancellor of the Vniversities Fee-simple â—â—th out of 〈◊〉 â—ing by â—â—â—essary withâ—â— Office c. 21 Reversion in the Queen upon an estate taile she grants it to T. in taile upon Condition that if be pay 20 s. Co. l. 8. 1. 6. b. 2. The Lord Staffords case at the receit of the Exchequer he shall have the said Reversion in Fée the Condition is performed the tenant in taile levies a Fine and his issue is barred And in this case the principal point was whether by the Condition performed the Reversion passed to T. And it was held that presently upon payment of the 20 s. by operation of Law the Fée was davested out of the Queen and vested in T. And this by necessity for if it should not vest at the time of the Condition performed it would never vest And therefore if in this Case either Office Petition Monstrance de droit or other thing should be requisite that would make the Quéens Grant void and would dis-able the Quéen to make such a Grant And with this agrées the Lord Lovels Case in the Commentaries for there it is said when the Condition is performed the Fée-simple shall be immediately out of the King without Petition Monstrance de droit or other circumstance for if he must tarry such circumstances then can it not vest presently and by consequent shall never vest because if the estate be not enlarged at the time of the enlargement appointed then shall it never be enlarged And therefore in such Cases for necessity the Fée-simple passeth out of the Quéen without any such circumstances with this also agrées Isabel Goodcheaps Case 49 E. 3. who being seised in Fée of an House in London holden of the King deviseth it to Richard Goodcheap and the heires of his body and for want of such issue to be sold by her Executors and she makes W. D. W. W. and I. de T. her Executors and dies without heir Rich. Goodch dies without issue whereby the House escheates to the King and after one of the Executors dies W. W. refuseth and W. D. sels the House and here the question was whether or no the Sale by one Executor was good but it was agréed by all that if the Sale were good it shall devest the House out of the King and the cause thereof is by necessity of Law for if the Sale did not devest the House at the time of such sale then could there be no Sale at all and the Executors who had but a power could not have any petition Monstrance de droit or other remedy Co. l. 8. 143. a. 2. Doctor Druries Case 22 There is a diversity betwixt mean acts done in Execution of Iustice which are compulsive and acts which are voluntary A diversity betwixt acts compulsive and volunâ—â—â— acts And therefore if erronious judgment be given in Debt and the Sheriff by force of a Fieri facias sell the Defendants term and after the judgment is reversed by a Writ of Error yet the term shall not be restored but onely the summe c. But if a Capias utlagatum be awarded whereby the Sheriff is commanded to take the body ut bona catalla quae per inquisitionem invenerit in manus nostras capias de vero valore c. And by force of this Writ the Sheriff by inquisition takes the Goods and Chattels of the out-lawed person and sels them and after the Out-lawry is reversed in this case the party shall be restored to his Goods and Chattels because the Sheriff was not commanded nor compelled by the Kings Writ to sell them Co. l. 9. 49. a. 4. The Earl of Shrewsburies Case 23 King James grants to the Earl of Shrewsbury the Stewardship of the Mannors of M. and B. An Earl may make a Depâ—ty but in the Patent power of making a Deputy was omitted neverthelesse it was adjudged that hee might make one for if such an Office descend to an Infant Ideot or man of non sane memoriae they by necessity ought to exercise it by Deputy So an Earl for the necessity that the Law intends of his attendance upon the King and the Common-wealth this Stewardship of a base Court shall be exercised by Deputy Co. l. 9. 66. a. 1. Mackallies ca. 24 An arrest in the night is lawful An arrest in the night laâ—ful as well at the suit of a Subject as of the King for the Officer ought to arrest him when he can find him otherwise he may perhaps never arrest him for Qui malè agit odit lucem and if the Officer do not then do it the Plaintiff may have an Action upon the Case against him and recover his losse in damages Therefore by necessity an arrest in the night is lawfull Co. ib. 66. b. 2. 25 The Lords day is not Dies juridicus An arrest the 〈◊〉 Sabbath and therefore judicial acts ought not to be done upon that day but Ministerial acts may in some Cases be lawfully executed upon that day as an arrest for otherwise perhaps they might never be executed and Christ permits Works of Necessity to be done upon that day bonum est benefacere in Sabbato Executors may sell lands in their owne names 26 If Attorneys have power by writing to make Leases by
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
extinct and gone for ever A personal thing exiâ— by husband when it is by the act and consent of the party himselfe who hath interest in it But when it is by the Act of Law it is otherwise as the Case is in 6 E. 4. where a man condemned in redisseisin was imprisoned for out-lawry of felony and after pardoned here the execution of the body was for the time that he was the Kings prisoner suspended but after pardon it was revived 116. It reputeth that a man will deal for their own best advantage â—â—â—nesse 1 Vpon this ground it is Co. Inst p. 1. 6. b. 4. that a party cannot be Witnesse in his own Cause for the Law presumeth he will speak for his own most advantage And therefore neither shall the party to an usurious Contract be admitted to be a Witnesse against the Vsurer for in effect he should be Testis in propria causa In Smiths Case 8 Jac. and should avoid his own Bonds and Assurances and discharge himself of the Money borrowed and albeit he commonly raise up an informer to exhibit the Information yet in rei veritate he is the party And herewith in effect agréeth Britton Brit. 134. that he that challengeth a right in the thing in demand cannot be a Witnesse for that he is a party in interest and will advantage himselfe as much as he can â—â—fant exâ—â—ange 2 If an Infant exchange Lands Co. ib. 51. b. 3. and after his full age occupie the Lands taken in exchange the exchange is become perfect for the exchange at first was not void because it amounted to a Livery and also in respect of the recompence but voidable Tenant at sufferance 3 A Writ of Entry ad terminum qui praeteriit Co. ib. 57. b. 3. lieth against the Tenant at sufferance that holdeth over his term but this is rather by admission of the Demandant than for any estate of Frée-hold that is in him for in judgment of Law he hath but a bare Possession So if Tenant pur terme de auter vie continue in Possession after the decease of Cesty que vie or Tenant for years holdeth over his term in this Case the Lessor cannot have an action of Trespasse before Entry but he may have a Writ of Entry if he will thereby admit himself to have a Frée-hold And the Law suffers him so to do because the Law presumes that he will not so admit himself without some hope of advantage that may redound to himself thereby â—â—â—cage 〈◊〉 â—eliefe 4 A Tenant holdeth of his Lord certaine Lands in Soccage to pay yearly a paire of gilt Spurres or five shillings in Money at the Feast of Easter in this Case the Rent is uncertaine Co. ib. 90. b. 4. and the Tenant may pay which of them he will at that Feast and may also pay which of them he will for Reliefe but if he pay it not when he ought Co. ib. 91. a. 4. then may the Lord also distreine for which he will And therefore in such Case if the heir be not presently that is as presently and as conveniently as he may all due circumstances considered after the death of his Ancestor ready upon the Land to pay Reliefe the Lord may distraine for which of them he will and if the Tenant tendred either of them according to the Law and none for the Lord was there ready to receive it yet the Lord may distraine for that which was tendred at his pleasure For in all such Cases the law supposeth that a man will deale for his own best advantage 〈◊〉 charge â—â—â—ity 5 Vpon a Reservation of a Rent upon a Feoffment in fée by Déed intented the Feoffor shall not have a Writ of Annuity Co. ib. 144. â— 2 because the the words of Reservation as reddeudo solvendo faciendo tenendo reservando c. are the words of the Feoffor and not of the Feoffée yet if afterwards the Feoffée accept of the Estate he is thereby bound and is subject to a Writ of Annuity Challenges 6 Vpon this ground also it is that all just Challenges Co. ib. 156. a. 157 c. both to the Array and to the Pols are allowed in Law for which sée the quotation in the margent Frank-marriâ—â—e â—â—â—chpot 7 Where Lands are are given in Frank-marriage Co. ib. 776. a. 4 c. Littl. §. 269 and other lands discend to the other Sister in Fée-simple if the Donées will not do the first act viz. put their Land in Hotchpot the Law presumes they are satisfied and therefore in such Case allowes them no part of the Fée-simple Land discended by Writ of partition or otherwise because non tenent insimula per indiviso Co. ib. 202. b. 2. 8 If Tenant in tail makes a Feoffment in fée upon Condition Discent Entry Remitter and dieth and the issue in tail within age doth enter for the Condition broken in this Case he shall be first in as Tenant in Fée-simple as heir to his father and consequently shall be instantly remitted but if the heir be of full age he shall not be remitted because he might have had his Formedon against the feoffée and the Entry for the Condition is his own Act. Co. ib. 208. b. 4. 9 When an Obligation or Feoffment in Fée is made upon Condition that the feoffor feoffée obligor Feoffment Obligation Condition Act. or a stranger shall do a Sole Act or Labour as to go to Rome Jerusalem c. In such or the like Cases the feoffor feoffée obligor or stranger have time during their lives to do it and cannot be hastened by request for in such Cases the Law gives them credit that they will take the most convenient time for the doing thereof Co. ib 288. b. 3. 10 If in a personal action the Defendant be Quinto exactus Utlawry Forfeiture â— upon the Exigent and maketh default the judgment is Ideo utlagetur per Judicium Coronatorum or in London per Judicium Recordatoris And then upon the Return of the Exigent he is out-lawed Howbeit in this Case the Plaintiff recovers nothing but the King taketh the whole benefit thereof which is the forfeiture of all his Goods for the Law intends that the Defendant will rather appear and answer the Plaintiff c than to forfeit all his Goods and Chattels Debts and Duties to the King by his default and contumacy Co. ib. 303. b. 1. 11 The Plea of every man shall be construed strongly against him that pleadeth it Plea for every man is presumed to make the best of his own Case Co. l. 2. 35. b. 3. in Sir Rowland Heywards Case 12 Vpon this ground also it is Election that when two things are offered to be taken it is in the Election of him that hath interest or power in them to take which of them he pleaseth So
and Talbois Case because he did not in answering that suit take such advantages as the Law allowes in such Cases as vieu essoine and the like but immediately appeares and suffers the Demandant to recover by nihil dicit For the Law presumes unlesse there be covin or other neglect or restraint which cannot be avoided that the party interessed will take all advantages that the Law allowes to make good his owne cause which advantages are the birth-right of the subject as Lands or other Inheritance and when they are waved or neglected the Law implies covin or some other miscarriage Co. Inst p. 1. 46. a. 4. 34 The King grants lands to A. in taile Tenant in â—aâ— Lease Primer seisâ— to hold by Knight-service A. makes a lease to B. for 31 yeares reserving rent A. dies his son and heire of full age and all this if found by Office now here as to the King this lease is not of force for he shall have his primer seisin as of land in possession but after livery the Lessée may enter and then if the issue in taile accept the Rent the leafe shall bind him for the Kings primer seisin shall not take away the Election of the issue in taile because it may be the Rent was better then the land and so the Law will presume that his acceptance tended to his advantage and therefore he shall be bound thereby Co. ib. 46. b. 1. and Pl. 437. a In like manner Tenant in taile makes lease a for 40 years reserving a Rent to begin 10 years after Feofment Tenant in taile dies the issue enters and enfeoffes A. the ten yeares expire the lessée enters now in this Case also if A. accept the Rent the lease is good for he shall have the same Election that the issue in taile had either to make it good or to avoid it But because the lessée accepts the Rent the Law presumes it was for his advantage so to do and therefore thereupon adjudged the lease still good notwithstanding such entry of the heire before it commenced Litt. §. 559. 35 If there be Lord and Tenant and the Tenant take Feme Acceptance good attornment and after the Lord grants the services to the Feme and her heirs and the Baron accept the Déed In this Case after the death of the Baron the Feme and her heirs shall have the services for the acceptance of the déed by the Baron is good attornment albeit the services are in suspence during the coverture Litt. §. 573. So likewise if a man let land to another for term of life and after confirmes by his déed the Estate of the Tenant for life the remainder to another in fée and the Tenant for life accepts the déed this is a good attornment in law to make the Estate in remainder good Co. l. 3. 86. b. 2. in the Case of Fines 36 Every fine levied shall be intended to be levied with proclamations according to the Statutes in that behalfe provided Fines because that is most beneficial for the Conusée Dier 244. 59. 8 Eliz. 37 There were four Defendants in an Assise or plaint of thrée Messuages Assise thrée of them severally undertake the Tenancy of the several Messuages and plead several barres and to the residue Nul tort the fourth takes upon the intire tenancy of all without that c. and pleads also barre at large In this Case the Plaintiffe at his peril is to choose his Tenant because the law presumes that he will do it for his best advantage 117 And therefore the Law believeth against the party whatsoever is to his prejudice Co. Inst p 1. 52. a. 4. 1 If one as Procurator or Attorney to another present to his owne benefice he puts himselfe out of possession Present Benefice because it is his owne act and the presentée comes in by the institution an induction of the Ordinary Co. ib. 55. b. 3. 2 If Lessée at will or for life sow the land Tenant for life or wil Grant Sowet and the lessor determines his Will or dies before the graine is ripe yet the lessée shall have it because in either of the said Cases the end of the term is uncertaine either upon the Will or death of the lessor which cannot come within the lessées power to prevent but if lessée for yeares who may know the end of the term sow the land she shall not have the graine Litt. §. 68. Co. ib. 56. a. 4. because his term is certain And therefore the Law will attribute the sowing of the land to his owne folly So if lessée at will sow the ground with Corne c. and after he himselfe determines his will and refuseth to occupie the ground In that Case the lessor shall have the grain for otherwise the lessor should lose his Rent and the lessée hath determined it by his own act In like manner if a woman that holdeth land durante viduitate low the ground and taketh husband the lessor shall have the emblements because the determination of her Estate grew by her own act So likewise where the Estate of the lessée being uncertaine is defeasible by a right paramount or if the lease determine by the act of the lessée as by forfeiture condition c. there he that hath the right paramount or that entreth for any forfeiture c. shall have the Corne causa qua supra â— and Teâ—â—â—dship â—ease 3 If there be Lord and Tenant by Knight-service Co. ib. 83. b. â— and the Tenant dieth his heire being within age the Lord waiveth his wardship as he may and taketh himselfe to his Seigniory In this Case the Lord shall not have reliefe at his full age because he might have had the wardship of the body and land if he had not neglected his time 〈◊〉 emptor 4 By the Civil law every man is bound to warrant the King Co. ib. 102. a. â— that he selleth or conveyeth albeit there be no expresse warranty but the Common Law bindeth him not unlesse there be a warranty in déed or in Law for the Common Law believeth against the party things done to his prejudice and therefore in such Case Caveat Emptor â—â—nage by â—â—ssion 5 If a man being brought into a Court of Record by course of Law will there acknowledge himselfe to be a Villein albeit he was not a Villein before he shall be for ever after a Villein in grosse Littl. §. 185. Co. Inst p. 1. 122. b. 2. and therefore if a praecipe be brought against one he may confesse himselfe Villein to a stranger and that he holds the land in Villeinage of him and this is good and shall bind him and if in that Case the Demandant replie that the Tenant the day of his writ purchased was a Frée-man and thereupon issue is taken and he is tried to be frée yet he shall remain
the Plaintiffe himselfe confesse that they committed the Trespass severally there the writ shall abate and so observe the diverstty betwixt the finding of a Iury and the confession of the party because this is his own Act but that the Act of the Iurors F. N. B. 11. c. 62 If there be Lord and Tenant Distresse for more Rent then is due justifiable and the Tenant payes the Lord a greater Rent then is due to him and that voluntarily without cohersion of distresse here the Lord having gained seisin of so much Rent may distraine the Tenant for such surplussage of Rent and the Tenant cannot avoid the Lord in his avowry because of the seisin which the Lord had of so much Rent Howbeit he may have remedy by the writ of Ne injuste vepes grounded upon the Statute of Magna Carta cap. 10. but before that Statute he had no remedy as it séemes 〈◊〉 none by â—â—ance 63 In a writ of Entry sur disseisin F.N.B. 21. c if the original writ wants these words Quam clamat esse Jus haereditatem suam it is error yet if the Tenant admit the writ and pleads to the action and loseth he shall not assigne this default in the writ for error because he hath admitted the writ by his plea So likewise in a writ of detinue of Charters if the Plaintife in his Count declare not the certainty of the land it is a just cause of error yet if the defendant admit the Count good and pleads to the Action and loseth by judgment in a writ of error sued by him he shall not Assigne this default in the Count for error because he hath admitted it for good by his Plea Tamen quaere â—esentment â— an Advowâ— 64 A man may have an Assise of darrein presentment F. N. B. 13. q. l. albeit neither he nor his Ancestors presented to the last avoidance As if Tenant for life or years or in Dower or by the courtesie suffer an usurpation to the Church c. and die he in reversion that is heire to the Ancestor that last presented shall have an Assise of darrein presentment if he be disturbed But if a man presents and after grants the Advowson for life to another who suffers an usurpation or two or thrée usurpations and dies In this Case at the next avoidance he in the reversion shall not have an Assise of darrein presentment if he be disturbed to present because the Lessée was in by his own Act Howbeit his heire may have it but that is by the provision of West 2. cap. 5. So likewise if a man present to an Advowson and after let if for term of years and then the Church becomes void and the Tenant for yeares presents and after the Incumbent dies and the Lessor presents and is disturbed in this Case it séemes the Lessor shall not have an Assise of darrein presentment causa quà suprà And the termer for years presented in his own right â—â—â—ative 65 If a man hath a Chappel or Chantery Donative F.N.B. 35. e. and he presents once to the Ordinary his Clerke to that Chappel or Chantery In this Case he shall never make Collation afterwards but he ought to present to the Bishop and if he present not within six moneths the Ordinary shall have advantage of the lapss 〈◊〉 utrum 66 If a Parson receive Rent or fealty of the Tenant for the land aliened by his Predecessor he shall not have a juris utrum during his life F.N.B. 50. e. but his Successor may have it Recognisance â—â—charged 67 If the Recognisor enfeoffe a stranger of one parcel of the land charged and likewise enfeoffe the Recognisée of another parcel thereof F.N.B. 104. n. 105. e. and afterwards the Recognisée sues execution against the Recognisor and the other feoffée In this Case the feoffée shall have an Audita quaerela against the Recognisée and thereby discharge his land because the Recognisée hath discharged his parcel of the land by his owne Act. â— warrantia â—â— and â—â—cher 68 If a man be impleaded in any Action F.N.B. 134. i. in which he may vouch the party against whom he hath a warranty in such Case he shall not have a warrantia cartae against him but he ought to vouch him to warranty and if he vouch him not in such Action he shall never after have any action of warrantia cartae against him to maintain his title F. N B. 142. k. 69 If there Lord and Tenant and the Tenant make feofment by collusion and the Lord accept the services of the feoffée In this Case Wardship Collusion the Lord shall not afterwards have the wardship of the Tenants heir nor averre the Collusion F. N. B. 144. 0. 70 If a man be intitled to have a writ of Escheate Acceptance barres Escheate and he accepts the homage of the Tenant in this Case he shall not have a writ of Escheate against him afterwards because he hath accepted him for his Tenant So also it séemes reasonable if he accept fealty of him that in such Case also he shall not have a writ of Escheate Howbeit it is not so of Rent because the former are solemne services which the law respects more then Rent Vide suprà Max. 91. Pl. 19. Pl. Co. 66. a. 2. in Dive and Maninghams Case 71 When a man demurres he is to do it generally Pleading anâ— special demuâ— and not upon any special matter for otherwise he is tied up to that special matter and cannot take advantage of any other error or default in the declaration or other pleading And therefore in Dive and Maninghams Case in the Commentaries where the Defendant concludes unde ex quo scriptum praedictum non fuit factum sub tale conditione quali per Statutum fieri deberet petit judicium Here this special conclusion hath so straightned the Defendant that if the obligation were void for any other cause then what is mentioned in the conclusion the Defendant could not have benefit thereof by Order of Law So also in 34 H. 6. which is there also quoted where one deviseth a reversion of a Tenant for life to another in fée per nomen omnium terrarum tenementorum quae in manibus le Devisor ad tunc fuerunt and the heire of the Devisée brings an Action of waste reciting in his count the special grant ut suprà And the Defendant saith ex quo pro narrationem praedictam apparet that the Devisor did not devise the reversion but by the words ut suprà and the Tenant for life then held the tenements and that nothing of the reversion by the general words passeth to the Devisée and so he demands judgement c. And thereupon the Plaintiffe also demurred And there it was held that in as much as the Defendant had demurred in a point in special and hath rehersed the
of debt afterwards because both actions charge the person The like Law is of an Assise and of a writ of entry in nature of an Assise and the like â—â—der of 〈◊〉 2 If a feofment be made of a wood upon Condition to pay a certaine Rent the Demand ought to be made at the Wood-gate Co. ib. 202. a. 1 or at some high way tending through the Wood or other most notorious place there And if one place be as notorious as another the feoffor hath election to demand it at which he will and albeit the feoffée be in some other part of the wood ready to pay the Rent yet that shall not avail him sic de similibus Co. ib. 210. a. 1 Litt. §. 339. 3 If upon a Mortgage the money be limited to be payd to the feoffée Payment of Mortgage money and before the day of payment he make his Executors and die in this Case the Mortgageor shall pay it to the Executors albeit they be not named or if it be limited to be paid to the Mortgagee or his heirs then if he die it ought to be paid to his heire because named but if to his heires or executors the Mortgageor hath election to pay it to either So likewise if the Condition be to pay it to the feoffée his heirs or assignes and the feoffée make feofment over it is in the election of the feoffor to pay the money to the first or second feoffée at his pleasure and so if the first feoffée die the feoffor may pay the money either to the heire of the first feoffée or to the second feoffée at his election for the Law will not enforce the feoffor to take knowledge of the second feofment nor of the validity thereof whether the same be effectual or not but at his pleasure Litt. §. 341. Co. ib. 211. b. 2 4 If feofment in fée be made reserving Rent An Assâ—se oâ— entry and for default of payment a re-entry this is a Rent-secke and in this Case if the feoffor be once seised of the Rent which after is denied him it is at his election whether he will have an Assise of Novel disseisin for the rent arrere or enter for the Condition broken but after a recovery in Assise he cannot have recourse to his re-entry because by bringing the Assise he affirmes the continuance of the Estate Litt. §. 454. Co. ib. 268. b. 1. 312. a. 1. 5 Before the Statute of 21 H. 8. 19. Avowry at laâ— or by Seat the disseisée might compel the Lord to avow upon him but since that Statute if the Lord distraine upon any of the Lands and Tenements holden c. he may avow c. upon the same Lands c. as in Lands c. within his fée or Seigniory c. without naming of any person certaine and without making avowry upon a person certaine and therefore at this day the Lord hath his Election either to avow according to the Common Law or by force of the said Statute as by the word may in the same Statute is imported Littl. § 478. Co. ib. 278. b. 3 6 If a man be disseised by an Infant who aliens in fée Several reâ—dies by acâ— or entry and the alienée dies seised and his heire enters the disseisor being still within age In this Case it is in the Election of the Dissefsor to have a writ of dum fuit infra aetatem or a writ of right against the alienée or otherwise he may make his entry into the land without any suit or recovery And so it is to be observed that many times the Law doth give a man several remedies and of several kinds as in this Case by action and by entry by action either by writ of right or dum fuit infra aetatem Littl. §. 496 497 478. Co. Inst p. 1. 286. b. 1. 7 When a man hath several remedies for one of the same thing A remedy 〈◊〉 remaine aâ— a release be it real personal or mixt albeit he releaseth one of his remedies yet he may use the other So where a man may enter into lands and also have an Action real given him by the Law to recover them In this Case if the Demandant release to the Tenant all manner of actions real yet the Demandants entry is not thereby taken away because nothing is released but the Action And so it is also of thnigs personal as if a man wrongfully takes my goods albeit I release to him all actions personals yet I may by Law take my goods out of his possession In like manner if I have any cause to have a writ of detinue of my goods against another here albeit I release unto him all Actions personals yet I may by Law take my goods out of his custody because no right of the goods is released but onely the Action â—lent diâ— or a◠〈◊〉 8 If one bold of me by Rent-service which is a service in grosse Litt. § 588 589. and not by reason of my Mannor and another that hath no right claimes the Rent and receives it of my Tenant by cohersion of distresse or otherwise and disseiseth me by taking the Rent albeit such a disseisor die so seised in taking the Rent yet after his death it is at my election either to distraine for the Rent or taking him to be a disseisor to have an Assise against the pernor of the profits â—ine or aâ— 9 If an Abbot Bishop or Husband in the right of his Wife Co. ib. 3 27. b. 2 seised of a Rent or any other Inheritance that lies in grant had aliened it was in the Election of the Successor or Wife after the death of her Husband to claime the Rent c. or to bring an Action for such alienation did not worke a discontinuance and so it is also by construction of the Statute of West 2. cap. 1. in Case of Tenant in Taile â—tes waivâ— by Feme â—ert 10 If Lands be given to the Husband and Wife and their heirs Co. ib. 357. a. â— the Husband makes a feofment in fée the feoffée giveth the land to the Husband and Wife and the heirs of their two bodies the Husband dieth In this Case the wife may elect which of the Estate she will for both Estates are waivable and her time of Election and power of waiver accrewed unto her first after the decease of her Husband â—echer of 〈◊〉 heires 11 Inderaigning a warranty against heires in Gavelkind Co. ib. 376. a. 4 the eldest may be vouched as heire to the warranty and the other sonnes also in respect of the Inheritance descended unto them So likewise the heire at the Common Law and the heire of the part of the mother may be both vouched yet in both these Cases the heire at the Common Law may be vouched alone at the election of the Tenant â—nveyance â—y several 〈◊〉 12
Norfolke and counts that to out-law him Maliciosè de captivè machinatus est And the doubt in this Case was whether or no the Action of the Case were rightly laid in Norfolke or should have rather béen laid in London where the Out-lawry was had which caused the imprisonment and a forfeiture of all the Goods of B. But it was resolved that it was well laid in Norfolke because the first Action was brought there and there also was the visible tort viz. the Imprisonment For it is a Maxime in Law Quod ibi semper debet fieri triatrem ubi Juratores meliorem possunt habere facti notitiam When matter in one County dependeth upon matter in another County the Plaintiff hath Election to bring his Action in which of the two he pleaseth except the Plaintiff upon the general issue pleaded may be prejudiced in his trial as if two conspire in one County to indict another in another County and do it an Action may be brought in either Howbeit if any other but the Conspirators indict him it shall be brought where the Conspiracy was If Manasse be mad in Essex whereby my Tenants recide in London I shall have my Action in Essex and not in London for I have nothing in London If an action be founded upon two things material and traversable in two several Counties an Action may be brought in either of them An Annuity granted in one County to be paid in another the action shall be brought where the Grant was He that is robbed may have an Appeal of Felony for it in every County where the Goods but an Appeal of Robbery will lye onely where the fact was done a Lease for yeares made in one County of Land in another Debt shall be brought where the Lease was made and waste also where the Land lyeth Every Action which concerns the life of a man shall be brought where the offence was committed Every issue which ariseth upon an action in which Land shall be recovered shall be brought where the Land lyeth as in right of Ward of Land or Body intrusion of Ward forfeiture of Marriage valore maritagii and Quare Impedit But Ravishment of Ward where the Ravishment was and a Quare non admisit where the refusal was Before the Statute of 7 R. 2. cap. 10. An Action for Land in divers Counties or for Common in one County appendant to Land in another was brought by several Writs n both Counties but since that Statute by on Writ in Confinio Comitatum A per que servitia shall be brought where the note of the fine was levied Dier 46. 8. 31 H. 8. 11 At the Common Law if a man had been wounded in one County and had died in another The Venire where the Venire to try the Issue should have been out of both Counties except in London and Middlesex because such a Iury there could not joyne and in such case the Issue was onely tryable in the K. B. but this Law is altered by 2 3 E. 6. 24. Dyer 38 50. 29 H. 8. 12 An appeal was brought against two accessaries for abetting in London to a Robbery committed in the County of Wilts Appeal wheâ— brought and the appeal was brought in the County of Wilts but by the better opinion it séemes it ought to have béen brought in London where the Abetment was because the Iury there might have best notice thereof but this is now also setled by 2 3 E. 6. 24. Dyer 51. b. 18. 33 H. 8. 13 If a man maks a Lease for yeares rendring rent Demand of rent and if the rent be behind by the space of a Moneth after the day of payment that then the term shall cease In this case if the rent is reserved to be paid at some place out of the Land upon failer of payment or due tender of the rent at that place the Lessor may enter without making any Demand upon the Land but if the rent were payable upon the Land or no place named where it should be paid upon such failer the Lessor cannot enter without demanding the rent upon the Land because the rent is payable there of right Co. l. 5. 83. b. in the Case of Market overt 14 If Plate be stolne and sold openly in a Scriveners Shop upon the Market day for every day in London is Market day Market overâ— except Sunday such Sale shall not alter the property but the party shall have restitution for a Scriveners Shop is not a Market overt for Plate because none will look there for any such thing Et sic de similibus c. but if the Sale had béen openly in a Goldsmiths Shop in London so as every one that should stand or passe by the Shop might have séen it such sale shall alter the property Howbeit if such Sale be in a Goldsmiths Shop behind a curtain hanging cubbord in a Ware-house or some other part of the House So as passengers cannot observe it such Sale shall not alter the property for such places are no Market overt And observe that the reason of this case extends to all the Markets overts in England Vide Max. 186 32. 191 3. Dyer 270. 25. 10 Eliz. 15 In Debt upon an Obligation to perform Covenants brought in London the Issue was Place of triaâ— whether or no the Defendant was verus possessor of certaine Lands in the County of Bedford at the time of the Indenture and it was the opinion of the Court that the most apt place for that trial was in Com. Bedford and not in London Vide Dyer 305 58. Trial in Ireâ—â—nd 16 If a Peer of Ireland commit Treason in Ireland Dyer 360. b. 20 Eliz. he cannot be tried in England by the Statutes of 26 H. 8. 13. 35 H. 8. 2. 5 6 E. 6. 11. for he is not a Subject of England but of Ireland and the trial in Ireland is by Parliament and not per Pares â—ender of â—ent 17 If a Rent be reserved upon a Lease Hob. 8. Bakers Case and the Lessee bound by Obligation to pay it In this Case the Lessée is bound to pay it without demand Howbeit he is not bound to seek the Lessor but to tender it onely upon the Land for he hath bound himself to pay it but still as a Rent and at the place which the Law assignes â—â—bt for Arâ—arages 18 In Debt brought by an Executor for Arrearages of a Rent-charge due in the life of the Testator Hob. 37. Pines Case the action ought to be brought in the County where the Land lyeth out of which it issueth 19 Vide Hob. 78. Don Diego c. concerning Causes triable in the Admiralty c. 79. Palmer against Pope Maximes of Reason taken out of Morality 135 The Law favoureth Charity â—â—nder by any 〈◊〉 an Ideot 1 Vpon a Mortgage if the Mortgageor die Co. Inst p. 1. 206.
Quare Impedit against the Lady Maltravers Co ib. 10 E. 3. 53. and she pleaded that she was Covert of Baron whereunto it was replied for the King that her husband the Lord Maltravers was put in exile for a certain cause she was ruled to answer Vide more examples hereof in Coke ubi supra where this difference is put that if the Husband be condemned to perpetuall banishment his wife in his absence and in her own name shall sue and be sued but if it be but Relegation for a time it seems to be otherwise And all this least the parties that have cause of Action should remain without remedy for when he is condemned to perpetuall banishment he is as a Monk profest dead in Law There is the same Law also of perpetuall abjuration 〈◊〉 person â—ll be chargâ—â— with an anâ—ity though â—harged by â—â—â—oes 11. If a man grant a Rent-charge out of his Land Co ib. 146. b. 1. Co. L. 7 39 b. 2. in Lillingstons case with Proviso that the Grantee shall not charge his person in such case regularly the Land shall be onely charged and his person free And yet in some case where there is such a Proviso in the Grant that the person of the Grantor shall not be charged neverthelesse the person of the Grantor shall be charged As if a man grant a rent charge out of certaine Lands to another for life with such a Proviso the rent is behind the grantee dyeth in this case the Executors of the Grantee shall have an action of debt against the Grantor and charge his person for the arrearages due in the life of the Grantee because the Executors have no other remedy against the Grantor for the arrearages Vide infr 32. Litt. 252. Co. 169. b. 4. 12. Where in Dower or upon Partition betwixt parcenors Egalty of partition a rent is granted to supply the thirds or for egalty of partition in such case the Law doth give a Distresse lest the Grantee should be without remedy having in liew thereof departed with a valuable recompence in Land Co. ibid. 197. a. 4. 13. For twenty shillings rent Tenants in common shall joyne in Assize or a pound of Pepper payable yearly two tenants in common ought to have severall Assises because they have them by severable titles as one tenant in common may have an Assise of the moity of twenty shillings or of the moity of a pound of Pepper de medietate unius librae piperis but not of ten shillings or de dimidio librae piperis And for that these things are in themselves severable Howbeit for an Hawk Horse or the like which are intire albeit they be tenants in common yet shall they joyne in an Assise because otherwise they should be without remedy for one of them cannot make his plaint in Assise of the moity of a Hawk Horse c. that were against the order of nature which the Law will not suffer and if they should not joyne they should have Damnum injuriam and yet should have no remedy by Law which would be inconvenient for the Law will that in every case where a man is wronged and endamaged that he shall have remedy Aliquid conceditur ne injuria remaneret impunita quod alias non concederetur so also shall they joyne in a Quare impedit in a Writ of right ward or ravishment of ward for the body for the same reason Co. ibid. 198. a. 3. Co. l. 10. 134. b. 3. in Read and Redmans case 14. If there be two Tenants in common of an Advowson The survivor shall recover and a stranger usurps so as the right is turned to an action and they bring a Writ of Quare impedit which concernes the realty the six moneths passe and the one dyeth In this case the Writ shall not abate but the survivor shall recover for otherwise there would be no remedy to redresse this wrong and so it is also of Coparceners Litt. S. 365. Co. ibid. 226. a. 3. 15. It is regularly true A Condition need not be shewed forth that a man shall not plead or take advantage of a Condition without shewing forth the proofe thereof in writing And yet if land be mortgaged upon condition and the Mortgagee letteth the Lands for years reserving a rent the condition is performed the mortgagor re-enters In an action of debt brought for the rent the Lessee shall plead the condition and the re-entry without shewing forth any Deed so in an Assise the tenant pleads a Feoffment of the Ancestor unto him c. the Plaintiff saith The Feoffment was upon condition and that the condition was broken and pleads a re-entry and that the tenant entred and tooke away the Chest in which the Deed was and yet detaineth the same the Plaintiff shall not in this case be inforced to shew the Deed Also if a woman give Lands to a man and his heires by Deed or without generally shee may in pleading aver the same to be Causa matrimonij prelocati albeit shee hath nothing in writing to prove the same And the reason of these cases and the like is lest the parties that should prove the conditions should upon failer thereof be utterly left without remedy Litt. S. 391. Co. ibid. 240. a. 3. 16. If the Feoffee of Land in fee upon condition dye seised Right and title a diversity this discent if the condition be broken shall not take away the entry of the Feoffor or his heires but if the Feoffee upon condition be disseised and the disseisor dye whereby a descent is cast this shall take away the entry of the Feoffee because he hath a right to the land and therefore his entry may be taken away for that he may recover his right by action But the Feoffor that hath but a Condition his title of entry cannot be taken away by any descent because he hath no remedy by action to recover the land and therefore if a descent should take away his entry it should barr him for ever And the Law in this case is all one whether the descent were before the condition broken or after Also he that hath a title to enter upon a Mortmaine shall not be barred by a descent because then he should be without all remedy So it is also where a Woman hath a title to enter Causa matrimonii prelocuti no descent shall take away her entry because shee hath but a title and no remedy by action If a man be seised of lands in Fee and in writing deviseth the same to another in Fee and dyeth and the Heire before any entry made by the Divisee entreth and dyeth seised this descent shall not take away the entry of the Devisee for if the descent which is an act in Law should take away his entry the Law should barre him of his right and leave him utterly without remedy So it is also of him that entreth for
supra Re-disseisin against the feoffee 3. A re-disseisin doth lye against the Re-disseisor Co. ibid. 154. b. 2. but likewise against his Feoffee for otherwise the Re-disseisor might prevent the Plaintiff of his Re-disseisin and so take advantage of his owne wrong Challenge to the Array 4. If the Plaintiff or Defendant have an Action of debt against the Sheriff this is a good cause of challenge to the Array Co. ibid. 159. a. 2. but albeit the Sheriff hath an Action of Debt against either party this is no good cause of challenge for the failer of paying a debt to the Sheriff is a wrong and against Law and if either party might challenge for such cause he should take advantage of his own wrong Cattell disâ—ained out of 〈◊〉 fee 5. If the Lord come to distraine Cattell Co. ibid. 161. a. 2. Co. L. 9. 22. a. 3 in the cases of Avowry 44 E. 3. 20. per Thorpe which he seeth then within his fee and the Tenant or any other in his behalfe to prevent the Lord to distrain drive the Cattell out of the Lords fee into some other place yet may the Lord freshly follow and distraine the Cattell and the Tenant cannot make rescous albeit the place in which the Distress is taken is out of his fee for if by such a shift the Tenant might prevent the Lord of his Distress he should take advantage of his own wrong And therefore in such case in Iudgment of Law the Distresse is taken within his fee and so shall the Writ of Rescous suppose in case the Cattell be rescued but it is otherwise of cattell to be distrained for Damage-feasant for they must be Damage-feasant at the time of the Distress Condition abâ—â—â—re Bond not valid 6. If a man make a Feoffment in fee upon Condition Co. ibid. 206. b. 2. that the Feoffee shall re-enfeoff him before such a day and before that day the Feoffor disseise the Feoffee and hold him out by force untill the day be past In this case the estate of the Feoffee is absolute for the Feoffor is the cause wherefore the condition cannot be performed and therefore shall never take advantage for the non-performance thereof So it is also if A. be bound to B. that J. S. shall marry J. G. before such a day and before the day B. marry with J. he shall never take advantage of the Bond for that he himself is the mean that the Condition could not be performed Obligation 〈◊〉 7. If a man be bound to A. in an Obligation to enfeoff B. who is a meere stranger before a day Co. ibid. 209. a. 2. the Obligor doth offer to enfeoff B. and he refuseth In this case the Obligation is forfeite for the Obligor hath taken upon him to enfeoff him and his refusall cannot satisfie the Condition but if the Feoffment had been by the condition to be made to the Obligee or to any other for his benefit or behoof a tender and refusall shall save the Bond because he himselfe upon the matter is the cause wherefore the Condition could not be performed and therefore shall not take advantage thereof to give himselfe cause of Action thereby Co. Inst pars 1. 210. b. 3. Litt. S. 340. 8. If Feoffment be made upon Condition to pay the Feoffee twenty pounds upon a certaine day In this case Tender excused the Feoffor is bound to find out the Feoffee and to make tender thereof unto him if he be in England but if he be out of the Land he is not bound to seek him nor to go out of the Realme unto him Neither shall the Feoffee take advantage of his own absence but the Feoffor shall enter into the Land as if he had duly tendred it according to the Condition because the Feoffee himselfe was the cause that the Feoffor could not make due tender at the day limited for the payment thereof Litt. S. 355 356. Co. ibid. 220. b. 4. â— 9. If Feoffment be made upon condition to enfeoff another Disability or to make a gift in tail to another c. And the Feoffee before the performance of the Condition enfeoffs a stranger or makes a Lease for terme of life In this case his Feoffee or Lessee shall not have the Land for then he should take advantage of his own wrong but the Feoffor and his Heires may enter because the Feoffee hath disabled himselfe to performe the Condition So it is also if he had made but a Lease for years for the estate ought to be in the same plight at the time of the re-enfeoffment that it was in at the time when he took the estate Litt. S. 383. Co. ibid. 236. a. 4. 10. If Lands be devised to be sold by his Executor in this case Laches the Executor is bound by the Law to sell them as soone as he can for otherwise he shall take advantage of his own Laches Co. ibid. 238. b. 2. 11. If there be Grand-father Father and Son and the Son disseiseth one and enfeoffeth the Grand-father who dyeth seised Grandfather Father and Son and the Land descendeth to the Father Now is the Entry of the Disseissee taken away but if the Father dye seised and the Land descend to the Son In this case is the Entry of the Disseisee revived and he may enter upon the Son who shall take no advantage of the descent because he did the wrong unto the Disseisee And the Law were the same if the Land had not descended to the Sonne but the Sonne had been in by purchase as by Feoffment in fee in tail or for life from his Father yet may the Disseissee enter upon him for he shall in no kind take advantage of his own wrong Litt. S. 395. Co. ibid 242. a. 1. 12. If a Disseisor enfeoff his Father in fee The like and the Father dye seised whereby the Land descends to the Disseisor as his Son and Heire c. In this case the Disseisee may well enter upon the Disseisor notwithstanding the descent because he being particeps criminis shall take no advantage of his own wrong for albeit a descent be cast and the Entry of the Disseisee taken away yet if the Disseisor cometh to the Land againe either by descent or purchase of any estate of Free-hold the Disseisee may enter upon him or have his Assise against him as if no descent or mean conveyance had been causa qua supra Co. ibid. 247. a. 3. in Beverleys case Co. l. 4. 125. a. 3. 13. The heir of one that is non compos mentis as an Ideot A Drunkard Lunatique c. shall after his Ancestors death avoid a descent but neither a drunkard himselfe nor his heir shall avoid it for albeit some are of such a beastly humor to be in a manner alwayes in that condition yet neither he nor his heire shall thereby avoid a
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
hinders a Remittâ—r and the Discontinuee is disseissed and after the Disseisor lets the Land to the Baron and Feme for life this is a Remitter to the Feme but if the Baron and Feme were of covin and consent that the Disseisin should be made then is it no Remitter to the Feme because she is then a Disseiseresse and particeps criminis Howbeit if the Baron were onely of covin and consent to the Disseisin and not the Feme in that case the Feme shall be remitted So as here covin and consent of Baron and Feme doth hinder the Remitter of the Feme Co. ibid. 357. a. 4. and so covin doth in many cases choake a meer Right and the ill manner doth many times make a good matter unlawfull Co. ibid. b. 1. Co. l. 3. 78. a. in Farmers case 11. If a Disseisor Intrudor or Abator do endow a woman that hath lawfull title of Dower this is good and shall bind him that right hath but if a woman be lawfully entitled to have Dower and she is of covin and consent that one shall disseise the Tenant of the Land against whom she may recover her lawfull Dower all which is done accordingly In this case the Tenant may lawfully enter upon her and avoid the Recovery in respect of the covin Co. ibid. b. 2. 12. In all cases The like where a man hath a rightfull and just cause of Action yet if he of covin and consent do raise up a Tenant by wrong against whom he may recover the Covin doth suffocate the right that the Recovery though upon good title shall not bind or restore the Demandant to his right So if Tenent in tail and his Issue disseise the Discontinuee to the use of the Father and the Father dyeth and the Land descendeth to the Issue in this case the Issue is not remitted against the Discontinuee in respect he was privy and party to the wrong but in respect of all others he is remitted and shall deraigne the first Warranty And so note a man may be remitted against one and not against another The like 13. A. and B. Ioint-tenants are intitled to a reall Action against the Heire of the Disseisor A. causeth the Heire to be disseised Co. ibid. against whom A. and B. recover and sue execution In this case B. is remitted for that he was not party to the Covin and shall hold in common with A. but A. is not remitted causa qua supra False Plea 14. He that will have the benefit of the Statute of Glocester Co. ibid. 366. a. 3. Co. l. 8. 53. a. 3. in Sims case cap. 3. 6 E. 1. must plead the truth of his case viz. the Warranty acknowledge the title of the Demandant and pray that the advantage of the Statute may be saved to him and then if afterwards assets descend the Tenant upon this Record shall have a Scire facias c. But if the Tenant plead the Warranty and plead further that assets descended c. and the Demandant taketh Issue that assets descended not c. which Issue is found for the Demandant whereupon he recovereth In this case the Tenant albeit assets do afterwards descend shall never have a Scire facias upon the said Iudgment for that by his false Plea he hath lost the benefit of the Statute Outlawry by 〈◊〉 15. Imprisonment is a good cause to reverse an Outlawry Co. Inst pars 1. 259. b. 2. if it be by Processe of Law in invitum but if it be by consent and covin such Imprisonment shall not avoid an Outlawry because upon the matter it is his own act Attornment 16. Where the Tenant hath notice Co. l. 2. 68. a. 2. in Tookers case that the Seigniory was granted but to one or that the Reversion was granted but of one Acre or that the Reversion was granted for fewer years or that the Reversion was granted for life onely with no Remainder over whereas it was in any of the cases otherwise in such case generall Attornement without true notice of the Grant is void for the usuall pleading which intent is the oracle of the Law is to which Grant he attorned and therefore if he hath not notice of the Grant or which is all one true notice thereof the assent which he gives to it which in truth is but part of the Grant the Law which abhors falsehood will not construe to be Attornment to the true Grant Fine by covin to bar 17. A man possessed of divers parcells of Land within the Mannor of D. whereof some he held for years others at will others by copy Co. l. 3. 77. b. 2. in Farmers case in Margaret Podgers case Co. l. 9. 105. b. 1. and some also in fee demiseth the whole to another for life and then levies a Fine to the Tenant for life and his Heires of so many Acres as amount to the whole Land continues Possession and payes the rents to the Lord five years passe yet in this case the Lord is not barred by the Statute of 4 H. 7. cap. 24. For the makers of that Statute did never intend that such a Fine levyed by fraud and practice of Tenant for years at will or by copy which pretend no title to the Inheritance but intend the disherison of their Lessors or Lords should bar them of their Inheritance and this appeares by the preamble of the said Act where it is said that Fines ought to be of greatest strength to avoid strifes and debates but when Tenant for years at will or by copy make Feoffment by assent and covin that a Fine should be levyed this is not to avoid strife and debate but by assent and covin to begin and stir them up And therefore that Statute did not intend to establish any such estate made and created by such fraud and practice which being fraudulent is upon the matter no estate at all c. vide pl. ibid. A fraudulent â—â—e of goods 18. The grant of goods albeit it be made upon good consideration Co. l. 3. 80. b. 4. in Twines case yet if it be not bona fide but hath trust in it or other badges of fraud as if the Grantor keep them still in his own Possession useth them as his own in disposing of them or otherwise or if they be Sheep and the Grantor brand them with his own mark or when he grants all his Goods and doth not except so much as his wearing apparrell or the like such a Grant is within the Statute of 13 Eliz. 5. and upon a Fieri facias at anothers Suit the Sheriff may seise them as if no Grant at all had been made thereof Vide pl. in that case to the like purpose Queritur ut crescunt tot magna volumina Legis In promtu causa est crescit in orbe dolus Co. l. 4. 26. a. 1. in Kite and Quientons case 19. Pretenced titles of
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
was uncertainly alledged that made the Indictment insufficient as to all Co. l. 4. 74. a. 4. in Palmers case 41. An Inquisition was thus returned Inquisition insufficient that the Queens Debtor was possest of a certaine Terme Pro termino quorundam annorum adhuc venturo and it was adjudged insuffient for a Terme cannot be extended without shewing the commencement and certainty of the Terme to the end that the Debt being satisfied the party may have the terme againe if any part thereof shall remain which ought to appeare and thereupon the party may have remedy to remove the hands of the Queen or of any other person and so it was adjudged M. 32. 33. Eliz. In scaccario Co. l. 4. 110. b. 4. Adams and Lamberts case ib. 110. b. 2 in the same case see there also 113. a. Sir Barth Reads case 42. If Land of the yearly value of 20 l. per ann A charitable and a superstitious use be given upon condition to fine a Preist to pray for Souls and that the Preist shall have yearly 10 l. thereof for his Salary and shall distribute other ten pounds to certain poor people in this case by the Statute of 1 E. 6. 14. the King shall have but the 10 l. limited to the Priest and not the Land howbeit if the same Land were given to finde the Priest and for the maintenance of 20 poor men in this case the King shall have all the Land albeit the Preist hath 10 l. thereof and the poor men the other 10 l. And the reason of this diversity is because in the first case there was a good use separate and distinct in certain from the superstitious use but in the other case it was left altogether uncertaine how much the Priest and how much the poor men should have and therefore in such case the King shall have all Co. l. 4. 115. b. 3. Turners case in Ad. and Lamb. case 43. A man seised of certaine Houses of the yearely value of 4 l. 6 s. 8 d. devised them upon Condition to finde an Obit The like spending thereat so much as the devisees should in their discretions think fit the Devisees expend only upon the Obit 6 s. 8 d. per annum and it was adjudged that the Queen Elizabeth should have all the houses because the appointment was uncertain albeit the imployment was certaine Co. l. 5. 1. a. 4. in Claitons case 44. Indentures of demise were ingrossed bearing Date the 26 day of May Anno 25. Eliz. to have and to hold for three years from henceforth Commencement of an Indenture and they were delivered at four a clock in the afternoon upon the 20 day of June anno praed In this case the Lease shall end upon the 19 day of Iune in the third yeare for the Law in this computation rejecteth all Fractions and Divisions of a day for the uncertainty which is alwaies the Mother of contention Severall Interests severall Covenants 45. An Authority may be granted to two vel cuilibet eorum Co. l. 5. 19. a. Slingsbies case as to make Livery or the like but an Interest cannot be so granted as if A. covenants with two Et cum quolibet eorum they cannot sue severally unlesse their interests were severall as if a man by Indenture deviseth Black Acre to A. White Acre to B. and Green Acre to C. and covenants with them Et quolibet eorum that he is lawfull owner of the said Acres in this case in respect of their severall Interests by the words quolibet eorum the Covenant is made severall but if he demise the acres to them joyntly then the words Cum quolibet eorum are void for the uncertainty for albeit diverse persons may bind themselves quolibet eorum and so the Obligation shall be joynt or severall at the election of the Obligee yet a man cannot bind himselfe to three and to each of them to make it joynt or severall at the election of severall persons for one and the same cause for the Court will be in doubt for which of them to give judgement which the Law will not suffer As it was held in 3 H. 6. 44. where one brought a Replevin for one beast against two who made several avowries each of them by himself in his own right and there by the advise of all the Iustices both the Avowries abated for the inconvenience and uncertainty because if both the Issues should have been found for the Avowants the Court could not have given Iudgment to them severally of the same thing Uncertain count 46. It is the duty of a Declaration Co. l. 5. 35. a. 3. in Plaiters case to reduce the generalty of the Writ into certainty otherwise the issue will be generall and uncertain and by consequent the verdict the like and then the Iury cannot be attainted if they happen to give a false verdict Schismatick 47. Where a Bishop refuseth to admit a Clarke Co. l. 5. 37. b. Specots case it is not a sufficient cause to alledge in generall that he is Schismaticus inveteratus for that is causa vaga incerta but he ought to charge him in particular with some particular Schisme and to shew how and wherefore he is a Shismatick Releasâ— 48. M. is Baile for C. in an Action where H. is Plaintiff Co. l. 5. 70. b. Hoes case H. hath Iudgement and Scire facias against C. and in his default against the Baile who pleads the Plaintiffs release before Iudgement this is held an insufficient plea because a certain duty with a Condition subsequent may be released as an Obligation not an uncertain duty with a condition precedent before the time because the debt and damages are uncertaine See also Co. l. 10. 51. a. 1. in Lampets case An award 49. The Plaintiff and Defendant submit themselves to the Arbitrement of A. who awards that the Defendant shall enter into Bond Co. l. 5. 77. b. Sammons case that the Plaintiff and his wife shall enjoy such Land quietly This is a void award because of the uncertainty of the summ in the Bond which ought to be at least to the value of the Land also the award is void as to the Feme because shee is a stranger to the submission No Lapse 50. A Patron is not bound any way to take notice of a Laps for the Incumbents not reading the Articles according to the Statute of 13 Eliz 12. but from the Ordinary himselfe Co. l. 6. 29. b. 1. in Greens case and no laps will incurr if that be not done and such notice ought to be certaine and particular and therefore it is not sufficient for the Ordinary in such case to give notice that the Presentee hath not read the Articles and subscribed generally but he ought particularly to informe the Patron that he hath not read the Articles c. for which default he
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
ut supra Uncertain reâ—â—cation 62. A. seised of the Mannor of D. levies a Fine to uses with power of Revocation upon payment of 40 s. to the Conusee Co. l. 9. 106. b. 2. Lady Greshams case in Marg. Podgers case being likewise seised of the Mannor of S. levies another Fine thereof to the same Conusee but to other uses with like power of Revocation upon payment of 40 s. to the said Conusee Afterwards A. payes 40 s. to the Conusee for revocation of all the uses raised upon both the Fines and this payment was testified in writing under the Seales of the parties In this case none of the uses are revoked but the Revocation is utterly void for the uncertainty because two severall summs of 40 s. should have been tendred and not one summ onely for they were severall Indentures and severall Mannore and could not be satisfied by one summ because it was thereby left uncertain which uses and of which Mannor the Revocation was meant Uâ—certaine plea. 63. In debt against an Executor he ought not to plead Co. l. 9. 109 b. 3. Menel Treshams case Quod ipse non habet c. aliqua bona c. praeter bona c. quae non sufficiunt ad satisfacienda debita predicta but he ought to plead Quod non habet c. bona c. praeterquam bona cattalla ad valentiam of a certaine summe Et non ultra quae eiisdem debitis obligata onerabilia existunt c. for the first plea is insufficient for the uncertainty because the Plaintiff cannot reply thereupon so as a certain Issue may be taken â—ncertainty of â—â—e the perâ—â—n 64. When there is uncertainty in the person Co. l. 10. 51. a. 3. in Lampets case to whom a Release or other Grant is made such Release or grant cannot be good And therefore if a Lease for life be made the Remainder to the right heires of I. S. and the Lessee is disseised and the eldest Son of I.S. releaseth to the disseisor and after I. S. dyes In this case the Release is voyd for the uncertainty whether or no he shal be right heir at the death of his Father So likewise in 17 Eliz a man lets to Baron and Feme for 21 years the Remainder to the survivor of them for 21 yeares and the Baron grants over this term here also the grant is void for the uncertainty of the person for albeit of all Chattels reall which are the Femes the Baron may dispose yet in this case neither the Baron nor Feme had any thing untill the Survivor c. Co. l. 10. 90. a. 3. in Doctor Leyfeilds case 65. The reason why colour is given in a Writ of Entre sur disseisin Colour in pleading Writ of Entre in the nature of an Assize and Assize Trespasse c. is for that the Law which prefers and favours certainty as the mother of quiet and repose to the intent that either the Court may adjudge upon it if the Plaintiff demur or that a certaine Issue may be taken upon a certaine point requires that the Defendant when he pleads such a speciall Plea notwithstanding which the Plaintiff may have right shall give colour to the Plaintiff to the end that his Plea should not amount to a generall Issue and so leave all the matter at large to the Iurors which would be uncertaine and full of multiplicity and perplexity of matter Co. l. 10. 117. b. 2. in Rob. Piâ—folds case 66. In Trespasse the Plaintiff counts for damages twenty marks Uncertaine Verdict the Defendant pleads not guilty the Iurors tar damages and costs joyntly at twenty two markes In this case the Verdict cannot stand for it appeares not how much is for damages and how much for costs and therefore the Plaintiff can have Iudgement but for twenty marks for the uncertainty Co. l. 11. 25. b. 1. in Hen. Harpers case 67. An Ejectione firmae brought de omnibus omnimodis decimis in W. without saying garborum faeni lavae c. Uncertaine allegation this is not rightly layd for the uncertainty because there is no certainty alleadged of the nature or quality of the tithes whereupon a certaine Iudgement may be given or execution by habere facias possessione had And this also appeares in an Assize brought de quadam portione decimarum c. in 7 E. 6. Dyer 84. F. N. B. 41. a. 68. The Bishop shall not cite or distraine any to appeare before him to make oath at the pleasure of the Bishop against the will of him Citations that is so summoned or cited for such generall citations which the Bishops make to cite men to appeare before them prosalute animae without expressing any cause in speciall are against Law for which the party greived may sue a prohibition against the Bishop and thereupon an Attachment if the prohibition be not obeyed And such cause ought to be onely Matrimoniall or Testamentary Plow 56. a. 1. Wimbish and Talbâ—ies case 69. A Bar which is certaine to a common intent is good Replicationâ— must be certaine but Replications Titles Pleas in Abatement of Writs and Estoppels ought to containe Certainty for the Law which is grounded upon reason ordaines that Replications which make the Issue should be certaine to the end that neither the Court nor Iurors who trie the Issue should be misled or enveigled by uncertainty and therefore albeit a man may plead in Bar Que estate without shewing how he comes by the estate yet in a Replication if he plead Que estate generally it is not good as it is held in 2 E. 4. but he ought to shew how he comes by the estate for the cause aforesaid Pl. 65. a. 3. Dive and Manninghams case 70. Where a Recovery is had of two hundred Acres An uncertaine Plea upon occasion of pleading that Recovery to plead a Recovery of one hundred Acres inter alia is not good for the uncertainty as in 22 E. 4. in a Scire facias to have execution of two hundred acres of Land the Tenant pleads that since the Scire facias sued I.S. brought a Formedon of one hundred Acres inter alia and recovered and had execution Iudgement of the Writ for that parcell and this Plea was not held good for it is not the right forme of pleading such a Recovery because a Recovery ought to be certainly pleaded to every intent and these words inter alia are certaine to no intent but there it is held that he ought to have pleaded that I. S. brought a Formedon of two hundred Acres whereof those one hundred Acres now in demand are parcell and hath recovered and hath had execution Certainty in Law proceedings 71. The proceedings of a Suit Pl. 84. a. 4. Partridges case the allegations ought to be certaine in one part or other according to the nature of the Suit viz.
defendant pleads Judgement barr to the bond That the plaintif hath recovered upon the same bond and that the judgement thereupon is removed by Error into the Kings Bench and was not yet reversed And this was adjudged a good plea because the judgement takes away the strength of the bond and if after judgement he might sue the same party upon the same bond he might do it infinitely and consequently the defendant might be infinitely amerced for upon every Iudgement the defendant shall be amerced and if he be a Peer of the Realm the amerciament is 100 s. and so the defendant might be infinitely amerced upon one and the same obligation which would be mischievous Et interest Reipublicae ut sit finis litium Co. l. 7. 43. Kenns case 17 A bill of reviver upon a bill of reviver shall not be suffered for the infiniteness Bill of reviver no more than a writ by Iourneys accompts upon a former writ of the same nature for so they might be had infinitely Barrettry 18 A Barrettor is in judgement of Law accounted one of the most dangerous and pernicious vermin in the Commonwealth Co. l. 8. 37. in the case of Barretry because whereas the Law endeavoureth to settle peace and amity and to suppress discord and contention he is seminator litium oppressor vicinorum suorum either by force and open Maintenance of possessions or the like or by fraud and malice under colour of Law as by multiplicity of unjust and feigned sutes Informations or the like to the end he may by that means enforce poor people ad redimendum vexationem to give him money or otherwise to compound with him c. A bitrement 19 Vpon an award albeit the parties do not discover all their differences to the Arbitrators so as they determine some C. l. 8. 98. a. 4. in Baspoles case and leave the rest undetermined yet the award is good because otherwise many Arbitrements might be avoided for the one or the other of the parties may conceal a trespass done to him or some other secret cause of action and so avoid the Arbitrement which were inconvenient for Expedit reipublicae c. Accord 20 Accords are much favoured in Law Co. l. 9. 79. b. 4. in Peytoes case because they prevent and compose sutes and controversies amongst neighbours Et concordiâ parvae res crescunt discordiâ maximae dilabuntur And therefore it was adjudged P. 3 sac rot 1033. that an Accord with satisfaction was a good plea in barr in Eden and Blakes case Fines 21 The general Statute of 32 H. 8. 36. Co. l. 11. 75. a. 1. of Fines shall bind the King though he be not named because it was ordained for the setling and quieting of estates and the prevention of debates and controversies in the Commonwealth in Magdalen College case Assets descended a barr 21 The Statute of Glocester in 6 E. 1. cap. 3. ordains Co. l. 52. b. 4. in Syms case Pl. Co. 110. Fulmerstons case that where tenant by the curtesie aliens his wives inheritance with warranty if assets descend from the heir he shall be barred for the value of the inheritance so descended and if lands after descend that then the tenant shall recover against the heir of the seisin of his mother viz. out of the residu of his mothers lands so much as the assets afterwads descended shall amount unto Here albeit at the making of this Act being in 6 E. 1. there were no intailed lands for all Inheritance was then viz. before Westm ◠being 13 E. 1. feesimple absolute or conditional yet intailed lands are since taken to be within the equity of the said Act of Gloc. but not to retain or recover the lands intailed but only the lands which should so descend because otherwise there would be occasion of new sutes and contention which the Law hates and abhorrs for if the tenant after assets descended might retain or recover the lands intailed then if the assets were aliened the issues inheritable to the estate tail might by writ of Formedon in descender recover the intailed lands again which would beget a new sute and no way answer the Intention of the said Act being indéed a good provision for féesimple lands but not for lands entailed without such a construction by equity as aforesaid And therefore in case of entailed lands so aliened with warranty the tenant shall have a Scire facias out of the Rolls of the Iustices before whom the sute depends to recover the lands descended according to the provision of the said Act of Glocester which in just and proportionable equity agrées with the case of the feesimple lands and the Intention of the same Act. Vide supra 15. 9. infra 186. 8. 179 Circuit of Action Co. Inst part 1. 265. a. 3. 1 Littleton saith § 446. If the father be disseised Rebutter and the son having only a possibility release to the disseisor without warranty such release is void Howbeit if there be a warranty annexed to the release then the son shall be barred for albeit the release cannot barr the right because the son had no right in the land in the life of the father yet the warranty may rebut and barr him and his heirs of a future right which was not in him at that time And the reason which in all cases is to be sought out wherefore a warranty being a covenant real shall barr a future right is for avoiding of circuit of action which is not favoured in Law viz. That he who made the warranty should recover the the land against Terre-tenant and then the Terre-tenant by force of the warranty should have as much land in value against the warrantor which course would occasion Circuit of action and more trouble than needs Mauxels case 7. b. Finch 2 Where the father enfeoffeth his son and heir apparent with warranty and dieth Voucher the son in a praecipe brought against him may immediately vouch his fathers feoffor for the Law will not suffer him to vouch himself according to Max. 54. and so when he comes in as vouchee he may darraign the first warranty to avoid Circuit of Action Finch fol. 14. Fr. Edit F. N. B. 18. f. 3 In false Iudgement against an Abbot the plaintif was non-sute False Judgement and the Abot had a Scire facias against the plaintif to shew cause why he should not have execution returnable quindena Paschae at which day the plaintif appears and assigns his errors and tenders security to sue cum effectu and prays a Scire facias against the Abbot ad audiendum errores and the opinion of the Court was that he might assign his errors against the Abbot without suing out any Scire facias against him Finch pag. 55. 4 In an action of waste upon a lease for years by déed Waste wherein the lessor granteth to the
action upon his case as well as the Lord and so there might be infinite actions for one default neither yet are they in such case without remedy for they may and ought to sue in the Court Christian and there shall have it redressed Co. l. 5. 104. b. in Boulstones case 6 A man cannot have an action upon the case for damage by the Pigeons of a Dove-house Dove-house because then every man might have the like And therefore it hath béen held that if any man except the Lord of a Manor erect a Dove-house Prat and Sternes case it is presentable in the Leet Sed quaere de hac for it hath been since otherwise adjudged See the E. of Northumberlands case Poph. Rep. 141. Trin. 16. Jac. Co. l. 6. 8. b. 4. in Ferrers case 7 If the plaintif be barred by judgement upon demurrer Vexatious sutes confession or verdict in personal actions he is barred for ever and in real actions he must have recourse to his action of an higher nature and at last shall be finally barred in his writ of right if the Grand Assise find against him So likewise before the Statute of Marlbridge when the degrees were past and before the Statute of Westm 2. upon loss by default there was no remedy but by writ of right And the reason of the Common Law in these and the like cases was to avoid Multiplicity and Infiniteness of sutes trials recoveries and judgements in one and the same case And therefore in the judgement of the Law it was thought more profitable for the Commonwealth and more for the honour of the Law in some cases rather to leave some without remedy and to put others to their writ of right without any respect of Coverture Infancy or the like than that there should not be a convenient time for the ending of actions and sutes See the judgement in redisseisin and post diss F. N. B. 188 190. and the punishment inflicted by the Law in such case See also the Register 206. 208. And indeed without such a strict course there may be much oppression committed under colour and pretence of Law for so a rich and malitious man may by actions and sutes infinitely vex him that hath right and in the end for the avoiding of charge and vexation Compell him to forsake his right all which was remedied by the Rule and Reason of the antient Common Law the neglect whereof by introducing trials of rights and titles of Inheritance and franktenement in personal actions in which there is no end or limit of sutes hath brought with it four main Inconveniences 1. Infiniteness of verdicts recoveries and judgements in one and the same cause 2. Sometimes contrarieties of verdicts and judgements one against another 3. Continuance of sutes by 20 30 and 40 years to the utter impoverishing of the parties 4. All this tends to the dishonor of the Common Law which utterly abhorrs Infiniteness and protraction of sutes And herein the excellency of the Common Law is to observed viz. That the receding from the true institution thereof introduceth many Inconveniences and the observation of it is alwayes accompanied with peace and quiet the end and center of all human laws See the Epistle to the 4. Report fol. 1. b. 8 Vide Max. 180. ca. 3. 186 25. 183 The Law construeth things with Equity and Moderation Convenient time 1 In 18 E. 4. 22. Co. l. 3. 27. a 1. A man is bound to make an obligation immediately yet he shall have convenient time to do it In Butler and Bakers case Escape 2 For as much as Escapes are very penal to Sherifs Co. l. 3. 44. a. 4. in Baytons case Bailifs of Liberties and Keepers of Prisons the Iudges have alwayes made such favourable construction as the Law will permit in favour of them being Officers and Ministers of Iustice and will never adjudge one to make an escape upon any strict construction for albeit the Sherif or other officer that keeps prisoners ought not to suffer one in execution to goe at large by Bail or Baston but ought to keep them in salva arcta custodia and according to the Statute of Westm 2. cap. 11. which ordains quod carceri mancipentur in ferris to the end they may the sooner pay their Creditors yet if one be arrested upon a Capias ad satisfac and the Bailifs upon a habeas Corpus bring him to Westm and at his request carry him to Lambeth in Surrey and at the day of return deliver him to the Kings Bench This shall be adjudged no escape neither shall the prisoner thereupon have an Audita querela against the Creditors So it is likewise if the prisoner had of his own accord gone to Lambeth so as he had returned in time to be delivered into Court at the return of the writ as it was adjudged in Charnicks case Sheriff of the County of Bed in 31 Eliz. So if one be Sherif of two Counties hath several prisoners in execution in each County upon two habeas Corpora against two of them he may bring the one prisoner out of the one County into the other and then carry both the prisoners up according to the several writs to him directed and this shall not be adjudged any escape in the Sherif Also If a prisoner in execution escape and flie into another County and the Gaoler make fresh sute after him and taking him puts him into the Gaol again this shall be adjudged no escape for that upon fresh sute the Gaoler took him again and put him in prison before any action brought against him And in the cases above produced upon habeas Corpus the Sherif is not strictly bound to keep the direct way to West in recta linea so as he have him at the return of the writ and then deliver him into Court for if the effect of the writ be pursued it sufficeth Copihold Fines 3 Where fines in a Copyhold Manor are uncertain Co. l. 4. 27. b. 3. in Hubbert Hamonds case the Lord ought not to demand or exact excessive or unreasonable fines and if he do the Copyholder may deny to pay it without danger of forfeiture and it shall be determined by the opinion of the Iustices before whom the matter depends upon a demurrer or at the trial whether the fine demanded were reasonable or no for if Lords might assess fines excessively at their pleasure all the estates of Copiholders which are a great part of the Realm and have continued time out of mind would be at the will of the Lords to defeat and destroy which would be inconvenient And thus it was adjudged in the Common place in Hoddesdons case Sewers 4 Notwithstanding that the words of the Commission of Sewers give authority to the Commissioners to do according to their discretions Co. l. 5. 100. a. 3. in Rooks case yet their proccedings ought to be limited
and bounded by the Rule of Law and reason for discretion is a science of discerning truth from falshood right from wrong shadows from substance and betwixt equity and colourable glosses and pretences and not to doe according to their own wills and private affections Co. l. 6. 50. b. 4. in Boswels case 5 If tenant in tail suffer an usurpation and die Tail Usurpation the issue in tail is remedied by the equity of the first branch of Westm 2. cap. 5. because after the Statute of Westm 2. cap. 1. which created the estate tail and was made the same Parliament the issue in tail could not have a writ of right of advowson and therefore shall be aided by the said first branch as it is held 43 E. 1. 24 25. Vide 26 Ass pl. 4. 8 E. 2. Quare Impedit 167. 24 H. 6. 28. Co. l. 8. 40. a. 4. Grieslyes case 6 Amerciaments Amerciaments whether they are to be affeared in Inferiour Courts by the sutors or in Superiour Courts by the Iudges they are all termed Misericordia because whosoever hath the affearance of them ought to use great moderation Co l. 11. 44. a. 2. in Rich. Godfreyes case 7 The Reasonableness of fines in Courts distresses Fines Distress c. amerciaments and fines at the will of the Lord shall be adjudged by the Iustices and if they be outragious and excessive and by consequent injust and against the Law they have power to moderate them F. N. B. 75. a. c. 8 When an amerciament is excessive or outragious in a Court Baron or other Court which is not a Court of Record for trespass Amerciament or any other offence the Law hath ordained the writ of Moderata Misericordia to be directed to the Lord of the same Court or his Bailifs commanding them to take a moderate amerciament according to the quantity of the trespass c. and thereupon the party grieved may have an Alias Pluries and Attachment if he please See the Statutes of Magna Cart. cap. 14. and Westm 2. cap. 6. F. N. B. 103. b. 9 If a man be bound in a statute merchant Statute Merchant and after make feofment of parcel of his lands to one man and of another parcel thereof to another and the recognisée sues execution upon the Statute and hath execution against the one feoffée here this feoffée shall have an Audita querela against the other feoffée to shew cause why the recognisée hath not execution against his lands as well as against the lands which he hath c. Pl. Co. 17 a. 4. c. in Fogassaes case 10 Both the matter and words of penal Laws shall be taken strictly Penal Laws and not extended by Equity in prejudice of them against whom the penalty is to be inflicted As the Statute of Westm 2. cap. 11. ordains that if Accomptants shall be found in arrear before Auditors Arrestentur Corpora eorum et per testimonium Auditorum ejusdem Compoti mittantur et liberentur proximae Gaolae Domini Regis in partibus illis quousque c. Here the Statute is general that they should be imprisoned by the Auditors and saith not at what time so as by the Letter of the Statute the Auditors may imprison the Accomptants when they please after their accompt yet in 27 H. 6. 8. Tit. Barr 44. Br. Accompt 6. In debt upon arrerages of accompt it is adjudged that if the Auditors do not commit the Accomptant to prison presently after the accompt they can never commit him afterwards because the Statute is penal to him that is to be imprisoned c. Pl. Co. 67. a. 1. Dyve and Manâ—ngh 11 At the Comon Law before the Statute of 23 H. 8. 10. the Sherif had commandment and authority to let to bail such as were mainpernable Bail for the Common Law which is Common reason would alwayes have persons taken by writ bill or warrant upon personal actions or Indictments of trespass to be enlarged by sureties for that in a manner it stands indifferent whether they are guilty or no and then if they should not be guilty and yet restrained of their liberty it would be a great inconvenience which the Law would never suffer 12 Hob. 14. Sir Dan. Norton against Simmes 184 Restraineth a general Act or Rule and sometimes also a Particular contract if there be found any mischief or Inconvenience in them Wife no witness â—or her â—uâ—band 1 Regularly any person of competent age and discretion Co. Inst parâ— 1. 6. b. 4. and against whom there is no just exception by reason of perjury conviction of felony or the like may be admitted a witness in any cause yet in 10 Jac. in Com. Banc. in a case upon the Statute of Bankrupts it was adjudged that a wife cannot be produced as a witness either against or for her husband for that it might be a cause of implacable discord and dissention betwéen the husband and wife and a mean of great inconvenience Tender of marriage Co. ibid. 79 a. 3. 2 By the Statute of Westm 1. cap. 22. Tender of Mariage to an heir female before the age of fourtéen is void which is to be understood where the Lord may hold the land the two years after the 14 for within that time the Statute appointeth the tender but where the Lord cannot have the two years he may tender a marriage to the heir female at any time after the age of 12. and before 14. for so he might have done at the Common Law Frankmarriage Frankalmoâ—gn Co. ibid. 97. a. 4. Littl. §. 138. 3 An Argument drawn from inconvenience is forcible in Law and the Law that is the perfection of Reason cannot suffer any thing which is inconvenient And therefore the Law saith It is better to suffer a mischief viz. peculiar to one than an inconvenience that may prejudice many Frankmarriage is so called because it ought to be fréed of all service to the donor until the fourth degree be past yet the tenant in Frankmarriage shall make fealty to the donor for it were inconvenient that he should hold land and do no service at all for it So likewise tenant in Frankalmoign albeit he be fréed from all temporal service yet he shall say divine service for his Lord for it were inconvenient that he should do no service at all for the land he holds of his Lord. All land holden Co. ibid. 98. a. 1. 4 If an Abbot holds in Frankalmoign and he and the Covent under their Common Seal alien the land to a Lay-man In this case the secular man shall make fealty albeit the Alienors held not by fealty nor any terrene service but only by Spiritual services and those uncertain for in such case the Law createth a new Temporal service out of the land to be done by the Alienee wherewith the Abbot was not formerly charged
facias issue out to summon the Iury they ought to be tried all together but if they in subtilty make several Challenges so as there cannot be left a full Iury the Clerk may sever the panel for otherwise upon sleight and subtilty they might evade the tryal Co. l. 4. 22. b. in the cases of Copyholds 36 Albeit the estate and interest of a Copyholder upon descent vesteth in him by force of the Custom of the Manor Copyhold yet in pleading the Law doth allow him to allege before admittance his ancestors admittance after admittance his own as a grant and this is so permitted him by the Law to avoid an inconvenience which otherwise would necessarily follow for if the Copyholder in pleading should be compelled to shew the first grant he would be at a loss in doing that because if the grant were before time of memory then is it not pleadable or if it were within time of memory then would the custom fail for which cause the Law hath allowed the Copyholder in pleading to allege any admittance as a grant either upon a descent or a surrender rather than to force him to plead that which may tend to his prejudice although in rei veritate he is in by the Custom and not by any grant Dyer 218 3. 5 Eliz. Fortescue against Strode 37 The condition of an obligation was Unreasonable condition that the obligor upon request should do all acts which to the Councel of the obligee should seem reasonable for the releasing of an obligation in which the obligee stood bound to the obligor hereupon request was made to seal a release of all demands to the obligee and one M. and averment that there was no other matter betwixt them but makes no mention of M. And this request was adjudged unreasonable albeit there were no matter betwixt the obligee and M. Dyer 262. 31. 9 Eliz. 38 Regularly Felo de se all the personal estate of a Felo de se is forfeited to the King yet if such a felon had due unto him a debt upon a simple contract without specialty it shall not be forfeited to the King because then the party should be rebutted from waging his Law which he might do against a common person 39 Vide Hob. 3 Pincombe against Rudge A warranty may be sued by way of Covenant 133. Allen and Walter for summons in Dower Hob. 91. Sir Tho. Packerings case 40 If an office be found only in one County of all the lands lying as well in other Counties as there which in Law is no office Offices but only for the proper County yet this by the Court of Wards was allowed as an office to all to ground a charge and process upon for that it was beneficial to the Subject who else by divers offices would have been put to an intollerable charge c. 185 Nemo bis punitur pro eodem delicto Appâ—al Indictment 1 Wetherol brings an appeal of murder against Darley Co. l. 4 40. a. 3. Darleys case the defendant pleads not guilty and he was found guilty of Homicide and had his Clergy And afterwards he was indicted of murder and thereupon arraigned at the Quéens sute and he pleads the former conviction in the appeal at the sute of the party And it was adjudged a good barr and thereupon he was discharged for it was a good barr at the Common Law and not restrained by any Statute And the reason thereof is because the life of a man shall not be twice put in jeopardy for one and the same offence Barr in mayhem 2 Hudson brings an appeal of Mayhem against Lee Co l. 4. 43. a. Lees case the defendant pleads that the plaintif had before brought an action of trespass in the Common Bench against him of assault battery and wounding and thereupon had recovered against him 200 Marks damages and 10 s. costs which were satisfied before the appeal brought and farther averred that the battery and wounding in the trespass the mayhem in the appeal were all one and not divers whereupon the plaintif demurrs And it was resolved per totam Curiam that the barr was good for albeit it was alleged that an appeal of mayhem being an action of an higher nature than an action of trespass could not be barred by it yet because in the appeal the plaintif was but to recover damages as he had done before in the action of trespass he shall not be twice satisfied nor the defendant twice punished for one and the same thing Vide 41 Ass pl. 16. 2 R. 3. 14. Action sur case Barr in debt 3 Recovery or Barr in an action upon the case sur assumpsit is a good barr in an action of debt brought upon the same contract Co. l. 4. 94. b. Slades case And vice versâ Recovery or barr in an action of debt is a good barr in an action upon the case sur assumpsit because in such an action upon the case he shall not only recover damages for the special loss which he hath if any be but likewise for the whole debt and reason will not permit that the defendant should satisfie one debt or duty twice Vide 12 E. 2. 13. a. 2 R 3. 14. 38 H. 8. Br. Action sur le case 105. Bis idem exigi bona fides non patitur in satisfactionibus non permittitur amplius fieri quod semel factum est Covenant 4 A. covenants with two and cum quolibet eorum Co. l. 5. 19. a 3. Slingsbies case in this case they cannot sue severally unless their Interests be several for their Interests and the Covenant must accord otherwise the covenantor may be twice charged for one and the same thing and therefore these words cum quolibet eorum are in such case but words of amplification and abundance and cannot sever the joynt cause of action In like manner one cannot be bound to many joyntly and severally for albeit authority may be so given as to two vel cuilibet eorum to give livery c. yet interest cannot causâ qua suprâ Trover 5 In an action of Trover and Conversion brought in the Exchequer by bill the defendant pleads that the plaintif had an action of Trover Co. l. 5. 61. a. 3. Sparries case c. for the same goods then depending in the K. B. and demands Iudgement of the Bill whereunto the plaintif demurrs and it was resolved by the Barons that the Bill should abate and one of the reasons thereof was this that the defendant should not be twice vexed for one and the same thing Nemo debet bis vexari si constat Curiae quod sit pro una et eadem causa Nusance 6 A man shall not have an action upon the case for a nusance levyed in the high way for it is a common nusance Co. l. 5. 73. a. 4. in Williams case and
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
Copyholders holding of a Manor parcel of the Rectory the Court granted a Prohibition to prevent further waste Hâ—b 62. Paâ—row Lâ—wâ—llyn 33 The privat delivery of defamatory Letters was criminal and censurable in the Starr-chamber and now as it seems Star-chamber inditable in the Upper Bench because such quarrellous Letters tend to the breach of the peace and to the stirring of Challenges and quarrels and therefore the means of such evils as well as the end are to be prevented 187 It moderateth the strictness of the Law it self Co. I st part 1 13. â— 1. 1 A Protection Moraturae or Profecturae have these clauses in them Protection Praesentibus minimè valituris si contingat ipsum c. a custodia Castri praedicti recedere Or si contingat iter illud non accipere vel infra illum terminum a partibus transmarinis redire according to the provision of the Statute of 13 R. 2. 16. nevertheless if he return into England and came over to provide Munition Habiliments of warr victuals or other necessaries it is no breach of the said conditional clauses nor against the said Act for that in judgement of Law coming for such things as are of necessity for the maintenance of the warre Moratur he doth stay according to the intention of the Protection and Statute aforesaid Annuity 2 If A. be seised of lands Co. ibid. 144. b. 2. and he and B. grant a rent charge to one in fée this prima facie seems to be the grant of A. and the confirmation of B. but yet the grantee may have a writ of annuity against both Howbeit if two men grant an annuity of 20 l. per annum to another although the persons be several yet he shall have but one annuity but if the grant be Obligamus nos et utrumque vestrum the grantee may have a writ of annuity against either of them but he shall have but one satisfaction Iudgement 3 An action of trespass was brought against Tilly and Woody for five boxes with charters taken c. Tilly pleads not guilty H. 7. E. 4. fol. 31. Title Judgement 50 Pl. Co. 66. b. 3. Dyve and Maningham and Woody makes title to him by a gift and the plaintif traverseth the gift and thereupon they were at issue and Tilly was found guilty and the issue was found for Woody against the plaintif In this case albeit the issue was found against Tilly yet the plaintif had not judgement against him for it was found betwixt the plaintif and Woody that the plaintif had not title and then in as much as it appeared to the Iudges by the Record that the plaintif had not title they ex officio ought to give judgement against the plaintif The like 4 An action of trespass was brought by lessee for years of Cattel taken the defendant saith P. 10 E. 4. fol. 7. Title Office del Court 7. Br. 29. Pl. Co. ibid. that the Lessor held of him by divers services c. and for so much arrear he took the Cattel the plaintif saith there is nothing arrear c. and hereupon they were at issue and it was found for the plaintif And yet per totam Curiam the plaintif shall not have judgement for albeit the defendant admitted the writ good yet the Court did abate it because it appeared unto them that the defendant was Lord against whom an action of trespass lyeth not Marbr 3. for the Statute saith Non ideo puniatur dominus c. Appeal 5 In an appeal by a feme of the death of her father Pl. Co. ibid. albeit the defendant affirm the writ yet the Court ex officio ought to abate it for it appears to the Court that no feme may have an appeal of the death of any save of her husband by the Statute of Magna Carta cap. 34. which was in affirmance of the Common Law Non est fâ—ctuÌ„ 6 In debt upon an obligation Pl. Co. 66. b. 4. if the defendant conclude his plea with Iudgement si action whereas his plea should have been non est factum yet if the Iustices find that it was not his deed so as the plaintif had no cause of action they ought ex officio to give judgement against the Plaintif Vide 11. 9. Attaint 7 The Statute of 23 H. 8. 3. Dyer 201. 65. 3 El. â— of Attaints lyeth as well against executors as the party himself albeit the party that recovers upon the false verdict be only named in that Statute for that Statute being made in mitigation of the rigor of the Common Law shall be taken by equity and the words against the party that hath judgement are superfluous for it lyes against any that enjoyeth the thing lost 188 Verba semper accipienda sunt in mitiori sensu Slander 1 If one say to another that he is perjured Co. l. 4. 15. b. 1. in Stâ—nhop Blithes case or that he hath forsworn himself in such a Court by these words an action may be maintained for by these words it appears that he hath forsworn himself in a judicial proceeding but to charge another generally that he hath forsworn himself is not actionable because he may be forsworn in usual communication And benignior sententia in verbis generalibus seu dubiis est praeferenda Vide 178 11. Co. l. 4. 15. b. 3. in Yeamans case 2 Yeamans charged Hext being then a Iustice of Peace in these words For my ground in Allerton Hext seeks my life Slander These words being taken in mitiori sensu were not actionable 1. because he may seek his life lawfully upon just cause and his land may be holden of him 2. seeking of his life is too General and for seeking only no punishment can be inflicted by the Law Co. l 4. 17. b. 4. in Iames Rutleches case 3 In an action upon the case for words Slander as an Innuendo cannot make the person certain which was uncertain before so neither can an Innuendo alter the matter or sense of the words themselves as to say that such an one was full of the Pox innuendo the French Pox this Innuendo doth not perform his proper office for it strives to extend the general words the Pox to the French pox by Imagination of an Intent which is not apparent by any precedent words unto which the Innuendo may referr And the words themselves shall be taken in mitiori sensu Co. l. 4. 20. a. 1. in Barhams case 4 Barham brings an action upon the case against Nethershall Slander the words were these Mr. Barham did burn my barn innuendo a barn with corn with his own hands and none but he And it was adjudged that they were not actionable for it is not felony to burn a barn unles it be parcel of a Mansion-house or full of Corn And in this and the like
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
down a tree where the trees are not exempted this is an implyed determination of the will Lease at will for that it would otherwise be a wrong in the lessor to do it So if a man lease a Manor at will whereunto a Common is appendant and the lessor puts in his beasts to use the Common this is also a determination of the will for otherwise he should be a trespassor Co. ibid. 78. b. 2. 3 By common intendment a will shall not be supposed to be made by collusion for In facto quod se habet ad bonum malum A Will. magis de bono quam de malo lex intendit Co. ibid. 119. a. 3. Littl. §. 179. 4 If there be tenant for life of land the reversion in fee Villein a Villein purchase the reversion and the tenant for life attorns In this case the Lord may justifie to enter upon the Land and claim the reversion and yet shall be no trespassor to the tenant for life for the Law will make construction that he entred to make his claim and not to commit trespass The like Law is also of a reversion after an estate in tail Statute Merchant or Staple Elegit and for years and of the reversion of a Seigniory rent common and any other freehold or inheritance issuing out of any lands or tenements of another Co. ibid. 170. b. 4. If Partition be made by the two Barons in the life-time of their femes coperceners albeit such partition be unequal yet it is not void Pa râ—tion but voidable for it shall be déemed good and lawfull until it be defeated by the entry of either of the femes if she happen to survive her husband There is the like Law of an Infant copercener Co. ibid. 171 a. 4. for it remains good if he defeat it not at his full age Feoffment upon condition 6 If a feoffment be made by deed poll upon condition Littl. §. 376. Co. ibid. 232. and the feoffor haps the deed poll and afterwards the condition is broken wherupon the feoffor re-enters In this case having the deed en poigne albeit it doth not properly appertain to him but to the feoffée yet he may make use of the deed and thereby plead the condition in justification of his entry and title for it will be rather intended that he came to the déed by lawfull Joint trespass than by tortious means Littl. §. 3â—7 So if there be two joynt trespassors and the party trespassed releaseth to one of them In this case also if the other trespassor be sued and have the release en poigne he may plead it in discharge of the trespass causa qua supra Bastard 7 If the husband be within the 4. seas viz. within the Iurisdiction of the King of England if the wife hath issue Co. ibid. 144. a. 2. no proof is to be admitted to prove the Child a Bastard for the question being whether he is legitimate or no the Law will rather deem him legitimate than Proles spurius a bastard And in this case Filiatio non potest probari The like 8 If a man hath issue two daughters the eldest being a Bastard Co. ibid. 244. a. 4. and they enter and enjoy the land peaceably together Here the Law in favour of legitimation will not adjudge the whole possession in the Mulier who indeed hath the only right but in both so as if the Bastard hath issue and dieth her issue shall inherit And in the same case if both daughters enter and make partition this partition shall bind the Mulier for ever The like 9 If the Bastard invite the Mulier to see his house Co. ibid. 245. a. 2. and to see pictures c. or to dine with him or to hawk hunt or sport with him or such like upon the land descended and the Mulier cometh upon the land accordingly this is no interruption because he came in by the consent of the Bastard and therefore the Law will not adjudge the coming upon the land in such case to be any trespass but if the Mulier cometh upon the ground upon his own head and cutteth down a tree or diggeth the soil or take any profit these shall be interruptions For rather than the Bastard shall punish him in an action of trespas the act shall amount in Law to an entry because he hath a right of Entry so it is if the Mulier put any of his Cattel into the ground or command another to do it these do amount to an entry for albeit in these cases the Mulier doth not use any express words of Entry yet these and such like acts do without any words amount in Law to an Entry for acts without words may make an Entry but words without an act viz. Entry into the land c. cannot make an Entry Vide infra 28. M scon inuance 10 If one process be awarded instead of another or a day is given which is not legal this is a miscontinuance of the sute Co. ibid. 325. a. 4. and if the tenant or defendant make default it is good cause of Error but if he appear then is the Miscontinuance salved for albeit in truth his appearance is not legal yet when he appears the Law shall construe it to be lawfull because there is a sute depending against him in Court Dâ—scontinuance of estates 11 If there be tenant for life the remainder in tail Co. ibid. 332 a. 4. and he in the remainder grants it to another in fee by deed and the tenant for life attorns this is no discontinuance of the remainder in tail So it is likewise of a rent charge Advowson in gross Common in gross or the like for the Rule is that a grant by deed of such things as do lie in grant and not in livery of seisin do work no discontinuance and the reason is because the Law makes construction that of such things the grant of tenant in tail worketh no wrong either to the issue in tail or to him in reversion or remainder for in such case the Law adjudged nothing to pass from the tenant in tail but that which he may lawfully grant viz. an estate for his own life Co. ibid. 335. a. 2. 12 If tenant for life make a lease for his own life to the lessor the remainder to the lessor and a stranger in fée Surrender Forfeiture In this case for as much as the limitation should work a wrong by construction of Law it rather inureth to the lessor as a surrender for the one moiety and a forfeiture as to the remainder of the stranger for he cannot give to the lessor that which he had before and as to the remainder to the stranger it is a forfeiture for his moiety and when the lessor entreth he shall take benefit thereof Co. Inst part 1. 381. b. 1. 13 The words of an Act
time out of mind and so hath held in severalty there that proves that it was but in nature of Shack originally because of Vicinage and so continues And therefore in such case he may inclose and keep it in severalty and seclude himself from having Shack with the rest of the Commoners Antient Demesn 13 Lands in antient demesn Dyer 72. b 4. 6 E. 6. which were partable between heirs male were aliened by fine levied at the Common Law nevertheless it seemed to be the better opinion that hereby the course of the Inheritance was not altered and made descendable at the Common Law but that they shall still remain partable as before Custom unreasonable 14 A Custom Dyer 199. 58. 3 Eliz. that the Lord of a Manor hath used to have the best beast of his tenant there dying and if such beast be eloigned before seisure that then the Lord hath used to take the best Beast of any other levant and couchant within the said tenure was adjudged void for the unreasonableness thereof Vide 3 4 Eliz. Rot. 1496. Lands in London 15 Lands in London may be bargained and sold in London by paroll without Indenture or enrollment Dyer 229. 50. 6 Eliz. as before the Statute of 27 H. 8. and this by a Proviso in the same Statute Chilborns case Custom 16 A Custom was alleged Dyer 357. 46 19 Eliz. that the tenant in fée could not make a lease for above six years and it was adjudged a void custom because repugnant to fée and unreasonable Salfords case Co ps 17 A Custom for the Incumbent or Churchwardens of a Parish to be paid for the burial of a Corps of one who is no parishioner Ho. 175. The Lady Ferâ—ars case but only passing that way by accident lodging in an Inne or other lodging or the like is an unreasonable custom and void 207 Licet Consuetudo sit magnae Authoritatis Nunquam tamen Praejudicat manifestae veritati Co. l. 4. 18. a. 1. Oxford and Crosses case 1 The plaintifs bring an action in London Slander for that the defendant called the wife of the plaintif Whore the defendant removes it by habeas corpus into the Kings Bench and it was moved to have a Procedendo to remand it because the action was maintainable in London for the said words but not at the Common Law Howbeit the Procedendo was denyed per per totam Curiam for such a Custom to maintain actions for such brabling words is against Law Licet Consuetudo c. Co. l. 6. 6. b. 1. Sir John Molins case 2 Ed. 3. Lord an Abbot Mesne Records the tenant is attainted of Treason the King grants to Sir John Molins to be holden of him and other chief Lords of the fee by the services c. In this case the Mesnalty is revived and albeit divers Offices licences and other Records were produced to prove the Kings immediate tenure yet the Barons before whom that cause depended said in as much as by construction of Law upon the Letters Patents it appeared that there was no immediate tenure in the King albeit it had been otherwise found in offices or admitted in licenses or other Records yet that could not alter the true tenure which originally appeared to them as Iudges upon Record And it was then also said Licet consuetudo c. Co. l. 11. 75. a. 2. in Magdalen College case 3 In Magdalen College case in the 11 Rep. Grants by Ecclesiastical persons Stat. 13 El. 10 where the Master and Fellows of that College had granted to Queen Eliz her heirs and successors an house in London with proviso that if she did not regrant it within some short time to Bened. Spinola and his heirs that then the grant to her should be void with intent thereby to defraud the Statute of 13 Eliz. 10. it was objected that since that Statute there had been a great number of such grants made by Masters and Fellows of Colleges Deans and Chapters Masters of Hospitals c Howbeit to this it was answered that such grants had been made rather ex consuetudine Clericorum who imitated presidents of such grants made before that Statute than by the sage advice of men learned in the Law and Multitudo errantium non parit errori Patrocinium F. N. B. 118. c. 4 It appears by the Register Accompt Prison that if a man be found in arrearages upon his accompt and the plaintif arrests him in London for those arrearages that then the plaintif may sue forth a writ in Chancery directed to the Sheriff rehearsing this matter and commanding the Sheriff to detain the Accomptant safe in prison until he hath paid the arrerages And it seems also upon the same reason that if a man sue forth a writ of debt upon arrearages of accompt before Auditors and hath the party attached c. that he may have a writ out of the Chancery directed to the Sheriff to keep him in prison until he hath satisfied the arrearages but it seemeth to Fitzherbert that such a writ cannot stand with Law which shall command a man to be kept in prison before he shall have answered to the sute commenced against him 5 Hob. 17. Dr. James his case concerning holding the Court of Audience in the Borough of Southwark which is within the Iurisdiction of the Bishop of Winchester 208 Husband and wife are one Person And therefore Rebutter 1 If a feme heir of a disseisor enfeoff me with warranty Co. Inst pars 1. 365. b. 3. and then marry with the disseisee if after the disseisee bring a praecipe against me I shall rebutt him in respect of the warranty of his wife and yet he demandeth the land in another right So likewise if the husband and wife demand the right of the wife a warranty of the collateral ancestor of the husband shall barr them because the husband and wife are one person in Law Protection And for the same reason it is Co. ibid. 130. a. b. 1. F. N. B. 116. 1. that a protection for the husband shall serve also for the wife Conspiracy 2 A writ of Conspiracy must be brought against two at least for if there be such occasion of action only against one an action upon the case lyeth for the falshood and deceit because one cannot conspire with himself and therefore a writ of Conspiracy for indicting the plaintif of felony lyeth not against Baron and feme only because they are but one person but it may lie against Baron and feme and a third person Accompt 3 In an action of accompt receit made by the Baron by the hands of the feme is the Barons own receit F. N. B. 118 f. and both the writ and Count shall suppose that he received it himself without saying by the hands of the feme Debt Feme covert 4 If a man take
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