261. b. 29 In an action upon the case upon Assumpsit the Plaintiff counts Trial of a fact done in France that the defendant at London did assume that such a Ship should sail from Melcomb Reg. unto Abiville in France safely without violence c. and that the Ship sayling thitherwards was arrested by the King of France upon the River of Somme within the Kingdome of France c. And issue was joyned whither the ship was so arrested or not and before Wray Chief Justice in London it was found for the Plaintiff and in arrest of judgement it was moved that this issue arising méerly from a place which was out of the Realme could not be tried and that if it might be tried in England the trial should be by a Iury taken out of Melcomo because by common intendment they might be best acquainted with the arrest But it was resolved that although it be true that where the contract and the performance thereof are both of them done or to be done beyond sea there will want trial in our Law yet in this case the Assumpsit which is the ground and original cause of the action being made at London the trial thereof must of necessity be there also The like case was adjudged in P. 28. El. betwixt Hugh Gynue Plaintiff and Evangelist Constantine Defenaâ—t Co. 7. 6. a 4. Calvins case 30 It is neither Coelum nor Solum but Ligeantia and Obedientia One may be born in England and yet not within the Kings allegiance that make the subject borne for if enemies should come into the Realm and possesse a town or fort and have issue there that issue is no subject to the King of England although he be born upon his soile and under his meridian because he was not borne under the ligeance of a subject nor under the protection of the King c. And therefore when Stâ—phano Ferrara de Gama and Emanuel Lewes Tinoco two Portugals born comming into England under Qu. El. safe conduct and living here under her protection joyned with Doctor Lopez in treason within this Realme against her Majestie In that case two points were resolved 1 That their indictment ought to begin that they intended treason contra Dominam Reginam c. omitting these words naturalem Dominam suam and ought to conclude contra ligeantiae suae debitum But if an alien enemy come to invade this Realm and be taken in warre he cannot be indicted of treason for the indictment cannot conclude contra ligentiae suae debitum because he never was in the Kings Protection nor never owed any manner of ligeance unto him but malice and enmity And therefore such an alien enemy shall be put to death by Martial Law As it was in the case of Perkin Warbeck Anno 15 H. 7. who by the opinion of the Iudges was to be executed by Martial Law which was done accordingly Co. l. 7. 15. a. 3. Calvins case 31 Albeit since K. James tooke upon him the Crown of England A Postnatus cannot be noble in England without creation a Postnatus in Scotland or any of his posterity be the heir of a Nobleman of Scotland and by his birth is legitimated in England so that he may inherit Lande as well as a natural borne subject yet he is none of the Péers or Nobility of England For his natural ligeance and obedience due by the Law of nature maketh him a subject and no alien within England But that subjection maketh him not noble within England because Nobility had his first original by the Kings Creation and not of nature Co. l. 7. 2. a. 4. Bulwers case 32 Vide 3 E. 3. Tit. Assize 446. In debt if a man count of a lease Lease made of Land in another countrey for years in one County of land in another County he ought to bring his action in the County where the Lease was made and not where the land lies for the contract made by the Lease is the ground and cause of the action The action to be laid where the cause began 33 The Plaintiff counteth Co. ibid. 1. Bulwers case that H. H. recovered against him 20 l. in Banco and died before execution and that the Defendant deceptivè outlawed him after Iudgement in the name of H. H. and thereupon impâ—isoned him in Norfolke laying his action in that County where he was imprisoned whereupon the Defendant making objection that the action ought to have béen layd where the wrong did begin by the purchase of the cap. ad satisfact exigit cap. utlag viz. in London It was resolved that the action was well layd in Norfolke where the Imprisonment the most visible wrong was being indéed the chiefe ground and cause of the action Waste and a writ of right of ward to be brought in where the land lies 34 If a Lease be made in one County Co. ibid. 2. b. Bulwers case 14 E. 3. 3. and the land lies in another the action of wast shall be brought where the land lies and not where the Lease was made although the terme be past for the land and damages or damages onely for the wast which is local shall be recovered and are the ground and cause of the suit So also in all actions real if any issue arise upon the land 29 E 3. 3. 38 H. 6. 14. 22 R. 2. Breve 937. or in any action in which the possession of the land or a thing local or that which ariseth upon the land by reason thereof is to be recovered all these shall be brought in the County where the land lies As in a writ of right of ward of land or a writ of intrusion of ward they shall be brought in the County where the land lieth although the refusal or the Seigniory be in another County Likewise in a writ of right of ward of the body onely that shall be brought in the County where the land lies for it is in the right and sawours of the land 21 E. 3. 42. 30 E. 3. 25. 9 E. 3. 12 13. 10 E. 3. 7. But the writ of Ravishment of ward shall be brought where the Ravishment was and not where the land is or where the bodie is carried for that action is founded upon the Ravishment c. 36 H. 6. 14. 22 R. 2. Bre. 937. 12 Eliz. Dyer 289. Condition of Viciâ—age 35 If the Commons of the Town of A. and of the Town of B. are adjacent Co. l. 7. 5. b. 3. Sir Miles Corbets case and ought to have Common promiscuè the one with the other because of vicinage and within the Town of A. there are fifty arcres of Common and in the Town of B. 100 acres of Common In this case the Inhabitants of the Town of A. cannot put more cattle into their Common of 50 acres than it will well kéep without any respect at all to the Common within the Town of B.
cannot be defeated without entry and therefore by entry they ought to be made void Co. l. 7. 42. a. 3. in Beresfords case 2 Such an Exposition of a Déed must be made An entail good wiâ—â— menti 〈◊〉 the body â—â—gotten that all the parts thereof may well stand together and that withall it may stand with the rule of Law So if lands be given to the use of Aden and of the heirs male of the said Aden lawfully begotten and for default of such issue to the use of divers others in remainder c. Here albeit there wants the words of the bodie yet is this a good limitation of an estate taile For otherwise it would be against the intent of the Donor and all the remainders over would be void and if these words should be turned into Latine they ought to be rendred thus Et haeredum masculorum de praefato Adeno legitimè procreat and not haeredum masculorum praefati Adeni which is cléerly proved by the subsequent clause and for default of such issue c. For issue cannot be of Aden unlesse the words should be De dicto Adeno and so in this case the one clause is well expounded by the other c. Co. l. 8. 93. a. 1. in Frances case 3 In Replevin the Defendant avows for damage fesant The Plaiâ—â— plea in 〈◊〉 destroyed 〈◊〉 yet recoveâ— the Plaintiff pleads in Barre that the said lands were holden in soccage and that I. S. being thereof seised in fée by his last Will devised them unto him for sixty years if he should so long live c. Vnto which the Defendant pleads that it was true there was such a devise made but after the said devise I. S. enfeoffed certaine persons thereof to the use of the Plaintiff for sixty years if hee should so long live c. whereupon the Plaintiff demurs And in this case it was resolved that although it appeared that the title by which the Plaintiff claimed in his barre to the Avowry was utterly destroyed for the Plaintiff claims by the Will of I. S. which Will appears to be afterwards countermanded by the feoffment which the Avowant afterwards pleads and which the Plaintiff confesseth by his demurrer yet shall the Plaintiff have judgement because his Count is good and the Avowant in his replication to the barre of his Avowry hath done two things For first he hath destroyed the title which the Plaintiff made by the Will And again he hath given to the Plaintiff another title viz. to have the land for 60 years by force of the uses declared upon the feoffment And therefore in as much as upon the whole record according to which the Count ought to judge it plainly appears that the Plaintiff hath a lawful terme in the Lands and that the Defendant had taken his Cattel wrongfully for that cause judgement was given against the Avowant and for the Plaintiff albeit the title which the Plaintiff made for himself was destroyed c. â—etters Paâ—ents and Acts â—f Parliament â—est expoundâ—d by themâ—elves 4 The best Expositor of Letters Patents and Acts of Parliament Co. l. 8. 117. a. 4. in Doctor Bonhams case are the Letters Patents and the Acts of Parliament themselves by the construction and conference of all the parts together Optima statuti interpretatrix est omnibus particulis ejusdem inspectis ipsum statutum Et injustum est nisi tota lege inspecta una aliqua ejus particula proposita judicare vel respondere The count made good by the barre the barre by the replication c. 5 In Doctor Bonhams case in the eighth Report Co. l 8. 120. b. 1. in Doctor Bonhams case although it was admitted that the Plaintiffs replication was not material and the Defendants had demurred thereupon yet in as much as the Defendants had confessed in the barre that they had imprisoned the Plaintiff without cause the Plaintiff had judgement And this is the diversity there taken that when the Plaintiff replies and by his replication it appears that he hath no cause of action there he shall never have judgement but when the bar is insufficient in matter or amounts to a confession of the point in debate and the Plaintiff replies and shews the truth of his matter to enforce his case and in judgement of Law it is not material yet in that case shall the Plaintiff have judgement For 't is true that sometimes the Count shall be made good by the barre and sometimes the barre by the replication and sometimes the replication by the rejoynder c. Howbeit the diversity is that when the Count wants time place or other circumstance that may be made good by the barre so it is also of the bar replication c. as appears in 18 E. 4. 16. b. But when the Count wants substance no barre shall then make it good so likewise of a barre replication c. and with this agrées 6 E. 4. 2. Bone cas nota ibidem dictum Choke Vide 18 E. 3. 34. b. 44 E. 3. 7. a. 12 E. 4. 6. 6 H. 7. 10. 17 H. 7. 3. 11 H. 4. 24 c. But when the Plaintiff makes replication sur-rejoynder c. and thereby it appears that upon the whole record the Plaintiff had no cause of action he shall never have judgement albeit the barre rejoynder c. be insufficient in matter for the Court ought to make judgement upon the whole record and every one shall be intended to make the best of his own case Vide Riegeways case in the third Report 52. And these diversities were also resolved and adjudged between Kendal and Helier M. 25 26 Eliz. in B. R. and M. 29 30. in the same Court between Gallis and Burbry â—he like 6 Albeit the replication be insufficient Co. l. 8. 133. b. 1. in Turners case yet if the bar be also insufficient in matter upon the whole record the Plaintiff shall have judgement It is otherwise when by the replication it appears that the Plaintiff hath no cause of action for there the Plaintiff shall never have judgement although the barre be insufficient As in Debt upon an Obligation with condition to perform covenants in an Indenture the Defendant pleads performance of all the Covenants generally when it appears to the Court that divers of them are in the negative or disjunctive and so the plea in the general affirmative insufficient Yet if the Plaintiff reply and shew a breach of one of the Covenants which by his own shewing is no breach upon which the Defendant demurs judgement shall be given against the Plaintiff because upon the whole record it appears that the Plaintiff hath no cause of action For the Obligation is endorsed with condition to perform Covenants so that the Plaintiff hath no cause of action until there be a breach of Covenant and by the shewing of the Plaintiff himself there is not any breach sufficient in
Law to give him cause of action and it is alwayes intended that every one will shew the best of his case c. But when the barre of the Defendant is insufficient in substance and the Plaintiff replies and shews the truth of his case whereby he produceth no matter against himself but matter explanatory or peradventure not material there the Court shall judge upon the whole record and the Count being good for insufficiency of the Barre without any regard to the replication judgement shall be given for the Plaintiff As if a man plead a grant by Letters Patents in Barre which are not sufficient the Plaintiff by replication sheweth another clause in the said Letters Patents which clause is not material the Defendant demurers in Law In this case judgement shall be given against the Defendant sic in simililibus Co. l. 8. 163. a. 3. in Black-amors case 7 Among the misprisions remedilesse by the Statutes made for the amendment of records this is one Misprisions 〈◊〉 Clerks that albeit the verdict upon issue tryed be given for the Plaintiff yet if upon the whole record it appears to the Court that the Plaintiff hath no cause of Action he shall never have judgement and so it hath béen often adjudged Co. l. 9. 53. a. 2. in Hickmots case 8 In debt upon an Obligation A release pleaded wiâ—â— exception the Defendant pleads a release of the Plaintiff c. which was in this manner A. doth acknowledge himselfe satisfied and discharged of all bonds debts c. made by B. the Defendant and it is agreed that A. shall deliver all such bonds as he hath yet undelivered unto B. except one bond of 40 l. not yet due wherein B. and C. stand bound to A. c. The Plaintiff replies that the obligation excepted and the obligation in Curia prolata are one and the same whereupon the Defendant demurres And in this case it was resolved that the exception extended to all the premisses because all the words before make but one intire sentence and the one depends upon the other For it is reason that when Bonds are satisfied that they should be delivered and exceptio semper ultimò ponenda est It was also reason that this bond of 40 l. should be excepted because it was not due when the release was made c. Co. l. 10. 99. b. 3. in Beawfages case 9 M. 10. Jac. upon a motion at the Barre it was resolved Bond taken by the Sheâ—â—â—â— not within 〈◊〉 the Statute 〈◊〉 23 H. 6. that an obligation to the Sheriff upon a Fieri facias for the payment of the money in Court c. was not void by the Statute of 23 H. 6. cap. 10. For the first branch of that Statute is that he shall let to baile by Writ or Bill c. which he could not do before as appears 19 H. 6. 43. The second shews the form of the body c. The third contains a penalty that if the Sheriff take an obligation in any other form c. than is there prescribed that it shall be voyd so that upon consideration of all the branches together and upon their coherence and dependance one upon another it plainly appears that the said Statute doth extend onely to obligations of such as are within their guard and custody and not otherwise Co. l. 10. 138. b 1 in Chester Mills case 10 Always such construction ought to be made of an Act af Parliament that one part thereof may agrée with the rest Exposition an Act. and that all may stand well together c. Co. l. 11. 44. a. 4 in Richard Godfreys case 11 The Iustices shall assesse the Fines of Copiholders upon the due consideration of all circumstances Copihold Fines Quà m rationabilis debet esse finis non definitur sed omnibus circumstantiis inspectis pendet ex Justiciariorum discretione And so it was adjudged in Communi Banco Inter Stallon Plaintiff and Brady Defendant P. 9. Jac. 1845. Rot. Co. l. 5. 79. b. in Fitz-herberts case 12 Tenant for life Warranty that comâ—ceth by dâ—sin the remainder to his sonne and heire apparent in taile by covin and agréement betwixt him and A. and B. to the intent to barre his son of his remainder by a collateral warranty makes a lease for years to A. who makes feoffment in fée to B. to whom the father releaseth with warranty and all this is by covin and consent betwixt the parties to the intent aforesaid After this the father dies and the warranty descends upon the sonne being then of full age Resolved per totam curiam that this warranty shall not barre the sonne because the feoffment of the Lessée for years is disseisin and the father himselfe is particeps Criminis and agréeing thereunto then albeit the release with warranty is made after the disseisin yet in as much as the disseisin was to such an intent and purpose the Law will adjudge upon the whole Act as it is agréed in 19 H. 8. 12. If a man disseise another with intent to make feoffment with warranty albeit he make the feoffment twenty years after the disseisin yet the Law will adjudge upon the whole act and the disseisin and warranty shall be coupled together according to the intent of the parties and therefore in such case the law will adjuge the warranty to begin by disseisin albeit they are made at several timâ—s So if a man make a lease of lands in two several Counties reserving an intire rent abeit the livâ—ry be made at several times first in one County and then in another yet the rent is issuing out of the lands in both Counties So likewise if a man make a charter of feoffment of certain lands with warranty and deliver the déed and after make livery of the land secundum formam cartae Here also the Law will adjudge upon the whole act and albeit the déed be delivered at one time and the livery of the land at another time and although a warranty ought to enure upon an estate yet upon the whole matter the warranty is good Eldest childe 13 The use of a recovery was limited by a Latin déed to the use of H. viz. he against whom the recovery was had for life Dyer 337. 36. 16 Eliz. the remainder Seniori puero de corpore H. in taile c. Afterwards H. covenants by an English Indenture to levy a fine to the use aforesaid wherein the use was limited to the use of the eldest child of the bodie of H. c. H. hath issue two children whereof the elder was a daughter and the younger a sonne And in this case it was adjudged that the daughter should have the land for albeit the word puero be indifferent to each sex and then the Male for dignity should be preferred yet because the English indenture hath declared the construction to be the eldest child the daughter shall have
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 〈◊〉
forma is material So if a feofment be pleaded by déed and it is traversed absque hoc quod feoffavit modo forma upon this collateral Issue modo forma are so essential that the Iury cannot find a feofment without déed 8 Lord and Tenant by fealty onely and the Lord distraines the Tenant for Rent Litt. §. 484. Modo forma Lord and Tâ—nant the Tenant brings an Action of Trespass against the Lord for his cattle so taken and the Lord pleads that the Tenant holds of him by fealty and certain Rent and for the Rent he distrained c. And the Tenant saith that he holds not of him modo forma as he supposeth and thereupon they are at Issue and it is found by Verdict that he holds of him per fidelitatem tantum In this Case the writ shall abate and yet he held not of the Lord in manner as the Lord had alleadged But the matter of the Issue being found viz that the Tenant holds of him that sufficeth to abate the writ albeit the Lord distraine the Tenant for other services then are due Co. ib. 282. a. 1. 9 If A. be appealed or indicted of Murder Modo forma Murder Manslaughter viz. that he of malice prepensed killed B. A. pleads that he is not guilty modo forma yet the Iury may find the Defendant guilty of man-slaughter without malice prepensed because the killing of B. is the matter and malice prepensed is but a Circumstance Co. ib. a. 2. 10 In Assise of darrien presentment Darrien presentment if the Plaintiffe alleadge the avoydance of the Church by privation and the Iury find the voydance by death the Plaintiffe shall have judgement for the manner of the voydance is not the title of the Plaintiffe but the voydance is the matter c. Co. ibid. a. 3. 11 If a Guardian of an Hospital bring an Assise against the Ordinary he pleadeth Deprivation ab Ordinary as Patron that in his visitation he deprived him as Ordinary whereupon Issue is taken and it is found that he deprived him as Patron yet the Ordinary shall have judgement for the deprivation is the substance of the matter Co. ib. 282. a. 3 12 The Lessée covenants with the Lessor not to cut downe any trées c. And binds himselfe in a bond of 40 pounds for performance of covenants the Lessée cuts downe ten trées Breach of covenant the Lessor bringeth an Action of debt upon the bond and assigneth a breach that the Lessée hath cut downe 20 trées whereupon Issue is joyned and the Iury finds that the Lessée cut down ten yet judgement shall be given for the Plaintiffe For sufficient matter of the Issue is found for the Plaintiffe Litt. §. 485. Co. ibid. 282. a. 4. c. 13 In a writ of Trespass for battery or for goods caried away In actions transitory the place must not be traversed if the Defendant plead not guilty in the manner as the Plaintiffe supposeth and it is found that the Defendant is guilty in another towne or at another day then the Plaintiffe supposeth yet he shall recover For in Actions brought for things transitory the wrong being done in one towne the Plaintiffe may not onely alleadge it in another towne but also in another County and the Iurors upon not guilty pleaded are bound to find for the Plaintiffe Neither can the assault battery taking of goods c. alleadged in another County be traversed without special cause of justification which extendeth to some certain place as if a Constable of a Towne in another County arrest the body of a man that breakeeh the peace there he may traverse the County Howbeit he must not stay there but must say farther and all other places saving in the towne whereof he is Constable So it is also in an Action for taking of goods for in that Case also if the Defendant justifie for damage feasant in another County he may traverse as before But where the cause of the justification is not restrained to a certain place which is so local that it cannot be alleadged in any other towne as in the Cases before alleadged and the like then albeit the Action be brought in a forraigne County yet he must alleadge his justification in the County where the Action is brought As if a man be beaten in the County of Middelsex and he bringeth his Action in the County Buck. the Defendant cannot plead that the Plaintiffe assaulted him in the County of Middelsex c. and traverse the County but he must plead his justification in the County of Buck. for that the cause of his justification is good in any place So it is likewise in Case of Bailement of goods and other Cases for transitory things as for example In an Action upon the Case the Plaintiffe declared for speaking of slanderous words which is transitory and layd the words to be spoken in London the Defendant pleaded a concord for speaking of words in all the Counties of England saving in London and traversed the speaking of the words in London the Plaintiffe in his replication denied the concord whereupon the Defendant demurred and judgement was given for the Plaintiffe for the Court said that if the concord in that Case should not be traversed it would follow that by a new and subtile invention of pleading an ancient principle in Law that for transitory causes of Action the Plaintife might alleadge the same in what place or County he would should be subverted which ought not to be suffered And therefore the Iudges of both Courts allowed a traverse upon a traverse in that Case c. Now the ground that ruleth all these Cases is this because the Law respects more the cause of the Action which is the substance of the suit then the place where the Act was done which is but circumstance c. â—ubstance cerâ—ainely alâ—eadged conâ—yance not 14 That which is alledged by way of conveyance or inducement to the substance of the matter néed not to be so certainely alleadged Co. ib. 303. a. 4. as that which is the substance it selfe And where a matter of Record is the foundation or ground of the suit of the Plaintiffe or of the substance of the plea there it ought to be certainly and truly alleadged otherwise it is where it is but conveyance because that is but circumstance c. â—ea insufficiâ—â— 15 When a Count barre replication Co. l. 8. 133. b. 1. Turners Case c. is defective in respect of omission of some circumstance as time place c. there it may be made good by the plea of the adverse party but if it be insufficient in matter and substance it cannot be salved Co. l. 8. 120. b. D. Bouch. Case â—â—cient pleaâ—â—ngs 16 In the Raignes of E. 2. E. 1. and upwards Co. ib. 303. b. a Co-l 7 25. a in Buts Case Co. ib.
his Office is to determine secundum allegata probata and the duty is to acquaint him with their grievances and with all the Causes of their differences which if they or either of them omit to do the Law presumes it is for their own advantage to conceal them And therefore such Concealment shall not annul the award that is made albeit it be made onely of part Co. l. 8. 120 b. 3. in Doctor Bonhams Case 24 It is presumed that every one will make the best of his own Case And therefore in any suit or action Pleading when the Plaintiff makes Replication Surrender c. whereby it appeares that upon the whole Record the Plaintiff hath no cause of Action he shall never have Iudgment albeit the Barre Rejoynder c. be insufficient in Matter for the Court ought to judge upon the whole Record and will suppose that the Plaintiff hath managed his own Cause as well as he can Co. l. 8 133. a. 4. in Turners Case So in an Action of Debt brought against an Executor he pleads two Recoveries against him in a Court of Record which amount to the whole in his hand but sheweth not that the Corporation had jurisdiction to hold Court either by Prescription or by Patent And it did also appear by the Count in that Court that the Action of Debt was brought for 100 l. without mentioning any Obligation and therefore it was to be intended that there was no Obligation and then the Executor was not chargeable in an action of Debt upon a single Contract And in this Case albeit the Defendant in his Barre acknowledged that the Debt was by Obligation yet that shall not make the Count good which the Law presumes the Plaintiff hath made as full as he could Co. ibid. b. 2. 25 In Debt upon an Obligation with Condition to perform Covenants in an Indenture Pleading the Defendant pleads performance of all the Covenants generally and it appeares to the Court that divers of them are in the Negative or Disjunctive and so the Plea being in the general Affirmative is insufficient yet if the Plaintiff reply and shew a breach of one of the Covenants which by his own shewing is not any breach upon which the Defendant demurres In this Case judgment shall be given against the Plaintiff because upon the whole Record it appeares that the Plaintiff had no Cause of Action and it will be alwayes intended that every one will make the best of his own Cause Co. l. 8. 135. a. in Sir John Nedhams Case 6 In Debt to Administrators upon Administration committed by the Bishop of R. the Defendant pleads Administration committed to himselfe by the Arch-Bishop of Canterbury Administraâ—â—on because the Intestate had bona notabilia the Plaintiff replies that that Administration was repealed In this Case because the Defendant did not shew in his barre that the Intestate had bona notabilia in certaine It shall be intended that he had not bona notabilia in divers Diocesses yet the Administration committed by the B. of C. is not in this case void but onely voidable â—â—ving a 〈◊〉 27 It is not expected that Tenant by Statute or Elegit c. should a déed of the land because they come to the possession thereof by execution of Law and against the will of the terre-tenant Co. lib. â—â—4 b. 4. in Doctor Leyfeilds Case but Tenant by the courtesie ought to shew a release made to his wife for the law presumes he hath both that and her in his power 〈◊〉 Paâ—â—â—â—â— â—â—gestion 28 The suggestion of the party being inserted in Letters Patents raiseth alwayes suspicion Co. l. 10. 110. a. 2. c. in Legats Case because the Law presumes it is inserted to work him some advantage So if the King by his Letters Patents grant White-acre and Black-acre to I. S. with this clause quae quidem praemissa c. à nobis concelata detenta fuerunt c. This in judgement of Law is the suggestion of the Patentée and shall make the grant void So in 19 E. 3. tit Grant 58. the King by his Letters Patents grants licence to appropriate the Advowson of D. to the Prior of C. quae quidem advocatio non tenetur de nobis and in truth the Advowson was held mediately of the King here the licence was held void for the Booke saith the suggestion was falfe vide plus ibid. â—â—son 〈◊〉 Christian 29 If a Parson or Vicar hath a pension out of another Church F. N B. 51. B. and the pension is with-drawne or another parson takes or claimes it in this case the Parson or Vicar that ought to have may sue for it in the Court Christian and he shall not be stopped by a prohibition but shall have consultation Also upon the prescription he may have a writ of Annuity for it at his Election but if he once bring a writ of Annuity for it he shall never after sue for it in the Court Christian 〈◊〉 â—â—change 30 If the Baron exchange land and after die F. N. B. 149. n. if the Feme hath dower of the land taken in exchange she shall not have dower also of the land given in exchange â—â—â—t-charge â—â—â—y 31 Vpon grant of an Annuity out of land for yeares for life F.N.B. 152. a. or in fée which clause of distresse the grantée hath his Election if it be behind whether he will distraine or bring his writ of Annuity for it Howbeit if once he do either he is for ever after concluded for doing the other for the Law supposeth he will make choise of that which tends to his best advantage The time is â—im that 〈◊〉 benefit 32 Where a man is to have benefit upon an act Pl. 16. a. 4. in Fogassaes ca. which is first to be done by himselfe and no time is limited when it shall be done the Law saith that he may do it at his pleasure as if a man make a feofment upon Condition that if he pay the Mortgagée 20 l. that then he shall re-enter here in as much as no day of payment is limited the Mortgager may pay it when he pleaseth for he is to have the benefit viz. the land again So if one grant to another that when he shall take his daughter to wife he will give him 20 l. in this Case because no time is limited for the taking of his daughter to wife he may take her when he will So in Fogassaes Case in the Comentaries in as much as the payment of the subsidie was to be made unto the Collector upon the weying of the woad and a time is limited for the weying the Law referres the time thereof to the will of the Collector â—â—â—antages â—â—lected â—â—â—covin 33 In Wimbish and Tabbois Case in the Comentaries one argument to prove covin in the Feme there was Pl. 55. b. 2. in Vimbish
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
Church be void when the writ comes to the Bishop the Bishop is bound to admit his Clerk and it séemes also reason if the Patron after the six moneths present to the Bishop the Church being then void that the Bishop ought to present his Clerk in respect of the right that is in the Patron 31 If the King write to the Iustices to prorogue the Assise F.N.B. 153. h. because the defendant is in his service c. yet the Iustices ought to procéed and not to cease for that writ because it is for the advancement of Iustice and to do right â—â—e Judges 〈◊〉 to give â—â—â—eous â—â—ment 32 In Dive and Manninghams Case in the Commentaries Pl. Co. 66. b. 3. Dive and Manninghams Case 84. b. 4 in Partridges Case albeit the Defendant had pleaded Judgment si action whereas he ought to have pleaded non est factum Dive the Sheriffe having taken a bond of a man in execution to secure himselfe which was void by the expresse words of the Statute of 23 H. 6. 10. notwithstanding such default in right pleading the Iudges finding the Sheriffe to have no iust cause of action because that Statute made the bond cléerely void gave judgment against Dive the Plaintiffe So H. 7. E. 4. 31. Fitz. Title judgment 50. where an action of trespass was brought against Tâ—lly and Woddy for five boxes with writings taken c. Tilly pleads not guilty and Woddy makes title to him by a gift and the Plaintiffe traverseth the gift and upon these matters they were at issue and Tilly was found guilty and the issue was found for Woddy and against the Plaintiffe And here albeit the Issue was found against Tilly yet by the cléere opinion of the Court the Plaintiffe shall not have judgment against him for it was found betwixt the Plaintiffe and Woddy that the Plaintiffe had no title and therefore the Iudges ex officio ought to give judgment against him vide plus ibid. â—â—â—ter to 〈◊〉 and 〈◊〉 33 If land be given to Baron and Feme in special taile Co. Inst p. 1. 354. a. 3. and after the husband alien the land in fée and take backe an Estate to him and his wife for their lives in this Case the husband against his owne alienation if he had taken the estate to himselfe alone could not have béen remitted but when the estate is made to the husband and wife albeit they be but one person in law and no moities betwéen them yet for that the wife cannot be remitted in this case unlesse the husband be remitted also and for that remitters are much favoured in law because thereby the more ancient and better rights are restored again therefore in this case in judgment of law both husband and wife are remitted Co. ib. 194. a. 3 34 A release by the disseisée to one of the disseisors shall enable him to hold out his companion because they are in méerely by wrong A release to usurpation howbeit if two men do usurpe by a wrongfull presentation to a Church and their Clerk is admitted instituted and inducted and the rightful Patron release to one of them this shall enure to them both for that the usurpers came not in méerely by wrong but their Clerk is in by admission and institution which are Iudicial Acts and usurpation shall work a Remitter to one that hath a former right Co. ib. 297. a. 2 35 There is a diversity betwixt a bare assent without any right or interest and an assent coupled with a right or interest Attornment Confirmation and therefore an Attornment cannot be made for a time or upon Condition because that is a bare assent but if a Parson make a lease for 100 years the Patron and Ordinary may confirme 50 of those years for they have an interest and may charge in time of vacation so if a disseisor make a lease for 100 yeares the disseisor may confirm parcel of those years but then it must be by apt words for he must not confirme the lease or demise or the Estate of the Lessée because then the addition for parcel of the term would be repugnant when the whole was confirmed before but the confirmation must be of the land for part of the term c. Co. ib. 277. b. 4 36 If A. disseiseth B. to the use of C. and B. releaseth to A. this shall take away the agréement of C. to the disseisin because otherwise it should make him a wrong-doer so if the disseisor be disseised and the disseisée releaseth to the second disseisor this taketh away the right of the first disseisor had against the second for a relation of an Estate gained by wrong shall never defeat an Estate subsequent gained by right against a single opinion in 14 H. 8. 18. never seconded by any other since Hob. 13. Sir Daniel Nortons Case 37 If the Vnder-Sheriffe Covenant with the High Sheriffe Skeriffes that he will not serve executions of above 20 l. without his special warrant this Covenant is void because it is against Law and Iustice 142 That which is not tortious in it selfe cannot be tortious to any Co. lib. 11. 98. b. 1. in Edw. Seymers Case 1 If there be Tenant in taile Remainder in taile Remainder not devested the Reversion in in Fée to the Tenant in taile the Tenant in taile bargaines and sels the land and levies a Fine to the bargainée who enfeoffes I. S. in this Case by the feofment of the bargainée to I. S. the Remainder in tail is not displaced or put to a right for the bargainée had an Estate in Fée-simple determinable upon the death of the Tenant in taile without issue and when he made the feofment his determinable Fée-simple in possession and his absolute Fée-simple expectant upon the Estate taile in remainder did pass and did not devest the remainder for the feofment which is not tortious in it selfe cannot be tortious to another 143. Interest Reipublicae ne Curia Domini Regis deficeret in Justicia exhibenda A Letter of Attorney a Pâ—nnell 1. If a man make a Letter of Attorney to two to do any act Co. Inst pars 1. 181. b. 3. if one of them dye the survivor shall not do it but if a Venire facias be awarded to four Coroners to impannel and return a Iury and one of them dye yet the other shall execute and returne the same because this last is for the execution of justice Tenants is common shall joyne in Assize 2. If there be two Tenants in Common of 20 s. Rent Co. ibid. 197. a. b. a pound of Pepper or such like thing as will admit severance if they be arreare they shall bring several Assises for them because of their severall titles but if the Rent be an intire thing which cannot be severed or divided as an Hawke Horse or the like in such case they shall joyne in the
it till the debt be satisfied and therefore the discharge of the debt which is the cause dischargeth the execution which is the effect Co. ibid. 76. b. 3 6 If the tenant makes a feofment in fée of lands holden by Knights-service to the use of the feoffee and his heires The town performed the Wardship ceaseth untill the feoffor pay unto the feoffée or his heires an hundred pounds at a time and place limited The feoffée dieth his heire within age the Lord shall have the wardship of the body and lands of the heire of the feoffee but it shall be conditionally for he cannot have a more absolute interest in the wardship than the heire hath in the tenancie Therefore if the feoffor pay the money at the day and place and entreth into the land in this case the wardship both of the body and lands is divested because the Lord hath no absolute interest in either of them but that interest which he hath doth depend upon the performance or not performance of the condition Littl. § 103. Co. ibid. 78. b. 4 7 Littleton tells us that by the Statute of West 1. cap. 22. The Wardship of the body severed from the Land cannot have the benefit of the two years after 14. If an heire female be within the age of 14 yeares and not married at the time of the death of her ancestor then the Lord shall have the ward of the land holden of him untill her age of 16 yeares to the end within those two last years he may tender her convenient marriage yet in this case if the Lord before the age of 14 granteth over the wardship of the bodie the grantee thereof cannot enjoy the benefit of the two yeares because he cannot hold the land over and the Lord which hath the wardship of the land onely shall also lose the benefit of the two yeares because he hath the lands onely and cannot tender any mariage Therefore in this case the heire female shall enter into her land at her age of 14 yeares So if a tenant holdeth of one Lord by prioritie and of another by posteriority and dieth his heire female within the age of 14 years the Lord by posteriority shall have the lands but until her age of 14 yeares because the mariage belongeth not to him Also if the Lord marieth the heire female within the two yeares her husband and she shall presently after the mariage enter into the lands For cessante causa cessat effectus cessante ratione legis cessat beneficium legis Co. ibid. 102. b. 3. 202. b. 1. Co. ibid. 103. a. 3. Littl. Sect. 147. 8 Where there is Homage Ancestrel betwixt an Abbot and Covent and their tenant If that body be once dissolved Homage ancestrel after alienation gone though a new be founded of the same name and all the possessions be granted to them yet the Homage Ancestrel is gone So it is likewise if a man in his natural capacity holds by Homage Ancestrel and sells the land to another although he repurchase the land again yet is the Homage Ancestrel dissolved Co. ibid. 104. a. 4. 9 If Homage be due to be done by the tenant The Land being aliened the Homage is gone if the tenant alien the land to another the Alienor cannot be compelled to do Homage The delay being pardoned the amerciament is also gone 10 The cause of an amerciament in a plea real Co. Inst pars 1. 126. b. 4. a Plowd 401. Coles case 37 H. 6 21. Co. l. 5. 49. Vaughans Case personal or mixt where the King is to have no fine is for that the tenant or defendant ought to render the demand as he is commanded by the Kings writ the first day which if he do he shall not be amerced so that for the delay that the tenant or defendant doth use he shall be amerced And albeit the amerciament cannot be imposed nor the King fully intitled thereunto untill judgement be given because by the judgement the wrong is discerned yet a pardon before judgment shall after Iudgment given discharge the partie because the original cause viz. the delay c. is pardoned A wife after coverture a Niefe again 11 If a Niefe marry a frée-man Co. Inst pars 1 136. b. 2. 137. b. 3. she is priviledged during the coverture but not absolutely enfranchised for if her husband die she is a Niefe again No Juror after his land gone 12 If a Iuror after his returne selleth away his land or if he Co. ibid. 157. a. 1. 2. 272. b. 2. for whose life or his wife in whose right he holdeth it die or if an entry be made upon his land for a condition broken so as his frée-hold is determined in any of these cases he may be challenged for insufficiency of frée-hold for when his land is gone his feare to offend to have his lands wasted and the like c. which is one of the reasons of Law is also taken away No damage fesant out of the soil 13 If a man come to distrain for Damage fesant Co. ibid. 161. a. 3. Co. l. 9. 22. b. 4. Case of Avowrie Co. ibid. 164. a. 3. and sée the beasts in his soile and the owner chase them out on purpose before the distresse taken the owner of the soile cannot then distraine them and if he doth the owner of the cattle may rescue them for the beasts must be damage fesant at the time of the distresse Where coparceners shall join and relieve not 14 If one coparcener die her part shall descend to her issue and one praecipe shall lie against them and this is propter unitatem juris derived from one common Ancestor so if a man hath issue two daughters and is disseised and the daughters have issue and die the issues shall joyn in a praecipe likewise the issues of two coparceners which are in by several descents being disseised shall joyne in an Assise Howbeit in the same case if the two daughters had béen actually seised and had béen disseised after their deceases the issues shall not joyn because as to that purpose the unitas juris is severed for now several rights descended to them from several Ancestors and yet when they have severally recovered they are coparceners againe and one praecipe lyeth against them and release made by one of them to the other is good Frankmariage Hotchpot 15 If lands given in frank-mariage be impleaded Co. ibid. 177. b. 2. the tenant shall not have ayde against the other parcener but if she put the land into Hotchpot she shall have it for then the lands are become as other lands which descended from the common Ancestor Prescription or Custome extinct by interruption 16 If tenant by homage ancestrel maketh a feofment in fée upon Condition and entreth for the Condition broken Co. ibid. 202. b. 1. it shall be never holden by
accession of the estate for life Co. l. 8. 142. b. 1. in Doctor Druries case 47 If a man hath judgement in a Quare Imepedit Quare Iâ—â—dit Errour and hath a Writ to the Bishop and the Bishop refuseth to admit his Clerk Here the Plaintiff upon this collateral matter of refusall may have a Writ of Quare non admisit but if the Defendant reverse the Iudgement by a Writ of Error and after the Plaintiff in the Quare Impedit brings his Quare non admisit the Defendant may plead no such record and so bar the Plaintiff of bringing that Writ Vide 26 E. 3. fol. 75. per Wilby and Hill In like manner Execution Errour Escape if A. be taken by the Sheriffe in execution at the suit of B. upon an erroneous Iudgement and after make an escape and after the judgement is reversed by a Writ of Error the action upon the escape is lost c. Ibid. the principall case 48 If the return of an Exigent be erroneous Exigent â—â—neous the Outlawry which is grounded thereupon is erroneous also because the Writ of Exigent is the warrant by which they proceed to the Outlawry Vide Proctors case 5 Eliz. Dyer 223. Ibid. 143. b. 2. 38 H. 6. 4. 12. 49 One that had cause of priviledge in Banco is arrested in London Priviledge Supersedeâ— and delivers a Supersedias notwithstanding which the Recorder gives judgement and he is taken in execution and is thereupon removed in Banco by a Corpus cum causa And here because after the Supersedeas delivered there was a Nullity in the proceeding and judgement the Court without Writ of Error awarded that he should be discharged of the Execution c. Ibid. 143. a. 1. 50 If two Iudgements are given Two judgements The first dâ—feated and the last depends meerly upon the first as upon his foundation there if the first fundamental judgement be reversed by Writ of Error or Attaint the last which appears in the Record to depend upon it shall be reversed also as in Assise and Redisseisin so of a judgement upon the original and another judgment in a Scire facias so also of a judgement against the Tenant and another against a Vouchee and the like c. Conusee of a Statute 51 The Conusee of a Statute Staple in a writ of Detinue of the same Statute upon garnishment recovers by erroneous Iudgement against the Garnisee and hath the Statute delivered unto him Ibid. 142. b. 7 H. 6. 4â— a. the Garnisée brings a writ of Error Garnishment and the Conusee sues execution upon the Statute and hath it Here albeit the Garnisee reverse the judgement yet inasmuch as the Statute was executed that execution shall not be avoided by the reversall of the judgement because the judgement was onely to have the Statute delivered Judgement Execution and the Execution upon the Statute is a thing executed not at all depending upon the judgement And yet in this case by the opinion of Coke Chiefe Iustice the Garnisee shall have remedy upon the reversal of the judgement by an Audita quaerela Audita Quaerela because the cause and ground of the Collateral Action is disproved and annulled by the reversall of the first judgement and the first Plaintiff restored to his first action upon which he may have his first and due remedie Executors have execution The Will annulled 52 Executors have judgement in account Ibid. 143. b. 4. per Coke chief Justice and for the arrerages have the Defendant in execution and afterwards the Testament was annulled because the Testator was an Idiot and the Record spirituall was removed into the Chancery by Writ and then sent into the Kings Bench where the Action was brought And hereupon the Defendant brought an Audita quaerela Audita Quaerela for that the Testament was disproved and it was resolved in the Exchequer Chamber an 35 H. 8. that the Audita quaerela would well lie A Melius Inquirend erroneous 53 It was found by Mandamus 2 Jac. that P. S. held the Mannor of O. in Soccage of Qu Co. l. 8. 168. a. Paris Slaughters case Eliz. as of her Mannor of N. In 7 Jac. a Melius Inquirendum was awarded reciting the former office to enquire whether the Mannor of O. at the time of the death of P. S. was holden of the King in Capite c. whereupon an office was found that at the time of the death of P. S. the said Mannor of O. was holden of Qu Eliz. by Knight service as of her Mannor of N. and that at the taking of the inquisition it was holden of the King c. In this case the Melius was repugnant in it selfe because it was impossible for the Iury to finde the Mannor holden of King James at the death of P. S. which was in the fourth year of Qu Eliz. for then it must needs be holden of the Queen King James being then King of Scotland c. Now therefore albeit the Iury by the Inquisition had rightly found the tenure of the Mannor and that their finding thereof in that respect was good and according to the truth of the case yet because it was not warranted by the Melius which was the ground of their Inquisition all was adjudged insufficient and void and a new Melius inquirendum was awarded An Idiot examined in Chancery 54 A man that is found an Idiot from his nativity by office Co. l. 9. 31. b. 4 in the case of the Abbot of Strata Mercella may come into the Chancery and pray to be examined or by his friends he may pray to be brought thither and if it be found upon examination that he is no Idiot the office thereof found and all the examination which was by force of the Writ or Commission are utterly void without any traverse monstrance de Droit or any other suit Assumpsit deâ—eaâ—â—d 55 An Executrix in consideration Co. lib. 9. 94. a. 4. Will. Banes case that the Plaintiff will forbeare till Michaelmas to sue for a debt due by the Testator to the Plaintiff upon lone promiseth to pay it at Michaelmas and in an Action upon the case brought against her upon that promise pleads non assumpsit here the consideration of forbearance is good because although it be no benefit to the promiser yet is it damage to the Plaintiff And yet in this case if in rei veritate the debt were not due debt Per Coke chief Justice or the Executrix had not assets at the time of the promise she may give that in evidence and shall be thereupon ayded for then in truth there was not any consideration upon which the assumpsit might be grounded because to forbeare a debt which was not due or wherewith she was not chargeable could be neither benefit to the Defendant nor damage to the Plaintiff Co. l. 9. 139. a. 3.
temporary and a disability absolute and perpetual As if a man be attainted of Treason or Felony this is absolute and perpetual disability by corruption of Blood and shall barre any of his posterity to claime any hereditament in Fée-simple as heire unto him or to any other Ancestor paramount him But when a man is onely disabled by Parliament without any attainder to claime any dignity for his life this is a personal disability for his life onely and his heire after his death may claim as heire to him or to any of his Ancestors above him c. And upon this diversity Thomas Lord De la ware Anno 39 Eliz. was restored to the place in Parliament originally belonging to his Family Wast by Baron 11 Where a lease is made to the Baron and Feme for terme of life or yeares the Feme shall not be punished for Waste F.N.B. 59. â— committed by the Baron after the Barons death M. 3. E. â— Battery 12 When a corporal hurt or damage is done to a man 12 H. 8. 12. as to beat him c. if he or the party beaten die the action is gone Finch 17. Covenant by Lessor 13 The Lessor covenants to pay quit-rents during the terme 1 2 P.M. 114. Finch 17. and dieth his Executors shall not pay them for it is a personal covenant which dieth with the person Debt against Executors 14 In debt against Executors who plead fully administred Dyer 32. 2 28 29 H. 8. and they gave in evidence to the Inquest that they had paid divers debts upon contracts made by the Testator whereas this suit was upon an obligation whereupon the Plaintiff demurres And it séemed to the Iustices that there was no cause to delay it because they were not compellable to pay such debts for that they die with the person and the Plaintiff had judgement de bonis testatoris Quit-rents 15 The Lessor covenants with the Lessée to pay and beare all quit-rents c. not naming his Executors or Assignes If the Lessor die Dyer 114. a. 60 1 2 P. M. his Executors are not bound according to the opinion of divers Iustices Tamen quaere Covenant implyed and expresse 16 If there be Tenant for life remainder in fée Dyer 257. 13. 9 Eliz. and Tenant for life demise for 15 yeares and die he in remainder enters and the termor brings covenant against the Executors of the Lessor upon the Demise onely which is but an implyed covenant and it was adjudged it would not lie albeit the lease were by Indenture unlesse it had béen broken in the life of the Testator it is otherwise also of an expresse covenant But an implyed covenant is personal and dies with him Vide Stat. 32 H. 8. 34. Note that if the heire out the termor of the father covenant lies against him upon the demise for the privity Vide Max. 55. Licence to retaile wines 17 Quéen Mary grants to one licence to sell Wines by retaile with a non obstante the Statute of 7 E. 6. 5. and doth not limit how long Dyer 270. 22. 10 Eliz. but there is a commandment in the Patent to the Officers to permit him to do it during his life And it was held by Dyer and Sanders that it was durante bene-placito onely and that the pleasure determined by the death of the Quéen the commandment ceased also by her death Warden of the Fleet. 18 Whitacres brings an action of Debt against the Executors of the Warden of the Fleet upon an escape in the life of the Testator Dyer 322. 25. 15 Eliz. and it was adjudged it would not lie because the offence was but trespasse which died with the person And by the Common Law debt did not lie against the Warden but an action upon the Case until the Statute of 1 R. 2. 12. which gives debt against the Warden but speaks neither of Heire or Executor It is otherwise where the recovery is in the life of the Warden 48 Things do enure diversly according to the diversity of the time Purchase by Inhabitants 1 The Parishioners or Inhabitants or probi homines de Dale Co. Inst pars 1. 3. a. 2. or the Church-wardens are not capable to purchase lands but goods they are unlesse it were in ancient time when grants were allowed to passe by such names Grant to commoners 2 An ancient grant by the Lords to the Commoners in such a waste Co. ibid. that a way leading to their Common should not be straitned was good but otherwise it is of such a grant at this day And so in ancient time a grant made to a Lord hominibus suis tà m liberis quà m nativis or the like was good but they are not of capacity to purchase by such a name at this day c. Co. l. 9 28. a. 3. in the case of the Abbot of strata Marcella 3 When an ancient grant is general obscure or ambiguous A charter interpreted as the Law was when it was made it shall not be now interpreted as a Charter made at this day but it shall be construed as the Law was taken at the time when such ancient Charter was made and according to the ancient allowance upon record Vide ibid. many authorities in the point Vide suprà 25. 22. Co. Inst pars 1. 21. b. 3. 4 If the Donor give lands in liberum maritagium reserving a rent Frankmarriage the fifth degree this reservation shall take no effect till the fourth degrée be past but after that time the rent shall be paid according to the reservation Littl. Sect. 19. Finch 18. Co. ib. 147. b. 1. 5 If a man grant a rent out of Black-acre to one and to his heires Rent-charge and seck and grant to him that he may distrain for this in the same acre for term of his life this is a rent charge for his life and a rent seck afterwards Diversis temporibus Co. l. 7. 24. b. 3. Buts case Co. ib. 171. a. 3. 6 Judicis officium est ut res ita tempora rerum Quaerere quaesito tempore tutus eris Co. ib. 178. a. 4. 7 A gift in Frankmarriage was before the Statute of Westm 2. Frankmarriage out of use a Fée-simple and since that Statute a Fée-taile So as it is true that the gifts do continue as Littleton saith Sect. 271. but not the estates for the estate is changed as appeares in the same Author Cap. Fee-taile And albeit Littleton saith Sect. 271. that such gifts have béen alwayes since used and continued yet now they are almost grown out of use and serve now principally for Moot-cases and questions in law that thereupon were wont to rise Co. l. 5. 119. b. 1. in Whelpdales case 8 When an obligation was once a deed Non est factâ—â— when a deed was and is no deed and after before
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
A. his heires c. pay to B. 100 l. after B. hath issue under age and dies the marriage takes not effect In this case the estate is executed in the heir of B. and shall have relation to the making of the Indenture c. But if the Grantée of a Reversion die no attornment can be done to his heir So it is also where the Devisée dies before the Devisor c. Pl. Co. Brets and Rigdens case 345. Vide Shelleys case where the Indenture bound the land albeit execution was not taken out till after his death for the estate was executed by the Indenture and Recovery before execution which shall have a retro-spect to the Indenture And 11 H. 7. 12. Where the heir shall have execution upon a fine But if the Feoffor or Feoffée die before entry feoffment by livery within view shall not take effect So also in the Rector of Cheddingtons Case Co. l. 1. 155 156 by the death of Tho. the term is not certaine nor can vest in his executors Co. l. 3. 86. a. 1. The Case of Fines 20 If the Bishop or Baron make a Lease for life Bishop Baron and after grant the Reversion in Fée and the Lessée for life die in the life of the Bishop or of the Baron this is a Discontinuance It is otherwise if the Lessée for life survive the Bishop or Baron A thing execuâ—ed unalterable 21 H. recovers 75 l. in B. R. and assignes it by Déed inrolled to Queen El. in satisfaction of a due Debt as Collector of the Fifteens Co. l. 5. p. 2. 9â— Hoes Case provided if the Lord Treasurer and Barons of the Exchequer or any two of them dis-allow the assignment c. and revoke it by writing under their hands that then the assignment shall he void after the Defendant brings Errour and the judgment is affirmed and 5 l. Costs given after by Writ of Prerogative the Land of the Defendant was extended and Goods seised to the value of the Debt And afterwards three Barons revoke the assignment after the death of the Plaintiffe because the Plaintiffe had satisfied the Debt and his executor sues a Scire facias for the 75 l. and 5 l. Costs But it was adjudged that after execution had by the Queen which was the effect of the assignment the Revoâ—ation came too late for he that hath power of Revocation cannot revoke a thing lawfully executed So a Letter of Attorney cannot be revoked after it is executed Vide 7 H. 6. 42. and 7 H. 4. 2. The Debtée is out-lawed the Debtor payes to the King the Out-lawry is reversed In this case the Debtor shall recover against the Debtée So if the Goods of an out-lawed person be sold c. he shall have restitution of the Goods Co. l. 8. 96. b 4. in Mannings Case but upon a Fieri facias c. onely the value Vide 3. E. 3. 51. Recompence in value once lawfully executed shall not be devested albeit the title of the Demandant be afterwards dis-affirmed and evicted Remainder executed 22 If a remainder be once executed Co l. 8. 88 a. 1. in Buckmeres Case in a Writ of Formedon in the Descender he shall never speak of that remainder but the general Writ of Formedon in the Descender shall serve in that case and he shall count of an immediate Gift for a Formedon in remainder he cannot have after the remainder is once executed But if a Lease for life be made the remainder in tail to A. the remainder in tail to B. if A. die without issue in the life of the Tenant for life and B. put to his Formedon in the remainder in his Formedon he ought to make mention of the remainder to A. albeit it was determined and spent for the Demandant in the Formedon in remainder ought to make mention of all the precedent remainders in tail because in that case the remainder was never executed by way of descent 〈◊〉 London suit â—opt before â—â—dgment 23 The Mayor of London may alter the course of Iustice in a cause hanging before the Sheriffes viz. to send for the parties Co. l. 8. 1â—6 a 3 in the Case of the City of London and to stop the suit also if he find the Plaintiffe already satisfied but so he cannot do after judgment and this he may do by a custome there Judgment exâ—cuted irrevocable 24 There is a diversity betwixt a thing Collateral executory Co. l. 8 142. a. 1 Doctor Druries Case and executed for when an erronious judgment is given and after the judgment is reversed by Writ of Error Collateral acts executory are barred thereby as if a man hath judgment in a Quare impedit and hath a Writ to the Bishop and the Bishop refuse here the Plaintiffe upon this Collateral matter of refusal may have a Quare non admisit but if the Defendant reverse the judgment in a Writ of Error and after the Plaintiff in the Quare impedit brings a Quare non admisit the Defendant may plead no such Record Vide 26 E. 3. 75. per Willy and Hill So if A. in execution at the suit of B. upon erronious judgment and after escapes and after the judgment is reversed by Error the action upon the escape is gone for he may plead no such Record because without a Record the action is not maintainable but in that case if the Plaintiffe bring an action of Debt against the Sheriffe or Gaoler upon the escape and hath judgment and execution and after the first judgment is reversed yet this judgment upon that Collateral matter being executed shall remaine in force 7 H. 6. 42. a. Notwithstanding such reversal of the first judgment The Conusée of a Statute Staple in Detinue thereof upon Garnishment recovers by erronious judgment against the Garnishée and hath the Statute delivered unto him 4 H. 7. 11. the Garnishée brings a Writ of Error and the Conusée sues execution upon the Statute and hath it Here albeit the Garnishée reverse the judgment yet this execution shall not be avoided thereby because the Statute is already executed Likewise if a man recover by erronious judgment and present to a Benefice or enter into the perquisite of a Villain and after the judgment is reversed by Error yet because these Collateral acts are executed they shall not be afterwards devested Co. l. 11. 40. a. 3 in Metcalfes Cases 25 Vpon an interloqutory award of a Court Error lieth not till after judgment which is not definitive a Writ of Error lyeth not such as are these quod computer that the shall take an Assise in Waste to inquire of the Wasts in trespasse to inquire of damages In partitione facienda quod partitio fiat In admeasurement quod admensuratio fiet that a man shall be ousted of aide and the like upon which the Defendant shall not bring a Writ of Error but after judgment in
cause of his demurrer that if there were any other matter in the declaration whereof the Defendant might have advantage he could not take any benefit or advantage thereof Pl. Co. 84 b. 3. in Partridge and Strange Crokers Case 72 In a count or declaration if the Plaintiffe recite a Statute Count abaâ—â— by mis-recâ—â— which he néeds not do being a general Statute whereof the Iustices are bound to take conusance in such Case if he mis-recite it as in the date or otherwise his count shall abate for though it was not requisite to recite it yet he making use thereof by way of recital he ought to recite it as in truth it is because then he hath grounded his action upon the Statute by him recited where it appeares to the Court Iudicially that there was no such Statute at that time and so he hath abated his count by his own shewing c. Co. Inst p. 1. 207. a. 2. 73 If feofment be made upon Condition Tender and refusal that the feoffor shall pay a certaine sum of money at such a day c. if tender of the money be made accordingly and the feoffée refuse to receive it by this the feoffor and his heires may enter c. And then the feoffée is without remedy to recover the money at the Common Law because it was his folly that he would not receive it when he might So if an obligation of 100 l. be made with Condition for the payment of 50 l. at a day c. and at the day the obligor tender the money and the obligée refuse it In this Case albeit in an Action of Debt upon the obligation the 50 l. may be received because it is still a duty and parcel of the obligation and the obligée hath remedy by Law for the same according to the Rule Liberata pecunia non liberat ofterendum yet if the Defendant plead the tender and refusal wherein he must also say uncore prist and tender the money in Court if the Plaintiffe will not then receive it but take issue upon the tender and the same be found against him he hath lost the money for ever because he hath made two refusals when he might have had it â—cceptance of â—ent 74 C. purchaseth a Copi-hold of A. to him his wife and their childe for their lives Dier 30. 207. 28 H. 8. A. le ts the franck-tenement of the soile by Déed indented to B. for his life reserving Rent and livery and seisin is made accordingly Afterwards A. levies a fine sur conusance de droit come ceo c. to C. of the same land and C. accepts the Rent of B. In this Case it séemes that by the acceptance of the Rent of B. the Copihold of C. is gone So if a Disseisor make a lease for life reserving Rent and after grant the reversion to the Disseisée and he accept the Rent of the Lessée he shall never after oust him Quod fuit concessum per quosdam â—â—â—viledge 75 One of the Clerkes of the Chancery was sued in the C. B. and proces continued till the exigent Dier 3 3. 18. 28 29 H. 8. and the Defendant who was the Clerke sues a supersedeas to the Sheriffe quia improvidè and after he sues a writ of priviledge out of the Chancery directed to the Iustices of the B. reciting the priviledge of Chancery and requires the Iustices to surcease In this Case the priviledge was dis-allowed and the Clerke put to answer because the Court was lawfully seised of the plea by the Act of the Defendant himselfe for in as much as he sued out the supersedeas quia improvidè he thereby affirmed the jurisdiction of the Court for that every supersedeas quia improvidè recites the Defendants appearance in Court by an Attorney and names him and therefore it was his own default But if he had sued such a writ notwithstanding the exigent the priviledge had béen allowed him and then after the writ of priviledge come to the Iustices they ought to have sent a special supersedeas to the Sheriffe of the Out-lawry reciting the priviledge And this resolution agréed with Presidents shewed in Court Doâ—er imperâ—â—… plea. 76 In Dower the issue was Ne unque seisie que Dower luy puit Dier 41. 1. 30 H. 8. and a Déed of feofment made unto the Baron was by the Demandant given in evidence to the inquest and produced in Court whereunto it was answered that before the feofment the Baron was seised of land to him and his former wife in special taile and that after he made discontinuance and re-took the Estate in fée by the feofment afore-said and of such Estate died seised whereby the heire who is Tenant in taile is remitted and therefore the second Feme could not be endowed in this Case albeit the matter alleadged might have a voided the Dower if it had béen specially pleaded yet here the issue being onely ne unque seisie c. the Iustices were of opinion that the Iury ought to find for the Demandant c. se … is 77 If A. plant Conies in his owne ground which increase to such a number that they destroy the land of B. next adjoyning Co. l. 5. 104. b. Boulstones Ca. in this case B. cannot have an action upon the case for the damage he sustains by them for the property of them remaines no longer in A. then they remaine within his Warren and when they come upon the land of B. he may lawfully kill them because then they are his if he can catch them and it is his own fault if he do not take them 〈◊〉 to be of â—ounsel in a … s owne â—â—â—se 78 This Maxime teacheth us Co. Inst p. 1. 377. b. 4. that it is not safe for any man be he never so learned to be of Counsel with himselfe in his own Case but to take advice of other learned men and the rather because the phisautia and self-opinion which is in man by nature so obscures his understanding that he can hardly give a right judgement of things that concerne himselfe Non prosunt dominis quae prosunt omnibus artes and in suo quisque negotio habitior est quam in aliena And therefore in the new inventions of Iustice Richel an Irish-man in R. 2. time and of Thirming in H. 4. time Litt. §. 720. time there were found many imperfections and Richel was overthrowne in an Action upon the Case by his owne shewing in 2 H. 4. fol. 11. vide Co. l. 1. 88. a. 2. in Corbets Case Dier 69. b. 36 5 E. 6. 79 A man enfeoffs two upon Condition A Conditioâ— severable that the feoffées before a certaine day shall make an Estate again to the Feoffor for term of his life the remainder over in fée to a stranger one of the feoffées makes an Estate accordingly in this Case albeit the Condition was
descent cast because then his drunkennesse would be an advantage to him or his heir which ought not to be but doth aggravate his offence he being indeed to be reputed rather Voluntarius Daemon then non compos mentis Profession makes no descent 14. Profession in Religion shall not make a descent to take away Entry because it is the Disseisors owne act Litt. S. 410. Co. ibid. 248. b. 4. whereof neither he nor his heire shall take advantage So if a man be Tenant or Defendant in a reall or personall Action and hanging the Suit the Tenant or Defendant entreth into Religion by this the Writ shall not abate Causa qua supra there is the same Law of a Resignation c. but not of a Deposition or Deprivation because he is expelled by Iudgement and yet his offence c. was the cause thereof Sed in presumptione legis Judicium semper redditur indivisum Baron and Feme waste 15. If Land be given to a Feme sole for life Litt S. 525. Co. ibid. 299. b. 3. and after shee take Baron and the Reversioner confirmes the estate of the Baron and Feme to hold for their two lives here the Baron hath an estate for life in the Land by way of Remainder as Littleton termes it S. 525. or as others call it by way of Reversion but however it enures to him by way of encrease or inlargement of estate or otherwise he is seised of an estate for life in the Land And yet in this case if the Husband commit waste an Action of waste shall lye against Husband and Wife notwithstanding the meane Remainder because the Husband himselfe committeth the waste and doth the wrong and therefore shall not excuse himselfe for his committing of waste in respect he himselfe hath the Remainder no more then if a man leaseth to A. during the life of B. the Remainder to him during the life of C. if he commit waste an Action of waste shall lye against him Forfeiture 16. A. Tenant for life the Remainder to B. for life Co. ibid. 302. b. 3. the Remainder in tail the Remainder to the right heires of B. A. and B. joyne in a Feoffment by Deed here albeit it may be said that this is the Feoffment of A. and the confirmation of B. and consequently he in the Remainder in tail cannot enter for the forfeiture during the life of B. yet because B. joyned in the Feoffment which was tortious to him in the Remainder in taile and is particeps criminis they have both forfeited their estates and he in the Remainder in tail shall enter for the forfeiture Covin with a Diseisor on â—â—mitter 17. If the Baron discontinue the Land of the Feme Litt. S. 678. Co. ibid. 357. b. 2. and the Discontinuee is disseised and after the Disseisor lets the Land to the Baron and Feme for life in this case the Feme is remitted albeit the Baron were in this case of covin with the Disseisor but if the Baron and Feme were of Covin that the Disseisin should be done in that case the Feme is not remitted for she shall not any way take advantage of her own wrong So if Tenant in tail and his issue disseise the Discontinuee to the use of the Father and the Father dyeth and the Land discendeth to the issue In this case the issue is not remitted against the Discontinuee in respect he was privy and party to the wrong whereof therefore he shall not take any advantage but in respect of all other he is remitted and shall deraigne the first warranty Covin 18. A. and B. Ioynt-tenants are entitled to a reall Action against the Heire of the Disseisor A. causeth the heire to be disseised Co. Inst pars 1. 357. b. 3. 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 because he was of Covin and shall not take advantage of his own wrong Condition broken by demise 19. A. deviseth Land to his Wife Co. l. 1. 25. b. 3. Porters case upon Condition that shee convey them in convenient time to certaine persons in trust for the maintenance of a Free-schoole the Testator dyes and his Wife demised the Land to a stranger for yeares in this case the Condition is broken and the next Heire shall enter because by the demise shee hath disabled her selfe to convey them according to the Condition viz. in the same plight she had them and therefore shall not take advantage of her own wrong Co. l. 3. 29. b. 4. in Butler Bakers case 14 H. 4. 38. 1 H 5. Tit. Grants 43. 20. If Donee in tail make a Feoffment in fee in this case Donee still Tenant after discontinuance the Donee hath neither Jus in rei veritate nor Jus ad rem for by his own act he hath departed with all the estate that was in him and yet after this the Donee may extinguish or diminish his rent by release or confirmation made to him by the Donor because as to the Donor the Donee shall still remaine Tenant and of necessity for the rent the Donor shall avow upon the Donee for he cannot avow upon the Discontinuee because then by his own shewing the Reversion to which the rent is incident should be deâ—ested out of him by the Feoffment and by consequent he could not then maintaine his Avowry for the rent and therefore of necessity he shall avow upon the Donee notwithstanding he hath devested himselfe of all his estate for it is no reason that the Feoffment which is the Donees own act and by which wrong is done should availe the Donee to bar the Donor of his rent for then the Donee that made the discontinuance should take advantage of his own wrong Co. l. 3. 44. b. 2. in Baytons case Co. l. 3. 52. a. 4. in Rigewayes case 21. If one in execution escape of his own wrong be re-taken Escape of Prisoners he shall not have an Audita Querela to discharge himselfe of his Imprisonment because he shall not take advantage of his own wrong and in such case it is lawfull for the Gaoler to re-take him in what place soever he finds him And albeit the Prisoner in the pursuit be out of view at the turn of a corner or the like yet the Sheriff or Gaoloer may re-take him and although it be in places without their jurisdiction but the Plaintiff may bring an Action against the Sheriff before he can re take him and he shall be answerable for an escape albeit the Sheriff re-take him afterwards Howbeit the Sheriff may then justifie to retaine the Prisoner untill he save him harmlesse from the Plaintiffs Action or may bring an Action of Trespasse upon the case against him for the damages he shall suffer by the Plaintiffs
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
lessee that he shall not be impeached of waste the lessee may plead this in barr of the action of waste without bringing his action of Covenant Finch ibid. 5 Vpon the grant of a ward with warranty the defendant in a writ of right of ward may rebut the plaintif by that warranty and shall not be driven to bring an action of Covenant upon the grant to avoid circuit of action Finch fo 14. Fr. Edi. 6 One that hath rent issuing out of land disseiseth the terre-tenant Recouper in an Assise by the disseisee the disseisor shall recoup the rent in the damages and the reason is for avoiding circuit of action for otherwise when the disseisee re-enters the action for the arrerages of rent shall be received but Circuitus est evitandus boni Iudicis est lites dirimere ne lis ex lite oriatur Vide Co. l. 5. 31. a. 2. in Coulters case 180 Matter of Vexation And therefore Co. Inst part 1. 127. a. 1. 1 If the demandant or plaintif be non sute Plaintif amerced or judgement given against him he shall be amerced pro falso clamore for vexing and troubling the tenant or defendant without just cause Co. l. 5. 73. b. The case of Orphans 2 If any Orphan of London Oâ—phans which by the custom of that City is under the government of the Maior and Aldermen there sue in the Ecclesiastical Court or in the Court of Requests c. for any goods money or chattels due unto them either by the custom of London or by any devise or legacy in the will of their Ancestor or to have accompt c. In such case a prohibition lyeth because the government of the Orphans of London belongs to the Maior and Aldermen of that City and they have Iurisdiction of them And per Popham if the Lord of a Manor hath probate of testaments within his Manor if any will prove such a will in the Ecclesiastical Court a prohibition lies because the jurisdiction thereof belongs to another And the reason of this is for that otherwise the party might have double vexation and trouble Iudgement drowns a â—oâ—d 3 Where a man hath judgement upon an Obligation Co. l. 6 45. a. 3. Higgens case he shall not afterwards bring an action of debt upon the same obligation against the same party not only because the judgement hath drowned the bond by changing it into a matter of record but likewise for that if he that so recovers might have another new action and another new judgment he might also by consequent have infinite actions and infinite judgements to the perpetual vexation and charge of the defendant and infinitum in lege reprobatur Co. ibid. 46. a. 2. And therefore if a man brings an action of debt upon an Obligation and is barred by the judgement as he so long as that judgement stands in force cannot have a new action Pari ratione when he hath judgement in an action upon the same Obligation so long as that judgement stands in force he shall not have a new action Sure in two Courâ—s 4 If any use the Countenance of Law which was instituted to prevent Co. l. 8. 60. a. 3. in Beechers case and make an end of controversies and vexation for double vexation he shall be fined As if a man sue in the Common pleas and afterwards for the same cause sue the defendant in London or any other Court the plaintif shall be fined for this unjust vexation 9 H. 6. 55. 14 H. 7. 7. And in a Recaption the plaintif shall recover damages and the defendant shall be fined and imprisoned for his double vexation Vide F. N. B. 71. f. m. infra 181. 7. 5 In good discretion no melius inquirendum shall be awarded after office found against the King without view of some Record Co. l. 8. 169. a. 4. in Paris Stroughters case or some other pregnant matter for the King to avoid further vexation of the subject And therefore where upon a Diem clausit extremum it was found that the land was held of the Quéen Dyer 292. pl. 71. 12 Eliz. sed per quae servitia Iuratores ignorant and thereupon a melius inquirendum awarded whereby the tenure was found of a subject and all other points certainly found In this case the first office was adjudged void by the sence of 2 3 E. 6. and the rather because it should give no further occasion of vexing the subject for that the usual course was upon a double Ignoramus to adjudge a tenure for the King in Capite 181 Pendente Lite nihil innovetur Quarâ— Impedâ—t 1 At the Common Law Co. Inst part 1. 344. b. 3. if hanging a Quare Impedit against the Ordinary for refusing the Patrons Clerk and before the Church were full the Patron had brought a Quare Impedit against the Bishop and hanging the sute the Bishop had admitted and instituted a Clerk at the presentation of another In this case if judgement were given for the Patron against the Bishop the Patron might have had a writ to the Bishop and removed the Incumbent that came in pendente lite by usurpation for pendente lite nihil innovetur And therefore at the Common Law it was good policy to bring the Quare Impedit against the Bishop as spéedily as might be Co. l. 115. b. Foliambs case F.N.B. 60 a. 2 In Real actions depending as Formedon dum fuit infra aetatem Estrepment writ of right or the like the demandant shall have a writ of Estrepment to inhibit the tenant from committing waste or estrepment hanging the sute the like writ also may be had after judgement and before execution Vide the Statute of Glocester 6 E. 1. cap. 13. It lyeth also in an action of waste and the words of the writ are Tibi praecipimus quod ad messuagium praed personaliter accedens totaliter ordinari facias quod vastum seu estrepamentum de eodem messuagio contra formam Statuti praedict non fait pendente placito praed indiscusso Co. l. 6. 29. b. 3. 3 In Dyer 339. 17 Eliz. A presentation obtained of the Queen Presentation hanging a Quare Impedit in deceit of the Queen was adjudged void In Greens case F. N. B. 20. c. 4 In a writ of Error after errors assigned and scire facias awarded against the defendant upon such assignment Error the plaintif shall not assign any error in fact as to allege that the plaintif in the other action was dead at the time of the judgement or before the judgement or the like And when the plaintif may assign errors in fact he shall assign but one error of that kind but he may assign as many errors as appear in the record because this shall be tried by the Iustices in Court but that by a Iury which innovation will much delay and prejudice
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
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
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
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
pursued in suppression of the mischiefe and advancement of the remedy as by this case it appeareth A Fine levied by the husband onely is within the letter of the Statute of Glocester 6 E. 1. cap. 3. but the mischiefe was that the heire was barred of the inheritance of his mother by the warranty of his father without Assets And this Act intended to apply a remedie viz that it should not barre unlesse there were Assets and therefore the mischiefe is to be suppressed and the remedy advanced 31 E. 3. Joynder in aid 10. Finch 13. 10 The Vouchée cometh into the Court to be viewed View of vouchee and being viewed is awarded of full age yet he shall not be driven to answer till he come in to the same intent by other processe 19 E. 4. 3. Finch 13. 11 The Vouchée upon a Grand cape ad valentiam Apparance of vouchee shall not loose the lands though he cannot save his default because the processe is onely to this end viz. that he should appeare Finch 13. 50 Ass Pl. 2. Finch ibid. 12 A man that is warned by Writ to answer to a matter Not forced to answer to two several things shall not be driven to answer any other matter than is contained in that writ though the King be party As if by Office it be found that lands in Chiefe descended to I. S. a fool natural and that A. occupieth them whereupon a Scire facias goeth out against A. to answer why the lands should not be seised into the Kings hands for the Idiocy of I. S. upon which A. commeth in and pleads that I. S. when he was of perfect memory made a release to one B. who enfeoffed A. This is good enough without shewing any licence of Alienation to discharge himselfe for the purchasing of those lands Fine with Proclamations 13 Tenant in taile general having issue a daughter Co. l. 3. 50. b. 3. â—u slowes case levies a fine in Trinity Terme and dies in August following the issue immediately brings a Formedon and hanging the Writ the Proclamations are made yet in this case the issue is barred for the end of making the Proclamations is not to barre the entaile because that is barred before by the fine but the onely end of making the Proclamations by the Statute of 32 H. 8. is to distinguish the fine that shall barre the estate taile from a Fine at the Common Law for the Fine that shall barre such an estate shall be levied according to the Statute of 11 H. 7. viz. with proclamations c. Statute 32. H. 8. 17. 14 The Statute of 32 H. 8. cap. 37. saith Co. l. 4. 51. b. 4 Andrew Ognels case that the husband shall have an action of debt for the arrearages due in the life time of his wife out of any estate which he held in her right And this is to be understood as well of arrearages due before as after mariage for in that Statute the end of naming the Feme wife is onely to declare and describe the condition of the Feme and not to imply that the arrearages ought to incur after the coverture Where a Writ is to be returned and where not 15 There is an apparent diversity betwéen a Capias in processe Co. l. 5. 90. a. 3. Hoes case Tres 33 El. Mounts case and a Capias ad satisfaciendum for if the Capias in processe be not returned the arrest is torcious because there the end of the arrest is that the party may appeare and answer the Plaintife But in all Writs of execution when the Sheriffe alone doth execute them as a Capias ad satisfaciendum habere facias sesinam or possessionem fieri facias liberat c. if the execution be duly served it is good although the Writ be not returned for there the Plaintife hath the end and effect of his suit and then nothing else is to be done on his part afterwards But in case of an Elegit because the extent is to be made by inquest and not by the Sheriffe alone that ought to be returned otherwise it is nothing worth Collation no disseisin 16 If a Bishop collate without Title to a Church presentable Co. l. 6. 50. a. 1. Boswels case and his Clerke is inducted yet this shall not put the right Patron out of possession for that is nothing else but a provision to the end divine Service may be celebrated untill the Patron present and it is no more than belongs to his Office to do Dignity entailed forfeited 17 If the Dignity of an Earledome had béen intailed to the heires male Co. l. 7. 34. a. 4. Nevils case it might have béen forfeited for Treason before the Statute 26 H. 8. cap. 13. by reason of a secret Condition in Law annexed unto it for Earles are created for two purposes viz. Ad consulendum Regi tempore pacis ad defendendum Regem patriam tempore belli and therefore they wear a Cap of honour and a Robe as they are Councelors and are girded with a sword to represent them gallant Champions and Cavaliers Now then when such a person against his duty and the end of his dignity commits Treason against the King his dignity though entailed is forfeited by that Condition implicitly annexed to his estate Vide 42. 7. The end to be pursued 18 The Scope and end of every matter is principally to be considered and if the Scope and end of the matter be satisfied Pl. co 18. a. 1. Fogassues case then is the matter it selfe and the intent thereof also accomplished And therefore in Fogassues case in the Commentaries because the King had meanes of being intitled to the Custome of the Woad viz. by causing it to be weighed and the end and Scope of the Statute being in that case performed he was not to incurre the penalty of forfeiting the Woad 19 To let a prisoner in execution go at large upon bond c. is expressely against the Statute of 23 H. 6. Plowd com 67 a. 4. Dive against Maningham cap. 10. Sheriffs bond void because the end and intent of making that Statute was to prevent all such bonds c. made for that purpose that abuse having béen much practised by Sheriffes before the making of that Statute Dyer 48. 19. 32 H. 8. 20 If the Plaintife importune a Iuror to appeare and passe upon the verdict according to his conscience Juror albeit he was not summoned by the Sheriffe or his ministers to appeare yet this is not any unlawfull practise or cause of challenge of the Iuror because the end why he was impanelled was to discharge a good conscience upon the verdict Co. l. 5. 87. a. 3. In Blumfields case 21 In debt when the Plaintife hath had execution of the Defendants lands and after the lands are evicted Execution in such case before the Statute of
contrà â—e shall be endowâ— 1 If a man be Tenant in fée taile generall Co. Inst pars 1 31. b. 4. F.N.B. 149. f. and makes a Feofment in fée and takes back an estate to him and his heires in fée and then takes wife and hath issue and dies his wife shall not be endowed for that her title of Dower is grounded upon the estate in fée which her Husband had during the coverture Now that Fée-simple vanished by the remitter of the heire in taile and therefore her title of Dower must néeds vanish also For her issue hath not the land by the descent of the Fée-simple but by force of the intaile There is the same law where the Tenant in taile disseiseth the discontinuee c. â—ery voyd 2 When a déed of Feoffment is void in it selfe Co. ibid. 48. b. 1. if livery be made according to the forme and effect of that déed the livery is also voyd As if A. by déed give land to B. to have and to hold after the death of A. to B. and his heirs this is a voyd déed because he cannot reserve to himselfe a particular estate and if livery be made according to that déed the livery is likewise voyd because the livery referreth to a deed that hath no effect in Law and therefore cannot worke Secundam formam effectum of that déed c. 〈◊〉 action of â—st gone 3 Regularly none shall have an action of Wast Co. ibid. 53. b. 3. unlesse he hath the immediate estate of inheritance and therefore if hanging an action of Wast an estate taile determines and the Plaintiff becomes Tenant in taile after possibility c. the action of Wast is gone â—cting of â—ses shall 〈◊〉 now forâ—the the land 4 In ancient time Co. ibid. 92. b. 4. amongst divers wayes that lands might escheat or be forfeited to the Lords of whom they were holden this was one if the Tenants did erect Crosses upon their Houses or Tenements in prejudice of the Lords to the end the Tenants might claim the priviledge of the Hospitalers and so defend themselves against their Lords by such erecting of Crosses they were subject to forfeit their tenancies but now since it hath pleased God by the light of the Gospel to banish out of our Church and Common-wealth all such superstitious reliques the danger of forfeiting Lands that way is also banished â—mage may â—epealed 5 Regularly it is true which Littleton saith Co. ibid. 103. b. 3. Littl. §. 148. that when a Tenant hath once done homage to his Lord he is excused for term of his life to make homage to any other Alienée or heirs of the Lord Howbeit it faileth in this case following A. holdeth of B. as of the Mannor of Dale whereof B. is seised in taile B. discontinueth the estate taile and taketh back an estate in Fée-simple A. doth homage to B. B. dieth seized and the Issue in taile entreth In this case A. shall do homage again to the heire in taile of B. because he is remitted to the estate tail and the estate in fée that his father had in respect whereof the homage was done is vanished and therefore the homage it selfe is also vanished for the heire in taile is in of a new estate in respect whereof A. ought to doe a a new homage So likewise it is when the Tenant hath done homage and the Mannor is afterwards recovered from the Lord in a Praecipe quod reddat c. by a Stranger In this case also the Tenant shall do homage againe to the Stranger because the estate of him that received the first homage is defeated by the recovery c. It is otherwise when the Mannor is aliened to a Stranger or descends to the heire without defeasance as aforesaid of the original estate Co. ibid. 128. b. 3. 6 When the ground or cause of an Action faileth Where tâ—â— ground oâ— action faâ— all is gooâ— there must néeds the Action it selfe also faile as if an out-lawed person brings an Action the ground and cause of which Action is forfeited by the Out-lawry as in an Action of Debt Detinue or the like there the Defendant may plead the Out-lawry it selfe in barre of that Action and shall thereby conclude the Plaintife It is otherwise in real or personal Actions where the damages are uncertaine as in trespasse of Battery of Goods of breaking his Close and the like and are not forfeited by the Out-lawry for there the Out-lawry must be pleaded in disability of the person Co ibid. 138. a. 4. 7 Tenant in Taile of a Mannor whereunto a Villain is regardant No maâ—sion by 〈◊〉 brought 〈◊〉 Lord. enfeoffeth the Villaine of the Mannor and dieth Here the issue after recovery of the Mannor in a Formedon against the Villaine may seise the Villaine and the bringing of that Writ in this case shall worke no manumission because at the time of the Writ brought he was no Villaine and the estate by reason whereof he might claime the priviledge of manumission being defeated the manumission it selfe is also defeated Co. ibid. 147. a. 4. 41 E. 3. 13. per Finchden 8 A man by Déed grants a rent of 40 s. to another out of the Mannor of D. to have and perceive to him and his heires Rent oâ— land erâ—â— and grants over by the same deed or by another that if the rent he behind the Grantée shall distraine in the Mannor of S. Here both the Mannors are charged the one with the rent the other with a distresse the one issuing out of the land the other to be taken upon the land And in this case if the Mannor of D. be evicted by an eigne Title all the rent is extinct and so by consequence both the Mannors discharged but if the Mannor of S. be onely evicted all the rent doth still remain c. Co. ibid. 158. a. 4. 9 If a Pannel upon a Venire facias be returned and also a Tales Challeâ— and the array of the Principal is challenged if the Triors quash the array of the Principal they shall not trie the array of the Tales for now it is as if there had been no apparance at all of the Principal Pannel but if the Triors affirme the array of the Principal then shall they also trie the array of the Tales c. Co. ibid. 223. b. 1. 224. a. 3. 10 If a Feofment be made upon Condition that the Feoffée shall not alien in Mortmaine this is good Good coâ—ons because the Condition is backed by a Statute Law for such Alienations are prohibited by the Statute of Mortmaine And regularly whatsoever is prohibited by Law may be prohibited also by Condition be it malum prohibitum or malum in se In ancient Déeds of Feofment in Fée there was most commonly a clause Quòd licitum sit donatorio rem datam dare vel vendere cui voluerit exceptis
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
formal attornment because the Baron cannot attorn to himselfe and his wife in his wives right yet his acceptance of the déed is a good attornment in Law to vest the services in the Feme and her heirs but during the coverture they are suspended c. Grant of the Seigniory to tenant for â—ife of the tenant 11 If there be Lord and Tenant Littl. §. 562. Co. ib. 314. a. 1 and the Tenant make a lease to a man for terme of his life saving the reversion to himselfe Here if the Lord grant the Seigniory to the Tenant for life in fée albeit as to all things concerning the right the Seigniory hath his being as if the Tenant die without heire the tenancy shâ—ll escheat to the Grantée c. yet as to the possession during the particular estate the Grantée shall take no benefit of the Seigniory and therefore during that time he shall have no Rent Service Wardship Reliefe Heriot or the like because these duties belong to the possession and he cannot do or pay them to himselfe Remitter 12 The principal cause Littl. Sect. 661. Co. ib. 349. a. 4. Littl. 665. Littl. 680. 682 683 684 c. why a Tenant in taile in many cases is remitted is because as Littleton saith there is no person against whom he may sue his Writ of Formedon for none is Tenant of the Franktenement but himself and against himself he cannot sue c. There is the same reason also of other Remittâ—rs Finch 19. Co. l. 33. a. 3. in the Marq. of Winchesters case Voucher asâ—ignee 13 If a man make a feoffment in fee to A. his Heirs and Assignes Co. ib. 385. b. 2. A. enfeoffeth B. in fée who re-enfeoffeth A. he or his Assignes shall never vouch because he cannot be his own Assignée but if B. had enfeoffed the heire of A. he might vouch as Assignée for the heire of A. may be Assignée to A. inasmuch as he claimeth not as heire Warranty 14 If Tenant in taile make feoffment to his Vncle Co. ib. 389. b. 3. 390. a. 1. Littl. Sect. 743. and after the Vncle make a feoffment in fée with warranty c. take again an estate to him in fee and then enfeoff a stranger without warranty and die without issue and the Tenant in taile die Here the issue in taile shall not be barred by the warranty made to the first Feoffee because that warranty by the Vncles resuming an estate in fee of the land is utterly defeated For if the warranty should have stood in force then should the Vncle have warranted it to himselfe which could not be c. â— selfe act â—â—id 15 A man cannot present himselfe to a Benefite Finch 19. 8 H. 6. 29. 3 El. Dyer 188 make himselfe an Officer sue himselfe or summon himselfe and therefore if a Sheriffe suffer a common recovery it is Error because he cannot summon himselfe Finch 19. 16 A man cannot be judge and party in a Suit No Judge of two Beâ—châ— at once And therefore if a Iustice of the Common Place be made a Iustice of the Kings Bench though it be but hac vice it determineth his Patent for the Common Place for if he should be Iudge of both Benches together he should control his owne judgments because if the Common Pleas erre that error shall be reformed in the Kings Bench. Co. l. 1. 174. a. 3. Diggs case 17 If a man by Indenture covenant to stand seised to the use of himselfe for life the remainder to others in tail The Feoffâ—â— in without 〈◊〉 try or claâ—â— c. and also reserve unto himselfe power of revocation and doth revoke the uses accordingly immediately upon such revocation the uses so limited are determined without entry or claim because he himselfe was Tenant for life of the land and he cannot enter or make claim upon or against himselfe c. And therefore it is agreed in the 20 E. 4. 18 19. that if a Feoffment be made upon collateral condition and before condition performed the Feoffée demiseth the land to the Feoffor if after the Feoffor perform the condition the land shall be immediately in the Feoffor without entry or claim because he himselfe is already in possession thereof So likewise if a Villain purchaseth rent issuing out of the Lords land that rent shall be in the Lord without entry or claime causa qua suprà Co. l. 2. 51. b. 4. Sir Hugh Cholmleys case 18 It is holden in 7 E. 3. that if the Advowson of the Church of Dale be granted to the Parson of Dale and to his Successors None can present hiâ— self this is void as to the Successor because the Successor can never take any benefit thereof by way of presentation for he cannot present himself c. Co. l. 4. 55. a. 1. The Sadlers case 19 In all cases at the Common Law No traâ—â—â— or action against the King when the King was seised of any estate of Inheritance or Franktenement by any matter of record he that right had could not by the Common Law have any travers or real action upon which he might have an Amoveas manum for that the King by his Writ could not command himselfe but he was put to his Petition of right in the nature of his real action to be restored to his Franktenement and Inheritance 4 H. 6. 12. 24 E. 3. 23. 1 H. 7. 3. 4 E. 4. 21. 9 E. 4. 52. Co l. 8. 68. b. 3. John Trollops case 20 If a Bishop himselfe be sued Bishop Eâ—communiâ—â—on and he pleads in disability of the party Plaintiff excommangement by himself or his Commissary who is as his Deputy albeit it be for another cause than that in question yet that shall not disable the Plaintiff because in this case the Bishop himselfe is party and with this agrées 16 E. 3. Excom 5. 5 E. 2. Excom 27. 5 E. 3. 8. 8 E. 3. 69. 18 E. 3. 58. 9 H. 7. 21. b. 10 H. 7. 9. Co. l. 8. 118. a. 1. Doctor Bonhams case 21 The President and five elect of the Colledg of Physitians in London ought not to be Iudges to give Sentence or Iudgement Judge and party Ministers to make summons and parties to have the moity of the forfeiture albeit they have an Act of Parliament to protect them viz. 14 H. 8. cap. 5. For Nemo debet esse judex in propria causa imò iniquum est aliquem suae rei esse judicem Co. ib. 118. b. 3. 22 If an Act of Parliament grant to any to hold or have Conusance of all manner of Pleas arising before him within his Mannor of Dale The like yet he shall hold no plea wherein himselfe is party For Iniquum est c. Co. 9. 123. b. 4. Anthony Lowes case 23 The Duchie of Lancaster before it was united to the Crown Duchy
any Lord during the fathers life because the Law of Nature requires that the father during his life shall have the marriage of his heir apparent rather then the Lord or any other person whatsoever The Law is the same if D. had béen a daughter It is otherwise where the father dies living the mother when the Land holden by Knight-service descends to the son on the part of the father because the Law in that Case confides more in the father then in the mother c. Again this priviledge extends not to any collateral heir but onely to the son or daughter being heir apparent for albeit a man shall have an Action of Trespasse Quare consanguinem haeredem coepit and albeit the words be cujus maritagium ad ipsum pertinet because the wel bestowing of his heir apparent in marriage is a great establishment of his house yet that is to be understood as against a wrong-doer but not against a Guardian in Chivalry and the mother shall have the like writ for taking away of her son and heir apparent and yet the mother shall not bar the Lord by Knight-service of his wardship of his body as Littleton saith § 114. Qui ex filia tua nascitur in potestate tua non est sed patris sui Fleta l. 5. cap. 6. The like 3 Put the case there be Lord and Feme-tenant by Knights-service of a Carve of Land Co. ib. 84. b. 2. the Feme maketh a feoffment in fée upon condition and taketh the Lord to husband and have issue a son the wife dieth the issue entreth for the condition broken the Lord entreth into the Land as Guardian by Knights-service and maketh his executors and dieth In this Case the executors shall have the wardship of the Land during the minority of the heir but not the wardship of the body For albeit the Lord séemeth to have a double interest in the wardship of the body one as Lord and another as father yet as father and not as Lord in judgment of Law he shall have the wardship of the body of his son and heir apparent in respect of nature which was before any wardship in respect of Seigniories by Knights-service began And that wardship by reason of nature cannot be waved and claim made in respect of the Seigniorie And the executors of the father shall not have such a wardship which the testator had as father neither can such a wardship be forfeited by Outlawrie 33 H. 6. 55. 6. because it is due to the father in respect of privity of nature 9. 4 If the Sheriff or other Officer be of kindred or affinity to the Plaintiffe or Defendant Challenge to â—he Array and â—â—rour and that such affinity continue Co. ibid. 156. a 2. and 4. this is a cause of challenge to the Array as if the Sheriffe marry the daughter of either party or è converso this is a principal challenge so if there be affinity betwéen the son of the Sheriffe and the daughter of either party or è converso or the like albeit this is no principal Challenge yet is it a Challenge to the favour c. 5 If a Iuror be of blood or kindred to either party Consanguineus Co. ib. 157. a. 3 which is compounded of con and sanguìne â—o the Polles quasi eodem sanguine natus this is a principal Challenge to the Polles because the Law presumeth that one kinsman doth favour another before a stranger and how remote so ever he is of kindred yet the Challenge is good And if the Plaintiffe challenge a Iuror for kindred to the Defendant it is no Counter-plea to say that he is of kindred also to the Plaintiffe though he be so in a néerer degrée for the words of the venire facias forbiddeth the Iuror to be of kindred to either party 6 If a Body politique or incorporate sole or aggregate of many bring an Action that concerns their Body politique or incorporate Co. ibid. The like if the Iuror be of kindred to any that is of that body albeit the Body politique or incorporate can have no kindred yet for that those Bodies consist of natural persons it is a principal Challenge c. Co. ibid. 4. 7 Affinity or affiance by marriage is a principal Challenge The like and to the favoâ—â— and equivalent to Consanguinity when it is betwéen either of the parties as if the Plaintiffe or Defendant marry the daughter or Couzen of the Iuror or the Iuror marry the daughter or Couzen of the Plaintiff or Defendant and the same continues or issue be had And if the son of the Iuror hath married the daughter of the Plaintiff c. albeit this be no principal Challenge because it is not betwéen the parties yet is it a Challenge to the favour c. Co. l. 3. 38. b. 4. in Ratcliffes Case 8 Martha Wilcocks A maid conveyed away and married one of the daughters and co-heirs apparent of Eliz. the relict of William VVilcocks and then the wife of Ralph Ratcliffe dwelling in her mothers house at Hitchin being then under the age of sixtéen years and about fourtéen went from thence at two of the clock in the morning with the consent of the said Ralph to Bramfield being eight miles distant from Hitchin and there married Edw. Ratcliffe And in an Ejectione firmae brought by Luke Norton upon the demise of the said Edw. the issue was whether Eliz. the mother had the custody of Martha at the time of the said marriage for if she had then the Land of the said Martha being in soccage was to be lost for her life by force of the Statute of 4 5. P. M. cap. 8. which prohibiteth the conveying of a maid c. out of the custody and contracting Matrimony with her without the consent of her father if he be living or of her mother in case her father be dead c. in pain for the man to suffer imprisonment c. and for the maid to lose her land as aforesaid c. And in that Case it was resolved that Eliz. the mother had the custody of the said Martha at the time of the Marriage within the provision of the said Act for that Statute hath ordained two manner of new custodies viz. by reason of nature and by assignation And here the father of Martha being dead she is by nature left in the custody of her mother neither yet was the assent of Ralph Ratcliff the husband any thing at all material for the Statute hath annexed the custody to the person of the mother jure naturae which is inseparable and cannot by the marriage be transferred to the Baron but after the marriage remains onely in the mother c. Co. l. 3. 39. a. 4. in Ratcliffes Case 9 It is said No wardship during the â—â—thers life that if there be Lord and Feme tenant by Knights-service and the tenant make
and the same law be parcel of the lawes of England as well as of all other Nations and is immutable and that post-nati we of England are united by birth-right in obedience and ligeance which is the true cause of natural subjection by the law of Nature It cleerly followed that Calvin the Plaintiffe in that cause being borne under one ligeance to one and the same King could not be an alien borne And there is great reason as it was then alledged that the law of Nature should direct that Case wherein five natural operations were remarkable 1 The King had the Crowne of England by birth-right being naturally procreated of the bloud Royal of this Realme Secondly Calvin the Plaintiffe was naturalized by procreation and birth-right since the descent of the Crowne of England Thirdly Ligeance and obedience of the subject to the Soveraigne due by the Law of Nature Fourthly Protection and government also due by the Law of Nature Fiftly It was presently said that this Case of Calvin in the opinion of divers was more doubtfull in the beginning but the farther it procéeded the cleerer and stronger it grew and therefore that the doubt did arise from some violent passion and not from any reason grounded upon the Law of Nature quia quantò violentus motus qui sit contra naturam appropinquat ad suum finem tantò debiliores tardiores sunt ejus motus sed naturalis motus quantò magis appropinquat ad suum finem tanto fortiores velociores sunt ejus motus And for as much as in case of an alien Borne you must of necessitie have two federal ligeances to two several persons but in this Case one person alone is head of both and the post-nati and we now joyned in ligeance so that one head which was copula tanquam oculus of that Case And ligeance of the subjects of both Kingdomes being due to their Soveraigne by one and the same Law viz. by the Law of Nature the post-nati cannot be aliens of either Kingdome but ad invicem naturalized subjects of both for Non adversatur diversitas regnorum sed regnantium non patriarum sed patrum patriarum non coronarum sed coronatorum non legum municipalium sed Regum Majestatum c. Mother guardian 1◠If the Grand-father hath issue a Sonne F. N. B. 1◠and the Sonne take Wife and hath issue and die the Mother of the issue shall have the Wardship of the issue which is her owne Sonne and not the Grand-father Albeit the issue may have the Land which ought to descend unto him from the Grand-father that the Mother shall not have it c. No champerty in the Sonne 13 The Statute of Articuli sup cartas cap. 11. provides Pl. Co. 88. b. 3. Partriges case that no Minister or other whatsoever to have part of the things which are in Plea shall undertake businesses which are so in plea yet if the Tenant hanging a percipe quod reddat against him enfeoffe his Sonne and heire apparent this shall be out of the danger of that Statute as it is taken in 6 E. 3. 274. in a writ of Champertie see it also in Fitz. Champertie 10. and the reason of this is for that the Sonne cannot be said a Maintainer of the Father because he is bound to aide and assist his Father when and as often as he may being enjoyned so to do by the Law of nature c. The Son may a bet his mother 14 By the Statute of West 2. cap. 12. it is ordained Pl. Co. ibid. that in an appeale it shall be inquired who were the Abettors and that they shall render damages to the partie acquit Neverthelesse if the heire abet his Mother to bring the appeale although it is within the words of that Statute yet shall he be out of the danger of it And so Herle tooke it in 6 E. 3. 274. For Common Law and reason say that he ought to be aiding to his Mother and may also abet her Considerations to raise uses 15 Affection for the provision of heires male that one shall engender Finch 25. Co. Inst p. 1. 21. b. 1. Brotherly love c. are good consideration to raise an use But long Acquaintance and familiarity are not Howbeit consideration of Mariage is more favoured in Law then any other Maintenance 16 The Sonne may maintaine his Father and one Brother another c. Finch ibid. 17 Brothers or Cofins shall not wage Battel in a writ of right Finch ibid. c. The Wife may relieve her Husband 18 A Statute Finch ibid. that maketh it Felonie to receive or give meat and drink to one that committeth such or such an offence the partie so receiving or giving having knowledge thereof stretched not to a Woman that receiveth or giveth meat and drink to her Husband in such a Case c. Privitie in Bloud strongest 19 You shall finde three manner of Privities spoken of in the Law Co. l. 8. 42. b. 4. 44. a. 4. in Whittinghams Case viz. Privitie in Bloud Privitie in Estate and Privitie in Law Privite in Bloud is that between the Ancestor the Heire Privitie in Estate as between Iointenants Baron and Feme Donor and Donée Lessor and Lessée c. Privies in Law are as when the Law without Bloud or Privitie of Estate casts the Land upon one and makes his entry Congeable as the Lord by escheate the Lord that enters for Mortmaine Lord of a Villein c. Now of these three sorts of privities onely the first which is by bloud and therefore most natural shall take advantage of Infancie Coverture non sanae memoriae c. and not the other two And therefore if an Infant Tenant in Fée-simple make a Feoffement and die his Heire shall enter There is the same Law also of heires special and of heires general and special unto whom the right of entry descends per formam doni or by the Custome as all Lands in Gavelkind Borough-English c. It is otherwise of privies in Estate and in Law And therefore if the Donée in tale within age make feoffment in Fée and die without issue the Donor shall not enter Because there was onely privitie in Estate betwée them and no right accrued to the Donor by the death of the Donée So if there be two Iointenants in Fée within age and the one makes Feoffment in Fée of his moitie and dies the sur-vivor cannot enter by reason the Infancie of his Companion Because by his Feoffment the joyntenure was severed so long as the Feoffment remaines in force and therefore in such Case the Heire of the Feoffor shall have a dum fuit infra aetatem or shall enter into the moitie In like manner Privies in Law as the Lord by escheate c. shall never take advantage of the Privitie of Infancie because they are strangers to it And in that
Crown that in the Kings Case they shall go with the Crown to the successor and not to executors as in case of common persons as appears in 7 H. 4. 43. and 44 E. 3. 42. Neither yet doth every warrant serve for the issuing of the Kings treasure for it cannot be done by Parol or by the privy Signet but ought to be done under the Great Seal or Privy Seal It was also further resolved in this Case that albeit Sir VValter had thus received the Quéens treasure to his own use yet inasmuch as he received it without lawful warrant he knowing that it was the Quéens treasure the Law makes privity in the Quéens Case and therefore she might charge him as an Accomptant And so it was also adjudged in the Exchequer in Jurdens Case P. 31. Eliz. Rot. 150. Neither yet is it of necessity that the Kings money or goods should come into the hands of the Testator for if he were onely a mean or Instrument whereby the King was put to loss or damage he shall be charged with so much as he hath so endamaged the King and shall be compelled at the Kings Suit reddere rationem thereof which is in nature of an Accompt for which there is a notable president in M. 30. E. 3. Rot. 6. Porters Case which sée in Co. l. 11. 92. b. in the Earl of Devonshires Case And therefore it was also resolved in Sir VValter Mildmayes Case that the Quéen might either charge the executors of Sir VValter or those that made such unlawful warrant at her election And if they were dead their executors c. for in as much as they were in their life-time chargeable by the Law in that Case if they die before judgement against them without question their executors shall be charged because where the Testator is by the Law chargeable to satisfie the King for losse or dammage done unto him his death shall not dispence therewith but that his Executors shall be also chargeable to the King c. F. N. B. 5. l. 65 In a Praecipe in Capite the Tenant shall not plead Protestaâ—â— that the Tenements are not holden of the King albeit the writ supposeth as much but he ought to take it by protestation and to plead other matter in barre if he have any matter to plead â—ender Di. â—ark 66 In a writ of Right F. N. B. 5. m. the Demandant ought to count of his own seisin or the seisin of his Ancestor c. yet the seisin is not traversable but the tenant may tender a Di. mark to enquire of that seisin c. and if it be found with the tenant that the Ancestor was not seised the Demandant shall be barred Howbeit if the King be party Demandant the Tenant shall not tender a Demy Mark to enquire of the seisin but he ought to plead in bar and there the tenant shall not imparâ— without the assent of the Kings servants The King may â—â—cuse appeaâ—â—nce 67 The King by a writ de warrantia diei may command the Iustices to excuse the Defendant of appearing at the day F. N. B. 17. b. whereunto he was adjourned to appear in proper person And whether the Cause alledged in the writ be true or false it is not material when the King certifies that he is in his service for it séems by the words of the writ that the King by his Prerogative may warrant that default for a day And so also it séemes that if the tenant in a Praecipe quod reddat at the great Cape or petit Cape returned make default that before judgment upon that default the King may command such a writ to the Iustices rehearsing that the tenant was in his service c. and commanding them that his default should not turn to his prejudice And it stands with reason that the King may do it because every one is bound to serve the King in his affairs c. â—â—nipresence 〈◊〉 his Courts 68 If false Iudgment be given for the King in any Action or Suit F. N. B. 21. b. 107. q. Finch 81. the party grieved shall have a writ of Error and assign Errours without suing any Scire facias against the King ad audiend errores because the King is alwayes present in Court and that is the cause that the form of Entry in all Suits for the King is Edvardus Herbert Miles Attornatus Domini Regis generalis qui pro domino Rege sequitur venit hic in Curia c. And doth not say Dominus Rex per Edvardum Herbert Attornatum suum c. And therefore it is also that the King cannot be Non-suit that all Acts of Parliaments that concern him are general and the Court must take notice of them without pleading them for he is in all and all have their part in him c. â—ake Attorâ—ys 69 It séems that before the Statutes which ordain F. N. B. 25. c. e. â— 26. a. that a man may make Attorneys c. the Iustices neither would nor could suffer the Plaintiffe or Defendant Demandant or tenant to make Attorneys in any Action or Court whatsoever yet the King by his Prerogative even before those Statutes might grant to a man power to make Attorneys and by his Writs or Letters might command the Iudges to admit and receive them c. and that without any cause shewed in the writ c. â—â—e King canâ—â—t be Jointâ—ant 70 In the Register there is the form of a writ F. N. B. 32. g. wherein a common person is joyned with the King in a Quare Impedit which runs thus Rex vice comiti c. praecipe R. de C. quod justè c. permittat nos P. de T. praesentare c. But Fitz. saith in his N. B. that the common opinion in his time was that the King should have the whole presentment sole and should have a sole Action c. although he séems to hold the contrary himself Ideò quaere â—sent again 71 If the King recover by a Quare Impedit F. N. B. 34. f. and after ratifie the Estate of the Incumbent yet at the next avoidance the King shall present because the Recovery and Iudgement for him were not executed â—â—â—sent by 〈◊〉 72 In a Frée Chappel of the Kings F. N. B. 34. â— where the Dean ought to give the Prebends if he make not collation within six moneths unto them then shall the King present unto them by Laps as Ordinary F. N. B. 34. k. 73 If the Bishop make collation and die before induction Not inducted or instalment and the King seise the temporalties he shall have that presentment because the Church is not full against the King until the Parson or Prebend be inducted or installed F. N. B. 35. a. 74 If the Kings tenant hath title to present to an Advowson Advowson Ward Present which is void
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
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
35 H. 8. 26 In Debt upon an Obligation to perform Covenants of an Indenture Obligation Covenants c. the Defendant pleads a Release of all Covenants in the same Indenture made five yeares after the date of the said Indenture and this was held no good plea in barre of the Obligation because the limitation of the condition being for the performance of Covenants if any Covenant was broken before the sealing and delivery of the Release the Obligation was thereby forfeit and could not be avoided by the Release Dier 210 24. 4 Eliz. 27 A man deviseth Devise that his Executors shall take the profits of his Land untill his heir shall be at full age to pay Debts c. the one dies after the Survivor makes his Executors and dies also the Executor of the Executor last dying shall take the profits because it is an interest that survives It is otherwise if it had béen but a bare authority Dier 219 8. 5 Eliz. 28 A man deviseth that after the death of his wife Devise his land shall be sold by his Executors unà cum assensu A. and makes his wife and a stranger his Executors and dies the feme dies and A. also dies In this case the authority is determined Dier 242 51. 8 Eliz. 29 Two submitted themselves to an Arbitrament by Recognisance concerning the right and interest of 200 acres of land Arbitrameâ— called Kelstorling and for all other actions and suits concerning the same Ita quòd Arbitrium c. before a certain day The Arbitrators award that the Defendant shall have brakes during his life in the Waste of the Town of Kelstorn rendring to the other 2 s. per annum And upon a Demurrer it was adjudged a void award for three causes 1 Because they made their award but of one thing whereas the submission was of two Howbeit if the submission had been by Parol it had been a good award of part 2 They have not awarded the property of the land whereof the submission was but a profit onely out of the land 3 They have not in their award named Kelstorling and although they might intend it yet an averrement of the parties cannot declaim the intent of the Arbitrators And all this because their power being but a bare authority must be strictly observed 100 And therefore these may be countermanded so cannot those An office without profit discharged with profit otherwise 1 Where the Grantée of an Office hath no profits thereby Co. Inst p. 1. 233. a. 4 c. but onely a Collateral certaine Fée there the Grantor may discharge him of his service as to be a Bailiff Receiver Surveyor Auditor or the like the exercise whereof is onely Labour and Charge to him Howbeit though he do discharge yet he must have his Fée c. But where the Grantée besides his certain Fee hath also profits and availes by reason of his Office there the Grantor cannot discharge him of his service or attendance for that would be to the prejudice of the Grantée As if a man doth grant to another the Stewardship of his Courts of his Manors with a certain Fée the Grantor cannot discharge him of his Service and attendance because he hath other profits and fées belonging to his Office which he should lose if he were discharged of his Office So it is also in the case which Littleton putteth § 379. of the Office of the Kéeper of a Park because in that case also he hath not onely his Fée certain but profits and availes also in respect of his Office as Déer-skins Shoulders c Attornment 2 If a feme sole maketh a Lease for life or years reserving a Rent Co. ib. 310. b. 1. and granteth the Reversion in Fée and taketh husband this is a Countermand of the Attornment Power of Arâ—â—tration cannot be made inevocable 3 If a man be bound by Obligation to stand to abide observe Co. l. 8. 82. a. 3. in Vinyors Case c. the Rule Arbitrament c. of another yet he may countermand the authority so given to the Arbitrator for a man cannot by his act make such 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 assign auditors to take an accompt or I make one my Factor or if I submit my selfe to an arbitrament albeit these are made by expresse words irrevocable or although I grant or bind my self that all these shall stand irrevocably neverthelesse they may be revoked So likewise if I make my last Will and Testament irrevocable yet I may afterwards at my pleasure revoke it for my act and my words cannot alter the judgment of Law and make that irrevokable which of its own nature is revocable And therefore notwithstanding it is said in 5 E. 4. 3 6. That if I be bound to stand to the award that I S. shall make I cannot discharge that Arbitrament because I have bound my self to stand to his award and that if it were without Obligation it would be otherwise Neverthelesse in the one case and in the other the authority of the arbitrator may be countermanded but then in the one case he shall forfeit his Obligation and in the other case he shall lose nothing for ex unda submissione non oritur actio And with this agrées Brooke in abridging the said Book of 5 E. 4. Vide 21 H. 6. 30. 28 H. 6. 6. 49 E. 3. 9. 18 E. 4. 9. 8 E. 4. 10. 9 E. 4. 4. b. 1 a E. 5. 28 H. 8. Di 22. Perkins 14 E. 4. 8. Perkins 19 6. 4 A licence to come to my house to speake with me Licence Authority Countermandable Presentment Oblige not Goods bailed over to be delivered to J. S. or to bestow in Almes a letter of Attorney to deliver seisin all these may be countermanded before they be done But if I present J. S. to a Church I cannot after varie and present a new for a kind of Interest passeth out of me So if I deliver an Obligation as a sorowle into a strangers hand to be delivered to the Obligée upon a Condition to be performed this cannot be countermanded for upon the delivery there passeth an Interest to the Obligée he being as it were party and privy to the delivery Finch 32. Dier 49. 7. c. 33 H. 8. 5 A man delivers a summe of money to another to the use and behoofe of a Woman Bailment and to deliver it unto her upon the day of her marriage In this Case when a man makes such a conditional gift of his frée will and pleasure and delivers the thing in Ovell hand to kéep to the use of a stranger before that condition be performed the bailment which is but a méere authority is revocable So if
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
Action Also after the escape if the Capias ad satisfaciendum be not returned and filed it may be renued against the Prisoner Co. l. 3. 64. a. 4. Pennants case 22. A man leases his Land Acceptance of rent no confirmation upon condition that the Lessee shall not assigne any part thereof the condition is broken and the Lessor before notice of the assignment accepts the rent due after such assignment In this case the condition being collaterall the breaking thereof may be so secretly contrived that it is not possible for the Lessor to come to the knowledge thereof and therefore notice in this case is materiall and issuable for otherwise the Lessee should take advantage of his owne fraud It is otherwise if a Lease be made with condition of re-entry upon non-payment of the rent for in such case both parties may take notice thereof by the Indenture and therefore by acceptance of the rent afterwards the Lessor dispenseth with the Condition and confirmes the Lease Co. l 3. 76. b. 2. Fermors case 23. A. possessed of divers parcells of Land within the Mannor of S. for years at will and by copy and also of others there in fee Fine no barâ— to the Lord. demiseth the whole to B. for life and thereupon levies a Fine to B. c. of so many acres as amount to the whole Land continues possession and payes the rents to the Lord In this case albeit five yeares passe yet the Lord is not barred for it is unreasonable to give the Lessee benefit in this case of the Lessors non-claime when the tort and covin of the Lessee is the cause of his non-claime for a man shall not take advantage of his owne covin or wrong Co. l. 4. 82. a. 4. Sir Anthony Corbeâ—s case 24. A. deviseth his Land to B. till eight hundred pounds be raised for the preferment of his Daughters and dyes Devise to raise money C. his heire conceales the Will enters and dyes In this case B. shall have allowance for the time that the Will was concealed and shall hold the Land so much the longer according to the time that the Will was so concealed untill the eight hundred pounds may be raised for it is against reason that the heire should enter upon the Land so much the sooner because his concealment of the will was a wrong and then he should take advantage of his own wrong Waste in a Colemine 25. A. demiseth a Close to B. wherein there is a Colemine un-opened Co. l. 5. 12. b. 3. in Sanders case B. opens the Mine and assignes his terme to C. except all Mines C. digs Coles out of the Mine and A. brings an Action of waste against C. in this A. shall recover locum vastarum and the exception shall not excuse it for the opening of the Mine by B. was a tort and that being committed if B. should excuse or avoid it by the exception he should thereby take advantage of his own wrong 26. If A. grants to B. one hundred cords of wood to be cut downe and taken by the assignment of A. If A. in convenient time after request by B. do not assigne them B. may take them himselfe without any assignment Co. l. 24. b. 4. in Sir Thomas Palmers case for the Grantor in such case by his own act or default shall not derogate from his grant nor take advantage by such his neglect of non-assignment there is the same Law of Estovers c. to be assigned by the Bayliff of a Mannor c. Executor de son tort 27. An Executor of his own wrong shall not retaine goods in his own hands to satisfie his proper debt Co. l. 5. 30. b. 3. in Coulters case for then he should take advantage of his own wrong which the Law will not permit Age not allowed 28. Regularly in all reall actions at the Common Law Co. l. 6. 4. b. 3. in Markals case if the Tenant be within age and in by descent he shall have his age Howbeit if the Action be founded upon his owne wrong as in Cessavit upon his cesser in such case he shall not have his age For then he should take advantage of his own wrong After Judgement the bond not valid 29. A. hath Iudgement in an Action of debt upon an Obligation Co. l. 6 45. b. 2. in Higgens case the Defendant brings a Writ of Error and hanging the Writ of Error the Plaintiff brings a new Action of debt upon the same Obligation but it was adjudged he could not for untill the Iudgment be reversed by Error the Obligation remaines quasht and if there be Error in the proceeding that is the Plaintiffs fault and he shall not take advantage of his own tort or default Release to a Joynt-tenant 30. A. and B. are Ioynt-tenants for life Co. l. 6. 78. b. The Lord of Abergavenies case and Iudgement is had against A. in debt who releaseth to B. and B. dyes In this case albeit the terme is expired so as the Reversioner may enter yet the Land shall stand charged with the Iudgement during the life of A. for otherwise A. should take advantage of his own Act and thereby avoid the debt and Iudgment of the Creditor who is a stranger to the release Action upon the case 31. A. recovers against B. in the Common Pleas and dyes Co. l. 7. 4. b. 2. in Bulwers case C. upon the Iudgment in the name of H. outlawes B. in the Hustings of London die lunae proximum post festum Simonis Judae and thereupon P. is taken by a Capias Utlagatum in Norfolke and there imprisoned whereupon B. brings an Action upon the case against C. Quia maliciose deceptive machinatus est c. And in this case it was objected that the Capias Utlagatum was erronious because the Outlawry was therein recited to be proximum ante festum c. but that exception was not allowed because the error in the Writ which the Defendant C. had tortiously pursued shall give no advantage to himselfe but in as much as B. the Plaintiff was imprisoned and molested thereby he had thereupon good cause of Action The heire not estopt 32. Where Lands were conveyed to Baron and Feme Co. l. 8. 53. b. 3. in Sims his case 18. E. 3. fo 9. and to the heires of the Baron and the Baron gives them in tail the Baron dyes the Feme recovers the Land against the Donee by a writ of Cui in vita supposing that she had the Land to her and her heires in fee the Feme after the Recovery enfeoffs another and dyes the Donee in tail dyes without issue the issue of Baron and Feme brings a Formedon in Reverter against the Feoffee of the Feme And in this case albeit the issue was heire to the Feme and thereby estopt by the Recovery in the Cui in
entring of it upon the Writ of Covenant the Mannor was omitted and thereupon Error was brought but after that albeit the transcript of the Fine was removed into the Kings B. the Iudges of the Common Place amended the Record because it appeared to them that the Kings-Silver was paid for the Mannor and whereas the Writ of Covenant was Dede meipso for Teste meipso they amended that also and certified it into the K. B. upon Diminution and it was allowed for it was against reason that the Misprision of the Officer or Clerk should prejudice the Conusee when it hapned not by any default or neglect in him Vide Dyer 225. 34. Niâ—i Prius 14. At a Nifi prius the Iury after departure come againe and said Dyer 218. 4. 5 Eliz. that they were all agreed save one who had eaten and drunk thereupon they were re-manded at the request of the Plaintiff and after gave Verdict for him and this was held good Howbeit day was given in Bank to assesse a Fine upon the said Iuror and the Fine was assessed at twenty pounds but the Plaintiff had Iudgment Execution 15. Dyer 244. 61. 8 Eliz. The Solicitor of the Plaintiff and the Sheriff conspire to arrest one condemned in debt and after procure a Capias ad satisfaciendum and the Prisoner being brought into the Court upon the returne of the Writ had the matter examined and it was found ut supra yet because the Plaintiff was not particeps criminis he remained still in execution and the Sheriff and Solicitor were amercied viz. the Sheriff at ten pounds and the Solicitor at five pounds 151. It driveth not a man to shew take notice of or do that which by intendment he knoweth not or should or cannot do Men in one County take no notice of things done in another 1. Because the Inhabitants of one County do not accampany together with men of another County at County Courts Turnes Leetes Co. Inst pars 50. a. 1. and othor Courts therefore in Iudgement of Law they shall take no notice of a Livery in another County to passe Lands in their owne County Waste 2. If waste be done Sparsim here and there in Woods the whole Wood shall be recovered Co. ibid. 54. a. 4. So likewise in Houses so many whole Roomes shall be recovered wherein the Waste is done for it would be impossible or at least inconvenient for the Plaintiff to recover onely part of the Wood or part of the Roomes of the Houses because in such case he could not be able conveniently to make any use of them Protection cast 3. Co. ibid. 131. a. 4. A protection may be cast either by a stranger or by the party himselfe for an Infant Feme covert Monke or any other may cast a protection for the Tenant or Defendant and this difference there is when a stranger casteth it and when the Tenant or Defendant casteth it himselfe for the Defendant or Tenant casting it he must shew cause wherefore he ought to take advantage of the protection but a stranger need not know the cause save onely that the Tenant or Defendant is thereby protected because it is presumed the stranger may not know the cause Co. ibid. 157. a. 2. Dy. 231. Challenge 4. He that challengeth for the Hundred must shew in what Hundred it is and not drive the other party to shew it Not to shew writings 5. If Land be morgaged upon Condition Co. ibid. 226. a. 3. and the Morgagee letteth the Lands for years reserving a rent the Condition is performed the Morgagor re-enters in an Action of Debt brought for the rent the Lessee shall plead the Condition and Re-entry without shewing forth any Deed So in an Assize the Tenant pleads a Feoffment of the Ancestor of the Plaintiff unto him c. the Plaintiff saith That the Feoffment was upon Condition c. and that the Condition was broken and pleads a Re-entry and that the Tenant entred and took away the Chest in which the Deed was and yet detaineth the same In this case the Plaintiff shall not be enforced to shew the Deed. Wager 6. Wheresoever a man is charged as Executor or Administrator Co. ibid. 295. a. 4. he shall not wage his Law for no man shall wage his Law of another mans Deed because the Law presumes he is not acquainted therewith It is otherwise of a Successor to an Abbot for that the House never dyes Acceptance of rent no confirmation 7. P. Leases on Condition the Lessee shall not alien any part Co l. 3. 64. a. 4. in Pennants case the Condition is broken the Lessor before notice accepts the Rent due after This acceptance is no confirmation of the Lease because the Assignment may be so secret that the Lessor cannot know it It is otherwise where a Lease is made rendring rent at a certaine day with clause of Re-entry upon non-payment of the Rent in this case if the Lessor hath advantage of Re-entry upon non-payment of the Rent at the day acceptance of the Rent after confirmes the Lease because the Lessor in such case might know the day and time of payment of the rent Certaine quantities of water not required 8. Co. l. 4. 88. b. 4. in Luttrells case In an Action upon the case for diverting a streame of water from a Mill the Plaintiff may alleadge the diverting of a great quantity of water without shewing how much in certaine for it is impossible to shew how much water in certaine runs by the Mill and the quantity of water is not materiall Co. l. 4. 27. b. 4. in Hubbard and Hamonds case 9. Where a Copy-holder payes a certaine Fine Copy-hold Fines he ought to pay it at the Court upon his admittance but where the Fine is uncertaine the Copy-holder is not bound to pay it presently because he knoweth not what Fine the Lord will assesse nemo tenetur divinare And because he cannot then provide any certaine summe he shall have a convenient time to pay it in case where the Lord limits no certaine time for the payment thereof Co. l 5. 101. a. 2. in Penrud docks case 10. Nusance Quod permiâ—tat A. raiseth an house to the nusance of the curtilage of B. in this case if A. alien his house and B. his curtilage the Feoffee of B. shall not have a Quod permittat against the Feoffee of A. before notice given to the Feoffee of A. to abate the nusance because he was a stranger to it and by consequence might be ignorant thereof Howbeit B. might have brought it against A. without notice for that A. was the Actor of the nusance Co. l. 5. 113. b. 1. in Mallories case 11. Notice requisite to take advantage of a Condition If the Lessor in the absence of the Lessee enter and make Feoffment and the Lessee re-enter albeit
and put to a right because he that hath the estate in him cannot be put to his Action Entry or Claime for that he hath already that which Action Entry or Claime can vest in him or give him And therefore in vaine was the bargaine and sale and Fine when they could not alter the estates of them in Remainder Co. l. 10. 90. a. 4. in Doctor Leyfields case 19. Colour shall not be given in any Action Colour to the Plaintiff where the Plea goes in bar of the right for it were in vaine to give colour of right and to bar it after As in Assize or Writ of Entry in nature of an Assize if collaterall Warranty be pleaded and the Defendant relye upon it or if an Estoppell be pleaded or Fine levyed with Proclamations c. there is no need of any colour to be given because the Plaintiff is barred albeit he had right So it is also where the Plaintiff conveys the title unto him by Letters Patents of the King or by Act of Parliament for that bars the right c. it is otherwise where the Possession is onely barred c. vide pl. ibid. P. C. 8. b. 3. in Fogassaes case 20. When a man is not bound to doe a thing Not tyed to answer in a Plea concerning it he need not make answer thereunto as in Fogassaes case exception was taken for that the suerty was not named that was bound for answering the custome and it was said that because the Statute speaks of no surety and the agreement might be good without surety it had been in vain to speak of it or to make answer thereunto and thereupon that exception quasht Death not traversable 21. In a Formedon in Reverter or Remainder P. C. 32. b. 1. Colthrist versus Bevishin a man shall not shew the death of the particular Tenant because it is but a Conveyance and not traversable nor issuable So in Colthrist and Bevishins case the Defendant shall not shew the deaths of Henry and Elenor Bevishin because the Plaintiff Colthrist should have traversed it and said that they were alive he should confesse that he had not title to the Land before their lives and would have destroyed his own Action And therefore in regard their deaths were not traversable it was in vaine for the Defendant to shew it by consequent he shall not be compelled to do it Covin 22. A man need not shew any speciall cause of Covin when it is apparent P. C. 49. b. 2. in Wimbish and Talboies case Ibid. 55. b. 3. as when Feme Tenant in tail for her Ioynture by Covin appeares in a Formedon in Remainder brought against her by one that pretends title in Remainder and she appeares the first day without Essoine View c. and Iudgement is had against her by nihil dicit here the Covin is apparent and need not be specially shewed for it is in vaine to shew that which is apparent of it selfe So it is a vaine thing to aver that an Horse bought which wants eyes is blind when it is apparent that he must be blind when he wants eyes If the Tenant enfeoff his Son within age by collusion the Lord shall seise him for his Ward and shall not be forced to shew this Collusion in speciall causa qua supra Pretenced titles 23. In an Action upon the Statute of 32 H. 8. 9. against buying pretenced titles P. C. 81. a. 4. in Partridges case against Strange and Croker the Plaintiff need not aver the title or right to be pretenced because the Statute declares and intends the title to be pretenced when neither his Ancestors nor those from whom he claimes have injoyed the Land in Possession Reversion or Remainder nor received the rents or profits thereof for a yeare before the purchase thereof and therefore because it were in vain for him to aver the pretenced title because the Statute makes it so he shall not doe it 153. Non licet quod dispendio licet Surrenders 1. M. Leases for twenty one years to S. and is bound to make a new Lease to S. upon surrender of the old Co. l. 5. 21. a. 4. in Sir Antohny Maines case M. Leases to another for eighty years by Fine and S. brings an Action of debt upon the Bond In this case albeit S. may surrender and ought to do the first act viz. to surrender yet M. hath forfeited his Bond although S. never surrender for S. shall not now be forced to surrender because if he should surrender M. cannot now make him a new Lease which w s the effect and end of the Surrender for by such Surrender S. will lose his old terme without possibility of having a new one And Non licet quod dispendio licet Parson not to â—esigne 2. I. Parson of the Church of G. was bound in an Obligation to the Prior of E. to resigne his Church to the Prior for a certaine Pension Co. l. 5. 21. b. 1. ibid. 14 H. 4. 19. a. as it should be agreed the Parson and Prior agree for a Pension of C. s. yet the Parson refused to resigne And 14 H. 4. 19. a. it was the opinion of all the Court that albeit they were agreed of the Pension yet the Parson was not bound to resigne untill he might be sure of his Pension and that could not be without Deed And therefore in such case the Parson was not bound to resigne untill the Prior should â—ender a Deed of the Pension whereby he might be sure 〈◊〉 it 154. It favoreth Truth Faith and Certainty Vide Max. 41. â—9 Co. Inst pars 1. 139. a. 3. 1. Regularly upon a nonsuit the Demandant or Plaintiff may againe commence an action of like nature c. Howbeit in an Attaint Nonsuit in Attaint peremptoria if the Plaintiff after apparance be nonsuit it is peremtorie and he is thereby barred from ever bringing an attaint against the first iury againe and the reason is for the faith that the Law gives to the verdict and for the terrible and fearefull judgment that should be given against the first jury if they should be convicted and therefore upon the nonsuit the Plaintiff shall be imprisoned and the pledges amercied Vide infra 11. Co. ibid 227. b. 3. Co. ibid b. 4. L. S. 366. 2. A speciall verdict or at large may be given in any action A speciall verdict and upon any issue be the issue generall or speciall because the truth of the cases may be the better discovered and discussed and justice and right donâ— so if a man seised of lands in fee le ts them for life without Deed rendring rent upon condition of re-entry upon non-payment of the rent whereupon if the lessor enter and the lessee bring an assise of Novel Disseisin the jurors may find the matter at large and the Iudges ought to adjudge it for the tenant albeit
transitory causes of Action the Plaintiff might alledge the same in what place or County he would should be subverted which ought not to be suffered and therefore the Iudges of both Courts allowed a Traverse upon a Traverse in that case And the wisdome of the Iudges and Sages of the Law have alwayes suppressed new and oblique inventions in derogation of the common Law whereupon it is said by the Iudges in one Book 38 E. 3. 1. we will not change the Law which hath been alwayes used and another saith 2 H. 4. 18. it is better that it be turned to a default then the Law should be changed or any innovation made Warranty that begins by Disseisin by an oblique grant 3. The Father Tenant for life Co. l. 5. 80. a. 1. Fitzherberts case the Remainder to the Son and Heire apparent in tail Leases to A. for years with purpose that A. should enfeoff B. unto whom the Father should release with Warranty all which is done accordingly this is a Warranty that begins by Disseisin for albeit the Warranty be not made at the time of the Disseisin which was upon the Feoffment to B. yet by construction of Law it shall be adjudged to be Warranty that begins by Disseisin this Warranty binds not because of the covin An oblique Grant of Colledge Lands void 4. The Master and Fellowes of Magdalen Colledge in Cambridge Co. l. 11. 73. b. 1. in Magdalen Colledge case grant an House in London to Queen Eliz. upon Condition that she within three moneths should convey it to Benedict Spinola and his Heirs who doth so accordingly this Grant of the Colledge is void by the Statute of the 13 Eliz. 10. and was not helped by the Statute of Confirmation of the 18 Eliz. 2. for it appeared that the intent of the Master and Fellowes was that they should convey the said House to Benedict Spinola and his heires and therefore that which they could not do de directo they attempt to do ex obliquo to grant it to the Queen and her Successors but upon Condition contained in the same Grant that the Queen within three moneths should grant the House to B. Sp. and his Heires so as it was by this device endeavoured that the Queen who was the Fountaine of Iustice should be made an Instrument of injury and wrong and of the violation of a pious and excellent Law which she her selfe had made for the maintenance of Religion advancement of learning and sustenance of poore people The like In 17 E. 3. fo 59. Co. ibid. b. 4. The Fryers Carmelites who had not then any place of habitation obtaine of one John Merite who was seised of ten Acres of Meadow holden of the Bishop of Winchester to have the said ten Acres of Meadow for a place of habitation for them and because John Merite could not grant unto them the ten Acres by reason of the Statute of Mortmaine by covin contrived betwixt Merite and the Fryers to oust the Bishop of his Seigniory Merite to evade the Statute of Mortmaine grants the ten Acres to the King his Heirs and Successors whereby the Bishops Seigniory might be extinct to the end that the King should grant them over to the Fryers which he did accordingly Howbeit because here there was a practice betwixt Merite and the Fryers to take away the Bishops Seigniory it was adjudged that the Charter should be repealed and that the Carmelites should be distrained to deliver it to be cancelled Lands purchased with the Kings money 6. In Term. Trin 24. E. 3. Rot. 4. in the Exchequer Co. l. 11. 92. b. 4. in the Earle of Devonshires case one Walter Chirton the Kings Customer had purchased certaine Lands with the Kings money and by covin had caused the Vendor to enfeoff his freinds in fee to defraud the King and yet neverthelesse took the Issues and profits of the Land to his own use and those Lands were by inquisition returned with the values into the Exchequer and there by Iudgement were seised into the Kings hands untill c. for albeit the estate of the Land was never in Chirton yet the taking of the estate in the name of others and he in the meane time receiving the profits thereof was all one as if he had taken the estate in his own name especially in the Kings case and the lands being bought with the Kings money Fraudulent Indictment 7. One Verney in the 34 H. 6. Dyer 245. 65. 8. Eliz. being in execution in the Fleet for divers debts as also for Fines to the King returned into the Exchequer caused himselfe to be indicted of Felony with an intent to confesse it and to have his Clergy and so to be out of the temporall Law and then to have his purgation and all this with purpose to defraud his Creditors c. And upon a Corpus cum causa all was removed into the Kings Bench Howbeit the King having notice of the Fraud by a privy Seale commands the Iustices to stay the Araignment c. 160. Rectum est index sui Obliqui Co. l. 10. 24. b. 2. 1. In the Case of Suttons Hospitall Sir Edward Coke excuseth himselfe from answering the Objections in that case at large being Excuse to answer objections as he saith for the most part of no great moment by producing manifest and fallible proofs of the validity of that Incorporation alleadging this Maxime for the ground thereof Rectum index sui obliqui Dyer 234. 16. 7. El. 2. In a Formedon in Descender Formedon a Fine with Proclamations levied in 30 H. 8. was pleaded in Bar and the issue being upon Nul tiel Record at the day the Tenant had the Record but in the Proclamations viz. 5 6 7 8. made in Trin. Terme the yeare of the King was omitted Howbeit because in Easter Terme before and Michaelmas Terme after 30 H. 8. was exprest of necessity it did follow that the said foure Proclamations were also made in the same yeare for they being right by consequence the others were right also And thereupon it was held that he had not failed of the Record 161. It disfavoureth Improbabilities Co. Inst p. 1. 25. b. 4. Co. l. 10. 50. b. 1. in Lampets case 1. If Lands be given to a man and a woman being not his wife Lands intailed and to the Heires males of their two bodies they have an Estate Taile albeit they be not married at that time so it is also where Lands are given to a man which hath a wife and to a woman which hath a husband and the Heires of their two Bodies they also have presently an Estate Taile for the possibility that they may marry But if Lands be given to two Husbands and their Wives and to the Heires of their Bodies begotten they shall have a joynt Estate for life and severall Inheritances viz The one Husband and Wife the one Moiety
of a clause in the Roll which were expressed in the Writ and Returne Hob. 128. Pie and Coke 82. Two Informations exhibited the same day against the same party for one and the same offence Iudgement shall be given for neither for the uncertainty Vide Hob. ibid. for an Inrolment of a Deed 129. Wilton for an Amerciament in a Leet 163. Impersonalitas non concludit nec ligat Co. Inst 1. 352. b. 1. Pl. Co. 398. a. 1. 1. An Estoppell shall not be spoken impersonally as to say ut dicitur An Estoppell or the like but it ought to be a precise affirmation of that which maketh the Estoppell neither yet doth a recitall conclude any thing because it is no direct affirmation The Earle of Leycesters case in Plowd 164. Generale nihil certi implicat Generall words 1. Co. Inst 1. 33. a. 3. Dodingtons case If the King or a common person grant omnia illa messuagia in tenura l. B. scituate in W. whereas in truth they lye in D. In this case because the grant is generall and is restrained to a certaine Towne the Patentee or Grantee shall not have any Lands out of that Towne unto which the generalty of the Grant refers Slander 2. If one saith to another that he is perjured Co. l. 4. 15. a 4. Stanhop and Bilths case or that he hath forsworn himselfe in such a Court such words of slander are actionable for by these words it appeares that he hath forsworne himselfe in a judiciall proceeding but if one say to another that he hath a Mannor and hath gotten it by swearing and forswearing these words will beare no Action because they are too generall and words which shall charge any with an Action in which damages shall be recovered ought to have convenient certainty So if one call another Villain Rogue Varlet or the like or tels him that he is forsworn such words are not actionable because they are accounted words of heate and passion and benignior sententia in verbis generalibus seu dubijs est praeferenda for Actions of slander shall not be maintained by any strained construction or argument because they are more frequent now-a-dayes then in times past Schisme 3. Co. l. 5. 58. a. 4. Spâ—cots case It is not a sufficient allegation for the Bishop who refuseth to present to a benefice to say that the Presentee is a Schismatick in generall but he ought to accuse him of some Schisme or heresie in certaine to the end the Court may consult with Divines to know whether if be Schisme or no and thereupon make Iudgement whether the originall cause of refusall be just or no. Arrests 4. When the Sheriff Bayliffs or Serjeants arrest one C. l. 6. 54. a. 4. The Countess of Rutlands case it is not sufficient for them to say in generall words I arrest you but they ought upon the arrest to shew at whose Suit out of what Court for what cause they do it and when the Processe is returnable to the end that if it be upon an Execution he may pay it and free his person from Imprisonment and if upon a meane Processe either to agree with the party or to put in bail according to Law Errors 5. In Assignment of Errors a generall Assignment is not good F. N. B. 20. h. as to say in omnibus erratum est for that expresseth no certainty but the Assignment ought to be speciall and certaine as to say in hoc erratum est c. and to shew the certainty of the things and againe to say in hoc erratum est and to shew another thing sic de singulis in which he will assigne Errors Arbitrement 6. The submission to an award betwixt A. and B. was generall Co. l. 8 98. a. 2. Baspoles case viz. of all Actions Demands c. And the Award was that A. should pay B. twenty pounds And in this case it was objected that it did not appeare that the matter of the Arbitrement was the matter onely that was betwixt them because the submission was generall of all Actions Demands c. And therefore if the Arbitrement were not made of all the matters in controversie the award was void Howbeit the award was adjudged good because when the submission is generall of all Actions Demands c. Generale nihil certi Implicat and therefore it stands well with the generalty of the words that there was but one cause depending in controversie betwixt them 165. Dolosus versatur in generalibus Co. l. 3. 80. b. 4. Twines case 1. P. being indebted to T. in foure hundred pounds A fraudulent Deed. and to C. in two hundred pounds C. brings an Action of debt P. possessed of goods to the value of three hundred pounds makes a gift to T. in part of payment by the name of all his Goods and Chattells but continues the Pessession and imployes them to his own use to prevent the execution of a Fieri facias at the Suit of C. Here one of the badges of Fraud alleadged in that Grant was for that it was generall viz. of all his Goods c. Co. l. 5. 57. b. 4. Specots case 2. Schismatiquâ— It is not a sufficient allegation for a Bishop upon refusall of a Clerk to say in generall that he is a Schismatique Heritique or the like but he ought to accuse him of some crime or Error in particular because if such generall allegation shall be admitted Bishops at this day might at their pleasure deprive all Patrons of their Presentations Vide 164. 3. for Dolosus versatur c. 166. Variance Co. Inst 1. 131. a. 4. 1. A materiall Variance between a Protection Protection and the Record doth avoid it Co. ibid. 53. a. 3. 183. a. 1. 2. If the Tenant do or suffer waste to be done in Houses Waste yet if he repaire them before any Action brought there lyeth no Action of Waste against him Howbeit he cannot in such case plead Non wast fait for by reason of the Variance between the Evidence and such a Plea the Issue wil be found against him but he must plead the speciall matter according to the truth of his case Co. ibid. 282. b. 4. 3. In Battery Not guilty is a good Issue Battery where the Defendant committed no Battery at all but regularly at the common Law if the Defendant hath cause of Iustification or excuse then can he not plead not guilty for then upon the Evidence it shall be found against him because by such a Plea he confesseth the Battery and upon the Issue cannot justifie it but he must plead the speciall matter and confesse and justifie the Battery for otherwise the Variance of the Evidence from his Plea will cause the Iury to find him guilty The like Law is in many other cases and therefore it is a learning necessary to be
known because the losse of many causes dependeth thereupon As in Battery if the Defendant can justifie the same to be done of the Plaintiffs own assault he must plead it specially and must not plead the generall Issue Co. ibid. 4. In Trespasse of breaking his Close Trespasse upon not guilty he cannot give in Evidence that the Beasts came thorough the Plaintiffs Fence which he ought to keep nor upon the generall Issue justifie by reason of a Rent-charge Common or the like Co. ibid. 283. a. 1. 5. In Detinue the Defendant pleadeth non detinet Detinue in this case he cannot give in Evidence that the goods were pawned to him for money and that it is not paid but he ought to plead it Howbeit he may give in Evidence a gift from the Plaintiff for that proveth he detaineth not the Plaintiffs goods Co. ibid. 6. In Waste upon the Plea non fecit vastum Waste he may give in Evidence any thing that proveth it no Waste as by tempest lightning enemies or the like but he cannot give in Evidence justifiable Waste as to repaire the House or the like for that will cause a Variance between the Evidence and the Issue Co. ibid. l. 5. 119. Whelpdales case 7. If two men be bound in a Bond joyntly and the one is sued alone Joynt Obligees he may plead this matter in Abatement of the Writ but he cannot plead non est factum for it is his Deed though it be not his sole Deed See Whelpdales case where a man may safely plead non est factum where not and former books that treat of that matter well reconciled Co. Inst 1. 303. b. 4. See also more of this matter Co. Inst ubi supra c. And here note that in matter of pleading to prevent variance each party must be very circumspect in the ordering thereof least his Replication depart from his Count or his Rejoynder from his Bar Et sic de cetaeris Likewise what is departure in pleading and what not See Co. Inst 1. 304. per totam paginam pl. Co. 105. b. Variance inter Writ and Count. 8. Co. l. 5. 37. a. 4. Bishops case Co. l. 8. 163. a Blackamores case In an Action upon the case Variance was found betwixt the Writ and the Count in the Defendants name for in the Count he was named George and in the Writ Christopher and after Iudgement for the Plaintiff in the Common Place upon a Writ of Error in the K. B. the Iudgement was reversed by reason of that variance for the Statute of 18 Eliz. 14. gives remedy where there is no Originall Writ but not where there is a Writ and a materiall variance betwixt the Writ and Count c. Variance inter Originall and Judgement 9. There ought not to be any variance betwixt the Originall Writ Co. l. 9. 74. a. 1. Doctor Husseyes case and the Iudgement given thereupon but the Iudgement ought to be conformable to the Originall because it is grounded thereupon And therefore in Ravishment of Ward if the Action be grounded upon the Statute of Westm 2. 35. according to the forme of the Writ there prescribed the Plaintiff cannot have Iudgement at the Common Law but the Iudgement ought to be conformable and pursuant to the Originall Writ which is the Foundation and ground of the Iudgement Vide plus ubi supra Variance of names 10. The Dean and Cannons of Windsor Co. l. 10. 124. b. 2. Linne Regis case Winâ—ates case 29. 30. Eliz. Hob. 124. were incorporate by the Statute of 22 E. 4. by this name The Dean and Cannons of the Kings free Chappell c. And in the Raigne of P. and M. they made a Lease of certain Lands by this name The Dean and Cannons of the King and Queens free Chappell c. And in an Ejectione firmae brought by Wingate against Hall M. 29. and 30. Eliz. the Lease for that variance was adjudged void The like 11. Merton Colledge in Oxford Co. ibid. 125 a. 2. was incorporate by Act of Parliament anno 1. M. Per nomen Guardiani Scholarium Domus sive Collegii Scholarium de Merton c. And they made a Lease per nomen domus sive Collegii de Merton omitting Scholarium Merton Colledge case in B. R. And in an Ejectione firmae H. 30. Eliz. This omission was agreed to be a variance in substance to quash the Lease for the sayd Act hath Baptized the Colledge by the name of the Colledge of the Schollars of Merton and they made the lease by the name of the Colledge of Merton himselfe who in truth was the Founder Aud quer 12. In an Audita querela F. N. B. 104. 5. variance betwixt the Writ and the Record shall cause the Writ to abate Variance inter brief and â—â—â—nt 13. In Debt upon the Statute of 32 H. 8. 9. Pl. Co. 79 b. 4. Partridges case made against buying pretenced Titles c. That Statute was recited in the Count to commence the 28 of Aprill anno 32 H. 8. whereas it did begin the 28 of Aprill anno 31 H. 8. and was continued by prorogations untill 32 H. 8. and for that variance the Count was adjudged defective The like 14. In 20 H. 6. A man brings a Writ of Forger of false Weights Pl. ibid. 84. b. 3. and the Writ was Diversa facta munimenta c. and he counts but of Deed only and Per totam curiam for that variance the Writ shall abate Writ and Count. 15. In a Writ De consuetudinibus servitiis if the Demandant say F. N B. 15 1. 7 De reddibus arreragiis c. These words prove that the Demandant himselfe was seised of the Services and then if he count in such a Writ of the Seisin of his Ancestor and not of his own Seisin for that variance the Writ shall abate Dyer 150. 85. 3 4. P.M. 16. The Corporation of Eaton Colledge was erected by H. 6. A void lease Per nomen praepositi Collegii Regalis Collegij beatae Mariae de Eaton c. And in the time of E. 6. a Lease was made by Sir Thomas Smith and the Fellowes Per nomen Praepositi sociorum Collegii Regalis de Eaton and adjudged void for the variance Dyer 191. 22. 2 3 Eliz. 17. The relict of a Copyholder pleaded a Custome Custome to have the Copyhold during her life after her husbands death and upon the evidence the custome appeared to be only Durante viduitate and thereupon the Defendant demurring to the Evidence Iudgement was given against her Dyer 219. 11. 5. Eliz. 18. A man declares for the debt of 20 l. upon the sale of Wood Debt and gives in evidence but for twenty Markes it shall be found for the Defendant as if there had been variance in the things
of Westm 2. cap. 25. saith of it quia non est aliquod breve in Cancellaria per quod querentes habent tam festinum remedium sicut per breve novae disseisinae c. And as the Law favours an Assise so likewise it favors all such things as may speed and expedite it and abhors any thing Pl. ibid. 89. b. assise of Fresh force in London that may hinder or retard it And therefore upon a bare surmise that the Sherif is allyed fo either party the writ shall be at first directed to the Coroners and this shall be no exception to abate the writ and many other exceptions which abate other writs shall not abate an Assise because it is much favoured in Law by reason of the expedition and dispatch which accompanies it and wherein the Law takes much delight and satisfaction Vide Dyer 84. b. 83. Co Inst pars 1. 155. a. 2. 6 Albeit the writ of Assise command the Sherif Assise Quod faceret duodecim liberos et lega les homines de vicineto c. videre tenementum c. yet by antient Course the Sherif must return 24 and this is for expedition of Iustice for if twelve should only be returned no man should ever have a full Iury appear or be sworn in respect of Challenges without a Tales which would be a great delay of trials 176 Hateth Delayes Co. Inst pars 1. 32. b. 4 1 Some say that the demandant in a writ of Dower Dower who procureth or suffereth delays in that sute shall not recover damages Co. ibid. 126. b. 4. 2 The cause of an Amerciament in a plea real Amerciament personal or mixt where the King is to have a fine is for that the tenant or defendant ought to render the demand as he is commanded by the Kings writ the first day which if do he shall not be amerced so as for the delay which the tenant or defendant doth use he shall be amerced Co. ibid. 128. a. 4. 3 If the defendant plead in disability of the person an Outlawry of the same Court he shall not need to shew it forth presently Outlawry or if he plead an outlawry in barr and it be denied then he shall have a day to bring it in But if he plead an Outlawry and offer withall to shew it to the Court he must shew forth the record of the Outlawry maintenant sub pede sigilli because the plea is but dilatory Co. ibid. 158. a. 2. 4 After challenge to the Array and trial duly returned Challenge if the same party take a challenge to the Polls he must shew cause presently so if a Iuror be formerly sworn if he be then châ—llenged the party challenging must shew cause presently and that cause must rise since he was sworn likewise when the King is party or in an appeal of felony the defendant that challengeth for cause must shew his cause presently Co. ibid. 161. a. 3. 5 To Counterplead the plaintif in an Assise Counterplea by which he is delayed maketh him that pleadeth it a disseisor Otherwise it is if he had pleaded Nul tort c. Co. ibid. 260. b. 3. 6 If a man be out of the Realm Recovery and a recovery be had against him in a Praecipe by default In this case he shall not avoid such recovery because by such means a man might be infinitely delayed of his freehold and Inheritance whereof the Law hath so great regard and few or none go over but of their own freewill neither is he in such case without his ordinary remedy either by his writ of an higher nature or by a Quod ei deforceat Howbeit it is otherwise of outlawry in a personal action for de minimis non curat lex Outlawry Imprisonment and he should otherwise be without remedy Also as to a recovery there is a difference betwixt being beyond sea and imprisonment c. Co. ibid. 390. b. 3. 7 If a man be convicted of felony by verdict Voucher and delivered to the Ordinary to make purgation he cannot be vouched for that the time of his purgation if any should be is uncertain and the demandant cannot be delayed upon such an incertainty besides the tenant is not without remedy for he may have his warrantia cartae Co. l. 4 35. b. 1. in Bozouns case 8 If the King grant a protection in a Quare Impedit Protection or an Assise with a non obstante of any Law to the contrary that grant is void for by the Common Law a Protection lieth not in either of these cases for the damage that may happen to the plaintif by such great delay and a non obstante cannot avail when by the Common Law the King cannot grant the thing it self Stat. 36 E. 3. â— 9 The Statute of 36 E. 3. Stat. 1. cap. 13. Co. l. 4. 58. a. 2. in the Sadlers case which gives traverses to offices of lands seised into the Kings hands shall be taken generally according to the letter and intention of the said Act because it is for the advancement and execution of Iustice against grievous and tedious delays Ad admittend 〈◊〉 10 In a Quare Impedit if the defendant do not come in at the distress returned against him F.N.B. 38. n. the plaintif shall have a writ ad admittendum clericum directed to the Bishop without making any farther title â—â—cedendo 11 If the Iudges of any Court as well of record as other do delay the party plaintif or defendant F.N.B. 153. b c d. and will not give judgement for him when they ought to do it In this case the party grieved may have a writ de procedendo ad judicium directed to such Iudges or Iustices and thereupon an alias and pluries if they will not procéed to give Iudgement and after that an attachment if they please directed to the Coroners and returnable into the Kings Bench or Common Pleas. Assise 12 The Law favours all things Pl. Co. 75. b. 4. Wimbish the Lo. Will. which have spéed and expedition in them and abhorrs all delayes which retard or delay Iustice and therefore an Assise which by the Statute of Westm 2. cap. 25. is said to be festinum remedium is much favoured in Law so as a writ of Assise upon a bare surmise shall be at first directed to the Coroners without first directing it to the Sherif and then upon a challenge to the Array to have it afterwards directed to the Coroners which is the ordinary course for other writs 177 Unnecessary Circumstances And therefore Frustrafit per plura quod fieri potest per Pauciora The entry of the issue conâ—eable after discontinuaâ—ce 1 In a praecipe where the demandant is to recover damages Co. Inst part 1. 362. b. a. if the tenant plead non-tenancy or disclaim there the demandant
may aver him to be tenant of the land as the writ supposeth for the benefit of his damages which otherwise he should lose or otherwise he may pray judgement and enter at his election but where no damages are to be recovered as in a Formedon in descender and the like there he cannot averr him tenant but pray his judgement and enter for thereby he hath the effect of his fute and Frustra fit per plura c. And therefore if tenant in tail discontinue Littl. §. 691. and his issue bring a Formedon against the discontinuée and the discontinuée pleads that he is not tenant but utterly disclaims in the tenancy of the land In this case the judgement shall be that the tenant shall go without day and after such judgement the issue may enter into the land notwithstanding the discontinuance One patent better than two 2 When the King was to grant a reversion Co. l. 8. 167. a. 1. in the Earl of Cumberlands case the antient form was to recite the first grant and then to grant the reversion and besides by another patent to grant the lands in possession by which way a good estate passed to the patentee Howbeit to pass these several grants in one and the same patent is as good and effectual in Law as to pass them in several patents and frustra fit per plura c. Seisure Office 3 If the Office of the Marshalsie be forfeit Co. l. 9. 95. b. 3. in Sir Geo. Reynolds case the King shall be in possession thereof by seisure without office so it is also of the Temporalties of a Bishop or of a Prior Alien because the certainty of these appear in the Exchequer frustra fit c. In some cases also the King shall be in possession by office without seisure as of lands tenements offices c. which are local and whereof continual profit may be taken as where it is found by office that a condition is broken or that one attainted of felony is seised of land c. or in case of the ward of land c. In all these cases the King is in possession by office without any seisure 2 H. 6. 1. b. Finch fol. 54. 4 One that is in Court ready to joyn with the defendant may do it without process Vouchee as the vouchee the lessor of the plaintif being prayed in aid of when the defendant in a replevin avows upon him Or the Mesne when the Lord paramount avows upon him but joynder in aid cannot be by Attorney without process Co. l. 5. 21. Sir Anthony Maines case 5 M. leases for 21 years unto S. and covenants to make a new lease to S. upon the surrender of the old Covenant to surrender M. leases to another by fine for 8. years and hereupon S. without surrender of the old lease brings an action of Covenant against M. In this case the covenant is broken albeit S. do not surrender which ought to be the first act because it were in vain for him to do it in regard M. hath disabled himself to take the surrender or to make a new lease 4 E. 3. 170. 6 The demandant may waive issue upon Counterplea of voucher Waiver of issue and grant the voucher for if the Enquest pass the tenant cannot have more 1 H. 6. 4. b. 7 One that is a debtor to the King of Record in the Exchequer Kings debtor if he be seen in Court may be brought in to answer without process Dyer 59. ◠14. 36 H. 8. 8 In Replevin the defendant hath return awarded upon Nonsute of the plaintif Replevin and upon Returno habendo the Sherif returns averia elongata per Querentem and thereupon Withernam is awarded and the defendant hath delivered unto him as many of the plaintifs goods whereupon the Plaintif is to sue a second deliverance In this case he shall sue the second deliverance for the first distress and not for the Cattel delivered upon the Withernam for the Cattel of the first distress being the cause of the Withernam being delivered the other upon the Withernam will be also discharged Dyer 19◠24. 2 3. El. 9 The Sherif of Midd. had an attachment of privilege against one Kemp Cap. satisfac an attachment and likewise a Capias ad satisfaciendum against him at the same plaintifs sute both returnable the same term into the C. B. but the attachment was returnable first upon which he brings his body into Court and said he would return the Ca. sa at the day of return thereof Howbeit upon motion of one of the Protonotaries the Iustices sent the defendant to the Fleet and discharged the Sherif of him and would not stay untill the return of the Ca. Sa. there being a former judgement against him upon Record Vide Dyer 214. 47. Dyer 204. 1. 2. Eliz. Vpon nihil dicit in waste a writ issueth Waste that the Sherif in propria persona accedat ad locum vastatum to enquire of the damages and it was held good and not to enquire of the waste for that was confest by the Nihil dicit neither is it in such case necessary that he should then go in person according to West 2. cap. 25. for that is only in vasto inquirendo where the Defendant makes default to the distress 178 Expedit Reipublicae ut sit finis Litium 1 Regularly an Abbot Prior Bishop Abbot Annuity or other sole Corporation cannot disclaim Co Inst p rs 1. 103. a. 1. or do any act to the prejudice of their house or benefice but what may be avoided by the successor yet if an Abbot Bishop c. acknowledge the action in a writ of Annuity this shall bind the successor because he cannot falsifie it in an higher action and Expedit reipublicae ut sit finis Litium Vide supra Max. 1. case 4. 93 10. So it is likewise in an action of debt upon an Obligation Statute or Recognisance for there must be an end of sutes and Res judicata pro veritate accipitur Challenge 2 If the plaintif allege a cause of challenge against the Sherif Co. ibid. 158 a. 3. 18 E. 4. 8. the process shall be directed to the Coroners and if any cause against any of the Coroners process shall be awarded to the rest if against all of them then the Court shall appoint certain Elisors or Esliors so nanamed of the French word eslire to choose because they are named by the Court against whose return no challenge shall be taken to the array Howbeit challenge may be yet made to the Polles but that shall be also presently examined and setled in Court For Expedit reipublicae c. Partition 3 A partition of intailed lands betwéen parceners Co. ibid. 173. b. 1. being equal at the time of the partition shall bind the issues in tail for ever albeit
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