cause of the Divorce was first moved shall lose the land as if the feme sued for it the baron shall have it è contrà Tamen quaere for one book saith that the land shall be divided betwixt them per Fitzherbert F.N.B. 121. p. 64 If a man be condemned in trespasse or debt upon an obligation Capias pro fine where he denies his déed at the suit of the partie and after he that is condemned is taken by Capias pro fine at the suit of the King and committed to the Gaole here if the Gaoler suffer him to escape the party shall have an action of debt against the Gaoler for this condemnation and yet he was not committed to him at his suit but at the suit of the King Howbeit within the yeare after the condemnation and judgement given this suit for the King shall serve as well for the party as for the King because the King was entitled to it by the party for his suit and judgement was the cause of the Kings fine It is otherwise after the yeare because it will be intended they are agréed and then the party is put to his Scire facias c. Co. Inst pars 1 245. b. 2. 65 If a Bastard eigne after the deceease of the father entreth Bastard Muâ—â— and the King seiseth the land for some contempt supposed to be committed by the Bastard and the Bastard dies and his issue is upon his petition restored to the possession for that the seisure was without cause In this case the Mulier is barred for ever for the possession of the King when he hath no cause of seisure shall be adjudged the possession of him for whose cause he seised But if after the death of the father the Mulier be found heire and within age and the King seiseth In that case the possession of the King is in right of the Mulier and vesteth the actual possession in the Mulier for that she was the cause that occasioned the seisure and consequently the Bastard eigne is in such case fore-inclosed of any right for ever So it is likewise when the King seiseth for a contempt or other offence of the father or any other ancestor for in that case also if the issue of the Bastard eigne upon a petition be restored for that the seisure was without cause the Mulier is not barred for the Bastard could never enter and consequently could gaine no estate in the land but the possession of the King shall be adjudged in the right of the Mulier and the rather for that the father or other ancestor of the Mulier was the cause of the seisure Dyer 100. a. 70 1 Mar. 66 If the King grant land by Charter probis hominibus villae de Islington rendring rent Kings Chancâ— this is a good and perpetual Corporation for that intent but if the King release or give them the rent and fée-farme it séemes the Corporation is ipso facto dissolved for the rent and farme were the cause of their incorporation 22 Cujus est dare ejus est disponere A proviso imports a condition 1 A. bargaines and sels the Mannors of D. unto which an Advowson was appendant with the appurtenances unto B. and his heires provided alwayes Co. l. 2. 71. b. 2 The Lord Cromwels case that B. regrant the Advowson to A. during his life B. dies not having regranted the Advowson to A. who enters for the Condition broken Here whereas it was amongst other things objected that this Proviso could not import a Condition because the Bargainor did onely covenant with the Bargainée and therefore the Bargainée should also be understood onely to Covenant with the Bargainor and so that Proviso onely to import a Covenant and not a Condition It was resolved that it had the force of a Condition because it was not unjust or unequal that the Bargainor from whom the land moved should annex what Condition soever he pleased to the estate of the land for Cujus est dare c. Feofment to the use of a Will 2 If a man seised of lands in fée makes feoffment to the use of such person and persons and for such estate and estates Co. l. 6. 18. a. 1. Sir Edward Cleres case as he shall apppoint by his will here by operation of Law the use rests in the feoffor and he is seised of a qualified fée viz. until declaration and limitation be made according to his power so also when a man makes feoffment to the use of his last will he is in the mean time seised to the use of himselfe and his heires Legiantia naturalis acquisita 3 Legiantia naturalis may be properly said to be pura indefinita Co. l. 7. 5. b. 4. Calvins case but Legiantia acquisita may be limited according to the will of the King that grants it as to an alien and his heires or to him and the heires of his body or to him for life onely or upon Condition c. for Cujus est dare c. A stranger may take advantage of a condition 4 If A. grants lands to B. for life the remainder to C. for life Plowd 24. b. 4. 31. a. 4. Colthrist and Beinshin ibid. 34. â—â—1 and if C. die living B. that then they shall remaine to D. for life here although it was objected that the remainder to D. was void because limited to commence upon a Condition whereof none can take advantage but privies yet it was adjudged good For that God hath committed all wordly things to the order and dispose of men So that when any doth lawfully enjoy such things he may order or convey or give them where when and how he pleaseth according to his intent and meaning so that his intent be not against Law against Reason or repugnant And therefore in this case when the Lessor appoints the remainder to the Defendant ut supra his intent is plainly discovered thereby and reason requires that his intent should be performed viz. that the remainder should take effect in manner and forme as he hath appointed Liberty given to the tenant to pay which he will 5 If there be Lord and Tenant and the Lord holds by a Capon Plowd 96. a. 4. Woodlands case or an Egge or 12 d. rent Here the Lord shall not come to the land and take a Capon and Egge or 12 d. being arrere although he find it there but the onely remedie is to distrein for it Howbeit in that case if the Tenant have 20 Capons 20 egges or 20 s. of Silver it is in the power of the Tenant to give the Lord which Capon Egg or twelve pence he pleaseth So that the liberty is not given to the Lord to take which of them he will but to the Tenant who is to pay the thing Hedgboot c. by assignment 6 The Lessor covenants Dyer 19. 115â— 28 H. 8.
Quare Impedit against the Lady Maltravers Co ib. 10 E. 3. 53. and she pleaded that she was Covert of Baron whereunto it was replied for the King that her husband the Lord Maltravers was put in exile for a certain cause she was ruled to answer Vide more examples hereof in Coke ubi supra where this difference is put that if the Husband be condemned to perpetuall banishment his wife in his absence and in her own name shall sue and be sued but if it be but Relegation for a time it seems to be otherwise And all this least the parties that have cause of Action should remain without remedy for when he is condemned to perpetuall banishment he is as a Monk profest dead in Law There is the same Law also of perpetuall abjuration 〈◊〉 person â—ll be chargâ—â— with an anâ—ity though â—harged by â—â—â—oes 11. If a man grant a Rent-charge out of his Land Co ib. 146. b. 1. Co. L. 7 39 b. 2. in Lillingstons case with Proviso that the Grantee shall not charge his person in such case regularly the Land shall be onely charged and his person free And yet in some case where there is such a Proviso in the Grant that the person of the Grantor shall not be charged neverthelesse the person of the Grantor shall be charged As if a man grant a rent charge out of certaine Lands to another for life with such a Proviso the rent is behind the grantee dyeth in this case the Executors of the Grantee shall have an action of debt against the Grantor and charge his person for the arrearages due in the life of the Grantee because the Executors have no other remedy against the Grantor for the arrearages Vide infr 32. Litt. 252. Co. 169. b. 4. 12. Where in Dower or upon Partition betwixt parcenors Egalty of partition a rent is granted to supply the thirds or for egalty of partition in such case the Law doth give a Distresse lest the Grantee should be without remedy having in liew thereof departed with a valuable recompence in Land Co. ibid. 197. a. 4. 13. For twenty shillings rent Tenants in common shall joyne in Assize or a pound of Pepper payable yearly two tenants in common ought to have severall Assises because they have them by severable titles as one tenant in common may have an Assise of the moity of twenty shillings or of the moity of a pound of Pepper de medietate unius librae piperis but not of ten shillings or de dimidio librae piperis And for that these things are in themselves severable Howbeit for an Hawk Horse or the like which are intire albeit they be tenants in common yet shall they joyne in an Assise because otherwise they should be without remedy for one of them cannot make his plaint in Assise of the moity of a Hawk Horse c. that were against the order of nature which the Law will not suffer and if they should not joyne they should have Damnum injuriam and yet should have no remedy by Law which would be inconvenient for the Law will that in every case where a man is wronged and endamaged that he shall have remedy Aliquid conceditur ne injuria remaneret impunita quod alias non concederetur so also shall they joyne in a Quare impedit in a Writ of right ward or ravishment of ward for the body for the same reason Co. ibid. 198. a. 3. Co. l. 10. 134. b. 3. in Read and Redmans case 14. If there be two Tenants in common of an Advowson The survivor shall recover and a stranger usurps so as the right is turned to an action and they bring a Writ of Quare impedit which concernes the realty the six moneths passe and the one dyeth In this case the Writ shall not abate but the survivor shall recover for otherwise there would be no remedy to redresse this wrong and so it is also of Coparceners Litt. S. 365. Co. ibid. 226. a. 3. 15. It is regularly true A Condition need not be shewed forth that a man shall not plead or take advantage of a Condition without shewing forth the proofe thereof in writing And yet if land be mortgaged upon condition and the Mortgagee letteth the Lands for years reserving a rent the condition is performed the mortgagor re-enters In an action of debt brought for the rent the Lessee shall plead the condition and the re-entry without shewing forth any Deed so in an Assise the tenant pleads a Feoffment of the Ancestor unto him c. the Plaintiff saith The Feoffment was upon condition and that the condition was broken and pleads a re-entry and that the tenant entred and tooke away the Chest in which the Deed was and yet detaineth the same the Plaintiff shall not in this case be inforced to shew the Deed Also if a woman give Lands to a man and his heires by Deed or without generally shee may in pleading aver the same to be Causa matrimonij prelocati albeit shee hath nothing in writing to prove the same And the reason of these cases and the like is lest the parties that should prove the conditions should upon failer thereof be utterly left without remedy Litt. S. 391. Co. ibid. 240. a. 3. 16. If the Feoffee of Land in fee upon condition dye seised Right and title a diversity this discent if the condition be broken shall not take away the entry of the Feoffor or his heires but if the Feoffee upon condition be disseised and the disseisor dye whereby a descent is cast this shall take away the entry of the Feoffee because he hath a right to the land and therefore his entry may be taken away for that he may recover his right by action But the Feoffor that hath but a Condition his title of entry cannot be taken away by any descent because he hath no remedy by action to recover the land and therefore if a descent should take away his entry it should barr him for ever And the Law in this case is all one whether the descent were before the condition broken or after Also he that hath a title to enter upon a Mortmaine shall not be barred by a descent because then he should be without all remedy So it is also where a Woman hath a title to enter Causa matrimonii prelocuti no descent shall take away her entry because shee hath but a title and no remedy by action If a man be seised of lands in Fee and in writing deviseth the same to another in Fee and dyeth and the Heire before any entry made by the Divisee entreth and dyeth seised this descent shall not take away the entry of the Devisee for if the descent which is an act in Law should take away his entry the Law should barre him of his right and leave him utterly without remedy So it is also of him that entreth for
like This was termed by the Ancient Philosophers Original Justice which in Adams innocencie was cléere and lightsome but since his fall both in himselfe and his posteritie much darkened and incumbred with original sinne This is also the Law whereof Saint Paul makes mention in his Epistle to the Romans where he saith When the Gentiles which have not the Law Rom. 2.14 15. do by nature the things contained in the Law These having not the Law are a Law unto themselves which shew the work of the Law written in their hearts their conscience also bearing witnesse and their thoughts in the mean while accusing or excusing one another The Law of Reason is that Law which deduceth conclusions from known Principles by ratiocination or discourse of sound reason which Principles are termed Rules or Maximes of Reason Positive Lawes are such Lawes as are framed by the light of the two former for the regular Government of some particular Common wealth And therefore these Lawes are sundry and divers according to the several constitutions of particular places and Countries of this sort is the Common Law of England which being the Municipal Law of this Nation and receiving its light principally from the Law of Reason is many times directed and controuled by the Rules and Maximes thereof Now of these Maximes some are taken out of forreigne Sciences as Theologie Grammar Logique Physiques Moral Philosophy Politicks and Oeconomiques The rest are proper to the Law it self as Law-constructions and Fictions in Law All which will more plainly appear by the Precepts and Examples hereafter following I Maximes of Reason taken out of THEOLOGIE 1 Summa Ratio est quae pro Religione facit It is the highe Reason that makes for Religion Statutes which restrain Alienation of Ecclesiastical livings binde the King though not named 1REgularly Statutes binde not the King Co. l. 8. 14. a. In the case of Ecclesiastical persons Co. l. 11. 70. a Magdalen Colledge Case Co. l. 2. 44. b. In the Bishop of Winchesters Case unlesse he be particularly named yet the King is included within the general words of 13 El. 10. which prohibit Ecclesiasticall persons to make grants of their Livings because the Parliament which made that Statute adjudged such grants to be causes of dilapidations and decay of spirituall livings and hospitality and of the utter impoverishment of successors Incumbents in the same whereupon would necessarily follow decay of true Religion and the spirituall worship of God For it is recorded in History that amongst the ten Persecutions which the Primitive Church suffered there were two the most grievous the one under Dioclesian the other under Julian the Apostate the first endeavoured to destroy all the Professors and Preachers of the Word of God occidit omnes Presbyteros but notwithstanding that Religion still flourished for sanguis Martyrum est semen Ecclesiae yet that was a grievous Persecution But the Persecution under the other viz. Julian was much more grievous and dangerous because as the History saith occidit Presbyterium for it robbed the Church and spoiled spiritual persons of their revenues And thereupon ensues great ignorance in Religion and the service of God and therefore great decay of the Christian profession for none will apply himselfe or his children or any other committed to his charge to the study of Divinity when after long and painfull study they shall have nothing to live upon See more in the Books at large Ecclesiastical livings are in Abeyance 2 The Fee simple of a Parsonage or Vicarage is said to be in Aveyance and this was provided by the providence and wisdom of the Law Co. Inst pars 341. a. for that the Parson and Vicar have curam animarum and were bound to celebrate Divine Service and administer the Sacraments and therefore no act of the predecessor should make a discontinuance to take away the entry of the successor and to drive him to a reall action whereby he should be destitute of maintenance in the mean time Co. ibid. 3 Vpon consideration of all the Books of the Law Ecclesiastical persons cannot injure the Church this diversity is well observed by Sir Edw. Cooke that a Parson or Vicar for the benefit of the Church and his successor is in some cases estéemed in Law to have a Fée simple qualified But to do any thing to the prejudice of his successor in many cases the Law adjudgeth him to have in effect but an estate for life Bract. f. 226. Causae Ecclesiae publicis causis aequiparantur And Ecclesia fungitur vice minoris meliorem facere potest conditionem suam deteriorem nequaquam Brit 143. Vide Co. Inst pars 1 2. b. 4. Littl. §. 146. Co. Inst pars 1. 102. b. 40 E. 3. 27. 5 E. 4. 8. 6 E. 3 51 52. 10 E. 4. 2. a. 21 H. 7. 2◠4 An Abbot Prior Bishop Dean Arch-deacon Prebend Ecclesiastical persons cannot disclaim Parson Vicar or other sole Corporation that is seised in auter droit cannot disclaim because they alone cannot devest any fée which is vested in their house or Church For an Abbot and Prior had their Convent the Bishop his Chapter the Parson and Vicar their Patron and Ordinary and the like of other sole Corporations without whose assent they could passe away no Inheritance And the reason of this was because the wisdome of the Law would never suffer one sole person to be trusted with the disposition of the Inheritance of his house or Church Ecclesiae suae conditionem meliorem facere possunt sine consensu deteriorem non possunt sine consensu Vide infra Max. 178. Pl. 1. Co. l. 6 49. b. Boswels Case Co. Inst pars 1 344. a. Glan l. 13. cap. 18 19 20. Mirror c. 5. § 5. Bract. 238. 240 244 c. 291. Fleta l. 83. c. 11 16 17. Britt 222 223 224. 6 E 3. 28. 39. 52. 39 E. 3. 24. 43 E. 3. 25. 45 E. 3. Quare impedit 39. 31 E. 1. Quare impedit 186. 5 By the Common Law there ought to be in every Parish Persona idonea to serve the Cure The Parson or Vicar ought to be Persona idonea for so it appears by the words of the Quare impedit quod permittat praesentare idoneam personam which Epithete idonea includes abilitie in erudition and doctrine honesty in his conversation and diligence in his function and all this to instruct the People of God in true Religion and good conversation and to avoid contention And to the intent that he who hath so great a charge may effectually and peaceably intend it the Common Law provides that after Institution he shall not be subject to actions and so neglect his duty by losing his time in suits and vexations of Law Not to be removed after institution by a common person nor after induction by the King And therefore at the Common Law if a stranger had presented his Clerke and
if they be distrained to come to them they may have a writ out of the Chancery for their discharge All other clerks also within orders though not beneficed have the like priviledge And the reason of this is to the end they should attend their function Co. l. 11. 70. b. in Madg. Col. case M. 10 H. 6. 8. 3 I. S. brings an action of debt against I. Rector of T. in com B. the defendant saith A Parson ought to be resident that before the day of the writ purchased he dwelt at B. in com N. Et non allocatur for a Parson shall be intended by Law to be alwayes resident upon his benefice for the cure of souls which he hath there and the Parson who hath cure of souls and is a non-resident non est dispensator sed dissipator non speculator sed spiculator And therefore no such thing shall be presumed F. N. Br 175. 4 A Parson to the end he may give his continual attendance upon that sacred function is fréed from all personal charges The like that may hinder him in his calling And therefore he shall not be chosen Bailiffe Réeve Beadle or other officer for land annexed to his Church And all this by the course of the Common Law F. N. Br. 34. l. for the same reason it is that if a Parson have a Parsonage and after take another benefice without a dispensation the first benefice is void and the Patron thereof may present for this avoydance is called a Cession because the taking of the last makes him neglect the first F. N. Br. 175. Br. Dismes 16 5 To the end that Religion may not be neglected Tithes due onely to the Parson of common right but preserved and daily increased the Common Law giveth to the Parson of common right the tenth of all manner of yearely encrease which are called Dismes or Tithes the due payment whereof tendeth much to the continuance and establishment of the true Religion and the due worship of God Co. l. 2. 44. b. The Bishop of Winchesters case And therefore albeit a meere lay man may prescribe in modo decimandi yet he cannot so doe in non decimando because he is but in special cases capable of tithes at the Common Law and therefore without special matter shewed it shall not be intended that he hath any lawful discharge And for this cause in favour of holy Church although it may have lawfull commencement the law will not suffer such prescription in that case nor put it to the trial of lay men who will perhaps rather strain their consciences for their private benefit that give the Church the duties that belong to her Vide infra 186. 11. Co. l. 5. 63. a. 44 E. 3. 19. 6 The Inhabitants of a Town without any custome may make ordinances or by-laws for reparation of the Church By-Lawes and in that case the greater part shall bind all the rest without any Custom The Chamberlain of Londons case Prisot 3 To such Lawes as have warrant in holy Scripture our Law giveth credence contra Co. Inst pars 1 128. b. 1 In the raigne of King Alfred Outlawed persons had capita Lupina and untill a good while after the Conquest no man could have been out-lawed but for felonie and then the out-lawed person was said to have Caput Lupinum because he might be put to death by any man as a Wolfe that hateful beast might and in ancient time the head of either of them being brought to the chiefe place of the County or Franchise where they were killed the partie so killing them was to have a Mark for his paines Howbeit in the beginning of the raigne of E. 3. it was resolved by the Iudges for avoiding of inhumanitie and effusion of Christian bloud that it should not be lawfull for any man but the Sheriffe only and that upon lawfull warrant to put to death any out-lawed person though it were for felonie in pain to suffer death as in case of killing another man One attainted of a Praemunire 2 It was lawfull for any man to put to death a man attainted of a Praemunire because he was also without the Kings protection Co. ibid. 129. b and therefore subject to be destroyed as the Kings enemy but this was taken away by the wisedome of Queen Eliz. and her Parliament 5 El. 1. as a libertie not becoming a Christian Common-wealth Lepers 3 The Law of England for removing of Lepers by the writ de leproso amovendo from the societie of men to some solitarie place is grounded upon the law of God Levit. 13.44 45 46. Numb 5.1 2. Co. ibid. 135. b 4 In Cholmeleys case in the 2 Rep. fol. 51. Co. l. 11. 70. b. in Magdel Colledge case where a reversion expectant upon an estate in taile was granted to one for the life of the tenant in taile A Monkish life condemned it was said that by possibilitie this grant for life may take effect for tenant in taile having no issue may become a Monk and enter into religion and then the grantée may have it during his naturall life but it was there resolved that such superstitious and irreligious profession shall not be presumed in law A Law against Charity void 5 If a Statute be made directly against the Law of God Doct. Stud. l. 1. cap. 6. as if it should be ordained that none should give Almes to any in what necessitie soever he were or the like such Statute ought to be adjudged void 6 Such Canons Constitutions Ordinances Co. l. 5. part 1. 32. b. in the case of the Kings Ecclesiastical Law and Synodals provincial Ecclesiastical Laws as have béen allowed by general consent and custome within the Realme and are not contrariant or repugnant to the Lawes Statutes and Customes of the Realme nor to the damage or hurt of the Kings Prerogative royall are still in force within this Realme as the Kings Ecclesiasticall Lawes of the same 4 The Jurisdiction of the Ecclesiastical Law ought to be bounded by the Common Law Spiritual Laws 1 The Spiritual Laws mentioned in Littleton Sect. 648 are such Ecclesiasticall Lawes as are allowed by the Laws of this Realme Co. Inst pars 1 344. a. Co. l. 5. pars 1. 32. b. Jurisdiction Stat. 35 H. 8. 19 33 H. 6. 34. 32 H. 6. â—8 viz. which are not against the Common Law whereof the Kings prerogative is a principal part nor against the statutes or customes of the Realme Prerogative and regularly according to such ecclesiasticall Lawes the Ordinarie and other Ecclesiastical Iudges do procéed in causes within their Conisance and this Iurisdiction was so bounded by the Ancient Common Lawes of the Realme and so declared by Act of Parliament 5 Dies Dominicus non est juridicus The Lords day 1 In all the four terms the Lords day is not Dies
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
County where he is Iustice Power lost and he takes him in the other County In this case he is his prisoner in the County where he takes him and ought there to be imprisoned and he cannot send or convey him to the Gaol of the County where he committed the felony for he is not his prisoner there and being out of his proper County his authority ceaseth as to that other County So if the Marshal hold plea of a thing done out of the verge or the Admiral of a thing done in the body of the County it shall be void for their authority extends to a certaine place and within a certain precinct and not elsewhere and if he which takes Sanctuary goes out any man may take him because he hath lost his priviledge Plowd 72. b. Sir Thomas Popes case 54 If the Conisée of a Recognisance according to the Statute of 23 H. 8. cap. 6 sell several parts of his lands to several feoffées No discharge by the Conusees purchase of part reserving also part thereof to himselfe if execution be sued against his part in an Audita quaerela he shall not compel any of the feoffées to contribute And therefore by the same reason the purchase of part by the Conisée shall not discharge the execution for the execution of the Conisée shall be discharged in consideration that he shall be contributory if he were Feoffée and not Conisée and then in as much as he shall not be contributory if he were Feoffée and not Conisee his purchase of part shall not discharge the execution being Conisée quià cessante causa c. Co. Inst pars 1 70. b. 3. 55 If the King had given lands to an Abbot and his successors to hold by Knight-service this had béen good Lands held by Corporations in Knights Service and the Abbot should have done homage and found a man c. or have paid escuage But there was no wardship or reliefe or other incident belonging thereunto yet if the Abbot with the assent of his covent had conveyed the land to a natural man and his heirs now wardship and reliefe and other incidents belonged of common right to the tenure And so it is if the King give lands to a Major and Communalty and their successors to be holden by Knight-service In this case the Patentées shall do no homage neither shall there be any wardship or reliefe onely they shall find a man c. or pay escuage But if they convey over their lands to any natural man and his heires now homage ward mariage reliefe and other incidents belong thereunto quià cessante ratione legis cessat ipsa lex Lord and Villain 56 If villanage be pleaded by the Lord in an action Real Co. ibid. 127. b. 4. 18 E. 4. 6. 7. personal or mixt and it is found that he is no villaine the bringing of a writ of errour is no enfranchisement because thereby he is to defeat the former judgement and if in the mean time the plaintiffe or demandant bring an action against the Lord he néed make no protestation so long as the record remaines in force for at that time he is frée but the Lord shall be restored to all by the writ of errour Waste 57 If lands be given to two and to the heires of one of them Co. ibid 247. b. 3. he that hath the fée simple shall not have an action of wast upon the Statute of Glocester against the Ioyntenant for life but his heir shall maintaine an action of waste against him upon that Statute So that in this case the heir shall maintaine that action which the Ancestor could not Dower 58 If the husband alien his land Co. Inst pars 1 33. a. 4. and then the wife is attainted of felony now is she disabled but if she be pardoned before the death of the husband she shall be endowed Also if the sonne endow his wife at her age of 7 yeares ex assensu patris if she before the death of her husband attaine to the age of nine yeares the dower is good Office and Rent 59 The King granteth to one an office at will Finch 8. Co. ibid. 42. a. 4 3 E. 4. 8. and ten pounds yearly rent during life pro officio illo here if the King put him out of his office the rent shall cease 21. 4. Guardian in Soccage 60 The executor or husband after the death of the wife guardian in Soccage shall not retain the wardship 7 El. 293. b. Finch 9. Co. Inst pars 1 89. a. 1. for the guardian hath it not to his owne use but for the benefit of the heire and the executor or husband by common intendment beare not such affection to the Infant as the testator or his wife did which was the cause that the law gave them the wardship A Pardon 61 If a stroke be given the first day of May 13 El. 401. Finch 9. and the King pardon him the second day of May all felonies and misdemeanors the party smitten dieth the third day of May so as this is no felony till after the pardon yet is the felony pardoned for the misdemeanors being pardoned all things pursuing it are also pardoned Livery 62 The King hath a Ward pur cause de gard 13 E. 4 10. b. Finch 9. and after maketh Livery to the first Ward the second Ward shall not sue Livery Coparceners 63 If two coparceners make a lease reserving a rent Finch 9. they shall have this rent in common as they have the reversion But if afterwards they grant the reversion excepting the rent they shall be from thenceforth Ioyntenants of the rent Challenge 64 It is no principal Challenge to a juror 14 H. 7. 2. Finch 9. that he hath married the parties mother if she be dead without issue for the cause of favour is removed Entry 65 If an Infant tenant in taile make a feofment in fée and die Co. Inst pars 1 337. a. 2. his issue may enter but if after the feofment made he be attainted of felony and dieth the entry of the issue is taken away for his entry is not lawful in respect of his estate onely but of his bloud also which is corrupted Formedon and therefore in that case he is driven to his Formedon Villain 66 Si mulier serva copulata fit libero c. partus habebit haereditatem Bract. lib. 4. fol. 298. b. Idem l. 1. c. 6. mater nullam dotem quià mortuo viro suo libero redit in pristinum statum servitutis nisi haeres ei dotem fecerit de gratia Co. Inst Pl. 1. 123. a. 2. Co. Inst pars 1 174. a. 4. 67 If one coparcener maketh feoffment in fée Coparceners and after her feoffée is impleaded and voucheth the feoffor she may have aide of her Coparcener to deraign a warranty
alive he should have gone quit by the acquittal of A. because he could not be a Receiver of a felon when A. was no felon And remoto impedimento c. Vide plus ubi supra 21 Things are construed according to that which was the cause thereof Vide 31. 9. Tenant by courtesie 1 If the King give lands to a man and a woman and to the heires of their two bodies and the woman die without issue Co. Inst pars 1 21. b. 4. 9 H. 3. Dower 202. yet shall the man be tenant in taile after possibility c. But if the King give land with a woman of his kindred in frank-mariage and the woman die without issue the man in the Kings case shall not hold it for his life because the woman was the only cause of the gift but otherwise it is in the case of a common person Frankmariage 2 If lands be given to a man and a woman in special taile Co. ibid. 7 H. 4. 16. a. and they are divorced Causa praecontractus both shall hold the lands for their lives a 13 E. 3. Tit. Ass 19 E 3. Ass 83. 12. Ass 22. 19 Ass 2. But in case of frankmariage if they be so divorced the woman shall enjoy the whole land because she was the cause of the gift So if lands holden in c Plowd Carzibs case soccage be given in special tail and the Donées die the issue being within the age of 14 yeares e 17 H. 3. Gard. 146. 27 E. 3. 29. Co. ibid. 29. b. 3 Co. ibid. 42. a. 4 the next of kinne of the part of the father or of the part of the mother which can hap the custodie shall have it but in case of frank-mariage the heire of the part of the mother shall have it because she was the cause of the gift as aforesaid Co. ibidem 88. a. 4. Formedon 3 If a woman tenant in general tail maketh a feoffment in fée and taketh backe an estate in fée and take an husband and hath issue and dieth the issue may in a Formedon recover the land against the father because he is to recover by force of the estate taile as heire to his mother and is not in that case inheritable to his father the estate tail being the cause and ground of his title An Office 4 A man may have an estate for life determinable at will 3 E. 4. 8. b. as if the King doth grant an office to one at will and also grant a rent to him for the exercise of his office for terme of life this is determinable upon the determination of the office which occasioned the grant of the rent 19. 59. Co. ibid. 85. a. 2 5 If a man make a Lease for yeares of a villeine this cannot be done without déed neither can the Lessée assigne it over without déed Grant of a Villain by deed because it is derived out of a fréehold that lyeth in grant which indéed is the material cause of the grant but a wardship is an original chattel during the minority derived out of no fréehold and therefore as the Law createth without déed so may it also be assigned over without déed Co. ibi 102. a 4 9 E. 2. execut 249. 6 Vpon a judgement in debt Judgement execution the Plaintiffe shall not have execution but onely of that land which the defendant had at the time of the judgement because the action was brought in respect of the person and not in respect of the land But if an action of debt be brought against the heire and he alieneth hanging the writ yet shall the land which he had at the time of the Original purchased be charged for that the action was brought against the heire in respect of the land Co. bid 102. b. 1. 22 Ass Pl. 32. 7 If a man be nonsuit the land onely Amerciament Issues of Jurors which he had at the time of the amerciament assessed shall be charged and not that which he had at the finding of the pledges for the amerciament is not in respect of the land but for his want of prosecution which was a default in his person But the issues of a Iuror shall be levied upon the feoffee albeit they were not lost before the feoffment because he was returned and sworn in respect of the land 8 A tenure of the King in Capite Tenure in gross is said to be a tenure of the King a Bract. f. 87 as of his Crown that is as he is King c Co. ibid. 108 a. 4. ubi Vide praedict Author And therefâ—râ— if one holdeth land of a common person in grosse as of his person and not of any Mannor c. and this Seigniory escheateth to the King yea though it be by attainder of treason he holdeth of the pâ—rson of the King but not in Capite because the original tenure was not created by the King Vide infra M. 25. ca. 10. Co. ibid. 158. a. 3. 15 H. 7. 9. 14 H. 7. 31. 18 E. 4. 3. 9 If the cause of challenge alleaged by the Plaintiff against the Sheriff be pâ—rtiality to either party Challenge and processe be once awarded for such partiality though there be a new Sheriff yet processe shall never be awarded to him but to the Coroners and therefore in that case the entry is Ita quòd Vicecomes se non intromittat But if the cause of Challenge be for that the Sheriff was tenant to either party or the like in that case the processe shall be directed to the new Sheriff and not to the Coroners Co. ibid. 161. a. 2. 44 E. 3. 20. 6 R. 2. Refc 11 11 H. 7. 4. 21 H 7. 40. 34 H. 6. 18. 16 E. 4. 10. Co. l. 9. fol. 22. Case of Avowry Co. ibid. 169. b. 2. 15 H. 7. 14. 29 Ass 23. 29 E. 3. 9. b. 10 If the Lord come to distreine cattle Distress which he séeth then within his fée and the tenant or any other to prevent the Lord to distreine driâ—es the cattle out of the Lords fée into some other pâ—ace not within his fée yet may the Lord freshly follow and distreine the cattle and the tenant cannot make rescous But if the Lord comming to distreine had no view of the cattle within his fée though the â—enant drive them off purposely or if the câ—ttle of themselâ—es after the view goe out of the fée or if the tenant after the view remove them for any other cause then to prevent the Lord of his distresse then cannot the Lord distrein them out of his fée and if he doth the tenant may make rescous 11 If there be thrée Coparceners and they make partition Rent in Coparcenary and one of them grant 20 s. per annum out of her part to her two sisters and their heires for egaltie of partition the grantées are not joynt-tenants of this rent but
default yet may the tenant give evidence and the Recognitors of the Assize may find for the tenant And therefore in these or the like cases the tenant or defendant non amittit per defaltum as the Statute and Littleton speak and they cite F.N.B. in the point Littl. Sect 674 675. West 2. c. 4. Fitz. 155. e. Neverthelesse others do hold the contrary because albeit in the writ of wast judgement is not given only upon the default yet the default is the principal and the cause of awarding the writ to enquire of the wast as an incident thereunto and the Law alwayes hath respect to the first and principal cause of a thing from whence it takes the first rise and being Co. ibid 364. a. 4. 10 H. 6. 10. 31 H. 6. Entry congeable 54. 22 Where Ioyn-tenants or Coparceners have one and the same remedie if the one enter the other shall enter also Joyn-tenants and tenants a common but where the remedies be several there it is otherwise As if two Ioyn-tenants or Coparceners joyne in a real action where their entry is not lawfull and the one is summoned and severed and the other pursueth and recovereth the moity the other Ioyn-tenant or Coparcener shall enter and take the profits with her because their remedie was one and the same But where two Coparceners be and they are disseised and a descent is cast and they have issue and die if the issue of the one recover her moity the other shall not enter with her because their remedies were several and yet when both have recovered they are Coparceners againe So if two Ioyn-tenants seised of lands the one of full age the other under age be disseised c. And the disseisor die seised and his issue enter the oâ—e of the Ioyn-tenants being still under age And after that he comes to full age the heir of the disseisor lets the lands to the same Ioyn-tenants for their two lives This is a remittor of the moity to him within age because his entry was congeable but the other Ioyn-tenant hath but an estate for life in the other moiâ—y by force of the Lease because his entry was taken away Lit. l. § 656. c. as you shall find it in Littleton Sect. 696. If A. and B. Ioyn-tenants in fée be disseised by the father of A. who dieth seised his sonne and heire entreth he is remitted to the whole and his companion shall take advantage thereof Otherwise here in the case of Littl. for that the advantage is given to the infant more in respect of his person than of his right whereof his Companion shall take no advantage But if the Grand-father had disseised the Ioyn-tenants and the land had descended to the father and from him to A. and then A. had died the entry of the other would have béen taken away by the first descent and therefore he should not have entred with the heir of A. c. Warranty that begins by disseisin 23 If A. de B. be seised of an house Littl. § 368. and F. de G. enter into the same house clayming it to him and his heires and make a feofment thereof with warranty to certaine Barrettors in the Country to be maintained by them by reason whereof A. de B. dare not stay in the house but goes out This is warranty that beginnes by disseisin because that feofment was the cause why A. de B. left the possession of the same house Tenant in tail the reversion in the King 24 If a subject make a gift in tail Co. ibid. 372. b. 3. the remainder to the King in fée Albeit the words of the Statute of 34 H. 8. cap. 20. be whereof the reversion or remainder at the time of such recovery had shall be in the King c. yet séeing the estate taile was not originlly created by the King the estate taile may be barred by a Common recovery So likewise if Prince H. sonne of H. 7. had made a gift in taile the remainder to H. 7. in fée which remainder by the death of H. 7. had descended to H. 8. So as he had the remainder by descent yet in this case also a Common recovery would have barred the estate taile No fine before admitance 25 Popham Chief Justice said that it was adjudged in Sands his case Co. l. 4 28. a. 3. Copihold cases Hubbert and Hamons case that no fine was due to the Lord either upon surrender or descent untill admittance For the admittance is the cause of the fine and if after the tenant denie to pay it that is a forfeiture And so it was also resolved by Wray and Periam in a case betwixt Sir Nich. Bacon and Flatman The cause must be shewed why the Bishop refuseth to admit 26 If a Clerke be presented to a Bishop to be admitted to a Benefice and he refuseth him in pretence of insufficiency or other defect Co. l. 5. 58. a. â— Specots case In a Quare impedit the Bishop ought to alleadge some particular crime or cause why he did not admit him and not generally quòd non est idoneus quod est criminosus schismaticus inveteratus or the like For although it belongs not to the Kings Court to determine schismes or heresies yet the original cause of the suit being matter whereof the Kings Court hath conusance the cause of the schisme or heresie for which the presentée is refused ought to be alleadged in certaine to the intent that the Kings Court may consult with Divines to know whether it be schisme or no and if the party be dead may thereupon direct the Iury which is to try it Felons goods for flying cannot be forfeited by prescription 27 If a man flie for felony his owne goods are not forfeited Co. ibid. 109. b. 1. Foxlâ—yes case untill it be found by the indictment before the Coroner in case of death or otherwise lawfully found upon record that the felony was the cause of his flight For if the goods of any shall be forfeited onely by reason of this flying without more then a man may have such goods so forfeited by prescription as he may have waifs estrayes treasure trowe c. but in as much as bona fugitivorum are not forfeited untill the flight be lawfully proved upon record and because things forfeited by matter of record cannot be claymed by prescription which is a matter in suit for this cause they cannot be claymed by prescription 28 Deodands are the goods which caused the death of the party killed by misfortune Co. ibid. 110. b. 4. and are not forfeit Deodands not forfeited by prescription in England untill it be found upon record that they were the cause of his death and therefore they cannot be claimed by prescription no more than bona fugitivorum for which Vide suprà 27. M. 30 31. El. Co l. 6. 47. b. Dowdales case Co. Inst pars 1
right of Inheritance or Frank-tenement which is supposed originally to commence by Livery shall not be transferred or be extinct without some Ceremony as first by re-entry upon the Disseisor and then by giving Livery or by that which doth tant amount viz. by release or confirmation to him 13 H. 7. 13. 20. c. And therefore it is commonly said in our Books that accord with satisfaction is a good Plea in personal Actions where Damages onely are to be recovered but not in Real Actions Co. l. 4. 55. b. 56. a. In the Case of the Sadlers in London 29 Ass 31. Pierce Partifields case 12 In Pierce Partifields case cited in the case of the Sadlers of London in the 4 Report fol. 55. An office found for the King cannot be quasht but by petition matter of record of as high nature b. it was found by office by force of a Diem clausit extremum after the death of one that held houses of the King in London that the Tenant died without heir whereupon the King grants them to Pierce P. for life who sueth a writ to the Major to put him into possession the Major returnes that the Tenant made his Will and gave them to his wife for her life who was yet in life and seised of the said houses together with one Jo. Digle her then husband P. P. outs Digle and his wife who thereupon bring a Scire facias against P. P. who demands Iudgement of the Writ because in as much as he was but Tenant for life and the reversion was in the King they ought to sue the King which they could not do but by petition And it was adjudged by all the Justices assembled in the Chancery that the Writ should abate and that Digle and his wife should sue by petition because for as much as the Kings Title was found by inquest of office upon oath the Title of the Subject ought also to appear by Record of as high nature viz. by like inquest of office upon oath and not by return of the Major onely for albeit that return be matter of Record yet is it not of so high and great regard in the Common Law as an office found by oath Co. l. 4. 55. a The Case of the Sadlers in London 13 At the Common Law The like when the King was seised of any estate of Inheritance or Frank-tenement by any matter of Record were his Title by matter of Record judicial as attainder c. or ministerial as office or by conveyance of Record by assent as fine Déed inrolled c. or by matter in fact and found by office of Record upon oath as alienation in Mortmaine purchase by Alienée the Kings villein escheat by death without heire c. he that had right could not have any traverse whereupon he might also have an Amoveas manum but was alwayes put to his petition of right to be restored to his Frank-tenement and Inheritance Howbeit he might have his Monstrance de droit and was not forced to his petition when the King was intitled by matter in fact as Villein Mortmaine Escheat Alien c. found by office and by the same office the Title of the party did also appeare as if a Disseisor did alien in Mortmain or to an Alienée or to the Kings Villeine or did die without heire in all these cases the party grieved might have his Monstrance de droit at the Common Law And so are the Books to be understood in 9 E. 3. 51. 13 E. 4. 8. a. 4 E. 4. 21. 33 E. 3. title Travers 36. Co. ibid. 14 It was found by office that T. by the Kings Licence married the Kings Niefe The like and that certaine Lands descended to the same Niefe which the Baron had aliened without the Kings leave his wife being the Kings Niefe to another and for that cause the land was seised whereupon the Alienée comes into the Chancery and sheweth all the case as it was found by office And therefore because all the truth of the case viz. the Niefe maried by his Licence the descent to the Niefe after the Coverture c. did appeare in the Office it was awarded that the Baron for that cause should hold by the Curtesie and that the Feme by his alienation should be put to her Action and thereupon by award the Alienée had restitution The like 15 It was found by Office that I. held of the King 30 Ass Pl. 28. Co. ibid. 56. a. and that M. his daughter and heire was of full age and had Livery and by another Office it was also found that the same I. had another daughter K. which was yet within age whereupon a Scire facias went out against M. and her husband c. who said that the land was given to I. and to his first wife the Mother of M. in taile and that K. was his issue of another wife and so M. sole heire but by award of all the Iudges all the land was seised into the Kings hand because the entaile was not found by any Office but onely that M. was general heire A Noble woman by marriage made ignoble 16 If a Woman be noble as Dutchesse Countesse Baronesse Co. l. 4. 118. b 4 Acton case Co. l. 6. 53. b. 2. The Countess of Rutlands Case c. by descent although she marie under the degrée of Nobility yet her birthright remaines For that is annexed to her bloud and is Character inde lebilis But if a Woman attaine Nobility by mariage viz. of a Duke Earle Baron c. and after the death of her first husband take another under the degrée of Nobility by this last mariage with one that is ignoble she hath lost the dignity unto which she attained by her first marying one of the Nobility for eodem modo quo quicquid constituitur dissolvitur And Quando mulier nobilis nupserit ignobili desinit esse nobilis Ecclesiastical Law founded by the Common Law 17 If it be demanded what Canons Constitutions Co. l. 5. Part 1. 32. b. The case of the Kings Ecclesiastical Law Ordinances and Synodals provincial are still in force within this Realme the answer is that it is resolved and enacted by authority of Parliament That such of them as have béen allowed by general consent and custome within the Realme and are not contrariant or repugnant to the Lawes Statutes and Customes of the Realme nor to the damage or hurt of the Kings Prerogative Royal are still in force within this Realme as the Kings Ecclesiasticall Lawes of the fame Now therefore as consent and custome hath allowed those Canons c. So no doubt by the general consent of the whole Realme any of the same may be corrected inlarged explained or abrogated Writing annulled by writing 18 Although Indentures being made for the declaring of the uses of a subsequent Fine Co. l. 5. 26. a. The Earle of Rutlands
32 H. 8. 5. the Plaintife could not have had a new execution for the execution of lands was valuable and accounted in Law for a satisfaction and to avoid infinitenesse there could be but one valuable satisfaction or execution with satisfaction at the Common Law but execution of the body is not a valuable execution and therefore the Plaintife after the Defendants death may have new execution untill he be fully satisfied for that is the end and fruit of his suit Et finis rei attendendus est fines mandatorum Domini Regis per rescripta sua viz. brevia diligenter sunt observandi 22 Hob. 8 case of Essoines 33 Qui adimit medium di rimit finem Littl. § 237. 1 Rescous Replevin Dissesin of reâ—â— and Inclosure are thrée sorts of Rent Service because as Littleton saith the Lord is by them disturbed of the meanes to come by his rent Co. Inst pars 1. 161. a. 4. 2 The turning of the whole streame that runnes to a Mill is a disseisin of the Mill it selfe 9 Ass 19. Mirr cap. 2. Sect. 15. Britt 108. 114. Turning a water-course 118. 141. Co. ibid. 3 If a man be disturbed to enter and manure his land Disturbance this is a Disseisin of the land it selfe for Qui obstruit additum destruit commodum 26 Ass 17. 3 E. 4. 2. per Littl. 49 E. 3. 14. b. And therefore where it is said that a man shall not be punished for suing of Writs in the Kings Court be it of right or wrong it is regularly true Replevin but it faileth in the special case of the Writ of Replevin for the cause aforesaid Fitz. N. B. 42. S. 22 E. 3. 15. 43. Ass 40. 43 E. 3. 20. Faux judgement 10. 8 E. 4. 15. per Moile 2 R. 3. 19. Littl. § 240. Co. ibid. 162. a. 3. Bract. l. 2. 16. Brit. 19. 88. Fleta l. 3. 5. 7. If the Lord of a rent Service Terrified from distraining or the Grantée of a rent charge or Seck be going upon the way to distraine for the rent and the Tenant hearing it forestalls his way and threatens him in such sort that he dare not procéed for feare of the losse of life or member this is also a Disseisin of the rent causa qua supra But this must not be vagus vanus timor sed talis qui cadere possit in virum constantem and not in hominem vanum meticulosum talis enim debet esse metus qui in se continet mortis periculum corporis cruciatum Co. ibid. 172. b. 1. 13 E. 3. Leg. 50. 5 An Infant cannot make his Law of non summons for Infant shal â—â—wage according to the Maxime in Law Minor jurare non potest And therefore in that case the default shall not grieve him for séeing the meane to excuse the default is taken away by Law the default it selfe shall not prejudice him Co. ibid. 233. b. 3. 15 E. 4 3. 5 E. 4. 26. 6 If the Kéeper of a Parke fell or cut any Trées Woods The Keeper 〈◊〉 a Park making wast or Vnder-woods and convert them to his own use this is a forfeiture of his office for destruction of the vert is by a meane destruction of venison So it is also if he pull down any house wherein the hey wherewith the Déer are fed is usually put for that also tendeth to the destruction of the Déer 28 H. 8. Beudloes enter evesque de Londres Hieron Co. l. 9. 50. 95 96. 99. Escape 7 If a Gaoler that hath a prisoner in his custodie upon execution Co. ibid. 260. a. 3. Boytons case suffereth him to go at large though it be with a Keeper he is liable to an escape for he ought to kéep him in salva arctà custodia to the end he may the sooner pay his debt Co. l. 3. 43. b. 4. Entry Release of all actions 8 Where a man may enter Co. Inst pars 1. 286. a. 3. Co. l. 8. 152. a 1. Sir Edward Althams case a release of all Actions doth not barre him of his right because he hath another remedie viz. to enter But where his entry is not lawfull there a release of all actions is by consequence a barre of his right because he hath released the meane whereby he might recover his right As if the Disseisée release all Actions to the heir of the Disseisor which is in by descent he hath no remedie to recover the land because he had no other meanes to recover it but by Action and of that he is barred by his Release An Alien hâ—ndred of Trade 9 To hinder an Alien from getting into his hands by Gift Trade Co. l. 7. Calv. case 17. a. or other lawfull meanes any treasure or other personal goods whatsoever as also an house for his necessary habitation and conveniencie of trading and from maintaining any Action for the same were in effect to denie unto him Trade and Traffick which is the life and support as of every Island so more especially of this Kingdome Release of all demands 10 The reason Co. l. 8. 154. a. 3. Sir Edward Althams case why a Release of all Demands doth barre a man of all his Right Title and Interest in any Lands Tenements Gâ—ods Chattels c. is because by such a Release the meanes and remedies of recovering them are utterly extinct and so by consequence the right and Interest in the things themselves Nusances 11 If a man by erecting a Building or a Wood-pile doth stop up or hinder the light of his neighbours house Co. l. 9. 58. a. 2. Aldreds case or if by building an Hogs cote néer his neighbours dwelling-house he much annoyes the same or makes the aire infectious or unholsome an Action upon the case will lie in either of these cases for hereby he hinders and interrupts the peaceable dwelling of his neighbour which is the principal end for which the house was at first erected A Legacie of a Lease 12 A. possest of a Lease for 500 yeares deviseth it to B. for life the remainder to C. and his heires and dies Co. l. 10. 51. b. 3. Lampets case here albeit the whole terme be in B. and C. hath nothing but a possibility or a future Interest and therefore cannot grant it over yet in as much as the Legacie or Devise to C. is in esse and present and therefore may be discharged the Interest also which springs from the Legacie may likewise be discharged for Qui distruit medium distruit finem And therefore if oâ—e devise to another 20 l. when he comes to the age of 24 yeares and die the Legatorie after the age of 21 yeares may release this Legacie and devise and although he afterwards attaine to the age of 24 yeares he shall be barred to recover it and yet in this case a Release of all
of 12 men c. Co. Inst pars 1. 46. a. 2. 25 The Termor for yeares before the Statutes of Glocester 6 E. 1. cap. 11. and 21 H. 8. cap. 15. The Termâ—â— could not fâ—fie was not able by the Common Law to falsifie a covenous recovery of the Freehold because he could not have the thing that was recovered viz. the Fréehold Co. l. 8. 118. a. 3. 26 The Statute of Westm 2. cap. 21. Cessavit gives a Writ of Cessavit haeredi petenti super haeredem tenementum super eos quibus alienatum fuerit hujusmodi tenementum yet in 33 E. 3. Tit. Cessavit 42 in Doct. Boâ—hams case where there were two Coparceners Lords and Tenant by Fealty and certaine rent the one Coparcener hath issue and dies in this case the Aunt and Neice could not joyn in a Cessavit because the Neice though heire to her mother could not in this case have a Cessavit in regard she could not have the effect of it viz. the recovery of the arrearages accrued in her Mothers time for that they did not belong unto her but unto her Mothers Executor c. Divorce 27 Causa frigiditatis naturalis perpetuae Dyer 178. 40. 2. Eliz. is held a sufficient ground of divorce whereupon such a Sentence was given H. 2. Eliz. in the Court of Audience betwixt Sabel and his wife at the suit of the wife And such another about the same time betwixt Bury and his wife at the suit also of the wife who afterwards married Cary and had issue Bury also married another woman and had issue and therefore the Doctors of the Civil Law would have had them co-habit againe together because as they said Sancta Ecclesia decepta fuit in priori judicio 36 Non officit conatus nisi sequatur effectus Inheritances depend not upon uncertaine words 1 In Sir Anthony Mildmayes case in the 6 Report which was a resolution against perpetuities it was resolved that these words Attempt Co. l. 6. 42. a. 3. Sir Anthony Mildmayes case c. or goe about c. or enter into communication c. are words uncertain and void and God defend that Inheritances and Estates should depend upon such incertainties for it is true Quòd misera est servitus ubi jus est vagum quòd non definitur in jure quid sit conatus nec quid sit a going about or communication And the Rule of Law decides this point Non-officit conatus nisi sequatur effectus Resistance must be by some overt act 2 If the Testator devise lands to I. S. for 60 yeares Co. l. 8. 91. 2. 4. Frances case if he shall so long live provided if I. S. molest or hinder the Executor so that he cannot take and enjoy the goods of the Testator that then his estate shall cease In this case a bare denial by Parol is not a breach of the Proviso but here ought to be some act done as after request made by the Executor to shut the door against him or to put his hands upon him and to resist him or the like so that by reason of some such open act he doth not permit the Executor to carry away the goods according to the Proviso And Cook Chief Iustice said that in this case it is not sufficient to say Quòd praedictus Johannes non praemisit praedict execut c. quietè habere removere capere praedict bona or quòd praedict Johannes impedivit illum c. but he ought to alleadge a special breach by reason of some special disturbance or interruption in that case by some overt act unto which the other party may make a certaine answer and upon which a certaine issue may be taken whereof the Iury may inquire and the Court may judge whether it were a sufficient breach of the Proviso or not Cause of disfranchisement cannot be without some overt act 3 Sir James Bagge being a Capital Burgesse of the Town of Plimouth behaved himselfe contemptuously towards the Major there Co. l. 11. 98. a. 3. Sir James Baggs case and said unto him You are a cosening knave come kisse mine c. and perswaded A. and B. Vintners that they should not pay Wine-waight c. whereupon the Major removed him but upon complaint in the Kings Bench a Writ of Restitution was awarded to restore him upon this ground principally for that the cause of a disfranchisement in this case ought to be founded upon some act which he shall do against the duty of a Citizen or Burgesse and to the prejudice of the Common-Wealth of the City or Burrough whereof he is Citizen or Burgesse and against his oath which he took when he was made fréeman there but words of contempt or contra bonos more 's albeit they be against the chiefe Officers and his brethren may be good causes to punish him and to commit him till he put in sureties for the good behaviour but not to disfranchise him So likewise if he intend or endeavour of himselfe or conspire with others to do any thing against the duty trust of his fréedom and to the prejudice of the Common-wealth of the City or Burrough c. but putteth it not in execution this may be good cause to punish him as aforesaid but not to disfranchise him For Non officit conatus nisi sequatur effectus Non officit affectus nisi sequatur effectus And the reason of this is because when a man is a Frée-man of a City or Burrough he hath Franktenement in his fréedome for his life and together with others in their politique capacity hath inheritance in the lands of the Corporation interest also in their goods and peradventure it may concern his trade and meanes of life and his credit and estimation And therefore the matter which shall be cause of his disfranchisement ought to be some act or déed done and not a bare indeavour or enterprise whereof he may repent before the execution of it and whereupon no prejudice doth ensue Co. ibid. b. 3. 4 Those which have offices of trust and confidence Forfeiture of a Parke cannâ—â— be without some overt act shall not forfeit them by bare endeavours or intentions of doing acts although they declare them by expresse words except the Act it selfe be put in execution As if the kéeper of a Park shall say I will kill all the Game within my custodie or I will cut downe so many trees within the Park c. but in the mean time kills none of the Game nor fells any of the trées this is no forfeiture c. Co. ibid. b. 4. 5 If a Bishop Arch-deacon Parson c. cut downe all the trées Deprivation cannot be without soâ—e overt act c. this is a good cause of deprivation and with this accords 2 H. 4. 3. So if a Prior alien the land which he hath in jure domus suae this is a
that which is to be done in that particular wherein the said Commissioners have authority to proceed according to their discretion which neverthelesse is to be limited and bounded with the rule of Law and Reason For discretion is a science or understanding to discern betwixt falshood and truth betwixt wrong and right betwixt shadows and substance betwixt equity and colourable glosses and pretences and not to proceed according to a mans own will and private affections because Talis discretio discretionem confundit c. Common of â—iâ—â—nage 50 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 that the one ought to have common with the other because of vicinage and in the Town of A. there are 50 acres 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 in their Common of 50 acres than that will féed without having any respect to the Common within the Town of B. nec è converso for the original cause of this Common for cause of vicinage was not for profit but for the preventing of Suits in a Champian Country by reason of the reciprocal escapes out of the one Town into the other And therefore if the Common of the Town of A. will depasture 50 Cattle and that of the Town of B. 100 Cattle it can be no prejudice to the one or to the other if the Cattle of the one Town do reciprocally escape and depasture out of the one Town into the other For if all their Cattle depasture promiscuously together per my per tout that can be no prejudice to the one or to the other c. â—an slaughter 〈◊〉 the day or â—ght diversiâ— 51 It is a good exposition of a Statute to expound it according to the reason of the Common Law For example at the Common Law Co. l. 7. 6. b. 3. in Milborns case if one had béen slain in a Town in the day-time viz. while there was yet full day-light and the Man-slayer had escaped the Town was therefore amercied and so it is holden in the 21 E. 3. Coronae 238. Dum quis felonicè occisus fuit per diem nisi felo captus fuit tota villata illa oneretur And with this also agrees 3 E. 3. Coronae 293. But if such a murther or homicide had béen committed in the night the Town should not then have béen amercied by the Common Law because then no follie could be imputed to the Inhabitants of the Town for letting him escape c. For the Scripture saith The day is ordained for man to labour in Psal 104. and the night to take his rest And the Poet saith Ut jugulent homines surgunt de nocte latrones And from this resolution of the Common Law the Statutes of Winchester 13 E. 1. and of 27 Eliz. cap. 13. are to be expounded For albeit no time be specified in those Statutes when the robbery should be committed for which damages are to be answered by the Hundred yet it is adjudged in 29 Eliz. in the case between Milborn and the Hundred of Dunmow in Essex that for a Robbery done before day the Hundred shall not answer but onely for that which is committed in the day time betwixt light and light And howbeit at the Common Law as is aforesaid the Inhabitants in great Towns were not to be amercied albeit the Man-slayer escaped when the Murther or Homicide was committed in the night Yet at this day since the said Stat. of Winchester by which it is enacted that in Cities and great Towns that are enclosed the gates shall be shut at Sunne-set until Sun-rising next morning Now the Inhabitants of such Cities and Towns are amerciable if such Man-slayer escape although the Murther or Homicide happen to be committed in the night as well as if it were committed in the day For now that act hath changed the reason of the Law and therefore the Law it selfe is also changed Ratio est anima legis mutata legis ratione mutatur lex For at the Common Law before the Statute if a man were slain in the night as is said before there was no fault to be imputed to the Citie or Town but now if they do not kéep their gates shut according to the Statute by reason whereof the offender escapes then is the fault and negligence in them and this agrées with the book in 3 E. 3. Coronae 299. which see also in Co. pro ut in margine Vide 149. 35. Co. l. 7. 32. The case of a fine per le Roy. 52 Inasmuch as the King is bound by the Stat. De donis conditionalibus as it is adjudged in the Lord Barleys case in Pl. Co. 240. Stat. De dâ— binds the Kâ— and thereâ— he takes bâ—fit of 4 H. 7. â— 32 H. 8. by which Act the King is restrained from alienation for it is provided by the same Act Quod finis ipso jure sit nullus Reason requires that the King shall take benefit of the Acts of 4 H. 7. and 32 H. 8. which enable the Tenant in tail to barre his â—â—â—es For it is agréed in all our Books that the King shall take benefit of any Act although he be not named 12 H. 7. 21. 35 H. 6. 60. Pl. Co. ubi supra And it would be hard if the King being issue in tail of a gift made to the Subject should be in worse condition than if he were not King Co. l. 8. 173. b. Virgil Parkers case 53 The Kings Tenant by Knight-service conveyeth half his land for the joynture of his wife that shall be Equality of the third 〈◊〉 descending and after marriage he demiseth the other halfe for years for the payment of his debts and legacies and deviseth 1000 l. to his younger Children In this case it was resolved that inasmuch as the advancement of his wife is as well within the Statute of 27 H. 8. Co. l. 10. 84. a. 4. Leonard Leveis case as the payment of his debts and the preferment of his children and for that the operation of that Statute doth principally take effect by the death of the Kings Tenant For that cause albeit the estate of the Feme hath the precedency yet the Kings third parâ— shall he taken equally out of both those halfs and not out of the half so demised onely And so it was also resolved M. 41 42 Eliz. betwéen Remington and Savage and the 23 Eliz. in Thynnes case And agrées also with the common experience of the Court of Wards Co. l. 95. a. 4. Connys case 54 In a writ of Mesne the Parol shall not stay for the nonage of the Plaintiff for it is not reason In a writ of Mesne the â—rol shall 〈◊〉 stay for lâ—â—y that the Infant shall be distrained for the services of
62 yeares without impeachment of wast And after A. le ts to B the Mannor for 30 yeares from the expiration of the former ease of 30 yeares the first 30 yeares expire the Lessée cut the trees the Lessor brings an Action of wast And Iudgement was given for the Plaintife for by the accept of the future Lease the lease for 62 yeares was presently and actually surrendred because it could not be surrendred in part and in force for the residue of the term and the Lessée by such acceptance affirmed the Lessor to have ability to make a new lease which he could not do so long as the first lease stood in force so likewise if the Lessee for 20 yeares accept a lease for three yeares to begin ten yeares after this is a present surrender of the whole term for the last ten yeares cannot be surrendred and the first ten still remain in esse because that would make fractions of the term which is in its nature intire Neither can he that hath a lease for 20 yeares surrender the last ten yeares by any expresse surrender saving unto him the first ten yeares c. Co. lib. 5. 11. b. 3. 56. a. 1. Knights Case 54 Two Houses are let to one man An intire condition the one for 4 l. Rent per annum the other for 20 s. per annum with proviso that if the said Rent of 5. l. be behind in part or in all then the Lessor shall re-enter these Houses afterwards escheate to the King who after grants that upon which the â—0 s per annum is reserved to I. S. the Rent thereof is arreare In this case the Patentée cannot enter for the Condition broken because albeit the Rents were severall yet the Condition was intire by the expresse reservation and gives in intire re-entry into all for default of payment of any part of the Rent and therefore by the severance of any part of the reversion all the condition as to all common persons is destroyed Howbeit the whole condition remaines intirely in the King with the reversion of the other House and that is in respect of his prerogative c. â—he whole â—â—rm one inâ—â—â—e day 55 The Lessée for yeares brings an ejectione firme Co. lib. 5. 74. b. 1. in Wymarks Case the Defendant saith that before the lease the Lessor bargained and sold to him in Fée by indenture inrolled within six moneths whereby he was seised untill diseised by the Lessor who let the land c. The Plaintife pleades that the bargaine c. was upon Condition which was broken c. the Defendant demurres and sheweth cause according to the Statute viz. Because the Plaintiff shewed not forth the Indenture of the Condition And in this case judgement was given for the Plaintife because when any deed is shewed in Court the deed by judgement of Law remaines in Court all the term in which it is shewed but at the end of the term if the deed be not denied then the Law adjudgeth it in the Custodie of the Partie to whom it belongs for all the term in Law is but one day and therefore the deed shall be intended to remaine in Court all the terme in which it is shewed for the term in that case is Intire and will admit of no fractions And so by consequent the Plaintife may in such case take advantage of the Condition comprised in the deed shewed forth by the Defendant himselfe so he do it in the same term as afore-said c. â—erdict and â—amages inâ—â—â—e 56 Goods were cast super arenas aqua salsa minimè coopertas Co. l. 5. 108. a. 3. in Sir Henry Constables Case Manerii de B. infrà fluxum refluxum maris and another parcell were floting super aquas maris refluent ex arenis ejusdem Manerii infrà fluxum c. The Patentée of the Mannor and Fée of Holdernesse in Com. Ebor. brings an Action of Trespasse against him that seised them to the use of the Lord Admiral And the Iurie assessed damages intirely for all In this case judgement was given against the Plaintife because the Goods so floting upon the Waters called Flotsam did not of right belong to him but to the Lord Admiral And therefore the Verdict being intire viz. given for both and so the damages of the wrecke being thereby made un-severable from those of the Flotsam the Plaintife could take nothing by his wort So in Trespasse 21 H. 7. 34. b. the Defendant justifies for part and Pleads not guilty for the residue the Iury inquire of one of the things and tax damages intirely here the whole Court against Fineux adjudged it not good 22 E. Dier 369. accord M. 14 15 El. in Trespas by Pooly for his Servant beaten and his Close broken and said not per quod servitium amisit upon non culp the Iury assessed damages intirely and it was adjudged not good See 9 H. 7. 3. M. 30 31 El. inter Moore Bedle in Assumpsit where the Plaintiff layes two breaches whereof one was insufficient upon non assumpsit the Iury assessed damages intirely And in this case there were two resolutions 1 It shall be intended that they gave damages for both 2 Because the Plaintifs had no cause for one of the allegations â—â—tire serviâ—â— the judgement was to be reversed in the Exchequer Chamber c. 57 Concerning intire Services Co. lib. 6. 1. in Bruertons Case and where they may be apportioned â—arranty inâ—â—â—e and where not see Bruertons Case per tout Co. l. 6. 1. and John Talbots Case in the 8. Rep. fol. 108. 58 Warrantie is an Intire thing which will not suffer partition but shall always either intirely remaine or be intirely annulled Co. lib. 6. 126. Morrices Case and therefore if there be two Ioyntenants with Warrantie and petition is made between them by judgement in a writ de partitione facienda by force of the Statute of 31 H. 8. cap. 1. in this case the Warrantie shall remaine to each of them intirely because upon the Kings writ they are compellable by the Statute unto which every one is Partie to make partition and so the Partie persuing his remedie according to the Act shall not receive any prejudice by the operation of the same Act unto which every one is partie but if they had made partition by deed by consent since the said Act albeit they were compellable by writ to make partition yet in as much as they did not pursue the Statute to make partition by writ for that cause such partition remaines as it was before at the Common Law and by consequent the Warrantie is gone as it was agréed in 29 El. 3. tit Garr because the Warrantie is indivisible and cannot be parted as the Land may Co. lib. 6. 23. The Marqu of Winchesters Case 59 The Marcquesse of Winchester by will as it was supposed A will for Lands and Testament 〈◊〉
before the more remote though great estate in fée c. And with this accords 24. E. 3. 32. in Pierce Grimsteads case Co. l. 11 99 a. 4 in James Baggs case 5 If a Major and Aldermen of a Town corporate Upon a faâ— return the Court caâ—â—â— proceed which have power by Charter or presciption to dis-infranchise do dis-infranchise one of their members and upon motion in the Kings Bench the Iudges there do award a writ unto them to restore him or otherwise to signiffe the cause c. and they certifie sufficient cause to remove him but it is false In this case the Court cannot thereupon award another writ to restore him neither yet can any issue be taken thereupon because the parties are strangers and have no day in Court Howbeit the party grieves may well have an Action upon the special matter against those that made the certificate and aver that it is false And if it be found for him and he obtain judgment against them so that if may appear to the Iustices that the causes of the return are false then shall they award a writ of restitution and not before and this is proved by the reason of the Book in 9. H. 6. fol. 44. where it is holden that upon a Corpus cum causa if the cause returned be sufficient but indéed false the Court ought to remand the prisoner and he is thereby put to no mischief for if they had no authority to imprison him or that the cause certified be false he may have a Writ of false Imprisonment against them c. Vide Fitz. Tit. corpus cum causa p. 2. the case of 9. H. 6. well abridged F. N. B. 19. i. 6 In a Writ of false Judgment upon a Writ of right patent No errour bâ—fore all câ—â—fied c. or a Writ of right close the plaintiffe shall not assign his errors before all the Record be certified viz. not onely the original but likewise all the residue of the Record F. N. B. 20 e. 22 f. 7 In a Writ of Error when the Record is removed When erroâ— are to be â—signed the Plaintiffe shall assign his Errors before he shall have a Scire facias against the Defendant ad audiendum errores c. Howbeit he shall have a Scire facias before the Record shall be entred for it shall not be entred before the parties have day by the Scire facias c. F. N. B. 38. o. 8 Vpon a Quare Impedit if the Sheriff return tardè and the Defendant appears and the Plaintiff is demanded and comes not in Upon a 〈◊〉 return no 〈◊〉 to the Bishâ—p in this case the Defendant shall not have a Writ to the Bishop c. because no Writ was served against him for he ought to have the Writ served against him before he can have that priviledge c. F. N. B. 39. e. 9 When a man sues a Quare Impedit against another A Certificâ— of an accâ— before 〈◊〉 admittaâ— and after they hanging the suit he sues a ne admittas to the Bishop c. and after they accord in the Co. Pl. to present by turn to that advowson in this case a special Writ shall issue out of the Chancery to the Bishop to admit the Clerk of him who ought by that accord and composition to present to the first turne but first the King ought to send a Certiorare to the Iustices of the Com. Pl. to certifie him in his Chancery of the accord there and upon that Certificate the King shall send his Writ to the Bishop as aforesaid c. A Writ de secunda super oâ—eratione 10 In a Writ de admensuratione pasturae F. N. B. 126. 1. all the Commoners shall be admeasured viz. as well those that were not parties to the writ as those that were but yet if any of them which where not parties c. surcharge the Common after admeasurement they shall not forfeit their cattel nor yet the value of them which were in the pasture above the due number because they were not parties to the first writ neither shall the party that complains recover dammages against them in that writ for such surcharge for a writ de secunda super oneratione lieth not save onely against him against whom the first Writ was sued c. 11 In an Assise of Fresh-force in London against Jekef Foxley and Agnes his wife Matter of fact first to be found and then that in Law to be resolved and eleven other whereof ten appeared by Baily Pl. Co. 91. a. 1. in the Case of the Fresh-force in London against Foxley and others and plead No such Agnes the wife of Foxley in rerum natura and demand judgment of the plaint quod inquiratur per Assisam si c. Nul tort nul diss c. and the others plead the same plea by Attorney And the Plaintiffes as to the plea in abatement of the Plaint demur in law and as to the other plea they pray the Assise And whether the writ should abate or not was argued at Guild-hall by the Councel of both parts before the Assise was taken but afterwards the Councel of the Plaintiffs perceiving that the matter was argued before time for the Assise ought first to have inquired all the matter and if they had found the exception and had also found a disseisor and tenant then would it have been time to have disputed what the Law have determined in that case and not before they therefore prayed the Court when the Assise was sworn that they might first inquire of the matter pleaded in abatement of the Plaint which was done accordingly c. for the course formerly run was preposterous and not suitable to such orderly procéeding as the Law requires And so it was found that there was no such Agnes c. and yet the writ did not abate for the rest c. 75 A digniori fieri debet Denominatio Resolutio Quod ei deâ—rceat for teâ—ant in Dowâ—r and by the â—ourtesie 1 It hath been a question in our Books Co. Inst p. 1. 353. a. 4. whether upon a Recovery had by default in an Action of Wast against tenant in dower or by the Courtesie a Quod ei deforceat lyeth by the Statute of West in cap. 4. For some have holden that in an Action of Waste although it be brought against a tenant in Dower or by the Courtesie that have a Frée-hold yet the damages are the principal because they were recoverable against the tenant in Dower and by the Courtesie by the common Law and the Statute of Glocester gave the place wasted but for a penalty so as the nature of the Action say they remaineth still to be personal for that the dammages are the principal c But the best opinion is conceived to be that albeit in that Action the dammages may be the more
Vide Dier 150. 84. Co. ib. 207. a. 4 24 If a man make a single bond Condition collateral or acknowledge a Statute or Recognisance and afterwards make a defeasance for the payment of a lesser sum at a day if the Obligor or Conusor tender the lesser sum at the day and the Obligée or Counsée refuseth it he shall never have any remedy at Law to recover it because it differeth in quality from the sum contained in the Obligation Statute or Recognisance because if is no parcel thereof but contained in the defeasance made at the time or perhaps after the Obligation Statute or Recognisance And in such Case in pleading of tender and refusal the party shall not be driven to plead Uncore prist neither hath the Obligée or Counsée any remedy by law to recover the sum contained in such defeasance so likewise it is if a man make an Obligation of 100 l. with condition for the delivery of corn or timber c. or for the performance of an Arbitrement or the doing of any Act c. This differing in nature from the sum contained in the Obligation and being no parcel thereof is collateral thereunto And therefore in such Case also a tender and refusal is a perpetual bar The like Law it is of tender and refusal of money upon a Mortgage of Land because the money is collateral and differeth in nature from the land Dier 5. b. 26. H. 8. 1 2. 25 A man seised of land devisable by the custome lets it for years Rent reservâ—â— a chattel rendering rent and deviseth the rent to a stranger and dies and the stranger is seised of the rent and dies also In this case the rent being in its nature but a chattel shall go to the executor of the Devisée and not to his Heir 26 In debt against Executors brought in the County of Middlesex Debt against Executors the Defendants plead fully administred Dier 30. b. 206 28. H. 8. The Plaintiffe saith that they have Assets in Essex and thereupon the Defendants demurred and judgment was given for the Plaintiff because Assets in their nature is a thing transitory and not local and if it had been in issue and trial of a Iury of Middlesex they might have found the Assets in any County of England Rent-service apportionable 27 Rent-service was apportionable at the Common Law before the Statute of Quia Emptores terrarum Co. Inst p. 1. because there are divers kinds of Rent-service which are not within that Statute and yet were apportionable by the Common Law as if a man maketh a lease for life or years reserving a rent and the Lessée surrender part of the land to the Lessor or if the Lessor recover part of the land in an Action of wast or entreth for a forfeiture or granteth part of the reversion to a stranger or if tenant by knight-service by his last will in writing deviseth two parts of his lands In all these cases the rent shall be apportioned yet they are not within the words of the said Statute but the reason séems to be for that rent-service is of the nature of the land and therefore partable as it is partable according to Max. 64. It is otherwise of a rent charge because it is not of the nature of the land being against common right and collateral to the land Livery out of ward 28 A livery to be out of ward being in nature of a restitution Co. ib. 77. a. 4. shall be taken and expounded favourably And therefore if livery be made of a Mannor cum pertinentiis the Heir shall thereby have the Advowson appendant It is otherwise of Grants by Letters Patents Confirmation 29 If a Lease for life be made to two Co. Inst p. 1. 299. b. 1. to have and to hold the one moity to the one for life and the other moity to the other for life and the Lessor confirm their estate in the land to have and to hold to them and their heirs In this Case they are tenants in common of the Inheritance for regularly the confirmation shall inure according to the quality and nature of the Estate which it doth inlarge and increase 30 There being thrée Coperceners of land in Gavelkind in reversion Dier 128. a. 58 2 3. P. M. depending upon an Estate for life Partition the youngest aliens his part by fine in fée the tenant for life dies and the eldest son enters into the whole and then the second brother and the alienée bring a joynt writ of partition upon the Statute of 31 H. 8. 1. against the eldest brother But it was adjudged that it was not maintainable because they were entituled to writs of partition of several natures viz. the one to a writ of Copercenarie at the Common Law and the other to a writ of Partition by the Statute and therefore could not joyn â—eprivation 31 The President of Magdalen Colledge in Oxford being deprived by the Bishop of Winchester their Visitor Dier 209. 20. 3 4. Eliz. could not have an Appeal to the Delegates because the deprivation was temporal and not spiritual and therefore out of the Statute of 25. H. 8. 19. And so he was put to his Assise â—â—sance 32 Tenant for life of an house brings an Action upon the Case against one who stopped the way in his land Dier 250. 88. 8 Eliz. which time out of mind had béen a passage betwixt the house and a Park and albeit the Park was the Lessors and not the tenants for life yet it was held by the Count that such an Action lay not for the tenant for life but an Assise of Nusance 〈◊〉 in grosse 〈◊〉 rent 33 The Lord Dacres lets certain land and stock to friends Dier 275. 49. 10 Eliz. who covenant to pay 100 l. per annum to him and his wife his heirs assignes during the term and also 2000 l. at a certain day for the marriage-portion of his daughter he dies his son within age suffers more then a third part of all his land to descend after the Feme dies And in this Case it was adjudged that the Quéen should not have the 100 l. per annum but the executors of the Feme because in nature and quality it is not a rent which goeth to the heir but a sum in grosse 81 In persons the Law looketh at the excellency of some and giveth them singular Priviledges and preheminences above others as to the King the Queen his Wife Noblemen and Peeres of the Realme also unto persons of holy Church Co. Inst pt 1. 21. b. 3. 1 If the King give Land to a man with a Woman of his kindred in Frank-marriage and the Woman dieth without Issue Frank-marriage the man in the Kings Case shall not hold it for his life because the Woman was the cause of the gift but it is otherwise
in the Case of a common person Co. ib. 31. b. 4. 2 If a Common Person take an Alien to Wife and die An alien albeit he were seised of Lands in Fée or Fée taile yet shall not his Wife be endowed but if the King take an Alien borne and die she shall be endowed by the Law of the Crowne And yet Edmund brother to E. 1. married the Quéen of Navarre Rot. Parl. 26 E. 1. Rot. 1. and died And it was resolved by all the Iudges that she should be endowed of the third part of all the Lands whereof her husband was seised in fee. Co. ib. 90. a. 4. F. N. B. 33. p. q. r. 3 If a Bishop hath an Advowson and the Church becomes void Bishop Advowson and the Bishop dies neither the Successor nor the Executors shall present but the King because it is but a Chose in action Co. ib. 388. a. 2. F. N. B. 33. p. q. r. 4 A man holds the mannor of D. whereunto an Advowson is appendant of the King by Knights-service the Church becomes void Advowson Wardship Eâ—ecutors and then the Tenant dies his heire under age in this Case the King shall present and not the Executors of the Tenant And this is by reason of a prerogative that belongeth to the King to provide for the Church being void for where the tenure by Knight-service is of a Common Person the Executors of the Tenant shall present c. Co. ib. 108. b. 2. 5 Tenure by rendring yearly to the Lord a Bow a Sword Petty Serjeancie Soccage a Dagger a Gantlet or such other small things belonging to warre in Case of a Common Person is nothing else but plain soccage ab effectu because it had such effects and incidents as belong to soccage and neither ward nor marriage c. But in the Kings Case in respect of the dignity of the Kings Person it obtaineth the Name of Petie Serjeancie c. Co. ib. 118. a. 2. Litt § 177 178. 6 If a Villain purchase Land and alien it before the Lord enter Villein pâ—â—chas Land 〈◊〉 goods seisâ—â— the Lord is barred for ever For before the Lord enters he hath neither jus jure nec jus ad rem but onely a possibilitie of an Estate which Estate he must gaine by his entry And therefore if the Villain doth by way of prevention alien before the Lord doth enter the Lord is for ever barred of the possibilitie which he had to enjoy the Land Si autem servus vendiderit feodum Fleta l. 3. c. 13 Britt fol. 98. a. 19 E. 2. Dow. 171. quod sibi haeredibus perquisiverit antequam Dominus seisinam inde caeperit valet donatio Dominus sibi ipsi imputer quod tantum expectavit saith Fleta Howbeit if the Kings Villain purchaseth Land and alieneth before the King upon an Office found for him doth enter yet the King after Office found shall have the Land Quia nullum tempus occurrit Regi And yet after Office found the King shall not have the mean profits because the title commenceth by the seisure Litt. §. 178. It is otherwise of Goods in the Kings Case For if the Kings Villain acquire any Goods or Chattels the property of them is in the King before any seisure or Office And it is well said of an Ancient Author Mirr cap. 3. Britt fol. 88. Al Roy quant al droit de la Corone on á franch Estate ne poet nul temps accurre and another speaking in the Person of the King saith Nul temps nest limit quant á mes droits c. â—â—narty 7 Where a Church is presentative Co. ibid. 119. b. 4. 344 a. 4. it is full by admission and institution against any common Person but against the King it is not full before Induction â—â—een purâ—â—s sue 8 By the Common Law the Wife of the King of England is an exempt Person from the King Co. ibid. 132. a. 4. Co. l. 4. 23. b. 2. Clerke Pennyfathers Case and is capable of Lands and tenements of the gift of the King as no other Feme covert is and may sue and he sued without the King for the wisedome of the Common Law would not have the King whose continuall care and study is for the Publique circa ardua Regni to be troubled and disquited for such private and petty causes So as the wife of the King of England is of ability and capacity to grant and to take to sue and to be sued as a Feme sole by the Common Law Also the Quéen of England hath many other prerogatives viz. She shall find no pledges for such is her dignity as she shall not be amerced â—â—ince Neither she nor the Kings Son are restrained by the Statute of 1 H. 4. c. 6. concerning grants by the King In a Quare Impedit brought by her some say that plenarty is no plea no more then in the Case of the King â—â—enarty Baiâ—â—â—e Hundred If any Bailiffe of the Quéenes bring an Action concerning the Hundred he shall say In contemptum Domini Regis Regiâ—ae The Quéen shall pay no toll c. â—enancie part â—â—iened diâ—â—â—ain in all 9 If the Quéenes Tenant alien a certain part of his tenancie to one Co. ibid. 133. b. 1. and another part to another the Quéen may distraine in any one part for the whole as the King may do but other Lords shall distraine but for the rate Ane therefore where the Quéen so distraineth there lyeth a writ de onerando per rata portione â—rit of right â—â—rected Also the writ of right shall not be directed to the Quéen no more then to the King but to her Bailif otherwise it is when any other is Lord. â—yde counterâ—leaded 10 In case of Ayde prayer of the Quéen Co. ibidem it is Domina Regina inconsulta and the cause of the Ayde prayer shall not be counterpleaded no more then in the Kings Case And see where the ayde shall be granted of the King and Quéen and where of the Quéen onely and she of the King 14 E. 3. Voucher 110. 21 E. 3. 53. 22 E. 3. 3. b. 17 E. 3. 65. 10 E. 3. 17. 5 E. 3. 4. 15 E. 3. Ayde del Roy 66. 10 E. 3. 18. 26 H. 6. Ayde le Roy 24. â—â—otect Marleâ—â— distresse 11 A protection shall be allowed against the Queen Co. ibidem but not against the King neither shall the Quéen be sued by petition but by a praecipe The Quéen is not bound by the Statute of Marlebridge for driving a distresse into another County â—eath treason â—â—wag 12 If any do compas the death of the Quéen Co. ibid. 133. b. 2. and declare it by any over fact the very intent is treason as in the Case of the King No man may marry the Quéen Dowager without the
be in better condition then the subject from whom the claimes and in that case shall have the priority and so shall his grantée also c. as is holden in 24 E. 3. 65. Fitz. tit gard 27 47. Co. l. 5. 91. b. 3. in Semaynes Case 39 In all cases when the King is partie Sheriffe 〈◊〉 open dooreâ— the Sheriffe if no doore be not open may after notice given of the cause of his coming request made to have the door opened break open the house of the partie either to take him or to make other execution of the Kings process if he cannot otherwise enter into it but so it is not in the case of a subject c. So for felonie or suspicion of felonie the Kings officer may breake the house to take the felon because in every felonie the King hath an Interest and where the King hath Interest Felonie the writ is Non omittas propter aliquam libertatem and therefore the libertie or priviledge of an house shall not hold out against the King besides it concernes the Common Wealth that felons be apprehended and in that respect also the King hath a special Interest being the head of that body c. Co. l. 5. 104. a. in Bakers case 40 T. 42 E. in B. R. in Ejectione firmae it was resolved Demurre that if the Plaintiffe shew in evidence any matter in writing Record or Sentence in the Ecclesiastical Court whereupon Question in Law may rise and the defendant offers to demurre c. the Plaintiffe cannot refuse to joyne in demurrer unlesse he will waive his evidence so if the Plaintiffe produce witnesses and the defendant admit their testimonie to be true he may demurre c. So also may the Parliament demurre mutatis mutandis Howbeit upon evidence in an information for the King his Council shall not be compelled to demurre But in that Case the Court may direct the Iury to find the special matter and thereupon they shall adjudge the Law as appeares in 34 H. 8. Dier 53. And this is by reason of the Kings prerogative who may also waive the demurrer and take issue at his pleasure Nota bene Co. lib. 5. 106. a. 4. 108. b. 1. in Sir Henry Constables case 41 Originally the Common Law gave unto the King all such things as were In nullius bonis as Wrecke viz. Goods Things 〈◊〉 liuâ— boâ—i quae naufragio ad terram appelluntur Flotsan viz. When the Ship is drowned or otherwise perished and the Goods flote upon the Sea Wrecke Jetsam as when the Ship is in danger to be drowned and to dis-burden the Ship the Goods are cast into the Sea and after notwithstanding the Ship perisheth Estrayers Lagan vel potius Figan as when the Goods so cast out are so ponderous that they sinke and the Mariners to the end they might find them again fasten a piece of Corke or a Boye to them that will not sinke and therefore this séemes to be called Ligan à Ligando It gave also to the King Estrayes which Bracton calles Animalia vagantia and others Animalia vacantia quia Domino vacari debent Also treasure trove and the like Because by the Rule of the Common Law when none could claime a property in any Goods the King was to have them by his prerogative And therefore Bracton saith Sunt alia quaedam quae in nullius bonis esse dicuntur sicut Wreccum maris Bract. l. 3. c. 3. Grossus Piscis sicut Sturgio Balena aliae res quae Dominum non habent sicut animalia vagantia quae sunt Domini Regis propter privilegium Mare Clausum And note that the King shall have Flotsan Jetsan and Lagan by his prerogative as well as wrecke Albeit they be in or upon the Sea for the Sea is of the Kings Ligeance and parcel of this Crowne of England as it is holden in 6 R. 1. protection 46. and Britton cap. 33. agrées well with the opinion of Bracton that wrecke c. are things in nullius bonis and come into the hands of the subject Originally by Kings grant his words are these Britt c. 33. Et ausi purchas lou per franchise grantee par nous de choses trovves en nulluy biens si come de wrecke de neer bestes estrayantes of Conies Levres pessons Fesants Pertris autres Bestes sauvages par franchise de aver wrecke de meer trouve en son soil waife estray trouve en son fee garrennes en ses demesnes terres c. Lady Peere â—rest 42 A Countesse by descent or mariage cannot be arrested for debt or trespas 1 In respect of her dignity 2 The Law presumes Co. l. 6. 52. b. 3. in the Case of Isabel Countesse of Rutland that she hath sufficient in Lands and Tenements so hereby to be distrained for albeit in respect of her sex she cannot sit in Parliament yet she is a Péere and shall be tried by her Péeres as appeares of 20 H. 6. cap. 9. which was nothing else but a declaration of the Common Law So it is also of a Baron that is a Péere of Parliament 11 H. 4. 15. In homine repligiando against the Lady Spencer it appeares that the said Lady was a Peere of the Realme â—pon account Lady not exâ—ined 43 In 3 H. 6. 48. Co. ibid. 53. a. 1. A Writ of debt upon arrerages of accompt was brought by the Lady of Aburgavenie against another the Defendant pleads Rien luy doit and is ready to make his Law and prayes by force of the Statute of 5 H. 4. cap. 8. that the Parliament might be examined which Act is generall viz. that examination shall be made which is alwayes intended upon oath And there Cokein who gave the Rule said La Dame d'Aburgavenie est un Peere del Realme ne sera bien fait de luy faire venir d'estre examine Car par mesme la reason nous Dames faire venir chescun Duke on Countee d'Angliterre Rolfe Serjeant purquoy nou Sr. Le dit Statute est general est fait pur chescun home haut base A que Cokein dit le ley voit over diversity pur enter Seignior ou Dame c. auter Common Person By which book it may be observed that a Lady which is but the wife of a Baron is a Péere of the Realme and is in equipage as to Nobility and priviledges incident to their dignities with Dukes â—duo Juror Earles c. 44 In 48 E. 3. 30. Co. ibid. 53. a. 3. Sir Ralfe Everden Knight brings a writ to the Chancery and also a writ of the Privy seale to the Iustices rehearsing that he was a Baron and commanding them to discharge him of his oath in juratis accessis recognitionibus quibuscunque because the Barons ought not to be sworne upon Inquests and Recognitions
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
King hath an Interest in the Land or shall lose Rent c. or services then the Court ought to cease until they shall receive a procedendo in loquela from the King c. F. N. B. 154. d. e. 85 If the King by his writ certifie the Iustices Justices to surcease upon the Kings Certificat that the Lands are in his custodie by reason of the nonage of some heire taken by Inquisition and returned into the Chancery commanding them that they shall not procéed Rege Inconsulto In that Case it séemes that the Iustices ought to cease for the present albeit there be no such Office found nor returned for they are bound to give credit to the Kings certificate albeit that it be not true c. And in Assise de Novel disseisin if the King send his writ to the Iustices that the Defendant holds the Land put in view of the Kings gift for term of life by the Kings Charter commanding them not to procéed Rege Inconsulto here although the Tenant will not plead this yet it séemes that the Iustices ought to cease by that writ So if the King rehearse in the writ that the Tenant is in his service in warre beyond Sea or in Scotland and that he holds by Charter of the Kings grant for term of life commanding that they shall not procéed Rege Inconsulto but to continue the Assise untill a certain day there also it séems they shall surcease Because the Tenant cannot plead it for if the Escheator will say that he seised the Land into the Kings hand in an Assise brought by any person the Court shall surcease for that saying and by force of the Kings Certificate c. F. N. B. 106. c. 86 Men and Women of Religion are to be excused from appearing at the Sheriffs turne or at Leets unlesse it be for some great cause Men of Religion And if they be distrained to come unto them they may have a writ De exoneratione sectae c. out of the Chancery to discharge themselves of such service c. F. N. B. 159. c. 87 If Land descend to Coperceners Suit of Copeceners for which onely one suit ought to be done In this Case if the Land be holden of the King then all the Coperceners ought to make a suit as well after the partition as before But if the Land be holden of another Lord then the eldest Sister or her Feoffée shall onely make the suit c. And if the Lord do distraine the other Coperceners for that suit they shall have a writ De exoneratione sectae c. to discharge themselves of it c. Pl. Co. 76. b. in The Lord Willoughbies Case 88 If the King direct his writ Coronatoribus in Com. L. this is to be understood in the Kings Case Coronatoribus de Com. L. for the Kings writs in such Cases The Kings Writ will admit a favourable construction for the fulfilling of the Kings full intent c. Finch 81. 89 For the Kings prerogate see Finch 81. c. and elswhere throughout his whole Book under the several heads when there is any difference betwéen this Case an that of a subject Finch 83. 90 The King never dieth Demise Le Roy. but in Law it is said the demise of the King and a gift unto the King without more trencheth to his Successors 91 The particular prerogatives due to the King by the Common Law may be for that most part referred to one of the eight heads hereafter following notified in the outward margent by their several and respective letters as followeth 1 Divine perfection A 2 Infinitenesse B 3 Majesty C 4 Soveraignity power D 5 Perpetuity F 6 Justice G 7 Truth H 8 Omniscience I Ideot 92 Because every subject is by Law in the protection of the King Co. l. 4. 126. a. 2. in Beverleys Case who therefore is of right bound to defend his subjects persons and Estates and for as much as an Ideot is not able to governe himselfe or order his Estate The Law of England hath provided the King to be his Tutor to Govern and order both his person and Estate For the Statute of Praerogativa Regis made in the 17 of E. 2. cap. 9. was nothing else but a declaration of the Common Law c. Rent reserved 93 It is a Maxime in Law that the Rent must be reserved to him Co. Inst p. 1. 143. b. 4. from home the State of the Land moveth and not to a stranger but some do hold that it is otherwise in the Kings Case Upon a joint purchase tenement in common 94 If Lands be given to A. de B. Bishop of N. and to a secular man Co. ibid. 190. a. 4. to have and to hold to them two and to their heires In this Case they are joyntenants For each of them take the Lands in their natural capacity But if Lands be given to the King and to a subject to have and to hold to them and to their heires yet they are Tenants in Common and not Ioyntenants For the King is not seised in his natural capacity but in his Royal and Politique capacity in Jure Coronae which in respect of the Majesty of his Kings Person cannot stand in jointure with the seisin of a subject in his natural capacity And therefore if there be two joytenants and the Crowne descend to one of them the joynture is thereby severed and they are become Tenant in Common c. Grant in Mortâ—aine 95 It appeareth by Littleton § 140. Co. ibid. 99. a. 3 which my Lord Coke saith is a secret in Law that in the Kings licence to grant land to a Corporation there needs not any non obstante of the Statutes of Mortmaine for the King shall not be intended to be mis-conusant of the Law and when he licenseth expressely to alien to an Abbot c. which is in Mortmaine he needs not make any non obstante of the Statutes of Mortmaine for it is apparent to be granted in Mortmaine and the King is the head of the Law and therefore praesumitur Regem habere omnia Jura in scrinio pectoris sui for the maintenance of his grant to be good according to the Law Descent of â—etrage to Feâ—ales 96 When an Earldome or Baronie descends to one Daughter or other heire Female she shall solely enjoy both the Dignity and Lands Co. ibid. 165. a. 3. but where it descends to more heirs Females then one the Lands shall be divided as amongst other Coperceners Howbeit in that Case the dignity cannot be divided neither shall the Eldest have it as to be a Countesse Baronesse c. But in such case the King who is the Soveraigne of Honor and Dignity may for the uncertainty conferre it upon which of the Daughters he please this is to be intended when the Ancestor dies seised of Peerage in Fée-simple
Alien that is condemned in an information shall have a writ of Error to relieve himselfe Et sic de similibus â—â—eading 12 If an Alien that is no Alien Enemy Co. ibid. b. 2. in Calv. Case ubi suprà commence a suit the Tenant or Defendant may plead in dis-ability and ought at last to demand Iudgement Si il sera respondue But if an Alien Enemy bring a suit he shall conclude to the Action by saying Judgement si action Co. ib. 156. b. 4 and 129. a. 1. 13 It is a principal Challenge to the Poll Juror that the Iuror is an Alien born and that is propter defectum Patriae or rather ligeanciae as Littleton hath it or Subjectionis as Bracton Co. l. 7. 6. a. 4 in Calvins Case 14 It is to be observed that it is nec Coelum nec Solum Ligeance makes a Subject born neither the Climate nor the Soil but ligeantia obedientia that make a man to be a Subject born for if enemies should come into this Kingdome and possesse a Town or Fort and have issue there that issue is no Subject to the King of England though he be born upon his Soil and under his both Climate and Meridian because he was not born under the ligeance of a Subject nor under the protection of the King Co. ib. 15 If an Alien of a Countrey in league with the King come into this Kingdome and here commit Treason An Alien in league shall be indicted It is otherwise of an alien Enemy who shall be punished by Martial Law c. he shall be indicted for it and procéeded against according to the municipal Law of the land and the indictment shall begin and end as other indictments do viz. the beginning shall be contra Dominum Regem c. and it shall also end thus Contra ligeantiae suae debitum c. Onely in the middle these words shall be omitted naturalem Dominum suum c. as it was resolved in Hill 36. Eliz. in the Case of Stephano Ferrara de Gama and Emanuel Ludovico Tinoco two Portugals born who comming into England under the safe Conduct of Quéen Elizabeth and living here under her protection joyned with Doctor Lopez in treason against her Majesty But if an alien enemy come to invade this Land and be taken in war he cannot be indicted of treason for it because the indictment cannot conclude Contra ligeantiae suae debitum for he never was in the Kings protection nor ever ought any manner of ligeance unto him but malice and enmity and therefore in that Case such an Alien shall be put to death by Martial law And so it was in 15 H. 7. in the Case of Perkin VVarbeck who being an Alien born in Flanders feigned himself one of the sons of E. 4. and invaded this Kingdome with intent to take upon him the Royal Dignity but being taken in war it was resolved by the Iustices that he could not be punished by the Common Law but before the Constable and Marshal according to Martial Law and so he was according to that Law adjudged to be hanged drawn and quartered and was in that manner executed accordingly Co. ibid. 17. a. 16 Every Alien is either a friend that is in league An alien friend and enemy c. or an enemy that is in open war c. Every alien enemy is either so pro tempore a temporary enemy for a time or perpetuus perpetual or specialiter permissus permitted in a special manner An alien friend so long as he so continues to be may acquire by gift or purchase Lands c. but cannot hold them he may also have Leases and Goods for Trade and Commerce sake maintain personal actions c. as is above-said But if such an Alien become an Enemy as all Aliens friends may then is he utterly dis-abled to maintain any action or get any thing within this Realm but a perpetual enemy though there be no Wars by fire and sword between them cannot maintain any Action or get any thing within this Realm such as are all Infidels which are in law estéemed perpetui inimici because the Law presuming that they will not be converted that being remota potentia betwéen them as with Devils whose Subjects they are and the Christian there is perpetual hostility and can be no peace For as the Apostle saith 2 Cor. 6.15 Quae autem concordia Christo cum Beliali aut quae portio fideli cum infideli And the Law saith Judaeo Christianum nullum serviat mancipium Nefas enim est quem Christus redemit Blasphemum Christi in servitutis vinculis detinere Register 282. Infideles sunt Christi Christianorum inimici And herewith agréeth the Book in 12 H. 8. fol. 4. where it is holden that a Pagan cannot have or maintain any action at all And upon this ground there is a diversity betwéen the Conquest of a Kingdome of a Christian King and the Conquest of the Kingdome of an Infidel For if a King come to a Christian Kingdome by Conquest séeing that he hath vitae necis potestatem he may at his pleasure alter and change the Lawes of that Kingdome but untill he doth make an alteration of them the ancient Lawes thereof shall remain Howbeit if a Christian King should conquer a Kingdome of an Infidel and bring them under his subjection there ipso facto the Lawes of the Infidel are abrogated for that they be not onely against Christianity but against the Law of God and Nature contained in the Decalogue And in that Case until certain Lawes be established amongst them the King by himself or such Iudges as he shall appoint shall judge them and their Causes according to natural equity in such sort as Kings in ancient time did within their Kingdomes before any certain municipal Lawes were given But if a King hath a Kingdome by title of Descent there séeing by the Lawes of that Kingdome he doth inherit the Kingdome he cannot change these Lawes himself without consent of Parliament c. As for an Alien Enemy that is inimicus permissus he is an Enemy that comes into the Realme by the Kings Conduct c. Vide 7. 4. The Defendant pleaded an Alien 17 In an Action brought by a Subject against an Alien Co. ibid. 25. a. 4. in Calvins Case the Subject shall plead that the Defendant is an Alien born for the benefit of the King to the end that the King upon Office found may seise that whereof the Alien is seised or possest and also that the tenant may yield the same to the King and not to the Alien because the King hath best right thereunto Flea against an Alien 18 In an Action real against an Alien born Dier 2. 8. 6 H. 8. it is a good plea in dis-ability of the person to say that he is an Alien born otherwise in Actions personal but against an
as it were by way of excuse to give the special matter in evidence as to say that it was se defendendo or in defence of his house in the night against Theeves and Robbers or the like Co. l. 3. 11. b. 4. in Sir Will. Herberts case 16 The liberty of a man is of such high estéeme in the consideration of Law that he could not at the Common Law he imprisoned At the Common Law to capias for 〈◊〉 c. unlesse he were guilty of committing some force for the Law being the preserver of the Common peace of the Land abhorres all force as one of her capital Enemies and therfore as concerning such as commit force the Common Law subjects their bodies to imprisonment as to one of the highest Executions of Law whereby they lose their liberty until they have made agréement with the party and fine to the King for which cause it is a Rule in Law that in all Actions Quare vi armis a Capias lies and where a Capias lies in process there after judgement a Capias ad satisfaciendum lies and there also the King shall have a Capias pro fine And with this agrées 8 H. 6. 9. 35 H. 6. 6. 22 E. 4. 22. 40 E. 3. 25. 49 E. 3. 2. and divers other Books But at the Common Law if a common Person had sued a recognisance or judgement for debt or damages he could not have the body of the Defendant nor his lands unlesse in some special case in execution but was onely in such case to have execution either of his goods and chattels by fieri facias or of his graine or other present profits which encreased upon the land by levati facias both which writs were to be sued within the yeare after the judgement or recognisance acknowledged and if he had neither the one of the other within the yeare the Plaintiffe or Conusée was then put to his writ of debt c. And then by the Statute of Westm 2. cap. 45. a scire facias was given and by cap. 18. cum debitum fuerit recuperatum c. an Elegit of the moity of the land which was the first Act that subjected land to the execution of a judgement or recognisance and with this agrées F. N. B. 265. q. And then by the Statute of 13 E. 1. de Mercatoribus 27 E. 3. cap. 9. and 23 H. 8. cap. 6. In case of a Statute Merchant or staple all the lands which the Conusor had the day of the conusance shall be extended in whose hands soever they come c. Also by the Statute of Malbridge cap. 23. and of West 2. cap. 11. A capias was given in accompt for at the Common Law processe in accompt was distresse infinite and after by the Statute of 25 E. 3. 17. the like processe was given in the debt as in accompt before which two last recited Statutes the body of the Defendant was not liable to the execution in accompt or debt c. neither yet was the land liable in debt as afore-said save in the Kings case and in the case of an heire in by descent and chargeable by the Obligation of his Ancestor c. Co. l. 4. 40. 2. 3. Darleys Case 17 In P. 25 E. Wotherel brings an appeal against Dorley of murder the Defendant pleads not guilty and he was found guilty of homicide Life shall 〈◊〉 be twice 〈◊〉 in jeopardy for the same offence and had his Clergy and after he was indicted of murder and thereupon arraigned at the Quéens suit and he pleaded the former condition in the appeale at the suit of the party And it adjudged a good barre because the life of a man is so precious in judgemedt of Law that it shall not be twice put in jeopardy for one and the same offence The like is agréed in Brooks Case H. 28 El. and P. 33 El. in Vaux his Case which sée Co. l. 4. 45. a. Nâ—â— compos â—â—tis shall not lose his â—ife for felony 〈◊〉 murder 18 Every Act that a man de non sanae memoriae doth Co. ibid. 124. in Beverleys Case either concernes his life his lands or his goods also every Act that he doth is either done in pais or in a Court of Record All Acts which he doth in a Court of Record concerning his lands and goods shall bind himselfe and all other persons for ever Also all Acts which he doth concerning his lands and goods in pais in some cases shall bind himselfe onely during his life and in some case shall bind for ever c. But as for his life the Law of England is that he shall not lose that albeit he kill a man and thereby make himselfe subject to be indicted for felony or murder c. The death of a â—an grievously punished by the Law 19 The Law surpriseth the life of a man Co. ibid. 2. 4. in Beverleys Case that it inflicteth grievous punishment upon them that are guilty of taking away and destroying it for the malefactor in that case shall 1. Lose his life 2. Lose it after an ignominious and odious manner viz. by hanging for he shall be hanged betwixt heaven and earth as unworthy of both 3. He shall lose his bloud both in respect of his ancestry for he is estéemed as a Terrae-silius without any Ancestor and also in respect of his posterity for his bloud is corrupt and he leaveth behind him neither heire nor posterity 4. He loseth his lands 5. His goods And in such case also the King shall have Annum diem vastuna to the intent that his Wife and his Children should be cast out his houses demolished his trées eradicated and stockt up his meadowes broken up and ploughed and all that he hath for his comfort delight and sustenance wasted and destroyed because he hath in such a felonious manner offended against the Law and all this is ut poena ad paucos metus ad omnes perveniat c. Upon an Arâ—â—st the cause 〈◊〉 be shewâ—d 20 The Law so provideth for the preservation of a mans liberty Co. l. 6. 54. 2. 4. in the Countesse of Rutlands Case that no general arrest is déemed legall without shewing the particular cause wherefore he is arrested And therefore the Sheriffe or any other by his authority which makes an arrest of the person of another ought upon the arrest to shew at whose suit out of what Court for what cause he doth it and when the processe is returnable to the intent that if it be upon an execution he may pay the money and so frée his body from imprisonment and if it be upon a mesne processe may either agree with the party or put in baile according to the Law and so make his apparence accordingly c. â—he Coll. of â—ys cannot â—â—mmit 21 An Act of Parliament Co. lib. 8. 120. a. 3. Doctor Bonhams Case that gives power of
case if the Lord avow upon the Feoffée before tender of the arrerages he shall lose them as it is agréed in 7 E. 3. and 7. H. 4 c. And therefore in as much as in such Case the Common Law forces the Lord to avow upon the Feoffor for that reason at the Common Law such Seisin by the Feoffor necessitas causa was good 〈◊〉 Quare Imâ—â—â— against â—e King or 〈◊〉 19 Regularly Co. l. 7 26. b. 3. Halls Case a Quare Impedit brought against the Bishop and Incumbent without naming the Patron abates yet if the King presents to a Benefice and his Clerk is admitted instituted c. In this case a Quare Impedit may be brought for necessity against the Bishop or Incumbent for it lies not against the King So it was also of the Pope if he had usurped 12 H. 8. 12. 4 H. 7. 15 c. â—n Vicar geâ—â—â—al shall not â—â—â—fie but in 〈◊〉 of necesâ—â— 20 Albeit Co. l. 8. 69. a. 1 Trollops Case regularly the Vicar general cannot certifie excommunication yet he shall certifie it when the Bishop is in remotis aagendis viz. beyond Sea in the Kings Service but the Court must be acquainted therewith by matter of Record viz. by Writ out of the Chancery to direct them and not by the surmise of the party and then for necessity which is alwayes the Law of time for necessitas est lex temporis the Certificate of the Vicar General shall be allowed because no other can then do it for he onely ought to certificate to whom the Court may write to absolve the party as the Bishop or the Chancellor of the Vniversities Fee-simple â—â—th out of 〈◊〉 â—ing by â—â—â—essary withâ—â— Office c. 21 Reversion in the Queen upon an estate taile she grants it to T. in taile upon Condition that if be pay 20 s. Co. l. 8. 1. 6. b. 2. The Lord Staffords case at the receit of the Exchequer he shall have the said Reversion in Fée the Condition is performed the tenant in taile levies a Fine and his issue is barred And in this case the principal point was whether by the Condition performed the Reversion passed to T. And it was held that presently upon payment of the 20 s. by operation of Law the Fée was davested out of the Queen and vested in T. And this by necessity for if it should not vest at the time of the Condition performed it would never vest And therefore if in this Case either Office Petition Monstrance de droit or other thing should be requisite that would make the Quéens Grant void and would dis-able the Quéen to make such a Grant And with this agrées the Lord Lovels Case in the Commentaries for there it is said when the Condition is performed the Fée-simple shall be immediately out of the King without Petition Monstrance de droit or other circumstance for if he must tarry such circumstances then can it not vest presently and by consequent shall never vest because if the estate be not enlarged at the time of the enlargement appointed then shall it never be enlarged And therefore in such Cases for necessity the Fée-simple passeth out of the Quéen without any such circumstances with this also agrées Isabel Goodcheaps Case 49 E. 3. who being seised in Fée of an House in London holden of the King deviseth it to Richard Goodcheap and the heires of his body and for want of such issue to be sold by her Executors and she makes W. D. W. W. and I. de T. her Executors and dies without heir Rich. Goodch dies without issue whereby the House escheates to the King and after one of the Executors dies W. W. refuseth and W. D. sels the House and here the question was whether or no the Sale by one Executor was good but it was agréed by all that if the Sale were good it shall devest the House out of the King and the cause thereof is by necessity of Law for if the Sale did not devest the House at the time of such sale then could there be no Sale at all and the Executors who had but a power could not have any petition Monstrance de droit or other remedy Co. l. 8. 143. a. 2. Doctor Druries Case 22 There is a diversity betwixt mean acts done in Execution of Iustice which are compulsive and acts which are voluntary A diversity betwixt acts compulsive and volunâ—â—â— acts And therefore if erronious judgment be given in Debt and the Sheriff by force of a Fieri facias sell the Defendants term and after the judgment is reversed by a Writ of Error yet the term shall not be restored but onely the summe c. But if a Capias utlagatum be awarded whereby the Sheriff is commanded to take the body ut bona catalla quae per inquisitionem invenerit in manus nostras capias de vero valore c. And by force of this Writ the Sheriff by inquisition takes the Goods and Chattels of the out-lawed person and sels them and after the Out-lawry is reversed in this case the party shall be restored to his Goods and Chattels because the Sheriff was not commanded nor compelled by the Kings Writ to sell them Co. l. 9. 49. a. 4. The Earl of Shrewsburies Case 23 King James grants to the Earl of Shrewsbury the Stewardship of the Mannors of M. and B. An Earl may make a Depâ—ty but in the Patent power of making a Deputy was omitted neverthelesse it was adjudged that hee might make one for if such an Office descend to an Infant Ideot or man of non sane memoriae they by necessity ought to exercise it by Deputy So an Earl for the necessity that the Law intends of his attendance upon the King and the Common-wealth this Stewardship of a base Court shall be exercised by Deputy Co. l. 9. 66. a. 1. Mackallies ca. 24 An arrest in the night is lawful An arrest in the night laâ—ful as well at the suit of a Subject as of the King for the Officer ought to arrest him when he can find him otherwise he may perhaps never arrest him for Qui malè agit odit lucem and if the Officer do not then do it the Plaintiff may have an Action upon the Case against him and recover his losse in damages Therefore by necessity an arrest in the night is lawfull Co. ib. 66. b. 2. 25 The Lords day is not Dies juridicus An arrest the 〈◊〉 Sabbath and therefore judicial acts ought not to be done upon that day but Ministerial acts may in some Cases be lawfully executed upon that day as an arrest for otherwise perhaps they might never be executed and Christ permits Works of Necessity to be done upon that day bonum est benefacere in Sabbato Executors may sell lands in their owne names 26 If Attorneys have power by writing to make Leases by
consent to a ravishment and was so resolved in the case of Martin Trotte 32 Eliz. in Communi Banco and accordingly was the Opinion of the Court of Common Pleas Pasch 1. Jac. To this may be added as a like Case The Kings Patentee before he enter c. by all which you may observe a diversity betwixt a right for which the Law giveth a remedy by action and a Title for the which the Law giveth no remedy but by entry onely â—â—â—tinuall â—â—me 17. Regularly Continuall claime cannot be lawfully made Co. ibid. 250. b. 1. Litt. S. 414. but where hee that makes the claime hath present right or title to enter and yet in some cases where a man is left without other remedy a Continuall claime may be made by him that hath right and cannot enter As if Tenant for yeares Statute Merchants Staple or Elegit be outed and he in the reversion disseised the Lessor or he in reversion may enter to the intent to make his claime and yet his entry as to take any profits is not lawfull during the terme So likewise the Lessor or Reversioner may in such case enter to avoyde a collaterall Warranty or the Lessor in that case may recover in an Assise And so as some have holden may a Lessor enter in case of a Lease for life to the intent to avoyde a Descent or Warranty If the Disseisee make Continuall claime and the Disseisor dye seised within the yeare his Heire within age and by Office the King is intitled to Wardship in this case albeit the entry of the Disseisee be not lawfull yet may he make Continuall claime to avoyde a Descent â—â—â—nuall â—â—â—e 18. When a man for feare of death Co. Inst pars 1. 2 53. b. 4. Litt. S. 419. or some corporall hurt dare not make an actuall entry into land hee may approach as neer thereunto as he dare for such feare and claime the Land and this claime which is an entry in Law doth vest the possession and seisin in him for his advantage but not for any thing which may tend to his disadvantage as if he had made an actuall entry into the Land because otherwise he should be left without remedy â—â—lawry 〈◊〉 beyond 〈◊〉 reversable 19. If a Recovery be had against a man in a Precipe by default Co. ibid. 260. b. 3. when he was extra quatuor maria it shall not be reversed by a Writ of Error for that cause for that he is not left without remedy but may have his action of an higher nature or a Quod ei deforceat Howbeit if a man be outlawed in a personall action being then extra quatuor maria he may reverse it by a Writ of Error for otherwise he should be without remedy and besides de Minimis non curat Lex 20. Where a man cannot have advantage of the speciall matter by way of pleading Co. ibid. 283. a. 3. What not pleaded given in evidence he shall be permitted to take advantage thereof in the Evidence for otherwise he should be left without remedy For example the Rule of Law is that a man cannot justifie in the killing or death of a man and therefore in that case he shall be received to give the speciall matter in Evidence as that it was Se defendendo or in defence of his House in the night against Theeves or Robbers or the like Co. ibid. 312. b. 1. 21. If a Seigniory be granted to one for life the remainder to another in fee Attornment Acquittall the attornement of the Tenant to the Tenant for life is an attornement to the remainder also Howbeit if acquittall ought to be made or other priviledge had in such case albeit attornement be made to the Tenant for life and he acknowledge the acquittall c. Yet after his decease hee in remainder shall not distraine untill hee acknowledge the Acquittall also notwithstanding the Attornement of the Tenant for life for otherwise the Tenant should be without remedy Co. ibid. 347. a. 1. 22. By the policy of the Law Abbot capable to sue and be sued The Abbot termed the soveraigne albeit indeed he be but a Monke or secular person dead in Law yet hath he capacity and ability to sue and be sued to enfeoffe give demise and Lease to others and to purchase and take from others for otherwise they who right have should not have their lawfull remedy nor the House remedy against any other that did them wrong Co. ibid. 354. a. 3. 23. Regularly Baron remitted against his own alienation a man cannot be remitted against his owne alienation yet if there be Baron and Feme in speciall tayle and the Baron alien the Land to another in fee and take an estate backe to him and his Wife for their lives in this case the Baron is remitted against his owne alienation as well as the Feme for the Feme cannot be remitted without the Baron be remitted also and rather then the Feme should not by Remitter have remedy and her ancient right restored to her the Baron shall be also remitted against his owne Grant Litt. S. 673. And therefore in that case if there were any remainders in taile upon the speciall taile and last of all a reversion or remainder in fee above them upon taking backe of the estate for lives by the Baron all those in remainder or reversion are also remitted Co. ibid. 376. a. 3. c. 24. By the Rule of Law One that is not heire at Law may be vouched to warranty a Warranty made by the Father descends upon his heire at the common Law and he onely is to be vouched to maintaine the same yet in some cases lest the Voucher should be without remedy they that are not Heire at Law may be vouched As if a man enfeoffeth another of an acre of land with warranty and hath issue two Sons and dyeth seised of another acre of land of the nature of Burrow English the Feoffee is impleaded here albeit the Warranty descendeth onely upon the eldest Son yet may he vouch them both the one as heire to the Warranty and the other as heire to the land For if he should vouch the eldest Son onely then should hee not have the fruit of his Warranty Viz. a recovery in value and the youngest Son onely he cannot vouch because he is not heire at the common Law upon whom the Warranty descendeth So it is also of heires in Gavelkind the eldest may be vouched as heire to the Warranty and the other Sons in respect of the Inheritance descended unto them In like sort the heire at the common law and the heire of the part of the Mother shall be vouched Howbeit the heire at Law may be vouched alone in both these cases at the election of the Tenant sic de similibus In the same manner if a man dye seised of certaine lands in fee having issue
vita to say that the Feme had a lesse estate then Fee-simple yet the issue who claimed the Reversion of the Land as heire to the Baron shall not be bound by that Estoppel made by the Feme although he was heire to her also for then the Feme who had but an estate for life might by her own act have barred the heire that right had and claimed as heire to his Father C. l. 8. 76. a. 2. in the Lord Staffords case 33. If a man make a Lease for years upon Condition Outer by Lessor that if the Lessor out him within the Terme that he shall have fee and the Lessor doth out him accordingly in this case albeit the interest of the terme is by such ouster turned to a right yet the Lessee in such case shall have fee for that such ouster is the act and tort of the Lessor himselfe whereof he shall take no advantage Co. l. 8. 133. a. 4. Turners case 34. In debt against an Executor Executor de layes c. he pleads a Recovery against him in such a Court which amounts to the whole in his hands the Plaintiff replies that the recoverer hath accepted composition and that the Defendant delayes to accept a release with purpose to defraud the Plaintiff In this case the deferring to accept the release is a tort and against the duty of an Executor and therefore cannot helpe him for if any prejudice happen to him thereby it is by his own tort and default and therefore he shall not take any benefit thereby Co. l. 9. 68. b. 4. in Mackallies case 35. Vpon an arrest Resistance by Prisoner if the party arrested submit himselfe peaceably thereunto and gives the Serjeants or Bayliffs convenient leasure to acquaint him with their business they oughtupon demand to shew him their warrant and to let him know the occasion thereof as it was adjudged in the Countess of Rutlands case in the 6. Rep. fo 55. But if he make resistance and obey not their warrant they are not bound to shew it nor c. and if then any of them be killed it is murder for the Prisoner shall not in such case take advantage of his own wrong Co. l. 10. 134. b. 2. in Read and Redmans case 36. In reall Writs originall Summons and severance if he that is summoned and severed dyes which is the act of God the Writ shall abate but taking of Baron or entring into the Land by him that is summoned and severed or where there is no summons and severance shall not abate the Writ but onely make it abateable because these are the parties own acts whereof they shall not take advantage Co. l. 11. 81. b. 1 in Lewes Bowles case 37. If a Tenant for life or years fell Timber Trees Waste or pull down the Houses the Lessor shall have the Timber for the Lessee cannot have them by his demise but as things annexed to the soile And therefore it is absurd in reason that when by his own act and wrong he hath severed them from the Land he should gaine a greater property in them then he had by the demise F. N. B. 59. k. 37. The Tenant may fell Trees to repaire the Houses Waste but if the Houses be fallen into decay by his default if then he fell Trees to repaire them it is waste for he shall not usurp the power of felling Trees to amend the Houses when the cause why they wanted repairing was by his own neglect Pl. Co. 16. b. 4. in Fogassaes case 38. In Fogassaes case in the Commentaries Not weying Woad the not weying of the Woad is referred to the Collector And therefore the Collector shall not by his neglect take advantage in the Kings behalfe of the not weying thereof and by that meanes cause Fogassa to forfeit the same Dyer 30. 205. 28 H. 8. Dyer 42. 9. c. 30 H. 8. 39. The Condition of an Obligation was this Obligation to enjoy peaceably That the Obligor should surrender certaine Copyhold-land and also that he should suffer the Obligee and his heires peaceably to enjoy the Land without the interruption of any The Defendant pleads performance and also that the Plaintiff did peaceably continue the Possession thereof according to the condition for a certaine time and that afterwards the Lord for rent arreare in the Plaintiffs time entred according to the custome for the forfeiture Judgement fâ—action and this was held a good Plea because the reason why the Plaintiff did not enjoy the Land was caused by his own act which in this case shall not worke to his advantage So if the Obligee had been Tenant at the Common Law and had ceased the Obligation had been saved for that it was the act of the Plaintiff himselfe 148. And therefore the Law of it self prejudiceth none Distresse 1. Any goods may be distrained for damage-feasant Co. Inst parâ— 1. 47. a. 4 by reason of the necessity See Max. 110. Ex. 4. and such Distresse may also be made in the night time for the same reason Vide M. 128. E. 2. Howbeit for rent nothing can be distrained in the night time or which cannot be rendred in as good plight as it was in at the time of the Distresse taken as sheaves or shocks of Corne or the like cannot be distrained for rent because when a Distresse is made for rent it is in the custody of the Law and repliviable and during the time it so remains the Law will not suffer the owner thereof to suffer prejudice by the detainer and in such case there is no such necessity but that the Distresse may be made in a seasonable time and of convenient goods Howbeit Wagons or Carts loaden with graine Horses and all may be distrained for rent because they may be restored in the same condition they were in when they were taken And yet Beasts belonging to the Plough averria carucae shall not be distrained nor any Vtensils or Instruments of a mans Trade or Profession as the Axe of the Carpenter the Books of a Scholler c. while other Beasts or Goods which Bracton calls animalia or catalla otiosa may be distrained for that were un-charitable and an injury to the publique whereof the Law if possibly it may be otherwise will not be guilty Vide plus ubi supra Waste against Guardian 2. If the Guardian doth waste Co. ibid. 54. a. 2. and the heire within age brings an Action of waste the Guardian shall lose the Wardship but if the heire bring an Action of waste at his full age he shall then recover treble damages for when the Law at his age of one and twenty years takes away from him his advantage of having the Forfeiture of the Wardship in liew thereof it gives him treble damages because otherwise the Guardian might do him an injury and make him no recompence for it for then
hinders a Remittâ—r and the Discontinuee is disseissed and after the Disseisor lets the Land to the Baron and Feme for life this is a Remitter to the Feme but if the Baron and Feme were of covin and consent that the Disseisin should be made then is it no Remitter to the Feme because she is then a Disseiseresse and particeps criminis Howbeit if the Baron were onely of covin and consent to the Disseisin and not the Feme in that case the Feme shall be remitted So as here covin and consent of Baron and Feme doth hinder the Remitter of the Feme Co. ibid. 357. a. 4. and so covin doth in many cases choake a meer Right and the ill manner doth many times make a good matter unlawfull Co. ibid. b. 1. Co. l. 3. 78. a. in Farmers case 11. If a Disseisor Intrudor or Abator do endow a woman that hath lawfull title of Dower this is good and shall bind him that right hath but if a woman be lawfully entitled to have Dower and she is of covin and consent that one shall disseise the Tenant of the Land against whom she may recover her lawfull Dower all which is done accordingly In this case the Tenant may lawfully enter upon her and avoid the Recovery in respect of the covin Co. ibid. b. 2. 12. In all cases The like where a man hath a rightfull and just cause of Action yet if he of covin and consent do raise up a Tenant by wrong against whom he may recover the Covin doth suffocate the right that the Recovery though upon good title shall not bind or restore the Demandant to his right So if Tenent in tail and his Issue disseise the Discontinuee to the use of the Father and the Father dyeth and the Land descendeth to the Issue in this case the Issue is not remitted against the Discontinuee in respect he was privy and party to the wrong but in respect of all others he is remitted and shall deraigne the first Warranty And so note a man may be remitted against one and not against another The like 13. A. and B. Ioint-tenants are intitled to a reall Action against the Heire of the Disseisor A. causeth the Heire to be disseised Co. ibid. against whom A. and B. recover and sue execution In this case B. is remitted for that he was not party to the Covin and shall hold in common with A. but A. is not remitted causa qua supra False Plea 14. He that will have the benefit of the Statute of Glocester Co. ibid. 366. a. 3. Co. l. 8. 53. a. 3. in Sims case cap. 3. 6 E. 1. must plead the truth of his case viz. the Warranty acknowledge the title of the Demandant and pray that the advantage of the Statute may be saved to him and then if afterwards assets descend the Tenant upon this Record shall have a Scire facias c. But if the Tenant plead the Warranty and plead further that assets descended c. and the Demandant taketh Issue that assets descended not c. which Issue is found for the Demandant whereupon he recovereth In this case the Tenant albeit assets do afterwards descend shall never have a Scire facias upon the said Iudgment for that by his false Plea he hath lost the benefit of the Statute Outlawry by 〈◊〉 15. Imprisonment is a good cause to reverse an Outlawry Co. Inst pars 1. 259. b. 2. if it be by Processe of Law in invitum but if it be by consent and covin such Imprisonment shall not avoid an Outlawry because upon the matter it is his own act Attornment 16. Where the Tenant hath notice Co. l. 2. 68. a. 2. in Tookers case that the Seigniory was granted but to one or that the Reversion was granted but of one Acre or that the Reversion was granted for fewer years or that the Reversion was granted for life onely with no Remainder over whereas it was in any of the cases otherwise in such case generall Attornement without true notice of the Grant is void for the usuall pleading which intent is the oracle of the Law is to which Grant he attorned and therefore if he hath not notice of the Grant or which is all one true notice thereof the assent which he gives to it which in truth is but part of the Grant the Law which abhors falsehood will not construe to be Attornment to the true Grant Fine by covin to bar 17. A man possessed of divers parcells of Land within the Mannor of D. whereof some he held for years others at will others by copy Co. l. 3. 77. b. 2. in Farmers case in Margaret Podgers case Co. l. 9. 105. b. 1. and some also in fee demiseth the whole to another for life and then levies a Fine to the Tenant for life and his Heires of so many Acres as amount to the whole Land continues Possession and payes the rents to the Lord five years passe yet in this case the Lord is not barred by the Statute of 4 H. 7. cap. 24. For the makers of that Statute did never intend that such a Fine levyed by fraud and practice of Tenant for years at will or by copy which pretend no title to the Inheritance but intend the disherison of their Lessors or Lords should bar them of their Inheritance and this appeares by the preamble of the said Act where it is said that Fines ought to be of greatest strength to avoid strifes and debates but when Tenant for years at will or by copy make Feoffment by assent and covin that a Fine should be levyed this is not to avoid strife and debate but by assent and covin to begin and stir them up And therefore that Statute did not intend to establish any such estate made and created by such fraud and practice which being fraudulent is upon the matter no estate at all c. vide pl. ibid. A fraudulent â—â—e of goods 18. The grant of goods albeit it be made upon good consideration Co. l. 3. 80. b. 4. in Twines case yet if it be not bona fide but hath trust in it or other badges of fraud as if the Grantor keep them still in his own Possession useth them as his own in disposing of them or otherwise or if they be Sheep and the Grantor brand them with his own mark or when he grants all his Goods and doth not except so much as his wearing apparrell or the like such a Grant is within the Statute of 13 Eliz. 5. and upon a Fieri facias at anothers Suit the Sheriff may seise them as if no Grant at all had been made thereof Vide pl. in that case to the like purpose Queritur ut crescunt tot magna volumina Legis In promtu causa est crescit in orbe dolus Co. l. 4. 26. a. 1. in Kite and Quientons case 19. Pretenced titles of
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
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
action whereunto A. pleads that C. was in by the fine and not by the déed inrolled and that he never attorned upon which plea C. demurrs In this case although it was objected that it shall be intended by Law that the deed was enrolled the first day of that Easter Term because the Term as to divers purposes is but one day in Law and the rather for that it doth not appear by the record what day of the Term the deed was inrolled but generally Term Pasch and therefore it shall be intended to be enrolled the first day of the Term and then C. being in by the deed and not by the fine there needed no attornment yet in this case it was resolved by the Court that it was true that it shall be intended by presumption of Law that the deed was enrolled the first day of the Term but Stabit praesumptio donec probetur in contrarium and for as much as the plaintif by his demurrer hath confessed the enrollment to be after the fine the presumption thereby vanisheth and becomes of no force and the mutual consent and confession of both parties shall stand Co. l. 5. part 1. 5. a. 2. 7. b. 1. The Kings Ecclesiastical Law 6 In the cause against Cawdry being deprived by the High Commission Court for preaching against the Common Prayer-book Hâ—gh Commissioâ— it was objected that the Commissioners were not nominated and appointed according to the Act of 1 Eliz. 1. because the Iurisdiction and power given by that Act to the Crown was to name such Commissioners as were natural born Subjects and not Aliens and that it did not appear by the special verdict that the said Commissioners were natural born Subjects And therefore the Quéen having only a power given by force of that Act the nomination not pursuing the authority given unto her was utterly void c. But to this it was answered and resolved that they who were Commissioners and had places of judicature over the Kings subjects shall be intended to be subjects born and not Aliens but if in truth they were Aliens yet in respect of the general intendment to the contrary it ought to be alleged and proved by the other party for Stabitur praesumptioni donec probetur in contrarium Wardship 7 By intendment of Law the heir being under the age of 21 years is not able to do Knight service until his full age of 21 years Co. l. 6. 73. b. 4. in Sir Drue Druries case and herewith agrées Littl. fol. 22. yet this presumption of Law gives place to a judgement and proof to the contrary according to the Maxime Stabitur praesumptioni donec probetur in contrarium And therefore when the King who is the Soveraign and supreme Iudge of Chivalrie dubbs an Infant Knight he thereby adjudgeth him able to do Knight service all persons are concluded to say the contrary and therefore such an heir so made Knight shall be out of Ward and custody Howbeit he shall pay the value of his mariage c. Vide Ma. ca. cap. 3. Arbitrement 8 The submission to an award betwixt A. and B. was general 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 appear that the matter of the Arbitrement was the matter only that was betwixt them because the submission was general of all actions demands c. and therefore if the arbitrement were not made of all the matters in controversie the award was void To which it was answered and resolved that it appeared by the award that it was made de praemissis praedictis in conditione specificatis which words import that the Arbitrator had made it of all that which was referred to him and so it was to be intended until the contrary were shewed and alleged by the other party Uâ—es 9 Indentures subsequent are sufficient to declare the uses of a Recovery precedent Co. l. 9. 11. 3. Dowmans case if nothing appear to the contrary to declare the consent of the parties to be otherwise Quo warranto 10 In a Quo warranto for the claim of chattels of felons c. the defendant pleads that the Abbot of S. lawfully had and enjoyed them Co. l. 9. 27. The case of the Abbot de Strata Mercella till the Abbey was granted to the King by the Statute of 27 H. 8. c. and pleads also the Statute of 32 H. 8. which revives the privileges of Abbies and that the King granted a Manor parcel of the Abbey and tot talia et tanta privilegia c. unto him And in this case it was objected that it did not appear by the claim of the defendant what estate the Abbot had in the said Franchises but generally quod licite habuit gavisus fuit and so peradventure he might have them but by a lease for life or years c. To which it was answered and resolved that a general having and enjoying of them shall be intended of a having and enjoying in fee simple and that in such case a particular estate or interest shall not be presumed unless it be specially shewed c. so the word Fee shall be intended fee simple and not fee tail unles it be so expressed Vide supra Max. 189. pl. 8. 11 If the principal in felony be attainted erroniously either by error in process No accessory where no principal or because the Principal being out of the Realm Co. l. 9. 119. a. 4. in the L. Sanchars case c. was outlawed or for that he was in prison at the time of the outlawry c. yet the accessory shall be attainted for the attainder against the principal stands in force until it be reversed and with this agrées 2 R. 3. f. 12. And in the 18 E. 4. 9 The principal was erroniously out-lawed for felony and the Accessory taken indicted arraigned convicted attainted and hanged and afterwards the principal reversed the outlawry and was indicted and arraigned of the felony and found not guilty and thereupon was acquit And here it might be demanded that for as much as there cannot be an accessory without a principal and in this case there being no principal how shall the heir be restored to the lands which his father had forfeited by the said unjust attainder To this it may be answered That the heir may enter or have his action for now upon the matter by act in Law the attainder against the father is without any writ of Error utterly annulled because by the reversal of the attainder against the principal the attainder against the accessory which depended upon the attainder of the principal is ipso facto utterly defeated and annulled And this notably appears in an antient book in the time of E. 1. Tit. Mordancester 46. The case was this A. was
just cause the Mulier is barred for ever for the possession of the King when he hath no just cause of seisure shall be adjudged the possession of him for whose cause he seised But if after the death of the Father the Mulier be found heir and within age and the King seiseth In such case the possession of the King is in right of the Mulier and vesteth the actual possession in the Mulier and consequently the Bastard eigne is foreclosed of any right for ever so it is likewise when the King seiseth for a contempt or other offence of the father or of any other ancestor In that case if the issue of the Bastard eigne upon a Petition be restored for that the seisure was without just cause the Mulier is not barred because the bastard could never enter and consequently could gain no estate in the land but the possession of the King in that case shall be adjudged in the right of the Mulier Vide 2 Ass pl. 9. Copyhold 2 If a Copihold estate fall into the Lords hands by escheat Co. l. 4. 31. a. 2. in Frenches case forfeiture or the like and the Lord make a lease thereof for years life or other estate by deed or without deed or if the Lord make a feoffment thereof in fee upon condition and enter for the condition broken or if the Copyhold so forfeited or escheated before any new grant thereof made be extended upon a Statute or Recognisance acknowledged by the Lord or if the feme of the Lord in a writ of Dower hath that land assigned to her In all these cases and albeit these last impediments are by acts in Law yet for as much as all these interruptions are lawful the lands can never after be granted by Copy because after such disposition thereof it was not demised or demisable But if the interruption be tortious as if the Lord be disseised and the disseisor die seised or if the land be recovered against the Lord by a false verdict or erronious judgement In these cases until the land be recovered or the judgement nulled or reversed by the Lord of the Manor the land was not demised or demisable and yet after the land is recontinued it is again grantable by Copy because the interruption was tortious for Non valet Impedimentum quod de jure non sortitur effectum quod contra legem fit pro infecto habetur Restraint to alien 3 If a man make a gift in tail upon condition that the donee shall not alien yet in such case if the donee suffer a Common recovery Co. l. 6. 41. b. 2. in Sir Anthony Mildmayes case that is no breach of the Condition because it is a Conveyance allowed by Law in respect of the intended recompence but if he make a feoffment in fee or any other estate whereby the reversion is tortiously discontinued the donor may enter for the Condition broken for every act which is prohibited by Law or is a tort may be prohibited by condition vide 10 H. 7. 11. So if a feoffment be made to Baron and feme upon condition that they shall not alien yet that doth not restrain their joint alienation by fine because it is lawfull and incident to their estate But their feoffment or alienation by deed is restrained by such a condition for that is tortious and against Law Also if a man enfeoff an Infant in fee upon condition that he shall not alien this cannot restrain him to alien at his full age but during his minority it doth because that is tortious and prohibited by Law Co. l 7. 6 a. 3. in Sendâ—ls case 4 One of the reasons Robbery why the robbing of an house either in the day or in the night is not within the Statute of Winchester for the Hundred to satisfie the damages is for that it is not lawfull for any man to enter into the house of another for the safeguard thereof Co. l. 11. 74. a. 3. Magd. Coll. case 5 Albeit the Friers Carmelites were of a Profession of Religion Carmelites and had not any habitation so as it seemed to be a work of piety and charity to provide an habitation for them yet non facias malum ut inde fiat bonum F.N.B. 36. f. 6 If a man be disseised of a Manor to which an Advowson is appendant Usurpation and the disseisor suffers an usurpation by a stranger to the advowson and after the disseisée re-enters into the Manor he shall present to the advowson when it happens to be void notwithstanding such usurpation Dyer 168. 19. 1 Eliz. 7 Bronker Sherif of Wiltshire to prevent perjury in his office Sheriffs oath did neglect to be sworn in incepto officii which he ought to have done by the antient Common Law of the Realm for which contempt he was fined and imprisoned by decrée in the Star-chamber Dyer 219. 10. 5 Eliz. 8 A man is bound to deliver the key of an house Livery of seisin and quiet possession to the Maior of London to the use of the obligee no person being in the house he locks the door and delivers the key to the Maior out of view A stranger pretending title enters into the house This séems to be no delivery of possession yet verdict was given for it which was afterwards affirmed in Attaint And the reason séems to be for that the impediment was unlawfull 196 Praetextu liciti non debet admitti illicitum Co. l. 11 88. b. 1 in the case of Monopolies 1 The Charter of making and importing Cards being adjudged in the 11 Rep. a Monopoly had a glorious preamble and pretext Monopolies yet was repealed as derogatory to the Kings honor and very pernicious to the Commonwealth And indeed it is true Quod privilegia quae revera sunt in praejudicium Reipublicae magis speciosa habent frontispicia et boni publici praetextum quam bonae et legales concessiones but Praetextu liciti non debet admitti illicitum Dyer 35 6. 33. 29 H. 8. 2 If a lessée hath liberty to fell trées to repair the house Waste and he fells 4. Oaks for that purpose and sells them and buyes 4. other Oaks as good and imployes them towards the repair of the house yet that is waste for the cutting of them down and selling them was a tort so if a man sell the distress which he hath caken and impounded and afterwards finding his error buyes them again and impounds yet their sale is a tort and the impounding of the Cattel afterwards shall not excuse it Dyer 36. b. 38. 29 H. 8. 3 If the lessor be bound to a man in 100 l. and the lessée cuts down 20 Oaks sells them and payes the obligée for the lessor Waste yet an action of waste lyeth against the lessee for felling the trees albeit the money arising upon the sale was converted to the
such protections must be therein expressed to the end it may appear to the Court that they are granted pro negotiis regni et pro bono publico And these protections are not allowable only for men of full age but for men within age and for women as necessary attendants upon the Camp and that in thrée cases Quia Lotrix seu Nutrix seu Obstetrix Co. ibid. 131. b. 2. 12 Treasure is one of the chiefest supports of a Commonwealth Protection And therefore the King who is the Head of the Commonwealth is regularly by his prerogative to be preferred in payment of his duty or debt by his debtor before any subject albeit the Kings debt or duty be the later upon which ground it is that the King may grant his debtor a protection cum clausula volumus to protect him from the sutes and actions of other Creditors And the reason hereof is for that Thesaurus Regis est fundamentum belli firmamentum pacis But this Law is somewhat altered by the Statute of 25 E. 3. cap. 19. quod vide Co. ibid. 132. b. 3. If a Monk be a farmer of the King yielding a rent Monk he shall have an action concerning that farm because the Kings revenue is also the revenue of the Commonwealth Co. ibid. 133. a. 4. 13 By the Common Law the wife of the King of England is an exempt person from the King Queen and is capable of lands or tenements of the gift of the King as no other feme covert is and is of ability and capacity without the King to grant and to take to sue and be sued as a feme sole at the Common Law for the wisdom of the Law would not have the King whose continual care and study is for the publique circa ardua regni to be troubled and disquieted with such private and petty causes Co. ibid. 149. a. 2. Co. ibid. 149. b. 2. 14 If the tenant holdeth by fealty and a bushel of wheat Service Tenant or a pound of Cumin or pepper or the like and the Lord purchaseth part of the land there shall be an apportionment as well as if the rent were in money yet if the rent were by one grain of wheat one séed of Cumin one pepper Corn a horse or any other intire service by purchase of part the whole should be extinct Howbeit if such an intire service be pro bono publico as Knight service Castle-guard Cornage c. for the defence of the Realm or to repair a bridge or way to keep a Beacon or to keep the Kings Records or for avancement of Iustice and peace as to aid the Sheriff or to be Constable of England albeit the Lord purchaseth part yet the intire service remains See Bruertons case Co. l. 6. 1. b. 4. Jo. Talbots l. 8. 105. b. 4. Authority 15 If a man make a Letter of Attorney to two to do any act Co. ibid. 181 b. 3. if one of them die 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 die yet the other shall execute and return the same because it is for the execution of Iustice and by consequent pro bono publico so if a charter of feoffment be made and a Letter of Attorney to four or thrée joyntly and severally to deliver seisin two of them cannot make livery because it is neither by them four or three joyntly nor by any of them severally But if the Sheriff upon a Capias directed to him make a warrant to four or thrée joyntly or severally to arrest the defendant two of them may arrest him for the reason aforesaid and for the same reason such an act shall be more favourably expounded than a private one for Iura publica ex privato promiscua decidi non debent Tenants in Common and Joyntenants 16 If there be two tenants in Common of a Manor Co. ibid. 200. a. 3. c. to which waif and stray doth belong a stray happens they are tenants in Common thereof And yet if one of them take the stray the other hath no remedy by action but to take it again unless they have a prescription to take strayes by turns Howbeit if there be two tenants in Common of a Dove-house and the one wholly destroyes the flight or of a folding and one disturbs the other to erect hurdles In these cases an action of trespass lyeth against the other because they are offences committed in prejudice of the Commonwealth If two several owners of houses have a River in common betwéen them and the one corrupts the River the other shall have an action upon his case against his companion So if there be two tenants in Common or Iointenants of an house or Mill and it fall into decay and the one is willing to repair it and the other will not he that is willing shall have a writ de reparatione facienda and the writ saith Ad reparationem et sustentationem ejusdem domus teneantur whereby it appeareth that owners are in such case bound pro bono publico to maintain houses and mills which are for the habitation and use of men Offices 17 Non-user of it self without some special damage is no forfeiture of Private offices as the Kéepership of Park or the like Co. ibid. 233. a. 4. But Non-user of Publique offices which concern the administration of Iustice or the Commonwealth is of it self a cause of forfeiture Repair by the lessee 18 In many cases a tenant for life or years may fell down timber to make reparations albeit he be not compellable thereunto Co. ibid. 54. b. 2. and shall not be punished for the same in any action of waste As if an house be ruinous at the time of the lease made if the lessée suffer the house to fall down he is not punishable for he is not bound by Law to repair the house in that case and yet if he cut down timber upon the ground so letten and repair it he may well justifie it And the reason is for that the Law doth favour the supportation and maintenance of houses which were ordained for the habitation of Mankind and are by consequent beneficial to the Commonwealth And therefore if the lessor by his Covenant undertake to repair the house yet the lessee if the lessor doth it not may with the timber growing upon the ground repair it though he be not compellable thereunto In like manner if a man make a lease of an house and land without impeachment of waste for the house yet may the lessée with the timber upon the ground repair the house though he may utterly waste it if he will and so it is in many other cases for the reason above alleged Co. l. 4. 14 b. 1. Cutle◠and Dixons case 19 If a man exhibit articles to Iustices of
Peace against another Slander containing divers great abuses and misdemeanors to the intent to have him bound to the good behaviour In this case the party accused shall not have for any matter contained in such Articles any action upon the case because he hath pursued the ordinary course of Iustice in such case provided And if actions shall be permitted in such cases they who have just cause to complain would not dare to make such complaint Co. ibid. Siâ— R ch Buckleys case for fear of infinite vexation So if a man had exhibited a Bill in the Star-chamber against another containing divers scandalous accusations albeit they were false yet no action upon the case would lie for them if they were examinable in that Court because the procéeding was in a Course of Iustice whereunto the Law giveth favour because it tends to the good of the Commonwealth See Dyer 11 Eliz. 285. pl. 37. Co. l. 4. 37. a. 2. in Tirringhams case 20 In antient time when a Lord enfeoffed another of arable land Tillage to hold of him in Socage viz. per servitium Socae the feoffée ad manutenendum servitium Socae had Common in the wasts of the Lord for his necessary Cattel that gained and compossed the land not only because that liberty was tacite implyed in the feoffment for he could not plow and compass the land without cattel and they could not live without pasture to sustain them but such Common appendant was principally given him for the maintenance advancement of tillage which is much regarded and favoured in Law because it is one of the chiefest supports of the Commonwealth so as such Common appendant is of Common right and began by operation of Law and in favour of tillage and therefore needs not prescription as it was held in 4 H. 6. 22 H. 6. which it ought to have if it were against common right Howbeit it is only appendant to the antient arable Hyde and Gaine and only for horses and oxen to plow the land and for Cows and Sheep to manure it And all this for the melioration and advancement of tillage as aforesaid And with this agrees 37 H. 6. 34. per tot Cur. and 29 H. 8. 4. Co. l. 4. 124 b. 2 in Bâ—verleys case 21 No felony or murder can be committed without a felonious intent and purpose Nam ideo dicta est felonia Non compos mentis quia fieri debet felleo animo And therefore a Mad man cannot commit felony because he cannot have a felonious intent so likewise if a feme Non compos mentis kill her husband it cannot be Petty treason Howbeit in some cases Non compos mentis may commit high treason as if he kill or offer to kill the King that is high Treason For the King est Caput et salus Reipublicae a capite bona valetudo transit in omnes and for that cause their persons are so sacred that no man ought to offer them violence and if he do he is Reus criminis Laesae Majestatis Co. l 5. 63. a 2. in the Chamberlâ—â—n of Londons case 23 The Inhabitants of a Town without any custom may make Ordinances or By-laws for the repair of the Church By-Lawes or of an High-way or any other such thing which is generally for the good of the Commonwealth and in such case the greater part shall bind all without any custom Vide 44 E. 3. 19. Also Corporations may make Ordinances or Constitutions without custom or the Kings charter for things which concern the Commonwealth as reparations of the Church common High-ways or the like Vide 8. E. 2. Assise 413. 21 E. 4. 54. 11 H. 7. 13. 21 H. 7. 20 40. Co. l. 5. 63. â— 4. 23 The Act of the Common Councel of London for bringing of Cloth to Blackwell-Hall to be searched Constitutions and the imposition of a penny for tallage upon every Cloth were adjudged lawfull constitutions because they were beneficial to the Commonwealth and not for any privat profit Constitutions 24 In 37 Eliz. 1695. The Term being appointed to be kept at St. Albons Co. l. 5. 64. a. Clerks case a Constitution was made there for the assessing of a sum of money for the preparing of Courts and other necessaries for the Term and every Inhabitant was enjoyned to pay his respective assesment on pain of imprisonment Clerk an Alderman who also consented to the assessment refused to pay his proportion and thereupon being imprisoned by the Mayor did bring an Action of false Imprisonment against the Mayor and had judgement to recover because the Constitution was against Magna Charta cap. 29. Nullus liber homo imprisonetur c. Howbeit if the Constitution had béen upon a pein of a reasonable sum of money and distress or action of debt for the recovery thereof the Mayor might have justified the distress or action because it was pro bono publico that the Town should make provision for the Term and the rather for that E. 6. who did incorporate them had granted them power to make Ordinances Albeit Corporations within time c. cannot have that privilege but by Parliament when it is pro commodo privato See Co. l. 8. 127. b. Penalties of Statutes not transferrable 25 When a Statute is made by Parliament for the publique good of the Realm Co. l. 7. 36. b. 3. in the cases of Penal Statutes the King cannot give the penalty or benefit thereof to any subject or give him power to dispence with it or to make a warrant to the Great Seal for licenses in such case to be made for when a Statute is made pro bono publico and the King as the head of the Commonwealth and the Fountain of Iustice and Mercy is by all the Realm trusted with it this confidence and trust is so inseparably annexed to the Royal person of the King in so high a point of Soveraignty that he cannot transferr it to the disposition or power of any private person or to any private use because it is committed to the King by all his Subjects for the Common good and if he might grant the penalty of one Act he may also grant the penalty of two and so in infinitum Dangerous to have London too populous 26 The Custom in London that a Foreiner shall not sell by retail Co. l. 8. 127. b. 2. in the case of the City of London was adjudged good because it was beneficial not only for the Citizens but likewise for the whole Commonwealth for that it would prevent the confluence of people from all parts of the realm to London which confluence might produce 3. great inconveniences 1. Impoverishment of all the good Towns in England 2. Depopulation of Towns in every Country 3. Destruction in the end of all trades and tradesmen in every part of the Realm Besides it might be a means to increase
time out of mind and so hath held in severalty there that proves that it was but in nature of Shack originally because of Vicinage and so continues And therefore in such case he may inclose and keep it in severalty and seclude himself from having Shack with the rest of the Commoners Antient Demesn 13 Lands in antient demesn Dyer 72. b 4. 6 E. 6. which were partable between heirs male were aliened by fine levied at the Common Law nevertheless it seemed to be the better opinion that hereby the course of the Inheritance was not altered and made descendable at the Common Law but that they shall still remain partable as before Custom unreasonable 14 A Custom Dyer 199. 58. 3 Eliz. that the Lord of a Manor hath used to have the best beast of his tenant there dying and if such beast be eloigned before seisure that then the Lord hath used to take the best Beast of any other levant and couchant within the said tenure was adjudged void for the unreasonableness thereof Vide 3 4 Eliz. Rot. 1496. Lands in London 15 Lands in London may be bargained and sold in London by paroll without Indenture or enrollment Dyer 229. 50. 6 Eliz. as before the Statute of 27 H. 8. and this by a Proviso in the same Statute Chilborns case Custom 16 A Custom was alleged Dyer 357. 46 19 Eliz. that the tenant in fée could not make a lease for above six years and it was adjudged a void custom because repugnant to fée and unreasonable Salfords case Co ps 17 A Custom for the Incumbent or Churchwardens of a Parish to be paid for the burial of a Corps of one who is no parishioner Ho. 175. The Lady Ferâ—ars case but only passing that way by accident lodging in an Inne or other lodging or the like is an unreasonable custom and void 207 Licet Consuetudo sit magnae Authoritatis Nunquam tamen Praejudicat manifestae veritati Co. l. 4. 18. a. 1. Oxford and Crosses case 1 The plaintifs bring an action in London Slander for that the defendant called the wife of the plaintif Whore the defendant removes it by habeas corpus into the Kings Bench and it was moved to have a Procedendo to remand it because the action was maintainable in London for the said words but not at the Common Law Howbeit the Procedendo was denyed per per totam Curiam for such a Custom to maintain actions for such brabling words is against Law Licet Consuetudo c. Co. l. 6. 6. b. 1. Sir John Molins case 2 Ed. 3. Lord an Abbot Mesne Records the tenant is attainted of Treason the King grants to Sir John Molins to be holden of him and other chief Lords of the fee by the services c. In this case the Mesnalty is revived and albeit divers Offices licences and other Records were produced to prove the Kings immediate tenure yet the Barons before whom that cause depended said in as much as by construction of Law upon the Letters Patents it appeared that there was no immediate tenure in the King albeit it had been otherwise found in offices or admitted in licenses or other Records yet that could not alter the true tenure which originally appeared to them as Iudges upon Record And it was then also said Licet consuetudo c. Co. l. 11. 75. a. 2. in Magdalen College case 3 In Magdalen College case in the 11 Rep. Grants by Ecclesiastical persons Stat. 13 El. 10 where the Master and Fellows of that College had granted to Queen Eliz her heirs and successors an house in London with proviso that if she did not regrant it within some short time to Bened. Spinola and his heirs that then the grant to her should be void with intent thereby to defraud the Statute of 13 Eliz. 10. it was objected that since that Statute there had been a great number of such grants made by Masters and Fellows of Colleges Deans and Chapters Masters of Hospitals c Howbeit to this it was answered that such grants had been made rather ex consuetudine Clericorum who imitated presidents of such grants made before that Statute than by the sage advice of men learned in the Law and Multitudo errantium non parit errori Patrocinium F. N. B. 118. c. 4 It appears by the Register Accompt Prison that if a man be found in arrearages upon his accompt and the plaintif arrests him in London for those arrearages that then the plaintif may sue forth a writ in Chancery directed to the Sheriff rehearsing this matter and commanding the Sheriff to detain the Accomptant safe in prison until he hath paid the arrerages And it seems also upon the same reason that if a man sue forth a writ of debt upon arrearages of accompt before Auditors and hath the party attached c. that he may have a writ out of the Chancery directed to the Sheriff to keep him in prison until he hath satisfied the arrearages but it seemeth to Fitzherbert that such a writ cannot stand with Law which shall command a man to be kept in prison before he shall have answered to the sute commenced against him 5 Hob. 17. Dr. James his case concerning holding the Court of Audience in the Borough of Southwark which is within the Iurisdiction of the Bishop of Winchester 208 Husband and wife are one Person And therefore Rebutter 1 If a feme heir of a disseisor enfeoff me with warranty Co. Inst pars 1. 365. b. 3. and then marry with the disseisee if after the disseisee bring a praecipe against me I shall rebutt him in respect of the warranty of his wife and yet he demandeth the land in another right So likewise if the husband and wife demand the right of the wife a warranty of the collateral ancestor of the husband shall barr them because the husband and wife are one person in Law Protection And for the same reason it is Co. ibid. 130. a. b. 1. F. N. B. 116. 1. that a protection for the husband shall serve also for the wife Conspiracy 2 A writ of Conspiracy must be brought against two at least for if there be such occasion of action only against one an action upon the case lyeth for the falshood and deceit because one cannot conspire with himself and therefore a writ of Conspiracy for indicting the plaintif of felony lyeth not against Baron and feme only because they are but one person but it may lie against Baron and feme and a third person Accompt 3 In an action of accompt receit made by the Baron by the hands of the feme is the Barons own receit F. N. B. 118 f. and both the writ and Count shall suppose that he received it himself without saying by the hands of the feme Debt Feme covert 4 If a man take