personal the Defendant shall not afterwards take any benefit by bringing a Writ of Attaint because he cannot have the effect of that Writ which is to be restored to the Debt and Damages which he lost The like Law is where a Iudgement is given upon a false verdict in a real Action for there also a release of all Actions real is a good barre in an Attaint c. for that in these two last examples both the Writ of Error and the Writ of Attaint do insue the nature of the former Action c. No Audita â—â—aerela after â—â—lease 12 If the Defendant in a personal Action doth after Iudgement entred release unto the Plaintife all Actions personal Co. ibid. he shall not afterwards bring an Audita quaerela because after he hath released to the Plaintife all Actions personal he cannot have the effect of that Writ which is to discharge himselfe of a personal execution No Formedon against tenant for life 13 Tenant in taile discontinueth in Fee and dieth Co. ibid. 297. b. 3. the Discontinuee makes a Lease for life and granteth the reversion to the issue In this case the issue shall not have a Formedon against Tenant for life because he cannot have the effect of that Writ which is to recover an estate of Inheritance for the Lessée for life hath not the Inheritance but the issue in taile himselfe hath it No entry after â—elease 14 If Feoffée upon condition make a Lease for life or a gift in taile Co. ibid. and the Feoffor release the Condition to the Feoffée the Feoffor shall not afterwards enter upon the Lessée or Donée because he cannot have the effect of his entry which is to regaine his ancient estate No action of â—â—espasse for â—oile by Coâ—ies 15 If a man plant Conies and Conie-burrowes in his own land Co. l. 9. 104. Boulstones case which afterwards so increase and multiply that they destroy the ground of his neighbour thereunto adjoyning yet shall not his neighbour maintaine an Action upon the case against him that plants them for the damage done by them because he cannot have the effect of his suit which is to recover damages for the trespasse committed for immediately after the Conies come into the neighbours land he may kill them because they being ferae naturae the other that planted them hath then no property in them and it stands not with reason that a man should make satisfaction for the damage which goods do that are none of his To some titles â—o warranty â—â—tends 16 There are some naked titles unto which warranty doth not extend Co. l. 10. 98. b. 4. Edward Seymors case Co. Inst pars 1. 389. a. 2. as the Title in case of exchange condition upon Mortgage c. Mortmaine consent to the Ravishor and the like because for these no Action lies in which there m y be Voucher or Rebater Co. l. 11. 29. b. 3. Alexander Powlters case Ibid. fo 30. a. 3. 17 Before the Statute of Articuli cleri cap. 15. No Clergie â—ter confesâ—â— he that confessed the Felony could not have the benefit of his Clergy because in case of confession he could not have his purgation c. for by intendment of Law he cannot against his expresse and voluntary confession in Court be innocent Confessus in judicio pro judicato habetur quodammodo su a sententia damnatur Co. l. 11. 77. b. 1. Magdalen Colledge case 22 E. 3. T it Coronae 276. 18 It is provided by the Statute of West 2. cap. 12. In appeal a Monke can have damâ—â—â— Quòd se appellatus de felonia c. se acquietaverit c. restituant hujusmodi appellatores damna appellatis Yet if an appeal of death had béen brought against a Monk who had been acquit and thereupon had prayed his damages according to that Act he should not have béen admitted any such prayer because he could not have the effect thereof being by Law incapable to take the damages Fol. 11. B. 9. N. 19 In a Writ of Right de rationabili parte by one Coparcener against another Voucher lieth not Voucher liâ—â—â— not in copâ—nery because the Demandant cannot have the effect thereof viz. to recover in value in respect of the privity of bloud betwixt them c. F.N.B. 31. f. Co. Inst pars 1. 127. a. 1. 20 In all originalls brought by a Subject The King iâ— not give plâ—â—es de prosequendo wherein pledges de prosequendo are to be found the preamble of the Writ is Rex vicecom salutem c. Si A. fecerit te securum c. tunc summoneas c. But at the Kings suit the preamble shall be Rex vicecom salutem c. summonens per bonos summum c. and not Si Rex fecerit c. for the King shall not be bound to prosecute because he is not subject to the consequence thereof viz. to be amercied if he do not prosecute neither can he be non-suited because he is alwayes present in all his Courts V. infr 39. 4. F. N. B. 48. q. 21 If a man brings a Writ of Right of Advowson against another and hanging the Writ the Church becomes void The Demâ—dant shall 〈◊〉 have a â—â—mittas the Plaintif shall not have a ne admittas to the Bishop nor a Quare incumbravit albeit the Bishop doth encumber the Church c. for the Demandant shall not recover the presentment upon this Writ but the Advowson 22 One Commoner shall not bring a Writ de admensuratione pasturae against another Commoner F.N.B. 125. d. which hath Common appurtenant No Writ of admeasurement or in grosse sans number because such a Commoner cannot be admeasured c. Pl. Co. 11 c. a. 1. Fulmerston and Stewards case West 2. cap. 21. 23 The Statute of Westm 2. ordaines No Cessaâ—â—â— for the beiâ—â— Quòd fiant brevia de ingressu haeredi petentis super haerodem tenentis super eos quibus alienata fuerint hujusmodi tenementa c. yet if the Demandant in a Cessavit die the heire shall not have a Cessavit because he cannot have the effect thereof viz. to recover the arrerages for that they by Law belong not unto him but unto the Executor Co. Inst pars 1. 96. b. Littl. § 137. 24 If a Tenant in Frankalmoigne with-draw his Service Tenant in Frankalmâ—â—â— not distraiâ—â—ble the Lord shall not distraine commence any suit or séek any remedy for it in foro seculari in any Temporal Court because that Service being Spiritual and uncertaine shall be defined and recovered in foro Ecclesiastico in the Spiritual Court It is otherwise of Tenure by Divine Service which although it be Spiritual yet being certaine shall be recovered in foro seculari and the performance or non-performance thereof shall upon a distresse and Avowry be tried by a Iury
then issue a sonne and a daughter And after the divisor dies also A. dies and B. dies without issue C. also and his wife die and the sonne hath issue a daughter and dies Here the question was whether the daughter of the sonne should have the land or no And it was resolved that she should not because in this case at the Common Law C. and his wife had but an estate for life with remainder to their children for life and then the cause or reason why they by the will should have an estate taile is onely grounded upon the intent of the divisor Howbeit it was resolved that such an intent ought to be manifest and certaine and not obscure and doubtfull because it will not then admit of any strained construction farther than the words themselves do import by a proper and genuine interpretation according to the Rules of Law Devise 5 If I devise lands to my sonne Thomas to hold to him and the heires male of his bodie for the terme of 500 yeares Co. l. 10. 87. a. Leonard Loves Case Dyer 7. pl. 8. 28 H. 8. his heire shall not have them but his executors for this terme is but a chattel and cannot be intailed and such a devisée may alien the terme if he please And Cook Chief Justice held that such a devise is but an estate for years because it is so in expresse words devised and that in this case against expresse words no inference or interpretation shall be admitted Tales 6 Tales de circumstantibus shall not be granted in an Assize by the Statute of 35 H. 8. 6. Co. l. 10. 105. a. Denbawdes Case because by the expresse words of that Act they are onely grantable in every writ of Habeas corpora or distringas with Nisi prius and no exposition can in this case be made against expresse words for viperima est ista expositio quae corrodit ventrem textus 7 If feme tenant for life take husband who makes wast Co. l. 5. 75. b. Cliftons Case and the feme dies Here the husband is not punishable for that wast because the Statute of Glocest 6 E. 1. cap. 5. is thus recited in the writ of wast Wast Quare cum de communi c. provisum sit quòd non liceat alicui vastum c. facere de terris c. sibi demissis ad terminum vitae vel annorum c. So that the land being not demised to the husband but he holding it onely for her life and in her right he shall not be chargeable for wast after the death of the wife by the expresse words of the Act as it is recited in that writ Devise 8 A devise of land by will is good without Probat Dyer 53. b. 11. 34 H. 8. because the Statute of wills ordaines onely that it shall be in writing and enjoynes no Probat and therefore if it be in writing and proved by witnesses it is good without Probat Tail of the King 9 If tenant in tail of the gift of the King Co. Inst pars 1 373. 1. the reversion to the King expectant is disseised and the disseisor levie a fine and five yeares passe this shall barre the estat tail notwithstanding the Proviso in the Statute of the 32 H. 8. cap. 36. So likewise if a collateral ancestor of the Donée release with warrantie and the Donée suffer the warrantie to descend without entry made in the life of the ancestor this also shall bind the tenant in raile because the words of that Statute are had done or suffered by or against any such tenant in taile And in this case he is not partie or privie to any act either done or suffered by or against him 17 Maledicta est expositio quae corrumpit textum Co. l. 2. 24. a. Baldwins Case 1 The Earl of Cumberland demises land to Anne and to one Anthony Baldwin her sonne and to the heires of the said Anthony Demise Habendum to them from the date for 99 yeares Here albeit heires are mentioned in the premisses yet is not the Habendum repugnant unto them but they have a joynt estate for yeares for it cannot be repugnant as to Anthony and yet good to Anne Viperima est ista expositio quae corrodit ventrem textus Co. l. 11. 70. a. Magd. Colledge Case Grants to the King Stat. 13 El. 10. 2 Grants to the King are restrained by the general words of 13 El. 10. for the words are to any person or persons Grants to the King of Church Livings bodie politique or corporate and the King is a person as it is said in 10 H. 7. 18. and a bodie politique as appears in Plowd fol. 213 234. Now therefore if the King be cléerely included in the letter if he shall be excluded out of the Act it must be by construction of Law and in this case the Law will make no such construction for the Quéen Lords and Commons who made the Act have adjudged as in the preamble appears that long leases made by Colledges c. are unreasonable and against reason much more estates in fée simple And the Law which is the perfection of reason will never expound the words of that Act against reason for maledicta est expositio c. 18 Nimia subtilitas in lege reprobatur Co. l. 5. 121. a. Longs case 1 Exception was taken to an Indictment Indictment because it was said to be taken coram W. S. Coronatore Dominae Reginae infra libertatem dictae Dominae reginae villae suae de Cossam praedict super visum corporis c. and doth not alleadge to what places the said libertie doth extend or whether part or any of the towne of Cossam be within the libertie and so it did not appear that the Coroner had any Iurisdiction in the place where the inquisition was taken nor where the murder was committed nor where the dead bodie lay for all is alleadged by the indictment to be at Cossam Howbeit the indictment was adjudged sufficient notwithstanding this exception for although it be true by the Rule of Law that indictments ought to be certaine yet it is to be observed that there are three sorts of certainties 1 To a common intent 2 To a certain intent in general 3 To a certain intent to each particular The first sufficeth in barres which are to defend and excuse the partie the second is required in indictments counts replications c. because they are to excuse or charge the partie the third is rejected in Law as too nice and curious for Talis certitudo certitudinem confundit And in this present case the indictment is certaine enough in general viz. that Cossam is within the libertie of Cossam but to imagine that the libertie may extend out of the town and yet the town it self to be out of the libertie is a captious and strained intendment which the
thereof in futuro being void at the beginning for quod ab initio non valet tractu temporis non convalescet Co. l. 2. 57. Beckwiths case 19 A Feme Inheretrix covenants by Indenture without the knowledge A void sine or consent of the Baron to acknowledge a Fine to certain Conisées and uses in the said Indenture mentioned and afterwards the Baron covenants also by Indenture without the knowledge of the Feme to acknowledge a Fine to other Conisées and uses in that Indenture also mentioned and afterwards the Baron and Feme joyne in a fine to the Conisées in the Indenture of the Feme mentioned Here the Limitations and Declarations of Vses in both the Indentures are void and the said Fine was by construction of Law to the use of the Feme and her heires as if no use at all had béen declared for the Feme alone albeit she be owner of the land yet being sub potestate viri cannot in respect of her Coverture without her Baron limit the use and on the other side the Baron who hath not any estate in his own right cannot against the good liking of the Feme limit any use because he is not owner of the land so that the one is not sui juris and hath the estate and the other is sui juris and hath not the estate And therefore when they differ in limitation all they do must needes be void A void deed or contract 20 When a Déed hath two deliveries Co. l. 3. 35. b. Jennings and Brags case in Butler and Bakers case if the person at the first delivery had power and ability in Law to contract but could not perfect it untill an impediment should be removed before the second delivery in that case the contract is good as if the Disseisée make an Indenture purporting a Lease for yeares and deliver it to a stranger out of the land as a scroul and command him to enter into the land and to deliver it upon the land as his Déed to the Lessée which is done accordingly this is a good Lease But if the person at the first delivery had not power or ability in Law to make the Lease or Contract and before the second delivery he attains to such power there the Lease or contract is not good as if at the time of the first delivery the Lessor be an Infant or Feme covert and at the time of the second delivery they become of full age or sole in both these cases the Déed doth not bind because at the time of the first delivery they were not persons that had ability in Law to make a Contract A void joynture 21 If the Baron make feofment in fée to the use of himselfe for life Co. l. 4. 2. b. 1. Vernons case and after to the use of B. for his life and after to the use of the Feme for life for her Ioynture that is not within the Statute of 27 H. 8. cap. 10. to barre the Feme of her Dower albeit B. die living the Baron So also if the estate be made to A. for life and after to the Feme for her Ioynture neither is that within the Act although A. die before the Baron for in these and the like cases in as much as at the time of the limitation of the estates they were out of the Act for that it was not then certaine that the estate of the Feme should take effect immediately after the death of the Baron as it ought to do by the said Act no subsequent event can make them within the Act For Quod ab initio non valet tractu temporis non convalescet quae malo sunt inchoata principio vix est ut bono peraguntur exitu A failer of Action 22 A. seised of the Mannor of D. in fée had communication with B. of demising the said Mannor unto him C. gives it out Co. l. 4. 18. Sir Gilbert Gerrards case that he had a Lease for 90 yeares in the Mannor whereupon B. desists from taking the Mannor by demise and thereupon A. brings an action of slander against C. And it was adjudged that those words would not beare it And in this case though it appeared by the Defendants barre that he had no title or interest in any such Lease yet because the matter alleadged in the Count did not maintaine the Action the barre could not make it good A grant of tithes not good by misnamer of the tenant 23 Q. Eliz. by Letters Patents grants to I. S. Totam illam portionem Co. l. 4. 35. 4. Bozouns case decimarum garbarum suarum in L. in Com. N. cum omnibus aliis decimis suis quibuscunque in L. in dicto Com. N. tunc vel nuper in occupatione I. C. and grants further that those Letters Patents shall be of force and effect against her selfe and her Successors Non obstante male nominando vel male recitando praedict portionem decimarum c. Et non obstante aliquibus defectis in male recitando vel non nominando alicujus tenentis sive occupatoris c. And all this was found by special verdict and besides that I. C. never had any Tithes in L. in his occupation and thereupon one question was whether the defect of mistaking the Farmer was not supplyed by the non obstante and it was resolved that it was not Because when the words of the grant are not sufficient ex vi termini to passe the thing granted but the grant is utterly void there a non obstante cannot make the grant good for when the Queen grants Totam illam portionem c. nuper in tenura I. C. here the addition of I. C. is of the substance of the grant and in as much as I. C. never had the portion in his occupation the grant must néeds be void ex vi termini and therefore the non obstante cannot make it good Co. l. 4. 62. b. 4. Herlakendens Case 24 If I let my land for life and after give the trées A void grant of trees and after the Lessée dies yet the Donée cannot take them because at the time of the grant the Lessée had the property in them as annext to the land 21 H. 6. 46. d. per totam Curiam Co. l. 4. 90. a. 3. Druries case Stat. 21. H. 8. 13. 25 If a Countesse that by the Statute may retaine two Chaplains capable of dispensations to enjoy two benefices doth first retaine two and after a third Reteiner of a Chaplain void the two first are onely capable of dispensations for they onely are her Chaplains according to the Statute and the other at the Common Law And therefore in this case if the two first die yet is not the other capable of a dispensation because at the time of his retainer he was not capable for he ought to be newly retained again to make him capable
the sonne is not remitted for the Statute makes the possession in him as the use was before Howbeit it seemeth also that his issue shall be remitted because he claimes paramount the Statute viz. per formam doni for the estate tail is still in being and was not extinct by the Statute And in this case it is not material whether the sonne when he entred was at full age Dyer 54. b. 22. 34 H 8. or under age for it seems he is not remitted albeit he were then under age for if Tenant in taile make a feofment to the use of himselfe and his heires and the Feoffor dies his issue within age and then comes the Statute here the heire shall not be remitted but it seemes his issue may causa qua suprà Vide suprà 5. Dyer 54 b. 1. 34 and 35 H. 8 33 The Kings Tenant of lands holden in Capite before the Statute of Uses suffers a common recovery to the use of his sonne and heire apparant and his wife and of the heires of the bodie of the sonne Wardship after which Statute the sonne hath issue and dies the issue within age In this case the issue shall not be in ward during the life of the Feme for the ancient use of the Fee simple which was paramuont the Statute remaines still in the father albeit he expressed not any use in Fee simple and then by the Statute the possession was vested in the sonne and the feme as the use was and the Fee simple in the father as he was Donor of the use and not as one in remainder of a new Fee simple for that would have altered the case And in the same case if the father had covenanted that the sonne immediately after his decease should have had in possession or in use all his land according to the same course of Inheritance as they then stood and that all men seised or to be seised should stand seised to the uses and intents aforesaid yet the sonne should not be in ward for it had been but a Covenant which changeth not the estate of the Fee simple which was paramount the Statute as afore is said Emblements sown 34 If Tenant pur auter vie sow the land and Cestuy que vie die Dyer 316. 2. 15. Eliz. the Tenant pur auter vie shall have the crop So if the Baron sow the Femes land and the Feme die the Baron shall reap the crop Likewise if the Baron make feofment in fée to the use of himselfe for life the remainder to the use of the Feme for life with remainders over and the Baron sow the land and die his executors shall have the crop and not the Feme or Heire because death being the Act of God it could not be fore-séen or prevented Howbeit if the Baron make feofment in fée to the use of himselfe and his Feme for their lives with remainders over and the Baron sow the land and die the Feme shall have the crop because she was Ioyn-tenant with her husband and hath it by Title paramount the executor So if the Baron sow the land and die and the third part is assigned to the Feme for Dower she shall have the emblements therewithall because she is in of her husbands estate paramount the Title of the executor and likewise shall be endowed de optima possessione of her husband 31 Things are to be construed Secundam subiectam materiam Account by the Guardian 1 It hath béen a question much controverted in the books of the Law at what age of the heir Co. Inst pars 1 89. a. 1. Stat. of Marlebridge 52 H. 3. 17. a Guardian in Soccage was compellable to render an accompt whether at 14 or at 21. And the causes of that doubt have béen both upon the words of the Statute of Marlebridge cap. 17. and likewise upon the original writ of accompt against such a Guardian The words of the Statute are these Cum ad legitimam aetatem pervenerit sibi respondeat c. a 16 E. 3. Wast 100. c And legitima aetas is 21 yeares Also the writ of accompt reciting the said Statute saith Quare cum de communi concilio c. provisum sit quòd custodes c. in Soccagio haeredibus c. cum ad plenam aetatem pervenerint reddant rationabilem compotum c. c 16 E. 2. account 120. 17 E. 2. ibid. 121. c 2 E. 2. account 14 E. 3. ibid. 3 Mar. 137. Kelway 131. Pl. 16 El. Rot. 436. Littl. § 123. Whereupon it was gathered that no action of accompt did lie against the Guardian in Soccage at the Common Law untill the heire were of his lawfull and full age of 21 yeares But legitima aetas as the Statute hath it or plena aetas as the writ doth render it are to be understood secundam subjectam materiam viz. of the heire of Soccage land whose lawfull or full age as to the Custodie or Wardship is 14 and therefore upon consideration had of the said Statute and of all the Books it was adjudged in the Court of Common Pleas P. 16. El. rot 436. that the heire after the age of 14 yeares shall have an Action of accompt against the Guardian in Soccage when he will at his pleasure and with this agrées Littleton Sect. 123. Age of Infant to make a wil. 2 Because Littleton saith Sect. 123 that the Guardian in Soccage shall render an accompt of the mariage money to the heire or his executors some have inferred Co. Inst pars 1 89. b. 2. that an infant of the age of 14 may make a will but the meaning of Littleton in that place is that if after his mariage he accomplish his age of 18 yeares he may then make a will and constitute executors for his goods and chattells for at that age he hath power by the Law to make a Will and the words are to be understood Secundam subjectam materiam and as they may stand with Law and Reason Vide suprà 15. 21. The Kings Councils 3 The King of England is armed with divers Councils Co. Inst pars 1 110. a. 2. viz. Commune Concilium which is the Court of Parliament Another is called Magnum Concilium and this is sometimes applied to the House of Péeres alone and sometimes out of Parliament to the Péeres of the Realme being Lords of Parliament who are called Magnum Concilium Regis Thirdly the King hath a Privy Council for matters of State Fourthly the King hath another Councel for matters of Law and they are his Iudges of the Law Now therefore when it is spoken generally of the Kings Councel it is to be understood secundum subjectam materiam as if matter of Law be concerned then his Councel at Law viz. his Iudges are to be understood if matter of State his Privy Councel c. Co. Inst pars 1 302. b. 1. 4 If the
good delivery For in traditionibus scriptorum non quod dictum est sed quod gestum est inspicitur It is otherwise when it is delivered to a stranger Dyer 98. b. 56. 1 Mar. 8 If two or more conspire to commit treason as to levie war Treason or the like and some of them afterwards put it in execution this is Treason in all and so it was at the Common Law before the Statute of 25 Edw. 3. Dyer 192. 26. 2 3 Eliz. 9 A. caused an Obligation to be written and sealed it Delivery of a Bond. which writing was to the use and behoof of B. whom he intended to marry and upon the day of Marriage and before it he delivers the writing to B. saying these words This will serve and B. presently delivers it over to the Obligée then present This was adjudged a good Obligation for Acta exteriora c. Dyer 224. 30. 5 Eliz. 10 An offence shall not be adjudged Robbery Robbery unlesse the Thiefe doth not onely take some-what from the person but likewise put him in feare of death and therefore in 5 Eliz. where a thiefe tooke 40 s. from the person of another in the high way without putting him in feare of death it was adjudged onely bare felony for which he had his Clergy for by not putting him in such feare the Court adjudged it no more Howbeit by the Statute of 8 Eliz. 4. Clergy is taken away from such an offender yet that Statute being an act of Continuance and the long Parl. being suddenly broken up it hath been doubted whether or no that act and all other acts of Continuance were expired for want of farther continuance but by an Act made in 17 Car. for the farther reliefe of his Majesties Armie in the Northern parts that Act and all other Acts of continuance are to continue in force untill some farther Act of Parliment be made for the continuance or discontinuance of the same 38 Inutilis labor sine fructu non est effectus Legis contra And therefore nothing can be given to a man which he had before 1 If the Lord mayhem his Villain he shall be indicted for it at the Kings suit Littl. § 194. Co. Inst pars 1. 126. a. 4. 127. b. 1. The appealâ—y a Villaine against his Lord. but in that case he shall not have an appeale of Mayhem against his Lord because he cannot enjoy the damages recovered in that suit for that upon recovery and execution for the damages the Lord may immediately take them from him again Vide supra 35. 6. 2 In an action brought by a man or a woman that are professed in Religion in Normandy Co. ibid. 132. b. 2. or any other Forreign Country Forreign profession not pleadable the Defendant shall not plead in disability of their person because that profession will want tryall here in England It is otherwise if they were professed in England for that might be tryed by the Certificate of the Ordinary 3 If a man enfeoffeth another of an acre of ground with warranty The heire and youngest son vouched togâ—ther hath issue two sons Co. ibid. 376. a. 3. dieth seised of another acre of land of the nature of Borough English and the feoffée is impleaded Here albeit the warranty descendeth onely upon the eldest son yet may he vouch them both the one is heire to the warranty and the other as heire to the land For if he should vouch the eldest sonne only then should he not have the fruit of his warranty viz. a recovery in value and the youngest sonne only he cannot vouch because he is not heire at the Common Law upon whom the warranty descendeth 4 Counts and such as be in nature of Counts as an Avowry wherein the Defendant is an Actor need not to be averred Co. ibid. 303. a 4. Negative pleas not to bâ— averred but all other pleas in the affirmative ought to be averred thus Et hoc parat est verificare c. Howbeit pleas méerly in the negative ought not to be averred because it were in vaine to aver them in regard they cannot be proved The issue after discontinuance cannot enter 5 If Tenant in taile release to his Disseisor Co ibid. 318 a 4. and binde himselfe and his heirs to warranty and die and this warranty descends upon the issue this works a discontinuance so that the heire cannot enter but is put to his action for if the issue in taile might enter the warranty which is so much favoured in Law would serve for no purpose but would be utterly destroyed whereas being put to his action the Disseisor may make use of his warranty by vouching the issue and shall thereupon recover in value if other lands descended unto him in fee-simple c. Vide 15. 9. It is vaine to give a man what he had before 6 It is a vaine thing to give that to a man which he had before Littl. §. 625. Co. ibid. 335. a. 2. because nothing can operate thereupon As if land be given in taile saving the reversion to the Donor and after the Tenant in taile by his déed infeoffs the Donor in fee this is no discontinuance of the estate taile because the reversion is not discontinued but remains in the Donor as it was before So if Tenant for life make a lease for his owne life to the Lessor the remainder to the Lessor and a Stranger in fee In this case forasmuch as the limitation of the fee should worke the wrong it enureth to the Lessor as a surrender for the one moity and a forfeiture as to the remainder of the stranger for he cannot give to the Lessor that which he had before c. So likewise if there be two Ioyntenants and one of them enfeoffe his companion and a stranger and make livery to the stranger this shall vest onely in the stranger because the livery cannot enure to his companion who was before possest of the land per my per tout c. Remainder granted for the life of the Tenant in tail void 7 If there be Tenant in taile remainder in taile Co. lib. 2. 51. a. 3. Sir Hugh Cholmleys case and the remainder in taile bargains and sells the land and all his estate c. by Indenture inrolled c. to I. S. to have for the life of the Tenant in taile and to his heirs males the remainder to the Queen c. Here the remainder to the Queen is voyd because the Grantee for the life of the Tenant in taile takes nothing for the Grantee shall never have any benefit thereby And the remainder to the Qu ought to take effect when the particular estate ends but that having no beginning can neither have ending Quod non habet principium nec habet finem And Vana est illa potentia quae nunquam venit in actum
contrà â—e shall be endowâ— 1 If a man be Tenant in fée taile generall Co. Inst pars 1 31. b. 4. F.N.B. 149. f. and makes a Feofment in fée and takes back an estate to him and his heires in fée and then takes wife and hath issue and dies his wife shall not be endowed for that her title of Dower is grounded upon the estate in fée which her Husband had during the coverture Now that Fée-simple vanished by the remitter of the heire in taile and therefore her title of Dower must néeds vanish also For her issue hath not the land by the descent of the Fée-simple but by force of the intaile There is the same law where the Tenant in taile disseiseth the discontinuee c. â—ery voyd 2 When a déed of Feoffment is void in it selfe Co. ibid. 48. b. 1. if livery be made according to the forme and effect of that déed the livery is also voyd As if A. by déed give land to B. to have and to hold after the death of A. to B. and his heirs this is a voyd déed because he cannot reserve to himselfe a particular estate and if livery be made according to that déed the livery is likewise voyd because the livery referreth to a deed that hath no effect in Law and therefore cannot worke Secundam formam effectum of that déed c. 〈◊〉 action of â—st gone 3 Regularly none shall have an action of Wast Co. ibid. 53. b. 3. unlesse he hath the immediate estate of inheritance and therefore if hanging an action of Wast an estate taile determines and the Plaintiff becomes Tenant in taile after possibility c. the action of Wast is gone â—cting of â—ses shall 〈◊〉 now forâ—the the land 4 In ancient time Co. ibid. 92. b. 4. amongst divers wayes that lands might escheat or be forfeited to the Lords of whom they were holden this was one if the Tenants did erect Crosses upon their Houses or Tenements in prejudice of the Lords to the end the Tenants might claim the priviledge of the Hospitalers and so defend themselves against their Lords by such erecting of Crosses they were subject to forfeit their tenancies but now since it hath pleased God by the light of the Gospel to banish out of our Church and Common-wealth all such superstitious reliques the danger of forfeiting Lands that way is also banished â—mage may â—epealed 5 Regularly it is true which Littleton saith Co. ibid. 103. b. 3. Littl. §. 148. that when a Tenant hath once done homage to his Lord he is excused for term of his life to make homage to any other Alienée or heirs of the Lord Howbeit it faileth in this case following A. holdeth of B. as of the Mannor of Dale whereof B. is seised in taile B. discontinueth the estate taile and taketh back an estate in Fée-simple A. doth homage to B. B. dieth seized and the Issue in taile entreth In this case A. shall do homage again to the heire in taile of B. because he is remitted to the estate tail and the estate in fée that his father had in respect whereof the homage was done is vanished and therefore the homage it selfe is also vanished for the heire in taile is in of a new estate in respect whereof A. ought to doe a a new homage So likewise it is when the Tenant hath done homage and the Mannor is afterwards recovered from the Lord in a Praecipe quod reddat c. by a Stranger In this case also the Tenant shall do homage againe to the Stranger because the estate of him that received the first homage is defeated by the recovery c. It is otherwise when the Mannor is aliened to a Stranger or descends to the heire without defeasance as aforesaid of the original estate Co. ibid. 128. b. 3. 6 When the ground or cause of an Action faileth Where tâ—â— ground oâ— action faâ— all is gooâ— there must néeds the Action it selfe also faile as if an out-lawed person brings an Action the ground and cause of which Action is forfeited by the Out-lawry as in an Action of Debt Detinue or the like there the Defendant may plead the Out-lawry it selfe in barre of that Action and shall thereby conclude the Plaintife It is otherwise in real or personal Actions where the damages are uncertaine as in trespasse of Battery of Goods of breaking his Close and the like and are not forfeited by the Out-lawry for there the Out-lawry must be pleaded in disability of the person Co ibid. 138. a. 4. 7 Tenant in Taile of a Mannor whereunto a Villain is regardant No maâ—sion by 〈◊〉 brought 〈◊〉 Lord. enfeoffeth the Villaine of the Mannor and dieth Here the issue after recovery of the Mannor in a Formedon against the Villaine may seise the Villaine and the bringing of that Writ in this case shall worke no manumission because at the time of the Writ brought he was no Villaine and the estate by reason whereof he might claime the priviledge of manumission being defeated the manumission it selfe is also defeated Co. ibid. 147. a. 4. 41 E. 3. 13. per Finchden 8 A man by Déed grants a rent of 40 s. to another out of the Mannor of D. to have and perceive to him and his heires Rent oâ— land erâ—â— and grants over by the same deed or by another that if the rent he behind the Grantée shall distraine in the Mannor of S. Here both the Mannors are charged the one with the rent the other with a distresse the one issuing out of the land the other to be taken upon the land And in this case if the Mannor of D. be evicted by an eigne Title all the rent is extinct and so by consequence both the Mannors discharged but if the Mannor of S. be onely evicted all the rent doth still remain c. Co. ibid. 158. a. 4. 9 If a Pannel upon a Venire facias be returned and also a Tales Challeâ— and the array of the Principal is challenged if the Triors quash the array of the Principal they shall not trie the array of the Tales for now it is as if there had been no apparance at all of the Principal Pannel but if the Triors affirme the array of the Principal then shall they also trie the array of the Tales c. Co. ibid. 223. b. 1. 224. a. 3. 10 If a Feofment be made upon Condition that the Feoffée shall not alien in Mortmaine this is good Good coâ—ons because the Condition is backed by a Statute Law for such Alienations are prohibited by the Statute of Mortmaine And regularly whatsoever is prohibited by Law may be prohibited also by Condition be it malum prohibitum or malum in se In ancient Déeds of Feofment in Fée there was most commonly a clause Quòd licitum sit donatorio rem datam dare vel vendere cui voluerit exceptis
50. E. 3. nu 123. And it hath béen attempted in Parliament to give an action of accompt against the Executors of a Guardian in Soccage but never could be effected â—â—nity and 〈◊〉 charge 3 An annuity is a yearly payment of a certain sum of money granted to another in fée for life or yeares Co. ib. 144. b. 3. and charging the person of the Grantor onely but doth not enure to the Grantée onely for his heire and his and their Grantée shall have a writ of Annuity but if a Rent charge be granted to a man and his heires he shall not have a writ of Annuity against the heire of the Grantor albeit he hath assets unlesse the grant be for him and his heirs â—â—cisor â—ease 4 If a Disseisor make a lease for life the remainder in fée Co. ib. 275. b. 2. and the Disseisée releaseth unto the tenant for life all his right this release shall enure to him in remainder because as to this and some other purposes they are but as one Tenant in Law Howbeit if the Disseisée release all actions to the Tenant for life after the death of the Tenant for life he in the remainder shall not take benefit of this release for it extended onely to the Tenant for life and ended with his life as it was adjudged in Edw Althams case Co. l. 8. 148. So also if the Disseisor make a lease for life and the Disseisée release all actions to the Lessée this enureth not to him in the reversion c. â—taile in an â—cale 5 In a writ of right when the tryall is by Battaile Co. ib. â—94 b. 4. neither the Tenant nor Demandant shall fight for themselves but shall finde each of them a Champion to fight for them because if either the Demandant or Tenant should be slain no judgement could be given for the lands and tenements in question It is otherwise in an appeal for here the Defendant shall fight for himselfe and so shall the Plaintiff also because there if the Defendant be slaine the Plaintiff hath the effect of his suit viz. the death of the Defendant c. â—â—mment in life of â—â—tor and â—â—ntee 6 Vpon the grant of any thing whereunto attornment is necessary Co. ibid. 309. a. 4. as of a Seigniory rent reversion remainder c. the attornment must be made during the lives both of the Grantor and also of the Grantée for if either of them die before attornment the grant is void And the reason hereof is for that every grant must take effect as to the substance thereof in the lifetime both of the Grantor and of the Grantée whereas in this case if the Grantor dieth before attornment the seigniory rent reversion remainder c. descends to his heire and therefore after his decease the attornment cometh too late so likewise if the Grantée dieth before attornment an attornment to the heire is void for nothing descended to him and if he should take he should do it as a purchasor whereas heires were added but as words of limitation of the estate and not to take as purchasors c. Co. lib. 2. 36. a. Sir Rowland Heywards case 7 If a man for good consideration bargain sell Election and demise a reversion of land to the use of another for yeares and the Grantor or Cestuy que use die before attornment or enrollment the grant is in this case void or good at the election of Cestuy que use void if taken at the Common Law by way of grant because then there wants attornment but good by way of Bargain and Sale according to the Statute of Vses 27 H. 8. cap. 10. and because the Statute of 27 H. 8. cap. 16. of Enrolments extendeth not unto it for that no estate of Franktenement pâ—sseth but onely an estate for yeares And notwithstanding the death of the Grantor and Cestuy que use either one or both the Executors or Administrators of Cestuy que use have power as well as Cestuy que use himselfe to choose by which way they will claime whether by way of grant at the Common Law or by way of Bargain and Sale according to the said Statute of Vses because Cestuy que use had immediately upon the grant a present interest in him which hee or in case he had died his Executors before election might have assigned over and for that he claims one and the same thing by two several wayes it being in his or his Executors power to choose which of them they please It is otherwise where the election is to choose one of two several things by one and the same way or title for then nothing passeth before election and that election must be made during the life of the parties And therefore if I have thrée horses and I give unto you one of my horses in this case the election ought to be made in the life of the parties for in as much as none of the horses is given in certain the certainty and therefore the property commenceth by election And with this agrées Bullocks case in the 10 of Eliz. 281. The Bishop of Sarum having a great Wood of 1000 acres called Berewood enfeoffs another of an house and of 17 acres parcell of the said wood and makes livery in the house here nothing passeth of the wood before election and therefore his heire could not make election c. Co l. 8. 6â— a. 1. in Jo Trollops case 8 If the Bishop make Certificate and die before it be received Certificatâ— a Bishop the Certificate is worth nothing but the Successor ought to certifie a new Fitz. 55. Co. lib. 9. 87. a. 4. Pinsons case 9 An action of Debt lyeth not against Executors upon a contract for the eating and drinking of the Testator for that action dieth with him Wager of Law Executors because in that case the Executors cannot wage their Law as the Testator might have done for a man shall never have an action against Executors where the Testator might in his life time have waged his Law because they cannot have the benefit of Law-wager as he might have had c. 15 E. 4. Vide infrà 14. Co. lib. 11. 1. The Lord De la Wares case 10 Of the family of the Lord De la Ware there was Grandfather Dignity restrained foâ— life Father and Sonne the Grandfather 3 H. 8. was summoned to the Parliament by Writ and after in 3 E. 6. it was enacted that the father should be disabled during his life from claiming any dignity but was afterwards by Qu Eliz. called to the Parliament and sate in the House as a puisne Lord and died after whose death the sonne sued in Parliament to be restored to the place of his Grandfather viz. betwixt the Lord Berkley and the Lord Willoughby of Ersby and it was granted him For there was a diversity taken betwixt a disability personal and
the lands undisposed of excéed in value the other lands given in Frankmarriage yet shall not the Donée in Frank-marriage have any part thereof unlesse she will put her part in Hotchpot with the other lands and then they shall be equally divided betwéen the sisters And it séemeth by our old books Co. ib. 176. b. 3 Glanvil l. 7. cap. 5. that by the ancient Law there was also a kind of resemblance hereof concerning goods Si autem post debita deducta Division of the testators goods post deductionem expensarum quae necessariae erunt id totum quod tunc superfuerit dividatur in tres partes quorum una pars relinquatur pueris si pueros habuerit defunctus secunda uxori si superstes fuerit Et de tertia parte habeat testator liberam disponendi facultatem si autem liberos non habeat tunc medietas defuncto alia medietas uxori Si autem sine uxore decesserit liberis existentibus tunc medietas defuncto alia medietas liberis tribuatur Si autem sine uxore liberis tunc id totum defuncto remanebit Lambert 119. 68. And by the law before the Conquest it was thus provided Sive quis in curia sive morte repentine fuerit intestatus mortuus Dominus tamen nullam rerum suarum partem praeter eam quae jure debetur herioti nomine sibi assumito verùm eas judicio suo uxori liberis cognatione proximis justè pro suo cuique jure distribuito Frankmarriâ—ge Hotchpot 22 If a man seised of 30 acres of land each acre of equal value Littl. §. 273. Co. Inst pars 1. 179. a. 1. hath issue two daughters and gives 15 acres to one of them in Frankmarriage and dies seised of the other 15 acres In this case the other sister shall have the 15 acres so descended and the Baron and Feme shall not put their 15 acres in Hotchpot with them because the parts are already equal but this is to be thus understood if they are of equal value at the time when the Partition should be made For if the land given in Frankmarriage be by the act of God decayed in value or if the remnant of the lands in Fée-simple be improved after the gift they may be cast into Hotchpot And the Law will adjudge of the value as it is at the time of the Partition unlesse it be by the proper act or default of the parties c. And it séemeth to some that in case they be of equal value at the time of the partition that then the reversion in fée of the lands given in Frankmarriage shall onely descend to the Donee for otherwise the other sister shall have more benefit than the Donee and so their parts would not be equal and then their parts might be put into Hotchpot notwithstanding the 30 acres are all of equal value at the time of the partition which is against the reason that Littleton gives Sect. 273 c. â—rvivor of â—yntenants 23 If there be two Ioyntenants in fee Co. ib. 193. a. 3. and the one letteth his part to another for the life of the Lessor and the Lessor dieth some say that his part shall survive to his companion for that by his death the lease was determined Howbeit others hold the contrary and their reason is First because at the time of his death the joynture was severed for so long as he lived the lease continued And secondly because notwithstanding the act of any one of the Ioyntenants there must be equal benefit of survivor as to the Frée-hold but here if the other Ioyntenant had first died there had béen no benefit of Survivor to the Lessor without question because at that time the joynture would have béen severed And this last séems to be the opinion of Coke for that he puts it last according to his own rule and the course which he observes Littleton to use Co. ib. 341. b. 4. 24 A Bishop Abbot Dean Master of an Hospital Abbot c. Writ of right Parson a Jâ—â— utrum or any other such body politique or corporate which hath a sole seisin of lands in fée in right of their several Corporations if any such be ousted they shall if néed be have a remedie agréeable to their right viz. a Writ of Right which is the highest remedy for that they have the highest estate It is otherwise of a Parson because the intire fée and right is not in him his highest writ being a Juris utrum c. Co. ib. 365. b. 2. 25 Albeit the Statute of Glocester cap. 3. made in 6 E. 1. Alienation by Tenant by courtesie no barre for the relief of the heir against the alienation of the Father Tenant by the courtesie with warranty c. maketh one by mention of a Writ of Mortdancester Cosenage Aiel and Besaiel yet a Writ of Right a Formedon a Writ of Entry ad communem legem and all other like actions are within the purview of that statute for those actions are but put for examples Again where it is said in the same Statute if the Tenant by the Courtesie alien yet his release with warranty to a Disseisor c. is within the purview of that Statute because it is in equal mischief and if that evasion might take place that Stat. should have béen made in vain So also if Tenant by the Courtesie be of a Seigniory and the tenancy escheat unto him and after he alieneth with warranty this shall not bind the issue unlesse assets descend for it is in equal mischief c. Co. ib. 313. a. 2. 26 Albeit the preamble of the Statute of 34 H. 8. cap. 20. Gifts of the King 34 H 〈◊〉 20. extendeth onely to gifts in tail made by the Kings of England before that Act viz. hath given granted c. and the bodie of the Act referreth to the preamble viz. that no such feigned recovery hereafter to be had against such tenant in taile c. So as this word such may seem to couple the bodie and the preamble together Yet in this case such shall be taken for such in equal mischief or in like case and by divers parts of the Act it appeareth that the makers of the Act intended to extend it to future gifts and so is the Law taken at this day without question Littl. Sect. 732. Co. ib. 383. b. 1. 27 Some do expound these words of the Stat. of Glocester cap. 3. Heritage in Gloc. 3. iâ— heritance by purchase 〈◊〉 the heritage of his mother to be the lands which the mother hath by descent And that construction is true but that Stat. by the authority of Littleton Sect. 732. extendeth also where the mother hath it by purchase in Fée-simple for so saith Littleton himself that this word Inheritance is not onely intended where a man hath lands by descent but likewise where a man hath a
Eliz. Dyer 248. And therefore the case of 6 E. 6. Dower Br. 69. where it is said that an estate in Fee simple conveyed to the Feme for her joynture is not within the Stat. of 27 H. 8. is misreported and ought to be intended that such an estate is not within the Statute of 11 H. 7. cap. 20. which restraines the alienations of Femes c. â—ubsequent â—tute may taken withâ—â—he equity 44 It is frequent in our books that an Act made of later time shall be taken within the equity of an Act made long before Co. ibid. So the Statute of Malbridge which was made Anno 52 H. 3. gives the ward of the heir of the Tenant that holds by Knight Service notwithstanding a feofment made by collusion at which time of a Statute made long â—fore and for 200 years after and more viz. untill the Statute of 4 H. 7. cap. 17. which gives the ward of the heir of Cestuy que use the heir of Cestuy que use was not in ward And yet it is holden in 27 H. 8. 9. if Cestuy que use since the Statute of 4 H. 7. make feofment in fée by Collusion to defraud the Lord of his ward that is taken within the equity of the said Statute of Malbridge Co. ibid. 4. a. 4. b. So also the Statute De donis conditionabilibus made 13 E. 1. as to the warranty of the Tenant in tail with assets is taken within the equity of the Statute of Gloucester cap. 3. made 6 E. 1. as it is held 11 E. 2. tit garranty Stath 38 E. 3. 23. For a Formedon in descender was given in lieu of a Mortdancester Likewise the Statute of Westm 2 cap. 25. made 13 E. 1. gives a Certificate but it gives not adjournment Howbeit adjournment is taken by the equity of the Statute of Magna Carta cap. 12. made 9 H. 3. as it is held 12 H. 4. 9. So the Statute of 7 R. 2. cap. 10. gives an Assise for rent in confinio Comitatus and Redisseisin is also taken in case of rent by the equity of the Statute of Merton cap. 3. made 20 H. 3. Vide 1 E. 3. 25. b. So in Dyer 12 Eliz. 289. Pl. 60. The Bishop of London being one of the High Commissioners by force of the Statute of 1 Eliz. cap. 1. was translated to the Arch Bishoprick of Yorke yet his authority notwithstanding that preferment remaines by force of the Statute of 1 E. 6. cap. 7. So also albeit lands were not devisable till the 32 H. 8. yet if a man devise lands to a woman for terme of her life or in tail c. for her joynture and in satisfaction of her Dower that is a joynture within the Act of the 27 H. 8. For as an estate for life made to a Feme for her joynture before marriage when she is not his wife is within the equity of that Act So an estate for life devised to a Feme for her life which takes effect after his death when the marriage is dissolved is also within the equity of the same Act because such an estate stands well with the intent of the makers of the same Act of 27 H. 8. Co. ibid. 5 â—l Dyer 20. in the Court of Wards and likewise with the nature of the joynture intended thereby And therefore if a man seised of certaine lands in fée holden in Soccage and of other land in tail holden in Capite devise by his Will in writing the third part of all his lands to his wife in recompence of her Dower and dies and the wife enter into the third part of the lands holden in Fée simple that shall be a barre of her Dower by force of the said Act of 27 H. 8. It is otherwise where a man deviseth land to his wife for terme of her life Co. ibid. 4. a. 3. M. 38. 39 El. inter Leak and Randal in Cur. Gardorum c. generally for that cannot be averred to be for her joynture c. because a devise imports a consideration in it selfe and unlesse it be plainly exprest in the will what it is for it shall be taken onely as a benevolence neither yet can any averment be taken out of the Will unlesse it properly arise or may be collected out of the words contained in the same Will c. Vide 51. Co. l. 4. 57. a. 3. in the case of the Sadlers c. 45 Albeit the Statute of 36 E. 3. cap. 13. Equity of the Stat. of 36â— 3. 13. gives travers and Monstrance de droit from Lands seised into the Kings hands by offices returned onely into the Chancery yet by equity of that Statute if the offices be returned into the Exchequer and not into the Chancery there also the Subject may put in his traverse or Monstrance de droit as appeares by a president in Qu. Eliz. time betwéen the said Quéen and one Collins and Howstead Co. l. 4. 65. a. 4. in Fulwoods case 46 Although the Stat. of Westm 2. cap. 18. which gives the Elegit Equity esâ— Stat of Eleâ— W. 2. 18. names onely the Sheriff to execute it yet by equity of the same Stat. the Serjeant of the Mace in London or any other immediate Officer to any of the Kings Courts of Record may execute the same Writ in their several jurisdictions c. Co. l. 4. 106. b. 1. Adams and Lamberts case 47 Albeit by the Stat. of the 1 E. 6. cap. 14. Equity of thâ— Stat. of Sâ—stitious usâ— 1 E. 6. 14. onely such estate given to superstitious uses as are to have continuance for ever séem to be given to the King Yet other estates of lesse continuance as estates in taile for life c. imployed for such uses are also given to the King by the equity of the same Act And the rather because Omne majus continet in se minus â—enant in â—wer shall â—ot recover â—cording to â—er losse 48 If a man be seised in fee or in taile of three acres Co. l. 4. 122. a. 2. in Bastards case each acre of equal value and dies the heir endows the Feme of the third acre and after the Feme is impleaded by one that hath title paramount and she voucheth the heir Here she shall not recover in value according to her losse but onely the third part of two acres which remain for by the Law she ought to have but the third part of that which her husband might keep and enjoy by good title c. Vide plus ib. Discretion liâ—ited by reaâ—â—n 23 H. 8. 5. 49 The Commissioners of Sewers upon the Statutes of 6 H. 6. Co. l. 5. 99. b. 4. in Rooks case cap. 5. 23 H. 8. cap. 5. are not onely to charge those that have lands adjoining upon the Banks Ditches Gutters c. but likewise all others that are in any danger or shall receive any profit by
against their wills and by good advise he was cleerly discharged thereof See more examples to the same purpose ubi in marg Co. l. 7. 25. b. 1. in Calvins Case 45 Foedera percutere to make Leagues Peace warâ— Denization doth onely and wholy pertaine to the King and not to the subject so also doth Bellum indicere Likewise the King onely without the subject may make not onely letters of safe conduct but letters patents of Denization to whom and how many he please and may enable them at his pleasure to sue any of his subjects in any action whatsoever real or personal which the King could not do without the subject if the subject had any Interest given unto him by the Law in any thing concerning an Alien borne Nay the Law is more precise herein then in a number of other Cases of higher Nature For the King cannot grant to any other to make of strangers born Denizens it is by the Law it self so inseparably and individually annexed to his Royal Person as the Book is in 20 H. 7. 8. because the Law esteemeth it a point of high prerogative Jus majestatis inter insignia summae potestatis to make Aliens borne subjects of the Realme and capable of the Lands and Inheritances of England in such sort as any natural borne subject is And therefore by the Statute of the 27 H. 8. cap. 24. many of the most ancient prerogatives and Royal Flowers of the Crowne as Authority to pardon Treason Murder Man-slaughter and Felonie Power to make Iustices in Eyre Iustices of Assise Iustices of Peace and Gaol-delivery and the like having béen severed and divided from the Crowne were again remitted to the same But authority to make Letters of Denization was never mentioned therein to be resumed because there was never any that claymed the same by any pretext whatsoever being a matter of so high a point of prerogative c. Co. l. 7. 14. a. 4. in Englefeilds Case 46 A. Seised of the Mannor of Dale in Fée A Covenâ—â— Power of Revocation Covenants with B. to stand seised to the use of himselfe for life the remainder to B. in tail the remainder to B. in Fée with proviso that upon delivery or tender of a ring to B. by himselfe or another as the Estates shall be void A. is out-lawed for treason the King seiseth the Land and lets a Lease to D. for 40 yeares Treason Seisure and after the King gives a Commission under the Great Seale to E. to tender the ring to B. according to the Condition In this Case if a Common Person had enjoyned the Kings Estate by making such a Lease of 40 yeares Demise by thâ— Kings power Revocation remaines he had utterly deprived himself of revoking the Estate and of taking advantage of the Condition because his Act shall be most interpreted against himselfe But in that Case the Kings demise shall not enure to his special prejudice to two intents viz. To a demise of Land and also to a suspension of his Condition whereby he might defeat the Estate for life and the other Estates that depend upon it or to a demise in respect of his present Estate pur auter vie and also to a Confirmation in respect of his Condition whereby otherwise he might defeat all as shall be also in Case of a Common Person For the Kings grant shall always be taken according to his expresse intention comprehended in his grant and shall not extend to any other thing by Construction or Implication when it appeares not by his grant that his Intent extended unto it and therefore in such Cases the King ought to be truly informed and he ought to make a special and particular grant which by expresse words may enure to all such several intents as are desired c. Co. l. 7. 16. a. 4. in the Case of Swasn 47 All White Swans not marked Swans wilde which have gained their liberty and swim in an open and common River may be seised to the use of the King by his prerogative Because Volatilium quae sunt ferae naturae alia sunt regalia alia Communia Now a Swan is a Royal bird and therefore if the propertie thereof be not knowne it belongs to the King by his prerogative And there was always an ancient Officer of the King called Magister deductus Cignorum who continues even to this day Neverthelesse the subject may also have property in white Swans not marked Swans not marked in private waters as some may have Swans not marked in their private waters the property whereof belongs unto them and not unto the King And albeit they escape out of their private waters yet they may take them and convey them home again And with this agrées Bracton lib. 2. cap. 1. fol. 9. Si autem animalia fera fuerint mansueta ex consuetudine eunt redeunt volant revolant ut sunt Cervi Cigni Pavones Columbae hujusmodi eo usque nostra intelligantur quamdiu habuerint animum revertendi But if they once gain their natural liberty and do swim in open and common Rivers the Kings Officer may seise them in the open and common River for the King because one white Swan without such pursuit as is aforesaid cannot be known from another And when the property of a Swan cannot be known it being of its nature a Royal Fowl it belongs to the King c. Duke of Cornâ—al 48 In the Princes Case Co. l. 8. fol. 28. a. It was resolved Co. lib. 8. 28. a. 3. in the Princes Case that the Act of 11 E. 3. by force whereof the Kings eldest son was made Duke of Cornwall was such an Act. whereof the Iudges and all the Realm ought to take Conusance because it concerned the King and his first-born son and heir apparent to the Crown for the time being perpetuis futuris temporibus Conusance of an Act of Parliament for every subject hath interest in the King and none of his subjects who are under his Laws are divided from him being their Head and Soveraign So that the Kings affairs concern the whole Kingdome and especially when the Prince the first begotten son of the King and his Heir apparent to the Crown is therein concerned Corruscat enim Princeps radiis Regis Patris sui censetur una persona cum ipso Rege Treason against the Prince as it is declared in the Act of Parliament of 38 H. 6. And therefore if any shall intend the death of the Prince and shall make declaration thereof by some overt Act that is Crimen laesae Majestatis high Treason by the ancient Common Lawes of England and is so declared by the Statute of 25 E. 3. c. Prince 49 1 H. 5. fol. 7. If the Prince as Prince of Wales Co. ib. b. 2. hath judgment to recover and afterwards the Crown descends to him he
of their lives and after to the use of their next issue male in taile Co. ib. 28. a. 3. and after to the use of the Baron and Feme and the heires of their two bodies having no issue at that time in this Case the Baron and Feme are Tenants in special taile executed and after they have a son they are become Tenants for life the remainder to the son in tail the remainder to them in special taile and here albeit living the son they are but bare Tenants for life yet if the Baron die having no other issue and then the son die without issue the Feme shall be restored to the priviledges belonging to tenant in tail after possibility of issue extinct as appeares in Lewes Bowles Case Co. l. 11. fol. 80. for as there is said the Estate of the Feme in such Case is created by the act of God and not by the limitation of the party ex dispositione legis and not ex provisione hominis but if land be given to Baron and Feme and the heirs of their two bodies and after they are divorced causa praecontractus consanguinitatis or affinitatis their Estate of inheritance is turned to a joint Estate for life and albeit they had once an inheritance in them yet for that the Estate is altered by their own Act and not by the Act of God after the death of either of them without issue the other shall not be Tenant in tail after possibility of issue extinct 〈◊〉 not enâ—ed 5 If a man take an alien to wife and after the husband alien the land Co. ib. 33. a. 4. and then she is made denizen the husband dieth she shall not be endowed it is otherwise if she be naturalized by act of Parliament â—il death 6 The Feme shall not not be endowed after the Civil death of the Baron entring into Religion c. being the act of the party Co. ib. 33. b. 2. but after the natural death which is the Act of God â—t-tenant â—gnes doâ—â— 7 If two or more he joint-tenants of lands Co. ib. 34. b. 4. one of them may assigne dower to the wife of a third part in certainty and this shall bind his companions because they were compellable to do the same by law but if one of them assigne a rent out of the land to the wife this shall not bind his companions because he was not compellable by the law thereunto 8 There is a diversity betwéen particular Estates made by the Terre-tenant Co. ib. 57. b. 3. and paâ—â—â—cular Estates created by Act in Law Trespass before entry contrà For if Tenant pour autre 〈◊〉 continueth in possession after the decease of Cesty que vie or Tenant for yeares holdeth over his terme the Lessor cannot have an Action of Trespas before entry but if a Guardian after the full age of the heire continueth in possession he is no Tenant at sufferance but an Abator and against him an Assise of Mortancestor doth lie before entry Co. ib. 59. b 4. Armestrongs Case certified into the Chancery by Popham and others 39 Eliz. 9 Of fines due to the Lord by the Copi-holder Copi-hold Fines some by the change or alteration of the Lord and some by the change or alteration of the Tenant the change of the Lord ought to be by Act of God otherwise no fine can be due but by the change of the Tenant either by the Act of God or of the party a fine may be due For if the Lord do alleadge a Custome within his Mannor to have a fine of every of his Copi-holders of the said Mannor at the alteration or change of the Lord of the Mannor be it by alienation demise death or otherwise this is a Custome against the Law as to the alteration or change of the Lord by the act of the party for by that meanes the Copi-holders may be oppressed by multitude of fines by the Act of the Lord but when the change groweth by the Act of God there the Custome is good as by the death of the Lord but upon the Change or alteration of the Tenant a fine is due to the Lord. Escuage Co. ib. 72. b. 1. 10 If the Tenant goeth with the King in performance of his Knight-service and dieth in Exercitu in the Host or Army he is excused by Law and no escuage shall in that Case be demanded Homage Ancestral Co. ib. 102. a. 4 11 In Case of Homage Ancestral which is a special warranty in Law by the authority of Littl. the lands generally that the Lord hath at the time of the voucher shall be lyable to the execution in value whether he hath them by discent or purchase but in Case of an expresse warranty the heire shall be onely charged for such lands as he hath by discent from the same Ancestor who created the warranty and so note what priviledge this expresse warranty created by operation of Law hath more then the expresse warranty for firmior potentior est operatio Legis quam dispositio hominis Co. ib. 127. a. 1 in Beechers Case Co. l. 8. 60. b. 12 If a writ do a abate by the Act of the Demandant or Plaintiffe Amerâ—iaâ—â— or for matter of form the Demandant or Plaintiffe shall be amercied but if abate by the Act of God as by the death of one where there is two or the like there shall be no amerciament Co. ib. 148. a. 3 Wards Case cited in Co. l. 2. fol. 32. in Heywards Ca. 13 When a rent-charge is extinguished by the grantées purchase of part of the land the grantée shall never have a writ of annuity Rent-chaâ— extinguisheâ— no Annuity because it was by the grant a rent-charge and he hath discharged the land of it by his own Act viz. by purchase of part but if the rent-charge be determined by the Act of God or of the law yet the grantée may have a writ of annuity as if Tenant for another mans life by his déed grant a rent-charge to one for 21 yeares Cesty que vie dieth the rent-charge is determined and yet the grantée may have during the years a writ of annuity for the Arrerages incurred after the death of cesty que vie because the rent-charge did determine by the Act of God and by course of law Actus legis nulli facit injuriam The like law is if the land out of which the rent-charge is granted be recovered by an Eigne title and thereby the rent-charge is voided yet the grantée shall have a writ of annuity for that the rent-charge is avoided by the course of law Co. ib 148. b. 1 Litt. § 222. in Aschoughs ca. vide infrà 48. 14 Littleton saith that a Rent-service may be extinct for part Rent-serâ— suspended contrà and apportioned for the rest but it cannot be suspended in part by the Act of the party and in
Copercenerâ— the eldest sister hath the choice and this is called Enitia part of Eigne or Eldest but this priviledge is personal to her alone and shall not discend to her heire for then the next sister hath it because this partition is made personally by the Act of the parties but where the law doth give the eldest any priviledge withâ—ut her Act there that priviledge shall discend As if there be divers coperceners of an advowson and they cannot agrée to present the law doth give the first presentation to the eldest and this priviledge shall discend to her issue nay her assigne shall have it and so shall her husband that is Tenant by the courtesie have it also 22 A partition betwéen jointenants is not good without déed Partition bâ— parol 〈◊〉 although it be of lands or other things which may passe without déed albeit they be now compellable to make partition by the Stat. of 31 H. 8. â—0 31 H. 8. 32. because they must pursue one of those Acts as their case is by writ de partitione facienda Co. ib. 169. a. 1 and a partition betwéen jointenants without writ remaines at the common law as it was before those Statutes which could not be done by parol and therefore such partition is méerely by Act of the parties So it is also and for the same reason of tenants in common Dier 29. a. 194. 28 H. 8. But betwéen Coperceners partition may be made by parol without déed and that not onely of lands and other things that may passe by livery without déed but likewise of things that do lie in grant as rents Commons Advowsons and the like that cannot passe by grant without déed and that whether they be in one and the same County or in several Counties because in such partitions the act of the parties co-operateth with the act of law so likewise if two teannts in common make partition by parol execute the same in severalty by livery this is good and sufficient in Law because here also the act of the party worketh together with the Livery which is an Act of Law And therefore where Books say that Ioyntenants made partition without Déed it must be intended of Tenants in Common and executed by Livery But the chiefest Reason why Perceners have this Priviledge above Ioyntenants or Tenants in Common is because they come to their Estates by Discent which is an Act in Law but these by Purchase which is an Act of the parties And the Reason why Ioyntenants cannot make Partition by Parol with Livery as Tenants in Common may is because betwixt Tenants in Common there is onely privity in possession but betwixt Ioyntenants there is as well privity in Estate as privity in possession and therefore they cannot convey their Estates one to another without Déed as Tenants in Common may who have several Estates and claim under several Titles Rent c. may passe without Deed. 23 An Exchange of Lands in the same County may be without Déed Co. ib. 169. a. 3 Littl. §. 251. but a Rent granted for Egalty of the same Exchange cannot be without Déed yet if two Messuages discend to two Co-perceners the one worth 20 s. per annum and the other worth 10 s. the assignment of 5 s. per annum to be paid to the Co-percener that hath the Messuage of 10 s. per annum and her Heires is good by Parol without Déed And the Reason of this is because Co-perceners are in by Discent which is an Act of Law but the Exchange is the Act of the parties So it is also of Common of Estovers a Corodie Common of Pasture c. or of a Way granted by one Co-percener to the other All which and the like albeit they lie in Grant yet may they upon the Partition be granted without Déed causa qua suprà One Co-parâ—ner married 24 If there be thrée Co-perceners Co. ib. 169. b. 3. and one of them be married and for Egalty of partition the Husband and Wife grant a Rent to the other two out of the part of the Feme Covert this partition albeit it be not by Fine being equal shall charge the part of the Feme Covert for ever causa qua c. â—â—tition by â—â—ons and 〈◊〉 and Inâ—â—â—s 25 If two Co-perceners of Lands take Barons Co. ib. 171. a. 2 Litt. §. 256 257. and they and their Barons make Partition if the Partition was un-equal at the time it was made after the Barons death it may be reformed and it shall not bind the Co-percener that was wronged but if then the Partition was equal albeit it was not by Fine it shall bind them for ever because the Partition is made as well by Act of Law as by that of the parties the Barons and Femes being compellable by Law to make Partition And therefore if after such Partition made the Land become un-equal by any matter subsequent as by surrounding ill Husbandry or the like yet the Partition remaines good So likewise in Case of an Infant Co. ib. 171. a. 4 Littl §. 258. if the Partition be equal at the time of the Allotment it shall bind him for ever because he is compellable by Law to make Partition and he shall not have his age in a partitione facienda And though the Partion be un-equal and the Infant hath the Lesser part yet is not the Partition void but voidable by his entry for if he take the whole profits of the un-equal part for his full age the Partition is made good for ever And therefore Littleton Sect. 258. giveth him a Caveat that in that Case he take not the whole profits of his un-equal part neither shall a unequal part in the Chancery bind an Infant but a Partition made by the Writ of Partitione facienda by the Sheriff upon the Oath of 12 men and judgment thereupon given shall bind the Infant though his part be unequal Co. ib. 172. a. 2. for this is by Act of Law And generally whatsoever an Infant is bound to do by Law the same shall bind him albeit he doth it without suit of Law as if an Infant be Executor here upon payment of any Debt due to the Testator he may make an acquittance but in that Case a Release without payment before his age of 21 yeares is void Littl. 5. 260. Co. ib. 173. a. 3. 26 Partition amongst Coperceners maketh no Discontinuance Partition makes no discontinuance for if Lands be given to a man in tail who hath as much Land in Fée-simple and he hath issue two Daughteas and dies and the Daughters make partition so as all the Fée-simple Lands are allotted to the youngest Sister and the entailed Lands to the Eldest in this Case after the Death of the youngest Sister her issue after the alienation of Fée-simple Lands by her Mother may enter into the entailed Lands and hold them in property with her Aunt because
howbeit by act in Law the nature of the action may be changed as if a man make lease pur terme d'auter vie and the Lessée doth waste and then Cestuy que vie dieth In this Case an action of waste shall lie for damages onely because the other is determined by act in Law So likewise if an action of wast be brought against Tenant pur auter vie and hanging the writ Cestuy que vie dieth the writ shall not abate but the Plaintife shall recover damages onely because if Cestuy que vie had died before any action brought the Lessor might have had an action of waste for the damages as afore-said â—t-secke 40 Grant of a Rent-secke without attornment is not good Co. ib. 209. b. 3 for the grantée cannot distraine for it without attornment or seisin otherwise because it is conveyed by the single act of the parties But if there be Lord Mesne and Tenant and the Mesne grant over his mesnaltie by déed the Lord releaseth to the Tenant whereby the mesnalty is extinct by act in Law in this Case if there be a Rent by surplussage it is now changed into a Rent-secke and albeit there be no expresse attornment for it as a Rent-secke and that the quality of that part of the Rent is altered from a rent-service to a rent-secke yet because it is altered by act in Law the attornment to the grant of the mesnalty is a good attornment for that Rent-secke by surplussage Vid. sup 17. â—â—e 41 If an house fall by tempest or other act of God Co. l. 4. 63. 2. 4 Herlakendons Case the lessee for life or years hath special Interest to take the great Timber to build the house again if he will for his habitation but if the lessée pull down the house the lessor may take the great Timber as a thing which was parcel of his Inheritance and in which the interest of the lessée is determined as in Case of trees and for the same reason and yet he may have an action of waste and recover treble damages Co. lib. 5. 5. in the Lord Mortwyes Ca. 42 If Tenant in tail be restrained by Statute to demise his Estate otherwise then by reserving thereupon verum antiquum redditum Demise by Tenant in taile and the Estate being a Mannor consisting of Frée-rents Copi-rents and Lease-rents he demiseth the whole Mannor reserving a rent amounting to the summe of all those rents whereas the demesnes onely were formerly demised rendring rent or if his Estate were two Farmes anciently let viz. one at 20 l. per an and the other of 10 l. per an and he demiseth them both together by one Indenture reserving 30 l. per an In these and the like Cases such demises will onely hold farme during the life of the Tenant in taile and after his death his issue shall avoid them for here the true and ancient rent is not reserved and being thus altered by the act of the party they shall not bind the issue in taile But if there be two Coperceners seised of land in tail which was formerly let at 10 l. per an one of them may demise her part or moity at 5 l. per an and it shall bind her issue so likewise if a Mannor hath béen always demised at 10 l. per an and after a tenancy escheats yet it may be still demised at 10 l. per an and yet it may be said that now the 10 l. per an is not verus antiquus redditus for no rent was ever yet reserved out of the land escheated But these two last Cases differ from the former in as much as Coperceners and the Lord by escheate are in by act of Law and of God which shall not prejudice any But if the Lord had purchased the tenancy it had béen otherwise for then he had béen in by his owne Act and not by Act of Law Co. lib. 5. 22. Laughters ca. 43 When the Condition of an Obligation consists of two parts in the disjunctive and both are possible at the time of the Obligation made Condition disjunctive and after one of them becomes impossible by the Act of God the obligor is not bound to perform either part So if A. be bound to B. upon Condition that if A. marry I. and together which I. do sell the land of I. if then A. do purchase to I. and her heires so much land as the money received for the other land sold amounts unto or else shall leave her worth so much at his death that then c. In this Case albeit A. marry I. and they joine in the sale of her land yet if A. survive I. it is made impossible by the Act of God to perform the first part of the disjunctive condition viz. to convey land unto her and therefore he is also discharged of the last part also Co. l. 5. 85. Sir Henry Knivets Case 44 Tenant for life lets for yeares the Tenant sowes the land Land soveâ— and before the graine is ripe Tenant for life dies here the interest of the graine is in the Lessée for yeares who may lawfully enter and take it when it is ripe for the Tenant for lifes dieth is by act of God which shall prejudice none So if there be Tenant for life remainder in Fée the Tenant for life demiseth for yeares the Tenant for yeares is outed and the Tenant for life disseised the Disseisor lets for yeares the dissors Tenant sowes the land Tenant for life dies before the grain is ripe he in the remainder enters the Lessee of the disseisor enters upon him he in remainder brings an Action of Trespass In this Case he in remainder may justifie his entry but hath no right in the grain also the disseisors lessée may justifie the taking of the grain because of his possession but the méere right of the graine is in the lessée of the Tenant for life and he shall recover in Trespass against the disseisors lessée damages for the graine C. l. 6. 1 2. in Briuertons Ca. See more of this learning in Talbots Case Co. l. 8. 105. in Leyfields Case Co. l. 16. 107 108. 45 If one holdeth land of his Lord by the yearly service of a Spurre Horse or the like and the Lord purchase parcel of the tenancy Intire servâ— such intire services are gone because such service cannot be servered or apportioned and he hath discharged pâ—rt thereof by his owne Act So it is also when the original Act is the Act of the Party mixt with an Act of Law as by recovery in a Cessavit of parcel of the tenancy all the intire services are gone But if parcel descend to the Lord where the tenure is by a spurre horse or the like there it is otherwise because that comes to him singly by Act in Law Howbeit when such service is to be performed by Coperceners where by the Statute
of Malbridge c. 9. one is to do the service and the rest are to contribute the same Law being also of their vendées by equity there if any part come to the Lord either by Act of the party or of Law yet the whole service is gone for there contribution failes and the Law will rather suffer things against the principles of the Lord then a man shall be without remedy according to Rule 144. â—verance of Mannor 46 If there be grant and render by fine of the demesnes of a Mannor here albeit this be done in an instant Co. l. 6. 64. a. in Sir Moyle Finches Case so as there was no transmutation of any possession yet the demesnes being once by Act of the party absolutely severed in the fée-simple from the services of the Mannor the Mannor is destroyed for ever So likewise if a man hath a Mannor and he grants part of the demesnes and part of the services to another he shall not have a Mannor for a man by his owne Act cannot create a Mannor at this day But if there be two Coperceners of a Mannor and upon partition the demesnes are allotted to one and the services to another here albeit in this Case there is an absolute severance yet if one of them die without issue and the demesnes descend to her that hath the services the Mannor is again revived because upon the partition they were in by Act in Law and the demesnes and services were again revicted by the Act in Law So also if upon the partition an advowson appendant be allotted to one and the Mannor unto which it is appendant be allotted to the other and after one of them dies without issue whereby the Law unites them again in this Case the advowson which was once severed shall be again appendant to the Mannor Also if two Coperceners have a Mannor and upon the partition each hath parcel of the demesnes and parcel of the services here because each of them is in by Act of Law each of them hath a Mannor In Office not â—â—â—isable for â— yeares 47 The Office of Marshal of the Kings Bench cannot be granted for terme of yeares Co. l. 9. 97. a. in Sir Geo. Requols Case because being then a Chattel and an Office of trust by the death of the Lessée it may happen to fall into the hands of such persons as are not fit to be trusted with that place but yet by Act of Law a term which is but a Chattel may be in such an Office as appeares in 5 E. 4. 3. for the Duke of Norfolke had an Estate-taile in an Office holden of the King in Capite and dies his heire within age and it was found by Office In this Case the King had a Chattel in that Office viz. during the minority and in that Case if the King die it shall discend to the next King and shall not go to his Executors or Administrators for an Act in Law shall not introduce any inconvenience And the King having such an Office during the minority it séemes he cannot grant it for life or yeares or during the minority because that may prove inconvenient for the reasons above alleadged but at will he may grant it for that is no certaine Estate A Seigniory c. suspended 48 By the Act of the party whether right or wrong all a Seigniory c. may be suspended Co. lib. 9. 135. a. 3. in Ascoughs Case And therefore if the Lord or Lessor disseise or out the Tenant or Lessée of any part all is suspended also if a Commoner take a Lease of any part of the land in which c. all the Common is suspended But by Act of Law a Seigniory may be suspended in part and in esse for the other part So if a Lord seise the Wardship of the Land of his Tenant by Knight-service now is the Seigniory suspended but if the guardian endow the Feme of the Tenant of a third part of the Tenancy now is the third part of the Seigniory revived and the Tenant in dower shall be attendant upon the guardian for the third part of the services because Tenant in dower is in by Act of Law and for the same reason if a man seised of lands in fée takes Feme and enfeoffes another the feoffée grants a rent-charge to the Baron and Feme and to the heirs of the Baron the Baron dies the Feme is endowed of a third part of the land out of which the rent issuing in this Case the third part of the rent which the Feme hath for life is extinct and two parts of the rent remaines to her issuing out of the other two parts of the land for although it be a rent-charge which regularly cannot be apportioned yet by Act in Law it shall be apportioned so likewise if the Guardian in Knight-service seise the land of one co-heire within age the other being of full age there the Seigniory is suspended for a moity and in esse for the other moity And if there be two Coperceners of a Seigniory and the one disseise the land Tenant or comes to the land by defeasable title the other may distraine her for her moity of the Seigniory because these also come in by Act of Law Co. l. 10. 94. b. 3. Doctor Leyfeilds Case 49 When the Interest of a thing is gained by Act of the party Shewing forth of a deed in defence of the title thereof the party interessed must produce to the Court the Déed by which he claimes So in Trespas the Defendant pleads the Quéenes grant of the Rectory of O. to A. but shewes not the Letters Patents this is error because this Estate being gained by the Act of the party â—e might in time have provided for his defence but when a particular Estate or interest is created by Law the party interessed shall not be forced to shew forth the Déed So guardian in Chivalry or Tenant in dower may plead a release without shewing it There is the same Law also of Tenant by Statute Marchant Staple Elegit c. because they also come to the possession by execution of Law and against the will of the terre-tenant who hath the déed for Judiciâ—m redditur in invitum Co. l. 10. 104. b. 3. in Alfridus Deubawdes Case 50 A Tales ought not to be granted after a full Iury appeares and is sworne and yet if a Iury be charged A Tales granted and after and before Verdict given in Court one of them is taken away by death which is the Act of God in that Case a Tales shall be awarded and no new venire facias and with this accords 12 H. 4. 10. so likewise if any of the Iurors impannelled die before they appeare and that appeares by the Sheriffs return the Pannel shall not abate but if néed be a Tales shall be awarded Vide 20 E. 4. 11. F. N. B. 31. m. 51 If a man usurpe
issue this warranty shall not barre the issue intail because this warranty did not discend to the issue in tail in regard the uncle of the issue himself was not bound to the warranty in his life time nor chargeable with it for that the Devise takes not effect until after his death Also if a man make a Feoffment in fée and bind his heires to Warranty this is void by the Warrant of this Maxime as to the heir because the Ancestor himself was not bound In like manner if a man bind his heires to pay a summe of money this is void And vice versa if a man bind himself to warranty and bind not his heires they are not bound Ego haeredes mei warrantizantibinius And Fleta saith Nota quod haeres non tenetur in Anglia ad debita antecessoris reddenda nisi per antecessorem ad hoc fuerit obligatus praeterquam debita Regis tantum A Fortiori in Case of warranty which is in the realty Howbeit the warranty in Law may bind the heir although it never bound the ancestor and this also may be created by a last will and testament As if a man devise lands to another for life or in tail reserving a rent the Devisée for life or in tail shall take advantage of this warranty in Law albeit the antestor was not bound and such a Devise shall also bind his heires to warranty albeit they are not named Co. l. 1. 83. b. Corbets Case 10 If a man covenant to stand seised to the use of himself for life An Estate to cease to one and to be in another repugnant the remainder to A. in tail the remainder to B. in tail c. Provided that if any of the remainders in tail shall resolve to alien that then the Estate of him so resolving should cease as if he were naturally dead and that it should then go to him in the next remainder here this Proviso is void and against Law for the repugnancie for by the words or act of the partie an Estate cannot be limited to cease as to one Ibid. 86. b. 4. 87 a. 4. per Walmesley and from thence-forth to be in another For if a man make a Lease for life upon condition that if he do not pay 20 l. such a day that another shall have the Land this future limitation is void also if a man make a feoffment in Fée of Land to the use of A. and his heires every Monday and to the use of B. and his heires every Tuesday and to the use of C. and his heires every Wednesday these limitations are void and we find no such fractions of Estates in the Law And if Co-perceners agrée to present by Turn this is a partition as to the Possession yet neverthelesse they shall in a writ of Right So also partition that one of them shall have the land from Easter to Lammas and the other from Lammas to Easter in severalty this is good as to the possession and taking of the profits but it is no severance of the Estate of Inheritance Howbeit an act of Parliament or the Common Law may make an Estate void as to one and good as to another but a man by his words and the breath of his mouth cannot do it As if Land be given to Baron and feme and the heires of their two bodies and the Baron levie a fine with Proclamations and hath issue and dies now this fine by force of the Statute of 32 H. 8. 36. shall barre the issue in tail but shall not bind the feme and so in respect of one it is a good barre and in respect of another no bâ—rre Also in a Praecipe if one be vouched here as to the Demandant the Vouchée is Tenant and a Release to him by the Demandant is good but as to a stranger he is not Tenant and therefore a Release to him by a stranger is void in like manner if one hath a Term for yeares as Executor and surrender it here in one respect the Term is extinct but in another it is Assets So that an act of Parliament or the Law may do that in such Cases which a man by his words cannot do Co. l. 4. 1. b. 3. in Vernons Case 11 No collateral satisfaction or recompence made to the Feme Dower assigâ—ed either before or after marriage in liew of her Dower was any barre of her dower at the common law before the Stat. of 27 H. 8. 10. albeit after the death of her husband she entred thereinto and accepted thereof in recompence of her dower because by the marriage she being entitled to a fréehold for life that title shall not afterwards be barred by any collateral satisfaction Howbeit dower ad ostium Ecclesiae or ex assensu patris shall conclude her of her dower if she enter into the land so assigned after the death of her husband for the law doth allow these being made in such form as the law requires those kinds of dower to be made It is otherwise where the dower is made by the Act of party as aforesaid The principal Case there And therefore if B. enfeoffes to the use of himselfe for life remainder of his wife for life upon condition to perform his last will and for her jointure albeit after the death of her husband she accepts thereof yet she is not bound by it â—â—â—nt-tenants â—etition 12 If two joint-tenants since the Stat. of 31 H. 8. 1. Co. l. 6. 12. b. Morrices Case which gives them a writ of partitione facienda do make a partition by déed with consent albeit they are now compellable by that Statute to make partition yet because they do not pursue the Stat. to make partition by the writ such partition remaines at the common law and so by consequent the warranty originally annexed to their Estate is gone but if they make partition by writ provided by the Stat. to which every one being party none can have any wrong by the operation thereof the warranty shall remaine notwithstanding such partition in severalty because the first is by the act of the parties but the other is operation of the Statute which is an act in law so also if there be two joint-tenants with warranty and the one disseise the other and the disseisée brings an Assise here albeit the Plaintiff pray recovery in severalty yet he shall recover generally and in this Case also the warranty shall be preserved because he recovers by course of Law and with this agrées 28 lib. Ass Pl. 35. and Sir Edw. Coke also ubi suprà albeit there be some Bookes that he shall have judgment to hold in severalty as 10 E. 3. 40. 10. Ass Pl. 17. Tâ—e Shewing 〈◊〉 a Deed â—â—â—a 13 When a déed is requisite to be had ex institutione juris C. l. 6. 38. b. 2. Bellamies Ca. it ought to be shewed in Court although it concerne a
hominis and it is as true Fortior aequior est dispositio Legis quà m hominis â—nt-tenants â—enants in Common Coperceners â—resentation â—dvowson 19 A joint-tenant or Tenant in common shall not have a Quare Impedit for the advowson which they have in jointure or in common F.N. B. 34. v. in Case one of them present alone against his companion that so presents but if two Coperceners cannot agrée in presenting the eldest sister shall have the first presentation and so shall also he have that hath her Estate and if either of them be disturbed by the other Copercener either of them shall have a Quare Impedit against the other sister And Coperceners and those who have their Estates shall present as Coperceners ought to do viz. the eldest first and then the second after her the third and so the rest in order according to their ages and the diversity betwéen joint-tenants or tenants in common and Coperceners ariseth from this ground because they are in by grant which is the act of the party but these are originally in by act in law 20 If an Abbot make waste in the Lands which he hath in ward F.N.B. 60. m. and dies the Successor shall not be charged therewith because his death is the Act of God it is otherwise if he be deposed for then the Successor shall be chargable with it because that is the Act of the party â—â—d Mesne 〈◊〉 Tenant â—rnment 21 If there be Lord Mesne and Tenant Co. Inst p. 1. 221. b. 4. Litt. §. 583. and the Lord grant by fine the services of his Tenant to another in fée here if the services of the Mesne be arreare the grantée shall not distraine the Tenant before attornment Howbeit if the grantée die without heire whereby the mesnalty escheats to the Lord Paramount in that Case if the services of the Mesnalty be arreare the Lord Paramount may distraine the Tenant without attornment because the grantée came to the mesnalty by the act of the party but the Lord Paramount comes to it by Act in Law 〈◊〉 entry in 〈◊〉 more adâ—tageous 〈◊〉 an entry 〈◊〉 Deed. 22 An actual entry into land is meerely the Act of the party Co. ib. 253. b. 4 and therefore is called an entry in déed and albeit a claime be also an Act of the party yet it is also mixt with force of Law and therefore it is called an Entry in Law and is not onely as forcible as an Entry in Déed but because it is as well an Act of Law as of the party it giveth the party a greater priviledge then an Entry in Déed doth for a continual claime of the Disseisée being an Entry in Law shall vest the possession and seisin in him for his advantage but never for his disadvantage and therefore if the Disseisée bring an Assise and hanging the Assise he make continual claime this shall not abate the Assise but he shall recover damages from the beginning but it is otherwise of an Entry in Déed â—â—nce in 〈◊〉 23 Vpon a Lease for yeares by indenture Dier 6. 28 H. 8. 1. c. the Lessée covenants and grants that if he his Executors or Assignes alien it shall be lawfull for the Lessor to re-enter and after he makes his Wife Executrix and dies the Feme takes a new husband who aliens In this Case some hold there is no breach of the Condition because the Baron is in by the Law and not Assignée of the Lessee as it is of Tenant by the Courtesie or Lord of a Villein but others hold the contrary ideo quaere Dier 45. 3. 31 H. 8. 24 A lease is made for term of yeares Devise of a Lease upon Condition that if the Lessée during his life assigne the term to any other without the Assent of the Lessor that then the Lessor may re-enter and the Lessée devised his term by his will to another without Assent c. And by Brooke and Hales this is a forfeiture because the Devisée shall be said to be in by the assignement that the Divisor made during his life but if the Executors had enjoyed the term that had béen no forfeiture because in that Case the Law makes the assignement Tamen quaere Co. Inst p. 1. 310. b. 3. 25 If a reversion of land be granted to an Alien by déed Attornment and before attornment the Alien is made denizen and then the attornment is made In this Case the King upon office found shall have the land for as to the Estate betwéen the parties it passeth by déed ab initio it is otherwise where land is granted to a mâ—n and a woman and they intermarie and then attornment is had for which Vide suprà Pl. 1. Dier 60. 22 23 36 H. 8. 26 There is a diversity Seisure of a villein where the body of a man in execution is set at liberty by authority of Law and when without authority as by the voluntary escape in a Sheriffe or the like For the Law saves all rights as in Case of a Villein to whom the Kings presence is a Sanctuary where the Lord cannot seise him howbeit afterwards out of his presence he may because the Law gives the Villain that priviledge pro tempore but if the Lord himselfe enfranchise him by manumission in déed or in Law for one hower he is frée for ever in favorem libertatis because that is the Act of the Lord himselfe So if a man be taken in execution and be suffered to escape by the Sheriffe this is an absolute discharge of the debt and the Plaintiffe is to have his remedy against the Sheriffe by action of debt Arrest of a Member of Parliament But if a Member of Parliament be arrested by a Sheriffe upon an execution and be afterwards fréed by the priviledge which the law gives him that is no discharge of the debt but that when he ceaseth to be a Member he may be arrested again upon the same judgement c. Dier 68. 24. in Kidwelleys Case 4 5 E. 6. 27 Where demand of Rent is to be made by the law as when no place is assigned for the payment thereof Demand of Rent the law it selfe is the place there it is not sufficient for the party to come to the land ad petendum redditum but he ought to bring witnesses with him and in their presence ought to make an expresse demand of the Rent upon the land as to say here I am and do demand such a Rent or the like albeit none be there present to pay the Rent But when the Rent is by the agréement of the parties payable out of the land the Lessor is not bound to demand it but the lessée is to tender it at his peril Dier 140. Pl. 39. 3 4 P. M. 28 A thing or action personal being once suspended though it be but for an hower is
like the Law imputeth it to the Laches and folly of the grantée that he will not perform the Condition while he may and believeth against him these and the like things done to his owne prejudice Co. l. 3. 65. b. 2. in Penuants Case 32 If he that hath a Rent-service or Rent-secke â—cquittance the last Rent accept the Rent due at the last day and thereof make an acquittance all the arrearages due before are thereby discharged and so it was adjudged betwixt Hopkins and Merton in that Common Place H. Rot. 950. Vide 10 El. Dier 271. But there the Case is left at large with this also agrées 11 H. 4. 24. 1 H. 5 7 6. But note that the barre to the avowrie ought to be with conclusion of judgment Si encounter cest fait d'acquittance il doit faire Avowry as appeares by the Record of 10 El. and he ought not to demand judgment si action Co. ib. 66. a. 4. 33 If there be Lord and Tenant by Knight-service A extance shall lose thâ— ward and the Tenant enfeoffe his son and heire within age by Collusion In this Case if the Lord accept the services by the hands of the feoffée he shall lose the ward for the Statute of Malbridge cap. 6. making such feofment by Collusion void and of no effect as to the Lord if the Lord will affirm the feofment and waive the benefit of that act by acceptance of the feoffée for his Tenant he shall thereby purge the collusion and therefore deserveth to lose the ward Co. l 4. 1. a. 2 b. 4. Vernous Case 34 B. enfeoffes to the use of himselfe for life jointure in hew of dower remainder to his wife for life with Condition to perform his last will and for her jointure and dies the wife enters agrées to it and after brings her writ of dower In this Case if after the death of the husband the wife accept of that conditional Estate such acceptance shall barre her from having dower for albeit dower at the Common Law in liew whereof a jointure is granted be an absolute Estate for life yet in as much as an Estate for life upon Condition is an Estate for life it is within the words and intent of the Statute of 27 H. 8. 10. to barre the wife of her dower if after the death of her husband she accept thereof So if the husband enfeoffe to the use of himselfe for life the remainder to the use of his wife durante viduitate for her jointure this is an Estate to her for life and cannot determine without her own Act and therefore a jointure also within the Statute if after the husbands death she accept thereof Co. l. 4 9. b. 2. in Bevils Ca. 35 If there be Lord and Tenant by fealty and Rent Rent-service made Rent-secke and the Lord grant over the fealty saving the Rent or if a man make a gift in taile or lease for life rendring Rent and grant over the reversion except the Rent in these Cases the nature of the Rent is altered by the parties owne Act and therefore the ancient seisin when it was Rent-service will not in such case suffice because by his own act the nature of the Rent is changed neither can he have for it an Assise as of a Rent-secke because he was never seised of any such Rent Co. l. 4. 11. b 2. in Bevils Ca. 36 If there be Lord and Tenant by fealty and two shillings Rent Rent by incroachment and the Lord by encroachment viz. by the voluntary payment of the Tenant happens seisin of more Rent then he ought to have the Tenant shall not in avowry avoid such seisin had by accroachment unlesse it be in some special Cases which sée ubi suprà â—â—â—ges irâ—â—â—able 37 If A. hath Rent-service or Rent-charge in fée or for life Co. l. 4. 50. b. 4. in Andrew Ogwels Case and the Rent is arreare and after A. grants over the Rent to another and the Tenant attornes and after A. dies his Executors are not within the branch of the Statute of 32 H. 8. 37. which gives power to Executors c. to recover Debt due to the Testator at the time of his death for by the grant over the arrecages were lost and were not due to the Testator at the time of his death And therefore when the Testator by his own Act in his life time had dispenced with the arrerages the said Act gives no remedy to recover them â—il revolâ— by maâ—e 38 If a Feme sole make a Will and after take Baron Co. l. 4. 61. a. 4. in Forse and Hemblings ca. this is a revocation thereof for the making of a Will is but the Inception thereof and it takes not any effect until the death of the Devisor because omne Testamentum morte consummatum est voluntas est ambulatoria usque ad extremum vitae exitum And therefore it being no perfect Will when she takes Husband and after marriage her Will being her Husbands and subject to it by taking Husband she hath wholy revoked the Will formerly made â—â—vise â—y â—â—â—nder 39 A. deviseth Land to B. till 800 l. be raised for the preferment of his daughters A. dies C. being heire conceales the Will Co. l 4. 82. b. 3. Sir Andrew Corbets Case and enters In this Case B. shall have allowance for the time that the Will was concealed and that time shall not be accompted parcel of the time for the levying of the money But if B. had surrendred to C. upon Condition and had entred for the Condition broken Co. l. 5. 13. b. 3. in the Countesse of Shrewesberies ca. that should have béen accounted parcel of the time for that was his own Act. 〈◊〉 40 At the Common Law before the Statute of Glocester cap. 5. 6 E. 1. no remedy lay for waste either voluntary or permissive against Lessée for life or yeares because the Lessée hath Interest in the Land by the Act of the Lessor and it was his folly to make such a lease and not to restraine him by covenant condition or otherwise from making waste And for the same reason it is that at this day Tenant at will shall not be punished for permissive waste but for voluntary waste he may according to Littleton fol. 15. 〈◊〉 â—â—â—der 41 A. demiseth the Mannor of D. to B. for 30 years Co. lib. 5â— 11. Ives Case except the under wood growing upon it and after demiseth the underwood to him for 62 years without impeachment of waste afterwards B. accepts a lease of 30 yeares of the Mannor after the exspiration of the first 30 yeares In this Case because the demise of the underwood did not sever it from the Mannor the intire franktenement notwithstanding such demise remaining still in the Lessor by his acceptance of the last lease for 30 years the former two leases were
the Guardian cannot lose the Wardship An Infant payes releif 3. Littleton saith Litt. S. 112. Co. ibid. 83. b. 4. That the heire of a Tenant by Knight-service ought not to pay releife untill his age of twenty one years yet in some case the Heire shall pay releif when he was within that age at the time of the death of his Ancestor As if a man holdeth Lands of the King by Knight-service in Capite and of a common person other Lands by Knight-service and dyeth his heire being within age here the King hath the Wardship both of body and Lands by his Prerogative untill the full age of the heire and therefore in this case the Heire though he be within age shall immediately pay releif to the other Lord for as the Law giveth away the Wardship to the King by reason of his Prerogative so doth it in respect thereof reserve to the other Lord all that conveniently may be reserved viz. his releif The Lord shall not have the body 4. A man seised of Land holden by Knight-service hath issue a Daughter who takes Baron and hath issue a Son Litt. S. 114. Co. ibid. 84. a. 3. the Tenant dyes and also the Mother in this case the Son shall not be in ward for his body living his Father but yet the Lord shall have the Wardship of the Land untill the full age of the Son for albeit in this case the Law doth give the custody of the body to the Father and barreth the Lord thereof yet the Lord shall have the Wardship of the Land by force of the tenure of the first creation thereof So it is also if the Father marry his heire within age and dyeth in this case also the Lord shall have the Wardship of the Land Co. ibid. 88. b. 3. 5. Where the Father is Guardian of his Son for Land holden in Knight-service this is in respect of his paternall naturall custody Father Guardian in socage accountable and therefore in such case he shall not be answerable for his marryage or custody of his Lands but where the Father is Guardian by reason of a tenure in Socage he must by Law be accountable to the Son both for his marriage and also for the profits of his Lands which he should not be if he had the custody of his eldest son in this case as his Father in respect of nature And because the Law doth appoint him to be Guardian in Socage it compels him also to be accountable for the act of Law doth never any man wrong Co. ibid. 134. b. 2. Anic super carta cap. 15. 28. E. 1. 6. Before the Statute of Articuli super cartas In reall actions fifteen dayes returne in all Summons and Attachments in Plea of Land were contained the terme of fifteen dayes and it appeareth not onely by that Statute but likewise by the ancient Authors of the Law who wrote before that Statute that this was the ancient common Law And the reason of giving so many dayes in reall Actions was the Recovery being so dangerous that the Tenant might the better provide himself both of answers and proofes Co. ibid. 132. b. 2. 7. If I be disseised and my Brother release with Warranty Descent upon Profession and is afterwards profest in Religion and thereby the Warranty descend upon me In this case albeit the Law binds me by the Warranty yet I being his heire the Law gives me by descent such Inheritance as my Brother had at the time of his Profession Co. ibid. 137. a. 3. Litt. S. 203. 8. Albeit by an act in Law a man may have damnum Profession dischargeth wardship yet in such case it is alwayes absque injuria as if a Ward enter into Religion and be profest hereby the Lord loseth the Wardship of the Land which may be said damnum for by such Profession the Ward is civiliter mortuus a dead man in the Law and cannot hold any Inheritance neither can the Guardian continue the Wardship of the land because by the civill death of the Ward the Inheritance is descended to another but this damnum is absque injuria for by such Profession the land descends to another who is either to be in Ward or to pay releif And therefore in such case the law giveth the Guardian no remedy neither by any formed Writ nor by Action upon the case Co. Inst pars 1. 138. a. 3. 9. If Tenant for another mans life by his Deed grant a Rent charge to one for twenty one years Cesty que vie dyeth A annuity good the land evicted hereby the Rent-charge is determined and yet the Grantee may have during the years a Writ of Annuity for the arrearages incurred after the death of Cesty que vie because the Rent charge did determine by the act of God and the course of law Actus Legis nemini facit injuriam So it is also if land out of which a Rent-charge is granted be recovered by an eyent title and thereby the Rent-charge is avoyed yet the Grantee shall have a Writ of Annuity because the Rent-charge is avoyded by the course of law and so it was holden in Wards case cited in Co. l. 2. fo 36. in Heywards case against an opinion obiter in 6 H. 6. 42. a. Vide Max. 114. Ex. 13. Co. ibid. 149. a. 1. 10. A. hath common of Pasture sans number in twenty Acres of land Common sans number not apportioned and ten of these Acres descend to A. the common sans number is intire and uncertaine and cannot be apportioned but shall remaine but if it had been a Common certaine as for ten Beasts in that case the Common â—â—â—dition shall be apportioned And so it is also of common of Estovers Turbary Piscary c. And it is to be observed that in none of these cases or the like the descent which is an act in Law shall worke any wrong to the Ter-tenant for neverthelesse he shall have thereby that which belongeth to him for the Act in Law shall never worke any wrong The like 11. Of Common or Corody certaine as for ten beasts Co. ibid. 164. b. 4. so many Dishes in certaine c. partition amongst Coparceners or Apportionment may be made for this can worke no wrong to the Ter-tenant But if a man have reasonable Estovers as House-boot Hay-boot c Appendant to his Free-hold they are so intire that they shall not be divided amongst Coparceners So likewise if a Corody uncertaine be granted to a man and his heirs and he hath issue diverse Daughters this Corody shall not be divided between them there is the same Law also of Common sans number for in these cases and the like if Estovers Common Piscary or Corody uncertaine should be partable amongst Sisters such partition would worke a wrong to the Ter-tenant Co. ibid. 165. a. 1. who should be opprest and over-charged thereby which the Law
such a Husband as would commit Waste But if a stranger commit the Waste without the consent of the Baron that is no Forfeiture because it cannot be then imputed to her folly Co. l. 4. 50. a. 4. in Andrew Ognels case 28. When a thing is due in right and truth Exposition of that and becomes remedilesse by no default in the party to whom it is so due but by the Act of God as by the death of the party or the like In such cases Acts of Parliament which are made to give remedy in such cases ought to have a favourable construction which may extend to advance the remedy proportionably to the mischeif and defect in Law Arrearages recoverable by Executors according to the meaning of the makers thereof And therefore if a man grants a Rent-charge out of his Land and after aliens the Land to a stranger who lets it at will to another the rent is arreare and the Grantee dyes In this case the Executors of the Grantee may distrain for the arrearages by the Statute of 32 H. 8. c. 37. And that the words of that Statute are That it shall be lawfull for the Executor c. to distrain for the arrearages c. upon the Lands so long onely as they remain in the Seisin or Possession of the Tenant in Demesne who ought immediatly to have paid the Rent or of any other claiming by and from him c. Here by the words of this Statute the Executors may onely distrain the Grantor or his immediate Grantee by and from being in the Conjunctive Yet in the case above they may distraine the Tenant at will and the word and shall be taken for or to the end the Lessee at will may be understood to derive his estate from him and so to be comprehended within the purview of that Statute for the reason above alleadged Clergy Appeale 29. By the Statute of 3 H. 7. c. 1. Holcrofts case alleadged in Wrote and Wigges case Co. l. 4. 46. b. An Appeale cannot be brought against the Felon after Clergy had but by consequence before Clergy it may And yet if a Felon be indicted and upon his tryall confesses the fact and prayes Clergy and the Iudges take time and will be further advised and then an Appeale is brought In this case the act of the Court to be advised as to the allowance of the Clergy shall not prejudice the party especially in case of life there being no default in him why he had not his Clergy when he prayed it Benefice Laps 30. If a Clerke be presented admitted and instituted Co. l. 4 79. b. 3. in Digbies case to a benefice with cure above the value of 8 l. and after and before induction to the first he accepts another benefice with cure and is thereunto inducted In this case the first is void by the Statute of 21 H. 8. for the words of the Statute are If any parson having one benefice with cure c. accept and take one other c. and he that is instituted to a benefice is sayd in Law to accept and have a benefice Howbeit although by such institution to the second benefice the first is void by the ecclesiasticall Law without any deprivation or sentence declaratory yet no laps shall in this case incur against the Patron without giving notice to him F. N. B. 35. h. no more then if the Church had become void by resignation or deprivation and yet the Patron may take notice thereof if he please and may present according to the said constitution but he is not bound to take notice thereof at his perill It is otherwise if he had been inducted for then he is to take notice at his perill because the avoydance after induction is declared by act of Parliament whereunto every one is party per Popham totam Curiam Co. l. 5. 13. b. The Countess of Salops case Waste Tenant at will 31. Tenant at will shall not be charged for permissive waste for it is not in his default but in the Lessors he having an uncertaine terme Emblements sowne 32. Tenant for life Remainder in fee Co. l. 5. 85. a. In Henry Knivets case the Tenant for life lets for years the Lessee for years is ousted and the Tenant for life disseised the Disseisor lets for years and his Lessee sowes the Land the Tenant for life dyes the Remainder in fee enters the Lessee of the Disseisor carries away the graine and the Remainder in fee brings an action of Trespasse And in this case it was adjudged that because the Lessee of Tenant for life could not know the end of his terme he had right to the Land and by consequence to the graine as things annexed to the Land and albeit by the death of the Tenant for life his Interest to the Land determined yet the Land being sowen before the death of the Tenant for life his right to the emblements remaines Execution of the body not valuable 33. Vpon a Iudgement in debt Co. l. 5. 86. b. 4. c. in â—lunfeilds case after the Plaintiff hath pursued an Elegit he cannot have a Capias ad satisfaciendum against the body because he hath made his election which he cannot waive so long as the Defendant lives neither yet can he have an Elegit after the party is taken upon a Capias ad satisfaciendum returned serv'd or after the Defendant is in Prison thereupon Howbeit if in such case the party dye in Prison which is the Act of God and can do no wrong the Plaintiff may have recourse to his Elegit or take some other course untill he be satisfied for his death is not the Plaintiffs fault So if there be two bound in an Obligation joyntly and severally and the Plaintiff hath Iudgement against them both and casts them both into Prison out of which one of them escapes and so the debt as to him is discharged and the Plaintiff is to have his remedy against the Sheriff Here albeit the debt seemes to be discharged against the other also because they were joyntly bound and it was but one intire debt yet the other remaining in Prison shall not have his Audita querela but shall there continue untill the whole debt and damages be fully satisfied because corporall Imprisonment is not valuable satisfaction of the debt and it was not in the Plaintiffs default that he did escape Co. l. 5. 10. a in Spencers case 34. Vpon a Writ brought by Journeys accounts A Writ by Journeys accounts Diversity if the first Writ abated by the default of the Demandant himselfe as by his mis-information of the name of the Tenant or of the Towne c. in such case the Demandant shall not have a Writ by Journeys accounts as the Books are in 48 E. 3. 21. 14 H. 4. 23. 22 H. 6. 62. 13 H. 4. Executors 118. But if the Writ abate by the default
and part against him or all or part against one of the Tenants or Defendants and nothing or but part against the other the Demandant or Plaintiff shall be amercied except no default be found in the Demandant or Plaintiff And therefore in Trespasse of Battery against Baron and Feme supposing the Battery to be done by both and the Feme is onely found guilty c. and the Baron acquit yet the Plaintiff shall not be amercied for the Plaintiff cannot have any other Writ in such case and therefore because no default was found in him he shall not be amercied in this case The Kings ward dyes before homage 42. The Kings Tenant in Capite under age is to remaine in Ward Co. l. 8. 172. a. Hales case Prerogativa Reg. cap. 3. and the King is to receive the profits of his land untill he do his homage and that cannot be untill he have sued out his Livery And if at his full age he tender his Livery he is to have three moneths to perfect it Howbeit if after such tender by the Act of God viz. death he is prevented to perfect it the King shall not receive the profits after such tender but the next heire shall have them and after such tender he might in that case sell the Land or any part thereof and the sale shall be good notwithstanding the Kings hands upon it Co. l. 9. 87. a. 4. in Pinchons case 43. It is a Rule in Law Where wager of Law in the Testator Executors not chargeable that where the Testator might have waged his Law his Executors shall not be charged with that duty contra because that advantage is lost by the act of God viz. by death and therefore shall not be imputed to any default of his So debt lyeth not against Executors for the dyet of their Testator because he might in that case have waged his Law and so have freed himselfe thereof which advantage being lost by his death and no fault of his his Executors who represent his person shall not be prejudiced thereby Howbeit if a Prisoner in the Tower for treason receive his diet of the Lievtenant and dye the Lievtenant shall have an Action of debt against his Executors for such diet of the Testator and the reason is because in that case the Testator could not in his life time have waged his Law as it is adjudged in 27 H. 6. 4. b. in Thomas Bodulgats case And the reason why no wager of Law lyeth in such case is because every Goaler ought to keep his Prisoner in salva arcta custodiae and so must of necessity finde him victualls c. Vide pl. ibid. Co. ibid. 87. b. 4. 44. In 14 H. 6. 19. b. R. G. brings a Writ of debt of ten marks against T.T. and others Executors of W. W. and counted The like that the Testator had retained the Plaintiff to be with him for a yeare in the art of limming of Books paying him ten marks per annum and there Martin held that the Action of the Executors was not maintainable And he took a difference betwixt this case of a Limmer and that of a common Labourer for a Labourer shall be compelled to labour and his salary is put in certaine by the Statute and therefore there is no reason that the Servant should lose by the death of his Master being bound by the Law to serve which shall not be said to be his default but the Act of God and the Law Howbeit in the case of a Limmer he was not compelled by the Law to serve And so when he made the Covenant it was his owne act and folly and no act in Law and he might have taken a Specialty And this is good Law but the true reason of that difference is because in the Case of a common Labourer the Testator could not wage his Law but in that of a Limmer he might c. Vide pl. ibid. Co l. 10. 76 b. 2. in the case of the Marshalsey 45. If the Court of Common Bench in Plea of debt award a Writ of Capias against a Duke Earle Erroneous arrests c. which by the Law lyes not against them and this appeares in the Writ it selfe yet if the Sheriff arrest them by force of the Capias albeit the Writ is against Law neverthelesse the Court having Iurisdiction of the cause the Sheriff shall be excused because there is no default in him but in the Court and with this accords 38 H. 8. Dyer 60. b. So it is likewise if a Iustice of Peace makes a warrant to arrest one for Felony who is not indicted albeit the Iustice ers in the Warrant yet he that makes the arrest by force of that Warrant shall not be punished by a Writ of False Imprisonment because is is not his fault but the Iustices who is Iudge of the cause and with this agrees 14 H. 4 16. Co. l. 11. 27. a 3 in Henry Pigots case 46. If the Obligee himselfe alter the Obligation in any point materiall or not materiall by interlining addition racing or the like An Obligation void or not void by rasure c. that shall make the Obligation void but if a stranger do it without the Obligees privity in a point not materiall that shall not avoid the Deed as if an Obligation be to be made to the Sheriff for apparance c. and in the Obligation after the sealing and delivery thereof these words Vicecom Comit. Oxon are interlined by a stranger without the privity of the Sheriff yet the Obligation remaines good notwithstanding such interlining by a stranger without the Obligees privity in regard it was not conceived to be a point materiall Benedicto Winchcombe his name and sirname being there inserted before and being done by a stranger it shall not in that case prejudice the Obligee Refusall of Clerk 47. Where the Bishop refuseth the Clerke of the Patron for non-ability or crime he shall not present by Laps F. N. B. 35. i. unlesse he have first given notice to the Patron of the insufficiency of his Clerk the Patron neglect to present within the six moneths for in such case after the six months past the Patron shall have a Writ to the Bishop if the Church be void and the Bishop have not in the meane time collated 48. If one sell another a peice of Cloath and warrant it to be of a certaine length in this case if the peice be not of that length F. N. B. 98. k. a Writ of Disceit lyeth against the Vendor albeit the Warranty be but by Parol Custome of Woad uncertaine by tempest 49. In Fogassaes case in the Coment Pl. Com. â— b. 1. in Fogassaes case the storme at Sea being a thing that could by no possible meanes be prevented and that causing the uncertainty of the quantity of the Woad and there being no meanes of knowing the certainty thereof
before it should be landed and weighed and that uncertainty being caused by no folly in the Defendant Fogassa there was great reason he should be excused and not made lyable to forfeit the Woad albeit he had not observed the strict words of the Statute in that case Rent-charge pro consilio impendendo 50. If a man hath a Rent-charge granted him Pro consilio impendendo Dyer 2. 2. 6 H. 8. and afterwards he is attainted of Treason and cast into Prison so as the Grantor cannot have accesse to him for his counsell yet he shall have the Rent during his Imprisonment for he may give counsell as well in Prison as at large and there is no fault in him that the Grantor came not at him A Sheep-biter 51. If a man hath a Dog that kills Sheep Dyer 25. b. 163. 28 H. 8. the Master of the Dog being ignorant of the Dogs condition he shall not be punished for it It is otherwise if he had notice of the Dogs condition and quality for then it may be imputed to his own folly and neglect See also Dyer 29. 195. 28 H. 8. Repaire of River-bankes 52. A Lease was made of a Meadow bordering upon the River of Exe in Devon by Deed indented Dyer 33 10. 22 29 H. 8. and the Lessee covenanted to sustaine and repaire the Banks of the River in paine of ten pounds and afterwards by reason of a sudden floud upon subversion of certaine Weares in Devon the Banks were decayed and perished c. and by the opinion of Fitz. and Shelley the Lessee shall be excused from the Penalty as if it had been of an House that had been burnt by lightning or thrown down by tempest which are the act of God and cannot be resisted Howbeit in this case he ought to repaire the Banks in convenient time Act of God 53. A man makes a Lease for years of Land and a stock of Sheep Dyer 56. 15. 35 H. 8. rendring rent and all the Sheep dye In this case the rent shall be apportioned because it was the act of God and no default or neglect of the Lessee Bond eaten with Mice 54. In debt upon an Obligation Dyer 59. a. 12. 36. H 8. if after non est factum pleaded and entred the Labels by the negligence of the Clerke are eaten off with Mice it seems this shall not prejudice the Obligee because it did not happen by his default Descent a totall Entry 55. A man being beyond Sea out of the Realme is disseised Dyer 143. 57. 3 4. P. M. and after he returnes into the Realme and then departs out againe during which time there is a Descent cast In this case if it cannot be proved that he had notice of the Disseisin when he was in the Realme it seemes this Entry is not taken away for by intendment of Law he could not have notice of the Disseisin at the time when it was done So if an Infant be disseised and at his full age he goes beyond Sea or takes Baron or is imprisoned during which time there is a Descent his Entry shall be taken away for this Laches after his full age but if he were within age when he did such an act it shall be otherwise Dyer 241 50 8 El. 56. Undue practise A Capias ad satisfaciendum returnable Tres Trin. being not served the Solicitor of the Plaintiff takes it againe of the Sheriff and one of the Prothonotaries Clerks makes the Tres Trin. Tres Mich. and then the Solicitor re-delivers it to the Sheriff unsealed viz. to the Sheriff of London who makes Warrant thereupon to a Serjeant who arrests the Defendant and afterwards the Writ is sealed And in this case albeit the offenders for this undue practise were committed to the Fleet yet afterwards it appearing upon examination that the Plaintiff was ignorant of the practise the Writ was received and the Defendant committâ—d also to the Fleet in execution Dyer 260. 24. 9 Eliz. 57. Partition against two the one confesses the Partition Partition and the other pleads to Issue and in the Record of Nisi prius the name of the Defendant was omitted by the negligence of the Clerk being written praedictus similiter without more Also the Iury was betwixt the Plaintiff and both the Defendants whereas one of them was not party to the Issue which errors being apparent were amended by the dirâ—ction of the Iustices of Nisi prius quod nota and so the Iury taken Dyer 318. 10. 15. El. 58. The Earle of Kent being reputed but an Esquire The Earle of Kent brings a Writ of Entry by the name of Esquire and the Pannell was returned now by the Heralds he was then newly declared Earle and thereupon he challenged the Array because there was no Knight in the Pannell but it was not allowed for that there was no default in the Sheriff he being commonly reputed an Esquire 150. Nemo debet rem suam sine facto vel defâ—ctu suo amittere Litt. S. 442. Co. Inst pars 1. 262. b. 1. If a man be disseised and he arraigne an Assize against the Disseisor and the Recognitors of the Assize chaunt for the Plaintiff An Assize and the Iustices of Assize will be advised of their Iudgement untill the next Assize c. and in the Interim the Disseisor dyes seised In this case this dying seised shall not toll the Entry of the Disseisee because the bringing of the Assize amounted to a continuall claime and Nemo debet rem suam sine facto vel defectu suo amittere Note that this is a Quaere in Littleton but is since adjudged for good Law Vide supra M. 149. Ex. 17. Litt. S. 443. Co. ibid 263. b. 1. c. 2. If an Abbot dye and during the vacation Descent tolls not Entry a man tortiously enters into part of the Land belonging to the Monastery and dyes thereof seised and afterwards a new Abbot is elected this Descent shall not toll the Entry of the new elected Abbot because this Entry and Descent was not occasioned by any act or default of or in the new Abbot the Land being during the vacation in abayance and custody of the Law and for that by the death of the former Abbot which is the act of God there was no person able to make continuall claime This is also a Quaere in Litt. It is so likewise of Dean and Chapter Mayor and Comonalty Master and Fellowes of a Colledge or any other Corporation aggregate of many where such a Descent happens when they want their head viz. Dean Mayor Mastor c. for then they are not in a capacity to make claime Also if an Vsurpation to a Church be had in time of Vacation this shall not prejudice the Successor to put him out of Possession but that at the next avoydance he shall present Litt. S.
the King by the Charter of the 11 of E. 3. or by Act of Parliament confirming that Charter was because there were divers priviledges granted him which could not possibly be granted by Charter but must of necessity be by Act of Parliament Vide. pl. ibid. Melius inquiâ—â—d 18. A Melius Inquirendum to find what Land I. S. held of King James at the time of his death Co. l. 8. 168. a. 4. in Paris Sloughters case being in the 40 year of Queen Eliz. shall be quasht for the impossibility thereof for it is impossible that I. S. should hold any Land of King James in the 40 yeare of Queen Eliz. he being then King of Scotland 156. Non cogit ad Impossibilia Impotentia excusat Legem Shewing a Deed. 1. If a Deed remaine in one Court it may be pleaded in another Court without shewing it forth Co. Inst pars 1. 231. b. 4. because he cannot have it out of the other Court and Lex non cogit ad impossibilia vide Co. l. 5. 74. b. 4. in Wymarks case Claime 2. Regularly Litt. S. 434. Co. ibid. 258. a. 3. where a man doth lesse then the commandment or authority committed to him there the commandment or authority being not pursued the Act is void and where a man doth that which he is authorized to doe and more there it is good for that which is warranted and void for the rest yet both these rules have divers exceptions and amongst the rest this for one that if a man be sick that he cannot go to the Land nor any part thereof to make his claime and he commands his Servant to do it and the Servant dare not go to the Land for feare of some bodily hurt in this case if the Servant go as neere the Land as he dare and there make claime for his Master that shall suffice albeit his Master bade him go to the Land because Impotentia excusat legem for seeing the Master cannot and the Servant dare not enter into the Land it sufficeth that he come as neere the Land as he dare Descent 3. Descent shall not take away Entry of a man in Prison at the time of the Descent cast because he could not make continuall claime Litt. S. 436. Co. ibid. 259. a. 2. when he was in Prison being there kept as it is presumed in Law in salva arcta custodia without intelligence of things abroad Descent 4. A Descent cast during the vacation of an Abbey Litt. S. 443. Co. ibid. 263. b. 2 shall not take away the Entry of the next Successor because seeing by the death of the Abbot which is the Act of God no person is able to make continuall claime therefore a Descent during that time shall not prejudice the Successor for Impotentia excusat legem Co. l. 5. 22. a. 3. in Laughters case 5. Where the Condition of an obligation is in the disjunctive Condition disjunctive viz. for the Obligor either to do one thing or another and both the things possible at the time of the delivery and afterwards one of them becomes impossible by the Act of God in this case the Obligor is not bound to perform the other for Impotentia excusat legem Co. l. 5. 115. a. 3. in Wades case 6. If a man be bound to pay 40000 l. at such a day Tender of money if he tender it in baggs it is sufficient for it is not possible it should be numbred within the compasse of one day Co. l. 6. 21. b. in Butler and Goodalls case 7. Lawfull Imprisonment without Covin Non-residence the want of a Parsonage House and sicknesse without fraud when the Incumbent by the advice of his Phisitian removes for better aire or the like are good excuses for non-residence against the statute of 21 H. 8. cap. Co. l. 8. 172. Hales case 8. If the Heire holding of the King by Knights Service tender his Livery that includes tender of Homage Tender of Livery and therefore after such tender he may sell any part of his Land and if he dye after tender and before Livery sued out the King shall not have the profits of his Lands longer then to the time of the Tender because by his death which is the Act of God the shewing out of his Livery is become impossible and Impotentia excusat legem Co. l. 3. 73. a. 1. in Doctor Husseyes case 9. A Feme Covert is not within the Statute of Westminst 2. cap. 39. Ravishment of Gard VV. 2. c. 39. concerning Ravishment of Ward for the Law that disables her to have any thing wherewithall to satisfie the value of the Marriage doth also free her from the punishment of Banishment and Imprisonment because it is impossible she should satisfie it when she hath nothing to do it withall for Lex non cogit ad impossibilia c. vide Max. 34. Co. l. 10. 139. b. 3. in Knightlies case 10. If a man be bound to repaire a Wall against the flowing of the Sea if it fall into decay by his default and negligence Wast a wall of the sea he shall be solely charged with the repaire thereof but if it be overthrown or endamaged by the violence of the water without his fault by the Stat. of 23 H. 8. they are to be equally charged who have losse by it for Impotentia excusat Legem vide Pl. ibid. 157. It disfavoureth Falshood Fraud and Covin Vide Dyer 294. 8. Co. Inst p. 1. 17. b. 3. 1. A man hath as absolute ownership and property in an Advowson Advowson how pleaded as he hath in Lands or Rents yet he shall not plead that he is seised thereof In Dominico ut feodo because that Inheritance savouring not De domo cannot either serve for the sustentation of him or his Houshold neither can any thing be received for the same for defraying of charges and therefore he cannot say that he is seised thereof In Dominico suo de feodo Whereby it appeareth how the Common Law doth detest Symmony and all corrupt Bargaines for Presentation to any Benefice but that Idonea persona for the discharge of the cure should be presented freely without Expectation of any thing nay the Common Law is so cautelous in this point that the Plaintiff in a Quare Impedit should recover no Damages for the losse of his Presentation untill the Statute of Westminster 2. cap. 5. And that is the reason that Guardian in Soccage shall not present to an Advowson because he can take nothing for it whereof to make Account for by the Law he can meddle with nothing that he cannot account for So in a Writ of Right of Advowson the Patron shall not alledge the Explees in himselfe but in the Incumbent For which Reasons of an Advowson a man shall plead that he is seised De advocatione ut de feodo jure
cases agitur civiliter and not criminaliter and verba accipienda sunt in mitiori sensu Also the Innuendo will not serve when the words themselves are not slanderous Co. l. 6. 6. a. Sir Iohn Molyns case 5 E. 3. is Lord the Abbot of Westm Mesne Tenure and C. tenant of the Manor of D. the tenant is attainted of treason and office thereof found E. 3. grants the Manor to Sir Iohn Molyns and his heirs Tenendum de nobis haeredibus successoribus nostris et aliis capitalibus dominis feodi illius per servitia inde debita de Iure consueta In this case the question was of whom and how this Manor was holden And here albeit it was objected that the Tenendum being by the services inde thence due at which time nothing was due to the Mesne the Mesnalty continued still extinct and therefore that it was holden immediately of the King yet it was adjudged that by those words of the Patent the Mesnalty was revived for when those words may be interpreted two manner of wayes viz. either immediately of the King or mediately by the Mesne reason requires that the words should be understood in the milder sence especially when that appears to be the Kings intention and tends more to his honour and it is not reasonable that the Mesne who offended not should lose his tenure Co. l 6. 6. b. Wheelers case 6 H. 8 grants land Tenure Tenendum de nobis et haeredibus nostris per servitium unius Rosae Rubeae Annuatim ad festum Nativitatis Sancti Iohannis Baptistae solummodo pro omnibus omnimodis aliis servitiis And this was adjudged tenure in soccage in Chief and not tenure in Capite by Knightservice for albeit it was objected that the patentée could not hold onely by the Rose because homage or at least fealty was incident to every tenure and therefore that the King was deceived in his grant yet it was resolved that for as much as fealty is incident to every rent service the Law annexeth fealty to the rent and these words viz. Pro omnibus aliis servitiis are to be understood of other services which the Law doth not imply or add to it so as the tenure shall be by a Rose and fealty and this is the benign construction of Law as near the Kings intention as may be by which construction the said words pro omnibus aliis servitiis have some effect and shall not be rejected as vain and of no force Co. l. 6. 66. b. Sir Moyle Finches case 7 When a Manor hath once had the reputation of a name Name in reputation by which it hath been commonly known albeit the demesnes be afterwards severed from it so as it ceaseth to be a Manor yet in grants fines or other amicable conveyances it may pass still by the name of a Manor but not in Adversary writs c. so if I have a Park by the license and grant of the King and by the name of a Park it is commonly known and after I surrender my patent to the King by which in Law it remains no longer a Park yet it having once obtained the name of a Park in truth it is a good ground for the reputation and continuance of the name of a Park afterwards and by that name may pass in conveyances And all this by a favourable construction of Law c. Remainder vests 8 If land be granted to A. for life the remainder to B. for life Pl. Co. 32. a. 2. in Colthrist Beinshâ—ns case and if B. die living A. that then it shall remain to C for life In this case this word then shall not be intended presently during the life of A. as these words prima facie do seem to import but they shall have a beneficial construction viz. that then it shall remain as a remainder ought to doe that is to say to vest then and to be executed after the death of A. So if a gift in tail be made upon condition that if he doe such an act that then the land shall remain to his right heirs this word then is not so to be understood as if it should avoid the estate tail and to be executed presently upon the act performed but it is to be intended that upon the act performed the remainder shall vest and after the estate ended shall be executed and not before 189. Construeth things according to Common possibility or intendment And therefore Judges 1 Regularly Iudges ought to adjudge according to common intendment of Law Co. Inst part 1. 78. b. 1. Parson 2 By intendment of Law every Parson or Rector of a Church is supposed to be resident on his benefice unlesse the contrary be proved Vide 2 3. Manor 3 By common intendment one part of a Manor shall not be of another nature than the rest A Will. 4 By common intendment a Will shall not be supposed to be made by collusion BonuÌ„ Vicinus Possibilia 5 In facto quod se habet ad bonum malum magis de bono quam de malo lex intendit Lex intendit vicinum vicini facta scire Nulla impossibilia aut inhonesta sunt praesumenda vera autem et honesta et possibilia Guardian Ward 6 Lex semper intendit quod convenit rationi As in this case the Guardian shall have the custody of the land until the heir come to his full age of one and twenty years because by intendment of Law the heir is not able to do Knight service before that age which is grounded upon apparent reason Iurors 7 By the Common Law in a plea real mixt or personal Co. ibid. 157. a. 1. 158. b. 2. there ought to be 4. of the Hundred where the cause of action ariseth returned for their better notice of the cause for vicini vicinorum facta praesumuntur scire Howbeit by the Statute of 27 Eliz. 6. In a plea personal if two Hundreders appear it suffiseth And in an Attaint albeit the Iury is double yet the Hundreders are not double Fee-simple 8 When a man is said to be seised in fee without more Co. ibid. 189. a. 2. Littl. §. 293. it shall be intended in fee simple and it shall not be intended by this word in fee that a man is seised in fee tail unless this addition be put to it fee tail for fée shall be taken secundum excellentiam for the highest and best fee and that is fee simple Verdict 9 If a verdict find that a man hath duas partes Manerii Co. ibid. 190. b. 3. c. in tres partes divisas this shall not be intended to be in common but if the verdict be in tres partes dividendas then it séems that they are tenants in Common by the Intendment of the verdict Co. ibid. 226. a. 1. 10 The Lord by escheat albeit his
Law since the making of the same Act did in the said 12 year of E. 4. give judgment that in such case an estate tail should be barred And in Scholasticaes case in 12 Eliz. Pl. Com. 403. it was not thought fit to stand with the honour and gravity of the Court that the question concerning the restraint of a Common recovery which had béen so often debated and resolved should be once moved Vide supra 6. Co. l. 11. 87. a. 3. in the case of Monopolies 9 The Queen grants to one of the Privy Chamber the only making Monopolies and importation of Cards This was adjudged a Monopoly and therefore void and one of the reasons was because the grant was primae Impressionis for no such was ever seen to pass by Letters Patents under the Great seal to that very day And therefore because it was a dangerous Innovation without president or authority of Law or Reason and the Queen deceived in their grant it was adjudged void Dyer 135. 15. 3 4. P. M. 10 A Dedimus Potestatem was granted to Iustice Saunders to receive an Attorney for the defendant in a Quid juris clamat Quid juris clamat but because there could be found no former president for it it was with much difficulty and after long debate allowed by the Iudges and that upon great necessity and weakness of the party 205 Communis Error facit Jus. Co. Inst 1. 52. b. 2. 1 In a deed of feoffment beginning with Omnibus Christi fidelibus Livery by Attorney c. or Sciant omnes per praesentes c. or the like a Letter of Attorney may be contained for one continent may contain divers deeds to several persons But if it be by indenture between the feoffor on the one part and the feoffee on the other part there a Letter of Attorny in such a deed is not good unless the Attorney be made a party in the deed indented howbeit because it hath been commonly used to insert it in the Indenture without making the Attorny party thereunto it hath been permitted to pass but the other way is safest and more legal Communis Error facit Jus. Co. l. 6. 67. a. 4 in Sir Moâ—â—â—inches case 2 Where it is required by the Statute of 1 H. 5. 5. that in every writ original c. in which Exigent shall be awarded Additions Stat. 1 H. 5. Additions should be given to the defendants of their estate degree mystery c. It so fell out that one who was by birth but a Yeoman was commonly called Gentleman And in that case in such a writ brought against him he may have the Addition of Gentleman albeit in truth he is no Gentleman but only by vulgar reputation for in as much as the intention of the Act is that he should have such a name by which he may be known it is sufficient to satisfie the Act of Parliament for Communis error c. 206 So doth a Custom which is reasonable unreasonable contra Co. Inst â—pars 1. 59 b. 4 1 Of fines due to the Lord by the Copyholder Copyhold fines some be by the Change or alteration of the Lord and some by the Change or alteration of the tenant the change of the Lord ought to be by the act of God otherwise no fine can be due but by the change of the tenant either by the act of God or the act of the party a fine may be due for if the Lord do challenge a Custom within his Manor to have a fine of every of his Copyholders of the said Mannor at the alteration or change of the Lord of the Mannor be it by alienation demise death or otherwise This is a custom both against the Law and Reason as to the alteration or change of the Lord by the Act of the party for by that means the Copyholders may be oppressed by multitude of fines by the Act of the Lord But when the change groweth by the Act of God there the custom is good as by the death of the Lord And this was resolved upon a Case in Chancery by all the Iudges and Serjeants of Serjeants Inn in Fleetstreet Trin. 39 Eliz. and so certified into that Court But upon the change or alteration of the Tenant a fine is due unto the Lord because that custom is reasonable 2 Of fines taken of Copyholders some be certain by custom and some be uncertain The like but that fine although it be uncertain Co. ibid. yet ought it to be rationabilis and that reasonablenesse shall be discussed by the Iustices upon the true circumstances of the Case appearing unto them And if the Court where the cause dependeth adjudgeth the fine exacted unreasonable then is not the Copyholder compellable to pay it And so it was adjudged P. 1 Iac. C. B. rot 1845. for all excessiveness is abhorred in Law 3 In former times it hath been doubted whether or no if a Copyholder had béen ousted by his Lord Copyhold custom he might have any other remedy therein than only to sue to his Lord by petition for it seems Co. ibid. 60. b. 3. Littl. §. 77. that if the Copyholder might have any other remedy he could not be properly said to be Tenant at the Will of the Lord according to the Custom of the manor But Magistra rerum experientia hath made this cléer and without question that the Lord cannot at his pleasure put out the lawful Copyholder without some cause of forfeiture and if he do the Copyholder may have an Action of Trespasse against him For albeit he be tenens ad voluntatem Domini yet it is secundum consuetudinem manerii And Britton saith speaking of these kind of Tenants Et ascuns gents sont qui tout franks de sank et tenent terre de nous en villeynage et sont proprement nos sokemans Britton fo 163. Co. ibid. 140. a. 3. et ceux sout priviledges en ties manere que nul ne les doit ouster de tiels tene ments taut come ils font les services que a lour tenements appendant et nul ne poit lour services accressre ne changer a faire autres services ou plus autrement que ils ne solaient And herewith agreeth Sir Robert Danby Cl. Inst of the C. Pl. M. 7 E. 4. 19. and Sir Thomas Brian his Successor M. 21 E. 4. 80. That the Copyholder doing his customs and services if he be put out by his Lord shall have an Action of trespasse against him Consuetudo 4 Consuetudo contra rationem introducta potius usurpatio quam consuetudo appellari debet Again Co. ibid. 113. a 4. Consuetudo ex certa causa rationabili usitata privat communem Legem And Consuetudo praescripta et legitima vincit legem Villeinage fine to mary 5 All customs and prescriptions that are against reason are void Co. ibid. 139. b. 4. Littl.