Alien Enemy it is a good plea in both Abjured persons 19 A person abjured is dis-abled to sue any Action Co. Inst 1. 128 a. 4. for that he is extra Legem and yet he cannot be properly said to be Out-lawed 90 As concerning the ages of Infants the Law ordereth them in this manner Seven for the Lord to have aid for the marriage of his eldest daughter of that age Nine Litt. §. 36. for a woman to deserve her Dower Twelve for a man to take the Oath of Allegiance in a Turn or Leet and also to binde a woman in matter of Marriage Fourteen the age of discretion and therefore that a competent age to binde the man in matter of Marriage for a Ward in Soccage to chuse his Guardian and for a woman to be out of Ward to the Lord by Knight-service Fifteen for the Lord to have Aid to make his eldest Son of that aâ—e a Knight Seventeen for an Infant Executor to be out of the tuition of Administrators Eighteen for an Infant to have power to make a Will One and twenty their full age to make good any Act they do and for a man to be out of Ward to the Lord by Knight-service Co. Inst p. 1. 33. a. 3. 1 A wife whether she be so de facto Nine years old to have dower or de jure if she be of the age of nine years at the time of the death of her husband shall be indowed of what age soever her husband be viz. although he be but four years old c. And she must be so old at least to have Dower Quia junior non potest dotem promereri neque virum sustinere hec obstabit mulieri petenti minor aetas viri wherein it is to be observed that albeit Consensus non concubitus facit Matrimonium and that a woman cannot consent before twelve nor a man before fourteen yet this inchoate and unperfect marriage from which either of the parties at the age of consent may dis-agree after the death of the husband shall give Dower to the wife and therefore it is to be accounted in Law after the death of the husband legitimum matrimonium a lawful marriage quoad dotem And in that Case the Bishop upon an Issue joyned in a writ of Dower Co. ib. a. 4. Quòd nunquam fuerunt copulati legitimo matrimonio ought to certifie that they were coupled in lawful marriage albeit the man were under fourteen and the wife above nine and under twelve Co. ibid. 2 If a man taketh a wife of the age of seven years The wife of 〈◊〉 yea endowed after alienation and after alien his Land and after the alienation the wife attaineth to the age of nine years and after the husband dieth In this Case the wife shall be indowed for albeit she was not absolutely Dowâ—ble at the time of the marriage yet she was conditionally Dowable viz. if she attained to the age of nine years before the death of the husband for so Littleton saith § 36. So that she passe the age of 9 years at the death of her husband because by his death the possibility of Dower is consummate So likewise if the Son endow his wife at her age of seven years ex assensu patris if she before the death of her husband attain to the age of nine years the Dower is good c. Co. ib. 78. b. 3. Britt 168. b 3 The reason wherefore the Law gave the Marriage of the heir-female to the Lord if she were within the age of fourtéen Marriage oâ— heir female under 14. and that she should not marry her self appears in Antiquity viz. Pur ceo que les heires females de nostre terre ne se mariassent a nos enemys donc il nous convica droit lour homage prendre si elles se pussent marier a lour volunte c. This is a special age for an heir female to be out of Ward if she attain to it in the life-time of her Ancestor for at that age she may have a husband able to do Knight-service c. Ages assigned to the male 4 A man by the law for several purposes hath divers ages assigned unto him Co. ib. 78. b. 3 Fitz. 82 b. viz. twelve years to take the Oath of Allegiance in the Turn or Léet fourtéen to consent to Marriage fourtéen for the heir in Soccage to chuse his Guardian Co. ib. 78. b 2. and fourtéen is also accounted his age of discretion fiftéen for the Lord to have aid pur fair fife Chivaler under 21 to be in Ward to the Lord by Knight-service Co. l. 6. 70. b. 4 in the Lord Darcies Case Co. l. 9. 72. b. 3. in Doctor Husseys case under fourtéen to be in Ward to Guardian in Soccage fourtéen to be out of Ward of Guardian in Soccage and 21 to be out of Ward to Guardian in Chivalry and likewise to alien his lands goods and chattels Also a woman hath seven Ages for several purposes appointed to her by law To the female as seven years for the Lord to have aid pur file marier nine to deserve Dower twelve to consent to Marriage until fourtéen to be in Ward fourtéen to be out of Ward if she attained thereunto in the life of her Ancestor sixtéen for to tender her Marriage if she were under fourtéen at the death of her Ancestor which was granted by the Statute of West 1. cap. 2â— and 21 years to alienate her Lands Goods and Chattels Fitz. 82 b. 149 l. An Infants Will. 5 An Infant when he shall have attained the age of eightéen years Co. ib. 89. b. 2. may make his Testament and constitute Executors for his Goods and Chattels Unequal partition 6 If Perceners of full age of lands in Fée-simple make an equal partition she that hath the least part is bound for ever Co. ib. 170. a. 3 Litt. §. 255 as well as in case of an unequal exchange And if the unequal partition be of lands in tail she that hath the worst part is bound for her life but her issue shall avoid it c. No power to grant before 〈◊〉 Bailiff Receiver Iâ—quest Wager of law 7 The Law hath provided for the safety of a man womans Estate Co. ib. 171. b. 3 Litt. §. 239. that before their age of twenty one yeors they cannot binde themselves by any Déed or alien any lands goods or chattels before which age a man or woman is called an Infant Likewise if before that age he be made a Bailiff or receiver to another he is not chargeable in accompt neither yet can he under that age be put upon an Inquest c. nor make his law of non-summons nor in an action of Debt according to the Maxime Minor jurare non potest yet the husband and wife of full age for the debt of the wife before the
Coverture shall make their law And also an Infant when he is of the age of twelve years shall take the Oath of Allegiance to the King in the Turn or Léet and this was as Bracton saith secundum leges sancti Edvardi But indéed such was the Law in the time of King Arthur c. Baron and Feme Infants 8 If husband and wife be both within age Co. ib. 337. a. 3 and they by déed indented joyn in a Feoffment reserving a rent the husband dieth the wife may enter or have a Dum fuit infra aetatem But if she were of full age she shall not have a Dum fuit infra aetatem for the non-age of her husband albeit they be but one person in law Infant execut 9 An Administration durante minore aetate at the age of seventéen years of the Infant Co. l. 5. 29. b. Princes case executor ceaseth before which age he cannot assent to a Legacy c. Howbeit if Feme be such an Executrix and she before seventeen take Baron of full age the Administration also in that Case ceaseth because then the Baron is able to administer as executor c. â—ge of the â—â—eir female 10 At the Common Law the full age of the heir female was fourtéen as appears in 35 H. 6. 52. and Litt. 22. Co. l. 6. 70. b. 4. in the Lord Darcies case and if she were of the age of fourtéen at the death of the Ancestor she could not be in ward and if within that age she was to have livery at that age c. but now by the Statute of VVest 1. cap. 22. if she were under 14 at the death of her Ancestor she shall be in ward till sixtéen for the Lord to tender marriage and upon refusal to have the benefit of those two years but not to have any forfeiture of Marriage c. Co. ib. l. 9. 72 b. 3. in Doctor Husseys case 11 The Statute of Merton cap. 6. Anno 20. H. 3. Merton cannot extend to the heir female because it saith 14 ultra and ultra terminum aetatis suae de 21 c. which words must be understood of the heir male and not of the heir female because twelve is the age limited for the heir female to give consent to marriage but fourtéen for the heir male and therefore that Statute gives a forfeiture in case of refusal of Marriage upon tender to the heir male c. Co. Inst p. 1. 78. b. 3. 12 By the Civil Law the full age of a man or woman to alien Age by the Civil Law demise let contract c. is five and twenty years for then the Romans accounted men to have plenam maturitatem and the Lombards at eightéen years 91 In things the Law respecteth every thing according to Worthinesse 1 Littleton saith § 2. If a man be seised of Lands in Fée-simple The most worthiest of blood shall inherit and die without issue Co. Inst p. 1. 10. b 2. Son prochein Cosein collateral del entire sanke c. his next Collateral Cosen of the whole Blood c. shall have it as heir unto him whereupon my Lord Cook puts this Case One hath issue two Sons A. and B. and dieth B. hath two Sons C. and D. and dieth A. purchaseth Lands in Fée-simple and dieth without issue In this Case D. is his next Cosen and yet shall not inherit but the issue of C. because albeit D. be his next Cosen jure propinquitatis yet the issue of C. shall inherit being the more worthy viz. his next Cosen Jure repraesentationis And Littleton there meaneth of the right of representation for legally in course of Descents he is the next of Blood inheritable because the most worthy In such sort that all that Line of C. be they never so remote shall inherit before D. or his Line And therefore Littleton saith well de quel pluis long degree que il soit c. And yet in the Case abovesaid if a Lease for life were made to A the remainder to his next of Blood in fée In that Case D. shall take the remainder because he is next of Blood and capable to take by purchase though he be not legally next to take as heir by Descent And D. takes the purchase by the special limitation of the party but the Law casts the Descent upon the issue of C. as the more worthy Finch p. 116. Litt. §. 4. 5. Co. ib. 14. a. 1 c. Vide Finch page 116. So likewise the Blood of the Fathers side is more worthy then that of the Mothers the male then the female the eldest Son then the younger c. And therefore those shall inherit before these and the female on the Fathers side before the male or female on the Mothers c. Quod priùs est dignius est qui prior est tempore potior est jure Si quis plures filios habuerit jus proprietatis primò descendit ad primogenitum eò quòd inventus est primò in rerum natura Co. ib. 53. a. 3. 2 If the Tenant cut down or destroy any Fruit-trées growing in the Garden or Orchard it is Waste Trees in Orchard waste but if such Trées grow upon any of the ground which the Tenant holdeth out of the Garden or Orchard it is no Waste Co. ib. 240 a. 2 3 A dying-seised and a descent A Descent Escheat and not a dying-seised and an Escheat doth take away the entry of the Disseisée because the descent is the worthier title c. 4 It is holden that if there be Bastard eygne and mulier puisat Co. ibid. 244. a. 3. and the Mulier be within age at the time of the dying seised of the Bastard Bastard Mulier Descent that neverthhlesse the Mulier shall be barred because the Issue of the Bastard is in judgement of Law become lawful heirs and the Law doth preferre legitimation before the priviledge of Infancy Laches in an Infant 5 It is regularly true that Laches shall not prejudice an Infant Co. ibid. 246. a. 1. neverthelesse Laches shall be adjudged in him if he present not to a Church within six moneths For the Law respecteth more the priviledge of the Church that the cure be served then the priviledge of Infancy Homage and Fealty the worthiest services 6 Amongst the services due to be performed by the Tenant to his Lord homage and fealty are of greatest estéeme in the Law Co. l. 4. 8. b. 2. in Bevils case viz. Homage as the most honorable and the most humble service of reverence as Littleton saith And Fealty the most sacred being performed by an oath And therefore the Law makes more accompt of them then of other inferiour services for the seisin of them is seisin of all other services whatsoever and no distresse for them of any goods or chattels of what
Executors or assignes alien that it shall be lawfull for the Lessor to re-enter and after makes his Wife his Executrix and dies the Feme takes a new Baron who aliens and the lessor makes a new lease before entry In this Case the new lease is not good being made before entry for albeit entry be but in the nature of a ceremony or circumstance yet in such Case and others of like kind it is necessary for the Lessor to make his entry before he can be capable of making a new Lease â—ornment 13 If a Villein purchase a reversion Co. Inst p. 1. 119. b. 2 Lit. §. 179. his Lord may not claime it before attornment be made by the Tenant of the land to the Villein for if he make his claime after the grant and before attornment such claime is void yet attornment is upon the matter but a bare ceremonie â—iâ—e poenae 14 A nomine poenae is not recoverable without an actual demand of the Rent for the non-payment whereof it became forfeited Hob. 133. Howel and Samback 103 Things executed and done more then executorie and to do Vide 40. 51. â—ery in 〈◊〉 without â—y void 1 A livery in view otherwise called a livery in Law is good to convey the Estate to the feoffée c. if he make entry Co. Inst p. 1. 48 b. 3 and so the Estate be executed during his life and the life of the feoffor but if either of them die before entry the livery is void â—ange not â—â—ed void 2 In exchange of Land the parties have no fré-hold in them in déed or Law before they execute the same by entry Co. ib. 15. b. 2. and therefore if one of them die before the exchange be executed by entry the exchange is void for the heir cannot enter and take it as a purchasor because he was named onely to take by way of limitation of estate in course of descent Co. ib. 51. b. 4 3 If a man let lands to another for term of yeares Interest in a Lease for yeaâ—â—â— good without entry c. albeit the Lessor die before the Lessée enter yet he may well enter into the same lands after the Lessors death because in case of a Lease for yeares the estate is executed and the interest of the term doth passe and vest in the Lessée before entry And therefore the death of the Lessor cannot devest that which was vested before Co. ib. 52. b. 4. 4 If the Lessor by his Déed licence Licence to alien good after the Lessors death the Lessée for life or yeares who is restrained by Condition not to alien without licence to alien and the Lessor dieth before the Lessée doth alien yet is his death no countermand of his licence but that he may alien for the licence exempteth the Lessée out of the penalty of the Condition and it was executed on the part of the Lessor as much as might be And so it was resolved M. 3. Jac. in Com. Ba. So likewise if the King licence to alien in Mortmaine and dieth the licence remaineth good notwithstanding the Kings death c. Co. Inst p. 1. 76. b. 3. 5 If one levie a Fine executory as sur grant and render to a man and his heires and he to whom the land is granted and rendred Upon a fine executory no Wardship dieth before execution and his heir being within age entreth In this case he shall not be in Ward For his auncestor at the time of his death was not tenant to the Lord because the Fine wos not executed c. Co. ib. 128. b. 1. 6 Vpon plea in disability of the person by reason of Out-lawry Out-lawry 〈◊〉 perfect befâ—â—â— the return of the Exigent before the Defendant can disable the Plaintiffe the Out-lawry must be perfectly executed and appear upon Record for the judgment after the Quinto exactus given by the Coroners in the County Court is not sufficient but the Writ of Exigent must be returned because before the Return of that Writ it is not perfectly executed nor doth appear upon Record c. Co. ib. 130. a. 4 7 A man in execution in salva custodia shall not be delivered by a protection for then the suit is executed and the Law hath her end c. After execâ—â—â—an no protection Writs of execution admit no protectioâ— Co. ib. 131. a. 3 8 In judicial Writs which are in nature of actions where the party hath day to appear and plead and therefore yet somewhat to doe a protection doth lie as in Writs of Scire facias upon Recoveries Fines Iudgments c. Albeit by the Statute of W. 2. cap. 45. essoignes and other delayes are ousted in Writs of Scire facias yet a protection doth lie in the same so it is in a Quid juris clamat and the like But in Writs of execution as Habere facias seisinam Elegit execution upon a Statute Capias ad satisfaciendum fieri facias and the like no protection can be cast for the Defendant for then the suit is ended Neither hath the Defendant then any farther day in Court and the protection extendeth onely ad placita quaerelas and must be allowed by the Court which cannot be but upon a day of apparance Co. ib. 139. a. 2. 9 In a Quare Impedit if the Plaintiffe be non-suit after apparence In a Quaâ—e Iâ—pedit non-sâ—â—â— or discontin a good barrâ— the Defendant shall make a title and have a Writ to the Bishop And this is peremptory to the Plaintiffe and a good barre in another Quare Impedit And the reason is for that the Defendant had by judgment of the Court a Writ to the Bishop which is a judicial Writ and in the nature of an execution And therefore the Incumbent that cometh in by that Writ shall never be removed which is a flat barre as to that presentation And of this opinion is Littleton in our Books And the same Law and for the same reason it is in case of a discontinuance Co. ib. 139 a. 3 10 In an Attaint if the Plaintiffe after apparence be non-suit In Attainâ— non-suit peremptory it is peremptory but if the processe in the attaint be onely discontinued the Plaintiffe may have another Writ of Attaint because upon the non-suit there is a judgment given but not upon the discontinuance c. Account Nâ—n-suit 11 After an award to accompt the Plaintiffe may be non-suit Co. ib. 139 b. 2 because that is onely an interlocutory award of the Court and no final judgment Recognisance c. executory not binding executed conâ—â—â— 12 If there be two joyntenants of an estate in Fée-simple Co. ib. 184 b. 2. and one of them acknowledgeth a Recognisance or a Statute or suffereth a judgment in an action of Debt c. and dieth before execution had it shall not be executed
if they be distrained to come to them they may have a writ out of the Chancery for their discharge All other clerks also within orders though not beneficed have the like priviledge And the reason of this is to the end they should attend their function Co. l. 11. 70. b. in Madg. Col. case M. 10 H. 6. 8. 3 I. S. brings an action of debt against I. Rector of T. in com B. the defendant saith A Parson ought to be resident that before the day of the writ purchased he dwelt at B. in com N. Et non allocatur for a Parson shall be intended by Law to be alwayes resident upon his benefice for the cure of souls which he hath there and the Parson who hath cure of souls and is a non-resident non est dispensator sed dissipator non speculator sed spiculator And therefore no such thing shall be presumed F. N. Br 175. 4 A Parson to the end he may give his continual attendance upon that sacred function is fréed from all personal charges The like that may hinder him in his calling And therefore he shall not be chosen Bailiffe Réeve Beadle or other officer for land annexed to his Church And all this by the course of the Common Law F. N. Br. 34. l. for the same reason it is that if a Parson have a Parsonage and after take another benefice without a dispensation the first benefice is void and the Patron thereof may present for this avoydance is called a Cession because the taking of the last makes him neglect the first F. N. Br. 175. Br. Dismes 16 5 To the end that Religion may not be neglected Tithes due onely to the Parson of common right but preserved and daily increased the Common Law giveth to the Parson of common right the tenth of all manner of yearely encrease which are called Dismes or Tithes the due payment whereof tendeth much to the continuance and establishment of the true Religion and the due worship of God Co. l. 2. 44. b. The Bishop of Winchesters case And therefore albeit a meere lay man may prescribe in modo decimandi yet he cannot so doe in non decimando because he is but in special cases capable of tithes at the Common Law and therefore without special matter shewed it shall not be intended that he hath any lawful discharge And for this cause in favour of holy Church although it may have lawfull commencement the law will not suffer such prescription in that case nor put it to the trial of lay men who will perhaps rather strain their consciences for their private benefit that give the Church the duties that belong to her Vide infra 186. 11. Co. l. 5. 63. a. 44 E. 3. 19. 6 The Inhabitants of a Town without any custome may make ordinances or by-laws for reparation of the Church By-Lawes and in that case the greater part shall bind all the rest without any Custom The Chamberlain of Londons case Prisot 3 To such Lawes as have warrant in holy Scripture our Law giveth credence contra Co. Inst pars 1 128. b. 1 In the raigne of King Alfred Outlawed persons had capita Lupina and untill a good while after the Conquest no man could have been out-lawed but for felonie and then the out-lawed person was said to have Caput Lupinum because he might be put to death by any man as a Wolfe that hateful beast might and in ancient time the head of either of them being brought to the chiefe place of the County or Franchise where they were killed the partie so killing them was to have a Mark for his paines Howbeit in the beginning of the raigne of E. 3. it was resolved by the Iudges for avoiding of inhumanitie and effusion of Christian bloud that it should not be lawfull for any man but the Sheriffe only and that upon lawfull warrant to put to death any out-lawed person though it were for felonie in pain to suffer death as in case of killing another man One attainted of a Praemunire 2 It was lawfull for any man to put to death a man attainted of a Praemunire because he was also without the Kings protection Co. ibid. 129. b and therefore subject to be destroyed as the Kings enemy but this was taken away by the wisedome of Queen Eliz. and her Parliament 5 El. 1. as a libertie not becoming a Christian Common-wealth Lepers 3 The Law of England for removing of Lepers by the writ de leproso amovendo from the societie of men to some solitarie place is grounded upon the law of God Levit. 13.44 45 46. Numb 5.1 2. Co. ibid. 135. b 4 In Cholmeleys case in the 2 Rep. fol. 51. Co. l. 11. 70. b. in Magdel Colledge case where a reversion expectant upon an estate in taile was granted to one for the life of the tenant in taile A Monkish life condemned it was said that by possibilitie this grant for life may take effect for tenant in taile having no issue may become a Monk and enter into religion and then the grantée may have it during his naturall life but it was there resolved that such superstitious and irreligious profession shall not be presumed in law A Law against Charity void 5 If a Statute be made directly against the Law of God Doct. Stud. l. 1. cap. 6. as if it should be ordained that none should give Almes to any in what necessitie soever he were or the like such Statute ought to be adjudged void 6 Such Canons Constitutions Ordinances Co. l. 5. part 1. 32. b. in the case of the Kings Ecclesiastical Law and Synodals provincial Ecclesiastical Laws as have béen allowed by general consent and custome within the Realme and are not contrariant or repugnant to the Lawes Statutes and Customes of the Realme nor to the damage or hurt of the Kings Prerogative royall are still in force within this Realme as the Kings Ecclesiasticall Lawes of the same 4 The Jurisdiction of the Ecclesiastical Law ought to be bounded by the Common Law Spiritual Laws 1 The Spiritual Laws mentioned in Littleton Sect. 648 are such Ecclesiasticall Lawes as are allowed by the Laws of this Realme Co. Inst pars 1 344. a. Co. l. 5. pars 1. 32. b. Jurisdiction Stat. 35 H. 8. 19 33 H. 6. 34. 32 H. 6. â—8 viz. which are not against the Common Law whereof the Kings prerogative is a principal part nor against the statutes or customes of the Realme Prerogative and regularly according to such ecclesiasticall Lawes the Ordinarie and other Ecclesiastical Iudges do procéed in causes within their Conisance and this Iurisdiction was so bounded by the Ancient Common Lawes of the Realme and so declared by Act of Parliament 5 Dies Dominicus non est juridicus The Lords day 1 In all the four terms the Lords day is not Dies
it till the debt be satisfied and therefore the discharge of the debt which is the cause dischargeth the execution which is the effect Co. ibid. 76. b. 3 6 If the tenant makes a feofment in fée of lands holden by Knights-service to the use of the feoffee and his heires The town performed the Wardship ceaseth untill the feoffor pay unto the feoffée or his heires an hundred pounds at a time and place limited The feoffée dieth his heire within age the Lord shall have the wardship of the body and lands of the heire of the feoffee but it shall be conditionally for he cannot have a more absolute interest in the wardship than the heire hath in the tenancie Therefore if the feoffor pay the money at the day and place and entreth into the land in this case the wardship both of the body and lands is divested because the Lord hath no absolute interest in either of them but that interest which he hath doth depend upon the performance or not performance of the condition Littl. § 103. Co. ibid. 78. b. 4 7 Littleton tells us that by the Statute of West 1. cap. 22. The Wardship of the body severed from the Land cannot have the benefit of the two years after 14. If an heire female be within the age of 14 yeares and not married at the time of the death of her ancestor then the Lord shall have the ward of the land holden of him untill her age of 16 yeares to the end within those two last years he may tender her convenient marriage yet in this case if the Lord before the age of 14 granteth over the wardship of the bodie the grantee thereof cannot enjoy the benefit of the two yeares because he cannot hold the land over and the Lord which hath the wardship of the land onely shall also lose the benefit of the two yeares because he hath the lands onely and cannot tender any mariage Therefore in this case the heire female shall enter into her land at her age of 14 yeares So if a tenant holdeth of one Lord by prioritie and of another by posteriority and dieth his heire female within the age of 14 years the Lord by posteriority shall have the lands but until her age of 14 yeares because the mariage belongeth not to him Also if the Lord marieth the heire female within the two yeares her husband and she shall presently after the mariage enter into the lands For cessante causa cessat effectus cessante ratione legis cessat beneficium legis Co. ibid. 102. b. 3. 202. b. 1. Co. ibid. 103. a. 3. Littl. Sect. 147. 8 Where there is Homage Ancestrel betwixt an Abbot and Covent and their tenant If that body be once dissolved Homage ancestrel after alienation gone though a new be founded of the same name and all the possessions be granted to them yet the Homage Ancestrel is gone So it is likewise if a man in his natural capacity holds by Homage Ancestrel and sells the land to another although he repurchase the land again yet is the Homage Ancestrel dissolved Co. ibid. 104. a. 4. 9 If Homage be due to be done by the tenant The Land being aliened the Homage is gone if the tenant alien the land to another the Alienor cannot be compelled to do Homage The delay being pardoned the amerciament is also gone 10 The cause of an amerciament in a plea real Co. Inst pars 1. 126. b. 4. a Plowd 401. Coles case 37 H. 6 21. Co. l. 5. 49. Vaughans Case personal or mixt where the King is to have no fine is for that the tenant or defendant ought to render the demand as he is commanded by the Kings writ the first day which if he do he shall not be amerced so that for the delay that the tenant or defendant doth use he shall be amerced And albeit the amerciament cannot be imposed nor the King fully intitled thereunto untill judgement be given because by the judgement the wrong is discerned yet a pardon before judgment shall after Iudgment given discharge the partie because the original cause viz. the delay c. is pardoned A wife after coverture a Niefe again 11 If a Niefe marry a frée-man Co. Inst pars 1 136. b. 2. 137. b. 3. she is priviledged during the coverture but not absolutely enfranchised for if her husband die she is a Niefe again No Juror after his land gone 12 If a Iuror after his returne selleth away his land or if he Co. ibid. 157. a. 1. 2. 272. b. 2. for whose life or his wife in whose right he holdeth it die or if an entry be made upon his land for a condition broken so as his frée-hold is determined in any of these cases he may be challenged for insufficiency of frée-hold for when his land is gone his feare to offend to have his lands wasted and the like c. which is one of the reasons of Law is also taken away No damage fesant out of the soil 13 If a man come to distrain for Damage fesant Co. ibid. 161. a. 3. Co. l. 9. 22. b. 4. Case of Avowrie Co. ibid. 164. a. 3. and sée the beasts in his soile and the owner chase them out on purpose before the distresse taken the owner of the soile cannot then distraine them and if he doth the owner of the cattle may rescue them for the beasts must be damage fesant at the time of the distresse Where coparceners shall join and relieve not 14 If one coparcener die her part shall descend to her issue and one praecipe shall lie against them and this is propter unitatem juris derived from one common Ancestor so if a man hath issue two daughters and is disseised and the daughters have issue and die the issues shall joyn in a praecipe likewise the issues of two coparceners which are in by several descents being disseised shall joyne in an Assise Howbeit in the same case if the two daughters had béen actually seised and had béen disseised after their deceases the issues shall not joyn because as to that purpose the unitas juris is severed for now several rights descended to them from several Ancestors and yet when they have severally recovered they are coparceners againe and one praecipe lyeth against them and release made by one of them to the other is good Frankmariage Hotchpot 15 If lands given in frank-mariage be impleaded Co. ibid. 177. b. 2. the tenant shall not have ayde against the other parcener but if she put the land into Hotchpot she shall have it for then the lands are become as other lands which descended from the common Ancestor Prescription or Custome extinct by interruption 16 If tenant by homage ancestrel maketh a feofment in fée upon Condition and entreth for the Condition broken Co. ibid. 202. b. 1. it shall be never holden by
County where he is Iustice Power lost and he takes him in the other County In this case he is his prisoner in the County where he takes him and ought there to be imprisoned and he cannot send or convey him to the Gaol of the County where he committed the felony for he is not his prisoner there and being out of his proper County his authority ceaseth as to that other County So if the Marshal hold plea of a thing done out of the verge or the Admiral of a thing done in the body of the County it shall be void for their authority extends to a certaine place and within a certain precinct and not elsewhere and if he which takes Sanctuary goes out any man may take him because he hath lost his priviledge Plowd 72. b. Sir Thomas Popes case 54 If the Conisée of a Recognisance according to the Statute of 23 H. 8. cap. 6 sell several parts of his lands to several feoffées No discharge by the Conusees purchase of part reserving also part thereof to himselfe if execution be sued against his part in an Audita quaerela he shall not compel any of the feoffées to contribute And therefore by the same reason the purchase of part by the Conisée shall not discharge the execution for the execution of the Conisée shall be discharged in consideration that he shall be contributory if he were Feoffée and not Conisée and then in as much as he shall not be contributory if he were Feoffée and not Conisee his purchase of part shall not discharge the execution being Conisée quià cessante causa c. Co. Inst pars 1 70. b. 3. 55 If the King had given lands to an Abbot and his successors to hold by Knight-service this had béen good Lands held by Corporations in Knights Service and the Abbot should have done homage and found a man c. or have paid escuage But there was no wardship or reliefe or other incident belonging thereunto yet if the Abbot with the assent of his covent had conveyed the land to a natural man and his heirs now wardship and reliefe and other incidents belonged of common right to the tenure And so it is if the King give lands to a Major and Communalty and their successors to be holden by Knight-service In this case the Patentées shall do no homage neither shall there be any wardship or reliefe onely they shall find a man c. or pay escuage But if they convey over their lands to any natural man and his heires now homage ward mariage reliefe and other incidents belong thereunto quià cessante ratione legis cessat ipsa lex Lord and Villain 56 If villanage be pleaded by the Lord in an action Real Co. ibid. 127. b. 4. 18 E. 4. 6. 7. personal or mixt and it is found that he is no villaine the bringing of a writ of errour is no enfranchisement because thereby he is to defeat the former judgement and if in the mean time the plaintiffe or demandant bring an action against the Lord he néed make no protestation so long as the record remaines in force for at that time he is frée but the Lord shall be restored to all by the writ of errour Waste 57 If lands be given to two and to the heires of one of them Co. ibid 247. b. 3. he that hath the fée simple shall not have an action of wast upon the Statute of Glocester against the Ioyntenant for life but his heir shall maintaine an action of waste against him upon that Statute So that in this case the heir shall maintaine that action which the Ancestor could not Dower 58 If the husband alien his land Co. Inst pars 1 33. a. 4. and then the wife is attainted of felony now is she disabled but if she be pardoned before the death of the husband she shall be endowed Also if the sonne endow his wife at her age of 7 yeares ex assensu patris if she before the death of her husband attaine to the age of nine yeares the dower is good Office and Rent 59 The King granteth to one an office at will Finch 8. Co. ibid. 42. a. 4 3 E. 4. 8. and ten pounds yearly rent during life pro officio illo here if the King put him out of his office the rent shall cease 21. 4. Guardian in Soccage 60 The executor or husband after the death of the wife guardian in Soccage shall not retain the wardship 7 El. 293. b. Finch 9. Co. Inst pars 1 89. a. 1. for the guardian hath it not to his owne use but for the benefit of the heire and the executor or husband by common intendment beare not such affection to the Infant as the testator or his wife did which was the cause that the law gave them the wardship A Pardon 61 If a stroke be given the first day of May 13 El. 401. Finch 9. and the King pardon him the second day of May all felonies and misdemeanors the party smitten dieth the third day of May so as this is no felony till after the pardon yet is the felony pardoned for the misdemeanors being pardoned all things pursuing it are also pardoned Livery 62 The King hath a Ward pur cause de gard 13 E. 4 10. b. Finch 9. and after maketh Livery to the first Ward the second Ward shall not sue Livery Coparceners 63 If two coparceners make a lease reserving a rent Finch 9. they shall have this rent in common as they have the reversion But if afterwards they grant the reversion excepting the rent they shall be from thenceforth Ioyntenants of the rent Challenge 64 It is no principal Challenge to a juror 14 H. 7. 2. Finch 9. that he hath married the parties mother if she be dead without issue for the cause of favour is removed Entry 65 If an Infant tenant in taile make a feofment in fée and die Co. Inst pars 1 337. a. 2. his issue may enter but if after the feofment made he be attainted of felony and dieth the entry of the issue is taken away for his entry is not lawful in respect of his estate onely but of his bloud also which is corrupted Formedon and therefore in that case he is driven to his Formedon Villain 66 Si mulier serva copulata fit libero c. partus habebit haereditatem Bract. lib. 4. fol. 298. b. Idem l. 1. c. 6. mater nullam dotem quià mortuo viro suo libero redit in pristinum statum servitutis nisi haeres ei dotem fecerit de gratia Co. Inst Pl. 1. 123. a. 2. Co. Inst pars 1 174. a. 4. 67 If one coparcener maketh feoffment in fée Coparceners and after her feoffée is impleaded and voucheth the feoffor she may have aide of her Coparcener to deraign a warranty
the acquital 7 If the husband alien his land Co. ibid. 33. a. 4. and then the wife is attainted of Felony Where the Feme shall have dower and where not now is she disabled but if she be pardoned before the death of the husband she shall be endowed So if the Sonne endow his wife at the age of 7 yeares ex assensu patris if she before the death of her husband attaine to the age of 9 yeares the Dower is good for in these two cases the right of Dower tooke effect in the life time of the husband hy reason of the capacity which the wives had to take it But otherwise it is of an original absolute disability as if a man take an Alien to wife and after the husband alien the land and after she is made Denizen the husband dieth she shall not be endoweâ— because her capacity and possibility to be endowed came by the Denization otherwise it were if she were naturalized by Act of Parliament for that makes her as absolutely capable as if she were a subject borne 8 If the Father convey his lands holden by Knight-service either of the King or of any meane Lord Wardship to his middle Sonne in taile Co. ibid. 78. a. 3. 14 El. Dy. 308. 3 Mar. Dy. 130. the remainder to the youngest Sonne in Fée and dieth the eldest being within age and the King or Lord seize the body together with part of the land according to the Statute of 32 and 34 of H. 8. in this case if the middle brother die without issue the King or the Lord shall not have any benefit of the Statute against him in remainder for the Statute was once satisfied and the Statute extendeth not to him in remainder Co. l. 2. 93. 94. Binghams case and Northcots case Co. l. 10. 80. b. Loveyes case â—enures in â—occage 9 When Littleton saith Co. ibid. 86. a. 3. 108. b. 2. Littl. § 118. that every Tenure which is not Knight-service is Tenure in Soccage he there speaketh of Soccage as it is largely taken and so called ab effectu that is all Tenures which hath the like effects and incidents belonging to them as Soccage hath are termed Tenures in Soccage albeit originally service of the Plough was not reserved as if originally a Rose a paire of gilt Spurs a Rent or the like were reserved or that the Tenant should hold the lands to be Ultorem sceleratorum condemnatorum ut alio suspendio Ockam 31. a. 6. alios membrorum detruncatione vel aliis modis juxta quantitatem perpetrati sceleris puniat that is to be a Hangman or Executioner It séemes in ancient times such Offices were not Voluntiers nor to be hired for lucre but were to be bound thereunto by Tenure Co. ibid. 90. a. 3. 10 A Tenant holdeth land of a Bishop by Knight-service Chattel vested which Seigniory the Bishop hath in the right of his Bishoprick the Tenant dieth his heir within age the Bishop either before or after seisure dieth neither the King nor the Successor of the Bishop shall have the Wardship but his Executors for albeit the Bishop hath the Seigniory en auter droit yet the Wardship being but a Chattel he hath it in his own right and a Chattel cannot go in the succession of a Sole Corporation unlesse it be in the case of the King Littl. § 350. Co. Inst pars 1 216. b. 1. 217. a. 4. 11 If land be granted to a man for terme of five yeares upon Condition An estate upon condition to have fâ—â— that if he pay to the Grantor within the two first yeares 40 marks that then he shall have fée or otherwise but for the terme of five yeares and Livery of Seisin is made unto him by force of the Grant in this case the Grantée hath Fée simple conditional c. and if he do not pay to the Grantor the 40 marks within the first two yeares then immediately after those two yeares past the Fée and Frank-tenant is and shall be adjudged in the Grantor c. And the reason of this case is grounded upon the effect that the Livery tooke at first for by the rule of Law a Livery of Seisin must passe a present Fréehold to some person and cannot give a Fréehold in futuro as it must do in this case if after Livery of Seisin made the Fréehold and Inheritance should not passe presently but expect untill the Condition be performed And therefore if a Lease for yeares be made to begin at Michaelmas the remainder over to another in fee if the Lessor make Livery of Seisin before Michaelmas the Livery is voide because if it should worke at all it must take effect presently and cannot expect Co. ibid. 217. b. 1. And there is a diversity in the case above put betwéen a Lease for life and a Lease for yeares for in case a Lease for life with such a Condition to have Fée the Fée simple passeth not before the performance of the Condition for that the Livery may presently work upon the Fréehold but otherwise it is in the case of a Lease for yeares There is also a diversity betwéen Inheritances that lie in grant and Inheritances that lie in Livery for if a man grant an Advowson for yeares upon Condition that if the Grantée pay xx s. c. within the terme that then he shall have Fée the Grantée shall not have Fée untill the Condition be performed sic de similibus But otherwise it is where Livery of Seisin is requisite and therefore if the King make such a Lease for yeares upon such a Condition the Fée simple shall not passe presently because in that case no Livery is made Vide 55. 109. 35. 8. Littl. § 359. Co. ibid. 222. b. 3. 227. b. 4. 12 If a man make a Déed of Feofment to another without Condition and when he gives Livery Livery upon condition he clogs the estate with a Condition in this case the estate takes effect by the Livery and not by the Déed of Feofment and therefore shall be subject to the Condition Co. ibid. 228. a. 1. 13 If a Déed be made and dated in a forraigne Kingdome of lands within England yet if Livery and Seisin be made Livery upoâ— forraigne deed Secundum formam cartae the land shall passe for the land passeth and the grant takes effect by the Livery and not by the Déed Co. ibid. 271. b. 3. 14 There is a diversity betwéen a Feofment of land at this day upon confidence or to the intent to performe his last Will A feofment the use of a Will and a Feofment to the use of such person and persons and of such estate and estates as he shall appoint by his last Will for in the first case the land passeth by the Will and not by the Feofment because after the Feofment the Feoffor was seised in Fée
Will is determined though the Lord cometh in above the lease for life or for years the custodie or any other particular interest or tenancy at will yet shall he be compelled to make admittance according to the surrender And so it was holden in the Earl of Arundels case in 17 Eliz. See more of this Co. l. 4. in the Copihold cases Tâ—in 1. Jac. Inter Shepland and Ridler in Repl. in Co. Ba. the case of Guardian in soccage adjudged Co. ib. 76. b. 1. 10 In many cases the heire shall be in ward The Lord that have Wardship though not dying seised albeit the Tenant died not seised c. nor in the Homage of the Lord As if the Tenant maketh a feoffment in fee upon condition and the Feoffor dieth after his death the condition is broken the heire within age entreth for the condition broken In this case the heire shall be in ward and yet the Feoffor had no estate or right in the land at the time of his death but onely a condition and which was broken after his decease but because the condition restoreth the Tenant to the land in nature of a descent for he shall be in by descent by the same reason shall it restore the Lord to the wardship c. Co. ib. 89. b. 4. 11 If a stranger entreth into the lands of the Infant within age of 14 years taketh the profits of the same A stranger Guardian is soccage accountable the Infant may charge him as Guardian in Soccage And this doth well agrée with the writ of accompt against a Guardian in soccage for the words be Idem B. praefato A. rationabilem compotum suum de exitibus pervenientibus de terris tenementis suis in N. quae tenentur in soccagio quorum custodiam Idem B. habuit dum praedicta A. infra aetatem fuit dicitur and true it is that in judgement of Law he had the custodie of the lands and is called Tutor alienus whereas the right Guardian in Soccage is called Tutor proprius Neither is it any plea for him to deny that he is prochein amy but he must answer to the taking of the profits as Littleton saith Sect. 124. Co. ibid. 108. a. 4. 12 If one holdeth land of a common person in grosse as of his person and not of any Mannor Tenure in Capite c. and this Seignory escheateth to the King yea though it be by attainder of Treason he holdeth of the person son of the King as he held before of the person of the Subject and not of the King in Capite because the originall tenure was not created by the King And therefore it is directly said that a tenure of the King in Capite is when the land is not holden of the King as of any Honour Castle Mannor c. But when the land is holden of the King as of his Crown Vide Dyer 44. 28. c. 30 H. 8. Mag. Car. cap. 31. 25. 4. Advowson appendant 13 An Advowson is appendant to the Mannor of Dale Co. ib. 122 a. 1. of which Mannor the Mannor of Sale is holden the Mannor of Sale is made parcel of the Mannor of Dale by way of Escheat In this case the Advowson is still onely appendant to the Mannor of Dale Common appendant 14 If Common appendant be claimed to a Mannor Co. ib. 122. a. 4. yet in rei veritate it is appendant to the Demesnes and not to the services and therefore if a tenancy escheat the Lord shâ—ll not increase his Common by reason of that An Assise for â—ent after disâ—eisin 15 If the Tenant rescue the Distresse Co. Inst pars 1. 160. b. 3. and after is disseised of the tenancy yet an assise lyeth against him for the Disseisin done of the rent by the Rescous c. Coparcenary â—n other â—ands 16 If one of the Parceners take Baron and die Co. ib. 174. b. 4. c. the Baron being Tenant by the Courtesie is compellable by a writ de partitione facienda to make partition and shall be joyntly impleaded with the other Coparcener for he doth continue the state of Coparcenary as the other Parcener doth c. So likewise if there be two Coparceners and one of them doth alien in fée the Alienée and the other Coparcener are Tenants in common and several writs of Praecipe shall be brought against them and yet the Parcener may have a writ of partition against the Alienée at the Common Law which is a stronger case than the case put of Tenant by the Courtesie The heire in Hotchpot 17 If the Donées in Frankmarriage die before the lands be put into Hotchpot with the other Coparcener Littl. §. 270. Co. ib. 178. a. the heire of the Donées may well do it Descent shall not take away entry 18 If a Dissesor make a lease to a man and to his heirs during the life of I. S. and the Lessée dieth Co. ib. 239. a. 3. living I. S. this shall not take away the entry of the Disseisée because he that died seised had but a Frée-hold and heirs in that case were added to prevent an occupant For an heire in that case shall not have his age c. as it was adjudged in Lambs case P. 16 Eliz. in Co. Ba. Right left after recovery 19 If the Disseisée disseise the heire of the Disseisor Co. ib. 266. a. 4. albeit the heire recover the land against the Disseisée yet shall he leave the proceeding right in the Disseisée So if a woman that hath right of Dower disseise the heire and he recover the land against her yet shall he leave the right of Dower in her Attornment 20 If either the Grantor or the Grantée of a Seigniory rent reversion Co. ib. 315. a. 4. remainder c. die before attornment the attornment is thereby countermanded But albeit the Tenant of the land die or grant over his estate to another yet may he that hath his estate either by descent or grant attorn at any time Wast mainâ—einable 21 Regularly when the reversion is devested Co. ib. 356. a. 4. the Lessor cannot have an action of Waste yet in some special cases an action of Waste shall lie albeit the Lessor had nothing in the reversion at the time of the Waste done As if Tenant for life make a feoffment in fée upon condition and Waste is done and after the Lessée re-enter for the condition broken In this case the Lessor shall have an action of Waste So likewise if Lessee for life be disseised and Waste is done the Lessée re-enters Here also an action of Waste shall be maintained against the Lessee c. 5. Co. ibid. 366. b. 3. 22 A warranty that commenceth by disseisin is properly Warranty that begins by disseisin when the disseisin is done immediately to the heire that
Parson in the same plight condition that he was in upon his first presentation notwithstanding the presentment of the other by the Defendant c. â—nferiour Courts 30 When a writ of right is directed to the Lord of a Mannor Co. l. 6. 11. a. Jentlemans case or his Bayliffs or a Iusticies or other Vicontiel Writs are directed to the Sheriffe c. that shall not change the nature or jurisdiction of those Courts as to make the Lord or Sheriffe to whom those Writs are directed to be Iudges of those Courts respectively which were not so before but the Sutors do still remaine Iudges thereof Neither yet shall the direction of those Writs to the Lord or Sheriffe as aforesaid albeit they are in themselves matter of Record constitute the Lord or Sheriffe to be Iudges of Record or a Court Baron Hundred Court or County Court to be Courts of Record For upon a Iudgment given in any of those Courts a writ of False judgement lies and not a writ of Errour c. No change by â—emise of the â—ing 31 When the King demises his Crown to the next Successor Co. lib. 7. 29. b. 4. Discontinuance of processe per mort de la Roygne upon the general resummons by the Kings writ which begins thus Mandamus vobis quod ad sectam nostram animumque ligeorum populi nostri c. the originall and issue if any be joyned is revived for that is a full record and ought to be entred it is otherwise of the processe before issue joyned voucher garnishment c. yet they shall be also revived upon a special writ reciting all the special procéeding And it appeares by the booke of Entries tit Reattachment 499. that if the Issue be joyned and the Iury returned and a day given for tryall before which day the King dies yet by special resummons all shall be revived for the Iury was returned of record and the record thereof was made full and perfect c. Co. lib. 11. 64. a. 2. Doctor Fosters case 32 It is ordained by the Statute of 1 Eliz. cap. 2. Statutes for going to Church That every person shall resort to their Parish Church or upon let thereof to some other every Sunday and Holiday c. And by the Statute of 23 Eliz. cap. 1. That every person not repairing to Church according to 1 Eliz. 2. being thereof lawfully convict shall forfeit twenty pound for every moneth they so make default and that of the forfeitures aforesaid the Queen c. shall have the two third parts viz. the one to her owne use the other for reliefe of the poore c. and the other third part the prosecutor shall and may recover by action of debt c. And by the Statute of the 29 Eliz. cap. 6. it is enacted That every such offender once convicted shall afterwards in Easter and Michaelmas Termes pay unto the Exchequer twenty pound for every moneths absence from Church c. and if default be thereof made c. the Queens Majestie c. shall and may by processe out of the Exchequer seize all the offenders goods and two parts of his lands c. And lastly by the Statute of 35 Eliz. cap. 1. It is ordained c. that for the more speedy recovering c. of the forfeitures c. payable to the Queen c. by vertue of this Act and of 23 Eliz. 1. all and every such forfeitures c. shall be recovered c. by action of debt c. in the Kings Bench the Common Pleas or Exchequer as other debts may be recovered c. Here albeit the Statutes of the 29 and 35. séems to alter the law of the 23. in respect of part of the penalty given to the prosecutor by the 23. and being all of it mentioned as given to the Quéen in the other two subsequent Acts Yet the Act of the 23. remains in full force according to the tenour of the same notwithstanding the said subsequent Acts because those two Acts do not give the penalty to any new person but to the same person to whom the Statute of the 23. giveth it viz. to the Quéen c. and they are but acts of addition especially that of the 35. to give a more speedy remedy than was given by that of the 23. c. As in a Writ of Mesne the processe at the Common Law was Distresse infinite and although the Statute of Westm 2. cap. 9. gives a more speedy processe and in the end a Forejudger yet the Plaintiff may take which processe he will either at the Common Law or upon the said Statute because both are in the affirmative Vide ibid. many authorities accordant c. Co. ibid. 4. 33 In many cases the designation of one person in a late Act of Parliament Grant of Ward shall not exclude another person which was authorized to do the same thing by an Act precedent It is provided by the Statute of the 8 H. 6. cap. 16. that after office found c. he which found himselfe grieved might within the moneth after traverse and to take the lands and tenements to farm and that then the Chancellour Treasurer and other Officer shall demise unto him to farme untill c. Vide 13 E. 4. 8. And now by the Statute of the 1 H. 8. cap. 16. he hath liberty by the space of three moneths And after the Statute of the 32 H. 8. cap. 40. gives authority to the Master of the Wards with the advice of one of the Council to make a lease of the Wards lands or of an Idiots during the time that they shall remain in the Kings hands Here albeit the last designes another person yet doth it not utterly take away the first For if before any lease made by the Master of the Wards the Chancellour and Treasurer make one according to the Statute of 8 H. 6. then cannot the said Master demise the lands So also if the Master grant them first to another the Chancellour Treasurer c. cannot demise them to the party grieved as Stanford holds Praer fol. 69. a. b. where he mentioneth the rule Leges posteriores prioâ—es contrarias abrogant In 43 Ass Pl. 9. the Statute of 13 E. 3. de Mercatoribus which gives assise to the Tenant by Statute Merchant taketh not away the Assize which the Tenant of the Franktenement had before but both may well stand together So in 33 H. 8. Dyer 50. if it should be enacted that the youngest son should have an appeale of the death of his father that would not exclude the eldest son of his fuit because there are no words of restraint c. â—ncient Deâ—esne 34 In a writ of right Close if the writ of the Demandant abate F.N.B. 19. d. and thereupon he brings a writ of false judgement in the Common Pleas and there the judgement being reâ—ersed the writ is awarded good then shall the Demandant hold
vocation in Anno 11 Eliz. conveyed his lands to the use of himself for life and after to the use of Philip Earl of Arundel his eldest son in tail with divers remainders over and with proviso that if he should be minded to alter and revoke the said uses and should signifie his mind in writing under his own hand and seal subscribed by three credible witnesses that then c. and afterwards the said Duke was attainted of high treason In this case that proviso or condition was not given to the Quéen by the act of the 33 H. 8. cap. 20. because the performance thereof was personal and inseparably annexed to the person viz. to signifie his mind by writing under his own hand which none could do but the Duke himself upon which point all the possessions of the Dukedome so conveyed as aforesaid were saved and not forfeited by the attainder Vide 44. 8. â—o ib. 13. a. 3. 106 The Templers held divers of their possessions in Frankalmoign which tenure as Littleton saith Privity stâ—â—er then the â—â—neral word 〈◊〉 an Act of â—â—â—liament is annexed in privity to the bloud of the Donor and after they were dissolved and by Parliament Anno 17 E. 2. their possessions were given to the Hospitalers to hold them in the same manner as the Templers held yet by those general words they held not in Frankalmoign because the privity of the tenure on the Tenants part continued not and that privity being personal and inseparable by the general words of the act was not transferred to the Hospitalers There is the same law of the impropriation of a Church Founderâ—â— inseparabâ—â— which is also on incident inseparable to the house of Religion whereunto the Church is impropriate And therefore it is adjudged P. 3. E. 3. that the Hospitalers by the said Act of the 17 E. 2. should not have an Impropriation which was formerly inseparably annexed to the Corporation of the Templers because such a thing as that consisting in inseparable privity by the general words of an Act of Parliament shall not be transferred to others Co. l. 7. 13. a. 4. Englefeilds case 107 In tempore H. 8. Brook tit Corodie 3. it is holden Foundersâ—â— inseparable that a foundership which is inseparably annexed in privity to the bloud of the Founder shall not be forfeited by attainder â—ivity in â—oud estate â—â—d law diâ—â—rsities 108 There are three manner of privities viz. privity in bloud Co. l. 8. 42. b. 4 c. in Whittinghams case privity in estate and privity in Law Privies in bloud are meant of privies in bloud Inheritable and that is in 3 manners viz. inheritable as heir general heir special or heir general and special Privies in estate are as Ioyntenants Baron and Feme Donor and Donee Lessor and Lessee c. Privies in Law are as when the Law without bloud or privity of estate casts the land upon one or makes his entry congeable as the Lord by escheat the Lord that enters for Mortmaine Lord of a Villaine c. And first privies inheritable as heir general shall take benefit of Infancy and therefore if an Infant Tenant in Fée simple make feofment and die his heir shall enter there is the same Law also of him that is heir general and special as if a man give lands to another and the heirs male of his body and the Donée within age make feofment in Fée his Sonne that is heir general and special shall enter It is so also of him that is heir special and not general as if in the same case the Donée hath issue two Sonnes and the eldest hath issue a daughter and the Donee dies and the eldest Sonne within age makes feofment and dies without issue male the youngest Sonne is special heir per formam doni and shall avoid the feofment of his brother although he is not heir general because he is privie in bloud and hath the land by descent So if lands be given to one and the heirs female of his body and the Donee having issue a sonne and a daughter makes feofment within age and dies Here the daughter being heir special unto whom the right of entry descends shall enter and not the sonne unto whom nothing descends So it is likewise of the heir in Borough English for in all cases when any claimes by descent as heir special he shall take benefit of a right of entry which descends unto him for the infancy of his Ancestor There is likewise the same Law if his Ancestor were non compos mentis at the time of making the feofment because in those and such like cases the heir general cannot enter for that no right or title descends unto him but the right descends to the heir special Howbeit privies in estate unlesse it be in some special cases shall not take advantage of the infancy of the other and therefore if Donee in tail within age make feofment in fee and die without issue the Donor shall not enter because there was onely privity in estate betwéen them and no right accrued to the Donor by the death of the Donée So if there be two Ioyntenants in fée within age and the one maketh feofment in fee of his moitie and dies the survivour cannot enter by reason of the infancy of his companion because by his feofment the joynture was severed so long as the feofment remaines in force And therefore in such case the heir of the Feoffor shall have a Dum fuit infra etatem or shall enter into the moity But if there be two Ioyntenants within age and they joyn in a feofment in that case a joynt right shall remaine in them and therefore if one of them die the right shall survive and the survivor shall have the right of the land as from the first Feoffor which makes Littleton seem to hold cap. Discontinuance fol. 44. that the Survivour may enter in respect of the right accrued unto him For otherwise indeed this mischiefe would ensue that the heir of that Feoffor which died cannot enter for that the right survived nor yet the survivor because he shall not take advantage of the infancy of his companion but shall be forced to his writ of Right which without question he may have for that after the feofment the Ioyntenants might have joyned in it c. Lastly privies in Law as Lord by escheat Co. ib. 44. a. 4. c. shall never take advantage of the privity of infancy because he is a stranger to it and when the Infant dies without heire the feofment is unavoydable The same Law of Coverture and non same memory 109 A. grants lands to B. in tail Accruer of estate and farther that if B. or his heirs pay unto A. upon such a day at such a place xx s. that then B. shall have an estate of Fee-simple in the lands to him and his heirs In this case the privity of the estate
hath his Clergy the accessory cannot be arraigned For the Maxime of Law is Ubi factum nullum ibi forcia nulla ubi non est principalis non potest esse accessarius Then before there appears to be a principal one cannot be charged as accessory but none can be said to be principal before he be so proved and adjudged by Law and that ought to be by judgement upon verdict or confession or by outlawry for it sufficeth not that in truth there is a principal unlesse it appeare so by judgement of Law And this is the reason that when the principal is pardoned or takes his Clergy before judgement that then the accessory shall never be arraigned because it appeares not by judgement of Law that he was principal and the acceptance of the pardon or prayer of the Clergy may be an argument but can be no judgement in Law that he is guilty Howbeit if the principal after attainder be pardoned or hath his Clergy allowed there the accessory shall be arraigned because it then appears judicially that there was then a Principal 28 29. 34 35. Land tree severed 20 When a man makes a lease for life or years Co. l. 4. 64. b. 2. in Herlakendens case the Lessée hath but a special interest or property in the trées being great timber as accessories annexed to the land so long as they are annexed unto it But if the Lessée or any other sever them from the land the property and interest of the Lessée is thereby determined and the Lessor may take them as accessory things which were parcel of his Inheritance and in which the interest of the Lessée is determined c. The like 21 If I let my land for life and after grant the trées Co. ib. 62. b. 4. and after that the Lessée dies yet the Grantée cannot take them as it was holden per toram Curiam in 21 H. 6. 46. d. because at the time of the Grant the Lessée had a property in them as accessories annexed to the land c. Vide Max. 25. The like 22 If trées being great timber be blown down by the winde Co. ib. 63. b. 1. the Lessor shall have them for they were parcel of his Inheritance and not the Tenant for life or years But if they be dotards without any great timber in them the Tenant for life or years shall have them c. Superstitious uses draw good uses 23 When certain summes are limited to superstitious uses Co. l. 4. 115. a. 2. in Adams Lamberts case and one use is separated and divided from the other there the finding of one of them onely shall not give all the land to the King by the Stat. of 1 E. 6. cap. 14. but onely the sum appointed to the superstitious use which was employed within five years before the making of that Statute but if one of the uses depend upon the other there the finding of the principal or any part thereof shall give all the land to the King As if land be given to the intent that an Obit shall be found in such a Chappel and that upon the Obit 10 s. shall be distributed and employed to the Priest and 6 s. 8 d. to divers poor persons that shall be present at it and the residue of the profits to the reparations of the Chappel In this case if the Obit be maintained in any part within the five years although the 6 s. 8 d. be not employed to the poor men nor any thing at all upon the reparations of the Chappel within the five years Yet all the land shall be given to the King by the said Statute because all the uses depend upon the first 24 In suits in the Star Chamber before the repeal of that Court albeit the suit was for the King Co. lib. 5. 51. Halls case Upon censure or sentēce the King cannot pardon the damages or costs before censure or sentence contr◠and the offence such as the King might pardon yet when the censure was once given and damages given to the Plaintiff then the Plaintiff had particular interest in them by the censure which the King would not pardon But if the pardon had béene obtained before the censure there the pardon had discharged all for then the Court could not have procéeded to any censure of the Principal and by consequent neither of damages which are but accessories There is the same law of a pardon before sentence in suits depending betwixt party and party in the Court Christian for defamation casting violent hands upon a Clerk or the like for these being suits pro salute animae vel reformatione morum are in truth suits onely for the King although prosecuted by the party And therefore if in such a suit the Plaintiff hath expended any costs and the King before sentence pardons the Defendant in that case the costs are lost causa qua suprà It is otherwise if he be not pardoned till after sentence for then costs being thereby given to the Plaintiff he hath a particular interest in them which the Kings pardon cannot frustrate c. Co. l. 5. 96. b. 3. in Goodales case being adjudged in Randals case 23 24 Eliz. in the Court of Wards 25 A. seised in fée of certain lands A condition accessory to the estate by déed indented and enrolled according to the Statute covenants with B. That if B. pay unto A. his Heirs or Assignes 10 l. upon such a day at such a place that then A. and his heirs will stand seised of the said lands to the use of B. and his heirs A. having issue a son makes his Will in writing and makes C. his Executor and withal deviseth that C. shall have the land during the minority of his son and then dies his son within age In this case the question was to whom after the death of A. the Tenant ought to be paid and it was resolved that it ought to follow the estate of the land as an accessory unto it and shall not be paid unto C. either as Termor or Executor because C. could not be such an Assignée as is meant by the words of the Covenant having by the devise onely a particular interest in the land Neither yet if A. had granted the land for life or years could any such Lessee have béen Assignée in that case because notwithstanding such grant the reversion still remained in A. and the possibility of having the land again as in his former estate in case the condition were not performed and therefore the payment thereof ought to be made to his son and heir or unto the Assignée of the Covenantors whole estate as if the Covenantor had made an absolute feoffment in fée or else a gift in taile or lease for life with the remainder over in fée then the Feoffée Donée in tail or Lessée for life might be Assignées to whom the Condition ought to
a lease for life and after the Lord and the tenant inter-marry and have issue betwéen them a son and the Feme dies and after the father dies the son within age here the executors shall not have the wardship by reason of the Seigniory for the father hath the wardship of his eldest son jure naturae which is inseparable and cannot be waved and he cannot have the wardship of his son by the death of his wife in respect of his Seigniory for that was inseparably vested in him as father immediatly upon the birth of the son jure naturae And Littleton saith that the father during his life shall have the marriage of his son and heir apparent and not the Lord c. 3. Co. l. 6. 22. Ambrosia Gorges Case 10 Viscount Bindon being seised of land in capite had issue The like Douglas his daughter and heir who being married to Sir Arthur Gorge had issue by him Ambrosia a daughter Douglas dies and likewise Viscount Bindon Ambrosia being under age afterwards Sir Arthur Gorge takes another wife and hath Issue a son Ambrosia remaining still under age In this case Ambrosia was not in ward during the time she remained heir apparent to her father but after her father had a son so that she remained no longer heire apparent then had Queen Eliz. the Wardship both of her body and Lands c. Allegiance â—â—ue by nature 11 Faith Co. l. 7. Calv. Case fol. 13. b. obedience and ligeance are one to the Soveraigne by the Law of Nature which cannot be changed or taken away for albeit Iudiciall and Municipall Lawes have inflicted and imposed in several places and at several times divers and several punishments and penalties for breach or not observance of the Law of Nature for that Law onely consisting in commanding or prohibiting without any certaine punishment or penaltie yet the very Law of Nature it self could never be altered or changed And therefore it is certainly true that Jura naturalia sunt immutabilia And here with agréeth Bracton lib. 1. cap. 5. and Doct. and Student cap. 5. 6. For example 33. H. b. 55. 6. If a man hath a Ward by reason of a Seigniory and is out-lawed he forfeiteth the wardship to the King but if a man hath the wardship of his owne Sonne or Daughter which is his heire apparent and then is out-lawed he cannot forfeit that wardship because nature hath annexed it to the person of the Father as it appeareth in 33 H. 6. 55. b. So likewise the Faith Obedience and Ligeance which we owe to our Soveraigne cannot be taken away For bonus Rex nihil a bono patre differt patria dicitur à patre quia habet communem patrem qui est pater patriae In the same manner Maris foeminae conjunctio est de jure naturae 35 H. 6. 57. as Bracton and Doct. Stud. in the places before quoted do hold And therefore if he that is attainted of treason or felonie be slaine by one that hath no authoritie or executed by one that hath authoritie but pursueth not his Warrant In this Case 21 E. 3. 17. b. the eldest sonne can have no appeale for he must bring his appeale as heire which priviledge being ex provisione hominis he loseth by the attainder of his Father Howbeit his Wife if he have any shall have an appeale because she is to have her appeale as Wife which she continueth to be notwithstanding the attainder for that maris foeminae conjunctio is de jure naturae And therefore it being intended to be of true and law-full matrimonie is indissoluble and this is proved by the booke in 35 H. 6. fol. 57. So if there be Mother and Daughter and the Daughter is attainted of felonie now can not she be heire to her Mother for the cause afore said yet after her attainder if she kill her Mother this is parricide and petite treason For still she remaineth her Daughter because that is of nature If a man be attainted of felonie or treason 4 E. 4. 35 H. 6. 57. 2. Ass Pl. 3. he hath lost the Kings Legal protection for he is thereby utterly disabled to sue any Action reall or personal which is a greater disability then an alien in league hath and yet such a Parson so attainted hath not lost that protection which by the Law of Nature is given to the King for that is indelebilis immutabilis and therefore the King may protect and pardon him and if any man kill him without warrant albeit attainted as afore-said he shall be punished by Law as a Man-slayer By the Statute of the 25 E. 3. cap. 22. a man attainted in a Praemunire is by expresse words out of the Kings protection generally and yet this extendeth onely to legal protection as it appeareth by Litt. fol. 43. for the Parliament could not take away that protection which the Law of Nature giveth unto him and therefore notwithstanding that Statute the King may protect and pardon him And although by that Statute it was farther enacted that it should be done with him as with an enemie by which words any man might have slaine such a person as it is holden in 24 H. 8. Coron Br. 197. until the Statute made in 5 E. cap. 1. Yet the King might protect and pardon him A man out-lawed is out of the benefit of the Municipal Law for so saith Fitz. N. B. 161. Ut legatus est quasi extra legem positus And Bracton l. 3. tract 2. cap. 11. saith that caput gerit lupinum c. yet is he not out either of his natural ligeance or of the Kings natural protection for neither of them is tied to municipal lawes but is due by the law of Nature which was long before any judicial or municipal lawes And therefore if a man were out-lawed for felonie yet was he within the Kings natural protection for no man but the Sheriffe could execute him as it is adjudged in 2. Ass Pl. 3. Every subject is by his natural ligeance bound to obey and serve his Soveraigne c. It is enacted by the Parliament in 23 H. 6. cap. 8. that no man should serve the King as Sheriffe of any County above one yeare and that notwithstanding any clause of non obstante to the contrary that is to say notwithstanding that the King should expressy dispence with the said Statute howbeit it is agréed in 2 H. 7. that against the expresse purview of that Act the King may by a special non obstante dispence with that Act for that the Act could not barre the King of the service of his subject which the law of nature did give unto him One of the Chiefest grounds according to which the Case of the post-nati was resolved in 6 Jac. was because obedience and ligeance of the subject to the Soveraigne is due by the law of Nature for if they be due by that law
and the same law be parcel of the lawes of England as well as of all other Nations and is immutable and that post-nati we of England are united by birth-right in obedience and ligeance which is the true cause of natural subjection by the law of Nature It cleerly followed that Calvin the Plaintiffe in that cause being borne under one ligeance to one and the same King could not be an alien borne And there is great reason as it was then alledged that the law of Nature should direct that Case wherein five natural operations were remarkable 1 The King had the Crowne of England by birth-right being naturally procreated of the bloud Royal of this Realme Secondly Calvin the Plaintiffe was naturalized by procreation and birth-right since the descent of the Crowne of England Thirdly Ligeance and obedience of the subject to the Soveraigne due by the Law of Nature Fourthly Protection and government also due by the Law of Nature Fiftly It was presently said that this Case of Calvin in the opinion of divers was more doubtfull in the beginning but the farther it procéeded the cleerer and stronger it grew and therefore that the doubt did arise from some violent passion and not from any reason grounded upon the Law of Nature quia quantò violentus motus qui sit contra naturam appropinquat ad suum finem tantò debiliores tardiores sunt ejus motus sed naturalis motus quantò magis appropinquat ad suum finem tanto fortiores velociores sunt ejus motus And for as much as in case of an alien Borne you must of necessitie have two federal ligeances to two several persons but in this Case one person alone is head of both and the post-nati and we now joyned in ligeance so that one head which was copula tanquam oculus of that Case And ligeance of the subjects of both Kingdomes being due to their Soveraigne by one and the same Law viz. by the Law of Nature the post-nati cannot be aliens of either Kingdome but ad invicem naturalized subjects of both for Non adversatur diversitas regnorum sed regnantium non patriarum sed patrum patriarum non coronarum sed coronatorum non legum municipalium sed Regum Majestatum c. Mother guardian 1◠If the Grand-father hath issue a Sonne F. N. B. 1◠and the Sonne take Wife and hath issue and die the Mother of the issue shall have the Wardship of the issue which is her owne Sonne and not the Grand-father Albeit the issue may have the Land which ought to descend unto him from the Grand-father that the Mother shall not have it c. No champerty in the Sonne 13 The Statute of Articuli sup cartas cap. 11. provides Pl. Co. 88. b. 3. Partriges case that no Minister or other whatsoever to have part of the things which are in Plea shall undertake businesses which are so in plea yet if the Tenant hanging a percipe quod reddat against him enfeoffe his Sonne and heire apparent this shall be out of the danger of that Statute as it is taken in 6 E. 3. 274. in a writ of Champertie see it also in Fitz. Champertie 10. and the reason of this is for that the Sonne cannot be said a Maintainer of the Father because he is bound to aide and assist his Father when and as often as he may being enjoyned so to do by the Law of nature c. The Son may a bet his mother 14 By the Statute of West 2. cap. 12. it is ordained Pl. Co. ibid. that in an appeale it shall be inquired who were the Abettors and that they shall render damages to the partie acquit Neverthelesse if the heire abet his Mother to bring the appeale although it is within the words of that Statute yet shall he be out of the danger of it And so Herle tooke it in 6 E. 3. 274. For Common Law and reason say that he ought to be aiding to his Mother and may also abet her Considerations to raise uses 15 Affection for the provision of heires male that one shall engender Finch 25. Co. Inst p. 1. 21. b. 1. Brotherly love c. are good consideration to raise an use But long Acquaintance and familiarity are not Howbeit consideration of Mariage is more favoured in Law then any other Maintenance 16 The Sonne may maintaine his Father and one Brother another c. Finch ibid. 17 Brothers or Cofins shall not wage Battel in a writ of right Finch ibid. c. The Wife may relieve her Husband 18 A Statute Finch ibid. that maketh it Felonie to receive or give meat and drink to one that committeth such or such an offence the partie so receiving or giving having knowledge thereof stretched not to a Woman that receiveth or giveth meat and drink to her Husband in such a Case c. Privitie in Bloud strongest 19 You shall finde three manner of Privities spoken of in the Law Co. l. 8. 42. b. 4. 44. a. 4. in Whittinghams Case viz. Privitie in Bloud Privitie in Estate and Privitie in Law Privite in Bloud is that between the Ancestor the Heire Privitie in Estate as between Iointenants Baron and Feme Donor and Donée Lessor and Lessée c. Privies in Law are as when the Law without Bloud or Privitie of Estate casts the Land upon one and makes his entry Congeable as the Lord by escheate the Lord that enters for Mortmaine Lord of a Villein c. Now of these three sorts of privities onely the first which is by bloud and therefore most natural shall take advantage of Infancie Coverture non sanae memoriae c. and not the other two And therefore if an Infant Tenant in Fée-simple make a Feoffement and die his Heire shall enter There is the same Law also of heires special and of heires general and special unto whom the right of entry descends per formam doni or by the Custome as all Lands in Gavelkind Borough-English c. It is otherwise of privies in Estate and in Law And therefore if the Donée in tale within age make feoffment in Fée and die without issue the Donor shall not enter Because there was onely privitie in Estate betwée them and no right accrued to the Donor by the death of the Donée So if there be two Iointenants in Fée within age and the one makes Feoffment in Fée of his moitie and dies the sur-vivor cannot enter by reason the Infancie of his Companion Because by his Feoffment the joyntenure was severed so long as the Feoffment remaines in force and therefore in such Case the Heire of the Feoffor shall have a dum fuit infra aetatem or shall enter into the moitie In like manner Privies in Law as the Lord by escheate c. shall never take advantage of the Privitie of Infancie because they are strangers to it And in that
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
Also if issue be taken whether the Plaintiffe be an Earl or no it shall not be tried by the Countrey but the Kings writ Also the Defendant shall not have a day of grace against a Lord of the Parliament because he is conceived to attend the publique And all these and many other do appear in our Books 48 E. 3. 30. Regist 179. F. N. B. 247. 48. Ass Pl. c. 23. Ass Pl. 24. 32 H. 6. 27. 35 H. 6. 46. So that as when such an Office descends to an infant or to a man de non sanae memoriae they of necessity ought to exercise it by Deputy so likewise an Earl for the necessity of his attendence which the Law intends upon the King and the Common-wealth that Stewardship of a base Court shall be executed by Deputy Also if a Parkership be granted to an Earl without words to make a Deputy yet he may keep it by his servants And if a Duke have licence to hunt in a Park the Law will allow him attendance suitable to his condition c. Marshalsie Seisure Office Scire facias 56 It was found by Office in 9 Jac. that Sir George Reynel had forfeited the Office of Marshal of the Marshalsie Co. l. 9 95. b. 3. in Sir George Reynels Case by divers voluntary escapes and it was resolved that the King might seise that Office without suing out a Scire facias And in that Case it was observed 1 That the King in some cases shall be in possession by seisure without Office as in 21 H. 7. and Stamf. in case of temporalties of a Bishop and of Priors aliens because the certainty of them appears in the Exchequer 2 He shall sometimes be in possession by Office without seisure as of Lands Tenements Offices c. which are local oâ— whereof continual profit may be taken as upon condition attainder wardship c. Vide 2 H. 7. 8. Stamf. 55. Dowries case in Rep. 3. and the Sadlers Rep. 5. And the Office albeit false yet cannot be avoided without traverse for he cannot traverse the Kings title in the information Traverse Advowson c. 20 E. 4. 10. 3 The King shall be in possession by Office and seisure of an Advowson and thereof he is not in possession until presentment admission and institution And if the King upon refusal bring a Quare Impedit the owner may traverse the Kings title in that Action without traverse of the Office because it is not a manual but an incorporal hereditament also the right to present is casual and not continual 4 The King shall be in possession without office where his tenant died without heir 9 H. 7. 2. 5 When distinct matters amount to an office in that case there ought to be a Scire facias before the King can seise 6 When a common person is put to his Action In that Case the King upon office is put to his Scire facias c. â—o tenure reâ—erved Capite 57 When the King grants any land without reservation of any tenure or absque aliquo inde reddendo or the like Co. l. 9. 123. b. 3. in Anthony Lowes Case the Land by operation of Law shall be holden of the King in capite by knights-service according to the rate and proportion of Land holden by knights-service viz. more or lesse according to the quantity of the Land c. 58 When any thing is due to the King Co. l. 9. 132. a. in Holis Case he ought to have the full and compleat effect of the thing so due unto him As if there be Grandfather Father and Son of Lands whereof some are holden of the King in capite by Knight-service in capite and the residue of other Lords c. And the Grandfather conveys all the Lands holden of other Lords and part of the capite Lands to the Father for life the remainder to the Son in tail the remainder to the right heirs of the Grandfather And the residue of the capite Lands to four younger Sons successively for life the remainer to the right Heirs of the Grandfather the Grandfather dies the Father tenders his livery and dies before livery sued or office found the Son being of full age and all this is found by office and the Son continues the livery the four younger Sons being still in life In this Case albeit by the death of the father before livery sued the King hath lost the priviledge of having primer seisin after the death of the Grandfather as it was adjudged in Northcots case and in Hales case in the 8 Rep. c. for here the Son shall not sue livery nor pay primer seisin because they were due by the Father after the death of the Grandfather and the Son living the Father is not within the Statutes of 32 34 H. 8. for the Lands conveyed unto him Neverthelesse in the same Case the King shall have primer seisin for the Lands conveyed to the younger Sons because they are within the thrée Cases in which wardship and primer seisin are given unto the King by the said Acts viz. Advancement of his wife preferment of his children and payment of his debts And the reason hereof is because when the said Acts give unto the King primer seisin it is intended of an actual and effectual primer seisin and not of one which is onely Mathematical and Imaginary for as before is said the King ought alwayes to have a full and compleat effect of the thing which is due unto him So also if the King hath title to present by lapse hâc vice and he present and his Clerk is admitted and instituted but dies before induction In this Case the King shall present again for he had not the full and compleat effect of his presentation as it was resolved by Sir James Dyer rotam Curiam in Gyles his Case 18 Eliz. in Co. Ba. Likewise if the King marry a daughter Marriage again which he hath inward infra annos nubiles and before the age of consent the Baron dies the King shall have the marriage of the Heir again because the first marriage was not compleat as it was resolved in Ambrosia Gores case in the 6 Rep. fol. 22. King donor not barred And the King donor in tail before the Statute of West 2. de donis c. was not barred by the alienation of the Donée post prolem suscitatam without Assets albeit there were collateral warranty Howbeit in all these Cases a common person shall be barred c. Co. l. 10. 113. b 1. in Legats Case 59 When the King grants any thing upon a false insinuation Grant upon false suggestions void or suggestion such a grant of the Kings is void for in that Case there is a diversity betwéen the King a common person For a Subject that may intend his private affairs shall not in such Case avoid his Grant but the King who intends the Publique good shall avoid
fuit infra aetatem but for the moity onely Feofment 14 When an Infant makes a feoffment being within age Co. ibid. 337. b. 2 3. Litt. §. 635. he may enter either within age or at any time after full age and likewise after his death his heire may enter meliorem enim conditionem facere potest minor deteriorem nequaquam Also a special heire shall take advantage of the Infancy of the Ancestor Borough-English as if tenant in taile of an Acre of the Custome of Borough-English make a feoffment in fée within age and dieth the youngest Son shall avoid it for he is privy in bloud and claimeth by descent from the Infant Special taile So likewise if Tenant in taile to him and the heires Female of his body make a feoffment in Fée and dieth within age having issuing a Son and a Daughter the Daughter shall void the feoffment And so note by the way that a cause to enter by reason of the Infancy is not like to conditions Warranties and Estoples which even descend to the heire at the Common Law 15 If Tenant in taile enfeoffe his heire apparent Co. ibid. 350. b. 1. Litt. §. 664. the heire being of full age at the time of the Feofment Feofment reâ—â—â— and after the Tenant in taile dies this is no remitter to the heires Because it was his folly that he being at full age would take such a feofment But such folly cannot be adjudged in the heire if he had béen within age at the time of the feofment made in respect of his tender yeares and want of experience 16 If tenant in taile enfeoffe a Feme in Fée and die and his issue within age takes the same Feme to Wife â—aile â—eme Remitter Litt. §. 665. this is a remitter to the Infant within age and the Feme then hath nothing Because no folly can be judged in him being within age at the time of the Espousals It is otherwise if such heire were of full age at the time of the Espousals For then the heire hath nothing but right of his wife c. There is the same Law Co. ibid. 351. b. 4. where the Tenant in taile Enfeoffes his issue being within age and the wife of the issue in fée and dieth for in this Case also the issue is remitted c. 17 If a Feme seised of lands in fée take Baron Co. ibid. 351. b. 4. Litt. §. 666. who aliens the same lands in fée and the Alienée lets the Lands to the Baron and Feme for life saving the Reversion to the Lessor and his Heirs In this Case the Feme is remitted and is seised of the Lands in her Demesne as of fée as she was before because the reprisal of the Estate shall be adjudged in Law the act of the Baron and not of the Feme so that no folly can be adjudged in the Feme who was covert at the time of making the Lease And in this Case the Lessor hath nothing in the Reversion because the Feme is seised in fée c. And here Litt. §. 648 669. if the Lessor sue an Action of wast for wast committed by the Baron albeit the Baron cannot against his own feofment and reprisal bar the Lessor by shewing the remitter to his Feme c. yet in such an Action if the Baron make default to the great distresse and the Feme pray to be received and is received accordingly she may well shew the whole matter and how she is in her remitter and so shall she bar the Lessor of his Action c. for regularly in every Case where the Feme is received for default of the Baron she shall in pleading have the same advantage that a Feme sole hath c. There is the same Law if the Alienée had made the Lease by Déed indented or by Fine because in taking a thing by Fine the Feme is never examined c. Co. ib. 353. a. 1 18 If a Feme covert be received in an Assise and plead a Record Assise Disseisor and fail she shall not therefore be adjudged a Disseisor as she should be if she were sole c. So if a Feme covert onely levy a Fine executory and a Scire facias is brought against her and her husband if she be received upon the default of the husband she shall bar the Conusée which if she had béen sole she could not do c. Co. ib. 353. a. 3 19 In the acknowledging of a Fine by a Feme covert Fine Examination least she should be deceived or any way abused her examination ought to be secret and to this effect viz. whether she be content to levy a Fine of such lands naming them particularly and distinctly and the state that passeth by the Fine of her own voluntary free will and not by threats menaces or any other compulsory means Litt. §. 677. Co. ib. 356. b. 3 20 If the Baron dis-continue the land of the Feme Remitter and the Discontinuée lets the same land to the Feme for term of her life and gives her seisin thereof accordingly In this Case whether the Baron were out of the Realm when the Lease was made or within the Realm or whether the Baron agrée to the Lease or no neverthelesse the Feme in this Case is remitted It had béen otherwise if she had béen sole at the time of the Lease made for then she could not have béen remitted c. Litt. § 696. Co. ib. 364. a. 4 21 If two Ioint-tenants of lands in fée the one of full age Remitter the other under age are disseised and the disseisor dies seised and his Issue enters one of the Ioint-tenants being still within age and after he attains his full age the heir of the Disseisor lets the Lands to both the Ioint-tenants for their lives this is a remitter as to the moity to him that was within age because his entry was congeable But the other hath but an Estate for life in the other moity because his entry was taken away by the dying seised c. for the Infant being favoured in Law had right of Entry whereas the other had onely right of action c. 22 At the Common Law before the Statute of 11 H. 7. cap. 20. Warrantie if tenant in Dower had aliened the Land in fée with warranty Litt. §. 725 7â—6 Co. ib. 380. a. 3 and thâ—t warranty had descended to the Heir who was to inherit the land in Dower the Heir had béen thereby barred to demand the same land Howbeit if the Heir were within age at the time of the warranty descended upon him In that Case the Heir might enter and avoid the Estate either within age or at any time after his full age but if he were within age at the time of the alienation with warranty and became of full age before the descent of the warranty
he was a Lay-man and knew not letters and he acknowledged himselfe to be bound to the Plaintife by the said déed in 20 shillings which he hath paid and thereof sheweth an acquitance and as to the residue of the summe in the said Obligation nient son fait And in this Case for as much as the déed consisted upon an intire summe it was adjudged void for all The same is also agréed in 14 H. 8. 26. 30 E. 3. 31. Fee taile read for fee-simple 8 In 30 E. 3. casu ultimo in an Assise before Sheriffe and others in pais Co. lib. 11. 27. b. 3. in Hear Pigots Case the Tenant pleads feoffement of the Plaintifs to him by déed of the Land in plea to have and hold to him and his Heires comprehending a letter of Attorney to deliver seisin c. And in truth the Plaintiffe was a Lay-man ignorant of Letters and the déed with the letter of Attorney was read unto him according to the forme of an Estate taile and for the same intent he sealed and delivered the déed with the letter of Attorney in it to deliver seisin And in this Case the feoffment was adjudged void and the letter of Attorney also albeit it were truly read because it depended upon the feoffment and had relation to the Estate in fée Incidents to a deed And there Thorpe Iustice said that every déed ought to have writing sealing and delivery and when any thing passed from such as have no understanding but by hearing onely there ought also to be reading added to the other three And indéed he that is not lettered is reputed in Law as one that cannot sée but onely heare Blind and all his understanding is by hearing So likewise a man that is learned but cannot sée as to purpose taken in Law as a man not lettered And therefore if a man be learned but blind if the déed be read unto him in another manner c. he shall avoid the déed because all his understanding in such Case is by his hearing as it was resolved in Shuters Case in the Starre-chamber M. 9 Jac. who was a man of 115 yeares of age at the time of his death Vide John Pinchons Case in 37 E. 3. 3. cited in Cooke ubi supra Vide 63. 35. 85 The Law favoureth Strangers that are neither parties nor privies â—ord Tenant â—eofment â—pon Condiâ—â—on 1 Lord and Tenant and the Tenant maketh a feofment in Fée upon Condition the Feoffor dyeth Co. Inst p. 1. 76. b. 1. after his death the Condition is broken and the Heire within age entreth for the Condition broken In this Case albeit the Feoffor had no Estate or right in the Land at the time of his death but onely a Condition and which was broken after his decease yet the Heire shall be in ward for the Lord was neither partie nor privy to the Conditional feoffment and therefore there could be no default in the Lord to barre him of his wardship Mannor â—ondition â—dvowson â—pendant 2 A man seised of Land whereunto Condition is appendant Co. ibid. 122. b. 1. is disseised In this Case the disseisée cannot use the Condition until he entreth into the Land whereunto it is appendant But if a man be disseised of a mannor whereunto an advowson is appendant he may present unto the Advowson before he enters into the Mannor And the reason of this diversity is because in the Case of the Condition it should be a prejudice to the Tenant of the soile for if the disseisée might put on his cattle the disseisor might do so too which would be a double charge to the Tenant It is otherwise of an Advowson c. Co. ibid. 132 b 2. 3 Profession or entring into Religion is a Civil death so that his heire shall inherit howbeit Profession Tolleth not entry this shall work no prejudice or wrong to a stranger that hath a former right And therefore if the disseisor entreth into Religion and is professed so as the Land descends to his heire yet this descent shall not toll the entry of the disseisée c. Co. ibid. 148 b. 3 4 If there be Lord and Tenant of 40 acres of Land by fealty and 20 shillings Rent if the Tenant maketh a gift in tail Rent suspended in all or a lease for life or yeares of parcel thereof to the Lord in this Case the Rent shall not be apportioned in any part but the rent shall be suspended for the whole for a Rent-service saith Litt. § 222 may be extinct for part and apportioned for the rest but regularily it cannot be suspended in part by the Act of the partie and in esse for another part So it is also if the Lessor enter upon the Lessée for life or yeares into part and thereof disseise or put out the Lessée the Rent is suspended in the whole In parts Howbeit a Seigniory may be suspended in part by the Act of a stranger As if two joynt-tenants or coperceners be of a Seigniory and one of them disseise the Tenant of the Land the other joynt-tenant or copercener shall distraine for his or her moity for it is no reason that they being strangers should suffer any prejudice by the Act of another c. Litt. §. 222 Co. ibid. 149 b. 4 5 If a man hath a Rent charge to him and his heires Rent-charge not extinct to a stranger issuing out of certain Land if he purchase any parcel thereof to him and his heirs all that rent-charge is extinct so as the unity of possession of parcel of the Land and of the Rent by the Act of the party extinguisheth the whole Rent Howbeit if the grantée of a Rent-charge grant the Rent to the Tenanâ— of the Land and to a stranger In this Case the Rent shall not be totally extinct but onely for the moity c. Co. ibid. 208 b. 3. Co. l. 2. 75. b. 3. Lord Cromwels Case Co. ib. 128. a. 3 Co. lib 6. 31. a. Bothies Case 6 As concerning a Condition of an Obligation Condition Stranger Feoffee Obligee and upon a Feofment there is a diversity where the Act that is local is to be done to a stranger and where to the obligée or feoffor himselfe As if one make a feofment in Fée upon Condition that the Feoffée shall enfeoffe a stranger and no time limited the feoffée shall not have time during his life to make the feofment for then he should take the profits in the interim to his owne use which the stranger ought to have And therefore in that Case Co. ibid. 218 b. 4. he ought to make the feofment as soon as conveniently he may And so it is likewise of the Condition of an Obligation It is otherwise when the Condition is that the feoffée shall re-enfeoffe the Feoffor for there the Feoffe hath time during his life unlesse he be hastned
the procheine avoydance is a sufficient title in a Quare Impedit for the Grantor There is the same Law of Lessée for life tenant in Dower by the Courtesie Guardian Tenant by Statute Merchant staple c. And this agrées with divers opinions in 7 E. 4. 20. 22 E. 4. 9. b. 16 H. 7. 18. a. 9 H. 7. 23. Br. Quare Impedit 1 22. 13 El. Dier 300. But sicut beatius est ita majus est dare quam accipere for the termor cannot give seisin of the Rent as in the Case alone put because that would trench to the dis-advantage of the Terre-tenant who is a stranger Howbeit he may take seisin c. for his benefit according to the Rule Res inter alios acta alteri nocere debet sed quandoque prodesse potest In Quare Impedit the Patron must be party 22 John Hall brings a Quare Impedit against the Bishop of Bath and Wells Co. l. 7 25. b. 4. in Mauntons Case and Thomas Maunton Clerk defendant for disturbing him from presenting to the Vicarage of W. And it was resolved that the writ should abate because the Patron was not named in the writ for so the Patronage might be recovered against him that hath nothing in it And it is no reason that he who is Patron should be dis-possessed and outed of his Patronage when he is a stranger and no partie to the writ and especially in this Case when he may be made partie to the writ c. So in 42 E. 3. fol. 7. One brings a Quare Impedit against another the Defendant saith that he claimes nothing in the Patronage but saith that the Bishop presenteth him by laps Judgment si tort c. And there Belknap prayd a writ to the Bishop because he dis-claimed in the Patronage but the Court could not grant it because neither the Patron nor the Bishop who in that Case was in lieu of the Patron were named in the writ And therefore it was adjudged that the writ should abate For if such a writ should be mainteinable every Patron by covin betwéen a stranger and the incumbent might be outed of his advowson And with this agréed 9 H. 6. 30 31. c. 3 H. 4. 2 3. 13 H. 8. 13. Howbeit in a Quare Impedit when the presentation onely is to be recovered and not the Advowson neither yet the Patron to be put out of possession In that Case the writ is adjudged good without naming the Patron c. as it was adjudged in 7 H. 4. 25. 37. Joint-tenant Release Continuance 23 A judgment in debt is given against joint-tenant for life Co. l. 6. 78. b. in the Lord of Aburgavenies Case who releaseth to the other who dies the Reversioner enters the Plaintife sues execution And in this Case it was adjudged that notwithstanding the death thereof lessée and that the Lessor enters and is in of his ancient right yet as to the Plaintife the estate hath continuance And if the Baron seised of Rent Dower Rent Common Common c. in fée releaseth to the Terre-tenant that Rent Common c. is extinct And yet having regard to the Feme they have continuance for she shall be thereof endowed as it is adjudged in 5 E. 2. Dower 143. c. Rent in esse after release 24 Dixwel and his Wife Co. lib. 7. 38. Lillingstones Case and Sillingston and his Wife levie a fine of the Rectory of Litlington in Com. Bedd the Conusées render a rent charge of 30 l. per an to several for life to commence after his wives deceise proviso quod non extendit ad onerandum personas les Conusees c. and then also render the Rectory to Dixwell during his wifes life the Remainder to Lillingston c. acknowledgeth a recognisance to Duncombe of 500 l. in the nature of a Statute staple according to the Statute of 23 H. 8. the Wife Dixwel dies Lillingston enters Dixvvel releaseth to Lillingston Duncombe sues a Cerciorari to the Clerk of the Stat. who certifies the recognisance whereupon the rent was extended and upon a liberate was delivered unto Duncombe who brings an Action of debt against Lillingston who all that while was Tenant of the Rectory and Duncombe averred the life of Dixwell And it was adjudged that as to Duncombe who is a stranger notwithstanding such release the Rent remaines in esse for to some purposes by the Common Law a rent extinct shall be in esse as to a stranger c. as if the Baron be seised of a rent in fée and release to the terre-tenant yet the Feme shall be endowed c. Co. l. 8. 133. a. 2. in Turners Case 25 If an Executor or Administrator compound with one Administrator composition who hath judgement of 100 l. for 60 l. this under-hand composition shall not prejudice another creditor that is a stranger For an Executor and Administrator ought to execute their office lawfully in paying all duties debts and legacies in such precedency as the Law requires truly in converting nothing to their owne use dilligently quia negligentia semper habet infortunem comitem And an Agréement betwéen two shall not annoy a third person Sée Goodals Case Co. lib. 5. 96. supra R. 85. ex 8. Co. lib. 8. 136. a. 1. in Sir John Nedhams case 26 If the obligée make the obligor his Executor Bishop Obligor Administrator this is in Law a release of the debt because it is the Act of the obligée himselfe and with this accords 8 E. 4. 3. 21 E. 4. 2. b. c. But if the Archbishop Grant letters of Administration to the obligor this shall not extinguish the debt but it shall still remaine for the Act of the Archbishop and the obligor shall not wrong the dead who is in that Case as a third person Co. l. 8 138. a in Sir Francis Barringtons Case 27 It appeares by the preamble of the Statute of 22 E. 4. cap. 7. Statute of 22. E. 4. 7. which gives Licence of enclosing several woods in forests c. seven yeares after they are felled for the better preserving of them from cattle betwéen what persons and for or against whom that Act was made And the parties to that great contract by Act of Parliament are the subjects having woods c. within forests chases and perliens on the one part and the King and other owners of forests chases and perliens on the other part so that the Commoners are not any of the parties betwéen whom that Act was made And therefore being strangers unto it ought to receive no prejudice by it So likewise the Act of 2 H. 5. being made betwéen the King and the Priors aliens whereby the Priories aliens were given to the King shall not extinguish the annuity of the Prior of Castle-acre which he had out of a Rectory parcel of a Priory alien Albeit there was not any saving in
it is agréed in 4 E. 2. Avowry 204. Co. l. 8. 133. a. 1 in Turners Case 31 For asmuch as an Executor or Administrator hath not the goods of the dead to his owne use but in auter droit to the use of the dead Executor Administratâ— ought to eâ—â—cute his Oâ— lawfully c he ought to execute his Office and to administer the goods of the dead lawfully truely and diligently lawfully in paying all duties debts and legacies in such precedency and order as they ought to be paid by the Law truly viz. to convert none of them to his owne use neither yet by any practice or devise to barre or hinder any creditor of his due debt but truly to execute his Office according to the trust reposed in him diligently Quia negligentia semper habet infortunium comitem c. Co. lib. 8. 135. b. 3. in Sir John Nedhams Case 32 The Bishop who is an Executor appointed by the Law Ordinary 〈◊〉 not dispoâ—eâ— the Goods 〈◊〉 for the good 〈◊〉 the dead Executor â—rante â—liaâ—tate is not permitted by the Law to make a release of debt or gift of goods For he hath a special property in the goods of the dead for the benefit of the dead and nothing to his owne use and it appeares in 9 El. Dier 253. that the Ordinary hath not power to give authority to another to sell the goods of the dead because he hath not any such authority himselfe And the Statute of West 2. is Bona deveniunt ad manus Ordinarii disponenda viz. for the good of the dead And he is not much unlike as to that purpose an Administrator durante minore aetate who hath special power committed unto him to dispose of the goods of the dead and nothing in prejudice of the Executor as it is holden in Princes in the 5 Rep. fol. 29. So likewise the Lord of a Copi-hold Mannor who takes a surrender to the use of another hath onely power to grant if according to the use of the surrender and not to the use of any stranger as it is holden in the 4. Rep. fol. 28. in Westwickes Case â—dministratiâ— to the Obâ—goâ— 33 If the Obligée make the Obligor his Executor Co. ib. 132 a. 1. in Sir John Nedhams Case this is a release in Law of the debt because that is the Act of the Obligée himselfe but if a Commission of Administration be granted by the Archbishop to the Obligor that shall not extinguish the debt because then he hath the debt in anothers right and for the good of the dead c. â—arrien â—esentment 34 If a man present to an Advowson F. N. B. 31. l. and after lets it for term of yeares and after the Church is void and the Tenant for yeares presents c. And after the incumbent dies and Lessor presents and is disturbed In this Case it séemes he shall not have an Assise de darrien presentment because the Tenant for yeares presents in his owne right but if a Guardian presente in right of the heire and after the incumbent die In that Case the heire shall present and if he be disturbed he shall have an Assise de darrein presentment because the Guardian did it in auter droit â—uare Impedit viz. in the right of the heire c. This séemes to be the opinion of Fitz. Howbeit it is resolued in the 5. Co. l. 5. 97. b. in the Count. of North. Case Report fol. 97. in the Countesse of Northumberlands Case that the presentation of the Grantée of the prochiene avoydance is sufficient title in a Quare Impedit for the Grantor and his heires because he doth it in the right and title of the Grantor So it is also of Lessee for yeares life Tenant in Dower Courtesie Guardian Tenant by Statute c. And with this agrées divers opinions in our Books viz. 7 L. 4. 20. 22 E. 4. 9. b. 16 H. 7. 18. a. 9. H. 7. 23. Br. Quare Impedit 122. 13 El. Dier 300. 35 In debt brought by two Executors the one is summoned and severed and afterwards he that was severed dies Co. l. 10. 134. a. 3. in Read Redmans Case and the Defendant pleads this in abatement In this Case the writ shall not abate because either of them Act in an others right 89 The Law dis-favoureth other persons as Villeins Bond-men Out-lawes Ex-leges men in Exile Aliens and especially Aliens that are enemies â—hallenge to â— Poll. 1 It is principal Challenge to the Pol Co. Inst p. 1. 156. b. 4. that he is a Villein or Bondman Also upon the trial in a writ of right by battaile the Champion must be a Frée-man and no Villein or Bond-man And this is propter defectum â—sure by the â—rd 2 A Villein can hold nothing either Land or Goods in his owne right for Quicquid acquiritur servo acquiritur Domino c. Co. ib. 117. a. 3. â—â—gatus baâ— caput Lâ—piâ— 3 In the Reigne of King Elfred Co. ib. 128. b. 3. and until a good while after the Conquest Out-lawry was estéemed in Law a grievous punishment so that none was in those times out-lawed save onely for felony the punishment whereof was death And therefore in ancient time as appeares by divers old Books and Records An out-lawed man was saide to have Caput Lupinum because he may be put to death by any man as a Wolfe that hatefull beast might Fleta l. 1. c. 27. Bract. lib. 5. fol. 421. Britt 20. b. Mirroir cap. 2. sect default punishm Utlagatus Waviata capita habent Lupina quae ab omnibus impurè poterant amputari meritò enim sine lege debent perire qui secundum legem vivere recusant And another saith Utlage pur felonie seigne lien pour Loup est criable Walfeshead pur ceo que Loup est beasts hay to touts gents de ceo en avant list a ascun de le occire ou foer del Loup dout custome soloit este de porter les testes al Chiefe lien del County or de la Franchise sol oit tou avoir d'un Marke del County pur chescun teste de utlage de Loup And this agréeth with the Law before the Conquest Utlagatus Lupinum gerit caput quod Anglicè Wolfeshead dicitur Et haec est lex communis generalis de omnibus utlegatis 2. Ass Pl. 3. 2 E. 3. tit Corone 148. But in the beginning of the Raigne of E. 3. it was resolved by the Iudges for avoiding of inhumanity and of effusion of Christian bloud That it should not be lawfull for any man save the Sheriffe onely having lawfull warrant therefore to put to death any man out-lawed although it were for felony upon paine to suffer the like punishment as if he had killed any other man Note that about Bractons time processe of out-lawry was given in actions that were
imprisonment ought to be strictly interpreted to preserve as much as may be the liberty of the subject So the Act of 14 H. 8. cap. 5. which gave power to the President and Censors of the Colledge of Physicians in London to imprison was so strictly and liberally to be understood that the Gaoler was not thereby bound to receive such as they should commit unto him because there was no clause in that Statute to give him power so to do â—â—â—tures that â—â—â—tabridge â—â—eny to be â—â—rictly interâ—â—cted And therefore was the Statute of 1 Mar. cap. 9. made which commands the Goaler to receive them upon a penalty c. And yet the receit of the Goaler in that case séemes to be a necessary incident to the power given them to imprison but in regard it concerned the liberty of the subject and they had not the authority of any Court to commit any the Goaler could not receive such as they should commit without an expresse provision by Act of Parliament for that purpose c. Co. lib. 5. 64. Clerks Case Et Co. l. 8. 127. b. 1. in the city of Londons Case â—o constituâ—n upon peâ—â—lty of imâ—isonment 22 A Mayor and Cominalty c. may make by Lawes and Constitutions for the good ordering of their Corporation c. and may inflict a reasonable pecuniary penalty for the due observing thereof to be levied by distresse or recovered by Action of debt c. But they cannot inflict penalty of imprisonement for such a Constitution or Ordinance which trencheth upon the liberty of the subject is not favoured in Law and besides it is expressely against the letter of Magna Carta c. 29. Nullus liber homo imprisonetur c. Co. l. 8. 60. 2. 3. in Beechers Case 23 In an Appeale of Death Robbery Imprisonneâ— for malicious fact that concernes life or any other Appeale of Felony or of Maihem If the Plaintiffe be barred or non-suit or if the Writ abate by his owne default he shall be fined and imprisoned 8 H. 4. 17. 20. for the malice is more venomous which concernes life and member F. N. B. 68. c. 24 In a Homine replegiando if the Sheriffe return A Capias in Withernam 〈◊〉 releive a prisoner that the Defendant hath eloigned the body of the Plaintiffe so that he cannot make deliverance c. Then the Plaintiffe shall have a Capias in Withernam to take the body of the Defendant and shall detaine him c. until c. be he Péere of the Realme or other common Person And if the Sheriffe return non est inventus upon that Capias in Withernam of the Body then shall the Plaintiffe have a Capias in Withernam of the goods of the Defendant c. And this is in favorem libertatis F.N.B. 78 c. d. 25 If a man sue speciall Writ de Nativo habendo against two But two Villeins sued c. more may sâ—â— c. the two may joine in a Writ De libertate probanda notwithstanding those severall Writs And a man shall not joine above two Villeins in a Writ De nativo habendo But more may joine in a libertate probanda And that is in favorem libertatis F.N.B. ibid. f. 26 In a Writ De nativo habendo if the Plaintiffe after apperance departs in dispâ—te of the Court Enfranchisment upon contempt or Retraxit or saith he will fetch his Counsel and after being demanded makes default In these Cases the Villein shall be Enfranchised for ever So also shall he be upon a Retraxit when the Plaintiffe saith he will pursue his Writ no farther causa qua suprà c. F.N.B. ibid. g. 27 If a Free-man marry a Neife she shall be frée for ever A Nicle free by marriageâ— a Free-man albeit the Baron die and she survive And this as Fitz notes out of Britton is in favorem libertatis for a Frée Woman shall not be a Villein by taking a Villein to Husband F. N. B. 99. d. 28 If a man sue a Writ of Monstravit against a Bailiff upon the Statute of Malbridge cap. 23. No monstâ—â—â— if the accountant hath lands with purpose that the Sheriffe should attache his Body to bring him to accompt when as he hath sufficient Lands in another County by which he may be made to answer by Writ of Accompt In that Case the Defendant shall have a Writ of disceit against the Plaintiffe that sues the Monstravit for so long as he hath lands his body in that case ought not to be attached Finch 29. 29 If a Man for Feare Confession â— a Felon not taken or in Simplicity will Confesse himselfe guilty of a Felony yet the Iudge must not Record that Confession but suffer him to plead not guilty And that is in favorem vitae Co. Inst p. 1. 33. b. 1. 30 A Feme if she be married is either a Wife De facto A Feme De â—â—re shall oneâ— bring an appeal or De Jure De facto until both of them have attained the yeares of Consent viz. 24 for the Man and 12 for the Woman De Jure when at those ages they have not dis-assented Now albeit a Wife De facto onely who is nine yeares old at her husbands death though he be but foure yeares old when he dies shall be endowed yet as some hold such a Wife De facto shall not have an appeale of the death of her Husband but onely she that is a Wife De Jure and that is in favorem vitae Wardship Marriage 31 Wardship hath béen always especially of late times accounted a kinde of slavery Co. ibid. 79. b Litt § 105. Brit. 169. Glanvil lib. 7. cap. 12. and therefore it was alwayes in the old Books a Maxime in Law quod dominus non maritabit minorem in custodia sua nisi semel and Glamil saith Si semel legitimè nupti fuerint c. postmodum non tenebuntur sub custodia Dominorum esse And therefore if the Guardian marry his ward under the age of 14 years and at that age he dis-assent as he may he shall marry him no more being thereby fréed as to the wardship of his body So it is also where the Lord marries him to a woman and the marriage is after dissolved by reason of a pre-contract It is otherwise where the ravisher marries him within age and he disassent at 14 for in such Case the Lord shall have the marriage of him Vide Pl. ibid. Clergy 32 Clergy was allowed to the accessary to the stealing of Horses and Mares because the Statutes of 1 E. 6. 12. and 2 3 E. 6. 33. Dier 99. a. â—9 1 Mar. shall be taken strictly in favorem vitae and are therefore to be onely understood of Principals which they expresly mention and not of Accessaries per Cur. Clergy 33 Albeit it be entred upon Record at one
R. 3. 1. the 1 of May Dier 57. b. 2. 35 H. 8 makes a lease to one for 20 yeares to begin at Mid-sommer next the feoffées the second of May at the Request of Cestuy que use make a lease of the same Land to the same Lessée for 34 yeares to begin also at Mid-sommer In this Case the acceptance of the last lease is not a surrender of the first but rather a confirmation of the 20 yeares and a new Lease for the 14 yeares for albeit the Lessée had such an Interest which he might grant or forfeit yet in regard the Lessée having not possession his Estate was onely to begin and executorie and not already begun and executed such acceptance could not be a surrender in Law and the rather for that the feoffees had a lawfull and ordinary authority in the Land to make a lease in such Case Dier 67. b. 20. 3 E. 6. 39 For the debt of a Common person upon a Statute after the Inquisition and before the Liberate Statute Staple the same Land may be extended for the Kings debt but it séemes to be otherwise after the Liberate to the Common person for then it is rested in him in nature of a frée-hold Tamen quaere Dier 82. b. 72 7 E. 6. 40 In London upon the attachment of a Debt in a third persons hand albeit the Plaintiffe have judgement against the third person Attachment 〈◊〉 a debt in Lâ—â—don yet before execution served the Plaintiffe may resort to have judgement and Execution against the Defendant being his principal Debtor It is otherwise if the judgement against the third person had béen executed Dier 98. b. 57. 1 Mar. 41 A Fieri facias returnable Quind Pasc was directed to the Shetiffe of Middlesex who returnes Execution quòd cepit bona catalla to the value of part of the debt quòd remanent in custodia sua pro defectu emptorum Error quòd ante return hujus brevis breve de non molestando fuit direct quòd de ulteriore executione supersedeat which writ he also returned annexed to the fieri facias Now this writ de non molestando was awarded in Banco by reason of a writ of Error there brought by the Defendant but the Record was not yet removed because the returne of the writ of Error was Crast Ascent and not before In this Case the Question was whether or no the writ de venditioni exponend should be awarded because the writ of execution was not served nor the propertie of the goods altered notwithstanding the seisure yet at last the writ de venditioni exponend was awarded by Sanders and Browne notwithstanding the supersedeas because as it séemes the writ of Error upon which the supersedeas was founded was but executorie being not then returnable Dier 205. 7. 3 4 El. 42 The Conusor of a Statute hath a Rent-charge Extent and before extent purchaseth parcel of the Land In this Case the Rent is gone and shall not be in Execution But it séemes to be otherwise if the purchase hath béen after the extent of the Rent executed Dier 220. 50. 5 El. 43 A fine was acknowledged by Baron and Feme of the Land of the Feme in the Vacation after Hillary Term by ded potest the Feme being then but 19 yeares of age Fine the writ of Covenant bare teste in Jan. returnable Crast Pur. and the ded potest bare teste thrée dayes after the original and the Quéens silver was entred upon Hillary Term four dayes before the death of the Feme viz. die Venetis in Septinaria Pasch But yet the fine was not engrossed until Wednesday after whereupon the heire of the Feme in Easter Term prayes that the fine should not be delivered to the party nor recorded yet it was notwithstanding the undue practises of the Baron because after the entry of the Quéens silver before the death of the Feme and the engrossing of the fine before Easter Term the fine was perfectly executed 104 Possibility of things â—sibility if â—â—riage 1 If Lands be given to a man and a woman un-married Co. Inst p. 1. 20. b. 4. and to the heires of their two bodies for the apparent possibility of inter-marying they have an Estate taile in them presently So it it also where lands are given to the Husband of A. and the Wife of B. and to the heirs of their bodies for they have also a present Estate taile in them in respect of the possibility Also if a Feme sole do enfeoffe a maried man causa mairimonii prolocuti it is good for the possibility c. â—sâ—bility of â—er 2 If there be Baron and Feme Co. ib. 33 a. 3. and the Feme is above the age of 9 years and under the age of 12 that being the age of consenting to marriage and the Baron of what age so ever die before the Feme attaine the age of 12 yet shall she be endowed in respect of the possibility of consenting at that age which indéed is the consummation of the mariage So if a man take a Wife of the age of 7 yeares and after alien the Land and after the alienation the wife attaineth to the age of 9 yeares and after the husband dieth yet here also the wife shall be endowed for the possibility of being dowable if she attained the age of 9 yeares before the death of the husband for by his death the possibility of Dower is consummate c. â—enants in â—tiall taile â— years old 3 If a man gives land to a man and his Wife and to the heires of their two bodies Co. ib. 28. a. 2. and they live till each of them is an hundred yeares old and have no Issue yet do they continue still Tenants in taile for that the Law in that Case will not sée in them an impossibility of having Children although they be never so old It is otherwise where Land is given to a man and a woman in special taile and woman dies without Issue for there the Law seeth an apparent impossibility that the man should have inheritable Issue by another womon c. 〈◊〉 ex asâ—sâ— by any 〈◊〉 a constant â—it appaâ—â— not good 4 The youngest son and heire apparent cannot endow his wife ex assensu patris Co. ib. 35. b. 2. of lands whereof the Father is seised in fée of the nature of Borough English in respect of the possibility that the Father may have another Son for then the husband is not heire apparent For the same reason it is that Dower ex assensu fratris or consanguinei is not good because albeit he is heire apparent at that time yet for the common possibility that the Brother or Cousin may have Issue and every Issue that he shall so have will exclude the husband from being heire apparent he is no such heire apparent as the Law
intendeth for the Law intendeth a constant and perpetual apparence c. â—ant by the â—resie â—gh the 〈◊〉 be atâ—ted 5 If a man takes a wife seised of lands or tenements in fée and hath Issue and afterwards the wife is attainted of felony Co. ib. 40. a. 1. so as the Issue cannot inherit to her yet he shall be Tenant by the courtesie in respect of the Issue which he had before the felony and which by possibility might then have inherited But if the wife had béen attainted of felony before Issue had albeit he hath Issue afterwards he shall not be Tenant by the courtesie Because then there was no possibility at all that such Issue should inherit after her â—ant in â—er though â—e be a â—ing imâ—bility of â—ng Issue 6 Dower is given to the Feme for the possibility that the Issue Co. ib. 40. a. 3. which she may have by the Baron may inherit his land albeit she be barren and have no Issue by the Baron And although the Feme be 100 yeares old and the husband at his death onely 4 or 7 years old yet shall the Feme be endowed For the Law can not judge that impossible which may fall within the bounds of nature to be possible it being certain that women in ancient time have had Children at such an age as no women doth now attaine unto and my Lord Coke saith that he knew a woman above 60 years old to have a Childe ideò non definitur in Jure c. Co. ib. 47. a. 1 7 A Rent cannot be reserved by a Common person upon an Estate for life of any incorporal inheritance as Advowsons Commons Rent reservâ—â— upon a reveâ—sion or rendring good Offices Corody Multure of a mill Tythes Faires Markets Liberties Priviledges Franchises and the like because the Lessor cannot have resort or recourse to distraine for the Rent arreare and if it be upon a lease for yeares yet he shall not distraine for it but have onely an Action of debt for it upon the contract Howbeit a reversion or a remainder of Lands or Tenements may be granted reserving a Rent for the apparant possibility that it may come in possession c. Co. ib. 58. b. 3. 8 Albeit a Copi-hold Tenement that escheates Copi-hold the Lords â—â—maines still demisible is kept for many yeares together in the Lords hands yet it still retaines the quality of being demisible in respect of the possibility that the Lord may again admit some man unto it c. Co. Inst p. 1. 80. a. 1. 9 If the Ancestor marieth his heire apparent within the age of consent and dyeth the Infant being still within the age of consent An infant mâ—â—ried before yeares of coâ—sent the Lord may take the Infant if he will into his possession and if the Infant be detained from him he shall recover him in a writ of ravishment of ward and thereupon have the Infant delivered unto him And this is in respect of the possibility that the Infant may dis-agrée to the marriage Howbeit if at the yeares of consent he agrée to the marriage neither the King nor the Lord shall have the marriage for then it is a marriage ab initio and there néed no other marriage Co. ib. 244. a. 2 10 If the Husband hath an apparant possibility of procreation Issue the hâ—â—band inteâ— Maria. as under eight years or under the age of procreation the Issue which his Wife hath is a Bastard albeit he was then within the four seas that is within the jurisdiction of the King of England but when the parties are both of full lawful age if the Husband be within the four seas as afore-said when the wife hath Issue albeit he never came neer her yet is the Child Legitimate for the possibility that they might méete together For in that Case Filiatio non potest probari c. So it is also if the Issue be borne within a moneth or a day after marriage for in such Case the Law will not judge of any impossibility c. Co. ib. 316. a. 4 Co. l. 10. 44. a. 2. Jennings Case 11 A. seised of Land in Fée grants it in tail to B. and afterwards grants the Reversion to C. in Fée by Fine in this Case Tenant in tâ—â—â— not compelable to attoâ—â—â— the Tenant in tail is not compellable to attorne in respect of the possibility that this Estate being an Estate of Inheritance may continue for ever c. Litt. §. 707. Co. ib. 371. 6. 12 If a man hath Issue two Sonnes and is disseised Lineal colateral warranty and the eldest Son release to the Disseisor by déed with Warranty and die without Issue and afterwards the Father dies this is a lineal Warranty to the younger Son for the possibility that the younger Son might have convyed his tittle to the Land through the eldest Son in Case the eldest Son had survived the Father Otherwise it is where the yonger Son deceaseth and dies without Issue for the eldest Sonne can by no possibility convey his title to the Land from the Father through the younger Son c. Litt. §. 708 Co. ib. 372. a. 13 If Tenant in taile hath issue thrée Sonnes Lineal câ—lateral waâ—ranty of Tenant in taile and discontinue the taile in Fée and the second Son releaseth by his déed with Warranty to the Discontinuee and after the Tenant in taile dies and the second Son dies without Issue here the eldest Sonne is barred to have any recovery by writ of Formedon because the Warranty of the second Brother is collateral to him for the impossibility that he may convey any Estate to him through the second Brother but if the eldest Sonne die without Issue then may the youngest Son have a Formedon in respect of the possibility that the youngest Son might have conveyed the descent of the land to him thorough the second Brother c. The heire shal have writthings 14 If a man make a Feoffment with warranty and die Co. l 11. b 4 in the Lo. Buckhursts Case the heire of the Feoffor shall have all the writings which the Feoffor himselfe might detaine albeit the heire hath nothing by descent for the possibility of the descent afterwards Grant of a remainder to the heires of I. S. good 15 If a Lease be made for life the remainder to the right heires of I. S. the same I.S. being then in rerum natura it is good Co. l. 2. 51. b. 1. Sir Hugh Cholmeleys Case for the common possibility that I. S. may die during the life of the Tenant for life Co. Inst p. 1. 378. a. 3. The Law considereth a child in ventre sâ—â—â—re 16 Albeit Filius in utero matris is part viscerum matris vide 3. Ass Pl. 2. 22 Ass Pl. 94. 22 E. 3. Tit. Corone 180. Stanford fol. 21. Co. l. 7. 8. b. 4. the
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
Co. ib. 4. 4 At the Common Law if one be slaine in a Towne by day For an esâ—â— no amerciâ—ment viz. so long as there is full day light and he that hath slain him escape the Towne where the Felony was committed shall be amercied for the escape And so it is held in 21 E. 3. Tit. Corone 238. Dum quis Felonicè occisus fuit per diem nisi felo captus fuit tota Villata illa oneretur and with this agrées 3 E. 3. But if such a Murder or Homicide be committed in the night the Towne shall not be a amercied by the Common Law because no laches or neglect can be attributed to them Vide plus ibid. When things are fit to be straightned to a certaine time it esteemeth according to the nature of the things 129 Sometimes a whole day sufficient â—ods last in 〈◊〉 1 Where goods are lost in warre Fich 38. and recovered from the enemy by another of the Kings subjects the owner shall have them again if he make fresh suit before the Sun-set otherwise not 130 Sometimes a whole yeare â—â— protection â—â—re a yeare 1 No protection either profecturae or moraturae shall endure longer Co. Inst p. 1. 130. b. 3. 254. b. 4. then a yeare and a day next after the Teste or date of it and so it is also of an Essoine de service le Roy If a protection beare date 7 die Januarii and have allowance pro uno anno the re-summons re-attachment or re-garnishment may be sued 8 Januarii the next year howbeit Britton fol. 280 282 283. treating of an Estoine beyond the Grecian-sea in a Pilgrimage c. saith thus Ascun gent ne quident se purchasent nous letters de protection patents durable a 1 an ou 2 ou 3 ans Jalumeyus font attorneys generals ausi par nous letters patents Et ceux font bien sagement car nul grand Seignior ne Chevaler de nostre Realme ne droit prender chimin sans nostre conge car issuit poet le Realme remainer disgarnae de fort gente â—â—re and a â—y in many â—â—es 2 The Law in many Cases hath limited a yeare and a day to be a legal and convenient time for many purposes Co. ib. 254. b. 3 Co. l. 5. 107. b. 4. Sir Henry Constables Case Co. l. 8. 100. a. F.N.B. 79. a. As at the Common Law upon a fine or final judgment and execution in a writ of right the party grieved had a yeare and a day to make his claime So the Wife or heire hath a yeare and a day to bring an appeale of death If a Villain remained a yeare and a day in ancient demesne he was priviledged If a man be wounded poysoned or c. and dieth thereof within the yeare and the day it is felony By the ancient Law if the Feoffée of a disseisor had continued a yeare and a day the entry of the disseisée for his negligence had béen taken away After judgment given in a real Action the Plaintiffe within the yeare and the day may have a Habere facias seisinam and in an Action of Debt c. a Capias fieri facias or a levari facias And in many other Cases But this time of a yeare and a day in Case of continual claime is since altered by the Statute of 32 H. 8. 33. â—ecke 3 By the Statute of West 1. cap. 4. it is provided that if a man Co. l. 5. 107. b. 3 in Sir Henry Const Case Dog or Cat escape alive out of the ship nothing which was therein shall be adjudged wrecke but that the things shall be kept safe by the view of the Sheriffe Coroner or other Bailiffe of the King c. So as if any come in and prove that they are his Lords or perished in his custody they shall be rendred unto him without delay and this is but a declaration of the Common Law for Bracton who wrote before this Statute viz. Tempore H. 3. delivers the same in substance and if the right owner die his Executors or Administrators may make the like proofe wihtin the same time So it is also of Flotfan Jetsan and Lagan And if any living creature come a shore or the goods may be known by the marke or cocket if seaseth Co. ib. b. 4. 4 In many Cases concerning time Estray des the Law estéemes a yeare and a day a convenient time as in Case of an Estray if the owner proclamations being made do not claime it within a yeare and a day it is forfeit the like time is also given in Case of descent after entry or claime but in Case of wrecke the yeare and day shall be accounted from the taking or seisure of the goods as wrecke for albeit the property is in Law vested in the Owner before seisure yet until he seise and take them into his actual possession it is not known who claimes the wrecke nor to whom the Owner shall resort to make his claime and to manifest his proofes And if the Owner bring his Action for them within the yeare and day it sufficeth albeit the Verdict be not given for the recovery of them until afterwards F. N. B. 121. p. 5 If a man be imprisoned upon a Capias pro fine at the Kings suit within a yeare after the judgment past against him at the suit of the party Copias pro 〈◊〉 and the Goaler suffer him to escape the party shall have an Action of Debt against the Gâ—oler for his damages recovered by the judgment although he was not imprisoned at his suit but if he be taken after the yeare the party is put to his scire facias c. Vide infrà 189. 41. 131 Sometimes the last part of the last day Co Inst p. 1. 202. a. 2. Co l. 5. 114 b. 2 in Wades case Co. Inst p. 1. 206. b. 3. 1 The time of demand of a Rent is such a convenient time before the Sun setting of the last day of payment The time of demand and payment of Rent as that the money may be numbred and received Howbeit if the tender be made to him that is to receive it upon any part of the Land at any time of the last day of payment and he refuseth the Condition is saved for that time for by the expresse reservation the money is to be payd on the day indefinitely and convenient time before the last instant is the uttermost time appointed by Law to the intent that then both parties should méet together the one to demand and receive and the other to pay it so as the one should not prevent the other Vide Dier 130. b. 70. 222. 22. Co. Inst 202. Pl. a. 3. Comm. 70. b. 1. in Kedwellies Case against Brand. 2 If the reservation of the Rent be as Littl. putteth the Case § 325. at certain Feasts The like
b. 4. his heires within age of 14 yeares where the Land is holden in Soccage the Guardian in Soccage or within age of 21 yeares the Land being holden by Knight-service the Lord ought to tender the Money for the redemption of the Land but if the heir be an Ideot of what age soever any man may make the tender for him in respect of his absolute Disability for the Law in this and like Cases is grounded upon Charity â—â—pitals 2 Albeit upon the foundation of any lay Hospital or after Co. ib. 342. a. 2 it was ordained that one or more Priests should be there maintained to celebrate Service to the Poore and to pray for the Soul of the Founder and all Christian Soules or the like and that the Poore there should make like Orisons yet such Hospital is not within any of the Statutes of 27 31 32 37 H. 8. or of 1 E. 6. for the makers of those Statutes never intended to overthrow works of Charity but to take away the abuse and such Hospitals being Lay and not Religious and for the most part founded or ordained in that manner â—ensuit in â—aint perâ—ptory 3 In an Attaint if the Plaintfff after appearance be non-suit Co. ib. 139. a. 3. it is peremptorie and the reason is for the faith and credit that the Law in Charity gives to the verdict and for the terrible and fearful judgment that should be given against the first Iury if they should be convicted And therefore upon such non-suit the Plaintiff shall be imprisoned and his sureties amercied Câ—ritable 〈◊〉 4 Good and Charitable Vses are not taken away by the Statute of 23 H. 8. 10. albeit the words of the Statute are general viz. Co. l. 1. 24 a. 2. in Porters ca. all like uses but the intention of the Makers of that Statute was onely to take away Superstitious Vses and not Good and Charitable Vses 〈◊〉 Services 5 Regularly where intire Services are reserved Co. l. 6. 1. b 4. in Bruertons Case if the Lord purchase part of the Land the whole Service is extinct Howbeit when such intire Service are reserved for works oâ— Devotion Piety or Charity as to marry a poor Virgin yearly which Tenure you shall find in 24 H. 8. Br. Tenures 53. or to find a Preacher or Ornaments for such a Church as you have it in 35 H. 6. 6. in such cases albeit the Lord purchase part yet the intire service shall remain Co. l. 10. 28. a. 4. in the Case of Suttons Hospital 6 The Kings Licence by Charter to found an Hospital Chantery Future Corpâ— c. are sufficient to make them Corporations capable of endowments though they be not yet built or prepared for such purposes or imployments because the Kings Charters for Erection of Pious and Charitable Workes are to be taken in the most benigne and beneficial sence Co. l. 10. 92. b. 4. in Leyfields Case 7 Regularly A Deed not shewed good a copy or proof of a Deed shall not be given in evidence to a Iury but the Deed it self ought to be produced yet if a man hath by casualty had all his Writings burnt so as he cannot possibly produce it if that be proved to the Iudges they may in favour of him that hath sustained so great Losse suffer him upon the general issue to prove the Deed by witnesses in evidence to the Iury least they should adde affliction to affliction And if the Iury find it albeit it were not shewed in evidence yet is it good enough as appeares 28. Ass p. 3. And this in charity to him that hath suffered such losse Vide 28 H. 8. Dyer 29. b. Pl. 199. Ho. 136. Floods Case 8 A Devise of Lands to a Colledg is good Devise notwithstanding the Statutes of Mortmain because within the Statute of 43 Eliz. of Charitable Vses under these words limited and appointed See there also the next Case a Devise for the repaire of an High way where albeit the Devise be void yet the Statute of 43 by reason of the said words limited and appointed doth reach it Collisons Case 136 De mortuis nil nisi bonum Littl. §. 399. Co. Inst p. 1. 244. a 3. Co. l. 8. 101 a. 3. in Sir Rich. Lechfords case 1 If there Bastard eigne and Mulier puisne Bastard eigne and Mulier puisne and the Bastard have issue and die seised of the Land without claime of the Mulier in this case the Mulier is barred for ever albeit the Mulier were under age at the time of the discent cast whereas the discent in their cases onely puts him that right hath to his action and doth not barre him for ever And one of the reasons hereof séemes to be because after the Bastards death he shall not be branded by the name of Bastard to the prejudice of him and his issue after him For Justum non est aliquem post mortem facere bastardum qui toto tempore vitae suae pro legitimo habebatur And therefore if there be Bastard eigne and a Daughter Mulier puisne and she be covert at the time of the Discent yet is she barred Also if the Bastard die not but enter into Religion by which a Discent is cast that shall also barre the Mulier for ever Likewise discent of Services Rents Reversions upon an Estate tail or for life c. which barre not the entry of those that right have shall barre the Mulier for ever So if the Bastard die and his issue endow the Bastards wife the Mulier cannot enter upon the widdow but is barred causa qua suprà Co. l. 7. 43. in Kennes Case 2 A Sentence of Divorce may be repealed after the death of the parties Divorce but after their death there can be no Sentence of Divorce given to declare the mariage void for that were to traduce the Dead and to bastardise the issue to the shame of the deceased Co l. 8. 101. b. 4. in Sir Rich. Lechfords case 3 If a Bastard eigne enter and die seised Bastardie his wife being with child of a Sonne and after the Sonne is borne he shall inherit the Land for in as much as the Father died in possession without interruption the Mulier shall not alleadge against the issue Bastardy in his Father after his death 137 And therefore it hateth malice and oppression â—â—rious apâ—â—l 1 The Common Law abhorre malice in séeking the bloud of another without cause And therefore if A. hath the Goods of B. Co. l. 5. 110. a. in Foxleys ca. by bailement or trover and B. brings an appeale of Robbery against A. for taking them feloniously and it is found that they were the Goods of the Plaintiffe and that the Defendant came by them lawfully In this Case the Plaintiff shall forfeit those goods to the King for his false and malicious appeale as it is adjudged in 3 E.
consent to a ravishment and was so resolved in the case of Martin Trotte 32 Eliz. in Communi Banco and accordingly was the Opinion of the Court of Common Pleas Pasch 1. Jac. To this may be added as a like Case The Kings Patentee before he enter c. by all which you may observe a diversity betwixt a right for which the Law giveth a remedy by action and a Title for the which the Law giveth no remedy but by entry onely â—â—â—tinuall â—â—me 17. Regularly Continuall claime cannot be lawfully made Co. ibid. 250. b. 1. Litt. S. 414. but where hee that makes the claime hath present right or title to enter and yet in some cases where a man is left without other remedy a Continuall claime may be made by him that hath right and cannot enter As if Tenant for yeares Statute Merchants Staple or Elegit be outed and he in the reversion disseised the Lessor or he in reversion may enter to the intent to make his claime and yet his entry as to take any profits is not lawfull during the terme So likewise the Lessor or Reversioner may in such case enter to avoyde a collaterall Warranty or the Lessor in that case may recover in an Assise And so as some have holden may a Lessor enter in case of a Lease for life to the intent to avoyde a Descent or Warranty If the Disseisee make Continuall claime and the Disseisor dye seised within the yeare his Heire within age and by Office the King is intitled to Wardship in this case albeit the entry of the Disseisee be not lawfull yet may he make Continuall claime to avoyde a Descent â—â—â—nuall â—â—â—e 18. When a man for feare of death Co. Inst pars 1. 2 53. b. 4. Litt. S. 419. or some corporall hurt dare not make an actuall entry into land hee may approach as neer thereunto as he dare for such feare and claime the Land and this claime which is an entry in Law doth vest the possession and seisin in him for his advantage but not for any thing which may tend to his disadvantage as if he had made an actuall entry into the Land because otherwise he should be left without remedy â—â—lawry 〈◊〉 beyond 〈◊〉 reversable 19. If a Recovery be had against a man in a Precipe by default Co. ibid. 260. b. 3. when he was extra quatuor maria it shall not be reversed by a Writ of Error for that cause for that he is not left without remedy but may have his action of an higher nature or a Quod ei deforceat Howbeit if a man be outlawed in a personall action being then extra quatuor maria he may reverse it by a Writ of Error for otherwise he should be without remedy and besides de Minimis non curat Lex 20. Where a man cannot have advantage of the speciall matter by way of pleading Co. ibid. 283. a. 3. What not pleaded given in evidence he shall be permitted to take advantage thereof in the Evidence for otherwise he should be left without remedy For example the Rule of Law is that a man cannot justifie in the killing or death of a man and therefore in that case he shall be received to give the speciall matter in Evidence as that it was Se defendendo or in defence of his House in the night against Theeves or Robbers or the like Co. ibid. 312. b. 1. 21. If a Seigniory be granted to one for life the remainder to another in fee Attornment Acquittall the attornement of the Tenant to the Tenant for life is an attornement to the remainder also Howbeit if acquittall ought to be made or other priviledge had in such case albeit attornement be made to the Tenant for life and he acknowledge the acquittall c. Yet after his decease hee in remainder shall not distraine untill hee acknowledge the Acquittall also notwithstanding the Attornement of the Tenant for life for otherwise the Tenant should be without remedy Co. ibid. 347. a. 1. 22. By the policy of the Law Abbot capable to sue and be sued The Abbot termed the soveraigne albeit indeed he be but a Monke or secular person dead in Law yet hath he capacity and ability to sue and be sued to enfeoffe give demise and Lease to others and to purchase and take from others for otherwise they who right have should not have their lawfull remedy nor the House remedy against any other that did them wrong Co. ibid. 354. a. 3. 23. Regularly Baron remitted against his own alienation a man cannot be remitted against his owne alienation yet if there be Baron and Feme in speciall tayle and the Baron alien the Land to another in fee and take an estate backe to him and his Wife for their lives in this case the Baron is remitted against his owne alienation as well as the Feme for the Feme cannot be remitted without the Baron be remitted also and rather then the Feme should not by Remitter have remedy and her ancient right restored to her the Baron shall be also remitted against his owne Grant Litt. S. 673. And therefore in that case if there were any remainders in taile upon the speciall taile and last of all a reversion or remainder in fee above them upon taking backe of the estate for lives by the Baron all those in remainder or reversion are also remitted Co. ibid. 376. a. 3. c. 24. By the Rule of Law One that is not heire at Law may be vouched to warranty a Warranty made by the Father descends upon his heire at the common Law and he onely is to be vouched to maintaine the same yet in some cases lest the Voucher should be without remedy they that are not Heire at Law may be vouched As if a man enfeoffeth another of an acre of land with warranty and hath issue two Sons and dyeth seised of another acre of land of the nature of Burrow English the Feoffee is impleaded here albeit the Warranty descendeth onely upon the eldest Son yet may he vouch them both the one as heire to the Warranty and the other as heire to the land For if he should vouch the eldest Son onely then should hee not have the fruit of his Warranty Viz. a recovery in value and the youngest Son onely he cannot vouch because he is not heire at the common Law upon whom the Warranty descendeth So it is also of heires in Gavelkind the eldest may be vouched as heire to the Warranty and the other Sons in respect of the Inheritance descended unto them In like sort the heire at the common law and the heire of the part of the Mother shall be vouched Howbeit the heire at Law may be vouched alone in both these cases at the election of the Tenant sic de similibus In the same manner if a man dye seised of certaine lands in fee having issue
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
the Husband may do of the Wives Land when he is to be Tenant by Courtesie Co. ibid. 47. b. 1. 3. When Cattell are distrained they are to be put in a pound overt Distresse or open within three miles in the same County as into a pinfold made for such purposes or in his own close or the close of another by his consent to the end the owner may give his Cattell meat and drink without Trespasse to any other and then if the Cattell miscarry he that distrains them is excused for it cannot be imputed to any neglect of his the Owner in such case being bound to sustain them at his perill but if the Cattell be put into a pound covert or close as in a house where the Owner cannot come at them in such case they are to be sustained with meat and drink at the perill of him that distraines and he shall have no recompence for the charge of keeping them and if any of them miscarry he shall make them good for in this case it cannot be imputed to the folly or neglect of the Owner if they be worse or miscarry because he could not come at them to sustaine them Co. ibid. 53. a. 2. 3. 4. Waste It is permissive waste in the Tenant to suffer the house to be uncovered whereby the Sparrs or Rafters Planches or other Timber of the House become rotten Howbeit if the House be un-covered when the Tenant cometh in it is no waste in the Tenant to suffer the same to fâ—ll downe for in such case it cannot be imputed to his neglect but the Owners So likewise if a wall be un-covered when the Tenant comes in it is no waste though he suffer it to decay Also if the house fall down by tempest or be burnt by lightning or prostrated by enemies or the like without any default in the Tenant or be ruinous at his coming in and fall downe this is not waste in the Tenant but he may build the same againe with such materialls as remaine and with other Timber which he may take growing upon the ground for his habitation but he must not make the house longer then it was Co. ibid. 53. b. 1. 5. It is waste to suffer a Wall of the Sea to be in decay Waste so as by flowing and re-flowing of the Sea the Meadow or Marsh is surrounded whereby the same becomes unprofitable howbeit if it be surrounded suddenly by the rage and violence of the Sea occasioned by wind tempest or the like without any default of the Tenant this is no waste punishable because it cannot be imputed to the Tenants neglect or default in that case Fl. l. 1. c. 111. According to Fletaes rule Fortuna ignis hujusmodi eventus inopinati omnes tenentes excusant Co. ibid. 55. a. 4. c. 6. Tenant at will particular estates Graine c. sowne Tenant at will shall reape the crop which he sowed in peace before his Lessor determined his will whether it be graine hempe flax or any other annuall profit for it cannot be imputed to his folly that he knew not his Lessors intention that he would determine his will before they might be ripe there is the same Law and reason of Tenant by the curtesie in Dower for life pur anter vie or any other un-certaine estate viz. when the terme will determine and if such Tenant happen to dye his Executors c. shall enjoy the crop If Tenant by Statute Merchant sow the ground and then a sudden and casuall profit falleth by which he is satisfied Co. ibid. b. 3. Co. ibid. b. 4. yet shall he have the embleaments causa qua supra And in all these cases it is not materiall whether the graine c. be not ripe or dead ripe ready to be cut for by the same reason they may be taken though they be not ripe they may also be taken when ripe Albeit Littleton saith Apres lembleer devant que les blees sant matures Co. ibid. 55. b. 4. 7. Where there is Lessor and Lessee at will Tenant at will c. notice requisite the Lessor may by actuall Entry into the ground determine his will in the absence of the Lessee but by words spoken from the ground the will is not determined untill the Lessee have notice no more then the discharge of a Factor Attorney or such like in their absence is sufficient in Law untill they have notice thereof â—â—aine sowne Terme uncertaine 8. If Lessee for years that knoweth the end of his terme Co. ibid. 56. b. 4. soweth the Land if the terme determine before he can cut them the Lessor shall have them because the end of his terme was certaine and it was his folly to sow them when he might know beforehand that he could not Inn them in due season Howbeit where a Lease for years depends upon an un-certainty as upon death of Tenant for life being made by him or of a Husband seised in right of his wife or the like there it is otherwise Dying seised â—ardship 9. If there be Lord and Tenant Co. ibid. 76. b. 1. and the Tenant maketh a Feoffment in fee upon Condition and the Feoffor dyeth after his death the Condition is broken the Heire within age entreth for the Condition broken in this case the heire shall be in Ward and yet the Tenant dyed not seised of the Land neither had he any estate or right in the Land at the time of his death but onely a Condition and which was broken after his death Neverthelesse because here is no default in the Lord to bar him of his Wardship and the Condition restoreth the Tenants the Land in nature of a descent for he shall be in by descent therefore shall the heire in this case be in Ward Vide pl. ibid. Guardian in Socage robbed Discharged 10. Co. ibid. 89. a. 3. 4. If a Guardian in Socage having received the rents profits of the Lands of the Minor happen to be robbed of the same without his default or negligence he shall be discharged thereof upon his account so also shall a Bayliff of a Mannor a Receiver a Factor of a Merchant or the like It is otherwise of a Carrier for he by taking his hire doth thereby implicity undertake the delivery of the goods delivered unto him So it is likewise if goods be delivered to a man to be kept or to be safely kept which is all one in Law and after those goods are stollen from him this shall not excuse him for by the acceptance he undertook to keep them safely and therefore he must keep them at his perill But if the goods be delivered unto him to be kept as he would keep his owne there if they be stollen from him without his default or negligence he shall be discharged so if goods be delivered to one as a gage or pledge and they be stollen
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
own Tender but if he that gaged them tendred the money before the stealing and the other refused to deliver them then for this negligence and default in him he shall be charged with them Default in reâ—â—â—ictions 5 In real actions where Voucher lyeth Co. ibid. 101. b. 4. if the Sheriff return that the Vouchée is summoned and he make default then a Magnum Cape ad valentiam is awarded when if he make default again then Iudgement is to be given against the tenant Also if the vouchee do appear and after make default then a Parvum Cape ad valentiam is awarded and if he thereupon make default again then judgment is to be given as before Villein 〈◊〉 Lords 〈◊〉 6 If a Villein purchase land Co. ibid. 118. a. 4. b. 1 2. Littl. §. 177. and alien the land to another before the Lord enter In that case the Lord cannot enter for it shall be adjudged his folly that he entred not when the land was in the Villeins hand So it is likewise if a freeman hath issue and afterwards by confession becometh bond and purchase lands in fee and before the Lord enter he dieth seised and the land descends to his issue which is free in this case also the Lord shall not enter The like Law it is if the land so purchased by the Villein escheat to the Lord of the fee before any entry made by the Lord of the Villein as if the Villein dye without heir or be convict or outlawed for felony or if a recovery be had against the Villein in a Cessavit or the like in all such cases it will be imputed to the folly of the Lord of the Villein that he entred not in time when he might Also if a Villein be disseised before the Lord doth enter the Lord may enter into the land in the name of the Villein and thereby goin the Inheritance of the land but if there be a descent cast so as the entry of the Villein is taken away then the Villein must recontinue the estate of the land by judgement and execution before the Lord of the Villein can enter So if the Villein purchase lands in tayl and alien before the Lord enter the Lords entry is taken away causa qua supra but if the Villein dye and his issue recover the land entayled in a Formedon then the Lord may enter The like law is also of Seigniories Co. ibid. 2. Advowsons Reversions Remainders Rents Commons certain and such like certain Inheritances And all the reason of these â—â—â—es is besides the Lords folly and negligence because the Lord before his entry hath no interest but only a bare possibility Howbeit it is otherwise in the Kings case after office found because nullum tempus occurrit Regi Co. ibid. 118. a. 4. b. 3. Littl. §. 177. 7 If a Villein purchase goods or chattels Villein The Lords seisure of Goods and sell or give them away before the Lord seise them his title to the goods is gone for the Law imputeth it to his folly and negligence as before of lands c. for a bare claim of the goods of the Villein is not sufficient in Law but he must seise some part in the name of all the residue or that the goods be within the view of the Lord for the claim and view amount to a seisure as the claim of a Ward being present by word is a sufficient seisure albeit the Guardian layeth no hands of him And here under the name of goods and chattels are comprehended not only personal goods as an Horse a Cow Housholdstuff and the like but also chattels real as Wardships Leases for years Interests by Statute staple Statute merchant Elegit or the like and the gifts aforesaid do not only extend to gifts in deed but likewise to gifts in Law And therefore if a Wife hath goods and taketh Baron upon this gift in Law by force of the marriage the land is barred So likewise if a Villein having goods make his executors and dye by this gift in Law the Lord is barred for his folly and neglect Co. ibid. 131. a. 4. 8 In an action where a Protection lyeth â—â—â—tectiâ—n if after it is allowed the party tarrieth in the Country without going to the service for which he was relieved above a convenient time after the Protection had or otherwise withdraw himself from the service upon Information thereof to the Lord Chancellor he shall repeal the Protection in that case by an Innotescimus See the Statute of 13 R. 2. 16. Littl. §. 261. Co. ibid. 173. a. 4. 9 If lands be given to a man in tayl Partition who hath as much Feesimple lands and hath issue two daughters and dye and the daughters make partition and the feesimple lands are assigned to the youngest daughter for her purparty and the entailed lands to the elder and the youngest daughter aliens the feesimple lands and having issue dies In this case the issue of the youngest daughter may enter into the moiety of the entailed lands notwithstanding such partition for it will be imputed to the folly of the eldest daughter that she agreed to such a Partition whereas she might have had upon the Partition the moyety of the one and also of the other because in a writ of Partition she was not compellable to take the whole estate in tayl but might have challenged moities in each as aforesaid and that ex provisione legis But when she will not submit her self to the policy and provision of Law but betake her self to her own policy and provision there the Law will not ayd her So likewise if a man be seised of three Manors in fee of equal value Dower and taketh wife and chargeth one of the Manors with a rent-charge and dieth the wife may by the provision of the Law take a third part of all the Manors and hold them discharged but if she will in folly accept the entire Manor charged she shall hold it charged with the rent Mortgage 10 If the Mortgageor tender the money at the day to the Mortgagée and the Mortgagée refuse it and the Mortgageor thereupon enter Littl. §. 335. Co. ibid. 207. the Mortgagée is without remedy at the Common Law for it will be imputed to his folly that he refused it when lawfull tender thereof was made unto him Vide Max. 80. case 24. Bastard Mulâ—er 11 If there be a Bastard eygne and Mulier puisne Littl. §. 399. 401. Co. ibid. 244. and after the fathers death the Bastard enter and peaceably enjoys the land without entry of the Mulier all his life and having issue dieth seised In this case the Mulier is barred for ever for it is imputed to the folly and negligence of the Mulier that he entred not during the life of the Bastard and albeit the Mulier were under age or covert baron at the time of
the descent cast or that after the death of the Bastard the Mulier entred before the heir of the Bastard yet none of these cases shall aid or help the Mulier Vide infra 25. Entry of feme covert 12 If a Feme covert have title of entry into lands Co. ibid. 246. a. 3. and her husband neglects to do it and during his life a descent is cast yet after her husbands death the feme may enter notwithstanding the descent But if a feme sole be seised of lands in fée and is disseised and then taketh husband In this case the dying seised of the disseisor shall take away the entry of the wife after the death of her husband because it will be accounted folly in the feme as well for that she did not enter when she was sole as that afterwards she took an husband who would not enter before the descent cast It is otherwise if the woman were under age at her marriage for then it will not be imputed to her folly but her husbands or it the Land were entailed and only disconnued Continual claim 13 If a man be disseised Co. ibid. 353. b. 4. Litt. §. 426. Co. ibid. 256. a. 2. Littl. §. 440. Co. ibid. 261. b. 4. and the disseisor die seised within a year and a day after the disseisin made whereby the tenements descend to his heir in this case the entry of the disseisée is taken away for the year and day shall not be taken from the time of his title of entry accrued but only from the time of the claim by him made and therefore it it will be accounted his folly that he made not his entry immediatly after the disseisin committed which he ought to have done Howbeit this is now holpen by the State of 32 H. 8. cap. 33. for now by that Statute if the disseisor dye seised within five years after the disseisin though there be no continual claim made it shall not take away the entry of the disseisin but after the five years there must be such continual claim as was at the Common Also that Statute extendeth not to any Feoffée or Donee of the disseisor immediate or mediate but they remain still at the Common Law as they were before the making of the said Statute Remitter 14 If tenant in tayl enfeoff his heir apparent Littl. §. 664. Co. ibid. 350. b. 1. the heir being of full age at the time of the feofment and after the tenant in tayl dyes this is no remitter to the heir because it was his folly that he being of full age would take such a feofment for albeit the heir apparent might have some benefit there by in the life of his ancestor yet was he by taking such a feofment besides his own subject during his life to all charges and incumbrances made or suffered by his ancestor Howbeit it is otherwise if he were under age in respect of his tender years and want of experience Liâ—tl §. 682. Co. ibid. 358. b. 4. 15 If tenant in tayl hath issue two sons of full age Remitter and he demiseth the land to the eldest son for life the remainder to the younger son also for life and dies In this case the eldest son is not remitted because it was his folly to take such an estate of his father which created a tortious feesimple but if the eldest son die without issue the younger son shall be remitted because no folly can be imputed to him for that the franktenement was cast upon him by force of the remainder Littl. §. 725 726. Co. ibid. 380 a 16 At the Common Law before the Statute of the 11 H. 7. 20. Warranty to barr entry if tenant in Dower or for life had aliened the land with warranty and the warranty had descended upon the heir reversioner or remainder-man being yet under age In such case they might have entred upon the alienee because no lachess or folly could be adjudged in them being under age that they did not enter in the life time of the terretenant But if the heir reversioner or remainder-man were within age at the time of the alienation and becoming of full age in the life of such terretenant did not enter they were barred by such warranty because it was imputed to their folly that they being of full age entred not in the life time of the tenant in Dower or for life Co. l. 1. 177. b. 1. in Mildmâ—yes case 17 Where a lease is void in Law Slander yet if one ignorant of the Law taking upon him to know the Law and medling in a matter that he hath nothing to do withall will report and affirm openly that such a lease is good to the prejudice of anothers title that other may have an action upon the case against the reporter and recover damages according to his prejudice for in such case Ignorantia Juris non excusat Co. l. 2 26. b. 3. in the case of Bankrupts 18 By the Statute of 13 El. 7. Bankrupts distribution is to be made to all the creditors rate and rate-like viz. to such of them as are willing to come in as Creditors but a Creditor that either obstinately refuseth or carelesly neglects to come before the Commissioners and pray the benefit of the Statute shall not be admitted to have any share with the rest for vigilantibus non dormientibus Leges subveniunt Co. l. 3 9. a. 2. in Bâ—vâ—lls case 19 Seisin of one yearly service is not seisin of another yearly service Lord and tenant as if there be Lord and tenant by fealty rent of 10 s. and three work-days yearly seisin of the rent is not seisin of the work-dayes neither is seisin of the rent seisin of sute of Court which is annual Vide 16 El. Dyer 330. d. And the reason is because it shall be imputed to the folly of the Lord that he did not obtain seisin of that which was yearly due unto him and besides it would be mischievous to the tenant for peradventure in antient time the work-days were discharged which now cannot be shewed whereupon might ensue sutes and trouble Co. l. 7. 6 a. 3. in Sâ—nd ls case 20 If a man be robbed in his house in the day time or in the night Robbery the Hundred in which that house is situate shall not be charged therewith for albeit the words of the Statute of Winchester are general without mentioning any place in special yet such Robbery is not within the said Act for divers reasons amongst which this is one viz. because the house of every one is his castle which he ought to keep and defend at his peril and therefore if any be robbed in his house it shall be imputed to his own negligence and default Co. l. 8. 72. b. â— in Greneleys case 21 By the Statute of 32 H. 8. c. 28. Entry by Feme Discontinuance by