paramount but never to recover pro rata against her by force of the warranty in Law upon the partition for by her alienation the unitas juris that was betwixt them is severed and she hath dismissed her selfe to have any part of the land as parcener and as parcener she must recover pro rata upon the warranty in law or not at all Co. Inst pars 1 2. b. 2. 68 If an alien purchase lands Alien Merchant c. upon an office found the King shall have them yet being a Merchant he may take an house and kéep it so long as he useth commerce and for that purpose but when he leaves so to do dies or departs the Realm the King shall have them Dyer 13. 61. 28 H. 8. 69 If a man make his executors and enter into religion A Monk dereigned and after is dereigned In this case he shall have againe all his goods which his executors have not spent for cessante causa c. Dyer 57. b. 1. 25 H. 8. 70 Cestuy que use for terme of life since the Stat. of R. 3. makes a lease for the term of the life of the lessor and dies In this case the estate of the Lessée is determined Cestuy que use and he is after the death of Cestuy que use onely tenant at sufferance The Lo. Zouches case 20 Remoto impedimento emergit actio contra Co. Inst pars 1 128. b. 2. 1 If the defendant plead an outlawry in the Plaintiffe Out lawry in disability of his person and the Plaintiff after that plea pleaded purchase a charter of Pardon because the charter hath restored him to the law the defendant shall answer So note the disability abateth not the writ but dis-inableth the Plaintiff until he obtaineth a charter of Pardon Co. ibid. 133. b. 3. 2 Excommunication may be pleaded in disability of the person Excommunication yet if the demandant or Plaintiff purchase letters of absolution and shew them to the Court he may have a re-summons or re-attachment upon his original according to the nature of his writ 9 H. 7. 27. Co. ibid. 238. b. 2. 3 If a disseisor make a gift in taile Entry revived and the donée hath issue and dieth seised now is the entry of the disseisée taken away but if the issue die without issue so as the estate tail which descended is spent the entry of the disseisee is revived and he may enter upon him in the reversion or remainder 13 H. 4. 8 9. 33 H. 6. 5. b. per Moyle 34 H. 6. 11. a. per Curiam Co. ibid. 3 If there be grandfather father and sonne disseiseth one and enfeoffeth the grandfather who dieth seised The like and the land discendeth to the father now is the entry of the disseisée taken away but if the father dieth seised and the land discendeth to the sonne here is the entry of the disseisée revived and he may enter upon the sonne who shall take no advantage of the discent because he did the wrong unto the disseisée Co. ibid. 4 If a disseisor make a Lease to an Infant for life and he is disseised and a descent cast the Infant enters The like the entry of the disseisée is lawfull upon him Co. ibid 245 b. 1. 5 If the mulier entreth upon the Bastard Bastard Mulier and the Bastard recovereth the land in an assize against the mulier now is the interruption avoided and if the Bastard die seised this shall barre the mulier Littl. § 407. 408. Co. ibid. 248. 6 If I am disseised by an infant within age Entry revived who aliens to another in fée and the alienée dies seised and the tenements descend to his heire the Infant being still within age here my entry is taken away way but if the Infant within age enter upon the heire that is in by descent as he well may because the descent was cast during his nonage then may I well enter upon the desseisor because the infants entry hath defeated that descent The like 7 If I be disseised and the disseisor makes a feofment in fée upon condition and the feoffée dies seised of that estate Here Littl. § 409. Co. ibid. 248. I cannot enter upon the heire of the feoffée But if the condition be broken so that the feoffor doth therefore enter upon the heire Now may I well enter because by the entry of the feoffor the descent was utterly defeated The like 8 If a feme inheritrix take baron and they have a sonne Littl § 636. Co. ibid. 338. and the baron die and she takes another baron and the second baron lets the land that he hath in right of his wife to another for terme of his life and after the feme dies and then the tenant for life surrenders his estate to the second baron Littleton makes a Quaere whether the issue of the feme may enter during the life of the tenant for life but after his death he holds it cléer he may and my Lord Cook proves it plainly that he may also enter upon the baron immediately after the surrender Collateral and lineal warranty 9 A collateral warranty doth not give a right Co. ibid. 372. a. 1. Littl. § 708. but onely bindeth a right so long as the same continueth and therefore if the collateral warranty be determined removed or defeated the right is again revived as in this example If tenant in tail hath issue thrée sonnes and discontinue the taile in fée and the second sonne releaseth by his déed to the discontinuée binding himself and his heires with warranty c. and after the tenant in taile dies and the second sonne 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 collaterall unto him in as much as he can by no meanes convey unto himself by force of the entaile any descent by that brother and therefore as to the eldest brother it is collaterall warranty But in this case if the eldest brother die without issue then may the youngest brother well have his writ de Formedon in descender and shall recover the land because the warranty of the second brother is lineall to the youngest sonne in as much as he might have conveyed unto himselfe by possibility the estate by his second brother in case he had survived the eldest c The like 10 If tenant in taile lets lands to a man for term of his life Littl. § 738. Co. ibid. 387. the remainder to another in fée and a collaterall ancestor confirmes the estate of the tenant for terme of life and binds himselfe and his heirs to warranty for the terme of the life of the tenant for life and dies and the tenant in taile hath issue and dies in this case the issue is barred of his
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.
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
therefore if Tenant in taile seised of divisable lands alien them in fée to his brother who afterwards deviseth the same lands to another with warranty against him and his heires and dies without issue This warranty shall not barre the heire in taile of his Formedon because this warranty did not descend to the issue in taile for that the Vncle of the issue in taile was not himselfe bound to the warranty in his life time neither yet could he warrant the Lands in his life time in as much as the devise could not take effect till after his death And now because the Vncle in his life time was not bound to warranty such warranty cannot descend from him to the issue in tail c. For nothing can descend from an Ancestor to his heire but that which was first in the Ancestor So likewise if a man make feoffment in fée and bind his heires to Warranty this is void as to the heir because the Ancestor himself was not bound c. Tenant in tail cannot grant any remainder of estate 10 He in the remainde in taile bargains and sels his land Co. l. 2. 51. b. 4. 52. a 2. Sir Hugh Chomleys ease and all his estate c. by indenture inrolled c. to I. S and his heirs male c. to have and hold for the life of the tenant in taile the remainder to Qéen Eliz. c. Here the remainder to the Queen is void for when he in the remainder hath granted all his estate to I. S. he cannot limit any farther remainder of it to the Queen because a remainder is but a remnant of the estate of the Grantor and the Queen cannot have any such remnant of estate when he had granted away all his estate before to to I. S. And therefore it was agréed Hill 35. El. in Blithemans case that if tenant in taile in consideration of fatherly love covenant by Déed to stand seised to the use of himselfe for his owne life and after his death to the use of his eldest sonne in taile and after this Covenant the Covenantor takes feme and dies in this case the feme shall be endowed for when tenant in taile hath limited the use to himselfe for his own life he cannot limit any remainder over because an estate for his own life is as long as he himselfe can limit by the Law and therefore the limitation of the remainder is void and by consequent the Dower good c. Entty taken away from issue in tail 11 The Baron seised to the use of himself and his wife for life Co. l. 3. 61. a. 3. Lincolne Colledge case and the heires of the body of the Baron dies the issue in the life of the feme then Tenant of the Frank-tenement for so the pleading was which shall be intended by disseisin for no surrender or forfeiture was alleadged 4 H. 8. suffers a common rocovery with single voucher by agréement that the recoverors shall enfeoffe Litster and others to divers uses and that the feme shall release to them with Warranty which was done accordingly 11 H. 8. the feme dies after that the issue dies and afterwards his issue in the third degrée enters The question was whether the collaterall warranty shall bind for the recovery came not in question because by the pleading it shall be intended that the issue was seised by another Title then the intaile and so the single voucher not material or whether the warranty shall be adjudged void by the Statute of 11 H. 7. 20. And in this case it was resolved that the warranty shall bind the Demandant and was not void by that Statute because when the first issue by the common recovery had against him by his own agréement had disabled himselfe to take benefit of the forfeiture given by the Statute after his death another issue claiming from him shall not take benefit of it for if the Ancestor being in esse at the time of the forfeiture could not enter much lesse shall any person which was not in rerum natura nor had the immediate interest Title or Inheritance at the time of the forfeiture ever enter or take benefit of that Act And although there was error in the recovery yet the Warranty of the feme shall barre the first issue of his writ of Error because by his own act he hath barred himselfe of the entry which the Statute prescribes and the like in effect was adjudged in Sir Geo. Brownes case Co. ibid. 51. b. ◠where the issue in tail in the life of his mother having the reversion in fée levies a fine without proclamations for there the issue against his own fine could not enter although it was erroneous Copihod Custome 12 Custome hath so established and fixed the estate of the Copiholder Co. l. 4. 24. b. 1. Murrel and Smiths case that by the Severance of the Inheritance of the Copihold from the Mannor the Copihold is not destroyed for in as much as the Lord himselfe cannot out the Copiholder no more shall any claiming under him have power to do it because Nemo potest plus juris c. A release by bail not good 13 In debt Marshall was baile for the Defendant Co. l. 5. 70. b. Hoes case Co. Inst pars 1 265. b. 2. and before Iudgement the Plaintife releaseth to Marshall all actions duties and demands and after judgement was given against the Defendant upon whose default Scire facias issued out against Marshall who pleads the said general release but it was adjudged that the release was not effectual to barre the Plaintife because the words of the baile being conditional viz. Si contigit Defend c. non solvere c. there cannot be by the baile any present and certaine duty before judgement given for before that it cannot be known to what summe the debt and damages will amount neither is he that bailes at first bound in any certaine summe but his recognisance being general it shall be reduced to a certainty by the Iudgement A release not good 14 In Trin. 4. El. Rot. 1207. in Com. Banco Co. ibid. 71. b. Dyer 5. El. 217. it was adjudged that by a release of all actions suits and quarrels a covenant before the breaking of it is not released because there is not any cause of action nor any certaine duty before the breaking of it c. Payment of rent by a termor no seisin 15 A. deviseth rent to B. for life out of the Mannor of D. and deviseth the Mannor it selfe to C. for yeares Co. l. 6. 57. a. 4. Bredimans Case C. enters and payes the rent during the term but after the term the Terre-tenant refuseth to pay the rent whereupon B. brings an Assise And in this case it was adjudged by Coke and the other Justices of the C. Pl. that the payment of the rent by the tenant for years was not seisin to bind the
a man and a woman and their heires before mariage the husband and wife have moities betwéen them Lands given to Batre and feme but if it be after mariage each of them taketh the whole And therefore in this last case if the husband be attainted of Treason or selleth away the land after her husbands death she shall recover the whole as it fell out in the case of William Ocle who was attainted for murthering E. 2. Finch 41. Co. ibid. 209. b. 2. 18 E. 4 18. 19 H. 6. 54. 20 E. 3. account Pl. 70. 8 In a Mortgage the agréement precedent ought to guide the payment subsequent and therefore in case the feoffée die The conditio◠of a mortgage must be performed and it is agréed betwéen the feoffor and the executors of the feoffée that at the day and place the whole sum shall be paid and that afterwards some part thereof shall be restored this is no performance of the Condition for hereby the state shall not be devested out of the heire which is a third person without a true and effectual payment and not by a shadow and colour of payment Co. l. 5. 96. Goodales case Co. ibid. 248. b. 1. Littl. § 410. Pl. Co. Dame Hales case 6 E. 3. 41. c. 9 Littleton saith that a descent Descent by entry into Religion which happens upon the disseisors entring into Religion shall not take away the entry of the heire yet his entry into Religion is not the cause of the descent but his profession for albeit he enter into Religion yet before he be profest no descent can happen But in this case the Law doth respect the original act and that is his entry into Religion which was his own act and whereupon the profession followed by which profession the descent hapned for Cujusque rei potissima pars principium est And againe Origo rei inspici debet and therefore Littleton attributeth the cause of the discent rather to the deisseisors entring into Religion which was the first act to procure a descent than to his profession which followed thereupon Co. ibid. 372. b. 3. T. 23 El. in the Court of Wards 10 To prevent the barring of an estate taile An entail and the reversion in the King when the reversion is in the King according to the Stat. of 34 H. 8. 20. it is necessary that the estate tail should be created by a King and not by any Subject albeit the King be his heire to the reversion And therefore if the Duke of Lancaster had made a gift in taile and the reversion descended to the King yet was not that estate restreined by that Statute and so of the like Co. l. 5. 15 16. in Wisemans case Vide 21. 8. 33 Ass Pl. 7. 11 If a servant departed out of his Masters service kill his Master upon a malice that he bare him whilest he was his servant Malice prepence it is petty Treason Finch 10. 10 El. Dyer 266. b. 12 A erects a Shop upon the Kings Fréehold No possession against the King the King grants the land to B. in fée A. before entry or seisure of the Shop by the Kings Patentée continueth the possession and dieth seised This is no descent to toll the Patentées entry For by his first erecting of the Shop he could gaine nothing against the King Finch 11. Co. lib. 2. 93. a. 3. Binghams case 6. E. 3. 410. 13 It was said in Binghams case in the 2 Report The original act considerable that when divers accidents are requisite to the consummation of a thing the Law in many cases respects rather the beginning and original cause then any thing else As in 6 E. 3. 41. if a man present to another mans Church in the time of warre and thereupon the presentée is admitted instituted and inducted in time of peace Here the Law gives such regard to the original act viz. the presentation that all which followes thereupon although it be done in time of peace Co. l. 1. 106. Shelleyes case shall be avoided And upon the same reason was Shelleys case adjudged in the 1 Report fol. 106. Grant by baron without feme not good 14 If land be given to Baron and Feme Co. l. 3. 5. b. 3. Owen and Morgans case Co. l. 3. 34. b. 4. Butler and Bakers case and to the heires of their two bodies engendred and the Baron alone suffers a common recovery this shall not bind the estate taile And albeit in this case the Baron which suffers the recovery survives the Feme that is not material for the Law shall adjudge upon the case as it was at the time of the recovery Tenure according to limitation 15 If Land be given to a man and his heires to hold by Soccage during his life and after his decease to hold by Knight-service Littl. § 698 699 700. Here shall be no ward because the tenure by Knight-service begins in the sonne and the Father during his life holds by Soccage And è converso if lands be given to a man and his heires to hold by Knight-service during life and after his decease in Soccage Here likewise shall be no ward because immediately upon the death of the tenant the Knight-service determines and then also the tenure in Soccage begins in the sonne Warranty that begins by disseisor not good 16 If the sonne purchaseth land Co. l. 4 37. a. Tirringhams Case and letteth the same to his father for terme of yeares the father enfeoffes another in fée and binds himselfe and his heires to warranty the Father dies by which the warranty descends to the sonne this warranty shall not barre the sonne from his entry or recovery by assise c. because this warranty begins by disseisin In like manner is it if the father or any other Ancestor be tenant at will by Elegit by Stature Merchant or Statute Staple and make feofment with warranty as aforesaid c. Such warranty shall not barre because it begins by disseisin c. There is the same reason of Guardian in Knight-serice or in Soccage which make such feofment with warranty So also if the father and sonne be Ioyn-tenants in fée and the father make feofment with warranty c. and dies this shall not barre the sonne of his moity causa quae suprà Common appendant due of common right 17 The beginning of common appendant by the ancient Law was in this manner 37 H. 9 34. per totam curiam 29 H. 8. 4. when the Lord of a Mannor did enfeoffe a man of arable land to hold of him in Soccage viz. per servitiam Socae as every such tenure at the beginning as Littleton saith was the feoffée ad manutenendum servitium Socae was to have Common in the Lords wastes for such necessary beasts as were to plow and compasse his land and therefore such Common appendant is
141. a. 4. in Beamonts case 7 H. 4. fol. 16. 56 Baron and Feme being Tenants in special taile A marriage dissolved anâ— so an intaile grounded thereon are divorced viz. by such a divorce which dissolves the marriage ab inito and the Baron and Feme à vinculo matrimonii in this case they have ever after but an estate for their lives because the marriage which was the onely means whereby they might have had heirs inheritable of the estate taile being dissolved the estate taile it selfe is thereby also determined and extinct Co. l. 10. 76. a. 4. the case of the Marshalsea 57 When a Court hath jurisdiction of the cause Erroneous proceeding in Court and procéeds inversa ordine or erroneously there no action will lie either against the party that sues or against the Officer that executes the precept or processe of the Court But when the Court hath not jurisdiction of the cause there all the procéeding is coram non judice and actions will lie against them without any regard of the precept or processe c. for the rule is Judicium à non suo judice datum nullius est momenti See the booke at large Co. l. 10. 96. a. 〈◊〉 Edw. Seyâ—â—ors case 24 E. 3. 28. in Caloys case 58 Tenant in taile Dower detâ—â—mined the remainder in taile to A. the reversion in fée to himselfe bargains and sels the land to B. and his heirs Here by the déed indented and inrolled c. the Bargainée hath an estate descendable to his heirs but determinable upon the death of the Tenant in taile and hath also the reversion in fée exepctant upon the estate in remainder in taile and here likewise the Feme of the Bargainée will be endowed but in this case if the Tenant in taile die the Dower which depended upon that estate shall determine also Co. l. 10. 96. b. 1. Edw Soymors case 59 Tenant in taile Warranty dâ—termined the remainder in taile to A. the reversion in fée to himself bargains and sells the land to B. and his heirs and afterwards also levies a fine to B. his heirs with warranty c. In this case albeit A. be the next heir to the Tenant in taile yet shall not this warranty bar his remainder For every warranty ought to be knit and annexed to an estate for that a warranty hath his essence by dependancy upon some estate Now in this case at the time of the fine levyed the warranty was annexed to the Fée-simple determinable upon the death of the Tenant in taile without issue and also to the reversion in fée but doth not extend to the estate of A. in the remainder for that was not displaced nor devested but did still continue in him because A. at the time of the fine levyed and after was seised of his remainder Now then if the warranty at the time of the creation of it were annexed to an estate the Conusée by his Feoffment or other act cannot extend if farther than it was at the time of the creation of it And therefore when the estate taile unto which the warranty was annexed is determined by the death of the Tenant in taile without issue the warranty which hath his essence by dependancy is also determined because then there is no estate left to support it c. 30 E. 3. casu ultimo in Henry Pigots case Co. l. 21. 27. b. 60 In Assise before Stouffe and others in the Countrey A man unlâ—tered not bound the Tenant pleads feoffment of the Plaintiff to him by déed of the land in plea to have and to hold to him and his heirs comprehending a letter of Attorney to deliver Seisin Warranty void as welâ— the deâ—d c. and in truth the Plaintiff was a lay man not lettered and the déed with the warrant of Attorney was read unto him according to the form of an estate tail and upon the same intent he sealed and delivered the déed with the letter of Attorney in it to deliver Seisin In this case the déed did not binde the man unlettered but was adjudged void And therefore albeit the déed and the warrant of Attorney were two several clauses and that the said warrant was well and truly read unto him yet because the same warrant did depend upon the feoffment and had relation unto the estate in fee that warrant of Attorney was adjudged void also c. Warranty defeated 61 If a man enfeoffe another of land with warranty by deed F. N. B. 135. g. if the Feoffee make feoffment over and take back an estate in fee Here the estate unto which the warranty was annexed being destroyed the warranty it selfe is also destroyed and in this case he shall not have a warrantia cartae because he is in of another estate The father in by tort the heire by remitter the Feme not endowed 62 If a man hath title of action to recover land and after he enters F. N. B. 149. f. and disseiseth the Tenant of the land and dieth seized by which his heir enters here the heir is remitted to the title that his Ancestor had and the Feme of the Baron that so dieth seized shall lose her dower because that estate which the Baron had is determined for that was an estate of fee by tort and the heire hath an estate of fee which was in his Ancestor by right c. Feme not endowed of the rents but of the land 63 If a man make a gift in taile reserving rent to him and his heirs F. N. B. 149. g. and after the Donor taketh Feme and dieth and the Tenant in taile also dies without issue Here the Feme of the Donor shall not be endowed of the rent because the rent is extinct for it was reserved upon an estate taile which is determined But in this case albeit the estate taile of the rent is determined yet shall the Feme be endowed of the land because that doth still continue and is not determined as is the rent A remainder must have an estate to support it 64 By the rule of the Law a remainder ought to have a preceding estate to support it And if that preceding estate faile Pl. Co. 35. a. in Colthrists case the remainder fails also As if a lease for life had been made to a Monk the remainder in fee this remainder had been void because the Monk had no capacity to take the estate for life and so the estate preceding the remainder is void and then ex consequente the remainder is void also Appropriation disappropriate Ancient Demesn restored 65 A Church appropriated to a spiritual Corporation 3 E. 3. 74. b. becometh disappropriate if the Corporation be dissolved Finch 14. 66 A dissesor of Lands in ancient Demesn 49 E. 3. 8. the Lord confirms unto him to hold at the Common Law the Dissesee re-entreth Now shall
being heir in appearance and he is not bound to dis-able himselfe â—â—ministratiâ—â—â—oid and â—â—able 6 If an Ordinary of a Diocesse commits Administration of Goods Co. l. 5. 29. b. 4. in Princes Case Were and Jefferies Case when they are bona notabilia such Administration is méerly void but Administration committed by the Metropolitan when the defunct had not bona notabilia is onely voidable because he hath Iurisdiction in all the Diocesses within the Province and therefore hath sufficient colour to do it Co. l. 6. 65. a. 3. in Sir Moile Finches Case 7 In 41 E. 3. 19. Rich. Tompson had Issue by Joan before mariage one Agnes and after he marries Joan and makes feofment in fée A Bastard takes by yâ— chase and retakes the Estate to himselfe for life remanere inde Agnetae filiae praedict Rich. Johanne and it was agréed that this was a good remainder without any averment that she was known to be their Daughter for albeit by the Common Law she was not their Daughter yet in as much as she had colour by the Ecclesiastical law which saith subsequens matrimonium tollit peccatum procedens this colour is sufficient in Case of a conveyance to make the remainder good and so note the diversity betwixt descent and purchase c. Co. l. 8. 101. per tout in Sir R. Lechfords Case The better opinion per Coke 8 If there be Bastard eigne and Mulier puisne Mulier beyonâ— sea c. and the Father die seised the Mulier being beyond Sea within age in Prison or of non sanae memoriae and the Bastard enter and continue in peacable possession of the Lands and hath Issue and dies and the lands descend to his Issue here the right of the Mulier is for ever bound because he hath colour of legitimation by the Law of Holy Church and the Common Law respects legitimation before the above-said Imperfections Vide plus ibid. Co. l. 10. 76. b. in the Case of the Marshalsea 9 If a Sheriffe holding his Torne after Michaelmas moneth takes there an Indictment of Robbery it is utterly void Things done by warrant contra being coram non judice But if the Court of the Common Bench in a plea of Debt award a Capias against a Duke Earle or c. which by the Law lyeth not against them and that appeares in the writ it selfe here if the Sheriffe arrest them upon the Capias albeit the writ be against Law yet because that Court hath jurisdiction of the cause the Sheriffe hath colour to do it and shall be excused and herewith accords Dier 60. b. 38 H. 8. So also if a Iustice of Peace make a warrant to arrest one for Felony who is not indicted albeit the Iustice erre in granting the warrant yet he that makes the arrest by force of that warrant shall not be panished by writ of false imprisonment because the Iustice is Iudge of the Cause Plow 83. b. 1. in Strange and Crokers Case 10 In 9 H. 6. it is said that if I grant to B. Maintenance that if my Tenant for life die during my life that then B. shall have the Land for 10 yeares Here if my Tenant be impleaded B. may lawfully maintaine in respect of the Colour of title he hath to the Land Co. Inst p. 1. 148. b. 4. 11 Entry into Religion and profession of a Disseisor shall not cause a descent to toll the entry of the Disseisée Bastard Mulier because it is the Disseisors owne Act and not the Act of God as death is yet if there be Bastard eigne and Mulier puisne and the Bastard before claime enter into Religion it is said such a discent shall toll the entry of the Mulier by reason of the colour of title that the Bastard had to the land and such an heire shall also have his age 114 It prizeth the Acts of God and of the Law more then those that are done by the party Co. Inst p. 1. 18. a. 4. 1 Fée-simple being as Littleton saith the largest Estate of inheritance that is Two Fee-simples one Fée-simple cannot depend upon another by the grant of the party as if Lands be given to A. so long as B. hath heires of his body the Remainder over in Fée here the Remainder is void yet in several persons by Act in Law a reversion may be in Fée-simple in one and a Fée-simple determinable in another by matter ex post facto as if a Gift in taile be made to a Villein and the Lord enter the Lord hath a Fée-simple qualified and the Donor a reversion in Fée but if the Lord enfeoffe the Donor now both Fée-simples are united and he hath but one Fée-simple in him â—â—ires female â—ill not take 2 When a man giveth lands to another man and the heirs female of his body dieth having issue a son a daughte◠〈◊〉 daughter shall inherit for the will of the donor the Stat. working 〈◊〉 it Co. ib. 24. b. 3 25. b. 3. 26. b. 4. which is upon the matter an act in law shall be observed but in case of a purchase it is otherwise for if A. have issue a son a daughter a lease for life is made the remainder to the heirs females of the body of A. A. dieth the heire female can take nothing because she is not heire for she must be both heire heire female which she is not because the brother is heire and therefore the will of the giver cannot be observed because here is no gift and therefore the Statute cannot work thereupon so it is if a man hath a son and a daughter and dieth lands are given to the daughter and the heirs female of the body of her father the daughter shall take nothing but an Estate for life because there is no such person she being not heire but where a gift is made to a man and to the heirs female of his body there the Donée being the first taker is capable by purchase and the heire female by discent secundam formam doni â—â—tes may 〈◊〉 altered 3 Regularly Estates cannot be altered from one to another Litt. §. 33. Co. ib. 28. a. unlesse all that have interest joine in the alteration thereof but by the Act of God estates may be changed without any act done by the parties that are interessed as if lands be given to a man and the heirs that he shall engender of the body of his wife here the wife hath nothing and the man is Tenant in special taile therefore in this Case if the Feme die without issue on her body begotten by the Baron the estate in special tail is by the act of God charged into tenancy in tail after possibility of issue extinct â—â—ging of â—â—tes 4 If a feofment in fee be made to the use of a man and his wife for the term
issue this warranty shall not barre the issue intail because this warranty did not discend to the issue in tail in regard the uncle of the issue himself was not bound to the warranty in his life time nor chargeable with it for that the Devise takes not effect until after his death Also if a man make a Feoffment in fée and bind his heires to Warranty this is void by the Warrant of this Maxime as to the heir because the Ancestor himself was not bound In like manner if a man bind his heires to pay a summe of money this is void And vice versa if a man bind himself to warranty and bind not his heires they are not bound Ego haeredes mei warrantizantibinius And Fleta saith Nota quod haeres non tenetur in Anglia ad debita antecessoris reddenda nisi per antecessorem ad hoc fuerit obligatus praeterquam debita Regis tantum A Fortiori in Case of warranty which is in the realty Howbeit the warranty in Law may bind the heir although it never bound the ancestor and this also may be created by a last will and testament As if a man devise lands to another for life or in tail reserving a rent the Devisée for life or in tail shall take advantage of this warranty in Law albeit the antestor was not bound and such a Devise shall also bind his heires to warranty albeit they are not named Co. l. 1. 83. b. Corbets Case 10 If a man covenant to stand seised to the use of himself for life An Estate to cease to one and to be in another repugnant the remainder to A. in tail the remainder to B. in tail c. Provided that if any of the remainders in tail shall resolve to alien that then the Estate of him so resolving should cease as if he were naturally dead and that it should then go to him in the next remainder here this Proviso is void and against Law for the repugnancie for by the words or act of the partie an Estate cannot be limited to cease as to one Ibid. 86. b. 4. 87 a. 4. per Walmesley and from thence-forth to be in another For if a man make a Lease for life upon condition that if he do not pay 20 l. such a day that another shall have the Land this future limitation is void also if a man make a feoffment in Fée of Land to the use of A. and his heires every Monday and to the use of B. and his heires every Tuesday and to the use of C. and his heires every Wednesday these limitations are void and we find no such fractions of Estates in the Law And if Co-perceners agrée to present by Turn this is a partition as to the Possession yet neverthelesse they shall in a writ of Right So also partition that one of them shall have the land from Easter to Lammas and the other from Lammas to Easter in severalty this is good as to the possession and taking of the profits but it is no severance of the Estate of Inheritance Howbeit an act of Parliament or the Common Law may make an Estate void as to one and good as to another but a man by his words and the breath of his mouth cannot do it As if Land be given to Baron and feme and the heires of their two bodies and the Baron levie a fine with Proclamations and hath issue and dies now this fine by force of the Statute of 32 H. 8. 36. shall barre the issue in tail but shall not bind the feme and so in respect of one it is a good barre and in respect of another no bâ—rre Also in a Praecipe if one be vouched here as to the Demandant the Vouchée is Tenant and a Release to him by the Demandant is good but as to a stranger he is not Tenant and therefore a Release to him by a stranger is void in like manner if one hath a Term for yeares as Executor and surrender it here in one respect the Term is extinct but in another it is Assets So that an act of Parliament or the Law may do that in such Cases which a man by his words cannot do Co. l. 4. 1. b. 3. in Vernons Case 11 No collateral satisfaction or recompence made to the Feme Dower assigâ—ed either before or after marriage in liew of her Dower was any barre of her dower at the common law before the Stat. of 27 H. 8. 10. albeit after the death of her husband she entred thereinto and accepted thereof in recompence of her dower because by the marriage she being entitled to a fréehold for life that title shall not afterwards be barred by any collateral satisfaction Howbeit dower ad ostium Ecclesiae or ex assensu patris shall conclude her of her dower if she enter into the land so assigned after the death of her husband for the law doth allow these being made in such form as the law requires those kinds of dower to be made It is otherwise where the dower is made by the Act of party as aforesaid The principal Case there And therefore if B. enfeoffes to the use of himselfe for life remainder of his wife for life upon condition to perform his last will and for her jointure albeit after the death of her husband she accepts thereof yet she is not bound by it â—â—â—nt-tenants â—etition 12 If two joint-tenants since the Stat. of 31 H. 8. 1. Co. l. 6. 12. b. Morrices Case which gives them a writ of partitione facienda do make a partition by déed with consent albeit they are now compellable by that Statute to make partition yet because they do not pursue the Stat. to make partition by the writ such partition remaines at the common law and so by consequent the warranty originally annexed to their Estate is gone but if they make partition by writ provided by the Stat. to which every one being party none can have any wrong by the operation thereof the warranty shall remaine notwithstanding such partition in severalty because the first is by the act of the parties but the other is operation of the Statute which is an act in law so also if there be two joint-tenants with warranty and the one disseise the other and the disseisée brings an Assise here albeit the Plaintiff pray recovery in severalty yet he shall recover generally and in this Case also the warranty shall be preserved because he recovers by course of Law and with this agrées 28 lib. Ass Pl. 35. and Sir Edw. Coke also ubi suprà albeit there be some Bookes that he shall have judgment to hold in severalty as 10 E. 3. 40. 10. Ass Pl. 17. Tâ—e Shewing 〈◊〉 a Deed â—â—â—a 13 When a déed is requisite to be had ex institutione juris C. l. 6. 38. b. 2. Bellamies Ca. it ought to be shewed in Court although it concerne a
hath a good lawful right and yet if A. being out of possession granted away the land or contracteth for it with another he hath now made his good right of entry pretenced within the Statute of 32 H. 8. 9. and both the grantor and grantée within the danger thereof A forciori of a right of Action Quod nota â— joynt grant â—f a Rent-â—â—nge 6 A. enfeoffes B. upon Condition A. and B. joyne in the grant of a Rent-charge out of the land to C. the Condition is broken A. enters Co. l. i. 146 a. 2 Anne MayoÌ„es Case In this Case it was objected that this grant enured as the grant of B. and the confirmation of A. which confirmation could not alter the quality of the Estate Howbeit it was resolved and adjudged that the land was chargable with the Rent and one of the reasons alleadged for it was that every fée may be charged one way or other and when both joyne in the grant that have the whole interest in the land it must néeds be charged with the Rent for if it cannot be done by their joint grant there is no other way to do it Co. l. 3. 60. b. 1. in Lincolne Colledge Ca. 7 A. and B. fâ—ynt-tenants for life An entail docked by 〈◊〉 lease and to the heirs of the body of A. intermarry and have issue C. who after the death of A. disseises B. and suffers a Common recovery and B. releaseth with warranty and dies In this Case the Estate taile had béen barred albeit B. had not released with warranty for it is reasonable that the entaile should be cut off this way as well as by joyning in a fine or surrender of B. and recovery after against the heire because they both had power to barre the Estate taile one way or other having the whole Estate in them subject to be docked Co. l. 10. 48 b. 4 in Lampets ca. F. N. B. 152. g k. 8 Littleton saith Joinder of dâ—visees in a grant c. of a lease cap. Discout fol. 144. that it is a Maxime in the Law that land in fée-simple may be charged one way or other So also it is a Maxime in the Law that every right title or interest in praesenti or futuro by the joyning of all that may claime any such Right Title or Interest may be barred or extinct And therefore at the Common Law if the Donor and Donée had joyned in the grant of a rent-charge and after the Donée had died without issue and the fée had reverted to the Donor that he should have held it charged and yet he had but a possibility at the time of the charge made Because all those who had any Estate or interest therein in praesenti or in futuro did joyne in the charge So likewise à fortiori if they had joyned in a lease for yeares and the Donée had died without issue the lease had béen good against the Donor In like manner Lessée for 400 yeares devises for life to his executor The principal Case there the remainder to M. and dies M. maries her husband and she releases to the Executor In this Case albeit M. had but a possibility yet a release by her Husband and her to the Tenant in possession vests the whole interest of the term of 400 years in the Executor because none other had interest in praesenti or in futuro but those that joyned in the release and both consented to it the one in releasing and the other in accepting thereof For if they had joyned in an assignment of the term it had also béen good causa qua supra And in Case both joyne in a grant it is the grant of him that hath the term and the release or confirmation of the other Co. ib. 49. a. 3. Pasc 4 E. 6. in Co. Ba. 9 If a man make a lease to another for 21 years Lessor and Lessee joine if the Lessée shall so long live here if the Lessor and Lessée joyne in the grant of a term by Déed to another and after the Lessée die within the term so granted the grantée shall enjoy the land during the residue of the term absolutely Fuit tenus per Montague Hales Molineux Browne Co. l. 10. 101. a. 3. in Bewfages Case 10 In the Statute of 23 H. 6. 10. which enjoynes Sheriffes to take baile of prisoners within their guard for appearance upon reasonable suerty of sufficient persons c. Here these words Security to the Sheriffe Reasonable suerty of sufficient persons do not so restraine the Sheriffe but that he may if he please take suerty of one single person for the Statute leaves it to his discretion to take such security as he thinks fit because he is to be amercied if the party appeare not at the day in the writ and therefore it is at his peril if he take not good security of the party arrested and he hath liberty to waive that power by taking lesse security then the Statute mentioneth for those words import rather an advice then a command and Quilibet potest renunciare c. Dier 23. b. 148 28 H. 8. Stat. 27 H. 8. 10. 11 A man seised of land in right of his wife makes a feoffment in fée to his owne use and declares his will to be Upon grant by the Baron oâ— the Femes lanâ— though to her no remitter that the feoffées shall stand seised to the use of his wife for life And then comes the Statute of Uses 27 H. 8. 10. which saith that Cestuy que use shall be déemed in possession of such an Estate as he had in the use Here the Question was whether or no the Feme should be remitted And by Shelley it séemes she is remitted because she comes in not by her owne Act but by an Act in Law viz. by the Statute and there is none against whom she may bring her Cui in vita But Baldwin and Knightly è contra because she comes in by Act of Parliament to which every one is party and the Statute saith Cestuy que use shall be adjudged in such Estate as he had in the use for if Tenant in taile make a feofment in fée to his owne use in fée or fée taile the issue is not remitted because he had a fée-simple in the use and the Statute conveyes unto him such an Estate as he had in the use Ideo quaere â—â—sor â—â—see 12 A Lease is made for yeares upon Condition Dier 334. 3â— 16 Eliz. that the Lessée shall not alien to any person without the Lessors Licence the land nor any part thereof the Lessor gives him Licence to alien part the Lessee aliens the residue without Licence And it was adjudged that the Lessor might enter notwithstanding the dispensation with the condition in part and that the condition was intire â—â—re of an â—â—raile 13 Baron and Feme are Tenants in special
Disclaimer Error 2. If the Tenant disclaime Co. l. 8 61. b. 4. in Beechers case he shall not have a Writ of Error against his Disclaimer because by his Disclaimer he hath barred himselfe of his right in the Land for the words of the Disclaimer of the Tenant are Nihil habet nec habere clamat in illa terra nec die impetrationis brevis originalis c. habuit sive clamavit sed aliquid in illa terra habere deadâ—ocat disclamat And against this he cannot have a Writ of Error to have restitution of the Land against such Disclaimer Vide 6 E. 3. 7. F. N. B. 22. c. 170. None shall take exception to an Error or Act which operateth to his own advantage Co. l. 3. 69. b. 4. Lincoln Colledge case 1. C. and F. Ioynt-tenants for life Collaterall Warranty and to the heires of the body of C. intermarry and have Issue E. who after the death of C. disseiseth F. and suffers a common Recovery F. releaseth to the recoverors with Warranty and dyes also E. dyes without Issue and R. as heire male of the body of C. brings his Formedon in Descender and here the question was whether or no the collaterall Warranty of F. did bar the Demandant or that the heire in tail might have the Land by force of the Statute of 11 H. 7. 20 which gives Entry to the next Heire upon Discontinuance c. of the Inheritance of the Husband by the Feme But it was resolved that this case was out of the intention of the said Act because the intention of that Act was to restraine such women to make Discontinuance Warranty or Recovery in bar or prejudice of the heire in taile or of them in Remainder c. but when the heir in tail himself conveys assures the Land to others the release or confirmation of the Feme with Warranty is but to make perfect and corroborate the estate which the heire in tail hath made and therefore such Warranty is not restrained by the said Act for it shall be intended for the benefit of the heirs in tail and not to their prejudice And this is also the reason why a common Recovery in respect of the intended recompence was not restrained by the Statute of West 2. Co. l. 8. 59. a 3 in Beechers case 2. For the reversall of a Iudgement a man shall not assigne for Error that which maketh for his advantage Assignment of Error as to alleadge that he was essoined where he ought not to have been essoined or that he had a longer day then the common day or that he had ayd granted to him where it was not grantable or the like Vide 7 E. 3. 25. per Herle 8 H. 5. 2. 11 H. 4. 8. F. N. B. 21. f. Co. l. 11. 56. a. Benhams case 3. M. brings a Writ of Annuity against B. and they being at Issue Insufficient Verdict the Iury found for the Plaintiff and also the arrearages but did not assesse any damages or costs whereupon the Verdict was imperfect neither could it be supplyed by a Writ to inquire the damages Howbeit afterwards the Plaintiff released his damages and costs and thereupon had Iudgement whereupon the Defendant brings a Writ of Error and assignes for Error the insufficiency of the Verdict but the Iudgement was affirmed because the Plaintiffs release of the damages and costs was for the Defendants benefit and advantage and therefore ought not by him to be excepted against Vide 22 Eliz. Dyer 369 370. Where in a Writ of Ejectione Custodiae terrae haeredis the Iurors assessed damages intirely which was insufficient for it lyeth not for the heire yet the Plaintiff released his damages and had Iudgment for the Land Note that insufficient Assessment of damages and no Assessment is all one F. N. B. 22. d. 25. c. 4. It is not Error to suffer one to make an Attorney in an Action Attorney in which he ought not to make an Attorney because that is for his advantage 171 Nemo tenetur armare adversarium suum contrase Challenge 1 He that challengeth a Iuror for the hundred or for Cosinage Co. Inst pars 1. 157. a. 2. 4. must shew in what hundred he hath no land and how he is of kin and shall not drive the other party to shew it 2 The Plaintif in a Replevin pleads in barr of an Avowrie for damage fesant Co. l. 5. 78. b. 3. Grayes case that he hath common of Pasture by custom in the place where c. belonging to his Copyhold which custom was traversed and it was found that he had such Common there but withall that every Copyholder had used to pay time out of mind c. pro eadem communia unam Gallinam quinque ova annuatim and it was adjudged that upon this verdict the Plaintif should have Iudgement albeit he omitted in his barr the yearly payment of the Hen and five eggs And the reason was because the Plaintif was not bound to shew more than what made for him and tended to his advantage 172 It favoureth Diligence And therefore hateth Folly and Negligence Waste 1 Waste may be done in houses by suffering them by negligence to be uncovered whereby the spars fasters planchers Co. Inst pars 1. 51. a. 2. b. 2. or other timber of the house become rotten So likewise if he suffer a wall of the sea to be in decay so as by the flowing and reflowing of the sea the Meadow or Marsh adjacent is surrounded whereby the same becomes unprofitable Also the burning of an house by negligence or mischance is waste Waste 2 A prohibition of waste did lye at the Common law against tenant by the Curtesie tenant in Dower and a Guardian in Chivalry Co. ibid. 53. b. 4. because they were in by the Law but not against tenant for life or years because they come in by the Act of the lessor himself and therefore it is imputed to his own folly and negligence if upon granting the term he made not sufficient provision against committing of waste for in that case the Law did not aid him Vide Co. l. 4. 62. b. 3. in Herlakendens case Co. l. 5. 13. b. 3. in the Countess of Salops case Guardian in soccage 3 If Guardian in soccage marry the heir under 14 years of age without a convenient fortune Co. ibid. 88. a. 3. Littl. §. 123. he is compellable to make it good upon his accompt for it will be imputed to his own folly that he married him without provision of a convenient portion answerable to his estate Goods gaged 4 If goods be delivered to one as a gage or pledge Co. ibid. 89. a. 4. and be afterwards stollen from him yet he shall be discharged of them because he hath a property in them and therefore he ought to keep them no otherwise than as his