several Warranties in regard they are severally seised the one of part of the land and the other of the residue in severalty 6 E. 2. Covenant Br. 49. So also a joynt Covenant taketh severally in respect of the several interests of the Covenantées Vide 16 Eliz. 337 338. Dyer inter Sir Anthony Cook and Weston in Justice Windhams case Co. l. 5. 7. b. 4. Co. ibid. Justice Windhams case Sometimes also joynt Words or Grants shall enure severally in respect of the incapacity or impossibility of the Grantées to take joyntly as a Lease made to an Abbot and a secular man or to two men or two women and to the heires of their two bodies engendred for in these and the like cases the inheritance is several Vide 19. Co. l. 5. 103. a. Hungares case 12 In Debt upon an Obligation brought by Hungate against Mese and Smith A joint obligation whereof the Condition was to performe an Arbitrament betwixt the Plaintife on the one part and the Defendants on the other part Ita quod Arbitrium praedictum fiat deliberetur utrique partium praedictarum before such a day And the Defendants pleaded that the Arbitrament was indéed made before the day agréed upon and was also delivered unto the Plaintife and unto Mese one of the Defendants but not unto Smith whereupon the Plaintife demurred and Iudgement was given against the Plaintife for in that case it was resolved that sometimes the word uterque is discretive and hath the quality of severing and sometimes collective and hath the property of joyning together as if two or thrée be bound in an Obligation utrumque eorum this word utrumque makes the Obligation several but in the abovesaid case it shall be taken collective And the Rule alwayes to know in which of these two sences it shall be taken is to consider the Subject matter and to make construction according to the congruity of Reason Dyer 28. H. 8. 19. b. ut evitetur absurdum as in the case of the 39 H. 6 7. the Condition of an Obligation was si uterque eorum viz. the Obliger and the Obligée Steterit arbitrio Roberti Bozom c. And it was adjudged that each of them was bound pro parte sua and not the one for the other for that would be absurd and against the congruity of Reason And in the said case of Hungate in as much as both the parties were equally subject to the penalty and danger reason requires that the Arbitrament should be delivered to both the parties to the end they may performe it and avoid the danger of breaking it c. Vide suprà 8 9. Co. l. 62. a. 2. Catesbyes case 13 The time for the Bishop to collate by lapse is Tempus semestre Tempus Semestre halfe the yeare according to the Kalender and is not to be accounted according to 28 dayes for each Moneth for verba sunt accipienda secundum subjectam materiam and therefore because this computation of moneths concernes those of the Church it is great reason that the computation shall be according to the computation of the Church wherewith they are best acquainted 8. 4. Vide Dyer 327. 7. Co. l. 7. 10. a. 3. Calvins case 14 In regard the King albeit he be but one person Allegiance due to the natural capacity yet hath two several capacities in him the one natural as he is a man the othe other politique so called because framed by the policy of man if it be demanded to which of these capacities ligeance is due The answer is that it is due to the natural person of the King which is ever accompanied with the politique capacity and the politique as it were appropriated to the natural capacity and is not due to the politique capacity onely that is to his Crowne or Kingdome distinct from his natural capacity For every Subject is presumed by Law to be sworne to the King which is to his natural person and likewise the King is sworne to his subject as it appeareth in Bracton l. 3. de actionibus cap. 9. fol. 107. which oath he taketh in his natural person because the politique capacity is invisible and immortall nay that capacity hath no soul being framed by the policy of man And therefore in all indictments of Treason when any do intend or compasse mortem destructionem Domini Regis which must néeds be understood of his natural body his body politique being immortal and not subject to death the indictment concludeth contra ligeanciae suae debitum by which it plainly appeares that ligeance is due to the natural body of the King that capacity being indeed the onely subject matter capable thereof Co. l. 8. 85. b. 3. Sir â—ichard Pexhul case 15 If A. deviseth to B. ten bullocks and ten pounds issuing and payable out of his lands and tenements quarterly at the most usual Feasts c. Here these in words payable quarterly Ten Bullocks and ten pound rent ought to be understood Secundam subjectam materiam and to have reference to the rent for ten bullocks per annum cannot be delivered quarterly â—ffices of â—â—st personal 16 The Office of Marshall of the Marshalshey cannot be granted for yeares Co. l. 9. 96. b. 4. Sir George Keynels case because it is an Office of great trust annexed to the person and concernes the administration of Iustice and the life of the Law which is to kéep such as are in execution in salva aâ—cta custodia to the end they may the sooner pay their debts and this trust is indjviduâ—l and personal and shall not be transferred to executors or administrators for the Law will not confide in persons unknown for the ordering of matters which concerne the administration of Iustice c. Bond taken by the Sheriff 17 In debt brought by Dyve against Maningham upon an obligation of 40 li. with condition to save Dyve bring then high Sheriffe of the County of Bedford harmelesse and to be ready at his command Plowd 65. b. 2. Dyve against Maningham as his true prisoner c. the Defendant pleades the Statute of 23 H. 6. cap. 10. by which such bonds taken by the Sheriffe colore officii are made void and farther saith that one Thomas Palley purchased a Liberari fac out of a recognisance to him made by the said Defendant and procured it to be directed to the said Sheriffe of Bedford to be served and certified and shewed farther that the King had sent to the Sheriffes of London Middlesex and Hertford other writs in forme aforesaid and that the same Sheriffe returned the writ into the Chancery c. In this case one exception taken to the Defendants plea was for that there were diâ—ers Sheriffes named in it and at last it is said that the same Sheriffe returned the writ c. which was said to be uncertaine but it was resolved to be certain enough
shall as King sue execution Queen Conusance 50 The Act of the 35 H. 8. Co. ibidem which concerns the Capacity of the Quéen was such an Act whereof the Iudges ought to take Conusance because it concerned the Kings Wife as it was resolved in the Lord Barkleys Case Pl. Co. 231. â—dges â—rciaments 51 There are some persons which shall not be amerced Co. l. 8. 61. b. 4. in Beechers Case and therefore by consequence shall finde no pledges as the King and also the Quéen who as to that participates of the Kings Prerogative F. N. B. 31. f. 47. c. 101. a. 18 E. 3. 2. Br. amerciament 53. â—endment â—f a writ 52 An Original writ by the Common Law was not amendable in the case of a common person for which sée 13 E. 3. Tit. Amendment 63. Co. l. 8. 156. b. 2. in Blackamores Case which was before any Statute made concerning Amendment c. And 16 E. 3. tit Variance 59. and 29 E. 3. Amendment 68. But in the Kings Case in a Quare Impedit where the Quare Impedit was praesentere for praesentare and after exception taken to it and before answer by the advice of the Chancellor out of which Court that writ issued and of the Iustices of the Kings Bench the writ was amended in the Chancery and the defendant was made to answer thereunto by award Vide 4 H. 6. 16. 40. Ass Pl. 26. â—e Kings â—arter shall 〈◊〉 interpreted 〈◊〉 fulfil the â—gs intent 53 When the Kings Charter may be taken to two several intents Co. l. 8. 167 a. 4. in the Earl of Cumberlands Case and both intents are of effect and good in many Cases it shall be taken to such an intent as shall be most beneficial for the King but if it may be taken to one intent of effect and good and to another intent void and of no effect it shall then be taken and construed to such an intent as that the Kings Grant may take effect and that in judgment of law shall be understood to stand with the Kings intent for it was not his intent to make a void Grant And with this agrées the Book in 21 E. 4. 44. In the Abbot of Walthams Case and the resolution in the Earl of Cumberlands Case in the 8 Report 167. where the Case was that E. 2. granted the Castle of Skipton to Robert de Clifford in tail and H. 6. grants to Thomas Lord Clifford Cosin and Heir of the body of Robert the reversion of the said Castle necnon Castrum c. Here the Kings intent appeared to be that Thomas Lord Clifford should have all his Estate in the Castle And therefore whether it be taken to be a grant of the Reversion in case the former grant in tail was good or of the possession in case that former grant was void it is not material in regard it appears clearly by the expresse words of the Charter that the King intended he should have it in possession either the one way or the other So if the King grant Totum illud Manerium sive firmam de D. or totam illam Rectoriam sive Advocationem de D. In this Case also whether the King hath a Mannor or else a Farm and no Mannor or a Rectory Impropriate or else an Advowson and no Rectory that which the King hath passeth for the effect of the Grant is that be it Mannor or Farm Rectory Impropriate or Advowson that which the King in truth hath passeth by the Grant Co. l. 9. 38. b. 3. in Hensloes Case 54 Of ancient time before the Statute of 31 H. 3. cap. 11. Goods of an Intestate when a man died intestate and did make no disposition of his goods nor committed his trust to any in that behalf In that Case the King who as Parens Patriae hath the supream care to provide for all his Subjects to the end every one may injoy that which he ought to have did use by his Ministers to seise the goods of the Intestate to the intent that they might be preserved and bestowed for the burial of the dead for the payment of his debts for the advancement of his wife and issues if he had any and if not then of those of his blood And this appears in Rotulis Clausis de 7 H. 3. M. 16. Bona Intestatorum capi solebant in manus Regis Ordinaries c. And afterwards this care and trust was committed to Ordinaries for there could be found none more fit to have such care charge of the Intestates transitory goods after his death then the Ordinary who all his life had or at least ought to have had the care and charge of his immortal soul as it is said in Pl. Co. 280. in Greisbrooks Case And therefore the Ordinary was in that respect appointed in loco parentis And this appears also by the construction of John Stratford Arch Bishop of Canterbury at a Synod in London Anno Domini 1380. where he confessed that the Administration of the goods of an Intestate was granted to the Ordinaries Consensu Regis Magnatum Regni c. Co. l. 9. 49. a. 1 in the Earl of Shrewsbury's Case 55 If the King grant the Office of Stewardship of the Mannors of D. and S. to an Earl without power to make Deputies Stewardship neverthelesse in respect of the meannesse of the Office in a base Court and of the dignity of his Person being an Earl it is implied in law for conveniency that he may in that Case make a Deputy for whom he ought to answer so that no prejudice may happen to the King And his Deputy shall execute Officium laboris as to hold a Court Baron and to enter Pleas Surrenders c. And néed requires in Cases of difficulty or which concern the Kings profit the Earl shall execute Officium fiduciae Bracton lib. 1. cap. 8. scientiae ingenii For Comites dicuntur à comitando quia comitantur Regem Comites à comitatu sive à societate nomen sumpserant qui etiam dici possunt Consules Reges enim tales sibi associant ad consuetudinem And that was the greatest title of Honour that was from the Conquest until the 11 of E. 3. when the Black Prince was created Duke of Cornwal and those which of ancient time were created Earls were of the bloud royall And even unto this day the King in all his appellations stiles them Per nomen charissimi consangninei nostri for which causes the Law giveth unto them high and great priviledges And therfore their bodies shall not be arrested for debt trespasse c. because the Law intends that they assist the King with their Counsel pro bono publico and kéep the Realm in safety by their prowesse and valour And for the same reason it is that they shall not be put upon Iuries albeit that be for the service of the County
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
Terre-tenant after the terme determined because ex Etymologia vi termini he who hath not seisin in the land charged cannot give seisin of the rent for Nemo potest plus juris c. And for the same reason a Praecipe lieth not against a Termor because he cannot render seisin 16 The Testator possest of a Mill for 50 yeares deviseth it to M.M. after the death of his wife Acceptance a good barre Co. l. 8. 96. a. 1. Mannings case who in the meane time was to have the occupation of it during her life paying unto M. M. 7 l. per annum and he makes his wife his executrix and dies the wife administers enters and payes the rent Here the payment of the rent by the executrix was sufficient assent to the legacy and then she having given her assent to the first devise it lay not in her power to barre him that was to have the future devise for she could not transferre more to another then she had her selfe because after that by her assent she had executed the second devise she could not afterwards otherwise dispose of it to discharge other Legacies Debts or the like c. Remainder in tail of a lease cannot grant it 17 If A. possest of a terme for 500 yeares deviseth it to B. for life Lampets case Co. l. 10. 47. b. 3 l. 466. b. Fulwoods case the remainder to C. and the heires of his body in this case C. during the life of B. cannot grant the remainder to another because the whole terme is in B. and C. hath but an executory interest depending upon a possibility viz. enjoy it after the death of B. But here B. being executor a release of his interest to him is good Vide suprà 21. 41. Release of a Conisee or heir apparent void 18 If the Conisée of a Statute or Recognisance release to the Terre-tenant all his right in the land yet he shall sue execution Co. l. 10. 50. b. Lampets case 27 E. 3. Execut. 130. 25 Ass Pl. 7. Pl. Co. 72. Sir Thomas Popes case because at the time of the release made he had no interest in the land for that the body is the Debtor and not the land but in respect of the body and the land is not charged with the debt before execution sued So likewise a release of the sonne to the disseisor of the father in the life of the father is utterly void because the sonne hath no right at all in the life of his father Vide supra 1. A joyn-tenant can grant but his moity 19 Albeit Ioyn-tenants are by Littleton said to be seised per my per tout yet can they not singly dispose of more then the part Co. Inst pars 1 186. a. 2. Littl. § 288. that belongs unto them as to enfeoffe give or demise or to forfeit or lose by default in a Praecipe So likewise if my villein and another purchase lands to them two and their heires I can but enter into the moity And where all the Ioyn-tenants joyn in a feofment every of them in Iudgement of Law doth give but his respective part So if an Alien and a Subject purchase lands joyntly the King upon office found shall have but a moity The like 20 If two Ioyn-tenants make a feofment in fée upon Condition Co. Inst pars 1. Ibid. 3. Plowd Brownings case and that for breach thereof one of them shall enter into the whole yet he shall enter but into a moity because no more in judgement of Law passed from him And so it is also of a gift in tail or a Lease for life c. Likewise if two Ioyn-tenants make a feofment in fée and one of the Feoffors dies the Feoffée cannot plead a feofment from the Survivor of the whole because each of them gave but his part A confirmation of a rent void 21 If a man grant a rent charge issuing out of his land to another for terme of his life and after he confirmes his estate in the said rent Littl. § 548. Co. Inst pars 1 308. a. 3. to have and to hold to him in Fée taile or in Fée simple this confirmation is void as to enlarge his estate because he that confirmes had not any reversion in the rent Confirmation by Patron and Ordinary 22 If the Parson of a Church charge the Glebe by his déed Littl. § 528. Co. Inst pars 1 300. b. 3. and after the Patron and Ordinary confirme the same grant in this case if the Patron be Tenant in Fée simple the grant is good but if he hath the Advowson onely for life or in taile then shall the grant stand no longer in force than for his life and the life of the Parson that granted it And in this case if the Bishop be Patron he cannot confirme alone but the Deane and Chapter must confirme also For the Advowson or Patronage is parcel of the possession of the Bishoprick c. Co. Inst pars 1 300. b. 3. 23 A Parson of D. is Patron of the Church of S. as belonging to his Church The like and presents B. who by the consent of A. and the Ordinary grants a rent charge out of the Glebe this is not good to make the rent charge perpetual without the assent of the Patron of A. c. Co. ibid. 266. a. 3. 24 If the Donée in taile discontinue in fée Release by Dower to the discontinuee and the Donor release to the Discontinuée and die and after the issue in taile doth recover the land against the Discontinuée In this case the issue in taile shall leave the reversion in the Discontinuée for the issue in taile can recover but the estate taile onely which descended unto him from his Father and the Donor cannot have the reversion againe against his own grant and therefore by consequent it shall be left in the Discontinuée c. Co. ibid. 8. a. 2 3. 25 If an Alien cometh into England and hath issue two sonnes Betwixt Brothers no inheritable bloud these two sonnes are indigenae Subjects borne because they are borne within the Realme Howbeit if one of them purchase lands in fée and dieth without issue his brother shall not be his heire for there was never any inheritable bloud betwéen the father and them and where the sonnes can by no possibility be heire to the father the one of them shall not be heire to the other And therefore some have holden that if a man after he be attainted of Treason or Felony have issue two sonnes that the one of them cannot be heire to the other because they could not be heire to the father for that they never had any inheritable bloud in them c. Co. Inst pars 1 a. 3. 26 If Lesse for life make a Déed of feofment Lessor attorney to lessee to make livery and a Letter
32 H. 8. 5. the Plaintife could not have had a new execution for the execution of lands was valuable and accounted in Law for a satisfaction and to avoid infinitenesse there could be but one valuable satisfaction or execution with satisfaction at the Common Law but execution of the body is not a valuable execution and therefore the Plaintife after the Defendants death may have new execution untill he be fully satisfied for that is the end and fruit of his suit Et finis rei attendendus est fines mandatorum Domini Regis per rescripta sua viz. brevia diligenter sunt observandi 22 Hob. 8 case of Essoines 33 Qui adimit medium di rimit finem Littl. § 237. 1 Rescous Replevin Dissesin of reâ—â— and Inclosure are thrée sorts of Rent Service because as Littleton saith the Lord is by them disturbed of the meanes to come by his rent Co. Inst pars 1. 161. a. 4. 2 The turning of the whole streame that runnes to a Mill is a disseisin of the Mill it selfe 9 Ass 19. Mirr cap. 2. Sect. 15. Britt 108. 114. Turning a water-course 118. 141. Co. ibid. 3 If a man be disturbed to enter and manure his land Disturbance this is a Disseisin of the land it selfe for Qui obstruit additum destruit commodum 26 Ass 17. 3 E. 4. 2. per Littl. 49 E. 3. 14. b. And therefore where it is said that a man shall not be punished for suing of Writs in the Kings Court be it of right or wrong it is regularly true Replevin but it faileth in the special case of the Writ of Replevin for the cause aforesaid Fitz. N. B. 42. S. 22 E. 3. 15. 43. Ass 40. 43 E. 3. 20. Faux judgement 10. 8 E. 4. 15. per Moile 2 R. 3. 19. Littl. § 240. Co. ibid. 162. a. 3. Bract. l. 2. 16. Brit. 19. 88. Fleta l. 3. 5. 7. If the Lord of a rent Service Terrified from distraining or the Grantée of a rent charge or Seck be going upon the way to distraine for the rent and the Tenant hearing it forestalls his way and threatens him in such sort that he dare not procéed for feare of the losse of life or member this is also a Disseisin of the rent causa qua supra But this must not be vagus vanus timor sed talis qui cadere possit in virum constantem and not in hominem vanum meticulosum talis enim debet esse metus qui in se continet mortis periculum corporis cruciatum Co. ibid. 172. b. 1. 13 E. 3. Leg. 50. 5 An Infant cannot make his Law of non summons for Infant shal â—â—wage according to the Maxime in Law Minor jurare non potest And therefore in that case the default shall not grieve him for séeing the meane to excuse the default is taken away by Law the default it selfe shall not prejudice him Co. ibid. 233. b. 3. 15 E. 4 3. 5 E. 4. 26. 6 If the Kéeper of a Parke fell or cut any Trées Woods The Keeper 〈◊〉 a Park making wast or Vnder-woods and convert them to his own use this is a forfeiture of his office for destruction of the vert is by a meane destruction of venison So it is also if he pull down any house wherein the hey wherewith the Déer are fed is usually put for that also tendeth to the destruction of the Déer 28 H. 8. Beudloes enter evesque de Londres Hieron Co. l. 9. 50. 95 96. 99. Escape 7 If a Gaoler that hath a prisoner in his custodie upon execution Co. ibid. 260. a. 3. Boytons case suffereth him to go at large though it be with a Keeper he is liable to an escape for he ought to kéep him in salva arctà custodia to the end he may the sooner pay his debt Co. l. 3. 43. b. 4. Entry Release of all actions 8 Where a man may enter Co. Inst pars 1. 286. a. 3. Co. l. 8. 152. a 1. Sir Edward Althams case a release of all Actions doth not barre him of his right because he hath another remedie viz. to enter But where his entry is not lawfull there a release of all actions is by consequence a barre of his right because he hath released the meane whereby he might recover his right As if the Disseisée release all Actions to the heir of the Disseisor which is in by descent he hath no remedie to recover the land because he had no other meanes to recover it but by Action and of that he is barred by his Release An Alien hâ—ndred of Trade 9 To hinder an Alien from getting into his hands by Gift Trade Co. l. 7. Calv. case 17. a. or other lawfull meanes any treasure or other personal goods whatsoever as also an house for his necessary habitation and conveniencie of trading and from maintaining any Action for the same were in effect to denie unto him Trade and Traffick which is the life and support as of every Island so more especially of this Kingdome Release of all demands 10 The reason Co. l. 8. 154. a. 3. Sir Edward Althams case why a Release of all Demands doth barre a man of all his Right Title and Interest in any Lands Tenements Gâ—ods Chattels c. is because by such a Release the meanes and remedies of recovering them are utterly extinct and so by consequence the right and Interest in the things themselves Nusances 11 If a man by erecting a Building or a Wood-pile doth stop up or hinder the light of his neighbours house Co. l. 9. 58. a. 2. Aldreds case or if by building an Hogs cote néer his neighbours dwelling-house he much annoyes the same or makes the aire infectious or unholsome an Action upon the case will lie in either of these cases for hereby he hinders and interrupts the peaceable dwelling of his neighbour which is the principal end for which the house was at first erected A Legacie of a Lease 12 A. possest of a Lease for 500 yeares deviseth it to B. for life the remainder to C. and his heires and dies Co. l. 10. 51. b. 3. Lampets case here albeit the whole terme be in B. and C. hath nothing but a possibility or a future Interest and therefore cannot grant it over yet in as much as the Legacie or Devise to C. is in esse and present and therefore may be discharged the Interest also which springs from the Legacie may likewise be discharged for Qui distruit medium distruit finem And therefore if oâ—e devise to another 20 l. when he comes to the age of 24 yeares and die the Legatorie after the age of 21 yeares may release this Legacie and devise and although he afterwards attaine to the age of 24 yeares he shall be barred to recover it and yet in this case a Release of all
not titheable c. cannot be put in execution upon a recognisance statute c. because the office it selfe being an office of trust cannot 26. El. Molins Finch 23. 4 Tithe is not payable of Oaks usually topped and lopped though it be every seven or eight years for the branches are of the nature of the principal viz. the Oake it selfe for which no tithe is to be paid Co. Inst pars 1. 13. a. 1. 5 A man seised as heire on the part of his Mother The effect ensues the cause and the recompence the losse maketh a feoffment in fée to the use of him his heirs Here the use being a thing in trust and confidence shall ensue the nature of the land and shall descend to the heire on the part of the Mother So likewise if a man hath a Seigniory as heire of the part of his Mother and the tenancy doth escheat it shall go to the heir of the part of the Mother Also if the heir of the Mothers part of land whereunto a warranty is annexed be impleaded and vouch and thereupon judgement is given against him and also for him to recover in value and dieth before execution Here the heire of the Mothers part shall sue execution to have in value against the Vouchée for the effect ought to pursue the cause and the recompence shall ensue the losse Co. ib. 42. a. 4. 6 A man may have an estate for term of life determinable at will An estate for life deterâ—â—â—able at will As if the King doth grant an office to one at will and also grants a rent to him for the exercise of his office for the term of his life this is determinable upon the determination of the office Co. ib. 53. a. 3. 7 If Glasse-windows though glased by the Tenant himself be broken down or carried away it is waste for the glasse is part of the house Waste And so it is of wainscot benches doors windows fornaces and the like annexed or fixed to the house either by him in the reversion or the Tenant Co. ib. 122. a. 1 8 Nothing can be properly appendant or appertenant to any thing Advowson appendent 〈◊〉 Demesnes unlesse the principal or superiour thing be of perpetual subsistance and continuance For example an Advowson that is said to be appendant to a Mannor is in rei veritate appendant to the Demesnes of the Mannor which are of perpetual subsistance and continuance and not to resists or services which are subject to extinguishment and destruction Co. Inst pars 1. 124. a. 4. 9 If an Executor hath a Villein for years A perquiâ—â—â— shall accrâ—â— the Executâ— Termor 〈◊〉 and the Villein purchaseth lands in fée the Executor enters In this case the Executor shall have the whole fée-simple of the lands Howbeit because he had the Villein en auter droit as Executor to the use of the dead it shall be assets in his hands as the Villein is And therefore note a diversity betwéen the quantity of the estate and the quality of it for in this and the lik cases the Law respecteth not the quantity of the estate for not onely Tenant in taile and Tenant for life of a Villein shall have the perquisite of the Villein in fée but Tenant for years and Tenant at will also shall have it in fée but it principally respecteth the quality of the estate For in what right the Executor hath the Villein in the same right shall he have the perquisite So it is also in the case of a Bishop that hath a Villein in right of his Church Also if a man hath a Villein in right of his wife he shall have the perquisite also in her right But if the purchase be after issue had then the Baron shall have the perquisite to him and his heirs because by the issue he is entitled to be Tenant by the Courtesie in his own right c. Distresse for owelty of partition 10 Littleton saith § 219. Co. ib. 144. b. 4. that for a Rent-charge the Grantée hath his election either to bring his writ of Annuity or to distrain c. Howbeit of a rent granted for owelty of partition a writ of Annuity doth not lie because it is of the nature of the land descended and therefore for that the Grantée shall onely distrain c. Assise redisseisin 11 If a man recover land in an Assise of Novel disseisin Co. ib. 154. b. 3. whereunto there is a Common appendant or appertenant and after is re-disseised of the Common he shall have a re-disseisin of the Common for it was tacitely recovered in the Assise Coparcenary of rent for owelty c. 12 If there be thrée Coparceners and they make partition Co. ib. 169 b. 2. and one of them grant 20 s. per annum out of her part to her two sisters and their heirs for owelty of partition Here the Grantées are not Ioyntenants of this rent but the rent is in nature of Coparcenary and after the death of the one Grantée the moity of the rent shall descend to her issue in course of coparcenary and shall not survive to the other for that the rent doth come in recompence of the land and therefore shall ensue the nature thereof And if the grant had béen made to them two of a rent of 20 s. viz. to the one ten shillings and to the other ten shillings yet shall they have the rent in course of coparcenary and joyne in action for the same Coparcenary of rent 13 If two Coparceners by déed indented alien both their parts to another in fée Co. ib. 169. b. 4. rendring to them two and their heirs a rent out of the land they are not Ioyntenants of this rent but they shall have the rent in course of coparcenary because their right in the land out of which the rent is reserved was in coparcenary Joyntenancy for life and several Inheritances 14 If land be given to two men and the heirs of their two bodies Co. ib. 183. b. 4. they have joynt estates during their lives and afterwards several Inheritances and therefore if one of them have issue and die the other shall have all the land during his life by right of Survivor but after his death that issue shall enjoy his fathers part and if that issue die without issue the Donor shall enter into that moity and not the issue of him that survived For in as much as originally the inheritance was several the reversion is also several And therefore upon the several determination of the estate in tail the Donor may enter for as upon one joint and intire gift or lease there is one joint and intire reversion so upon several gifts or leases there be several reversions c. Rent reserved enures to both the Joyntenants 15 If two Ioyntenants make a lease for life Co. ib. 192 a. 3.
time of his death and by consequent the determination of the Lease thereupon the Lease is good ab initio Notwithstanding that uncertainty c. Videl 6. fol. 34 35. in the Bishop of Bath and Wels Case Gant to one iâ— time of vaâ—ation good 4 In the time of vacation a Grant made to a Covent is void Littl. § 443. Co. Inst p. 1. 264 a. 1. because the body Politique which is capable is not compleat but wanteth an head yet if during the vacatlou a Lease for life or a Gift in tail be made the remainder to the Abbot and his Successors this remainder is good because it is possible there may be an Abbot before the particular estate be determined There is the like Law of a Mayor and Comminalty c. Aâ—tornment good though â—ncertaine 5 If A. grant the Reversion of black acre or white acre Co. ib. 310. b. 2 and the Lessée attorn to the Grant Here nothing passeth at the time of the Attornment and that also is onely good in execution and by the subsequent election of the Grantée yet is not this a void Grant nor the Attornment fruitlesse because upon the Grantées election they may both be made good c. A remainder â—ay râ—st in a person uncertaine 6 It is regularly true that every remainder Littl. §. 721. Co. ib. 378. a. 2. 3 4. which commenceth by a Déed ought to vest in him to whom it is limited when livery of seisin is made to him that hath the particular estate And yet if the person that is to take the Remainder be not in rerum natura as if a Lease for life be made the remainder to the right heires of I. S. I. S. being then alive it sufficeth that the inheritance passeth presently out of the Lessor but cannot vest in the heir of I. S. For that living his father he is not in rerum natura for non est haeres viventis neverthelesse the remainder is good for the possibility that I. S. may die during the life of the Lessée So if a man make a Lease for life to A. B. and C. and if B. survive C. then the remainder to B. and his heires here albeit the remainder is not at the time of the Livery certainly in B. neverthelesse the remainder is good for the possibility that C. may die before B. it being but a common possibility that one may die before another â—idem 7. If Lands be devised to I. S. for life Co. l. 1. 24. b. 4. in Porters Case upon condition that I. S. shall by the advise of Learned Counsel settle the same Lands within convenient time for certaine Vses which indéed are prohibited by the Statute of 23 H. 8. cap. 10. Albeit such Vses are by that Act prohibited yet if that Condition be not performed I. S. forfeits his estate because they might have béen setled by the advice of Learned Counsel and by purchasing an Incorporation and a licence to settle Lands thereupon c. He may rest in person â—â—certain 8 If I covenant with I. S. that in consideration of fatherly affection and for the advancement of my bloud Co. ibid. l. 1. 176. b. 4. Mildmayes Case I will stand seised to the use of such of my sonnes or such of my kindred as I. S. shall nominate In this Case upon the nomination the use shall be raised For the consideration is certaine and the person by matter ex post facto may be made certaine A possibility 〈◊〉 void â—ough not asâ—â—rable 9 A man possest of a term for divers yeares Co. ibid. L. 4. 66. b 1. in Fulwoods Case deviseth the profits thereof to one for life and after his decease to another for the residue of the yeares and dies the first Devisée enters by assent of the executor and after he in the remainder during the life of the first Devisée assignes it to another and after the first Devisee dies Here albeit during the life of the first Devisée the second Devisée had no estate that he could assigne over for the Devise to the first Devisee was upon the matter of all the term if he should so long live neverthelesse the second Devise is not void for the possibility that the second Devisée might over-live the first Howbeit that possibility he could not assigne over c. â—educement of a Lease to certainty 10 Every lease for yeares ought to have a certain commencement Co. ibid. L. 6. 35. b. 4. The Bishops of Bathes Case but that is to be understood when it is to take effect in interest or possession For if I grant to you that if you pay unto me 20 l. at Michaelmas next that then you shall have my Mannor of D. for 21 years here it is uncertaine whether that Lease shall ever have commencement or no for indéed until the payment of the money it is no Lease yet is it a good Lease in respect of the possibility that the money may be paid for then it will have a certaine commencement So also the continuance of a Lease for yeares ought to be certaine yet if a man lease the Mannor of D. to I. S. for so many yeares as I. N. hath in the Mannor of S. and I. N. hath 10 yeares in S. I. S. shall have so many in D So if a Lease be made to another during the minority of I. D. and he is ten yeares old that is a good Lease for 11 yeares if I. D. so long live for these two last Leases are by reference reduceable to a certainty In like manner if a man make a Lease from St. Michaelmas for so many yeares as I. S. shall name and I. S. names a certaine term in the life of the lessor this is a good lease for the possibility of rendring to a certainty by matter ex post facto viz. by the nomination c. Co. l 10. 50. b. 2 in Lampets ca. 15 H. 7. 10. Pl. Co. 55. a. Colv. and Biv Case 11 If land be given to a married man and a married woman Possibility of Marriage and the heires of their two bodies begotten this is a good estate taile for of necessity death will come and it is a common possibility that one may die before another that then the Marriage may insue c. 106 Id certum est quod certum reddi potest Co. Inst p. 1. 96. a. 2. 1 If a man hold of his Lord by shéering all his Sheep in his Mannor of D when the Lord keeps sometimes a greater number Service uncertaine in one respect certaine in another sometimes a lesse Here the service being referred to the number is uncertaine and if so then the tenant not distrainable for it for it is a Maxime that no distresse can be taken for a service that is not certaine but the service being referred to the Mannor is certaine and so is the tenant
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