homage Ancestrell again so it is if a Copihold escheat and the Lord maketh a feoffment in fée upon Condition and entreth for the condition broken it shall never be Copihold again because in both these cases the custome or prescription which supported and was the cause of the tenure is interrupted and that being once broken is become remedilesse The land evicted the Annuity is gone The mariage failing the land revests 17 If a man grant an annuitty ppruna acra terrae Co. ibid. 204. a. 2. if the acre of land be evicted by an elder title the annuity shall cease so if it be pro decimis and the grantee be disturbed or pro consilio or quòd praestaret consilium and the grantee refuse to give counsel the annuity shall in these cases cease likewise if a woman give lands to a man and his heires causa matrimonii praelocuti in this case if the man refuse to marry her she shall have the land againe to her and her heires but it is otherwise in case of a man Co. ibid. 238. a. 4. 18 If a disseisor make a gift in taile A dying seised and yet no descent to take c. and the Donee discontinueth the fée and after disseise the discontinuee and dieth seised this discent shall not take away the entry of the diseissée For the discent of the Fée simple is vanished and gone by the Remitter And albeit the issue be in by force of the estate taile yet the Donée died not seised of that estate and of necessity there must be a dying seised Co. ibid. 239. a. 2. 19 When the degrées are past so as a writ of Entry in the Post doth lye yet by event it may be brought within the degrées again A writ out of the degrees may be reduced as if the disseisor enfeoffe A. who enfeoffes B. who enfeoffes C. or if the disseisor die seised and the land descends to A. and from him to B. and from him to C. Now are the degrées past and yet if C. enfeoffe A. or B. now is it brought within the degrées again Co. ibid. 242. b. 1. 20 If the eldest sonne hath issue and dieth A descent when privity of bloud faileth and after his decease the younger sonne or his heire entreth and many descents cast in his line yet may the heires of the eldest sonne enter in respect of the privity of bloud and of the same claime by one title But if the younger sonne make a feoffment in fée and the feoffée dies seised that discent shall take away the entry of the eldest in respect that the privity of bloud faileth Co. ibid. 285. a. 4. 21 If an action of wast be brought by Baron and feme in remainder in special taile Death voidâ— the action and hanging the writ the wife dieth without issue the writ shall abate because every kind of action of wast must be ad exhaeredationem Co. ibid. 291. a. 4. Execut. 7. 22 If the bodie of a man be taken in execution upon a Ca. sa and the Plaintiffe releaseth all actions Release of debt excuseth execution yet shall he still remaine in execution but if he release all debts duties or judgements he is to be discharged of the execution because the debt or the dutie or the judgement which is the cause of the execution is discharged Co. ibid 312 a. 1. 23 The Reason that Littleton giveth of the difference betwéen a rent-service and a rent-charge is Avowry for a rent service upon the person for that in rent-service the avowry shall allwayes be made upon the person but in rent-charge never upon the person but upon the Land charged Now here it may be said that this reason is taken away by the Statute of 21 H. 8. 19. For by that Statute the Lord needs not avow for any rent or service upon any person in certaine and then by Littletons reason there néedeth no privity to the attornment of a Seigniory for say they Cessante causa ratione legis cessat lex As at the Common Law no aide was grantable of a stranger to an Avowrie because the Avowrie was made of a certaine person but now the Avowrie being made by the said Act of 21 H. 8. upon no person therefore the reason of the Law being changed the Law it selfe is also changed and consequently in an Avowrie according to that Act aid shall be granted of any man and the like in many other cases which case is granted to be good Law But albeit the Lord as hath béen said may take benefit of the Statute yet may he avow still at his election upon the person of his tenant and albeit the manner of the Avowrie be altered yet the privity which is the true cause of the said difference remaineth as to an Attornment Littl. § 568. Co. ibid. 316. a. 3. 24 If the reversion of Lessée for life be granted Upon alienation the grantee shall attorn and Lessée for life assigne over his estate the Lessée cannot attorne but the attornment of the Assignée is good because as Littleton saith it behoveth that the tenant of the land do attorne and after the assignement there is no tenure or attendance c. betwéen the Lessée and him in reversion so likewise if Lessée for life assigneth over his estate upon condition he having nothing in him but a condition shall not attorne but the assignée may attorne because he is tenant of the land The assignee of tenant by possession shal â—attorn 25 Tenant in taile after possibility of issue extinct shall not be compelled to attorne for the inheritance which was once in him Co. ibid. 316. a 4. but his assignée shall be compelled to attorne because then that priviledge is lost the assignée having in him onely a bare estate for life Release of quarrels is release of Act. 26 Quaerela being derived à quaerendo properly concerneth personal actions or mixt at the highest Co. ibid. 292. a. 3. for the Plaintiff in them is called Quaerens and yet if a man release all quarrels it is as beneficial as all actions for by it all actions both real and personal are released because by the release of all quarrels all causes of actions are released albeit no action be then depending for the same Where the estate is defeasible the tenant is not compelâ—able to attorn 27 It is a general rule that when the grant by fine is defeasible Co. ibid. 318. a. 4. 36 H. 6. 24. there the tenant shall not be compelled to attorne As if an infant being seised of a reversion levie a fine thereof this is defeasible by writ of error during his minority and therefore in this case the tenant shall not be compelled to attorne so likewise if before the Statutes of 4 H. 7. 24. and 32 H. 8. 36. a tenant in taile had levied a fine the tenant could not have béen
alive he should have gone quit by the acquittal of A. because he could not be a Receiver of a felon when A. was no felon And remoto impedimento c. Vide plus ubi supra 21 Things are construed according to that which was the cause thereof Vide 31. 9. Tenant by courtesie 1 If the King give lands to a man and a woman and to the heires of their two bodies and the woman die without issue Co. Inst pars 1 21. b. 4. 9 H. 3. Dower 202. yet shall the man be tenant in taile after possibility c. But if the King give land with a woman of his kindred in frank-mariage and the woman die without issue the man in the Kings case shall not hold it for his life because the woman was the only cause of the gift but otherwise it is in the case of a common person Frankmariage 2 If lands be given to a man and a woman in special taile Co. ibid. 7 H. 4. 16. a. and they are divorced Causa praecontractus both shall hold the lands for their lives a 13 E. 3. Tit. Ass 19 E 3. Ass 83. 12. Ass 22. 19 Ass 2. But in case of frankmariage if they be so divorced the woman shall enjoy the whole land because she was the cause of the gift So if lands holden in c Plowd Carzibs case soccage be given in special tail and the Donées die the issue being within the age of 14 yeares e 17 H. 3. Gard. 146. 27 E. 3. 29. Co. ibid. 29. b. 3 Co. ibid. 42. a. 4 the next of kinne of the part of the father or of the part of the mother which can hap the custodie shall have it but in case of frank-mariage the heire of the part of the mother shall have it because she was the cause of the gift as aforesaid Co. ibidem 88. a. 4. Formedon 3 If a woman tenant in general tail maketh a feoffment in fée and taketh backe an estate in fée and take an husband and hath issue and dieth the issue may in a Formedon recover the land against the father because he is to recover by force of the estate taile as heire to his mother and is not in that case inheritable to his father the estate tail being the cause and ground of his title An Office 4 A man may have an estate for life determinable at will 3 E. 4. 8. b. as if the King doth grant an office to one at will and also grant a rent to him for the exercise of his office for terme of life this is determinable upon the determination of the office which occasioned the grant of the rent 19. 59. Co. ibid. 85. a. 2 5 If a man make a Lease for yeares of a villeine this cannot be done without déed neither can the Lessée assigne it over without déed Grant of a Villain by deed because it is derived out of a fréehold that lyeth in grant which indéed is the material cause of the grant but a wardship is an original chattel during the minority derived out of no fréehold and therefore as the Law createth without déed so may it also be assigned over without déed Co. ibi 102. a 4 9 E. 2. execut 249. 6 Vpon a judgement in debt Judgement execution the Plaintiffe shall not have execution but onely of that land which the defendant had at the time of the judgement because the action was brought in respect of the person and not in respect of the land But if an action of debt be brought against the heire and he alieneth hanging the writ yet shall the land which he had at the time of the Original purchased be charged for that the action was brought against the heire in respect of the land Co. bid 102. b. 1. 22 Ass Pl. 32. 7 If a man be nonsuit the land onely Amerciament Issues of Jurors which he had at the time of the amerciament assessed shall be charged and not that which he had at the finding of the pledges for the amerciament is not in respect of the land but for his want of prosecution which was a default in his person But the issues of a Iuror shall be levied upon the feoffee albeit they were not lost before the feoffment because he was returned and sworn in respect of the land 8 A tenure of the King in Capite Tenure in gross is said to be a tenure of the King a Bract. f. 87 as of his Crown that is as he is King c Co. ibid. 108 a. 4. ubi Vide praedict Author And therefâ—râ— if one holdeth land of a common person in grosse as of his person and not of any Mannor c. and this Seigniory escheateth to the King yea though it be by attainder of treason he holdeth of the pâ—rson of the King but not in Capite because the original tenure was not created by the King Vide infra M. 25. ca. 10. Co. ibid. 158. a. 3. 15 H. 7. 9. 14 H. 7. 31. 18 E. 4. 3. 9 If the cause of challenge alleaged by the Plaintiff against the Sheriff be pâ—rtiality to either party Challenge and processe be once awarded for such partiality though there be a new Sheriff yet processe shall never be awarded to him but to the Coroners and therefore in that case the entry is Ita quòd Vicecomes se non intromittat But if the cause of Challenge be for that the Sheriff was tenant to either party or the like in that case the processe shall be directed to the new Sheriff and not to the Coroners Co. ibid. 161. a. 2. 44 E. 3. 20. 6 R. 2. Refc 11 11 H. 7. 4. 21 H 7. 40. 34 H. 6. 18. 16 E. 4. 10. Co. l. 9. fol. 22. Case of Avowry Co. ibid. 169. b. 2. 15 H. 7. 14. 29 Ass 23. 29 E. 3. 9. b. 10 If the Lord come to distreine cattle Distress which he séeth then within his fée and the tenant or any other to prevent the Lord to distreine driâ—es the cattle out of the Lords fée into some other pâ—ace not within his fée yet may the Lord freshly follow and distreine the cattle and the tenant cannot make rescous But if the Lord comming to distreine had no view of the cattle within his fée though the â—enant drive them off purposely or if the câ—ttle of themselâ—es after the view goe out of the fée or if the tenant after the view remove them for any other cause then to prevent the Lord of his distresse then cannot the Lord distrein them out of his fée and if he doth the tenant may make rescous 11 If there be thrée Coparceners and they make partition Rent in Coparcenary and one of them grant 20 s. per annum out of her part to her two sisters and their heires for egaltie of partition the grantées are not joynt-tenants of this rent but
261. b. 29 In an action upon the case upon Assumpsit the Plaintiff counts Trial of a fact done in France that the defendant at London did assume that such a Ship should sail from Melcomb Reg. unto Abiville in France safely without violence c. and that the Ship sayling thitherwards was arrested by the King of France upon the River of Somme within the Kingdome of France c. And issue was joyned whither the ship was so arrested or not and before Wray Chief Justice in London it was found for the Plaintiff and in arrest of judgement it was moved that this issue arising méerly from a place which was out of the Realme could not be tried and that if it might be tried in England the trial should be by a Iury taken out of Melcomo because by common intendment they might be best acquainted with the arrest But it was resolved that although it be true that where the contract and the performance thereof are both of them done or to be done beyond sea there will want trial in our Law yet in this case the Assumpsit which is the ground and original cause of the action being made at London the trial thereof must of necessity be there also The like case was adjudged in P. 28. El. betwixt Hugh Gynue Plaintiff and Evangelist Constantine Defenaâ—t Co. 7. 6. a 4. Calvins case 30 It is neither Coelum nor Solum but Ligeantia and Obedientia One may be born in England and yet not within the Kings allegiance that make the subject borne for if enemies should come into the Realm and possesse a town or fort and have issue there that issue is no subject to the King of England although he be born upon his soile and under his meridian because he was not borne under the ligeance of a subject nor under the protection of the King c. And therefore when Stâ—phano Ferrara de Gama and Emanuel Lewes Tinoco two Portugals born comming into England under Qu. El. safe conduct and living here under her protection joyned with Doctor Lopez in treason within this Realme against her Majestie In that case two points were resolved 1 That their indictment ought to begin that they intended treason contra Dominam Reginam c. omitting these words naturalem Dominam suam and ought to conclude contra ligeantiae suae debitum But if an alien enemy come to invade this Realm and be taken in warre he cannot be indicted of treason for the indictment cannot conclude contra ligentiae suae debitum because he never was in the Kings Protection nor never owed any manner of ligeance unto him but malice and enmity And therefore such an alien enemy shall be put to death by Martial Law As it was in the case of Perkin Warbeck Anno 15 H. 7. who by the opinion of the Iudges was to be executed by Martial Law which was done accordingly Co. l. 7. 15. a. 3. Calvins case 31 Albeit since K. James tooke upon him the Crown of England A Postnatus cannot be noble in England without creation a Postnatus in Scotland or any of his posterity be the heir of a Nobleman of Scotland and by his birth is legitimated in England so that he may inherit Lande as well as a natural borne subject yet he is none of the Péers or Nobility of England For his natural ligeance and obedience due by the Law of nature maketh him a subject and no alien within England But that subjection maketh him not noble within England because Nobility had his first original by the Kings Creation and not of nature Co. l. 7. 2. a. 4. Bulwers case 32 Vide 3 E. 3. Tit. Assize 446. In debt if a man count of a lease Lease made of Land in another countrey for years in one County of land in another County he ought to bring his action in the County where the Lease was made and not where the land lies for the contract made by the Lease is the ground and cause of the action The action to be laid where the cause began 33 The Plaintiff counteth Co. ibid. 1. Bulwers case that H. H. recovered against him 20 l. in Banco and died before execution and that the Defendant deceptivè outlawed him after Iudgement in the name of H. H. and thereupon impâ—isoned him in Norfolke laying his action in that County where he was imprisoned whereupon the Defendant making objection that the action ought to have béen layd where the wrong did begin by the purchase of the cap. ad satisfact exigit cap. utlag viz. in London It was resolved that the action was well layd in Norfolke where the Imprisonment the most visible wrong was being indéed the chiefe ground and cause of the action Waste and a writ of right of ward to be brought in where the land lies 34 If a Lease be made in one County Co. ibid. 2. b. Bulwers case 14 E. 3. 3. and the land lies in another the action of wast shall be brought where the land lies and not where the Lease was made although the terme be past for the land and damages or damages onely for the wast which is local shall be recovered and are the ground and cause of the suit So also in all actions real if any issue arise upon the land 29 E 3. 3. 38 H. 6. 14. 22 R. 2. Breve 937. or in any action in which the possession of the land or a thing local or that which ariseth upon the land by reason thereof is to be recovered all these shall be brought in the County where the land lies As in a writ of right of ward of land or a writ of intrusion of ward they shall be brought in the County where the land lieth although the refusal or the Seigniory be in another County Likewise in a writ of right of ward of the body onely that shall be brought in the County where the land lies for it is in the right and sawours of the land 21 E. 3. 42. 30 E. 3. 25. 9 E. 3. 12 13. 10 E. 3. 7. But the writ of Ravishment of ward shall be brought where the Ravishment was and not where the land is or where the bodie is carried for that action is founded upon the Ravishment c. 36 H. 6. 14. 22 R. 2. Bre. 937. 12 Eliz. Dyer 289. Condition of Viciâ—age 35 If the Commons of the Town of A. and of the Town of B. are adjacent Co. l. 7. 5. b. 3. Sir Miles Corbets case and ought to have Common promiscuè the one with the other because of vicinage and within the Town of A. there are fifty arcres of Common and in the Town of B. 100 acres of Common In this case the Inhabitants of the Town of A. cannot put more cattle into their Common of 50 acres than it will well kéep without any respect at all to the Common within the Town of B.
personal the Defendant shall not afterwards take any benefit by bringing a Writ of Attaint because he cannot have the effect of that Writ which is to be restored to the Debt and Damages which he lost The like Law is where a Iudgement is given upon a false verdict in a real Action for there also a release of all Actions real is a good barre in an Attaint c. for that in these two last examples both the Writ of Error and the Writ of Attaint do insue the nature of the former Action c. No Audita â—â—aerela after â—â—lease 12 If the Defendant in a personal Action doth after Iudgement entred release unto the Plaintife all Actions personal Co. ibid. he shall not afterwards bring an Audita quaerela because after he hath released to the Plaintife all Actions personal he cannot have the effect of that Writ which is to discharge himselfe of a personal execution No Formedon against tenant for life 13 Tenant in taile discontinueth in Fee and dieth Co. ibid. 297. b. 3. the Discontinuee makes a Lease for life and granteth the reversion to the issue In this case the issue shall not have a Formedon against Tenant for life because he cannot have the effect of that Writ which is to recover an estate of Inheritance for the Lessée for life hath not the Inheritance but the issue in taile himselfe hath it No entry after â—elease 14 If Feoffée upon condition make a Lease for life or a gift in taile Co. ibid. and the Feoffor release the Condition to the Feoffée the Feoffor shall not afterwards enter upon the Lessée or Donée because he cannot have the effect of his entry which is to regaine his ancient estate No action of â—â—espasse for â—oile by Coâ—ies 15 If a man plant Conies and Conie-burrowes in his own land Co. l. 9. 104. Boulstones case which afterwards so increase and multiply that they destroy the ground of his neighbour thereunto adjoyning yet shall not his neighbour maintaine an Action upon the case against him that plants them for the damage done by them because he cannot have the effect of his suit which is to recover damages for the trespasse committed for immediately after the Conies come into the neighbours land he may kill them because they being ferae naturae the other that planted them hath then no property in them and it stands not with reason that a man should make satisfaction for the damage which goods do that are none of his To some titles â—o warranty â—â—tends 16 There are some naked titles unto which warranty doth not extend Co. l. 10. 98. b. 4. Edward Seymors case Co. Inst pars 1. 389. a. 2. as the Title in case of exchange condition upon Mortgage c. Mortmaine consent to the Ravishor and the like because for these no Action lies in which there m y be Voucher or Rebater Co. l. 11. 29. b. 3. Alexander Powlters case Ibid. fo 30. a. 3. 17 Before the Statute of Articuli cleri cap. 15. No Clergie â—ter confesâ—â— he that confessed the Felony could not have the benefit of his Clergy because in case of confession he could not have his purgation c. for by intendment of Law he cannot against his expresse and voluntary confession in Court be innocent Confessus in judicio pro judicato habetur quodammodo su a sententia damnatur Co. l. 11. 77. b. 1. Magdalen Colledge case 22 E. 3. T it Coronae 276. 18 It is provided by the Statute of West 2. cap. 12. In appeal a Monke can have damâ—â—â— Quòd se appellatus de felonia c. se acquietaverit c. restituant hujusmodi appellatores damna appellatis Yet if an appeal of death had béen brought against a Monk who had been acquit and thereupon had prayed his damages according to that Act he should not have béen admitted any such prayer because he could not have the effect thereof being by Law incapable to take the damages Fol. 11. B. 9. N. 19 In a Writ of Right de rationabili parte by one Coparcener against another Voucher lieth not Voucher liâ—â—â— not in copâ—nery because the Demandant cannot have the effect thereof viz. to recover in value in respect of the privity of bloud betwixt them c. F.N.B. 31. f. Co. Inst pars 1. 127. a. 1. 20 In all originalls brought by a Subject The King iâ— not give plâ—â—es de prosequendo wherein pledges de prosequendo are to be found the preamble of the Writ is Rex vicecom salutem c. Si A. fecerit te securum c. tunc summoneas c. But at the Kings suit the preamble shall be Rex vicecom salutem c. summonens per bonos summum c. and not Si Rex fecerit c. for the King shall not be bound to prosecute because he is not subject to the consequence thereof viz. to be amercied if he do not prosecute neither can he be non-suited because he is alwayes present in all his Courts V. infr 39. 4. F. N. B. 48. q. 21 If a man brings a Writ of Right of Advowson against another and hanging the Writ the Church becomes void The Demâ—dant shall 〈◊〉 have a â—â—mittas the Plaintif shall not have a ne admittas to the Bishop nor a Quare incumbravit albeit the Bishop doth encumber the Church c. for the Demandant shall not recover the presentment upon this Writ but the Advowson 22 One Commoner shall not bring a Writ de admensuratione pasturae against another Commoner F.N.B. 125. d. which hath Common appurtenant No Writ of admeasurement or in grosse sans number because such a Commoner cannot be admeasured c. Pl. Co. 11 c. a. 1. Fulmerston and Stewards case West 2. cap. 21. 23 The Statute of Westm 2. ordaines No Cessaâ—â—â— for the beiâ—â— Quòd fiant brevia de ingressu haeredi petentis super haerodem tenentis super eos quibus alienata fuerint hujusmodi tenementa c. yet if the Demandant in a Cessavit die the heire shall not have a Cessavit because he cannot have the effect thereof viz. to recover the arrerages for that they by Law belong not unto him but unto the Executor Co. Inst pars 1. 96. b. Littl. § 137. 24 If a Tenant in Frankalmoigne with-draw his Service Tenant in Frankalmâ—â—â— not distraiâ—â—ble the Lord shall not distraine commence any suit or séek any remedy for it in foro seculari in any Temporal Court because that Service being Spiritual and uncertaine shall be defined and recovered in foro Ecclesiastico in the Spiritual Court It is otherwise of Tenure by Divine Service which although it be Spiritual yet being certaine shall be recovered in foro seculari and the performance or non-performance thereof shall upon a distresse and Avowry be tried by a Iury
accession of the estate for life Co. l. 8. 142. b. 1. in Doctor Druries case 47 If a man hath judgement in a Quare Imepedit Quare Iâ—â—dit Errour and hath a Writ to the Bishop and the Bishop refuseth to admit his Clerk Here the Plaintiff upon this collateral matter of refusall may have a Writ of Quare non admisit but if the Defendant reverse the Iudgement by a Writ of Error and after the Plaintiff in the Quare Impedit brings his Quare non admisit the Defendant may plead no such record and so bar the Plaintiff of bringing that Writ Vide 26 E. 3. fol. 75. per Wilby and Hill In like manner Execution Errour Escape if A. be taken by the Sheriffe in execution at the suit of B. upon an erroneous Iudgement and after make an escape and after the judgement is reversed by a Writ of Error the action upon the escape is lost c. Ibid. the principall case 48 If the return of an Exigent be erroneous Exigent â—â—neous the Outlawry which is grounded thereupon is erroneous also because the Writ of Exigent is the warrant by which they proceed to the Outlawry Vide Proctors case 5 Eliz. Dyer 223. Ibid. 143. b. 2. 38 H. 6. 4. 12. 49 One that had cause of priviledge in Banco is arrested in London Priviledge Supersedeâ— and delivers a Supersedias notwithstanding which the Recorder gives judgement and he is taken in execution and is thereupon removed in Banco by a Corpus cum causa And here because after the Supersedeas delivered there was a Nullity in the proceeding and judgement the Court without Writ of Error awarded that he should be discharged of the Execution c. Ibid. 143. a. 1. 50 If two Iudgements are given Two judgements The first dâ—feated and the last depends meerly upon the first as upon his foundation there if the first fundamental judgement be reversed by Writ of Error or Attaint the last which appears in the Record to depend upon it shall be reversed also as in Assise and Redisseisin so of a judgement upon the original and another judgment in a Scire facias so also of a judgement against the Tenant and another against a Vouchee and the like c. Conusee of a Statute 51 The Conusee of a Statute Staple in a writ of Detinue of the same Statute upon garnishment recovers by erroneous Iudgement against the Garnisee and hath the Statute delivered unto him Ibid. 142. b. 7 H. 6. 4â— a. the Garnisée brings a writ of Error Garnishment and the Conusee sues execution upon the Statute and hath it Here albeit the Garnisee reverse the judgement yet inasmuch as the Statute was executed that execution shall not be avoided by the reversall of the judgement because the judgement was onely to have the Statute delivered Judgement Execution and the Execution upon the Statute is a thing executed not at all depending upon the judgement And yet in this case by the opinion of Coke Chiefe Iustice the Garnisee shall have remedy upon the reversal of the judgement by an Audita quaerela Audita Quaerela because the cause and ground of the Collateral Action is disproved and annulled by the reversall of the first judgement and the first Plaintiff restored to his first action upon which he may have his first and due remedie Executors have execution The Will annulled 52 Executors have judgement in account Ibid. 143. b. 4. per Coke chief Justice and for the arrerages have the Defendant in execution and afterwards the Testament was annulled because the Testator was an Idiot and the Record spirituall was removed into the Chancery by Writ and then sent into the Kings Bench where the Action was brought And hereupon the Defendant brought an Audita quaerela Audita Quaerela for that the Testament was disproved and it was resolved in the Exchequer Chamber an 35 H. 8. that the Audita quaerela would well lie A Melius Inquirend erroneous 53 It was found by Mandamus 2 Jac. that P. S. held the Mannor of O. in Soccage of Qu Co. l. 8. 168. a. Paris Slaughters case Eliz. as of her Mannor of N. In 7 Jac. a Melius Inquirendum was awarded reciting the former office to enquire whether the Mannor of O. at the time of the death of P. S. was holden of the King in Capite c. whereupon an office was found that at the time of the death of P. S. the said Mannor of O. was holden of Qu Eliz. by Knight service as of her Mannor of N. and that at the taking of the inquisition it was holden of the King c. In this case the Melius was repugnant in it selfe because it was impossible for the Iury to finde the Mannor holden of King James at the death of P. S. which was in the fourth year of Qu Eliz. for then it must needs be holden of the Queen King James being then King of Scotland c. Now therefore albeit the Iury by the Inquisition had rightly found the tenure of the Mannor and that their finding thereof in that respect was good and according to the truth of the case yet because it was not warranted by the Melius which was the ground of their Inquisition all was adjudged insufficient and void and a new Melius inquirendum was awarded An Idiot examined in Chancery 54 A man that is found an Idiot from his nativity by office Co. l. 9. 31. b. 4 in the case of the Abbot of Strata Mercella may come into the Chancery and pray to be examined or by his friends he may pray to be brought thither and if it be found upon examination that he is no Idiot the office thereof found and all the examination which was by force of the Writ or Commission are utterly void without any traverse monstrance de Droit or any other suit Assumpsit deâ—eaâ—â—d 55 An Executrix in consideration Co. lib. 9. 94. a. 4. Will. Banes case that the Plaintiff will forbeare till Michaelmas to sue for a debt due by the Testator to the Plaintiff upon lone promiseth to pay it at Michaelmas and in an Action upon the case brought against her upon that promise pleads non assumpsit here the consideration of forbearance is good because although it be no benefit to the promiser yet is it damage to the Plaintiff And yet in this case if in rei veritate the debt were not due debt Per Coke chief Justice or the Executrix had not assets at the time of the promise she may give that in evidence and shall be thereupon ayded for then in truth there was not any consideration upon which the assumpsit might be grounded because to forbeare a debt which was not due or wherewith she was not chargeable could be neither benefit to the Defendant nor damage to the Plaintiff Co. l. 9. 139. a. 3.
debt of the Master and the Assumpsit of the servant Alfords case Hob. 91. the L. W. Howards case 14 Jac. 67 In the Starre-Chanber in a cause betwéen the Lord William Howard Plaintif and Bell and others Defendants Tenant right It was holden by Coke and Hobert that the Tenants of a Mannor claiming Tenant right which the Plaintife being Lord of the Mannor supposed to be void in Law might all joyne together in a peaceable manner to defend the cause being common to them all and therefore though some particular persons were sued yet the rest might defend the suit upon their common charge And the reason was for that the title being one against all There was in effect but one defence and one Defendant for the trial of one mans case tried all And therefore the Courts of Iustice do every day deny them to be witnesses one for another in such general cases as in cases of Common Modus decimandi and the like wherein also it is many times ordered for avoiding of multiplicity of suits that a trial be had in one mans case for all Now therefore as they are acknowledged parties to their prejudice in defence so likewise reason requires that they should be in like manner allowed to be parties for their advantage And so it was said it had béen ruled in that Court before in the case of the Lord Grey of Groby yet the Lord Chancellor séemed to be of a contrary mind and cited a President to that purpose in 8 Eliz. Hob. 120. 68 The Law doth not allow any man to strike in private revenge of ill words And the reason of the wisdom of the Law in that case is Words and blowes because there is no proportion betwéen words and blowes but he that is strucken may strike again per Hobert in the Lord Darcies case of the North against Gervase Markham 58. In quo quis delinquit in eo de jure est puniendus Co. Inst pars 1. 233. b. 2. 1 If a Keeper of a Parke kill any Déer without warrant A Parker forfeits his offâ—â— for wast or fell or cut any Trées Woods or Vnderwoods and convert them to his own use it is a forfeiture of his office for the destruction of vert is by a mean destruction of venison So it is also if he pull down the lodge or any house within the Parke wherein hay is used to be put for féeding of the Déer or the like it is a forfeiture of his Office for in quo quis delinquit in eò de jure est puniendus Co. l. 3. 11. b. 4. Sir William Herberts case 2 At the Common Law Goods liable for debt recovered and the person for Trespasse if a common person had sued a Recognisance or Iudgment for debt or damages he could not have had the body or lands of the Defendant in execution but in such case should have had execution onely of his goods and Chattels or of graine or some other present profit which grew upon the land for which purpose the Common Law gave the Sheriffe power either by a Levari facias to levie them upon his Lands and Chattels or by a Fieri facias upon his Goods and Chattels for in as much as he failed to satisfie the debt and damages by his Goods and Chattels or the issues and profits of his land reason required that they onely should be taken in execution and not his body or lands On the other side if a man commit any force for as much as his body is a chief agent therein the Common Law doth then subject his body to imprisonment which is the highest execution whereby he loseth his liberty untill he hath both satisfied the party and made fine to the King and therefore it is a rule in Law that in all actions quare vi armis a Capias lieth and where a Capias lieth in process there after judgement a Capias ad satisfaciendum lyeth and there also the King shall have a Capias pro fine And with this agrées 8 H. 6. 9. 35 H. 6. 6. 22. E. 4. 22. 40 E. 3. 25. 49. E. 3. 2. and many other books Howbeit by the Statutes of Marlbridge cap. 23. and Westm 2. cap. 11. a Capias was given in accompt for at the Common Law the process in accompt was distresse infinite and after by the Statute of 25 E. 3. cap. 17. Such processe was given in debt as in accompt c. And as concerning the other abovesaid Writs of execution viz. a Levari facias and a fieri facias they ought to be sued within the year after the Iudgement or the Recognisance acknowledged otherwise at the Common Law the Plaintife or Conusée was driven to his writ of debt Howbeit now by the statute of Westm 2. cap. 45. a Scire facias is given and by the statute of West 2. cap. 18. Cum debitum fuerit recuperatum c. the Elegit is given for a moity of the land c. which was the first Act that subjected land to the execution of a Iudgement or of a Recognisance which is in the nature of a Iudgement F. N. B. 265. g. And by the Statute of 13 E. 1. De mercatoribus 27 E. 3. cap. 9. 23 H. 8. cap. 6. upon a Statute Merchant or Staple all the lands which the Conusor hath at the time of the Conusance shall be extended in whose hands soever they afterwards come c. Howbeit in debt against the heir upon an obligation made by the Ancestor the Plaintife by the Common Law shall have all the land which descends unto him in execution against him and yet he shall not have execution of any part thereof against the father himselfe but the reason hereof is because otherwise the Plaintife would be without remedie for the Common Law gives an action of debt against the heir and then if he might not have execution of the land against the heir he should reap no fruit by his action because the Chattels of the debtor belong to the Executors or Administrators c. Goods too high appraysed delivered to the appraysors 3 The Statute of 13 E. 1. Pl. Co. 82. b. 3. in Partridge vers Strange and Croker called the Statute merchant binds all the lands of the Conisor to the execution and provides that they shall be delivered to the Conisée upon reasonable extent and speaketh not a word of the delivering them to the extendors in case they extend them too high yet they shall be delivered to the extendors in that case by the equity of the Statute of Acton Burnel made before viz. anno 11 E. 1. which saith that the goods praysed too high shall be delivered to the Praysors themselves at the rate they set them For reason requires that they should be punished by the same meanes that they intended to to punish others Vide Max. 57. 44. and 57. Adonibezek 4 Quum autem fugerat Adonibezek
A. his heires c. pay to B. 100 l. after B. hath issue under age and dies the marriage takes not effect In this case the estate is executed in the heir of B. and shall have relation to the making of the Indenture c. But if the Grantée of a Reversion die no attornment can be done to his heir So it is also where the Devisée dies before the Devisor c. Pl. Co. Brets and Rigdens case 345. Vide Shelleys case where the Indenture bound the land albeit execution was not taken out till after his death for the estate was executed by the Indenture and Recovery before execution which shall have a retro-spect to the Indenture And 11 H. 7. 12. Where the heir shall have execution upon a fine But if the Feoffor or Feoffée die before entry feoffment by livery within view shall not take effect So also in the Rector of Cheddingtons Case Co. l. 1. 155 156 by the death of Tho. the term is not certaine nor can vest in his executors Co. l. 3. 86. a. 1. The Case of Fines 20 If the Bishop or Baron make a Lease for life Bishop Baron and after grant the Reversion in Fée and the Lessée for life die in the life of the Bishop or of the Baron this is a Discontinuance It is otherwise if the Lessée for life survive the Bishop or Baron A thing execuâ—ed unalterable 21 H. recovers 75 l. in B. R. and assignes it by Déed inrolled to Queen El. in satisfaction of a due Debt as Collector of the Fifteens Co. l. 5. p. 2. 9â— Hoes Case provided if the Lord Treasurer and Barons of the Exchequer or any two of them dis-allow the assignment c. and revoke it by writing under their hands that then the assignment shall he void after the Defendant brings Errour and the judgment is affirmed and 5 l. Costs given after by Writ of Prerogative the Land of the Defendant was extended and Goods seised to the value of the Debt And afterwards three Barons revoke the assignment after the death of the Plaintiffe because the Plaintiffe had satisfied the Debt and his executor sues a Scire facias for the 75 l. and 5 l. Costs But it was adjudged that after execution had by the Queen which was the effect of the assignment the Revoâ—ation came too late for he that hath power of Revocation cannot revoke a thing lawfully executed So a Letter of Attorney cannot be revoked after it is executed Vide 7 H. 6. 42. and 7 H. 4. 2. The Debtée is out-lawed the Debtor payes to the King the Out-lawry is reversed In this case the Debtor shall recover against the Debtée So if the Goods of an out-lawed person be sold c. he shall have restitution of the Goods Co. l. 8. 96. b 4. in Mannings Case but upon a Fieri facias c. onely the value Vide 3. E. 3. 51. Recompence in value once lawfully executed shall not be devested albeit the title of the Demandant be afterwards dis-affirmed and evicted Remainder executed 22 If a remainder be once executed Co l. 8. 88 a. 1. in Buckmeres Case in a Writ of Formedon in the Descender he shall never speak of that remainder but the general Writ of Formedon in the Descender shall serve in that case and he shall count of an immediate Gift for a Formedon in remainder he cannot have after the remainder is once executed But if a Lease for life be made the remainder in tail to A. the remainder in tail to B. if A. die without issue in the life of the Tenant for life and B. put to his Formedon in the remainder in his Formedon he ought to make mention of the remainder to A. albeit it was determined and spent for the Demandant in the Formedon in remainder ought to make mention of all the precedent remainders in tail because in that case the remainder was never executed by way of descent 〈◊〉 London suit â—opt before â—â—dgment 23 The Mayor of London may alter the course of Iustice in a cause hanging before the Sheriffes viz. to send for the parties Co. l. 8. 1â—6 a 3 in the Case of the City of London and to stop the suit also if he find the Plaintiffe already satisfied but so he cannot do after judgment and this he may do by a custome there Judgment exâ—cuted irrevocable 24 There is a diversity betwixt a thing Collateral executory Co. l. 8 142. a. 1 Doctor Druries Case and executed for when an erronious judgment is given and after the judgment is reversed by Writ of Error Collateral acts executory are barred thereby as if a man hath judgment in a Quare impedit and hath a Writ to the Bishop and the Bishop refuse here the Plaintiffe upon this Collateral matter of refusal may have a Quare non admisit but if the Defendant reverse the judgment in a Writ of Error and after the Plaintiff in the Quare impedit brings a Quare non admisit the Defendant may plead no such Record Vide 26 E. 3. 75. per Willy and Hill So if A. in execution at the suit of B. upon erronious judgment and after escapes and after the judgment is reversed by Error the action upon the escape is gone for he may plead no such Record because without a Record the action is not maintainable but in that case if the Plaintiffe bring an action of Debt against the Sheriffe or Gaoler upon the escape and hath judgment and execution and after the first judgment is reversed yet this judgment upon that Collateral matter being executed shall remaine in force 7 H. 6. 42. a. Notwithstanding such reversal of the first judgment The Conusée of a Statute Staple in Detinue thereof upon Garnishment recovers by erronious judgment against the Garnishée and hath the Statute delivered unto him 4 H. 7. 11. the Garnishée brings a Writ of Error and the Conusée sues execution upon the Statute and hath it Here albeit the Garnishée reverse the judgment yet this execution shall not be avoided thereby because the Statute is already executed Likewise if a man recover by erronious judgment and present to a Benefice or enter into the perquisite of a Villain and after the judgment is reversed by Error yet because these Collateral acts are executed they shall not be afterwards devested Co. l. 11. 40. a. 3 in Metcalfes Cases 25 Vpon an interloqutory award of a Court Error lieth not till after judgment which is not definitive a Writ of Error lyeth not such as are these quod computer that the shall take an Assise in Waste to inquire of the Wasts in trespasse to inquire of damages In partitione facienda quod partitio fiat In admeasurement quod admensuratio fiet that a man shall be ousted of aide and the like upon which the Defendant shall not bring a Writ of Error but after judgment in
Church be void when the writ comes to the Bishop the Bishop is bound to admit his Clerk and it séemes also reason if the Patron after the six moneths present to the Bishop the Church being then void that the Bishop ought to present his Clerk in respect of the right that is in the Patron 31 If the King write to the Iustices to prorogue the Assise F.N.B. 153. h. because the defendant is in his service c. yet the Iustices ought to procéed and not to cease for that writ because it is for the advancement of Iustice and to do right â—â—e Judges 〈◊〉 to give â—â—â—eous â—â—ment 32 In Dive and Manninghams Case in the Commentaries Pl. Co. 66. b. 3. Dive and Manninghams Case 84. b. 4 in Partridges Case albeit the Defendant had pleaded Judgment si action whereas he ought to have pleaded non est factum Dive the Sheriffe having taken a bond of a man in execution to secure himselfe which was void by the expresse words of the Statute of 23 H. 6. 10. notwithstanding such default in right pleading the Iudges finding the Sheriffe to have no iust cause of action because that Statute made the bond cléerely void gave judgment against Dive the Plaintiffe So H. 7. E. 4. 31. Fitz. Title judgment 50. where an action of trespass was brought against Tâ—lly and Woddy for five boxes with writings taken c. Tilly pleads not guilty and Woddy makes title to him by a gift and the Plaintiffe traverseth the gift and upon these matters they were at issue and Tilly was found guilty and the issue was found for Woddy and against the Plaintiffe And here albeit the Issue was found against Tilly yet by the cléere opinion of the Court the Plaintiffe shall not have judgment against him for it was found betwixt the Plaintiffe and Woddy that the Plaintiffe had no title and therefore the Iudges ex officio ought to give judgment against him vide plus ibid. â—â—â—ter to 〈◊〉 and 〈◊〉 33 If land be given to Baron and Feme in special taile Co. Inst p. 1. 354. a. 3. and after the husband alien the land in fée and take backe an Estate to him and his wife for their lives in this Case the husband against his owne alienation if he had taken the estate to himselfe alone could not have béen remitted but when the estate is made to the husband and wife albeit they be but one person in law and no moities betwéen them yet for that the wife cannot be remitted in this case unlesse the husband be remitted also and for that remitters are much favoured in law because thereby the more ancient and better rights are restored again therefore in this case in judgment of law both husband and wife are remitted Co. ib. 194. a. 3 34 A release by the disseisée to one of the disseisors shall enable him to hold out his companion because they are in méerely by wrong A release to usurpation howbeit if two men do usurpe by a wrongfull presentation to a Church and their Clerk is admitted instituted and inducted and the rightful Patron release to one of them this shall enure to them both for that the usurpers came not in méerely by wrong but their Clerk is in by admission and institution which are Iudicial Acts and usurpation shall work a Remitter to one that hath a former right Co. ib. 297. a. 2 35 There is a diversity betwixt a bare assent without any right or interest and an assent coupled with a right or interest Attornment Confirmation and therefore an Attornment cannot be made for a time or upon Condition because that is a bare assent but if a Parson make a lease for 100 years the Patron and Ordinary may confirme 50 of those years for they have an interest and may charge in time of vacation so if a disseisor make a lease for 100 yeares the disseisor may confirm parcel of those years but then it must be by apt words for he must not confirme the lease or demise or the Estate of the Lessée because then the addition for parcel of the term would be repugnant when the whole was confirmed before but the confirmation must be of the land for part of the term c. Co. ib. 277. b. 4 36 If A. disseiseth B. to the use of C. and B. releaseth to A. this shall take away the agréement of C. to the disseisin because otherwise it should make him a wrong-doer so if the disseisor be disseised and the disseisée releaseth to the second disseisor this taketh away the right of the first disseisor had against the second for a relation of an Estate gained by wrong shall never defeat an Estate subsequent gained by right against a single opinion in 14 H. 8. 18. never seconded by any other since Hob. 13. Sir Daniel Nortons Case 37 If the Vnder-Sheriffe Covenant with the High Sheriffe Skeriffes that he will not serve executions of above 20 l. without his special warrant this Covenant is void because it is against Law and Iustice 142 That which is not tortious in it selfe cannot be tortious to any Co. lib. 11. 98. b. 1. in Edw. Seymers Case 1 If there be Tenant in taile Remainder in taile Remainder not devested the Reversion in in Fée to the Tenant in taile the Tenant in taile bargaines and sels the land and levies a Fine to the bargainée who enfeoffes I. S. in this Case by the feofment of the bargainée to I. S. the Remainder in tail is not displaced or put to a right for the bargainée had an Estate in Fée-simple determinable upon the death of the Tenant in taile without issue and when he made the feofment his determinable Fée-simple in possession and his absolute Fée-simple expectant upon the Estate taile in remainder did pass and did not devest the remainder for the feofment which is not tortious in it selfe cannot be tortious to another 143. Interest Reipublicae ne Curia Domini Regis deficeret in Justicia exhibenda A Letter of Attorney a Pâ—nnell 1. If a man make a Letter of Attorney to two to do any act Co. Inst pars 1. 181. b. 3. if one of them dye the survivor shall not do it but if a Venire facias be awarded to four Coroners to impannel and return a Iury and one of them dye yet the other shall execute and returne the same because this last is for the execution of justice Tenants is common shall joyne in Assize 2. If there be two Tenants in Common of 20 s. Rent Co. ibid. 197. a. b. a pound of Pepper or such like thing as will admit severance if they be arreare they shall bring several Assises for them because of their severall titles but if the Rent be an intire thing which cannot be severed or divided as an Hawke Horse or the like in such case they shall joyne in the
in an action of debt for otherwise they should be without remedy Vide supra 11. Co. l. 8. 57. b. 2. in Bredimans case 33. Regularly a Precipe lyeth not against a Termor Writ of Dower against Guardian because he cannot tender seisin Howbeit against a Guardian in Chivalry who is upon the matter but a Termor being but possest of a Chattell viz. the Wardship a Writ of Dower lyeth because otherwise the tenant in Dower should be without remedy for in such case no Writ of Dower lyeth against the Heire as it is adjudged in 9 H. 6. 6. Trevils Case Co. l 6. 65. b. 1. in S r Mâ—â—le Finches case 34. Misnosmer If William Abbot of Worcester purchase a Writ by the name of Thomas Abbot of Worcester the Writ shall abate because he may purchase a new one Howbeit if he with the consent of the Covent grant to the Burgesses of Worcester common of pasture out of certaine lands by the name of Thomas Abbot of Worcester when his name is William the grant is good because there is certainty enough to make certain the name of the Grantor viz. Abbot of W. Nihil facit error nominis cum constat de persona And otherwise the Grantees should be without remedy for they cannot have a new Grant Avowry and wast without attornment c. 35. If a man be seised of a Mannor part whereof in Lease for life Co. l. 6 68. a. 1. in Sir Moyle Finches case and part in Lease for yeares and he levies a Fine to A. to the use of B. in taile with divers remainders over In this case B. shall avow for the rent and have an action of Waste without any attornement for when a reversion is setled in any in judgement of Law and he hath not any possible meanes to compell the Tenant to attorne and no Laches or default is in him in such case he shall avow and have an action of Waste without attornement for the Rule is Quod remedio destituitur ipsa re valet si culpa absit So in 20 E. 3. Contra formam Collat. because the founder cannot have the Writ of Contra formam Collationis of an Advowson he shall present without any suit because otherwise he should be without remedy Likewise in 7 E. 3. and 3 H. 7. A man shall be Tenant by the Curtesie of a rent or Advowson albeit the woman dye before the day incurr or the avoydance fall Also the Lord in Mortmain or of a Villaine claimes a reversion by such claime the Law vests the reversion in him and he shall avow and bring an action of Waste without attornement because he hath no meanes to compell the Tenant to attorne There is the same law of Letters Patents and of a demise of a reversion as appeares in 34 H. 6. for in all these cases abest culpa and the party should be otherwise left without remedy Vide supra 6. A Quare Impedâ— shall not abate for the death of the Patron 36. If a Quare impedit be brought against the Patron and Incumbent and the Patron dye hanging the Writ Co. l. 7. 26. b. 2. in the cases of Quare Impedits Vide Co. l. 10. 134. b. 4. in Read and Redmans case the death of the Patron shall not abate the Writ as it is adjudged in 9 H. 6. 31. For here are two mischeifs the one if the Writ shall abate the disturbance shall be left unpunished and albeit the Writ be well commenced yet the Plaintiff shall be without remedy for there will want a disturber and the other mischiefe is if the Writ do not abate but the Piaintiffe proceeds to Iudgement and Execution the true Patron shall be out of possession And therefore in as much as in the one case if the right Patron be put out of possession he hath remedy by a Writ of right to recontinue the Advowson and in the other case if the Writ shall abate the Plaintiff shall be without remedy which of the two is the greater mischiefe for this cause the Writ shall stand and shall not be abated with which accords 7 H. 4. 20 b. 13 H. 8. 13. 9 H. 6. 57. For the same reason it is that a Quare impedit brought by Coparceners or Ioyntenants shall not abate by the death of one of them or brought by Baron and Feme shall not abate by the death of the Feme because otherwise the Plaintiff if the six moneths are past shall be without remedy as the Books are in F. N. B. 35. b. 38 E. 3. 43. 37 H. 6. 11. 7 H. 4. 19. 14 H. 4. 12. 9 H. 6. 30. 57. 1 H. 5. 13. 17 E. 3. 11. 7 E. 3. 304. Co. l. 7. 30. a. 4. in cases of the discontinuance of Processe Discontinuance of suits by demise of the â—ing 37 At the common Law regularly by demise of the King all suits were discontinued for remedy whereof the Statute of 1 E. 6 7. was ordained yet since that Statute if an Originall were not returned before the death of the King it was lost for the words of that Statute are Depending in any Court Howbeit at the Common Law before that Statute in an Appeale of death if the Writ were delivered to the Sheriff within the yeare and before the returne thereof or that the Sheriff doth any thing in it the King dyes and the yeare is expired before the day of the returne In this case the common Law gave remedy to the Plaintiff viz. a Certiorari out of the Chancery returnable in the Kings Bench and thereupon the Plaintiff had re-attachment although it came not in by the returne of the Sheriff but by the Certiorari And the reason is for the necessity of the matter for otherwise the Plaintiff who lawfully purchased his Writ within the yeare without any default in him shall lose his appeale the yeare being past And therefore in as much as by act in Law the Writ is discontinued the Law gives a meane to revive it to the end the party should not be without remedy So if a man purchase a Formedon against the Parnor of the profits within a yeare after the title accrued if before the returne of the Writ c. the King demiseth his Crowne the Writ shall be removed into the Common Bench by Certiorari and thereupon he shall have a Resummons for the mischiefe c. for otherwise he should be left without remedy as is holden in 10 E. 4. 13. b. and 14. a. Co. l. 7. 39. b. 2. in Lillingstons case 38. If a man grant a rent-charge for life out of his land Arreare of rent sued by Executors with Proviso not to charge his person and the rent is arreare and the Grantor infeoff A. and the rent is arreare in his time and after A. enfeoffs B. and the rent is also arreare in his time and after the Grantee dyes his Executors shall have an action
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
re-entry c. and because the rent is arreare the Discontinuee re-enters for this entry the Baron with the Feme cannot have an Assise of Novel disseisin because he is estopped c. but the Feme after the death of the Baron shall have such an Assise against the Discontinuee because both the reversion of the Discontinuée and the estate for life made to the Baron and Feme being defeated by the remitter of the Feme the conditions and rents and all other things annexed to or reserved upon that estate for life are also defeated Littl. § 686 687. Co. ibid. 360. a. 25 If an Abbot Bishop or Deane Charges upon land voidable c. aliens the land belonging to his house Bishoprick or Deanary c. without assent c. and after the Alienée chargeth the land and then the Abbot Bishop or Deane c. by licence resumes an estate again to him and his Successors and after the Abbot Bishop or Deane c. dies In this case the Successor shall defeat the charge because by his remitter he defeats the estate out of which it was granted c. Littl. § 690. Co. ibid. 361. b. 3. 26 If judgement be given against Tenant in taile upon a feigned or false action and the Tenant in taile die before execution Tenant in taile Feigned recovery by which the lands descend to the Issue in tail and then he that recovers sues a Scire facias out of the judgment to have execution thereof against the issue in taile Here if the issue plead to the Scire facias and prove the recovery to be false which was the ground of the Iudgemeâ—t he shall thereby barre the Demandant to have execution of that judgement It is otherwise when the Tenant in taile voucheth and recovereth in value c. by reason of the intended recompence c. Co. ibid. 365. b. 3 366. a. 1. 380 a. 3. Littl. § 725 726. 27 Before the Statute of 11 H. 7. 20. Warranty defeated if a woman had béen Tenant for life the remainder or reversion to the next heire and the woman had aliened in fée with warrany and died this warranty being collaterall had barred the heire in remainder or reversion howbeit in that case if the heire that had the reversion or remainder had by entry in the life of the woman avoyded the estate so aliened the warranty being annexed unto that estate had béen avoided also Co. ibid. 385. a. 4. 28 If a man make a gift in taile at this day Warranty â—â—tinct and warrant the land to him his heirs and assignes and after the Donée make a feoffment and dieth without issue the warranty is expired as to any voucher or rebater for that the estate in taile whereunto it was knit is spent It had béen otherwise if the Feoffment had béen made before the Statute De donis conditionalibus For then both the Donée and Feoffée had a fée-simple And so are our Books to be intended in this and the like cases Co. l. 3. 62. 63. Lincoln Colledge case l. 10. 96. b. Seymors case Littl. sect 741. Co. ibid 389. a. 3. 29 If Tenant in taile discontinue the taile in fee The likâ— and the Discontinuée is disseised and the brother of the Tenant in taile releaseth by his deed to the Disseisor all his right c. with warranty in fee and dieth without issue and the Tenant in taile hath issue and die Now is the issue barred of his action by force of the Collateral warranty descended upon him but if afterwards the Discontinuée enter upon the Disseisor then may the heire in taile well have his action of Formedon c. because the warranty is defeated for when the estate whereunto a warranty is annexed is defeated although it be by a méer stranger as in the case abovesaid the warranty it selfe is also defeated Sublato principali tollitur adjunctum Littl. sect 74â— c. So likewise if the Discontinuée make feoffment in fee reserving rent and upon default c. a re-entry c. and a collateral warranty of an Ancestor is made unto the Feoffee upon condition c. which Ancestor dies without issue In this case also if the Discontinuee by entry for the Condition broken defeat the estate of the Feoffee the warranty is also defeated and the issue may bring his Formedon as before Finch 14. Co. ib. 30. a. 1. Co. lib. 8. 34. Paines case 30 If a woman Tenant in taile general taketh an husband and hath issue which issue dieth and the wife dieth without any other issue Tenant by 〈◊〉 Courtesie yet the husband shall be Tenant by the Courtesie albeit the estate taile be determined because he was entitled to be Tenant per legem Angliae before the estate taile was spent and for that the Land it selfe remaineth But if a woman make a gift in taile and reserve a rent to her and to her heirs and after taketh husband and hath issue and the Donee dieth without issue Rent extinct and newly the wife also dieth In this case the husband shall not be Tenant by the courtesie of the Rent for that the Rent newly reserved is by the act of God determined and no estate thereof remaineth Howbeit if a man be seised in fee of a Rent and maketh a gift in taile generall to a woman she taketh husband and hath issue the issue dieth the wife dieth without any other issue he shall be Tenant by the Courtesie of the Rent because the Rent remaineth c. A lease for years determined 31 A. Lessee for the life of B. makes a lease for yeares by deed indented and after purchaseth the reversion in fee B. dieth Co. Inst pars 1 47. b. 4. In this case A. shall avoyd his own lease although it be by deed indented for he may confesse and avoyd the lease which took effect in point of interest and determined by the death of B. because the estate which A. had in the land for the life of B. out of which the lease for years was derived being determined the lease for years it selfe must needs also determine Leases for years 32 If a man take a lease for yeares of his own land by deed indented the estoppel in this case doth not continue after the terme ended Co. bid M. 31 32 Eliz. Londons case because as by the making of the lease the Estoppel doth grow so consequently by the end of the lease An estoppel determined the Estoppel is determined For that part of the Indenture which before belonged to the Lessee doth after the terme ended belong to the Lessor which should not be if the Estoppel continued 38 H. 6. 24. 30 E. 3. 21. Vide 19. 4. Warranty may be granted increase upon an estate for life otherwise for years Accruer 33 A man letteth Lands for life upon Condition to have fee Co. ibid. 37 8. a. 4.
of lands of the custome of Burrough English Gavelkind c. Fitz. N. B. 1. 156. b. 48 If Tenant by Receipt upon default of Tenant for life appeare Tenant by â—â—ceipt and to received and pleads and after loseth by action tried c. Yet the Tenant for life may have a Quod ei deforceat upon the Statute of West 2. cap. 4. for the judgement is given against him for his default Dyer 2. 1 2. 6 H. 8. 49 If a Rent-charge be granted out of land pro consilio impendendo Rent chargâ— Prison in 〈◊〉 and the Grantée is afterwards attainted and committed to prison yet he shall not lose the rent for he may give counsel as well in prison as at large Dyer 30. 20â— 28 H. 8. 50 The Feoffées to an use made a lease for life rendring rent Cesty que â—sâ— before the Statute of Vses in this case Cestuy que use who now hath the reversion in possession shall distraine and make Avowry for the rent without attornment So it is if they had granted a rent upon condition the Grantée after the Statute should have holden by the condition in such plight as he did before Law-day Warren 51 There are thrée Coparceners of a Mannor Dyer 30. 203. and the King grants them a Law-day and they afterwards make feoffment of the Mannor yet shall they still retain the Law-day So if a man hath a Mannor and the King grants him frée Warren within his Mannor if he afterwards enfeoff the King of his Mannor without the appurtenances he shall still retain the Warren For a man may have Warren or a Law-day in anothers land per tot Cur. Action upon the case 52 In an action upon the Case the Plaintiff was non sâ—it Dyer 32. 5. 28 29 H. 8. whereupon the Defendant by the Statute of 23 H. 8. 15. had judgement to recover his costs and after the record was removed by Errour in B. R. by the Plaintiff and hanging that suit the Defendant brings an action of Debt in C. B. upon a new original and counts upon the record of an action upon the Case Errour And this matter was pleaded by the Defendant in this action c. And the better opinion of the Court was that the action was maintainable notwithstanding the writ of Errour because it was brought upon a new original Frankalmoign 53 Albeit the Lyturgie or book of Common Prayer was altered by the Statutes of 2 3 Edw. 6. cap. 1. 5 6 Edw. 6. cap. 1. Co. Inst pars 1. 95. b. 2. and 1 Eliz. cap. 2. yet the tenure in Frankalmoign remains the same and such Prayers and Divine Service shall be said and celebrated as in all times shall be authorized by Parliament Câ—mmon Prayer yea although the tenure be as Littleton hath it Sect. 137. A chanter un Messe c. ou a chanter un placebo dirige yet if the Tenant say Prayers in such a form as is lawfully authorized it sufficeth And as Littleton saith Sect. 119. in case of soccage the changing of one kind of temporal services into other temporal services altereth neither the name nor the effect of the tenure so the changing of Spiritual services into other Spiritual services neither altereth the name or effect of the tenure in Frankalmoign For albeit the tenure in Frankalmoigne was reduced by the said Statutes to a certainty contained in the book of Common Prayer and now since to an uncertainty again by extemporary Prayers Yet séeing the original tenure was in Frankalmoigne and the change was and is by general consent in Parliament whereunto as is presumed every man is party the tenure remains as it was at first Tenements devisable 54 Tenements in London divisable by custome come into H. 8. Dyer 155. 21. 4 5 P. M. hands by the dissolution of Abbies and after the King grants them to hold in chiefe by Knights service In this case a Devise of the whole is still good against the heir but quaere whether it be so against the King for wardship or primer seisin by reason of the saving in the Statute of 32 H. 8. cap. 1. Verdicts returned 55 The Clerk of the Assise may Dyer 163. 54. notwithstanding the death of both the Iustices of Nisi prius deliâ—er in Court the Records of the Verdicts taken before the same Iustices in the Circuit c. Death of a Defendant 56 In a Replegiare or an Assise against two Dyer 175. 24. judgement shall not be arrested by the death of one of the Defendants after the last continuance but shall be entred against the Survivor Partition 57 Ioyntenants and Tenants in Common cannot since the Statute of 31 H. 8. 1. make partition by Parol Co. lib. 6. 12. Morrices case no more than they could before for albeit by that Statute they are compellable to make partition yet it alters not the Common Law in that case Assets 58 In debt upon an obligation against the heire it is no plea to say Dyer 179. 43. Dyer 204. 2. that the Executors have assets Vide Dyer 207. 15. Dyer 217. 61. 4 Eliz. 59 A Veniâ—e facias with Proviso was returned served Venire faciaâ— and puâ— upon the file and two hours after a Pluries venire facias which was afterwards pursued by the Plaintiff was also returned and filed each party also pursue their Habeas Corpora which are likewise returâ—ed Howbeit the Plaintiff failed of his Jurat continuand yet this was adjudged no discontinuance because the continuance by the Defendant sufficed Discontinuance and there is no diversity by the entry of the oâ—e or of the other Dyer 229. 49. 6 Eliz. 60 A Feme dies before Livery sued Tenant by courtesie Partition yet in this case the Baron shall be Tenant by the Courtesie and shall sue livery Dyer 243. 55. 8 Eliz. 61 If there be thrée Coparceners and one of them aliens her part another of them brings a writ of Partition against the Alienée and the third Coparcener upon the Statute per Curiam it shall abate because in this case a writ of Partition lyeth at the Common Law as it did before the Statute Dyer 326. 3. 16 Eliz. 62 The Qu. was seised of Whaddon Chase in Com. Bucks De malefactoribus in paâ—â—â— and the Lord Gray was Lievtenant there in fée and he and his Ancestors and their Kéepers had by prescription used to hunt stray Déere in the Demesnes of the Mannor of Salden adjoyning as in Purlewes the Mannor of S. comes into the Quéens hands who grants it to Fortescue in fée wiâ—h frée Warren within the Demesnes thereof Ita quòd nullus intret in warrennam illam ad fugandum fine licentia F. And it was held that the unity of possession in the Quéen of the Chase and the Mannor of S. did not extinguish the
temps Eliz. Co. l. 4. 89. b. 4. Druries case 3 If a Countesse retain two Chaplains The first Diâ—pensations Wast void those two are onely capable of dispensation according to the Statute of 21 H. 8. cap. 13. And therefore if the Countesse retains a third that cannot devest the capacity of dispensation which was vested in the two first For albeit the Countesse may entertain as many Chaplains as she will at the Common Law yet can she not have more then two capable of Dispensations by force of the Statute and reason requires that he which hath longest served shall be first preferred For qui prior est tempore potior est jure F.N.B. 142. f. 4 If a man purchase divers lands by one feoffment Priority of wardship which are holden severally of divers Lords by Knight-service and after he dies his heire within age that Lord which shall first hap the Ward shall have him because there is no priority But if he purchase land which is holden by Knight-service of one Lord and after purchase other land holden of another Lord by the like service and after die his heire within age In this case that Lord shall have the Ward of the heire of whom the land which be first purchased is holden for that he held of him by a more ancient feoffment viz. by priority then he held of the other Lord of whom he held by posteriory c. Co. l. 4. 66. b. 3. Fulwoods case 5 If a man be bound in two Statutes A former â—â—â—tute first foâ—â— and the last Statute is first extended and put in execution Yet the first Conusée upon extent shall be first served and the last Conusée shall stay till the first be satisfied Dyer 32. 2. 28 29 H. 8. 6 In debt against Executors who plead fully administred Debt agaâ—â—â—â— Executors and it was given in evidence by the Defendants that they had paid divers debts upon contracts made by their Testator and shewed not that they were paid before the Plaintiffs writ purchased whereupon the Plaintiff demurres and that was the chiefe reason why Iudgement was given for the Plaintiff Dyer 133. a. 1. 3 4 P.M. 7 A man being Patron of a Benefice in right of his wife grants proximam advocationem to another Grant of the next avoydance after which grant the Incumbent makes a lease of the Benefice for 60 yeares reserving rent to him and his Successors under the value in the Kings books afterwards the Patron Grantor and his wife together with the Ordinary confirme the Lease and then the Incumbent is deprived for marriage and the Grantée presents his Clerk who enters upon the Lessée to avoid the lease In this case it séems his entry is congeable because the Grant preceded the lease Dyer 232. 5. 7 Eliz. 8 If debt be brought against the Ordinary for the debt of the intestate after notice he cannot dispose of any of the goods to others Ordinary before he hath satisfied that debt for which the action was brought against him Dyer 276. 52. 10 Eliz. 9 A Scire facias was brought by Basset against the Corporation of Torrington in Com. Devon to repeal their Patent of Faires and Markets But it was held Scire faciaâ— that a Puisne Patentée shall not have a Scire facias to repeal a more ancient Patent but è contrà 10 Vide Hob. 7. Spendlowes and Burket concerning the grant of an avoydance and a lease of a Prebendary in Lincoln 50 According to the diversity of the same person Co. Inst pars 1. 8. a. 1. in Calvins case Co. ib. 129. a. 3. 1 A man seised of lands in fée hath issue an Alien Alien not 〈◊〉 heritable viz. born out of the Kings ligeance that issue cannot be his heire propter defectum subjectionis albeit he be born within lawful marriage neither yet shall he inherit to his Father or any other although he be made Denizen by the Kings letters Patents Neverthelesse if the same man be naturalized by act of Parliament he shall not then be accounted in Law alienigena but indigena and shall be capable of inheriting c. â—uption of â—d for a 〈◊〉 2 The same man may have some children capable of inheriting his land after him and others incapable Co. ib. 8. a. 2. according to the several conditions in which he stood at the several times when he had those children Co. ib. 129. a. 3 As if an Alien be made Denizen the issue which he hath after the denization shall be his heire and not the issue which he had before So also if a man hath issue a sonne before his attainder and obtaineth his pardon and after the pardon hath issue another sonne here at the time of the attainder the bloud of the eldest was corrupted and therefore he cannot be heire but if he die living his father the younger sonne shall be heire for he was not in esse at the time of the Attainder and the pardon restored the bloud as to all issues begotten afterwards c. â—lain free 〈◊〉 a time 3 If Villenage be pleaded by the Lord in an action reall mixt Co. ib. 127. b. 4 or personal and it is found that he is no Villein the bringing of a Writ of Errour is no enfranchisement because thereby he is to defeat the former judgement and if in the mean time the Villain bring an action against the Lord the Lord néed make no protestation so long as the record remains in force for at that time he is frée c. â—â—â—is utrum â—â—rranty 4 If a Juris Utrum be brought by a Parson of a Church Co. ib. 370. a. 4 the collateral waranty of his Ancestor is no barre for that he demanded the land in the right of his Church in his politique capacity and the warranty descendeth on him in his natural capacity c. â—â—rranty â—fession 5 If a collateral Ancestor release with warranty Co. ib. 392. b. 3 and enter into religion now doth the warranty binde but if afterwards he be deraigned then is the warranty defeated â—nt extinâ—shed 6 One that hath a rent charge going out of the wives land 14 H. 8. 6. Finch 18. releaseth it to the husband and his heires Yet in this case the husband shall not have the rent but the release shall enure unto him by way of extinguishment onely as seised in right of his wife â—â—ant and â—firmation 7 The Parson of Weston in Com. Glocest An. 9 El. demised his Rectory to W. Hodges then Patron of the same Rectory for 50 years Co. l. 5. 15. a. 3 Mewcomes case Trin. 30 Eliz. in the Exchequer who Anno 14 Eliz. by his déed assigned it over to Sir John Throgmorton the Bishop confirms the lease Anno 17 Eliz. in the life of the Lessor And in this case it was resolved that the assignment of
Particeps Criminis 11 E. 4. 2. Finch 18. Feoffment good against all but him that right hath 8 A Lessée for years may make a Feoffment Co. ib. 367. a. 3. Littl. §. 698. and by his feoffment a Fée-simple shall passe and if a warranty be annexed to such an estate albeit such a warranty cannot barre the Lessor or his heirs because it commenceth by disseisin yet betwéen the parties such a warranty standeth good for thereupon the Feoffée may vouch the Feoffor or his heirs as by force of a lineal warranty And therefore if a Lessée for years or Tenant by Elegit Statute Merchant Statute Staple c. or a Disseisor incontinent make a feoffment with warranty if the Feoffée be impeached he shall vouch the Feoffor and after him his heire also because this is a covenant real which binds him and his heirs to recompence in value if they have assets by descent to recompence for there is a feoffment de facto and a feoffment de jure And a feoffment de facto made by them that have such interest or possession as is aforesaid is good betwéen the parties and against all men save onely against him that hath right c. The like 9 If before the Statute of 1 R. 3. cap. 9. Littl. §. 701. Co. ib. 369. a. 1 a man had granted a messuage with the appurtenances to certain Barretors for maintenance by a feoffment with warranty by reason whereof the true Tenant durst not abide in the house this warranty commenceth by disseisin shall not binde him that right hath but some have said it shall be of force betwéen the Feoffor and Feoffée c. Lineal collateral warranty 10 If a man hath issue two sonnes and is disseised Littl. §. 707. Co. ib. 371. b. 4. and the eldest son releaseth to the Disseisor by his deed with warranty c. and dies without issue and after the father dies this is a lineal warranty to the younger son because the land by possibility might have descended from the eldest to the younger son but in that case if the younger son release to the Disseisor with warranty and dieth without issue that is a collateral warranty to the eldest son and also to the issue of his body because the eldest son by no possibility could convey the title of the land to himself by meanes of the younger But in the same case if the eldest son die without issue of his bodie then the warranty is lineal to the issues of the body of the younger And so the warranty that was collateral to some persons may become lineal to others And therefore if Tenant in taile hath issue three sons and discontinue the taile in fee and the second son releaseth by his deed to the Discontinuee with warranty c. and after the Tenant in taile die and the second son die without issue this is collateral warranty to the eldest sonne but in case the eldest son die also without issue it becomes a lineal warranty to the youngest c. Difference Barres respects severall 11 An Act of Parliament or the Common Law may make an estate void as to one person and good as to another person For example Littl. §. 708. Co. l. 1. 87. b. 1. Corbets case if lands be given to the Baron and Feme and to the heirs of their two bodies and the Baron levy a fine with proclamations and hath issue and die this fine by force of the Statute of 32 H. 8. cap. 36. shall bar the issue in taile but it shall not bind the Feme so that in respect of one it is a good barre and in respect of another it is no barre So also in a praecipe if one be vouched In that case having regard to the Demandant the Vouchee is Tenant and a release to him from the Demandant is good but having regard to a stranger he is not Tenant and therefore a release to him from a stranger is not good Likewise if one be possest of a terme for years as Executor and surrender it here as to one respect the terme is extinct and as to another respect it is assets c. Co. l. 5. 60. a. 4. in Gooches case 12 If a fraudulent conveyance be made to avoid a debt Fraudulent conveyance the grant is void as to the Creditor by the expresse provision of the Statute of 13 Eliz. cap. 5. but as to all other persons it stands good Co. lib. 6 78. b. The Lord of Aburgavennies case 13 A. and B. are joyntenants for life A charge upo◠one of the Joyntenants and judgement is given for C. against A. in an action of Debt A. releaseth to B. before execution here albeit B. is now in by the Lessor and not by A. and the estate of A. as to all strangers is determined yet as to C. who hath the judgement whereby the moity of A. was charged with the execution the estate of A. during the life of A. hath continuance But in case A. die before execution B. shall hold it discharged c. Co. ibid. 79. a. 14 If there be two joyntenants in fee Joyntenants Rent-charge and the one grants a Rent-charge in fée and after releaseth to the other In this case albeit to some intent he to whom the release is made is in by the first Feoffor and no degrée is made betwixt them yet as to the Grantée of the Rent-charge he is in under the Ioyntenant that releaseth and he that surviveth shall not avoid it after the decease of him that releaseth Vide M. 30. c. 8. Co. ibid. 15 A. and B. are Ioyntenants for life The like the reversion to C. judgement is given against A. in an action of Debt A. releaseth to B. B. dies C. enters Yet as to him that hath the judgement the estate of A. so long as A. liveth hath continuance Co. ibid. 16 If the Baron being seised of a Rent or Common in fée The like for Dower release to the land Tenant this rent is extinct yet having regard to the Feme it hath continuance for she shall be endowed thereof See there many authorities in the point and Co. l. 7. 38. b. 3. Lillingstons case Co. l. 6 79. b. 4. Sir Edward Phittons case 17 In the general pardon of 43 Eliz. there was this proviso General pardon that any Clerk might make a Capias utlagatum at the suit of the Plaintiff against out-lawed persons to the intent to compel the Defendant to answer and that the party shall sue a Scire facias before the pardon in that behalfe shall be allowed but this is onely as having regard to the Plaintiff for as to the King it is an absolute pardon and grant of his goods Lord and Villain c. so that the pardon was available to discharge the Defendant against the King but not to discharge him against the party Plaintiffe
Longeville Madame de Chevreuse c. 61 A matter of higher nature determineth a matter of lower nature contrà Co. Inst pars 1. 83. a. 4. 1 If a Tenant by Castle-guard do serve the King in his warre Castle-guaâ—â— he shall be discharged against the Lord according to the quantity of the time that he was in the Kings host Co. ib. 115. a. 3 2 If there be any sufficient proof of record or writing against a prescription A record or writing quaâ—eth a â—rescrâ—ption albeit such a record or writing excéed the memory or proper knowledge of any man yet are they within memory of man and shall quash the prescription for a matter in writing shall determine a matter in fait and a record or sufficient matter in writing are good memorials and therefore it is said litera scripta manet and when we will by any record or writing commit the memory of any thing to posterity the phrase is tradere memoriae c. 21 H. 7. 5. 3 A man hath liberties by prescription The like and after taketh a grant of those liberties by Letters Patents from the King this determineth the prescription for a matter in writing determineth a matter in fait Finch 22. Co. l. 6. 45. a. 4. Higgens case Vide ib. parl auth 33 H. 8. Dyer 50. Pl. 4. 4 If an offence which is murther at the Common Law Murder dâ—â—ned by treason be made treason no appeal shall lie of it because the offence of murther is drowned and it is punishable as treason onely whereof no appeale lyeth c. Finch 2â— Co. ib. 41. b. 4. 5 If A. be Tenant for life the remainder or reversion to B. for life Tenant for life may sâ—â—render to the reversioner 〈◊〉 life in this case A. may surrender to B. For the estate of B. for term of his own life is higher than an estate for another mans life and therefore if Tenant for life enfeoff him in the remainder for life this is a surrender and no forfeiture And generally from this ground it is that estates of lower nature are drowned in others of higher nature when they méet together in one and the same person Hereupon also ariseth extinguishment betwéen Lord and Tenant c. Co. l. 541. a. 2. in Sparrows case 6 If a man bring an action of Debt by bill in London or Norwich Suit in a lower Court abates not 〈◊〉 in an highâ— or in any other inferiour Court and after bring a writ of Debt in the Common Pleas that suit in the higher Court which is purchased hanging the suit in an inferiour Court shall not abate as appears in 7 H. 4 8. 3 H. 6. 15. Vide 43 E. 3. 22. 7 H. 4. 44. Briminghams case Co. l. 6. 45. a. 2. in Higgins case 7 After judgement upon an obligation for Debt A Iudgmenâ— destroys a bond so long as that judgment remains in force the Plaintiff cannot have a new action upon thâ—t obligation For as when a man hath a debt by simple contract if he take an obligation for the same debt or for any part thereof that taking of the obligation determines the former contract 3 H. 4. 17. 11 H. 4. 9. 9 E. 3. 50 51. So when a man hath a debt upon an obligation and by the ordinary course of Law hath judgement thereupon the contract by specialty which is of a lower nature is by the judgement of the Law changed into a matter of record which is of an higher nature Vide 56. 4. Co. l. 6. 45. a. 4. ibid. 8 If a man hath an annuity by déed or prescription The like and bring a writ of Annuity and hath judgement So long as this judgement remains in force he shall never have a writ of Annuity more albeit the Annuity be of inheritance but shall in that case have a Scire facias upon that judgment because the matter of specialty or prescription is altered by the judgement into a thing of an higher nature Vide 37 H. 6. 13. Iudgment in an action of forging a false déed is a good barre in another action upon the same forger But if recovery be in debt upon an obligation per Justicies there notwithstanding such judgement the Plaintiff may have an action of debt upon the same obligation in a Court of Record For the County Court being not a Court of Record the obligation is not by a judgement in that Court changed into any other thing of an higher nature but so long as such judgement remains in force the Plaintiff shall not have any other action upon the same obligation by Justicies in the same Court M. 2. Jac. Rol. 3172. in Com. Banco 11 H. 4. Br. Faits 19. Howbeit if a man be indebted upon an obligation and afterwards acknowledg a Statute Staple for the same debt and in full satisfaction of the said obligation in that case the Creditor may sue which of them he pleaseth for a Statute Staple or obligation in nature thereof is but an obligation recorded and an obligation be it of record or not of record cannot drown another Also a bare obligation and an obligation in nature of a Statute Staple are two distinct bonds made by assent of the parties without processe of Law whereof the one hath no dependance upon the other but in an action brought upon an obligation the suit is grounded upon the obligation as the edifice upon a foundation and the Plaintiff hath judgement to recover the debt due by the same obligation so that by a judicial procéeding and act in Law the debt due by the obligation is transformed and metamorphosed into a matter of record And a judgement in a Court of Record is a higher matter than a Statute Staple Statute Merchant or any recognisance acknowledged by assent of parties without judicial procéeding No Oyer and Termin where the K. Bench sâ—ts 9 In the Lord Sanchiers case in the 9 Rep. it was moved Co. l. 9 118. b. 3. in the Lord Sanchiers case in the case of the Marshalsie Co. li. 10. 73. b. 4. whether the said Lord Sanchier might not in the Term-time be indicted arraigned and convicted at Newgate before Commissioners of Oyer and Terminer for the County of Middlesex and it was resolved that he could not For the Kings Bench is more than an Eire and therefore in the Term-time no Commissioners of Oyer and Terminer or of Gaole delivery by the Common Law may sit in the same County where the Kings Bench sits because in praesentia majoris cessat potestas minoris And with this accords the 27 Assises Pl. 1. But Carlisle and Inweng the two Confederates of the Lord Sanchier were indicted and attainted in London where the murther was committed before Iustices of Oyer and Terminer in the Term-time because it was in another County than where the Kings Bench sate No Marshalsie wher 's the
he recovered the Mannor whereunto the Advowson was appendant And so it is also of all other Inheritances regardant appendant or appurtenant a man shall never be remitted to any of them before he recontinueth the Mannor c. whereunto they are regardant appendant or belonging according to that of Britton Nul ne poit clamar droit en les appurtenances ne en les accessories que nul droit ad en le principal And also that of Bracton Item excipi potest c. quà mvis jus habeat in tenemento pertinentiis primò recuperare debet tenementum ad quod pertinet advocatio tunc postea presentet non ante c. Et de haec materia in Rotulo Sancti Mich 3. H. 3. in com Norf. de Tho. Bardolf c. But on the other side if a man be remitted to the principal he shall also be remitted to the appendant or accessory albeit it were severed by the Discontinuée or other wrong-doer And therefore if there be Tenant in taile of a Mannor whereunto an Advowson is appendant and he enfeoffeth A. of the Mannor with the appurtenances A. re-enfeoffeth the Tenant in taile saving to himself the Advowson Tenant in taile dieth his issue being remitted to the Mannor is consequently remitted to the Advowson although at that time it was severed from the Mannor Co. ib. 363. b. 3. So it is in the same case if Tenant in taile be disseised and the Disseisor suffer an usurpation For here also if the Disseisor enter into the Mannor he is likewise remitted to the Advowson 15. Co. ib. 355. b. 4. 13 In any action for the recovery of the principal Judgement 〈◊〉 the principal draweth the accessories together with the accessory a man shall never release the principal have judgment of the accessory In an action of waste if the Defendant confesse the action the Plaintiff may have judgement for the place wasted and release the damages but he cannot have judgement for the damages and release the place wasted because the place wasted being in the realty is the principal and the damages being in the personalty are but as accessories for without judgement for the principal the Plaintiff can have no title to the accessory but having judgement for the principal he is thereby also entitled to the accessories and therefore may release them c. Co. ib. 378. a. 4. 14 A man letteth lands for life upon condition to have fée Warranty â—creaseth according to tâ—â— estate and warranteth the land in forma praedicta afterwards the Lessée performeth the condition whereby the Lessée hath fée Here the warranty shall extend and encrease according to the estate And so it is likewise albeit the Lessor had died before the performance of the condition for then also the warranty shall rise and increase according to the state and yet the Lessor himself was never bound to the warranty howbeit it hath relation from the first livery c. Co. ib. 363. b. 3. 15 If Tenant in tail be of a Mannor whereunto an Advowson is appendant the Tenant in taile discontinueth in fée the Discontinuée granteth away the Advowson in fée and dieth the issue in taile re-continueth the Mannor by recovery he is thereby remitted to the Advowson and shall present when the Church becometh void c. 12. Co. ib. 384. b. 4. 42 E. 3. 6. per Finchden 16 It hath béen adjudged Acquital follows the 〈◊〉 that where two Coparceners made partition of land and the one made a covenant with the other to acquit her and her heirs of a suit that issued out of the land the Covenantée aliened In this case the Assignée shall have an action of Covenant and yet he was a stranger to the Covenant because the acquital as accessory did run with the land which was the principal Co. ib. 385. a. 2. 17 If a man make a feoffment in fée of two acres to one Warranty follows the fee. with warranty to him his heirs and assignes if he make a feoffment of one acre that Feoffée shall vouch as Assignée for the warranty as accessory follows the land as principal And therefore there is a diversity betwéen the whole estate in part and part of the estate in the whole or in any part As if a man hath a warranty to him his heires and assignes and he make a lease for life or a gift in taile the Lessée or Donée shall not vouch as Assignée because he hath not the estate in Fée-simple whereunto the warranty was annexed but the Lessée for life may pray in aide or the Lessée or Donée may vouch the Lessor or Donor and by this meanes they shall take advantage of the warranty But if a lease for life or a gift in taile be made the remainder over in fée such a Lessée or Donée shall vouch as Assignée because the whole estate being out of the Lessor the warranty by consequent doth follow it and the rather because the particular estate and the remainder doe in judgement of Law as to this purpose make but one estate c. Grant of the Mannor passeth all liberties and incidents 18 If the King grant to one and his heires Bona Catalla felonum Co. l. 3. 32. b 3. in Butler and Bakers case Per Anderson Periam sur conference ewe ove divers auters Iustices 25 Eliz. in Bakers case fugitivorum or utlagorum fines amerciamenta c. within such a Town or Mannor In this case he cannot devise them to another nor leave them to descend for a third part according to the Statutes of 32 and 34 H. 8. of Wills because they are of no yearly value For the first branch of the 34 H. 8. ordains that the hereditaments devisable by those Statutes should be of a clear yearly value c. And therefore those Statutes extend not to such kind of hereditaments Neverthelesse if a man be seised of a Mannor unto which a Léet or Waife and Stray or any other hereditament which is not of any yearly value is appendant or appurtenant Here by the devise of the Mannor with the appurtenances they shall passe as incidents to the Mannor For in as much as those Statutes by expresse words enable him to devise the Mannor by consequent they enable him to devise the Mannor with all incidents and appendants unto it And it was never the intention and meaning of the makers of those Statutes that when the Devisor hath power to devise the principal he shall not have power to devise that which is incident and appendant unto it but that the Mannor c. shall be dismembred and fractions made of things which by lawful prescription have béen united and annexed together c. Principal and accessorie 19 If there be principal and accessory Co. l. 4. 43. b. 2. in Syers case Co. ib. 44. a. 1. in Bibiths case and the principal is pardoned or
is attainted of Felony the bloud on his part being corrupted the sonne as it séems to him hath but halfe the inheritable blood in him without corruption viz. the bloud of the mother and therefore he holds that such a sonne shall not be inheritable no not to his mother And with this agrées Bracton lib. 3. cap. 13. Non valebit felonis generatio nec ad hereditatem paternam vel maternam Si autem ante feloniam generationem fecerit talis generatio succedit in haereditatem patris vel matris a quò non fuerit felonia perpetrata because at the time of his birth he had two lawful blouds commixed in him which could not be corrupted by the attainder subsequent but onely as to him that offended See more of this matter Co. Inst pars 1. 8. a. Co. l. 11. 39. a. 4. in Metcalfs case 2 In an action of Accompt upon the judgement quod Computet No writ â—â—or befoâ— whole â—ment câ—â—pleated before the final judgement given for the arrerages and damages a writ of Error lyeth not for in that writ these words Si judicium inde redditum sit c. are meant not onely de principali judicio but also de integro judicio viz. When all the matter within the original is determined as in 34 H. 6. 18. in Humphrey Bohuns case in a Quare Impedit brought against two the one pleads to issue and the other confesseth the action upon which confession judgement is given and he against whom the judgment was given sues his waie of Error to remove the record into the Kings Bench but Prisot and the whole Court denied it because the writ of Error was to rehearse all those which were parties to the original writ and then the writ saith Et si judicium inde redditum sit tunc Recordarium illud habeatis c. By which it appears that the record shall not be removed by writ of Error before the whole matter be determined 〈◊〉 like 3 A writ of Trespasse is brought against two Co. ibid. b. 1. and the one appears and pleads so that he is attainted of the trespasse and judgement is given against him In this case the Defendant shall not have a writ of Error before the matter be likewise determined against the other c. The Lord Cromwels case against Cawary and others per Prisot tempore H. 6. 〈◊〉 like 4 In trespasse by the Lord of S. against one for his Cattle taken Co. ibib b. 2. 32 H. 6. 5 6. b. as to parcel the Defendant pleads not guilty and as to the rest he pleads another plea whereupon the Plaintiff demurs and after the issue was found for the Plaintiff upon which he had judgement In this case the Defendant shall not have a wait of Error until the whole matter be determined c. 〈◊〉 like 5 A man cast in a writ of Error upon a Iudgement given Co. ibid. b. 3. 39 H. 6. Error 11. where the judgement was given of the Principal and damages but not of the Costs Howbeit the writ was rejected because the writ is conditional Si judicium inde redditum sit c. 〈◊〉 like 6 In Formedon brought by Fitz-williams against Copley Co. ibid. b. 3. 12 Eliz. Dyer 291. the Demandant hath judgement of part c. And after the Tenant brings a general writ of Error before the discussion of the residue earnestly desired that the record might be removed into the Kings Bench but the Court would not grant it before the whole matter in demand should be determined for the Iustices of the Kings Bench should procéed without warrant if they should procéed upon a matter which is not determined and whereupon no judgement is given and the whole record ought to be either in the Common Pleas or in the Kings Bench also the original is intiâ—â— and cannot be here and there too c. 〈◊〉 Impe. 7 The next Advowson is granted to two Dyer 279. 8. 11 Eliâ— who joyn in a Quâ—â—e Impedit the one dies this shall cause the writ to abate 〈◊〉 not inheâ—blâ— 8 Baron and Feme being Donées in special tail Dyer 332. 27. 16 Eliz. the Baron is attainted of treason and executed having issue the Feme dies the issue shall not have the land for he ought to make his conveyance by both per Curiam â—ard 9 If an award be made for the performance of divers things on one side and nothing to be performed on the other it is a lame award Hob. 49. Nichol's case and void according to the book of 7 H 6. 10 A. brings an action of trespasse against B. C. and D. B. pleads not guilty whereupon issue was joyned C. and D. make a justification â—ob 70. Parkers case and thereupon after a replication a demurrer was joyned Hanging this demurrer the issue was tried against B. and damages given and judgement against him after which judgement the Plaintiff entred a Nolle prosequi against the Defendant C. and D. whereupon Error was brought by all the Defendants against the Plaintiff and the Error assigned was for that the Nolle prosequi had discharged all the Defendants but it was held that the Nolle prosequi against C. and D. had not discharged B. and so no error neither yet should C. and D. have joyned in this writ of Error because there was no judgement against them nor they grieved and the writ of Error is Ad grave daâ—â—um c. 68 Ex tota materia emergat Resolutio Co. l. 3. 59. b. 1. in Lincoln Colledg case 1 It is the office of a good Expositor of an act of Parliament to make construction of all the parts together Discontinâ—ance by the husband of 〈◊〉 wives land and not of one part alone by it selfe Nemo enim aliquam partem rectè intelligere possit antequà m totum iterum atque iterum perlegerit For example albeit the first branch of the Stat. of 11 H. 7. c. 20. makes the discontinuance alienation warranty and recovery made by the wife of the Inheritance of her deceased husband to be utterly void and of none effect Yet the clause following being joyned to the first with this conjunctive And that it shall be lawful for any person c. to whom the said Inheritance c. shall appertain to enter c. doth cléerly expound the generality of the words of the precedent branch And therefore the sense of both together is that they shall be void and of none effect by the entry of him unto whom the interest title or inheritance after the decease of the Feme doth appertain Howbeit they shall not be void but stand in force betwéen the parties themselves and against all others save onely against such as have title c. and they onely have power to make them void and of none effect by their entry as aforesaid For estates of Franktenement or Inheritance
cannot be defeated without entry and therefore by entry they ought to be made void Co. l. 7. 42. a. 3. in Beresfords case 2 Such an Exposition of a Déed must be made An entail good wiâ—â— menti 〈◊〉 the body â—â—gotten that all the parts thereof may well stand together and that withall it may stand with the rule of Law So if lands be given to the use of Aden and of the heirs male of the said Aden lawfully begotten and for default of such issue to the use of divers others in remainder c. Here albeit there wants the words of the bodie yet is this a good limitation of an estate taile For otherwise it would be against the intent of the Donor and all the remainders over would be void and if these words should be turned into Latine they ought to be rendred thus Et haeredum masculorum de praefato Adeno legitimè procreat and not haeredum masculorum praefati Adeni which is cléerly proved by the subsequent clause and for default of such issue c. For issue cannot be of Aden unlesse the words should be De dicto Adeno and so in this case the one clause is well expounded by the other c. Co. l. 8. 93. a. 1. in Frances case 3 In Replevin the Defendant avows for damage fesant The Plaiâ—â— plea in 〈◊〉 destroyed 〈◊〉 yet recoveâ— the Plaintiff pleads in Barre that the said lands were holden in soccage and that I. S. being thereof seised in fée by his last Will devised them unto him for sixty years if he should so long live c. Vnto which the Defendant pleads that it was true there was such a devise made but after the said devise I. S. enfeoffed certaine persons thereof to the use of the Plaintiff for sixty years if hee should so long live c. whereupon the Plaintiff demurs And in this case it was resolved that although it appeared that the title by which the Plaintiff claimed in his barre to the Avowry was utterly destroyed for the Plaintiff claims by the Will of I. S. which Will appears to be afterwards countermanded by the feoffment which the Avowant afterwards pleads and which the Plaintiff confesseth by his demurrer yet shall the Plaintiff have judgement because his Count is good and the Avowant in his replication to the barre of his Avowry hath done two things For first he hath destroyed the title which the Plaintiff made by the Will And again he hath given to the Plaintiff another title viz. to have the land for 60 years by force of the uses declared upon the feoffment And therefore in as much as upon the whole record according to which the Count ought to judge it plainly appears that the Plaintiff hath a lawful terme in the Lands and that the Defendant had taken his Cattel wrongfully for that cause judgement was given against the Avowant and for the Plaintiff albeit the title which the Plaintiff made for himself was destroyed c. â—etters Paâ—ents and Acts â—f Parliament â—est expoundâ—d by themâ—elves 4 The best Expositor of Letters Patents and Acts of Parliament Co. l. 8. 117. a. 4. in Doctor Bonhams case are the Letters Patents and the Acts of Parliament themselves by the construction and conference of all the parts together Optima statuti interpretatrix est omnibus particulis ejusdem inspectis ipsum statutum Et injustum est nisi tota lege inspecta una aliqua ejus particula proposita judicare vel respondere The count made good by the barre the barre by the replication c. 5 In Doctor Bonhams case in the eighth Report Co. l 8. 120. b. 1. in Doctor Bonhams case although it was admitted that the Plaintiffs replication was not material and the Defendants had demurred thereupon yet in as much as the Defendants had confessed in the barre that they had imprisoned the Plaintiff without cause the Plaintiff had judgement And this is the diversity there taken that when the Plaintiff replies and by his replication it appears that he hath no cause of action there he shall never have judgement but when the bar is insufficient in matter or amounts to a confession of the point in debate and the Plaintiff replies and shews the truth of his matter to enforce his case and in judgement of Law it is not material yet in that case shall the Plaintiff have judgement For 't is true that sometimes the Count shall be made good by the barre and sometimes the barre by the replication and sometimes the replication by the rejoynder c. Howbeit the diversity is that when the Count wants time place or other circumstance that may be made good by the barre so it is also of the bar replication c. as appears in 18 E. 4. 16. b. But when the Count wants substance no barre shall then make it good so likewise of a barre replication c. and with this agrées 6 E. 4. 2. Bone cas nota ibidem dictum Choke Vide 18 E. 3. 34. b. 44 E. 3. 7. a. 12 E. 4. 6. 6 H. 7. 10. 17 H. 7. 3. 11 H. 4. 24 c. But when the Plaintiff makes replication sur-rejoynder c. and thereby it appears that upon the whole record the Plaintiff had no cause of action he shall never have judgement albeit the barre rejoynder c. be insufficient in matter for the Court ought to make judgement upon the whole record and every one shall be intended to make the best of his own case Vide Riegeways case in the third Report 52. And these diversities were also resolved and adjudged between Kendal and Helier M. 25 26 Eliz. in B. R. and M. 29 30. in the same Court between Gallis and Burbry â—he like 6 Albeit the replication be insufficient Co. l. 8. 133. b. 1. in Turners case yet if the bar be also insufficient in matter upon the whole record the Plaintiff shall have judgement It is otherwise when by the replication it appears that the Plaintiff hath no cause of action for there the Plaintiff shall never have judgement although the barre be insufficient As in Debt upon an Obligation with condition to perform covenants in an Indenture the Defendant pleads performance of all the Covenants generally when it appears to the Court that divers of them are in the negative or disjunctive and so the plea in the general affirmative insufficient Yet if the Plaintiff reply and shew a breach of one of the Covenants which by his own shewing is no breach upon which the Defendant demurs judgement shall be given against the Plaintiff because upon the whole record it appears that the Plaintiff hath no cause of action For the Obligation is endorsed with condition to perform Covenants so that the Plaintiff hath no cause of action until there be a breach of Covenant and by the shewing of the Plaintiff himself there is not any breach sufficient in
Law to give him cause of action and it is alwayes intended that every one will shew the best of his case c. But when the barre of the Defendant is insufficient in substance and the Plaintiff replies and shews the truth of his case whereby he produceth no matter against himself but matter explanatory or peradventure not material there the Court shall judge upon the whole record and the Count being good for insufficiency of the Barre without any regard to the replication judgement shall be given for the Plaintiff As if a man plead a grant by Letters Patents in Barre which are not sufficient the Plaintiff by replication sheweth another clause in the said Letters Patents which clause is not material the Defendant demurers in Law In this case judgement shall be given against the Defendant sic in simililibus Co. l. 8. 163. a. 3. in Black-amors case 7 Among the misprisions remedilesse by the Statutes made for the amendment of records this is one Misprisions 〈◊〉 Clerks that albeit the verdict upon issue tryed be given for the Plaintiff yet if upon the whole record it appears to the Court that the Plaintiff hath no cause of Action he shall never have judgement and so it hath béen often adjudged Co. l. 9. 53. a. 2. in Hickmots case 8 In debt upon an Obligation A release pleaded wiâ—â— exception the Defendant pleads a release of the Plaintiff c. which was in this manner A. doth acknowledge himselfe satisfied and discharged of all bonds debts c. made by B. the Defendant and it is agreed that A. shall deliver all such bonds as he hath yet undelivered unto B. except one bond of 40 l. not yet due wherein B. and C. stand bound to A. c. The Plaintiff replies that the obligation excepted and the obligation in Curia prolata are one and the same whereupon the Defendant demurres And in this case it was resolved that the exception extended to all the premisses because all the words before make but one intire sentence and the one depends upon the other For it is reason that when Bonds are satisfied that they should be delivered and exceptio semper ultimò ponenda est It was also reason that this bond of 40 l. should be excepted because it was not due when the release was made c. Co. l. 10. 99. b. 3. in Beawfages case 9 M. 10. Jac. upon a motion at the Barre it was resolved Bond taken by the Sheâ—â—â—â— not within 〈◊〉 the Statute 〈◊〉 23 H. 6. that an obligation to the Sheriff upon a Fieri facias for the payment of the money in Court c. was not void by the Statute of 23 H. 6. cap. 10. For the first branch of that Statute is that he shall let to baile by Writ or Bill c. which he could not do before as appears 19 H. 6. 43. The second shews the form of the body c. The third contains a penalty that if the Sheriff take an obligation in any other form c. than is there prescribed that it shall be voyd so that upon consideration of all the branches together and upon their coherence and dependance one upon another it plainly appears that the said Statute doth extend onely to obligations of such as are within their guard and custody and not otherwise Co. l. 10. 138. b 1 in Chester Mills case 10 Always such construction ought to be made of an Act af Parliament that one part thereof may agrée with the rest Exposition an Act. and that all may stand well together c. Co. l. 11. 44. a. 4 in Richard Godfreys case 11 The Iustices shall assesse the Fines of Copiholders upon the due consideration of all circumstances Copihold Fines Quà m rationabilis debet esse finis non definitur sed omnibus circumstantiis inspectis pendet ex Justiciariorum discretione And so it was adjudged in Communi Banco Inter Stallon Plaintiff and Brady Defendant P. 9. Jac. 1845. Rot. Co. l. 5. 79. b. in Fitz-herberts case 12 Tenant for life Warranty that comâ—ceth by dâ—sin the remainder to his sonne and heire apparent in taile by covin and agréement betwixt him and A. and B. to the intent to barre his son of his remainder by a collateral warranty makes a lease for years to A. who makes feoffment in fée to B. to whom the father releaseth with warranty and all this is by covin and consent betwixt the parties to the intent aforesaid After this the father dies and the warranty descends upon the sonne being then of full age Resolved per totam curiam that this warranty shall not barre the sonne because the feoffment of the Lessée for years is disseisin and the father himselfe is particeps Criminis and agréeing thereunto then albeit the release with warranty is made after the disseisin yet in as much as the disseisin was to such an intent and purpose the Law will adjudge upon the whole Act as it is agréed in 19 H. 8. 12. If a man disseise another with intent to make feoffment with warranty albeit he make the feoffment twenty years after the disseisin yet the Law will adjudge upon the whole act and the disseisin and warranty shall be coupled together according to the intent of the parties and therefore in such case the law will adjuge the warranty to begin by disseisin albeit they are made at several timâ—s So if a man make a lease of lands in two several Counties reserving an intire rent abeit the livâ—ry be made at several times first in one County and then in another yet the rent is issuing out of the lands in both Counties So likewise if a man make a charter of feoffment of certain lands with warranty and deliver the déed and after make livery of the land secundum formam cartae Here also the Law will adjudge upon the whole act and albeit the déed be delivered at one time and the livery of the land at another time and although a warranty ought to enure upon an estate yet upon the whole matter the warranty is good Eldest childe 13 The use of a recovery was limited by a Latin déed to the use of H. viz. he against whom the recovery was had for life Dyer 337. 36. 16 Eliz. the remainder Seniori puero de corpore H. in taile c. Afterwards H. covenants by an English Indenture to levy a fine to the use aforesaid wherein the use was limited to the use of the eldest child of the bodie of H. c. H. hath issue two children whereof the elder was a daughter and the younger a sonne And in this case it was adjudged that the daughter should have the land for albeit the word puero be indifferent to each sex and then the Male for dignity should be preferred yet because the English indenture hath declared the construction to be the eldest child the daughter shall have
62 yeares without impeachment of wast And after A. le ts to B the Mannor for 30 yeares from the expiration of the former ease of 30 yeares the first 30 yeares expire the Lessée cut the trees the Lessor brings an Action of wast And Iudgement was given for the Plaintife for by the accept of the future Lease the lease for 62 yeares was presently and actually surrendred because it could not be surrendred in part and in force for the residue of the term and the Lessée by such acceptance affirmed the Lessor to have ability to make a new lease which he could not do so long as the first lease stood in force so likewise if the Lessee for 20 yeares accept a lease for three yeares to begin ten yeares after this is a present surrender of the whole term for the last ten yeares cannot be surrendred and the first ten still remain in esse because that would make fractions of the term which is in its nature intire Neither can he that hath a lease for 20 yeares surrender the last ten yeares by any expresse surrender saving unto him the first ten yeares c. Co. lib. 5. 11. b. 3. 56. a. 1. Knights Case 54 Two Houses are let to one man An intire condition the one for 4 l. Rent per annum the other for 20 s. per annum with proviso that if the said Rent of 5. l. be behind in part or in all then the Lessor shall re-enter these Houses afterwards escheate to the King who after grants that upon which the â—0 s per annum is reserved to I. S. the Rent thereof is arreare In this case the Patentée cannot enter for the Condition broken because albeit the Rents were severall yet the Condition was intire by the expresse reservation and gives in intire re-entry into all for default of payment of any part of the Rent and therefore by the severance of any part of the reversion all the condition as to all common persons is destroyed Howbeit the whole condition remaines intirely in the King with the reversion of the other House and that is in respect of his prerogative c. â—he whole â—â—rm one inâ—â—â—e day 55 The Lessée for yeares brings an ejectione firme Co. lib. 5. 74. b. 1. in Wymarks Case the Defendant saith that before the lease the Lessor bargained and sold to him in Fée by indenture inrolled within six moneths whereby he was seised untill diseised by the Lessor who let the land c. The Plaintife pleades that the bargaine c. was upon Condition which was broken c. the Defendant demurres and sheweth cause according to the Statute viz. Because the Plaintiff shewed not forth the Indenture of the Condition And in this case judgement was given for the Plaintife because when any deed is shewed in Court the deed by judgement of Law remaines in Court all the term in which it is shewed but at the end of the term if the deed be not denied then the Law adjudgeth it in the Custodie of the Partie to whom it belongs for all the term in Law is but one day and therefore the deed shall be intended to remaine in Court all the terme in which it is shewed for the term in that case is Intire and will admit of no fractions And so by consequent the Plaintife may in such case take advantage of the Condition comprised in the deed shewed forth by the Defendant himselfe so he do it in the same term as afore-said c. â—erdict and â—amages inâ—â—â—e 56 Goods were cast super arenas aqua salsa minimè coopertas Co. l. 5. 108. a. 3. in Sir Henry Constables Case Manerii de B. infrà fluxum refluxum maris and another parcell were floting super aquas maris refluent ex arenis ejusdem Manerii infrà fluxum c. The Patentée of the Mannor and Fée of Holdernesse in Com. Ebor. brings an Action of Trespasse against him that seised them to the use of the Lord Admiral And the Iurie assessed damages intirely for all In this case judgement was given against the Plaintife because the Goods so floting upon the Waters called Flotsam did not of right belong to him but to the Lord Admiral And therefore the Verdict being intire viz. given for both and so the damages of the wrecke being thereby made un-severable from those of the Flotsam the Plaintife could take nothing by his wort So in Trespasse 21 H. 7. 34. b. the Defendant justifies for part and Pleads not guilty for the residue the Iury inquire of one of the things and tax damages intirely here the whole Court against Fineux adjudged it not good 22 E. Dier 369. accord M. 14 15 El. in Trespas by Pooly for his Servant beaten and his Close broken and said not per quod servitium amisit upon non culp the Iury assessed damages intirely and it was adjudged not good See 9 H. 7. 3. M. 30 31 El. inter Moore Bedle in Assumpsit where the Plaintiff layes two breaches whereof one was insufficient upon non assumpsit the Iury assessed damages intirely And in this case there were two resolutions 1 It shall be intended that they gave damages for both 2 Because the Plaintifs had no cause for one of the allegations â—â—tire serviâ—â— the judgement was to be reversed in the Exchequer Chamber c. 57 Concerning intire Services Co. lib. 6. 1. in Bruertons Case and where they may be apportioned â—arranty inâ—â—â—e and where not see Bruertons Case per tout Co. l. 6. 1. and John Talbots Case in the 8. Rep. fol. 108. 58 Warrantie is an Intire thing which will not suffer partition but shall always either intirely remaine or be intirely annulled Co. lib. 6. 126. Morrices Case and therefore if there be two Ioyntenants with Warrantie and petition is made between them by judgement in a writ de partitione facienda by force of the Statute of 31 H. 8. cap. 1. in this case the Warrantie shall remaine to each of them intirely because upon the Kings writ they are compellable by the Statute unto which every one is Partie to make partition and so the Partie persuing his remedie according to the Act shall not receive any prejudice by the operation of the same Act unto which every one is partie but if they had made partition by deed by consent since the said Act albeit they were compellable by writ to make partition yet in as much as they did not pursue the Statute to make partition by writ for that cause such partition remaines as it was before at the Common Law and by consequent the Warrantie is gone as it was agréed in 29 El. 3. tit Garr because the Warrantie is indivisible and cannot be parted as the Land may Co. lib. 6. 23. The Marqu of Winchesters Case 59 The Marcquesse of Winchester by will as it was supposed A will for Lands and Testament 〈◊〉
before the more remote though great estate in fée c. And with this accords 24. E. 3. 32. in Pierce Grimsteads case Co. l. 11 99 a. 4 in James Baggs case 5 If a Major and Aldermen of a Town corporate Upon a faâ— return the Court caâ—â—â— proceed which have power by Charter or presciption to dis-infranchise do dis-infranchise one of their members and upon motion in the Kings Bench the Iudges there do award a writ unto them to restore him or otherwise to signiffe the cause c. and they certifie sufficient cause to remove him but it is false In this case the Court cannot thereupon award another writ to restore him neither yet can any issue be taken thereupon because the parties are strangers and have no day in Court Howbeit the party grieves may well have an Action upon the special matter against those that made the certificate and aver that it is false And if it be found for him and he obtain judgment against them so that if may appear to the Iustices that the causes of the return are false then shall they award a writ of restitution and not before and this is proved by the reason of the Book in 9. H. 6. fol. 44. where it is holden that upon a Corpus cum causa if the cause returned be sufficient but indéed false the Court ought to remand the prisoner and he is thereby put to no mischief for if they had no authority to imprison him or that the cause certified be false he may have a Writ of false Imprisonment against them c. Vide Fitz. Tit. corpus cum causa p. 2. the case of 9. H. 6. well abridged F. N. B. 19. i. 6 In a Writ of false Judgment upon a Writ of right patent No errour bâ—fore all câ—â—fied c. or a Writ of right close the plaintiffe shall not assign his errors before all the Record be certified viz. not onely the original but likewise all the residue of the Record F. N. B. 20 e. 22 f. 7 In a Writ of Error when the Record is removed When erroâ— are to be â—signed the Plaintiffe shall assign his Errors before he shall have a Scire facias against the Defendant ad audiendum errores c. Howbeit he shall have a Scire facias before the Record shall be entred for it shall not be entred before the parties have day by the Scire facias c. F. N. B. 38. o. 8 Vpon a Quare Impedit if the Sheriff return tardè and the Defendant appears and the Plaintiff is demanded and comes not in Upon a 〈◊〉 return no 〈◊〉 to the Bishâ—p in this case the Defendant shall not have a Writ to the Bishop c. because no Writ was served against him for he ought to have the Writ served against him before he can have that priviledge c. F. N. B. 39. e. 9 When a man sues a Quare Impedit against another A Certificâ— of an accâ— before 〈◊〉 admittaâ— and after they hanging the suit he sues a ne admittas to the Bishop c. and after they accord in the Co. Pl. to present by turn to that advowson in this case a special Writ shall issue out of the Chancery to the Bishop to admit the Clerk of him who ought by that accord and composition to present to the first turne but first the King ought to send a Certiorare to the Iustices of the Com. Pl. to certifie him in his Chancery of the accord there and upon that Certificate the King shall send his Writ to the Bishop as aforesaid c. A Writ de secunda super oâ—eratione 10 In a Writ de admensuratione pasturae F. N. B. 126. 1. all the Commoners shall be admeasured viz. as well those that were not parties to the writ as those that were but yet if any of them which where not parties c. surcharge the Common after admeasurement they shall not forfeit their cattel nor yet the value of them which were in the pasture above the due number because they were not parties to the first writ neither shall the party that complains recover dammages against them in that writ for such surcharge for a writ de secunda super oneratione lieth not save onely against him against whom the first Writ was sued c. 11 In an Assise of Fresh-force in London against Jekef Foxley and Agnes his wife Matter of fact first to be found and then that in Law to be resolved and eleven other whereof ten appeared by Baily Pl. Co. 91. a. 1. in the Case of the Fresh-force in London against Foxley and others and plead No such Agnes the wife of Foxley in rerum natura and demand judgment of the plaint quod inquiratur per Assisam si c. Nul tort nul diss c. and the others plead the same plea by Attorney And the Plaintiffes as to the plea in abatement of the Plaint demur in law and as to the other plea they pray the Assise And whether the writ should abate or not was argued at Guild-hall by the Councel of both parts before the Assise was taken but afterwards the Councel of the Plaintiffs perceiving that the matter was argued before time for the Assise ought first to have inquired all the matter and if they had found the exception and had also found a disseisor and tenant then would it have been time to have disputed what the Law have determined in that case and not before they therefore prayed the Court when the Assise was sworn that they might first inquire of the matter pleaded in abatement of the Plaint which was done accordingly c. for the course formerly run was preposterous and not suitable to such orderly procéeding as the Law requires And so it was found that there was no such Agnes c. and yet the writ did not abate for the rest c. 75 A digniori fieri debet Denominatio Resolutio Quod ei deâ—rceat for teâ—ant in Dowâ—r and by the â—ourtesie 1 It hath been a question in our Books Co. Inst p. 1. 353. a. 4. whether upon a Recovery had by default in an Action of Wast against tenant in dower or by the Courtesie a Quod ei deforceat lyeth by the Statute of West in cap. 4. For some have holden that in an Action of Waste although it be brought against a tenant in Dower or by the Courtesie that have a Frée-hold yet the damages are the principal because they were recoverable against the tenant in Dower and by the Courtesie by the common Law and the Statute of Glocester gave the place wasted but for a penalty so as the nature of the Action say they remaineth still to be personal for that the dammages are the principal c But the best opinion is conceived to be that albeit in that Action the dammages may be the more
the procheine avoydance is a sufficient title in a Quare Impedit for the Grantor There is the same Law of Lessée for life tenant in Dower by the Courtesie Guardian Tenant by Statute Merchant staple c. And this agrées with divers opinions in 7 E. 4. 20. 22 E. 4. 9. b. 16 H. 7. 18. a. 9 H. 7. 23. Br. Quare Impedit 1 22. 13 El. Dier 300. But sicut beatius est ita majus est dare quam accipere for the termor cannot give seisin of the Rent as in the Case alone put because that would trench to the dis-advantage of the Terre-tenant who is a stranger Howbeit he may take seisin c. for his benefit according to the Rule Res inter alios acta alteri nocere debet sed quandoque prodesse potest In Quare Impedit the Patron must be party 22 John Hall brings a Quare Impedit against the Bishop of Bath and Wells Co. l. 7 25. b. 4. in Mauntons Case and Thomas Maunton Clerk defendant for disturbing him from presenting to the Vicarage of W. And it was resolved that the writ should abate because the Patron was not named in the writ for so the Patronage might be recovered against him that hath nothing in it And it is no reason that he who is Patron should be dis-possessed and outed of his Patronage when he is a stranger and no partie to the writ and especially in this Case when he may be made partie to the writ c. So in 42 E. 3. fol. 7. One brings a Quare Impedit against another the Defendant saith that he claimes nothing in the Patronage but saith that the Bishop presenteth him by laps Judgment si tort c. And there Belknap prayd a writ to the Bishop because he dis-claimed in the Patronage but the Court could not grant it because neither the Patron nor the Bishop who in that Case was in lieu of the Patron were named in the writ And therefore it was adjudged that the writ should abate For if such a writ should be mainteinable every Patron by covin betwéen a stranger and the incumbent might be outed of his advowson And with this agréed 9 H. 6. 30 31. c. 3 H. 4. 2 3. 13 H. 8. 13. Howbeit in a Quare Impedit when the presentation onely is to be recovered and not the Advowson neither yet the Patron to be put out of possession In that Case the writ is adjudged good without naming the Patron c. as it was adjudged in 7 H. 4. 25. 37. Joint-tenant Release Continuance 23 A judgment in debt is given against joint-tenant for life Co. l. 6. 78. b. in the Lord of Aburgavenies Case who releaseth to the other who dies the Reversioner enters the Plaintife sues execution And in this Case it was adjudged that notwithstanding the death thereof lessée and that the Lessor enters and is in of his ancient right yet as to the Plaintife the estate hath continuance And if the Baron seised of Rent Dower Rent Common Common c. in fée releaseth to the Terre-tenant that Rent Common c. is extinct And yet having regard to the Feme they have continuance for she shall be thereof endowed as it is adjudged in 5 E. 2. Dower 143. c. Rent in esse after release 24 Dixwel and his Wife Co. lib. 7. 38. Lillingstones Case and Sillingston and his Wife levie a fine of the Rectory of Litlington in Com. Bedd the Conusées render a rent charge of 30 l. per an to several for life to commence after his wives deceise proviso quod non extendit ad onerandum personas les Conusees c. and then also render the Rectory to Dixwell during his wifes life the Remainder to Lillingston c. acknowledgeth a recognisance to Duncombe of 500 l. in the nature of a Statute staple according to the Statute of 23 H. 8. the Wife Dixwel dies Lillingston enters Dixvvel releaseth to Lillingston Duncombe sues a Cerciorari to the Clerk of the Stat. who certifies the recognisance whereupon the rent was extended and upon a liberate was delivered unto Duncombe who brings an Action of debt against Lillingston who all that while was Tenant of the Rectory and Duncombe averred the life of Dixwell And it was adjudged that as to Duncombe who is a stranger notwithstanding such release the Rent remaines in esse for to some purposes by the Common Law a rent extinct shall be in esse as to a stranger c. as if the Baron be seised of a rent in fée and release to the terre-tenant yet the Feme shall be endowed c. Co. l. 8. 133. a. 2. in Turners Case 25 If an Executor or Administrator compound with one Administrator composition who hath judgement of 100 l. for 60 l. this under-hand composition shall not prejudice another creditor that is a stranger For an Executor and Administrator ought to execute their office lawfully in paying all duties debts and legacies in such precedency as the Law requires truly in converting nothing to their owne use dilligently quia negligentia semper habet infortunem comitem And an Agréement betwéen two shall not annoy a third person Sée Goodals Case Co. lib. 5. 96. supra R. 85. ex 8. Co. lib. 8. 136. a. 1. in Sir John Nedhams case 26 If the obligée make the obligor his Executor Bishop Obligor Administrator this is in Law a release of the debt because it is the Act of the obligée himselfe and with this accords 8 E. 4. 3. 21 E. 4. 2. b. c. But if the Archbishop Grant letters of Administration to the obligor this shall not extinguish the debt but it shall still remaine for the Act of the Archbishop and the obligor shall not wrong the dead who is in that Case as a third person Co. l. 8 138. a in Sir Francis Barringtons Case 27 It appeares by the preamble of the Statute of 22 E. 4. cap. 7. Statute of 22. E. 4. 7. which gives Licence of enclosing several woods in forests c. seven yeares after they are felled for the better preserving of them from cattle betwéen what persons and for or against whom that Act was made And the parties to that great contract by Act of Parliament are the subjects having woods c. within forests chases and perliens on the one part and the King and other owners of forests chases and perliens on the other part so that the Commoners are not any of the parties betwéen whom that Act was made And therefore being strangers unto it ought to receive no prejudice by it So likewise the Act of 2 H. 5. being made betwéen the King and the Priors aliens whereby the Priories aliens were given to the King shall not extinguish the annuity of the Prior of Castle-acre which he had out of a Rectory parcel of a Priory alien Albeit there was not any saving in
tenancy c. Tamen quaere F. N. B. 134. a. b. 38 In a Perambulatione facienda Perambâ—latiâ—â— if it be made by the consent of both parties being tenants in fée-simple it is binding to them and their heirs but if tenant for term of life of a Seigniory and another who is tenant in fée-simple of another Seigniory adjoyning sue such a writ or Commission whereupon perambulation is made It séems that that shall not bind him in reversion neither yet shall perambulation made by the assent of tenant in tail binde his heir F. N. B. 150. c. 39 If the tenant fore-judge the Mesne yet the Feme of the Mesne shall be endowed Parsons One title Two titles Indicavit 40 If two Parsons claim under one and the same Patron one of them may sue spoltation against the other in the Court Christian albeit the profits amount to a fourth part or more because the title of the Patronage comes not in debate But if they claim by several Patrons and the tithes or profits or pension spoiled amounts to a fourth part or more then forasmuch as the Patron of the Parson grieved being a stranger may suffer prejudice he shall in that Case have an Indicavit or Prohibition to remove the Suit into the Kings Court there to be tried at the Common Law because then the title of the Patronage will come in debate c. Vide Statute VVest 2. cap. 5. Pl. Co. 32. a. 3. in Colthirst Beinshins case 41 If a man demise land to A. for life the remainder to B. for life Remainder void and if B. die that then C. shall have the land during the life of A. this demise is void for the prejudice of the particular Estate for things done in prejudice of others shall be void As in the Case of 21 E. 4. where the King had granted to an Abbot that he should not be Collector when any tenths were granted per Clerum Angliae Exemption not void by Proviso And then the Clergy of the Province of Canterbury had granteth a tenth to the King with a Proviso that no Collector which the Bishop would return should be discharged by any Letters Patents of Exemption made by the King And the Bishop returned the said Abbot Collector And there it is holden that the Grant made by the Clergy in that point viz. to charge persons exempt is void because it is in prejudice of others And so also the above-said remainder to C. shall rather be void then a stranger shall suffer prejudice by it Co. Inst p. 1. 117. a. 2. 42 If a Villain purchase Land the Lord may seise it The Lord shall not seiâ—â— common 〈◊〉 number c. but if he purchase a common Sans number the Lord shall not have it for the Lord may surcharge the same and that would trench to the prejudice of the terre-tenant who is a third person there is the same Law also of a Corodie uncertain granted to a Villain and of all other such like uncertain inheritances Co. ib. 100. b. 1 43 If the tenant be disseised The Act of Disseisor no prejudice and the disseisor in a writ of Mâ—sne fore-judge the Mesne this shall not binde the disseisée so likewise if the Mesne be disseised and a fore-judgment is had against the disseisor this shall not binde the disseisée for the words of the Statute of VVest 2. cap. 9. are Quando tenens sine praejudicio alterius quà m medii attornare se potest capitali Domino 44 Admittances made by Disseisors Abators Intruders Co. Inst p. 1. 58. b. 2. Tenant at sufferance Admittances per Dominos pro tempore or others that have defeasible titles are good and effectual in the Law For it is no reason that the Lords competitors for the title of the Mannor should by any Act they do prejudice the Copihold Tenants who are strangers to the difference betwixt them for if they be admitted by any who is Dominus pro tempore it sufficeth howbeit such wrong-doers cannot grant voluntary Copies Advantage to strangers 45 Lessée for life levies a Fine come ceo c. to a Disseisor Co. l. 2. 55. b. 3. in Bucklers ca. this is a forfeiture and he in remainder or reversion shall take advantage of it Vide plùs ibid. It is said that if the Disseisée levie a Fine to a stranger the Disseisor shall retain the Land for ever For the Disseisée against his own Fine cannot claim the Land neither can the Conusée enter for the right of the Conusor cannot be trans-ferred to him but by the Fine the right is extinct and the Disseisor shall take advantage thereof Both wardship and relief 46 If there be Lord and tenant by divers tenures in Knight-service and the tenant is disseised of the one Co. Inst p. 1. 83. b. 4. and the Disseisor dieth seised and the tenant dieth seised of the other his heir within age the Lord seiseth the Body and Lands of that Mannor and after the heir at his full age recovereth the other Mannor against the heir of the Disseisor In this Case the heir shall pay relief for the Mannor recovered and the descent cast shall not hinder it for res inter alios c. And so one Lord of the heir of one tenant shall have both wardship during his minority and also relief at his full age Vllain profest or Neife married 47 If a Villain be made a secular Chaplain Litt. §. 202. Co. ib. 136. b. 2. yet his Lord may seise both him and his goods and albeit the Lord cannot seise his Villain that is profest in Religion nor his Neife that is married to a Frée-man not this because Marriage is honourable and indissoluable not that in favorem Ecclesiae and because then he cannot live according to his Profession and Religion yet in both these last Cases the Lord shall have his Action in his Case and shall recover what he is damnified for albeit the Profession and Marriage were lawful yet when they work a prejudice to a third person an action lieth against the Soveraign of the house and the husband to the value of the losse Ordinary Administrator 48 The Ordinary was sued after the administration committed Dier 247. 73. 8 El. in plaint of a Debt in London and Nihil habet being returned upon suggestion the debt was attached in the hands of one VV. who was indebted to the testator and after four defaults of the Ordinary being returned non est inventus and Oath made that the Debt was due the Plaintiff had judgement and execution against the said VV. against whom the Administrator also brings Debt who pleads the matter suprà whereupon the Plaintiff demurs and it was adjudged that he should recover for after the administration committed Debt lieth not either against or for the Ordinary and indéed it lay not at all until VVest 2. 19.
as it were by way of excuse to give the special matter in evidence as to say that it was se defendendo or in defence of his house in the night against Theeves and Robbers or the like Co. l. 3. 11. b. 4. in Sir Will. Herberts case 16 The liberty of a man is of such high estéeme in the consideration of Law that he could not at the Common Law he imprisoned At the Common Law to capias for 〈◊〉 c. unlesse he were guilty of committing some force for the Law being the preserver of the Common peace of the Land abhorres all force as one of her capital Enemies and therfore as concerning such as commit force the Common Law subjects their bodies to imprisonment as to one of the highest Executions of Law whereby they lose their liberty until they have made agréement with the party and fine to the King for which cause it is a Rule in Law that in all Actions Quare vi armis a Capias lies and where a Capias lies in process there after judgement a Capias ad satisfaciendum lies and there also the King shall have a Capias pro fine And with this agrées 8 H. 6. 9. 35 H. 6. 6. 22 E. 4. 22. 40 E. 3. 25. 49 E. 3. 2. and divers other Books But at the Common Law if a common Person had sued a recognisance or judgement for debt or damages he could not have the body of the Defendant nor his lands unlesse in some special case in execution but was onely in such case to have execution either of his goods and chattels by fieri facias or of his graine or other present profits which encreased upon the land by levati facias both which writs were to be sued within the yeare after the judgement or recognisance acknowledged and if he had neither the one of the other within the yeare the Plaintiffe or Conusée was then put to his writ of debt c. And then by the Statute of Westm 2. cap. 45. a scire facias was given and by cap. 18. cum debitum fuerit recuperatum c. an Elegit of the moity of the land which was the first Act that subjected land to the execution of a judgement or recognisance and with this agrées F. N. B. 265. q. And then by the Statute of 13 E. 1. de Mercatoribus 27 E. 3. cap. 9. and 23 H. 8. cap. 6. In case of a Statute Merchant or staple all the lands which the Conusor had the day of the conusance shall be extended in whose hands soever they come c. Also by the Statute of Malbridge cap. 23. and of West 2. cap. 11. A capias was given in accompt for at the Common Law processe in accompt was distresse infinite and after by the Statute of 25 E. 3. 17. the like processe was given in the debt as in accompt before which two last recited Statutes the body of the Defendant was not liable to the execution in accompt or debt c. neither yet was the land liable in debt as afore-said save in the Kings case and in the case of an heire in by descent and chargeable by the Obligation of his Ancestor c. Co. l. 4. 40. 2. 3. Darleys Case 17 In P. 25 E. Wotherel brings an appeal against Dorley of murder the Defendant pleads not guilty and he was found guilty of homicide Life shall 〈◊〉 be twice 〈◊〉 in jeopardy for the same offence and had his Clergy and after he was indicted of murder and thereupon arraigned at the Quéens suit and he pleaded the former condition in the appeale at the suit of the party And it adjudged a good barre because the life of a man is so precious in judgemedt of Law that it shall not be twice put in jeopardy for one and the same offence The like is agréed in Brooks Case H. 28 El. and P. 33 El. in Vaux his Case which sée Co. l. 4. 45. a. Nâ—â— compos â—â—tis shall not lose his â—ife for felony 〈◊〉 murder 18 Every Act that a man de non sanae memoriae doth Co. ibid. 124. in Beverleys Case either concernes his life his lands or his goods also every Act that he doth is either done in pais or in a Court of Record All Acts which he doth in a Court of Record concerning his lands and goods shall bind himselfe and all other persons for ever Also all Acts which he doth concerning his lands and goods in pais in some cases shall bind himselfe onely during his life and in some case shall bind for ever c. But as for his life the Law of England is that he shall not lose that albeit he kill a man and thereby make himselfe subject to be indicted for felony or murder c. The death of a â—an grievously punished by the Law 19 The Law surpriseth the life of a man Co. ibid. 2. 4. in Beverleys Case that it inflicteth grievous punishment upon them that are guilty of taking away and destroying it for the malefactor in that case shall 1. Lose his life 2. Lose it after an ignominious and odious manner viz. by hanging for he shall be hanged betwixt heaven and earth as unworthy of both 3. He shall lose his bloud both in respect of his ancestry for he is estéemed as a Terrae-silius without any Ancestor and also in respect of his posterity for his bloud is corrupt and he leaveth behind him neither heire nor posterity 4. He loseth his lands 5. His goods And in such case also the King shall have Annum diem vastuna to the intent that his Wife and his Children should be cast out his houses demolished his trées eradicated and stockt up his meadowes broken up and ploughed and all that he hath for his comfort delight and sustenance wasted and destroyed because he hath in such a felonious manner offended against the Law and all this is ut poena ad paucos metus ad omnes perveniat c. Upon an Arâ—â—st the cause 〈◊〉 be shewâ—d 20 The Law so provideth for the preservation of a mans liberty Co. l. 6. 54. 2. 4. in the Countesse of Rutlands Case that no general arrest is déemed legall without shewing the particular cause wherefore he is arrested And therefore the Sheriffe or any other by his authority which makes an arrest of the person of another ought upon the arrest to shew at whose suit out of what Court for what cause he doth it and when the processe is returnable to the intent that if it be upon an execution he may pay the money and so frée his body from imprisonment and if it be upon a mesne processe may either agree with the party or put in baile according to the Law and so make his apparence accordingly c. â—he Coll. of â—ys cannot â—â—mmit 21 An Act of Parliament Co. lib. 8. 120. a. 3. Doctor Bonhams Case that gives power of
forma is material So if a feofment be pleaded by déed and it is traversed absque hoc quod feoffavit modo forma upon this collateral Issue modo forma are so essential that the Iury cannot find a feofment without déed 8 Lord and Tenant by fealty onely and the Lord distraines the Tenant for Rent Litt. §. 484. Modo forma Lord and Tâ—nant the Tenant brings an Action of Trespass against the Lord for his cattle so taken and the Lord pleads that the Tenant holds of him by fealty and certain Rent and for the Rent he distrained c. And the Tenant saith that he holds not of him modo forma as he supposeth and thereupon they are at Issue and it is found by Verdict that he holds of him per fidelitatem tantum In this Case the writ shall abate and yet he held not of the Lord in manner as the Lord had alleadged But the matter of the Issue being found viz that the Tenant holds of him that sufficeth to abate the writ albeit the Lord distraine the Tenant for other services then are due Co. ib. 282. a. 1. 9 If A. be appealed or indicted of Murder Modo forma Murder Manslaughter viz. that he of malice prepensed killed B. A. pleads that he is not guilty modo forma yet the Iury may find the Defendant guilty of man-slaughter without malice prepensed because the killing of B. is the matter and malice prepensed is but a Circumstance Co. ib. a. 2. 10 In Assise of darrien presentment Darrien presentment if the Plaintiffe alleadge the avoydance of the Church by privation and the Iury find the voydance by death the Plaintiffe shall have judgement for the manner of the voydance is not the title of the Plaintiffe but the voydance is the matter c. Co. ibid. a. 3. 11 If a Guardian of an Hospital bring an Assise against the Ordinary he pleadeth Deprivation ab Ordinary as Patron that in his visitation he deprived him as Ordinary whereupon Issue is taken and it is found that he deprived him as Patron yet the Ordinary shall have judgement for the deprivation is the substance of the matter Co. ib. 282. a. 3 12 The Lessée covenants with the Lessor not to cut downe any trées c. And binds himselfe in a bond of 40 pounds for performance of covenants the Lessée cuts downe ten trées Breach of covenant the Lessor bringeth an Action of debt upon the bond and assigneth a breach that the Lessée hath cut downe 20 trées whereupon Issue is joyned and the Iury finds that the Lessée cut down ten yet judgement shall be given for the Plaintiffe For sufficient matter of the Issue is found for the Plaintiffe Litt. §. 485. Co. ibid. 282. a. 4. c. 13 In a writ of Trespass for battery or for goods caried away In actions transitory the place must not be traversed if the Defendant plead not guilty in the manner as the Plaintiffe supposeth and it is found that the Defendant is guilty in another towne or at another day then the Plaintiffe supposeth yet he shall recover For in Actions brought for things transitory the wrong being done in one towne the Plaintiffe may not onely alleadge it in another towne but also in another County and the Iurors upon not guilty pleaded are bound to find for the Plaintiffe Neither can the assault battery taking of goods c. alleadged in another County be traversed without special cause of justification which extendeth to some certain place as if a Constable of a Towne in another County arrest the body of a man that breakeeh the peace there he may traverse the County Howbeit he must not stay there but must say farther and all other places saving in the towne whereof he is Constable So it is also in an Action for taking of goods for in that Case also if the Defendant justifie for damage feasant in another County he may traverse as before But where the cause of the justification is not restrained to a certain place which is so local that it cannot be alleadged in any other towne as in the Cases before alleadged and the like then albeit the Action be brought in a forraigne County yet he must alleadge his justification in the County where the Action is brought As if a man be beaten in the County of Middelsex and he bringeth his Action in the County Buck. the Defendant cannot plead that the Plaintiffe assaulted him in the County of Middelsex c. and traverse the County but he must plead his justification in the County of Buck. for that the cause of his justification is good in any place So it is likewise in Case of Bailement of goods and other Cases for transitory things as for example In an Action upon the Case the Plaintiffe declared for speaking of slanderous words which is transitory and layd the words to be spoken in London the Defendant pleaded a concord for speaking of words in all the Counties of England saving in London and traversed the speaking of the words in London the Plaintiffe in his replication denied the concord whereupon the Defendant demurred and judgement was given for the Plaintiffe for the Court said that if the concord in that Case should not be traversed it would follow that by a new and subtile invention of pleading an ancient principle in Law that for transitory causes of Action the Plaintife might alleadge the same in what place or County he would should be subverted which ought not to be suffered And therefore the Iudges of both Courts allowed a traverse upon a traverse in that Case c. Now the ground that ruleth all these Cases is this because the Law respects more the cause of the Action which is the substance of the suit then the place where the Act was done which is but circumstance c. â—ubstance cerâ—ainely alâ—eadged conâ—yance not 14 That which is alledged by way of conveyance or inducement to the substance of the matter néed not to be so certainely alleadged Co. ib. 303. a. 4. as that which is the substance it selfe And where a matter of Record is the foundation or ground of the suit of the Plaintiffe or of the substance of the plea there it ought to be certainly and truly alleadged otherwise it is where it is but conveyance because that is but circumstance c. â—ea insufficiâ—â— 15 When a Count barre replication Co. l. 8. 133. b. 1. Turners Case c. is defective in respect of omission of some circumstance as time place c. there it may be made good by the plea of the adverse party but if it be insufficient in matter and substance it cannot be salved Co. l. 8. 120. b. D. Bouch. Case â—â—cient pleaâ—â—ngs 16 In the Raignes of E. 2. E. 1. and upwards Co. ib. 303. b. a Co-l 7 25. a in Buts Case Co. ib.
his Court that the Corporation hath jurisdiction to hold Court either by prescription or by patent And it also appeares by the Court in that Court that the Action of Debt was brought for 100 l. without mentioning any obligation and therefore it was to be intended that there was no obligation and then the Executor was not chargeable in an action upon a single contract And in this case albeit the Defendant in his barre acknowledged that the Debt was by obligation yet that shall not make the Count good for when the Count wants circumstance of time or place c. that may be made good by the barre but when the Count Barre Replication or c. want substance this cannot be made good by the plea of either party Co. l. 5 72. a. 1. in St. Iohns Case 39 A Dagge is as well prohibited to be carried about one Dagge the same with Handgun as an Handgun by the Statute of 33 H. 8. 6. albeit a Dagge is not named in that Statute nor was then invented because a Dagge differs not from a Handgun in substance but hath onely some small alteration in form and quality Co. l. 8. 120. b 3 in Doctor Bonhams Case 40 When the Count or Declaration wants time place Pleading or other circumstance it may be good by the barre and the barre by the replication c. as appears by 18 E. 4. 16. b. but when the Count wants substance the barre cannot make it good and so it is also of the barre replication c. and with this accords 6 E. 4. 2. Bon. Case Dier 19. 113. 28 H. 8. 41 An obligation was thus drawn A bond without dare greâ—â— Ad quam quidem solutionem bene fideliter solvend obligo me per praesentes datum c. and saith not Sigillo meo sigillat nor In cujus rei testimonium yet by Shelley and Fitzherbert it is ruled good if it were sealed for that is of substance the other being but circumstances Co. l. 10 124. b. 2. Wingates Case 42 The Dean and Canons of Windsor were incorporate by act of Parliament in 22 E. 4. by this name Name of a Corporation The Dean and Canons of the Kings free Chappel of St. George the Martyr within his Castle of Windsor and in the Raigne of P. and M. they made a Lease of certain lands by this name The Dean and Canons of the King and Queens Frée Chappel of S. George within the Castle of VVindsor And in this case three variances were observed 1 Because it was named the King and Queenes Frée Chappel whereas it should have béen onely named the Kings 2 It ought to have béen S. George the Martyr whereas Martyr was omitted 3 It was said within the Castle whereas it should have béen within the Kings Castle In this case the first onely was adjudged a material exception and of substance but the other two onely matter of circumstance and not material and so the Lease adjudged void for the first Dyer 98. a. 50. 1 Mar. 43 Albeit in the summos of Parliament of 1 Mar. these words supremum caput Ecclesiae Anglicanae Supremum caput Ecclesâ— c. were omitted contrary to the Statutes of 26 and 35 H. 8. yet by the better opinion the summons is good because it was but an Addition or circumstance and not parcel or of the substance of the name of the Quéen This doubt was also moved in the Parliament of 1 El. 2. and upon great deliberation so likewise resolved Dyer 150. 85. 3 4 P. M. 44 The Corporation of Eaton Colledge was erected by H. 6. per nomen praepositi Collegii Regalis Collegii beatae Mariae de Eaton c. A void Leasâ— And in the time of E 6. a Lease was made per nomen Praepositi sociorum Collegii Regalis de Eaton omitting Collegium and Beatae Mariae and adjudged naught c. â—ppeal â—leâ— 45 The Lessée of a Parson brings an ejectione firmae the Defendant pleads that the Parson was deprived the Plaintiffe saith Dier 240. 46. 7 El. that the Parson hath appealed to the Arch-bishop of Canterbury in Curia praerogativa sua de Arcubus and because the Words of the Statute of 24 H. 8. 12. are that the appeale shall be to the Arch-bishop of the Province or c. without limiting any Court in certain the Defendant demurred in Law And it was held by the Iustices that the Words to the Archbishop of Canterbury being Words of substance were sufficient to maintain the Plea and that the other Words being but circumstantial and surplussage should not prejudice the Plaintiffe â—â—nomer 46 The Deane and and Chapter of Carleil being incorporate by the name of the Deane and Chapter Ecclesiae Cathedralis Sanctae individuae Trinitatis Carleil Dier 278. 1. 11 El. made a lease by the name of Decanus Ecclesiae Cathedralis Sanctae Trinitatis in Carliel totum Capitulum de Ecclesia praedicta And by the opinion of six Justices against thrée it was held good notwithstanding that variance because it is not of substance of the name Vide 35 H. 6. 4 5. A Prior sues by the name of Ecclesia Sancti Petri whereas the foundation was Petri Pauli and adjudged not good because of substance Replevin 47 Pope brings a Replevin against Skinner Hob 72. Pope and Skinner who avowes the taking as a Commoner in April 11 Jac. the Plaintiffe in barre saith that one Williams was seised of an house and land c. whereunto he had Common c. and demised the same unto him the 30 day of March in the same 11 yeare to hold from the Feast of the Annunciation next before for a yeare The Avowant traverseth the lease modo forma whereupon issue is taken and the Iury said that Williams made a lease to the Plaintiffe on the 25 day of March for one yeare from thence next insuing And albeit this was not the same lease that the Plaintiffe pleaded for this begins on the day and the other not so soone nor was to take his limitation but from the day exlcuded yet the Court gave judgement for the Plaintife for the substance of the issue was whether or not the Plaintiffe had such a lease from Williams as by force thereof he might Common at the time which appeareth for him in this Case and the modo forma in the rest is not material c. Vide Hob. 76. Parker and Parker 117. Napper and Jasper 133. Moon and Andrews 102 Yet for memory and solemnity substances are to be-exprest under Ceremonies 〈◊〉 actions deâ—ce must be 〈◊〉 1 In all Actions real personal or mixt Co. Inst p. 1. 127. b 3. albeit the Tenant or Defendant appeareth and pleads a sufficient barre yet if he makes not in his plea a lawful defence as in personall actions to say praedictus C. D. defendit vim injuriam
Executors or assignes alien that it shall be lawfull for the Lessor to re-enter and after makes his Wife his Executrix and dies the Feme takes a new Baron who aliens and the lessor makes a new lease before entry In this Case the new lease is not good being made before entry for albeit entry be but in the nature of a ceremony or circumstance yet in such Case and others of like kind it is necessary for the Lessor to make his entry before he can be capable of making a new Lease â—ornment 13 If a Villein purchase a reversion Co. Inst p. 1. 119. b. 2 Lit. §. 179. his Lord may not claime it before attornment be made by the Tenant of the land to the Villein for if he make his claime after the grant and before attornment such claime is void yet attornment is upon the matter but a bare ceremonie â—iâ—e poenae 14 A nomine poenae is not recoverable without an actual demand of the Rent for the non-payment whereof it became forfeited Hob. 133. Howel and Samback 103 Things executed and done more then executorie and to do Vide 40. 51. â—ery in 〈◊〉 without â—y void 1 A livery in view otherwise called a livery in Law is good to convey the Estate to the feoffée c. if he make entry Co. Inst p. 1. 48 b. 3 and so the Estate be executed during his life and the life of the feoffor but if either of them die before entry the livery is void â—ange not â—â—ed void 2 In exchange of Land the parties have no fré-hold in them in déed or Law before they execute the same by entry Co. ib. 15. b. 2. and therefore if one of them die before the exchange be executed by entry the exchange is void for the heir cannot enter and take it as a purchasor because he was named onely to take by way of limitation of estate in course of descent Co. ib. 51. b. 4 3 If a man let lands to another for term of yeares Interest in a Lease for yeaâ—â—â— good without entry c. albeit the Lessor die before the Lessée enter yet he may well enter into the same lands after the Lessors death because in case of a Lease for yeares the estate is executed and the interest of the term doth passe and vest in the Lessée before entry And therefore the death of the Lessor cannot devest that which was vested before Co. ib. 52. b. 4. 4 If the Lessor by his Déed licence Licence to alien good after the Lessors death the Lessée for life or yeares who is restrained by Condition not to alien without licence to alien and the Lessor dieth before the Lessée doth alien yet is his death no countermand of his licence but that he may alien for the licence exempteth the Lessée out of the penalty of the Condition and it was executed on the part of the Lessor as much as might be And so it was resolved M. 3. Jac. in Com. Ba. So likewise if the King licence to alien in Mortmaine and dieth the licence remaineth good notwithstanding the Kings death c. Co. Inst p. 1. 76. b. 3. 5 If one levie a Fine executory as sur grant and render to a man and his heires and he to whom the land is granted and rendred Upon a fine executory no Wardship dieth before execution and his heir being within age entreth In this case he shall not be in Ward For his auncestor at the time of his death was not tenant to the Lord because the Fine wos not executed c. Co. ib. 128. b. 1. 6 Vpon plea in disability of the person by reason of Out-lawry Out-lawry 〈◊〉 perfect befâ—â—â— the return of the Exigent before the Defendant can disable the Plaintiffe the Out-lawry must be perfectly executed and appear upon Record for the judgment after the Quinto exactus given by the Coroners in the County Court is not sufficient but the Writ of Exigent must be returned because before the Return of that Writ it is not perfectly executed nor doth appear upon Record c. Co. ib. 130. a. 4 7 A man in execution in salva custodia shall not be delivered by a protection for then the suit is executed and the Law hath her end c. After execâ—â—â—an no protection Writs of execution admit no protectioâ— Co. ib. 131. a. 3 8 In judicial Writs which are in nature of actions where the party hath day to appear and plead and therefore yet somewhat to doe a protection doth lie as in Writs of Scire facias upon Recoveries Fines Iudgments c. Albeit by the Statute of W. 2. cap. 45. essoignes and other delayes are ousted in Writs of Scire facias yet a protection doth lie in the same so it is in a Quid juris clamat and the like But in Writs of execution as Habere facias seisinam Elegit execution upon a Statute Capias ad satisfaciendum fieri facias and the like no protection can be cast for the Defendant for then the suit is ended Neither hath the Defendant then any farther day in Court and the protection extendeth onely ad placita quaerelas and must be allowed by the Court which cannot be but upon a day of apparance Co. ib. 139. a. 2. 9 In a Quare Impedit if the Plaintiffe be non-suit after apparence In a Quaâ—e Iâ—pedit non-sâ—â—â— or discontin a good barrâ— the Defendant shall make a title and have a Writ to the Bishop And this is peremptory to the Plaintiffe and a good barre in another Quare Impedit And the reason is for that the Defendant had by judgment of the Court a Writ to the Bishop which is a judicial Writ and in the nature of an execution And therefore the Incumbent that cometh in by that Writ shall never be removed which is a flat barre as to that presentation And of this opinion is Littleton in our Books And the same Law and for the same reason it is in case of a discontinuance Co. ib. 139 a. 3 10 In an Attaint if the Plaintiffe after apparence be non-suit In Attainâ— non-suit peremptory it is peremptory but if the processe in the attaint be onely discontinued the Plaintiffe may have another Writ of Attaint because upon the non-suit there is a judgment given but not upon the discontinuance c. Account Nâ—n-suit 11 After an award to accompt the Plaintiffe may be non-suit Co. ib. 139 b. 2 because that is onely an interlocutory award of the Court and no final judgment Recognisance c. executory not binding executed conâ—â—â— 12 If there be two joyntenants of an estate in Fée-simple Co. ib. 184 b. 2. and one of them acknowledgeth a Recognisance or a Statute or suffereth a judgment in an action of Debt c. and dieth before execution had it shall not be executed
R. 3. 1. the 1 of May Dier 57. b. 2. 35 H. 8 makes a lease to one for 20 yeares to begin at Mid-sommer next the feoffées the second of May at the Request of Cestuy que use make a lease of the same Land to the same Lessée for 34 yeares to begin also at Mid-sommer In this Case the acceptance of the last lease is not a surrender of the first but rather a confirmation of the 20 yeares and a new Lease for the 14 yeares for albeit the Lessée had such an Interest which he might grant or forfeit yet in regard the Lessée having not possession his Estate was onely to begin and executorie and not already begun and executed such acceptance could not be a surrender in Law and the rather for that the feoffees had a lawfull and ordinary authority in the Land to make a lease in such Case Dier 67. b. 20. 3 E. 6. 39 For the debt of a Common person upon a Statute after the Inquisition and before the Liberate Statute Staple the same Land may be extended for the Kings debt but it séemes to be otherwise after the Liberate to the Common person for then it is rested in him in nature of a frée-hold Tamen quaere Dier 82. b. 72 7 E. 6. 40 In London upon the attachment of a Debt in a third persons hand albeit the Plaintiffe have judgement against the third person Attachment 〈◊〉 a debt in Lâ—â—don yet before execution served the Plaintiffe may resort to have judgement and Execution against the Defendant being his principal Debtor It is otherwise if the judgement against the third person had béen executed Dier 98. b. 57. 1 Mar. 41 A Fieri facias returnable Quind Pasc was directed to the Shetiffe of Middlesex who returnes Execution quòd cepit bona catalla to the value of part of the debt quòd remanent in custodia sua pro defectu emptorum Error quòd ante return hujus brevis breve de non molestando fuit direct quòd de ulteriore executione supersedeat which writ he also returned annexed to the fieri facias Now this writ de non molestando was awarded in Banco by reason of a writ of Error there brought by the Defendant but the Record was not yet removed because the returne of the writ of Error was Crast Ascent and not before In this Case the Question was whether or no the writ de venditioni exponend should be awarded because the writ of execution was not served nor the propertie of the goods altered notwithstanding the seisure yet at last the writ de venditioni exponend was awarded by Sanders and Browne notwithstanding the supersedeas because as it séemes the writ of Error upon which the supersedeas was founded was but executorie being not then returnable Dier 205. 7. 3 4 El. 42 The Conusor of a Statute hath a Rent-charge Extent and before extent purchaseth parcel of the Land In this Case the Rent is gone and shall not be in Execution But it séemes to be otherwise if the purchase hath béen after the extent of the Rent executed Dier 220. 50. 5 El. 43 A fine was acknowledged by Baron and Feme of the Land of the Feme in the Vacation after Hillary Term by ded potest the Feme being then but 19 yeares of age Fine the writ of Covenant bare teste in Jan. returnable Crast Pur. and the ded potest bare teste thrée dayes after the original and the Quéens silver was entred upon Hillary Term four dayes before the death of the Feme viz. die Venetis in Septinaria Pasch But yet the fine was not engrossed until Wednesday after whereupon the heire of the Feme in Easter Term prayes that the fine should not be delivered to the party nor recorded yet it was notwithstanding the undue practises of the Baron because after the entry of the Quéens silver before the death of the Feme and the engrossing of the fine before Easter Term the fine was perfectly executed 104 Possibility of things â—sibility if â—â—riage 1 If Lands be given to a man and a woman un-married Co. Inst p. 1. 20. b. 4. and to the heires of their two bodies for the apparent possibility of inter-marying they have an Estate taile in them presently So it it also where lands are given to the Husband of A. and the Wife of B. and to the heirs of their bodies for they have also a present Estate taile in them in respect of the possibility Also if a Feme sole do enfeoffe a maried man causa mairimonii prolocuti it is good for the possibility c. â—sâ—bility of â—er 2 If there be Baron and Feme Co. ib. 33 a. 3. and the Feme is above the age of 9 years and under the age of 12 that being the age of consenting to marriage and the Baron of what age so ever die before the Feme attaine the age of 12 yet shall she be endowed in respect of the possibility of consenting at that age which indéed is the consummation of the mariage So if a man take a Wife of the age of 7 yeares and after alien the Land and after the alienation the wife attaineth to the age of 9 yeares and after the husband dieth yet here also the wife shall be endowed for the possibility of being dowable if she attained the age of 9 yeares before the death of the husband for by his death the possibility of Dower is consummate c. â—enants in â—tiall taile â— years old 3 If a man gives land to a man and his Wife and to the heires of their two bodies Co. ib. 28. a. 2. and they live till each of them is an hundred yeares old and have no Issue yet do they continue still Tenants in taile for that the Law in that Case will not sée in them an impossibility of having Children although they be never so old It is otherwise where Land is given to a man and a woman in special taile and woman dies without Issue for there the Law seeth an apparent impossibility that the man should have inheritable Issue by another womon c. 〈◊〉 ex asâ—sâ— by any 〈◊〉 a constant â—it appaâ—â— not good 4 The youngest son and heire apparent cannot endow his wife ex assensu patris Co. ib. 35. b. 2. of lands whereof the Father is seised in fée of the nature of Borough English in respect of the possibility that the Father may have another Son for then the husband is not heire apparent For the same reason it is that Dower ex assensu fratris or consanguinei is not good because albeit he is heire apparent at that time yet for the common possibility that the Brother or Cousin may have Issue and every Issue that he shall so have will exclude the husband from being heire apparent he is no such heire apparent as the Law
extinct and gone for ever A personal thing exiâ— by husband when it is by the act and consent of the party himselfe who hath interest in it But when it is by the Act of Law it is otherwise as the Case is in 6 E. 4. where a man condemned in redisseisin was imprisoned for out-lawry of felony and after pardoned here the execution of the body was for the time that he was the Kings prisoner suspended but after pardon it was revived 116. It reputeth that a man will deal for their own best advantage â—â—â—nesse 1 Vpon this ground it is Co. Inst p. 1. 6. b. 4. that a party cannot be Witnesse in his own Cause for the Law presumeth he will speak for his own most advantage And therefore neither shall the party to an usurious Contract be admitted to be a Witnesse against the Vsurer for in effect he should be Testis in propria causa In Smiths Case 8 Jac. and should avoid his own Bonds and Assurances and discharge himself of the Money borrowed and albeit he commonly raise up an informer to exhibit the Information yet in rei veritate he is the party And herewith in effect agréeth Britton Brit. 134. that he that challengeth a right in the thing in demand cannot be a Witnesse for that he is a party in interest and will advantage himselfe as much as he can â—â—fant exâ—â—ange 2 If an Infant exchange Lands Co. ib. 51. b. 3. and after his full age occupie the Lands taken in exchange the exchange is become perfect for the exchange at first was not void because it amounted to a Livery and also in respect of the recompence but voidable Tenant at sufferance 3 A Writ of Entry ad terminum qui praeteriit Co. ib. 57. b. 3. lieth against the Tenant at sufferance that holdeth over his term but this is rather by admission of the Demandant than for any estate of Frée-hold that is in him for in judgment of Law he hath but a bare Possession So if Tenant pur terme de auter vie continue in Possession after the decease of Cesty que vie or Tenant for years holdeth over his term in this Case the Lessor cannot have an action of Trespasse before Entry but he may have a Writ of Entry if he will thereby admit himself to have a Frée-hold And the Law suffers him so to do because the Law presumes that he will not so admit himself without some hope of advantage that may redound to himself thereby â—â—â—cage 〈◊〉 â—eliefe 4 A Tenant holdeth of his Lord certaine Lands in Soccage to pay yearly a paire of gilt Spurres or five shillings in Money at the Feast of Easter in this Case the Rent is uncertaine Co. ib. 90. b. 4. and the Tenant may pay which of them he will at that Feast and may also pay which of them he will for Reliefe but if he pay it not when he ought Co. ib. 91. a. 4. then may the Lord also distreine for which he will And therefore in such Case if the heir be not presently that is as presently and as conveniently as he may all due circumstances considered after the death of his Ancestor ready upon the Land to pay Reliefe the Lord may distraine for which of them he will and if the Tenant tendred either of them according to the Law and none for the Lord was there ready to receive it yet the Lord may distraine for that which was tendred at his pleasure For in all such Cases the law supposeth that a man will deale for his own best advantage 〈◊〉 charge â—â—â—ity 5 Vpon a Reservation of a Rent upon a Feoffment in fée by Déed intented the Feoffor shall not have a Writ of Annuity Co. ib. 144. â— 2 because the the words of Reservation as reddeudo solvendo faciendo tenendo reservando c. are the words of the Feoffor and not of the Feoffée yet if afterwards the Feoffée accept of the Estate he is thereby bound and is subject to a Writ of Annuity Challenges 6 Vpon this ground also it is that all just Challenges Co. ib. 156. a. 157 c. both to the Array and to the Pols are allowed in Law for which sée the quotation in the margent Frank-marriâ—â—e â—â—â—chpot 7 Where Lands are are given in Frank-marriage Co. ib. 776. a. 4 c. Littl. §. 269 and other lands discend to the other Sister in Fée-simple if the Donées will not do the first act viz. put their Land in Hotchpot the Law presumes they are satisfied and therefore in such Case allowes them no part of the Fée-simple Land discended by Writ of partition or otherwise because non tenent insimula per indiviso Co. ib. 202. b. 2. 8 If Tenant in tail makes a Feoffment in fée upon Condition Discent Entry Remitter and dieth and the issue in tail within age doth enter for the Condition broken in this Case he shall be first in as Tenant in Fée-simple as heir to his father and consequently shall be instantly remitted but if the heir be of full age he shall not be remitted because he might have had his Formedon against the feoffée and the Entry for the Condition is his own Act. Co. ib. 208. b. 4. 9 When an Obligation or Feoffment in Fée is made upon Condition that the feoffor feoffée obligor Feoffment Obligation Condition Act. or a stranger shall do a Sole Act or Labour as to go to Rome Jerusalem c. In such or the like Cases the feoffor feoffée obligor or stranger have time during their lives to do it and cannot be hastened by request for in such Cases the Law gives them credit that they will take the most convenient time for the doing thereof Co. ib 288. b. 3. 10 If in a personal action the Defendant be Quinto exactus Utlawry Forfeiture â— upon the Exigent and maketh default the judgment is Ideo utlagetur per Judicium Coronatorum or in London per Judicium Recordatoris And then upon the Return of the Exigent he is out-lawed Howbeit in this Case the Plaintiff recovers nothing but the King taketh the whole benefit thereof which is the forfeiture of all his Goods for the Law intends that the Defendant will rather appear and answer the Plaintiff c than to forfeit all his Goods and Chattels Debts and Duties to the King by his default and contumacy Co. ib. 303. b. 1. 11 The Plea of every man shall be construed strongly against him that pleadeth it Plea for every man is presumed to make the best of his own Case Co. l. 2. 35. b. 3. in Sir Rowland Heywards Case 12 Vpon this ground also it is Election that when two things are offered to be taken it is in the Election of him that hath interest or power in them to take which of them he pleaseth So
his Office is to determine secundum allegata probata and the duty is to acquaint him with their grievances and with all the Causes of their differences which if they or either of them omit to do the Law presumes it is for their own advantage to conceal them And therefore such Concealment shall not annul the award that is made albeit it be made onely of part Co. l. 8. 120 b. 3. in Doctor Bonhams Case 24 It is presumed that every one will make the best of his own Case And therefore in any suit or action Pleading when the Plaintiff makes Replication Surrender c. whereby it appeares that upon the whole Record the Plaintiff hath no cause of Action he shall never have Iudgment albeit the Barre Rejoynder c. be insufficient in Matter for the Court ought to judge upon the whole Record and will suppose that the Plaintiff hath managed his own Cause as well as he can Co. l. 8 133. a. 4. in Turners Case So in an Action of Debt brought against an Executor he pleads two Recoveries against him in a Court of Record which amount to the whole in his hand but sheweth not that the Corporation had jurisdiction to hold Court either by Prescription or by Patent And it did also appear by the Count in that Court that the Action of Debt was brought for 100 l. without mentioning any Obligation and therefore it was to be intended that there was no Obligation and then the Executor was not chargeable in an action of Debt upon a single Contract And in this Case albeit the Defendant in his Barre acknowledged that the Debt was by Obligation yet that shall not make the Count good which the Law presumes the Plaintiff hath made as full as he could Co. ibid. b. 2. 25 In Debt upon an Obligation with Condition to perform Covenants in an Indenture Pleading the Defendant pleads performance of all the Covenants generally and it appeares to the Court that divers of them are in the Negative or Disjunctive and so the Plea being in the general Affirmative is insufficient yet if the Plaintiff reply and shew a breach of one of the Covenants which by his own shewing is not any breach upon which the Defendant demurres In this Case judgment shall be given against the Plaintiff because upon the whole Record it appeares that the Plaintiff had no Cause of Action and it will be alwayes intended that every one will make the best of his own Cause Co. l. 8. 135. a. in Sir John Nedhams Case 6 In Debt to Administrators upon Administration committed by the Bishop of R. the Defendant pleads Administration committed to himselfe by the Arch-Bishop of Canterbury Administraâ—â—on because the Intestate had bona notabilia the Plaintiff replies that that Administration was repealed In this Case because the Defendant did not shew in his barre that the Intestate had bona notabilia in certaine It shall be intended that he had not bona notabilia in divers Diocesses yet the Administration committed by the B. of C. is not in this case void but onely voidable â—â—ving a 〈◊〉 27 It is not expected that Tenant by Statute or Elegit c. should a déed of the land because they come to the possession thereof by execution of Law and against the will of the terre-tenant Co. lib. â—â—4 b. 4. in Doctor Leyfeilds Case but Tenant by the courtesie ought to shew a release made to his wife for the law presumes he hath both that and her in his power 〈◊〉 Paâ—â—â—â—â— â—â—gestion 28 The suggestion of the party being inserted in Letters Patents raiseth alwayes suspicion Co. l. 10. 110. a. 2. c. in Legats Case because the Law presumes it is inserted to work him some advantage So if the King by his Letters Patents grant White-acre and Black-acre to I. S. with this clause quae quidem praemissa c. à nobis concelata detenta fuerunt c. This in judgement of Law is the suggestion of the Patentée and shall make the grant void So in 19 E. 3. tit Grant 58. the King by his Letters Patents grants licence to appropriate the Advowson of D. to the Prior of C. quae quidem advocatio non tenetur de nobis and in truth the Advowson was held mediately of the King here the licence was held void for the Booke saith the suggestion was falfe vide plus ibid. â—â—son 〈◊〉 Christian 29 If a Parson or Vicar hath a pension out of another Church F. N B. 51. B. and the pension is with-drawne or another parson takes or claimes it in this case the Parson or Vicar that ought to have may sue for it in the Court Christian and he shall not be stopped by a prohibition but shall have consultation Also upon the prescription he may have a writ of Annuity for it at his Election but if he once bring a writ of Annuity for it he shall never after sue for it in the Court Christian 〈◊〉 â—â—change 30 If the Baron exchange land and after die F. N. B. 149. n. if the Feme hath dower of the land taken in exchange she shall not have dower also of the land given in exchange â—â—â—t-charge â—â—â—y 31 Vpon grant of an Annuity out of land for yeares for life F.N.B. 152. a. or in fée which clause of distresse the grantée hath his Election if it be behind whether he will distraine or bring his writ of Annuity for it Howbeit if once he do either he is for ever after concluded for doing the other for the Law supposeth he will make choise of that which tends to his best advantage The time is â—im that 〈◊〉 benefit 32 Where a man is to have benefit upon an act Pl. 16. a. 4. in Fogassaes ca. which is first to be done by himselfe and no time is limited when it shall be done the Law saith that he may do it at his pleasure as if a man make a feofment upon Condition that if he pay the Mortgagée 20 l. that then he shall re-enter here in as much as no day of payment is limited the Mortgager may pay it when he pleaseth for he is to have the benefit viz. the land again So if one grant to another that when he shall take his daughter to wife he will give him 20 l. in this Case because no time is limited for the taking of his daughter to wife he may take her when he will So in Fogassaes Case in the Comentaries in as much as the payment of the subsidie was to be made unto the Collector upon the weying of the woad and a time is limited for the weying the Law referres the time thereof to the will of the Collector â—â—â—antages â—â—lected â—â—â—covin 33 In Wimbish and Tabbois Case in the Comentaries one argument to prove covin in the Feme there was Pl. 55. b. 2. in Vimbish
the Plaintiffe himselfe confesse that they committed the Trespass severally there the writ shall abate and so observe the diverstty betwixt the finding of a Iury and the confession of the party because this is his own Act but that the Act of the Iurors F. N. B. 11. c. 62 If there be Lord and Tenant Distresse for more Rent then is due justifiable and the Tenant payes the Lord a greater Rent then is due to him and that voluntarily without cohersion of distresse here the Lord having gained seisin of so much Rent may distraine the Tenant for such surplussage of Rent and the Tenant cannot avoid the Lord in his avowry because of the seisin which the Lord had of so much Rent Howbeit he may have remedy by the writ of Ne injuste vepes grounded upon the Statute of Magna Carta cap. 10. but before that Statute he had no remedy as it séemes 〈◊〉 none by â—â—ance 63 In a writ of Entry sur disseisin F.N.B. 21. c if the original writ wants these words Quam clamat esse Jus haereditatem suam it is error yet if the Tenant admit the writ and pleads to the action and loseth he shall not assigne this default in the writ for error because he hath admitted the writ by his plea So likewise in a writ of detinue of Charters if the Plaintife in his Count declare not the certainty of the land it is a just cause of error yet if the defendant admit the Count good and pleads to the Action and loseth by judgment in a writ of error sued by him he shall not Assigne this default in the Count for error because he hath admitted it for good by his Plea Tamen quaere â—esentment â— an Advowâ— 64 A man may have an Assise of darrein presentment F. N. B. 13. q. l. albeit neither he nor his Ancestors presented to the last avoidance As if Tenant for life or years or in Dower or by the courtesie suffer an usurpation to the Church c. and die he in reversion that is heire to the Ancestor that last presented shall have an Assise of darrein presentment if he be disturbed But if a man presents and after grants the Advowson for life to another who suffers an usurpation or two or thrée usurpations and dies In this Case at the next avoidance he in the reversion shall not have an Assise of darrein presentment if he be disturbed to present because the Lessée was in by his own Act Howbeit his heire may have it but that is by the provision of West 2. cap. 5. So likewise if a man present to an Advowson and after let if for term of years and then the Church becomes void and the Tenant for yeares presents and after the Incumbent dies and the Lessor presents and is disturbed in this Case it séemes the Lessor shall not have an Assise of darrein presentment causa quà suprà And the termer for years presented in his own right â—â—â—ative 65 If a man hath a Chappel or Chantery Donative F.N.B. 35. e. and he presents once to the Ordinary his Clerke to that Chappel or Chantery In this Case he shall never make Collation afterwards but he ought to present to the Bishop and if he present not within six moneths the Ordinary shall have advantage of the lapss 〈◊〉 utrum 66 If a Parson receive Rent or fealty of the Tenant for the land aliened by his Predecessor he shall not have a juris utrum during his life F.N.B. 50. e. but his Successor may have it Recognisance â—â—charged 67 If the Recognisor enfeoffe a stranger of one parcel of the land charged and likewise enfeoffe the Recognisée of another parcel thereof F.N.B. 104. n. 105. e. and afterwards the Recognisée sues execution against the Recognisor and the other feoffée In this Case the feoffée shall have an Audita quaerela against the Recognisée and thereby discharge his land because the Recognisée hath discharged his parcel of the land by his owne Act. â— warrantia â—â— and â—â—cher 68 If a man be impleaded in any Action F.N.B. 134. i. in which he may vouch the party against whom he hath a warranty in such Case he shall not have a warrantia cartae against him but he ought to vouch him to warranty and if he vouch him not in such Action he shall never after have any action of warrantia cartae against him to maintain his title F. N B. 142. k. 69 If there Lord and Tenant and the Tenant make feofment by collusion and the Lord accept the services of the feoffée In this Case Wardship Collusion the Lord shall not afterwards have the wardship of the Tenants heir nor averre the Collusion F. N. B. 144. 0. 70 If a man be intitled to have a writ of Escheate Acceptance barres Escheate and he accepts the homage of the Tenant in this Case he shall not have a writ of Escheate against him afterwards because he hath accepted him for his Tenant So also it séemes reasonable if he accept fealty of him that in such Case also he shall not have a writ of Escheate Howbeit it is not so of Rent because the former are solemne services which the law respects more then Rent Vide suprà Max. 91. Pl. 19. Pl. Co. 66. a. 2. in Dive and Maninghams Case 71 When a man demurres he is to do it generally Pleading anâ— special demuâ— and not upon any special matter for otherwise he is tied up to that special matter and cannot take advantage of any other error or default in the declaration or other pleading And therefore in Dive and Maninghams Case in the Commentaries where the Defendant concludes unde ex quo scriptum praedictum non fuit factum sub tale conditione quali per Statutum fieri deberet petit judicium Here this special conclusion hath so straightned the Defendant that if the obligation were void for any other cause then what is mentioned in the conclusion the Defendant could not have benefit thereof by Order of Law So also in 34 H. 6. which is there also quoted where one deviseth a reversion of a Tenant for life to another in fée per nomen omnium terrarum tenementorum quae in manibus le Devisor ad tunc fuerunt and the heire of the Devisée brings an Action of waste reciting in his count the special grant ut suprà And the Defendant saith ex quo pro narrationem praedictam apparet that the Devisor did not devise the reversion but by the words ut suprà and the Tenant for life then held the tenements and that nothing of the reversion by the general words passeth to the Devisée and so he demands judgement c. And thereupon the Plaintiffe also demurred And there it was held that in as much as the Defendant had demurred in a point in special and hath rehersed the
intire yet it was conceived by many that it is good for the moity because the party to the Condition hath dispensed with the Condition by his acceptance of the Estate Dier 140. Pl. 43. 3 4 P. M. 80 If Lessée for years by indenture accept of another lease though it be but by parol to begin immediately A surrender Law this is a surrender in Law of his first lease because by his acceptance of the last lease he admits himselfe out of possession and that the Lessor hath lawfull power to demise him a new one Vide Dier 279. 11. Dier 144. 57. c. 3 4 P. M. 81 The Statutes of 27 E. 3. 8. and 28 E. 3. 13. of the Staple were made for the benefit and in favorem alienigenarum for trials per medietatem linguae yet if an Alien be Plaintiffe Trial per 〈◊〉 dietatem liâ—gua and omit the advantage of requesting it whereupon a general venire facias issueth out and is returned some say that thereby he hath slipt his time and that the Iudges are not bound ex officio to award any such special writ by reason of the said Statute for it appeareth not unto them by the Record quòd una pars sit alienigena and by the Common Law the trial was by all English Howbeit Treason shall not be tried per medietatem linguae Dier 158. Pl. 32. 4 5 P. M. 82 If a Guest come to a Common Inne to lodge there A Guest robbed and the Host saith that his house is already full of Guests and is not willing to admit him and the Guest saith that he will make shift amongst the other Guests and is there robbed of his goods in such Case the host shall not be charged therewith because he refused him but the Guest shall beare the losse himselfe Vide Dier 266 9. Dier 164. 57. 4 5 P. M. 83 If a man hath goods to value of 100 l. and is in Debt 20 l. and by his will gives his wife the moity of all his goods Goods bequeathed to be equally divided betwixt her and his Executors and then he makes Executors and dies in this Case if the Executors discharge the Debt to the Creditor by sale or other satisfaction out of the goods themselves the Feme shall have onely the moity of the residue viz. 40 l. but if they pay the Debt by their owne money the Feme shall have the moity of all the goods viz. to the value of 50 l. so as the Executors have assets Dier 200. 62. 3 Eliz. 84 The King demiseth a Messuage rendring Rent Surrender and afterwards the lessée takes a patent of the office of the kéeping of the said house this séemes to be a surrender in law of the lease Dier 226. 40. 6 Eliz. 85 In an Ejectione firmae against two Ejectione â—â—mae one appeares and pleads the general issue and processe is continued against the other who also appeares and pleads entry of the Plaintiffe into the land since the last continuance in abatement of the writ whereupon the Plaintiffe demurres afterwards the issue above was found for the Plaintiffe yet he shall not have judgment for by the demurrer he hath confessed the entry which abates his own writ Dier 261. 28. 9 Eliz. 86 The rasing of a lease in any place though not material by the lessée himselfe makes the lease void Rasing Hob. 119. Wood and Budden 87 In Trespass in 8 acres of Pasture in Tollard Royal Trespas the Defendant pleads that W. E. of Salisbury was seised of Cranborne Chase And so prescribed in liberty of Chase and that the said Chase did extend it selfe as well in and thorough the said 8 acres as the said Towne of Tollard Royal and â—ustifies the Trespass for use of the chase The Plaintiffe maintains his declaration and traverseth that the Chase extends not it selfe as well to the 8 Acres as to the whole Towne And this issue being found for the Plaintiffe it was moved in arrest of judgment that this issue and Verdict were faulty because if the Chase did extend to the 8 Acres onely it was enough for the Defendant and therefore the finding of the Iury that it did not extend as well to the whole Towne as to the 8 Acres did not conclude against the Defendants right in the 8 Acres which was onely in question But it was answered by the Court that there was no fault in the issue much lesse in the Verdict which was according to the issue but the fault was in the Defendants plea who takes the exception for he put in his plea more thou he néeded viz. the whole Towne which being to his owne dis-advantage and to the advantage of the Plaintiffe there was no reason for the Plaintiffe to demurre upon it but rather to admit as he did and so to put it in issue And so judgement was given for the Plaintiffe 118 When several remedies are given the party to whom the Law giveth them hath thereby also election given him to take which he will â— writ of anâ—â—y or â—lâ—â—se 1 If a man grant by his déed a Rent-charge to another Litt. §. 219. Co. Inst p. 1. 145. a. 1. and the Rent is arrere the grantée may choose whether he will sue a writ of Annuity or distraine for the Rent arrere but in this Case he shall but choose once for if he recover in a writ of Annuity he shall never after distraine or if the distrainâ— and avow in Court of Record he shall never after bring a writ of Annuity because an avowry in a Court of Record being in nature of an Action Co. ib. 145. b. 4. is a determination of his election before any judgment given Electio semel facta placitum testatum non patitur regressum Quod semel placuit in electionibus amplius displicere non potest â—ction of â—â—at or 〈◊〉 So if a Rent-charge be granted to A. and B. and their heires Co. ib. 146. a. 1 A. distraineth the Beasts of the grantor who sueth a replevin A. avoweth for himselfe and maketh conusance for B. A. dieth and B. surviveth Here B. shall not have a writ of Annuity for in that Case the Election and avowry for the Rent of A. barâ—eth B. of his election to make it an Annuity albeit he assented not to the avowry And here is a diversity to be observed betwéen the Case above-said where the grantée makes it either real or personal at his Election real when he distraines or personal when he brings his writ of Annuity and where a man may have Election to have several remedies for a thing that is méerely personal or méerely real from the beginning As if a man may have an Action of account or an Action of Debt at his pleasure and he bringeth an Action of account and appeare to it and after is non-suit yet may he have an Action
Co. ib. 4. 4 At the Common Law if one be slaine in a Towne by day For an esâ—â— no amerciâ—ment viz. so long as there is full day light and he that hath slain him escape the Towne where the Felony was committed shall be amercied for the escape And so it is held in 21 E. 3. Tit. Corone 238. Dum quis Felonicè occisus fuit per diem nisi felo captus fuit tota Villata illa oneretur and with this agrées 3 E. 3. But if such a Murder or Homicide be committed in the night the Towne shall not be a amercied by the Common Law because no laches or neglect can be attributed to them Vide plus ibid. When things are fit to be straightned to a certaine time it esteemeth according to the nature of the things 129 Sometimes a whole day sufficient â—ods last in 〈◊〉 1 Where goods are lost in warre Fich 38. and recovered from the enemy by another of the Kings subjects the owner shall have them again if he make fresh suit before the Sun-set otherwise not 130 Sometimes a whole yeare â—â— protection â—â—re a yeare 1 No protection either profecturae or moraturae shall endure longer Co. Inst p. 1. 130. b. 3. 254. b. 4. then a yeare and a day next after the Teste or date of it and so it is also of an Essoine de service le Roy If a protection beare date 7 die Januarii and have allowance pro uno anno the re-summons re-attachment or re-garnishment may be sued 8 Januarii the next year howbeit Britton fol. 280 282 283. treating of an Estoine beyond the Grecian-sea in a Pilgrimage c. saith thus Ascun gent ne quident se purchasent nous letters de protection patents durable a 1 an ou 2 ou 3 ans Jalumeyus font attorneys generals ausi par nous letters patents Et ceux font bien sagement car nul grand Seignior ne Chevaler de nostre Realme ne droit prender chimin sans nostre conge car issuit poet le Realme remainer disgarnae de fort gente â—â—re and a â—y in many â—â—es 2 The Law in many Cases hath limited a yeare and a day to be a legal and convenient time for many purposes Co. ib. 254. b. 3 Co. l. 5. 107. b. 4. Sir Henry Constables Case Co. l. 8. 100. a. F.N.B. 79. a. As at the Common Law upon a fine or final judgment and execution in a writ of right the party grieved had a yeare and a day to make his claime So the Wife or heire hath a yeare and a day to bring an appeale of death If a Villain remained a yeare and a day in ancient demesne he was priviledged If a man be wounded poysoned or c. and dieth thereof within the yeare and the day it is felony By the ancient Law if the Feoffée of a disseisor had continued a yeare and a day the entry of the disseisée for his negligence had béen taken away After judgment given in a real Action the Plaintiffe within the yeare and the day may have a Habere facias seisinam and in an Action of Debt c. a Capias fieri facias or a levari facias And in many other Cases But this time of a yeare and a day in Case of continual claime is since altered by the Statute of 32 H. 8. 33. â—ecke 3 By the Statute of West 1. cap. 4. it is provided that if a man Co. l. 5. 107. b. 3 in Sir Henry Const Case Dog or Cat escape alive out of the ship nothing which was therein shall be adjudged wrecke but that the things shall be kept safe by the view of the Sheriffe Coroner or other Bailiffe of the King c. So as if any come in and prove that they are his Lords or perished in his custody they shall be rendred unto him without delay and this is but a declaration of the Common Law for Bracton who wrote before this Statute viz. Tempore H. 3. delivers the same in substance and if the right owner die his Executors or Administrators may make the like proofe wihtin the same time So it is also of Flotfan Jetsan and Lagan And if any living creature come a shore or the goods may be known by the marke or cocket if seaseth Co. ib. b. 4. 4 In many Cases concerning time Estray des the Law estéemes a yeare and a day a convenient time as in Case of an Estray if the owner proclamations being made do not claime it within a yeare and a day it is forfeit the like time is also given in Case of descent after entry or claime but in Case of wrecke the yeare and day shall be accounted from the taking or seisure of the goods as wrecke for albeit the property is in Law vested in the Owner before seisure yet until he seise and take them into his actual possession it is not known who claimes the wrecke nor to whom the Owner shall resort to make his claime and to manifest his proofes And if the Owner bring his Action for them within the yeare and day it sufficeth albeit the Verdict be not given for the recovery of them until afterwards F. N. B. 121. p. 5 If a man be imprisoned upon a Capias pro fine at the Kings suit within a yeare after the judgment past against him at the suit of the party Copias pro 〈◊〉 and the Goaler suffer him to escape the party shall have an Action of Debt against the Gâ—oler for his damages recovered by the judgment although he was not imprisoned at his suit but if he be taken after the yeare the party is put to his scire facias c. Vide infrà 189. 41. 131 Sometimes the last part of the last day Co Inst p. 1. 202. a. 2. Co l. 5. 114 b. 2 in Wades case Co. Inst p. 1. 206. b. 3. 1 The time of demand of a Rent is such a convenient time before the Sun setting of the last day of payment The time of demand and payment of Rent as that the money may be numbred and received Howbeit if the tender be made to him that is to receive it upon any part of the Land at any time of the last day of payment and he refuseth the Condition is saved for that time for by the expresse reservation the money is to be payd on the day indefinitely and convenient time before the last instant is the uttermost time appointed by Law to the intent that then both parties should méet together the one to demand and receive and the other to pay it so as the one should not prevent the other Vide Dier 130. b. 70. 222. 22. Co. Inst 202. Pl. a. 3. Comm. 70. b. 1. in Kedwellies Case against Brand. 2 If the reservation of the Rent be as Littl. putteth the Case § 325. at certain Feasts The like
a Son and a Daughter by one venter and a Son by another the eldest Son entreth and dyeth and the land descends to the Sister in this case the Warranty descendeth on the Son and he may be vouched as heire and the Sister as heire of the land In which and the other case of Burrow English the Sonne and heire at Law having nothing by descent the whole losse of the Recovery lyeth upon the heires of the Land albeit they be no heires to the Warranty Warrants 25. If a man doe warrant Land to another without this word Heires his heires shall not vouch and regularly Co. Inst pars 1. 384. b. 4. if hee warrant Land to a man and his heires without naming Assignes his assignee shall not vouch Howbeit if the Father be enfeoffed with Warranty to him and his heires and the Father enfeoffeth his eldest Sonne with warranty and dyeth In this case albeit the Warranty between the Father and the Son is by act in Law extinct yet the Law giveth to the Son advantage of the Warranty made to the Father because otherwise he should be without remedy occasioned by an act of Law which can do no wrong 26. It is against a Rule in Law Co. ibid. 390. a. 1. that a man should vouch himselfe Vide R. 54. Ex. 14. And yet if a man be enfeoffed with warranty to him and his heires of greene acre â—aâ—ranty and is also seised in fee of black acre in Burrow English and having two Sonnes enfeoffeth his eldest Sonne of greene acre in this case if the eldest Sonne be impleaded hee shall vouch himselfe and his younger Brother being heire in Burrow English for otherwise the eldest Sonne should be without remedy because the act in Law Viz. The descent hath determined the Warranty betweene the Father and the eldest Sonne â—arranty by â—â—fe and husbâ—â—d c. 27. Baron and Feme being one person in Law Co. ibid. 290. a. 3. 1. 103. b. 9. Dyer 2. p Mar. 315. b. 1. 15. Eliz. it is against the Rule of Law that they should vouch one another neither shall a Warranty be made use of while it is in suspence And yet if a man enfeoffeth a woman with Warranty and they intermarry and are impleaded and upon default of the Husband the Feme is received in this case the Feme shall vouch her Husband c. notwithstanding the Warranty was put in suspence by the intermarriage So likewise on the other side if a woman enfeoff a man with Warranty and they intermarry and are impleaded in this case the Husband shall vouch himselfe and his Wife by force of the said Warranty Albeit it be against another Rule of Law Viz. 54. before cited that a man should doe an act to himselfe And all this least the Husband or Wife in their severall cases should be without remedy Warranty Câ—parcener 28. Regularly Co. ibid. 174. a. 4. the Feoffee of one Coparcener shall not have ayde of the other Coparcener to deraigne a Warranty paramount And yet if there be two Coparceners and they make partition and the one of them enfeoffs her Sonne and heire apparent and dyeth and the Son is impleaded In this case albeit he be in by the Feoffment of his Mother yet shall he pray in aide of the other Coparcener to have the Warranty And the reason of the granting of this ayde is-for that the warranty between the Mother and the Sonne is by Law annulled and therefore least the Sonne should be prejudiced by Law which can do no wrong and so be left without remedy the Law giveth him albeit he is in by Feoffment to pray in ayde of the other coparcener to deraigne the warranty paramount Co. l. 3. 12. a. 3. in Sir Wil. Harberts case 29. Debt against the Heire In Debt against the heire upon an obligation made by the Ancestor the creditor could not at the common Law have had execution against any part of the Land whereof the debtor was seised in the life of the debtor himselfe but after his decease he might have had all the land descended upon the heire in execution untill he should be satisfied the debt because the common law giving action of debt against the heire if the debtor should not have had execution of the Land against the heire he should not have had any fruit of his action and so should have been left without remedy for the goods and chattells of the debtor did belong to his Executors or Administrators so as if land should not have been lyable to a debt of a common person at the common Law the creditor had been without remedy and yet the common phrase is Lands pay no debts Co. l. 4. 30. b. 3. in Shaw and Thompsons case 30. Dower Copy-hold In a Court Baron the damages to be recovered ought not to exceed forty shillings yet in a Copyhold Mannor where the custome is that a Feme shall be endowed if shee recover Dower with damages in the Lords Court albeit those damages exceed forty shillings yet are they recoverable in the same Court for otherwise shee should be without remedy because they are not recoverable by the common Law but onely in the Court of the Lord by Levari facias Co. l. 5. 88. a. 3. in Garnors case 31. At the common Law No capias in debt at the C. Law if a man had judgement in an action of debt and after judgement outlawed the Defendant in this case the Plaintiff was not at the end of his suit as to any processe to be further sued by himselfe for he could not have a Scire facias nor any other processe upon the Iudgement but was put to his new Originall as it is agreed in 13 H. 4. 1. a. 21 E. 3. 55. and 20 E. 3. Nonability 8. And albeit before the Statute of 25 E. 3. ca. Capias did not lye in debt nor the body of the Defendant before that Statute was subject to execution for debt yet in these cases if the Defendant be taken by Capias ut lagatum at the Kings suit no Laches being in the Plaintiff in continuance of his processe he shall be in execution for the Plaintiff if he will for albeit the property of all the Defendants goods and profits of his Lands are by the Outlawry vested in the King yet rather then the Plaintiff should be without remedy he shall hold him in execution for his debt and for that reason he shall in such case participate of the benefit as well as the King Co. l. 6. 41. b. 1. in Sir Anthony Mildmays case Co. l. 7. 39. b. in Lillingstons case 32. If a man by Deed grant a rent to another for his life Rent sued for by Executors provided that he shall not charge his person in this case if the rent be arreare and the grantee dye his Executors shall charge the person of the grantor
Action Also after the escape if the Capias ad satisfaciendum be not returned and filed it may be renued against the Prisoner Co. l. 3. 64. a. 4. Pennants case 22. A man leases his Land Acceptance of rent no confirmation upon condition that the Lessee shall not assigne any part thereof the condition is broken and the Lessor before notice of the assignment accepts the rent due after such assignment In this case the condition being collaterall the breaking thereof may be so secretly contrived that it is not possible for the Lessor to come to the knowledge thereof and therefore notice in this case is materiall and issuable for otherwise the Lessee should take advantage of his owne fraud It is otherwise if a Lease be made with condition of re-entry upon non-payment of the rent for in such case both parties may take notice thereof by the Indenture and therefore by acceptance of the rent afterwards the Lessor dispenseth with the Condition and confirmes the Lease Co. l 3. 76. b. 2. Fermors case 23. A. possessed of divers parcells of Land within the Mannor of S. for years at will and by copy and also of others there in fee Fine no barâ— to the Lord. demiseth the whole to B. for life and thereupon levies a Fine to B. c. of so many acres as amount to the whole Land continues possession and payes the rents to the Lord In this case albeit five yeares passe yet the Lord is not barred for it is unreasonable to give the Lessee benefit in this case of the Lessors non-claime when the tort and covin of the Lessee is the cause of his non-claime for a man shall not take advantage of his owne covin or wrong Co. l. 4. 82. a. 4. Sir Anthony Corbeâ—s case 24. A. deviseth his Land to B. till eight hundred pounds be raised for the preferment of his Daughters and dyes Devise to raise money C. his heire conceales the Will enters and dyes In this case B. shall have allowance for the time that the Will was concealed and shall hold the Land so much the longer according to the time that the Will was so concealed untill the eight hundred pounds may be raised for it is against reason that the heire should enter upon the Land so much the sooner because his concealment of the will was a wrong and then he should take advantage of his own wrong Waste in a Colemine 25. A. demiseth a Close to B. wherein there is a Colemine un-opened Co. l. 5. 12. b. 3. in Sanders case B. opens the Mine and assignes his terme to C. except all Mines C. digs Coles out of the Mine and A. brings an Action of waste against C. in this A. shall recover locum vastarum and the exception shall not excuse it for the opening of the Mine by B. was a tort and that being committed if B. should excuse or avoid it by the exception he should thereby take advantage of his own wrong 26. If A. grants to B. one hundred cords of wood to be cut downe and taken by the assignment of A. If A. in convenient time after request by B. do not assigne them B. may take them himselfe without any assignment Co. l. 24. b. 4. in Sir Thomas Palmers case for the Grantor in such case by his own act or default shall not derogate from his grant nor take advantage by such his neglect of non-assignment there is the same Law of Estovers c. to be assigned by the Bayliff of a Mannor c. Executor de son tort 27. An Executor of his own wrong shall not retaine goods in his own hands to satisfie his proper debt Co. l. 5. 30. b. 3. in Coulters case for then he should take advantage of his own wrong which the Law will not permit Age not allowed 28. Regularly in all reall actions at the Common Law Co. l. 6. 4. b. 3. in Markals case if the Tenant be within age and in by descent he shall have his age Howbeit if the Action be founded upon his owne wrong as in Cessavit upon his cesser in such case he shall not have his age For then he should take advantage of his own wrong After Judgement the bond not valid 29. A. hath Iudgement in an Action of debt upon an Obligation Co. l. 6 45. b. 2. in Higgens case the Defendant brings a Writ of Error and hanging the Writ of Error the Plaintiff brings a new Action of debt upon the same Obligation but it was adjudged he could not for untill the Iudgment be reversed by Error the Obligation remaines quasht and if there be Error in the proceeding that is the Plaintiffs fault and he shall not take advantage of his own tort or default Release to a Joynt-tenant 30. A. and B. are Ioynt-tenants for life Co. l. 6. 78. b. The Lord of Abergavenies case and Iudgement is had against A. in debt who releaseth to B. and B. dyes In this case albeit the terme is expired so as the Reversioner may enter yet the Land shall stand charged with the Iudgement during the life of A. for otherwise A. should take advantage of his own Act and thereby avoid the debt and Iudgment of the Creditor who is a stranger to the release Action upon the case 31. A. recovers against B. in the Common Pleas and dyes Co. l. 7. 4. b. 2. in Bulwers case C. upon the Iudgment in the name of H. outlawes B. in the Hustings of London die lunae proximum post festum Simonis Judae and thereupon P. is taken by a Capias Utlagatum in Norfolke and there imprisoned whereupon B. brings an Action upon the case against C. Quia maliciose deceptive machinatus est c. And in this case it was objected that the Capias Utlagatum was erronious because the Outlawry was therein recited to be proximum ante festum c. but that exception was not allowed because the error in the Writ which the Defendant C. had tortiously pursued shall give no advantage to himselfe but in as much as B. the Plaintiff was imprisoned and molested thereby he had thereupon good cause of Action The heire not estopt 32. Where Lands were conveyed to Baron and Feme Co. l. 8. 53. b. 3. in Sims his case 18. E. 3. fo 9. and to the heires of the Baron and the Baron gives them in tail the Baron dyes the Feme recovers the Land against the Donee by a writ of Cui in vita supposing that she had the Land to her and her heires in fee the Feme after the Recovery enfeoffs another and dyes the Donee in tail dyes without issue the issue of Baron and Feme brings a Formedon in Reverter against the Feoffee of the Feme And in this case albeit the issue was heire to the Feme and thereby estopt by the Recovery in the Cui in
entring of it upon the Writ of Covenant the Mannor was omitted and thereupon Error was brought but after that albeit the transcript of the Fine was removed into the Kings B. the Iudges of the Common Place amended the Record because it appeared to them that the Kings-Silver was paid for the Mannor and whereas the Writ of Covenant was Dede meipso for Teste meipso they amended that also and certified it into the K. B. upon Diminution and it was allowed for it was against reason that the Misprision of the Officer or Clerk should prejudice the Conusee when it hapned not by any default or neglect in him Vide Dyer 225. 34. Niâ—i Prius 14. At a Nifi prius the Iury after departure come againe and said Dyer 218. 4. 5 Eliz. that they were all agreed save one who had eaten and drunk thereupon they were re-manded at the request of the Plaintiff and after gave Verdict for him and this was held good Howbeit day was given in Bank to assesse a Fine upon the said Iuror and the Fine was assessed at twenty pounds but the Plaintiff had Iudgment Execution 15. Dyer 244. 61. 8 Eliz. The Solicitor of the Plaintiff and the Sheriff conspire to arrest one condemned in debt and after procure a Capias ad satisfaciendum and the Prisoner being brought into the Court upon the returne of the Writ had the matter examined and it was found ut supra yet because the Plaintiff was not particeps criminis he remained still in execution and the Sheriff and Solicitor were amercied viz. the Sheriff at ten pounds and the Solicitor at five pounds 151. It driveth not a man to shew take notice of or do that which by intendment he knoweth not or should or cannot do Men in one County take no notice of things done in another 1. Because the Inhabitants of one County do not accampany together with men of another County at County Courts Turnes Leetes Co. Inst pars 50. a. 1. and othor Courts therefore in Iudgement of Law they shall take no notice of a Livery in another County to passe Lands in their owne County Waste 2. If waste be done Sparsim here and there in Woods the whole Wood shall be recovered Co. ibid. 54. a. 4. So likewise in Houses so many whole Roomes shall be recovered wherein the Waste is done for it would be impossible or at least inconvenient for the Plaintiff to recover onely part of the Wood or part of the Roomes of the Houses because in such case he could not be able conveniently to make any use of them Protection cast 3. Co. ibid. 131. a. 4. A protection may be cast either by a stranger or by the party himselfe for an Infant Feme covert Monke or any other may cast a protection for the Tenant or Defendant and this difference there is when a stranger casteth it and when the Tenant or Defendant casteth it himselfe for the Defendant or Tenant casting it he must shew cause wherefore he ought to take advantage of the protection but a stranger need not know the cause save onely that the Tenant or Defendant is thereby protected because it is presumed the stranger may not know the cause Co. ibid. 157. a. 2. Dy. 231. Challenge 4. He that challengeth for the Hundred must shew in what Hundred it is and not drive the other party to shew it Not to shew writings 5. If Land be morgaged upon Condition Co. ibid. 226. a. 3. and the Morgagee letteth the Lands for years reserving a rent the Condition is performed the Morgagor re-enters in an Action of Debt brought for the rent the Lessee shall plead the Condition and Re-entry without shewing forth any Deed So in an Assize the Tenant pleads a Feoffment of the Ancestor of the Plaintiff unto him c. the Plaintiff saith That the Feoffment was upon Condition c. and that the Condition was broken and pleads a Re-entry and that the Tenant entred and took away the Chest in which the Deed was and yet detaineth the same In this case the Plaintiff shall not be enforced to shew the Deed. Wager 6. Wheresoever a man is charged as Executor or Administrator Co. ibid. 295. a. 4. he shall not wage his Law for no man shall wage his Law of another mans Deed because the Law presumes he is not acquainted therewith It is otherwise of a Successor to an Abbot for that the House never dyes Acceptance of rent no confirmation 7. P. Leases on Condition the Lessee shall not alien any part Co l. 3. 64. a. 4. in Pennants case the Condition is broken the Lessor before notice accepts the Rent due after This acceptance is no confirmation of the Lease because the Assignment may be so secret that the Lessor cannot know it It is otherwise where a Lease is made rendring rent at a certaine day with clause of Re-entry upon non-payment of the Rent in this case if the Lessor hath advantage of Re-entry upon non-payment of the Rent at the day acceptance of the Rent after confirmes the Lease because the Lessor in such case might know the day and time of payment of the rent Certaine quantities of water not required 8. Co. l. 4. 88. b. 4. in Luttrells case In an Action upon the case for diverting a streame of water from a Mill the Plaintiff may alleadge the diverting of a great quantity of water without shewing how much in certaine for it is impossible to shew how much water in certaine runs by the Mill and the quantity of water is not materiall Co. l. 4. 27. b. 4. in Hubbard and Hamonds case 9. Where a Copy-holder payes a certaine Fine Copy-hold Fines he ought to pay it at the Court upon his admittance but where the Fine is uncertaine the Copy-holder is not bound to pay it presently because he knoweth not what Fine the Lord will assesse nemo tenetur divinare And because he cannot then provide any certaine summe he shall have a convenient time to pay it in case where the Lord limits no certaine time for the payment thereof Co. l 5. 101. a. 2. in Penrud docks case 10. Nusance Quod permiâ—tat A. raiseth an house to the nusance of the curtilage of B. in this case if A. alien his house and B. his curtilage the Feoffee of B. shall not have a Quod permittat against the Feoffee of A. before notice given to the Feoffee of A. to abate the nusance because he was a stranger to it and by consequence might be ignorant thereof Howbeit B. might have brought it against A. without notice for that A. was the Actor of the nusance Co. l. 5. 113. b. 1. in Mallories case 11. Notice requisite to take advantage of a Condition If the Lessor in the absence of the Lessee enter and make Feoffment and the Lessee re-enter albeit
was uncertainly alledged that made the Indictment insufficient as to all Co. l. 4. 74. a. 4. in Palmers case 41. An Inquisition was thus returned Inquisition insufficient that the Queens Debtor was possest of a certaine Terme Pro termino quorundam annorum adhuc venturo and it was adjudged insuffient for a Terme cannot be extended without shewing the commencement and certainty of the Terme to the end that the Debt being satisfied the party may have the terme againe if any part thereof shall remain which ought to appeare and thereupon the party may have remedy to remove the hands of the Queen or of any other person and so it was adjudged M. 32. 33. Eliz. In scaccario Co. l. 4. 110. b. 4. Adams and Lamberts case ib. 110. b. 2 in the same case see there also 113. a. Sir Barth Reads case 42. If Land of the yearly value of 20 l. per ann A charitable and a superstitious use be given upon condition to fine a Preist to pray for Souls and that the Preist shall have yearly 10 l. thereof for his Salary and shall distribute other ten pounds to certain poor people in this case by the Statute of 1 E. 6. 14. the King shall have but the 10 l. limited to the Priest and not the Land howbeit if the same Land were given to finde the Priest and for the maintenance of 20 poor men in this case the King shall have all the Land albeit the Preist hath 10 l. thereof and the poor men the other 10 l. And the reason of this diversity is because in the first case there was a good use separate and distinct in certain from the superstitious use but in the other case it was left altogether uncertaine how much the Priest and how much the poor men should have and therefore in such case the King shall have all Co. l. 4. 115. b. 3. Turners case in Ad. and Lamb. case 43. A man seised of certaine Houses of the yearely value of 4 l. 6 s. 8 d. devised them upon Condition to finde an Obit The like spending thereat so much as the devisees should in their discretions think fit the Devisees expend only upon the Obit 6 s. 8 d. per annum and it was adjudged that the Queen Elizabeth should have all the houses because the appointment was uncertain albeit the imployment was certaine Co. l. 5. 1. a. 4. in Claitons case 44. Indentures of demise were ingrossed bearing Date the 26 day of May Anno 25. Eliz. to have and to hold for three years from henceforth Commencement of an Indenture and they were delivered at four a clock in the afternoon upon the 20 day of June anno praed In this case the Lease shall end upon the 19 day of Iune in the third yeare for the Law in this computation rejecteth all Fractions and Divisions of a day for the uncertainty which is alwaies the Mother of contention Severall Interests severall Covenants 45. An Authority may be granted to two vel cuilibet eorum Co. l. 5. 19. a. Slingsbies case as to make Livery or the like but an Interest cannot be so granted as if A. covenants with two Et cum quolibet eorum they cannot sue severally unlesse their interests were severall as if a man by Indenture deviseth Black Acre to A. White Acre to B. and Green Acre to C. and covenants with them Et quolibet eorum that he is lawfull owner of the said Acres in this case in respect of their severall Interests by the words quolibet eorum the Covenant is made severall but if he demise the acres to them joyntly then the words Cum quolibet eorum are void for the uncertainty for albeit diverse persons may bind themselves quolibet eorum and so the Obligation shall be joynt or severall at the election of the Obligee yet a man cannot bind himselfe to three and to each of them to make it joynt or severall at the election of severall persons for one and the same cause for the Court will be in doubt for which of them to give judgement which the Law will not suffer As it was held in 3 H. 6. 44. where one brought a Replevin for one beast against two who made several avowries each of them by himself in his own right and there by the advise of all the Iustices both the Avowries abated for the inconvenience and uncertainty because if both the Issues should have been found for the Avowants the Court could not have given Iudgment to them severally of the same thing Uncertain count 46. It is the duty of a Declaration Co. l. 5. 35. a. 3. in Plaiters case to reduce the generalty of the Writ into certainty otherwise the issue will be generall and uncertain and by consequent the verdict the like and then the Iury cannot be attainted if they happen to give a false verdict Schismatick 47. Where a Bishop refuseth to admit a Clarke Co. l. 5. 37. b. Specots case it is not a sufficient cause to alledge in generall that he is Schismaticus inveteratus for that is causa vaga incerta but he ought to charge him in particular with some particular Schisme and to shew how and wherefore he is a Shismatick Releasâ— 48. M. is Baile for C. in an Action where H. is Plaintiff Co. l. 5. 70. b. Hoes case H. hath Iudgement and Scire facias against C. and in his default against the Baile who pleads the Plaintiffs release before Iudgement this is held an insufficient plea because a certain duty with a Condition subsequent may be released as an Obligation not an uncertain duty with a condition precedent before the time because the debt and damages are uncertaine See also Co. l. 10. 51. a. 1. in Lampets case An award 49. The Plaintiff and Defendant submit themselves to the Arbitrement of A. who awards that the Defendant shall enter into Bond Co. l. 5. 77. b. Sammons case that the Plaintiff and his wife shall enjoy such Land quietly This is a void award because of the uncertainty of the summ in the Bond which ought to be at least to the value of the Land also the award is void as to the Feme because shee is a stranger to the submission No Lapse 50. A Patron is not bound any way to take notice of a Laps for the Incumbents not reading the Articles according to the Statute of 13 Eliz 12. but from the Ordinary himselfe Co. l. 6. 29. b. 1. in Greens case and no laps will incurr if that be not done and such notice ought to be certaine and particular and therefore it is not sufficient for the Ordinary in such case to give notice that the Presentee hath not read the Articles and subscribed generally but he ought particularly to informe the Patron that he hath not read the Articles c. for which default he
known because the losse of many causes dependeth thereupon As in Battery if the Defendant can justifie the same to be done of the Plaintiffs own assault he must plead it specially and must not plead the generall Issue Co. ibid. 4. In Trespasse of breaking his Close Trespasse upon not guilty he cannot give in Evidence that the Beasts came thorough the Plaintiffs Fence which he ought to keep nor upon the generall Issue justifie by reason of a Rent-charge Common or the like Co. ibid. 283. a. 1. 5. In Detinue the Defendant pleadeth non detinet Detinue in this case he cannot give in Evidence that the goods were pawned to him for money and that it is not paid but he ought to plead it Howbeit he may give in Evidence a gift from the Plaintiff for that proveth he detaineth not the Plaintiffs goods Co. ibid. 6. In Waste upon the Plea non fecit vastum Waste he may give in Evidence any thing that proveth it no Waste as by tempest lightning enemies or the like but he cannot give in Evidence justifiable Waste as to repaire the House or the like for that will cause a Variance between the Evidence and the Issue Co. ibid. l. 5. 119. Whelpdales case 7. If two men be bound in a Bond joyntly and the one is sued alone Joynt Obligees he may plead this matter in Abatement of the Writ but he cannot plead non est factum for it is his Deed though it be not his sole Deed See Whelpdales case where a man may safely plead non est factum where not and former books that treat of that matter well reconciled Co. Inst 1. 303. b. 4. See also more of this matter Co. Inst ubi supra c. And here note that in matter of pleading to prevent variance each party must be very circumspect in the ordering thereof least his Replication depart from his Count or his Rejoynder from his Bar Et sic de cetaeris Likewise what is departure in pleading and what not See Co. Inst 1. 304. per totam paginam pl. Co. 105. b. Variance inter Writ and Count. 8. Co. l. 5. 37. a. 4. Bishops case Co. l. 8. 163. a Blackamores case In an Action upon the case Variance was found betwixt the Writ and the Count in the Defendants name for in the Count he was named George and in the Writ Christopher and after Iudgement for the Plaintiff in the Common Place upon a Writ of Error in the K. B. the Iudgement was reversed by reason of that variance for the Statute of 18 Eliz. 14. gives remedy where there is no Originall Writ but not where there is a Writ and a materiall variance betwixt the Writ and Count c. Variance inter Originall and Judgement 9. There ought not to be any variance betwixt the Originall Writ Co. l. 9. 74. a. 1. Doctor Husseyes case and the Iudgement given thereupon but the Iudgement ought to be conformable to the Originall because it is grounded thereupon And therefore in Ravishment of Ward if the Action be grounded upon the Statute of Westm 2. 35. according to the forme of the Writ there prescribed the Plaintiff cannot have Iudgement at the Common Law but the Iudgement ought to be conformable and pursuant to the Originall Writ which is the Foundation and ground of the Iudgement Vide plus ubi supra Variance of names 10. The Dean and Cannons of Windsor Co. l. 10. 124. b. 2. Linne Regis case Winâ—ates case 29. 30. Eliz. Hob. 124. were incorporate by the Statute of 22 E. 4. by this name The Dean and Cannons of the Kings free Chappell c. And in the Raigne of P. and M. they made a Lease of certain Lands by this name The Dean and Cannons of the King and Queens free Chappell c. And in an Ejectione firmae brought by Wingate against Hall M. 29. and 30. Eliz. the Lease for that variance was adjudged void The like 11. Merton Colledge in Oxford Co. ibid. 125 a. 2. was incorporate by Act of Parliament anno 1. M. Per nomen Guardiani Scholarium Domus sive Collegii Scholarium de Merton c. And they made a Lease per nomen domus sive Collegii de Merton omitting Scholarium Merton Colledge case in B. R. And in an Ejectione firmae H. 30. Eliz. This omission was agreed to be a variance in substance to quash the Lease for the sayd Act hath Baptized the Colledge by the name of the Colledge of the Schollars of Merton and they made the lease by the name of the Colledge of Merton himselfe who in truth was the Founder Aud quer 12. In an Audita querela F. N. B. 104. 5. variance betwixt the Writ and the Record shall cause the Writ to abate Variance inter brief and â—â—â—nt 13. In Debt upon the Statute of 32 H. 8. 9. Pl. Co. 79 b. 4. Partridges case made against buying pretenced Titles c. That Statute was recited in the Count to commence the 28 of Aprill anno 32 H. 8. whereas it did begin the 28 of Aprill anno 31 H. 8. and was continued by prorogations untill 32 H. 8. and for that variance the Count was adjudged defective The like 14. In 20 H. 6. A man brings a Writ of Forger of false Weights Pl. ibid. 84. b. 3. and the Writ was Diversa facta munimenta c. and he counts but of Deed only and Per totam curiam for that variance the Writ shall abate Writ and Count. 15. In a Writ De consuetudinibus servitiis if the Demandant say F. N B. 15 1. 7 De reddibus arreragiis c. These words prove that the Demandant himselfe was seised of the Services and then if he count in such a Writ of the Seisin of his Ancestor and not of his own Seisin for that variance the Writ shall abate Dyer 150. 85. 3 4. P.M. 16. The Corporation of Eaton Colledge was erected by H. 6. A void lease Per nomen praepositi Collegii Regalis Collegij beatae Mariae de Eaton c. And in the time of E. 6. a Lease was made by Sir Thomas Smith and the Fellowes Per nomen Praepositi sociorum Collegii Regalis de Eaton and adjudged void for the variance Dyer 191. 22. 2 3 Eliz. 17. The relict of a Copyholder pleaded a Custome Custome to have the Copyhold during her life after her husbands death and upon the evidence the custome appeared to be only Durante viduitate and thereupon the Defendant demurring to the Evidence Iudgement was given against her Dyer 219. 11. 5. Eliz. 18. A man declares for the debt of 20 l. upon the sale of Wood Debt and gives in evidence but for twenty Markes it shall be found for the Defendant as if there had been variance in the things
horse to another to keep safely the defendant equum illum tà m negligentèr custodivit quod ob delictum bonae custodiae interiit here an action upon the case lyeth for the breach of the trust reposed in the Bailee so likewise in 2 H 7. 11. If my shepherd whom I trust with my sheep by negligence suffers them to be drowned or otherwise to perish here also an action lies Co. l. 5. 109 a. 4. in Foxlâ—ys case 4 By the default and negligence of the owner of goods waived in not making fresh pursute after the felon and prosecuting him in an appeal of the same felony he shall lose his property in them Goods waived and the King shall have them as goods waived and this course is ordained by the Law to prevent felonies for Interest reipublicae ut maleficia remaneant impunita impunitas semper ad deteriora invitat Also if the owner be negligent Co. ibid. 109 b. 4. and omit any of the goods stollen from him out of his appeal the King shall likewise have the goods so omitted because perhaps by leaving them out the felon might have escaped Co. l. 5. 1â—0 b. 4. 5 If a man upon an appeal or indictment of felony be so negligent Exâ—gent that he comes not in but tarries the Exigent In this case albeit he be afterwards when he comes in acquit of the felony yet he shall forfeit his goods to the King for such his default and neglect Co. l. 6. 45. b. 4 in Hâ—ge s case 6 In 17 E. 3. 24. In debt upon an obligation of 20 l. judgement was obtained before the Maior of Newcastle Two Judgements and execution had thereupon and because the obligation was not quasht as it ought to have been the use was then being the Plaintif had judgement in another action upon the same obligation And the defendant upon pleading the first judgement could not be relieved because it was imputed to his negligence that he did not procure the obligation to be cancelled upon the first Iudgement Vide 17 E. 3. 24. Copyhold 7 Tenant by Copy in fee where the custom is Co. l. 8. 100. b. 3. in Sir Rich. Lechfords case that the heir within three Courts and proclamations made shall be barred if he claims not dies his heir being then beyond sea and until the three Courts and proclamations be past but then returns and claims his right In this case he shall not be barred no more than by non-claim upon a fine but if he went beyond sea after the death of his ancestor he shall be barred because of his neglect to take admittance of his Copyhold before he went his Iourney Repair of sea banks 8 If one be bound by prescription to keep a sea-bank in good repair Co. l. 10. 139 b. in Kightleys case and by a sudden and unusual encrease of waters it is beaten down in such case the Commissioners of Sewers by the Statute of 23 H. 8. 5. may charge all other persons and their lands that may receive any loss or damage therby but if any default or negligence be found in him that should so repair it as that he hath not kept the banks so high nor so well in repair as they have used formerly to be kept or that the danger was not so inevitable but that he might well have prevented it the Commissioners may charge him only with the repair thereof and if by his negligence the danger becometh inevitable or he be not able to repair it so as the charge is laid upon others each person so charged may have an action upon the case against him that should so repair it and recover damages according to their loss Quare Impeâ—â— 9 In a Quare impedit F. N. B. 35. c. if the defendants clerk was admitted and instituted at the time of the writ purchased and the Plaintif purchase the writ only against the Patron not naming the Incumbent albeit the Plaintif recover yet he shall not avoid the defendants clerk because he neglected to insert his name in the Quare impedit Quare Imp. 10 In a Quare impedit F.N.B. 38. h. if the Patron being defendant makes default to the distress and the Incumbent abate the writ by plea yet there shall be no writ awarded to the Bishop for the Patron by reason of his default and negligence Lord. Villein 11 Vpon a nativo habendo brought by the Lord F.N.B. 77. h. 78. f. the Villein sues a libertate probanda obtulit se at the fourth day against the Lord who did not appear but make default upon which default the Villein was enfranchised had a writ to the Sheriff that the Sheriff should not suffer the Lord to vex him afterwards so if the Lord be non-sute after appearance the Villein or Nief shall be infranchised Audita Qu. 12 Vpon an Audita querela sued F. N. B. 104. o. the plaintif shall have a supersedeas in the same writ to cease execution but if he be nonsute he may have a new Audita querela but then he shall not have a supersedeas to stay execution Attaint 13 Nonsute in attaint after appearance is peremptory F.N.B. 108. d. and so likewise is a Retraxit entred of Record So as the plaintif in attaint shall not bring a new attaint afterwards Non-sute 14 At the day of the return of the Habeas corpus or Distringas Dyer 286. 44 12 El if the Iury and defendant appear albeit the writ be not returned yet if the Plaintif make default he shall be nonsute because the parties have day by the Roll. Quaere nam dubitatur in Banco Regis Ward 15 The Queen grants the ward of the body of A. who dyes at full age no tender of Marriage being made by the grantee Dyer 306. 65 14 El In this case the land shall not be retained in Curia Wardorum for it was his folly and negligence not to tender a Marriage â—â—bâ— against â—e heir 16 In debt upon an obligation against the daughters and heirs of Henningham entred into by their father Dyer 344. 1 18 Eliz. the Plaintif recovered upon Nihil dicit and hath general judgement Afterwards upon the Scire facias to have execution the defendants pleaded riens per descent in see the day of the first writ purchased or since Howbeit the opinion was that after recovery by Nihil dicit non sum informatus or confession the heir comes too late to plead riens c. but he ought at first to plead or shew the certainty when c. And per Dyer if the profits received after the death of the ancestor until the writ purchased were sufficient to satisfie the debt that then the plaintif should have general judgement against the heir Dyer 357. 45. 19 El. 17 If an Alien born pray not medietatem linguae before the Venire facias is
sutes Co. l. 10. 48. a. 3. in Lampets case great oppression of the people principally of terre-tenants and the subversion of the due and equal execution of Iustice the wisdom and policy of the Sages and Founders of our Law have provided that no possibility right title or thing in action shall be granted or assigned to strangers and as they cannot be granted by the act of the party so right of action cannot be transferred by act in Law as unto the Lord by escheat neither shall the Lord of a Villein have things in action as appears in 22 Ass pl. 37. c. Co. l. 3. fol. 1. And in the Marquess of Winchesters case Right of action to land was not given to the King by an Act of Attainder And all this was for the quiet and repose of terre-tenants Howbeit all rights titles and actions may by the like prudence and policy of the Law be released to the terre-tenant for the same reason of his repose and quiet and for the avoidance of contentions and sutes and that every one may live in his vocation in peace and plenty Ecclesiastical livings 26 To preserve Ecclesiastical possessions from alienation in prejudice of the Successor Co. l. 10. 60. a. 3. in the Bish of Sarums case the prudence of the Sages of the Law did provide that no sole Corporation should be trusted with the disposition of his possessions as to bind his Successors but in such case they were to have the consent of others as the Bishop was to have the consent of his Dean and Chapter the Abbot of his Covent the Parson of his Patron and Ordinary sic de caeteris Auditor of the Court of Wards 27 The Law to prevent any miscarriage in matters of Iudicature hath provided Co. l. 11 4. a. 2. in Auditor Curles case that no judicial office shall be granted in reversion and the rule of Law in this point is Officia Judicialia non concedantur antequam vacent And the reason is to prevent a great inconvenience which may insue thereupon for that he who at the time of the grant in reversion may be able and sufficient to supply the office of Iudicature and to administer equal justice to the Kings Liege people may before the office fall become unable and insufficient to perform it And therefore the Kings grant of the office of Auditor of the Court of Wards unto John Churchil and Iohn Tooke in reversion after the death of Walter Tooke and William Curle was adjudged void because it was an office of Iudicature in that Court and therefore could not be granted in reversion Error in London 28 If a man hath judgement given for him in London in the Sheriffs Court F.N.B. 24. a. or before the Maior and Sheriffs in the Hustings of London and the defendant to delay the execution of the judgement sues a writ of Error to remove the Record before the Maior c. in the Hustings or before certain Commissioners if the judgement be given in the Hustings c. and afterwards the defendant eloyns his goods goods out of the City or wasts them to the intent that the plaintif should not have execution of those goods In this case the plaintiff may have a special writ directed to the Maior and Sherifs to take order that so many of the goods of the defendant as amount to the value of that which is recovered may be safely kept to satisfie the plaintif if he shall have the judgement affirmed for him so as execution of the former judgement may be made c. of the same goods c. Security of the Peace 29 Before a man can have security of the Peace against another F.N.B. 79. h. lest the cause of his complaint may arise rather from malice than any just ground of fear the party complainant ought first to make oath that he requires the Peace against the other for the safeguard of his body and not out of malice And this course is stil used in the K. B. and before Iustices of Peace And it was also the usual course in the Chancery to make such oath before a Master of that Court before he could have it granted but of later times that course hath been left in Chancery which Fitzharbert saith is not well done because such prosecution for the most part procéeds rather from malice than any just cause of fear F.N.B. 113 a. 30 The King of right ought to save and defend his Realm as well against the Sea as against Enemies Oyer Terminer for Nusances that it be not surrounded and laid waste and to provide remedy for the same and also to take order that his subjects may have their passage throughout the Realm by bridges and safe wayes c. And therefore if the banks of the Sea be broken or the Sewers and drains be not scowred that the fresh waters may have their direct course the King for the prevention of such damage as may happen by reason of such defaults might by the Common Law before any Commissions of Sewers c. grant commissions to inquire hear and determine such defaults Pl. Co. 67. a. 2. in Dyve Maninghams case 31 The persons mentioned in the second branch of the Statute of 23 H. 6. 10. viz. such as were in ward by Condemnation Bailment exemption Capias utlagatum or excommunicatum surety of the peace or committed by command of the Iustices or Vagabonds refusing to serve were not bailable by the Common Law before that Statute for the Inconveniences which might ensue thereupon Co. l. 5. 83. b. in the case of Market overt 32 No sale of stoln goods but in a Market overt Market overt alters the property And therefore if stoln plate be openly sold in London or elswhere in any other market overt in a Scriveners shop that sale alters not the property because it is no market overt for plate it is otherwise if it be openly sold in a Goldsmiths shop but if the sale be there behind a hanging or Cupboard or in a ware-house or other part of the house and not openly that passengers may observe it such sale alters not the property And this the Law hath ordained to prevent felony c. Vide Max. 191. 3. 134. 14. Co. Iâ—st pars 1. 6. b. 4. 31 It was resolved in the C. B. Pasc 10. Feme covert no witnesse for the Baron Iac. that a wife cannot be produced as a witness either against or for her husband and one of the reasons of that resolution was in respect it might be a cause of implacable discord and dissention betwixt the husband and wife and a mean of great inconvenience H b. 36. Druries case 32 Drury brought a Quare Impedit against Kent the Incumbent and others and upon surmise made to the Court Prohibition that Kent did fell timber upon the Glebe and upon the lands of
Hob. 78. Saint-Iohn Saint-Iohn 22 In debt by Saint-John against Saint-John Bailiff of Stockbridge upon the Statute of 23 H. 6. 15. for not returning him Burgess of that Town to the then intended Parliament And where the Statute saith that the Sherif shall send his precept to the Maior and if there be no Maior then to the Bailif the plaintif declared that the Sherif had made his precept to the Bailif without averring that there was no Maior And after a verdict for the plaintif this was moved in arrest of Iudgement But the Court was of opinion clearly that it shall be presumed there was no Maior except it be shewed and if there were it ought to be shewed on the other part 191 Ad ea quae frequentius accidunt Jura adaptantur Co. Inst part l. 238. a. 2. 1 It is said Descent a Toll entry that Abators and Intruders are out of the Statute of 32 H. 8. cap. 33. which gives the disseisee five years to prevent a descent c. because that Statute is penal and extends only to a disseisor who is only named in it And the reason why he only was therein named and not the Abator or Intrudor was because disseisin was the most common mischief Et ad ea quae frequentius accidunt c. Co. ibid. 295. a. 1. 2 In times past wager of Law was accounted a good trial in an action of debt without specialty because the Law presumed Wager of Law that no man would forswear himself for any worldly thing But of later times mens Consciences are grown so large especially in this case passing with impunity that the plaintif now dare not many times adventure the debt upon the defendants oath by bringing an action of debt but rather chuseth to bring an action upon the case upon his promise wherein he cannot wage his Law Co. l. 5. 83. b. in the case of Market overt Popham 84. 11. 3 The proper and most usual place for selling plate in London or any other Market overt is a Goldsmiths shop Market overt because such commodities use to be sold there and not in a Scriveners shop or the like And therefore if stoln Plate be sold in a Scriveners shop although it be openly and upon the market day it shall not alter the property but the party shall have restitution It is otherwise if it be sold openly in a Goldsmiths Shop c. Vide Max. 186. pl. 32. 134. 4. Co. l. 5. 127. b. 1. Palmers case 4 Guardian in Knight-service shall have the single value of the mariage without tender Valore maritagii And yet the words of the writ de valore maritagii are Quare cum Maritagium praed B. ad ipsum A. pertineat eo quod praed B. terram suam de eo tenuit per servitium militare idem A. praed B. dum fuit infra aetatem c. compotens maritagium absque disparagatione c. saepius obtulerit c. But the reason thereof is for that writs are most commonly framed according to that which doth most usually fall out alwayes in this case supposing that a tender is made because for the most part it so happens to be And therefore whereas the Rule is Ad ea quae frequentius accidunt Iura adaptantur it may in like manner be said Ad ea quae frequentius accidunt rescripta sive brevia adaptantur And in other cases a special case shall have an usual writ and a special Count. Co. l. 6 45. l. 3 in Higgins case 5 In 17 E. 3. 24. In debt upon an obligation of 20 l. Iudgement was obtained before the Maior of Newcastle Obligation not to be cancelled after Judgement and execution had thereupon and because the obligation was not cancelled which after judgment had was the usual course in those dayes the plaintif had judgement in another action upon the same obligation and the defendant upon pleading the first Iudgement could not be relieved because it was imputed to his folly that he did not procure the obligation to be cancelled upon the first Iudgement which was the ordinary usage of the Iudges at and about that time because men in antient time after a judgement obtained were apt to be quiet and to rest contented therewith without bringing writs of Error or Attaints which then were very rare especially writs of Error But now of later time men growing more contentious and not satisfied with any trial or judgement but being apt upon every such trial or judgement to bring a writ of Error or Attaint the Iudges have thought it dangerous to order the deed to be cancelled either where the plaintif recovers or where he is barred by judgement for in both cases the judgement may be reversed by Error or Attaint And therefore the reason or cause of the Iudgement in 17 E. 3. being now changed there is now no question but at this day judgement and execution upon an obligation is a good barr in a new action thereupon albeit the obligation be not cancelled Statute of wills 6 If there be Grandfather Father and divers Sons Co. l. 6. 77. a. 2. in Sir Geo. Cursons case and the Grandfather in the life of the Father convey his lands to any of the Sons this is out of the Statute of 32 H. 8. 1. of Wills for the words of the Statute are for the advancement of his wife preferment of his children c. and therefore because the Fathers children are none of the Grandfathers children such a conveyance is out of that Statute But the makers of that Act framed it according to that which was most vulgar and usual and that was for the father to dispose to his children and Ad ea quae frequentius accidunt c. Presentation 7 If a man present to an Advowson and after the Parson resigns F.N.B. 31. h. or is deposed and the Patron presents again and is disturbed he shall have an Assise of Darrein presentment and the form of the writ shall be Quis Advocatus tempore pacis praesentavit ultimam personam quae mortua est ad ecclesiam c. Albeit he resigned and is in full life Also the form of the writ is to suppose that the defendant did deforce him out of the Advowson and yet by his Count he shall declare that he or his ancestor presented last to the Advowson by which he supposeth that he is in possession of the Advowson and yet this good for ad ea quae frequentius accidunt c. Nomination 8 If a man hath the nomination to an Advowson F.N.B. 33. b. c. and another hath the presentation if he name his Clerk and he that ought to present present another Clerk he that had the nomination shall have a Quare impedit and the writ shall be Quod permittat ipsum praesentare c. And in his Count he shall declare the special matter and
men to serve the King that might tend much to the disturbance of the publique quiet thereof Vide supra 198 35. infra 16. Max. 78. 27. Dyer 128. pl. 61. Co. ibid. 246. a. 1. 4 Regularly Infant no lachess shall be adjudged in an Infant within the age of 21 years yet the Publique Repose of the Realm concerning mens freeholds and inheritances shall be preferred before the privilege of Infancy in case of a fine when the five years begin in the time of the Ancestor Vide Pl. Co. 372. Co. ibid. 328. a. 3. 5 The disseisee Release Feofment or any other that hath a right only by his release or confirmation cannot make any discontinuance because nothing can pass thereby but that which may lawfully pass But otherwise it is of a feoffment in respect of the livery of seisin for that it is the most solemn and common assurance in the Country and to be maintained for the Common quiet and repose of the Commonwealth Co. ibid. 361. b 3. Co. l. 1. 106. a. 4. in Shelley case 6 If a judgement be given against a tenant in tail upon a faint or false action and tenant in tail die before execution Common recovery no execution can be sued against the issue in tail But if in a Common Recovery judgement be had against tenant in tail where he voucheth hath judgment to recover over in value albeit the tenant in tail dieth before execution yet the Recoveror shall execute the judgement against the issue in tail not only in respect of the intended recompence but likewise for that it being the Common assurance of the Realm is much favoured in Law for the publique quiet and repose of the Commonwealth Co. ibid. 161. a. 3. 7 Incloser is adjudged in Law a disseisin of the rent Incloser because the Lord cannot justifie to break open the gates or break down the Inclosures to take a distress for that would be in disturbance of the publique peace and quiet of the Commonwealth Exchequer Seal 8 The Iudges in general cases have great respect and consideration Co l. 2. 17. a. 1. Lanes case that their judgement may not impeach or prejudice a multitude of people against antient and common approbation and therefore in Lanes case in the 2 Rep. a lease under the Exchequer seal was adjudged good albeit by the Common law no grant of any land by the King is available or pleadable but under the Great Seal yet the antient usage of that Court makes such leases to be good and available in in Law For if such leases should not be good great mischief would ensue thereupon because an infinite number of leases and grants under the Exchequer Seal would be said to be void and as great a number of grants of reversions expectant upon such leases would be void also for if the King grant a reversion where he hath a possession his grant is void And therefore lest their judgement in that case might disturb the publique repose of the Commonwealth leases under the Exchequer Seal were adjudged good and available in Law as aforesaid c. Common assurances 9 In Common Recoveries Co. l. 2. 75. a. 3. in the Lo. Cromwels case and other common assurances it would be a thing too perilous to make any construction against the general allowance thereof for thereupon would arise infinite contentions quarrels and sutes which would be inconvenient and stirr up trouble and disquiet in the Commonwealth whereas the end of the Law is to settle and establish repose and tranquillity betwixt man and man concerning their possessions Imprisonment 10 The body of the defendant was not liable to the execution for debt at the Common Law Vide 13 H. 4. 1. Co. l. 3. 12. a. 3. in Sir William Harberts case But the Common Law which is the preserver of the Common peace of the land abhors all force as the Capital enemy thereof And therefore against such as commit any force the Common Law subjects their bodies to Imprisonment which is the highest execution and whereby he loseth his liberty untill he hath agreed with the party and made fine to the King False News 11 The Statutes of Westm 1. cap. 33. and of 2 R. 2. cap. 5. which prohibit false and scandalous news Co. l. 4. 13. Actions of Slander whereby debate might arise between the Lords and Commons in disturbance of the peace and quiet of the Commonwealth seem to be but declarations of the Common Law for doubtless that offence was punishable at the Common Law before the making of those Statutes because it was prejudicial to the peace and repose of the Commonwealth and might be a cause to raise Sedition in the Realm As the Poets describes it Ac veluti magno in populo cum saepe coorta est Seditio saevitque animis ignobile vulgus Jamque faces saxa volant furor arma ministrat In which tumults another Poet saith Non novit medium rustica progenies Murder Constable 12 If upon an Affray made Co. l. 4. 40. b. 4. in Yongs case Co. l. 9 66. a. 4. 68. a. 4. in Mackallyes case the Constable and others in his assistance come to suppress the Affray and to keep the peace and in doing their office the Constable or any of his assistants are slain this is murder in Law albeit the Murderer did not know the party that was slain and although the affray was sudden because the Constable and his assistants come by authority of Law to keep the peace and to prevent the danger that might ensue by the breach thereof and therefore the Law adjudgeth it Murder and that the Murderer had malice prepense because he opposed himself against the justice and publique reposâ— of the Commonwealth So if a Sheriff or any of his Bailiffs or other Officers be slain in the execution of a process of Law Co. l. 5. 71. b. in Saint-Iohns case or in doing their office it is Murder Guns There is the same Law also of a Watchman that is slain in doing his office Vpon the same reason it is that the generalty of the Statute of the 33 H. 8. 6. prohibits not Sheriffs and their officers to carry about them in execution of Iustice and in order to the peace and quiet of the Realm the weapons therein forbidden Co. l. 5. 91. b. 1 in Swaynes case 13 In order to the general peace and quiet of the Commonwealth every mans house is to him as his Castle and Fortress A mans house his Castle as well for defence against injury and violence as for his repose And albeit the life of a man is a precious thing and much favoured in the eye of the Law so as albeit one man kill another in his own defence or per infortuniam without any intent yet the Law adjudgeth that felony and thereby he shall forfeit all his
verdict there were more then a thousand words whereas in our books when the tenant in tail was restrained from alienation there were under twelve words Haec fuit candida illius aetatis fides simplicitas quae pauculis lineis omnia fidei firmamenta possuerunt Co. l. 10. 30. b. Sâ—tions Hospital It may be also observed that the Statutes made before the reign of H. 8. were short and concise but from his time especially from the twentieth yeare of his reigne they are much more prolix and voluminous whereas Lawes and Precepts ought to be short and significant to the end they may be easily understood and the better retained in the memorie according to that of Erasmus in his religious Colloquie Praestat pauca avidè discere quam multa cum taedio devorare And that of Horace Quicquid praecipies esto Brevis ut citò dicta Percipiant animi dociles teneantque fideles Franchise Prescription 6 A Prescription to have all wild Swans which are ferae naturae Co l. 7. 18. a. The Case of Swans and not marked nidificant gignent frequentant within such a Creeke is insufficient so is also such a prescription for a Warren viz. to have all Phesants and Partridges nidificant gignent frequentant within such a Mannor but he ought to say that he hath Free warren of them within the Mannor for albeit they be nidificant c. within the Mannor yet he cannot have them Jure privilegii but onely so long as they are within that place Howbeit a Prescription thus alleaged is good viz. that within such a Créeke there hath béen time out of mind c. a game of wild swans not marked nidificant c. And then to prescribe that such an Abbot and all his predecessors c. have alwayes used to have and take to their owne use some of the said wild Swans and their signets within the said Créeke such a prescription I say is good for albeit Swans are Royal fowl yet this way a man may prescribe in them because that may have lawfull beginning viz. by the Kings grant Debet detinet 7 The forme of a writ of debt shall be sometimes in the debet and detinet and sometimes in the detinet onely F. N. Br 88. b. F. N. B. 119. b. and then if it be the debet it shall abate It shall be always in the debet and detinet when he that makes the bargaine or contract or borrows the money or he to whom the obligation is made brings an action against him that is bound or is party to the bargain contract or borrowing and also when the action is brought for money But if a man sel 20 quarters of wheat for an horse here if he bring a writ of debt for the horse the writ shall be in the detinet onely And the Rule of the Register is Fitz. ibid. m. quod in brevi debito de catallis nunquam dicetur quòd ei debet Also if a writ of debt be brought by executors upon a dutie due to their testator the writ shall be quòs eis detinet and not debet detinet because they were not partie to the contract so likewise if a writ of debt be brought against executors by the creditor upon a dutie by their testator the writ shall be quos ei detinent and not debent detinent albeit he demand money as 20 l. or any other sum Annuity 8 In a writ of annuitie the form is Quem ei debet F. N. Br. 152. a. when any thing that is not money is demanded It is otherwise in an action of debt Non est factum for if it be for money the demand shall be in the debet but if it be for any thing else it shall be in the detinet and not in th debet And in debt also if a man demand money and ten quarters of wheat then the forme of the writ shall be Praecipe A. quòd justè c. reddat B. decem libras c. quas ei debet decem quarteria frumenti quae ei injustè detinet c. 9 If a man be taken in execution by the Sheriff upon a ca. sa and the Sheriffe takes bond of him for his apperance and rendring himselfe true prisoner Pl. Co. 66. a. Dive and Manninghams case contrary to the Statute of 23 H. 6. 10. In an action of debt brought by the Sheriff against the obliger it is no apt conclusion for the obliger to say judgement se action but he ought to conclude with nient son fait for the Statute saith if an obligation be taken in another forme then is conteined in that Statute that it shall be void and if it be void it was void from the beginning and therefore never his déed Vide plus ubi suprà F. N.Br 151. g. 10 When a writ of Customes and services is in the right onely Customes and services then the demandant shall count of the seisin of his Ancestor and the writ shall be in the debet onely but when he comes of his owne seisin then the writ shall be in the debet solet Co. Inst 1. 291. a. 11 If A. be accountable to B. and B. releaseth him all his duties Accompt Release this is no barre in an action of accompt for duties extend to things certain and what shall fall out upon an accompt is uncertain And albeit the latin word is debita yet duties do onely extend to all things due which be also certaine And therefore dischargeth Iudgements in personall actions and executions also F. N.Br 8. c. 12 Where a feme is endowed of parcel of her Dower Dower and would demand the rest against the same tenant and in the same town In this case for the recovery therof she shall have a writ of right of Dower and not a writ of Dower undè nihil habet for the words of this writ will not serve because she hath already received part of her Dower And therefore she must of necessitie sue a writ of right of Dower to recover the residue Co. l. 11. 55. a. 4 in Edward Lawes case 13 An Ejectione firmae lyeth not of a Close Ejectione firmae although it hath a certaine name as Dovecot Close conteining three acres but it ought to be of so many acres and ought also to shew of what nature those acres are as Land Meadow Pasture Wood c. and the certainty ought to be comprised in the Court because he shall recover the possession by Habere facias possessionem and shall ensue the form of other writs of like nature as a Writ of ward or Ejectment de guard or the like shall not be of a Close by a certain name but ought to be by the certainty of acres conteining withall the quality of the soile as Land Meadow Pasture Wood c. 12 Nomina si nescis perit cognitio
by making of him Knight he is out of the ward and custodie of the Lord because after he is Knight he ought to be sui juris and to imploy himselfe in feats of armes to defend the Kingdome c. And none shall pay the forfeiture of mariage but he that after refusal marrieth himselfe during the time that he is in wardship Howbeit the Lord shall immediately after his Knighthood have a writ de valoremaritagii such as in like case is used to be had after the heires full age of 21 years No protection for Wales 40 Since the Statute of 12 E. 1. Calvins case Co. l. 7. 21. b. 3. which incorporateth Wales into England and makes it parcel of England in possession no protection Quia moratur in Wallia will now lye because Wales is now within the Realm of England No wardship after attainder 41 Sir Everard Digby by act executed in his life conveyed his lands to the use of himselfe for life with divers remainders over Digbies case Co. l. 8. 165. b. 4. Co. l. 10. 85. a. 11. and then was attainted and executed for the Power-Treason The question was whether ward of the body or of the third part of the lands should accrue to the King by force of the Statutes of the 32 and 34 H. 8. And it was resolved that their could be neither wardship nor primer seisin in that case because there could be no heire for although there may be wardship and primer seisin where there is no descent as in case when a man grants all his lands holden by déed executed in his life yet there can be no wardship or primer seisin but where there is an heire by reason of whom alone those rights accrue to the King No dower by Guardian 42 During the minority of the heire a writ of Dower lyeth against the Guardian or he may endow the feme without suit if he please Co. l. 9. 16. b. 4. in Anne â—edingfields case but after full age although he hold the land over for the value of the mariage yet no writ of Dower lyeth against him neither can he endow her because after the full age of the heir he is no longer guardian Nusance removed 43 In Assise de nusans or Quod Permittat prosternere Co. l. â— 55 a. 1. in Baltens Case Co. l. 10. 84. b. 4. in Lovers Case c. it is a good plea that the Plaintiff himselfe either before the writ purchased or hanging the writ hath abated the nusance All Soccage Land devised 44 If there be tenant in tail to him and the heires males of his body the remainder in fée to another of land holden by Knight-service in Capite and that is also seised of other lands in soccage in fée and by his will in writing he deviseth all his soccage lands and dies without issue male in this case the devise is good for all the soccage land for the estate of the land holden determines by his death so that there was not any cause of ward at the Common Law so it is likewise 13 El. Dyer 3. if the estate of the land holden be defeated for a condition broken after the death of the tenant Wood or trees excepted 45 If I. grant the Mannor of D. except the wood Co. l. 11. 49. b. 3. Liffords case by this the soil it selfe is excepted but if I. except all my trées growing upon land or pasture out of any wood there by the exception of the trées the soil it selfe is not excepted But sufficient nutriment is reserved out of the land to sustaine the vegetative life of the trées for without that the trées which are excepted cannot subsist But if the Lessor cut them and by the licence of the Lessée root them up in this case the Lessee shall have the soil for cessante causa cessat effectus After pardon no conspiracy 46 If a man be falsely indicted of felonie Fitz. 115. g. and after by Act of Parliament a general pardon is granted of felonies c. Here the party shall not have a writ of conspiracie although he will plead to the indictment and is acquit and will not plead the Act c. because his life was never put in jeopardie which indéed ought to be the cause and ground of the action of conspiracie the felonie being pardoned by the Act. No attaint 47 If a man recover outragious damages by verdict Fitz. 107. b. and release parcel of the damages before Iudgement and hath onely Iudgement of the residue the defendant shall not have attaint for those damages which are so released Goods bailed 48 If a man have goods delivered unto him to deliver over to another and afterwards a writ of detinue is brought against him by him Fitz. 138. m. that hath right to have the goods c. here if the defendant hanging the action deliver the goods over to him unto whom they were given to be delivered this is a good barre of that action Fitz. 139. a. Mich. 34. E. 1. 49 After a divorce made betwixt Baron and feme Divorce the feme shall have a writ of detinue for the goods given with her in mariage not spent Dyer 13. 62. 28 H. 8. Fitz. 152. â— 50 The heire shall be charged by a writ of annuity upon grant of his father if he have assets by descent Annuity but an Annuity shall not be maintainable against the heire by prescription because it cannot be known whether he had any thing by descent from the same ancestor by whom the annuity began c. Plowd 37. a. The Sheriff of Londons case 51 If a prisoner in execution in Ludgate be suffered to go over the Bridge into Surrey though he have a kéeper with him Escape yet that is an escape for being in Surrey which is another County he was without gard and so consequently out of prison c. Plowd ibid. per Chomley 52 If a woman be Warden of the Fleet Prisoners enlarged by mariage or descent and one imprisoned there marieth the woman which is Warden this shall be judged an escape in the woman and the law adjudgeth the prisoner to be at large because he cannot be lawfully imprisoned but under a Warden and he cannot be properly conceived under the ward of his wife And therefore in that case the law adjudgeth him to be at large So if the Warden of the Fleet who hath his office in fée die seised his sonne and heire being then prisoner there and the office descends upon him being in prison here the law will adjudge him out of prison although he hath fetters upon his legs he being then without gard it being impossible that he should kéep himselfe in prison P. 13. E. 4. 8. Plowd ibid. 53 If a Iustice of Peace of one County pursue one into another County for felony comitted in the
County where he is Iustice Power lost and he takes him in the other County In this case he is his prisoner in the County where he takes him and ought there to be imprisoned and he cannot send or convey him to the Gaol of the County where he committed the felony for he is not his prisoner there and being out of his proper County his authority ceaseth as to that other County So if the Marshal hold plea of a thing done out of the verge or the Admiral of a thing done in the body of the County it shall be void for their authority extends to a certaine place and within a certain precinct and not elsewhere and if he which takes Sanctuary goes out any man may take him because he hath lost his priviledge Plowd 72. b. Sir Thomas Popes case 54 If the Conisée of a Recognisance according to the Statute of 23 H. 8. cap. 6 sell several parts of his lands to several feoffées No discharge by the Conusees purchase of part reserving also part thereof to himselfe if execution be sued against his part in an Audita quaerela he shall not compel any of the feoffées to contribute And therefore by the same reason the purchase of part by the Conisée shall not discharge the execution for the execution of the Conisée shall be discharged in consideration that he shall be contributory if he were Feoffée and not Conisée and then in as much as he shall not be contributory if he were Feoffée and not Conisee his purchase of part shall not discharge the execution being Conisée quià cessante causa c. Co. Inst pars 1 70. b. 3. 55 If the King had given lands to an Abbot and his successors to hold by Knight-service this had béen good Lands held by Corporations in Knights Service and the Abbot should have done homage and found a man c. or have paid escuage But there was no wardship or reliefe or other incident belonging thereunto yet if the Abbot with the assent of his covent had conveyed the land to a natural man and his heirs now wardship and reliefe and other incidents belonged of common right to the tenure And so it is if the King give lands to a Major and Communalty and their successors to be holden by Knight-service In this case the Patentées shall do no homage neither shall there be any wardship or reliefe onely they shall find a man c. or pay escuage But if they convey over their lands to any natural man and his heires now homage ward mariage reliefe and other incidents belong thereunto quià cessante ratione legis cessat ipsa lex Lord and Villain 56 If villanage be pleaded by the Lord in an action Real Co. ibid. 127. b. 4. 18 E. 4. 6. 7. personal or mixt and it is found that he is no villaine the bringing of a writ of errour is no enfranchisement because thereby he is to defeat the former judgement and if in the mean time the plaintiffe or demandant bring an action against the Lord he néed make no protestation so long as the record remaines in force for at that time he is frée but the Lord shall be restored to all by the writ of errour Waste 57 If lands be given to two and to the heires of one of them Co. ibid 247. b. 3. he that hath the fée simple shall not have an action of wast upon the Statute of Glocester against the Ioyntenant for life but his heir shall maintaine an action of waste against him upon that Statute So that in this case the heir shall maintaine that action which the Ancestor could not Dower 58 If the husband alien his land Co. Inst pars 1 33. a. 4. and then the wife is attainted of felony now is she disabled but if she be pardoned before the death of the husband she shall be endowed Also if the sonne endow his wife at her age of 7 yeares ex assensu patris if she before the death of her husband attaine to the age of nine yeares the dower is good Office and Rent 59 The King granteth to one an office at will Finch 8. Co. ibid. 42. a. 4 3 E. 4. 8. and ten pounds yearly rent during life pro officio illo here if the King put him out of his office the rent shall cease 21. 4. Guardian in Soccage 60 The executor or husband after the death of the wife guardian in Soccage shall not retain the wardship 7 El. 293. b. Finch 9. Co. Inst pars 1 89. a. 1. for the guardian hath it not to his owne use but for the benefit of the heire and the executor or husband by common intendment beare not such affection to the Infant as the testator or his wife did which was the cause that the law gave them the wardship A Pardon 61 If a stroke be given the first day of May 13 El. 401. Finch 9. and the King pardon him the second day of May all felonies and misdemeanors the party smitten dieth the third day of May so as this is no felony till after the pardon yet is the felony pardoned for the misdemeanors being pardoned all things pursuing it are also pardoned Livery 62 The King hath a Ward pur cause de gard 13 E. 4 10. b. Finch 9. and after maketh Livery to the first Ward the second Ward shall not sue Livery Coparceners 63 If two coparceners make a lease reserving a rent Finch 9. they shall have this rent in common as they have the reversion But if afterwards they grant the reversion excepting the rent they shall be from thenceforth Ioyntenants of the rent Challenge 64 It is no principal Challenge to a juror 14 H. 7. 2. Finch 9. that he hath married the parties mother if she be dead without issue for the cause of favour is removed Entry 65 If an Infant tenant in taile make a feofment in fée and die Co. Inst pars 1 337. a. 2. his issue may enter but if after the feofment made he be attainted of felony and dieth the entry of the issue is taken away for his entry is not lawful in respect of his estate onely but of his bloud also which is corrupted Formedon and therefore in that case he is driven to his Formedon Villain 66 Si mulier serva copulata fit libero c. partus habebit haereditatem Bract. lib. 4. fol. 298. b. Idem l. 1. c. 6. mater nullam dotem quià mortuo viro suo libero redit in pristinum statum servitutis nisi haeres ei dotem fecerit de gratia Co. Inst Pl. 1. 123. a. 2. Co. Inst pars 1 174. a. 4. 67 If one coparcener maketh feoffment in fée Coparceners and after her feoffée is impleaded and voucheth the feoffor she may have aide of her Coparcener to deraign a warranty
the 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 copâ—rcenary not survive to the other for that the rent doth come in recompence of the land and therefore shall ensue the nature thereof if the grant had been made to them two of a rent of 20 s. viz. to the one 10 s to the other â—0 s. yet shall they have the rent in course of coparcenary and shall also joyn in action for the same Co. l. 5. 8. a. 2. Cases of Leases Justice Windhams case The like 12 If two Coparceners by deed indented alien both their parts to another in fee Co. ibid. 169. b. 4. 38 E. â— 26. b. rendring to them two and their heires a rent out of the land In this case they shall not be joyn-tenants of that rent but shall have it in course of coparcenary because their right in the land out of which the rent is reserved was in coparcenary Joyn-tenants and tenants in common 13 If two tenants in Common be disseised Littl. § 311. Co ibid. 195. b. 3. each of them shall have a several assize for his moity because they claime and are seised by several titles but if 20 joyn-tenants be disseised they shall have but one assize in all their names because they have but one joynt title The like 14 If there be three joyn-tenants Littl. § 312. Co. ibid. 196. a. 1. and one releaseth to one of his companions all his right c. and after the other two are disseised of the whole In this case the two others shall have one assize in both their names for the two parts because at the time of the disseisin they held them by a joynt title but as to the other third part he to whom the release was made ought to have a several assize of that in his owne name because of that part he is tenant in common and hath title to it by force of the release and not onely by force of the joynture Coparceners 15 If two Coparceners have issue each of them a sonne and die Littl. § 313. Co. Inst pars 1 196. a. 4. and the sonnes before partition are disseised in this case they shall joyn in an Assize for although they claime by several titles in respect of the several descents from their mothers yet in as much as the land intirely descended from their grand-father to their mothers they are in Law accompted Parceners and a writ de partitione facienda lyeth betwixt them and consequently shall have but one Assize Tenants in common 16 In real and mixt actions tenants in common shall sever in action because they have several freeholds and claim by several titles Co ibid. 195. b. 3. 198. a. 2. but they shall have actions personal joyntly in all their names as an action of trespass of accompt against the Bailiff of their Mannor or the like and in this case also the survivor takes place because these actions found in the personalty and not in the realty and the trespass and damage done unto them which indéed is the cause of the action is joynt and therefore ought to be joyntly prosecuted and shall also joyntly survive and the same Law is of Coparceners Moâ—tgage 17 If the feoffée in mortgage before the day of payment Littl § 339. Co. ibid. 209. b. which should be made unto him make his executors and die and his heire enters into the land as he ought c. It séemes in this case that the feoffor ought to pay the money at the day appointed to the executors and not to the heire of the feoffée because the money at the first accrued unto the feoffée in the nature of a duty and it shall be intended that the estate was made by reason of the lending of the money by the feoffée or in respect of some other duty A mad man 18 In criminal causes as felony Co. ibid. 247. b. 1. ubi vid. Pl. an Plowd 19. a. c. the act and wrong of a mad man shall not be imputed to him for that in those causes Actus non facit reum nisi mens sit rea and he is said to be Amens that is sine mente And therefore his madnesse being the cause thereof and not his intention he is excusable C. l. 4. 124. b. 2. Beverleys Case Entry and â—laim 19 Littleton saith that if a man having title to enter into lands Co. ibid. 253. b. 1 2. dare not do it for feare of beating mayming or death that then he ought to approach as néere the land as he dare to make his claime yet in this case every doubt or feare is not sufficient for it must concern the safety of his person not of his houses or goods for the fear of burning his houses or of taking away or spoyling his goods are not sufficient causes to make him forbear to make his entry or claime upon the land because he may recover the same againe or at least damages to the value of them without any corporal hurt And here also though the feare do concerne the person yet it must not be a vaine feare but such as may justly cause a constant man to be affraid by reason of some overt act as if the adverse party lye in wait in the way with weapons or by words menace to beat Bract. lib. 2. 16. b. Brit. 19. 66. c. maime kill or imprison him c. Talis enim debet esse metus qui cadere potest in virum constantem qui in se continet mortis periculum corporis cruciatum Co ibid. 266. a. 3. 20 If the Donee in taile discontinue in fee Discontinuance of an estate tail the reversion of the Donor is turned to a naked right and here if the Donor release to the discontinuee and the Donee die and the issue in taile doth recover the land against the discontinuee he shall recover no more then the estate taile and must then by consequence leave the reversion in the discontinuee for he can recover no more than was due to him by the gift of the Donor which was the cause and ground of his title neither yet in this case shall the Donor have the reversion againe against hâ—s own release Co. ibid. 355. a. 2. 21 Whereas divers hold opinion that upon a recovery had by default in an action of Wast against tenant in Dower or by the courtesie Waste a Quòd ei deforceat lyeth not because the default is not the cause of the judgement For notwithstanding the default there goeth forth a writ to enquire de vafto facto quod vastum predict A. the defendant fecit So as the defendant may give evidence and the jurors may find for the defendant that no wast was done as in an assize albeit it be awarded by
servant unto whom they bare no former malice yet was it adjudged Murder because of their murderous intention which was the cause of his death it is otherwise when one having no malicious intent joynes himselfe with others that commit a murder for that is but Man-slaughter in him that so suddenly joynes with them 44 E. 3. 14. b. 14 Ass Pl. 20. Finch 10. 52 A man makes me sweare to bring him money to such a place Terrour or else he will kill me I bring it accordingly this is felony So if he make me swear to surrender my estate unto him and I do so afterwards this is a disseisin to me 21 E. 4. 68. b. Finch 10. 53 One imprisoned till he be content to make an Obligation at another place and afterwards he doth so being at large The like yet he shall avoid it by dures of imprisonment 3 E. 3. 84. Finch 10. 54 Outlawry in trespass is no forfeiture of land Outlawry in trespass in forfeiture as Outlawry of felony is for although the not appearing be the cause of Outlawry in both yet the force of the Outlawry shall be estéemed according to the heinousness of the offence which is the principal cause and foundation of the processe Villenage 55 A man and a feme sole have a villein Finch 10. and afterwards enter-marry and the villeine purchaseth land they shall not have the land by entierties but by moities Ioyntly or in Common as they had the villein An action for goods bailed 56 If one deliver goods to another 22 H. 6. 1. Co. l. 10. 51. b. Lampets case and after the Bailor release to the Bailée all actions the Bailée dies in a writ of Detinue brought against his executors they shall not take advantage of that release for that determines by the death of the Bailée and the action given against the executors is a new action although of the same nature grounded upon their own deteiner Election of an Annuity or distress 57 If a rent charge be granted to A. and B. and their heires Co. Inst pars 1 146. a. 1. A. distreineth the Beasts of the Grantor who sueth a Replevin A. avoweth for himselfe and maketh Conusance for B. A. dieth and B. surviveth Here B. shall not afterwards have a writ of Annuity for the election and avowry for the rent of A. barreth B. of any election to make it an annuity albeit he assented not to be the avowry because in that case the act of one joyn-tenant barreth the other and the election takes his rise from several causes viz. the land or the person and therefore when the election once fixeth upon the land it cannot afterwards charge the person It is otherwise when a man may have election to have several remedies for a thing that is méerly personal or méerely real from the beginning 28 E. 3. 98 b. 27 E. 3. 89. b. As if a man may have an action of accompt or an action of debt at his pleasure and he bringeth in an action of accompt and appeares to it and after is non-suit yet may he have an action of debt afterwards because both actions charge the person The like Law is of an Assise or of a writ of Entry in the nature of an Assise and the like 15 E. 4. 16. 10 E. 4 5. Co. Inst pars 1 295. a. 3. Wager of law 58 In an action of accompt against a receivour upon a receipt of money by the hand of another person for accompt render unlesse it be by the hands of his Wife or Commoigne the defendant shall not wage his Law because the receipt is the ground of the action which lyeth not in privity betwixt the Plaintife and Defendant but in the notice of a third person and such a receipt is traversable a 33 H. 6. 24. 13 H. 7. 3. a. 22 H 6. 41. 1 H. 6. 1. b. 8 H. 6. 11 c. But in an action of debt upon an arbitrament and in an action of Detinue by the bailment of anothers hand the Defendant shall wage his Law because the Debet and the Detinet is the ground of those actions and the contract or bailment though it be by another hand is but the conveyance and not traversable Descent to Daughters yet no Coparâ—eners 59 Land is given to a man and his wife and the heires of their two bodies and they have issue a daughter the wife dies Littl. § 662 663. the husband takes another wife and hath issue another daughter and discontinues the taile and after disseiseth the discontinuée and so dies seised Here the land shall descend to both the daughters but yet they are not Coparceners because they are in by several Titles viz. the eldest is remitted by force of the intaile to the one moity and the other hath Fée simple by force of the descent from her father but in this case the eldest shall out the youngest by her action of Formedon Recovery in value 60 If the heir of the part of the mother of land Co. Inst pars 1 13. a. 1. Pl. Co. 292. 515 whereunto a warranty is annexed is impleaded and vouch over and judgement is given against him and for him to recover in value and dieth before execution the heir of the part of the mother 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. ibid. 201. b. 3. 61 He that will take advantage of a re-entry for non payment of rent must make demand of the same upon the land Demands upon the land because the land is the principal debtor for the rent issueth out of the land and in an Assise for the rent the land shall be put in view and if the land be evicted by a title paramount the rent is avoided and after such eviction the person of the Feoffée shall not be charged therewith for the person of the Feoffée was onely charged with the rent in respect of the grant out of the land c. Howbeit Homage or any other special corporal service must be done to the person of the Lord and the tenant ought by the Law of convenience to séek him Co. ibid. 210. a. 1. to whom the service is to be done in any place within England for that and the like services are due and issue out of the land in respect of the person c. F. N. Br. 150. d. 62 If a man recover in value against the baron by warranty of the ancestor yet the feme of the baron shall be endowed Dower because the recovery was had by force of the warranty made and not by reason of any eigne title to the land Dyer 13. 62. 28 H. 8. 19 E. 3. 63 If land be given in Frank-marriage Divorce and after the Donées are divorced the party by whom the
cause of the Divorce was first moved shall lose the land as if the feme sued for it the baron shall have it è contrà Tamen quaere for one book saith that the land shall be divided betwixt them per Fitzherbert F.N.B. 121. p. 64 If a man be condemned in trespasse or debt upon an obligation Capias pro fine where he denies his déed at the suit of the partie and after he that is condemned is taken by Capias pro fine at the suit of the King and committed to the Gaole here if the Gaoler suffer him to escape the party shall have an action of debt against the Gaoler for this condemnation and yet he was not committed to him at his suit but at the suit of the King Howbeit within the yeare after the condemnation and judgement given this suit for the King shall serve as well for the party as for the King because the King was entitled to it by the party for his suit and judgement was the cause of the Kings fine It is otherwise after the yeare because it will be intended they are agréed and then the party is put to his Scire facias c. Co. Inst pars 1 245. b. 2. 65 If a Bastard eigne after the deceease of the father entreth Bastard Muâ—â— and the King seiseth the land for some contempt supposed to be committed by the Bastard and the Bastard dies and his issue is upon his petition restored to the possession for that the seisure was without cause In this case the Mulier is barred for ever for the possession of the King when he hath no cause of seisure shall be adjudged the possession of him for whose cause he seised But if after the death of the father the Mulier be found heire and within age and the King seiseth In that case the possession of the King is in right of the Mulier and vesteth the actual possession in the Mulier for that she was the cause that occasioned the seisure and consequently the Bastard eigne is in such case fore-inclosed of any right for ever So it is likewise when the King seiseth for a contempt or other offence of the father or any other ancestor for in that case also if the issue of the Bastard eigne upon a petition be restored for that the seisure was without cause the Mulier is not barred for the Bastard could never enter and consequently could gaine no estate in the land but the possession of the King shall be adjudged in the right of the Mulier and the rather for that the father or other ancestor of the Mulier was the cause of the seisure Dyer 100. a. 70 1 Mar. 66 If the King grant land by Charter probis hominibus villae de Islington rendring rent Kings Chancâ— this is a good and perpetual Corporation for that intent but if the King release or give them the rent and fée-farme it séemes the Corporation is ipso facto dissolved for the rent and farme were the cause of their incorporation 22 Cujus est dare ejus est disponere A proviso imports a condition 1 A. bargaines and sels the Mannors of D. unto which an Advowson was appendant with the appurtenances unto B. and his heires provided alwayes Co. l. 2. 71. b. 2 The Lord Cromwels case that B. regrant the Advowson to A. during his life B. dies not having regranted the Advowson to A. who enters for the Condition broken Here whereas it was amongst other things objected that this Proviso could not import a Condition because the Bargainor did onely covenant with the Bargainée and therefore the Bargainée should also be understood onely to Covenant with the Bargainor and so that Proviso onely to import a Covenant and not a Condition It was resolved that it had the force of a Condition because it was not unjust or unequal that the Bargainor from whom the land moved should annex what Condition soever he pleased to the estate of the land for Cujus est dare c. Feofment to the use of a Will 2 If a man seised of lands in fée makes feoffment to the use of such person and persons and for such estate and estates Co. l. 6. 18. a. 1. Sir Edward Cleres case as he shall apppoint by his will here by operation of Law the use rests in the feoffor and he is seised of a qualified fée viz. until declaration and limitation be made according to his power so also when a man makes feoffment to the use of his last will he is in the mean time seised to the use of himselfe and his heires Legiantia naturalis acquisita 3 Legiantia naturalis may be properly said to be pura indefinita Co. l. 7. 5. b. 4. Calvins case but Legiantia acquisita may be limited according to the will of the King that grants it as to an alien and his heires or to him and the heires of his body or to him for life onely or upon Condition c. for Cujus est dare c. A stranger may take advantage of a condition 4 If A. grants lands to B. for life the remainder to C. for life Plowd 24. b. 4. 31. a. 4. Colthrist and Beinshin ibid. 34. â—â—1 and if C. die living B. that then they shall remaine to D. for life here although it was objected that the remainder to D. was void because limited to commence upon a Condition whereof none can take advantage but privies yet it was adjudged good For that God hath committed all wordly things to the order and dispose of men So that when any doth lawfully enjoy such things he may order or convey or give them where when and how he pleaseth according to his intent and meaning so that his intent be not against Law against Reason or repugnant And therefore in this case when the Lessor appoints the remainder to the Defendant ut supra his intent is plainly discovered thereby and reason requires that his intent should be performed viz. that the remainder should take effect in manner and forme as he hath appointed Liberty given to the tenant to pay which he will 5 If there be Lord and Tenant and the Lord holds by a Capon Plowd 96. a. 4. Woodlands case or an Egge or 12 d. rent Here the Lord shall not come to the land and take a Capon and Egge or 12 d. being arrere although he find it there but the onely remedie is to distrein for it Howbeit in that case if the Tenant have 20 Capons 20 egges or 20 s. of Silver it is in the power of the Tenant to give the Lord which Capon Egg or twelve pence he pleaseth So that the liberty is not given to the Lord to take which of them he will but to the Tenant who is to pay the thing Hedgboot c. by assignment 6 The Lessor covenants Dyer 19. 115â— 28 H. 8.
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
In that case although the Habendum be of a lesse estate then is mentioned in the premisses yet the Habendum shall stand as if land be given to a man and his heires Habendum for yeares here to the Fee simple limited in the premisses it is requisite to have Livery and Seisin and untill Livery be had nothing passeth but an estate at will if the Deed should go no further but by the Habendum for yeares the estate takes effect immediately upon the delivery of the Deed although Livery of Seisin be never given Co. l. 4. 61. Porfe and Hemblings case 2 R. 2. Attornment c. 24 A Feme Sole makes a Lease for life rendring rent Feme Sole Attornement and after by her Deed grants the Reversion to another and after and before Attornement marries with the Grantee here this mariage was not a counter-mand of the Attornement no more than if she had married with any other stranger because in that case when the Feme by her Déed sealed and delivered had granted the reversion to another that grant took such effect against her selfe that she could not by any words which she could use counter-mand it before or after the taking of the Baron Co. l. 4. 70. b. 4. â—indes case 25 If a man bargaine and sell lands to another by Deed indented Fine and Bargaine and Sale and also levy a Fine of the same lands unto the Bargainee and after the Deed is inrolled according to the Statute In this case the Grantee shall be in by the Fine and not by the Deed inrolled for when the Fee simple past by the Fine to the Conusee and his heires the inrollement of the Deed indented afterwards cannot devest and turne the estate out of him which was absolutely established in him by the Fine for then whereas he was in before in the per he shall be now in the post which cannot be And when the Common Law and Statute Law concurre the Common Law shall be preferred Co. l. 4. 89. b. 4. Druries case Co. ibid. 11â— a. Actons case 26 When a Countesse retaines two Chaplains A Countesse but two Chaplains those two are each of them capable of a Dispensation by force of the Statute of 21 H. 8. cap. 13. but when she hath so retained two the Statute is executed for she cannot have more than those capable of a Dispensation and the retainer of a third in the life time of the two first cannot devest the capacity of Dispensation which was at first vested in them by their retainer to make the third capable of a Dispensation within the Statute albeit he should survive both the first because the retainer had an evil commencement to take benefit of the Statute for although a Countesse may have as many Chaplains as she pleaseth at the Common Law yet she can not have more than two capable of a Dispensation by force of the Statute Presentee first and second in E 6 and Qu. Eliz. and Qu. Maries time 27 If two have Title to present by turne Co l. 5. 10â— Winsors case and the one presents his Clerke who is Admitted Instituted c. and after is deprived for crime or heresie c. yet he shall not present againe but this shall serve for his turne So if he present mere laicus which was Admitted Instituted c. although he be declared by sentence to be incapable and therefore void ab initio yet because the Church was full untill the sentence declaratory came that shall serve for his turne because it was but voidable as in the case of Littleton if the Lord marry his ward within age of consent and after he disagree unto it and so was no mariage ab initio yet he shall not marry him afterwards So 27 H. 6. Gard 118. if the Guardian marry his Ward and after they are divorced causa precontractus yet he shall not have the mariage of him againe But when the Admission and Institution are meerly void then without question that shall not serve for a turne 23 Eliz. Dyer Pl. ultimo as if his Presentee had been Admitted Instituted and Inducted but had not subscribed to the Articles c. according to the Statute 13 El. by which in such case the Admission Institution and Induction are all void c. Likewise where two were to present by turne and one presented in E. 6. time his Clerke The principal case in Winsors case who in Queen Maries time was deprived by sentence and then the other presented his Clerke who in 1 Eliz. was also deprived by sentence and by the same sentence the first Presentee was restored and after died in this case the Patron of the second Presentee shall not loose his turne For although the second Presentee was person for the time to all purposes and the first Presentee during the first deprivation was not Incumbent yet when the second sentence came the first Presentee was Incumbent againe by force of his first Presentation Admission c. and there needed no new Presentation c. and therefore when this first Presentee dies who was then in course the last Incumbent the Patron of the second Presentee must needs present in the next turne but if the first Presentee had died before the second sentence or had not reversed the first sentence then the Patron of the last Presentee had enjoyed his turne and could not have presented againe Tender of money c. 28 As concerning the tender of money upon a Mortgage Bond Co. l. 5. 114. b. 2 Wades case c. upon a certaine day therein limited although the last time of payment of the money by force of the Condition be such a convenient time before sun-set as that the money may be told before the Sun be set yet if tender be made unto him that ought to receive it at the place specified in the Condition at any time of the day and he refuse it the Condition is saved for ever and the Mortgager or Obliger need not to make tender of it againe at the last instant of the day as aforesaid for by the expresse letter of the Condition the money is to be paid upon the day indefinitely and the Law assignes the last instant to the end neither of the parties should lose their labour in attending the payment c. Plea of non est â—actum or â—udgement si â—ction 29 In all cases when a Deed is onely voidable at the time of the Action brought as for Infancy Dures Co. l. 5. 119. Whelpdales case or the like the Defendant ought to plead Judgement si Action and not non est factum 1 H. 7. 15. So also when the Déed is void by Act of Parliament he ought not to plead non est factum but in construction of Law the Deed is to be avoided by special pleading taking advantage of the Act of Parliament for albeit the Act saith the Obligation
Wardship of an use 8 In a writ of Ward the case was this before the Stat. of 27 H. 8. Dyer 12. 28 H. 8. 54. c. a man enfeoffs I. S. of Knight-service land to the use of the Feoffor and his heirs after I. S. enfeoffs I. N. to the use of the Feoffor and his wife and the heirs of the Feoffor the Feoffor dies living the wife having a sonne within age In this case the sonne shall be in Ward in the life of the Feme by the Stat. of 4 H. 7. as heire of Cestuy que use because the ancient use doth still remain in the sonne notwithstanding it be in some sort altered in respect of the Feme for by the last feofment the sonne had no more conferred upon him then he had before so as notwithstanding the last Feofment there was still a reversion of use in the sonne and not a new remainder because a thing cannot be given to a man which he hath already Vide plus ibidem vers fine So Cestuy que use of two acres one holden by priority the other by posteriority makes a Feofment of both to his own use this makes no equality of tenure Recovery Feoffment because the ancient use which he had before still remains The Lord Rosses case 9 If one recover against me by a common recovery Dyer 18. 105. 28 H. 8. and after I infeoffe the recoveror he shall be still seised to my use for he shall be adjudged in by the recovery and not by the Feofment 39 Lex non Praecipit inutilia Vide M. 177. 5. Co. Inst pars 1. 389. b. 3. Littl. § 743. 1 If Tenant in taile enfeoffe his Vncle in fée Warranty destroyed who aliens to a stranger with warranty to hold to him and his heires or to him his heires and assignes and the Vncle afterwards takes again an estate of the land in fée in this case the warranty is destroyed because it were néedlesse for the Vncle to warrant the land to himselfe and the Law will not command or suffer things that are in themselves uselesse and unprofitable Co. l. 5 89. a. 4. Frosts case 2 When a man is in the custodie of the Sheriffe by process of Law A prisoner in custodie needs not be formally arrested and after another Writ is delivered unto him to take the bodie of him that is so in his custodie he is immediately by judgement of Law in his custody by force of the second Writ albeit he make no actuall arrest of him for to what purpose should he arrest him when he is already in his custodie Et lex non praecipit inutilia quia inutilis labor stultus c. Co. l. 6. 29. b. 2. Greens case 3 When a Parson is admitted instituted and inducted to a Church An Incumbent not reading the Articles is out without sentence and doth not read the Articles according to the Statute of 13 Eliz. 12. the Benefice is thereupon void by force of that Statute without procuring a sentence declaratory to deprive him for it will be néedlesse to obtaine such a sentence when the Living is already voyd and open for the Patron to present another Co. l. 8. 61. a 3. Beechers case Co. lib. 8. 126. a. b. 4 In judicial processe In a Judiciall writ the plaintiff shall not find pledges the Plaintiffe shall not be enjoyned to finde pledges de prosequendo for in those processe although the Plaintiff be barred nonsuited or that the Writ abate yet shall he not be amercied because such processe are grounded upon a judgement and record And it is a needlesse and vaine thing to binde the Plaintiff to finde pledges in such cases where he cannot be amercied Vide supra 35. 20. The case of the City of London 5 That which appears plainly to the Court That which appears need not be averred ought not to be averred by the party So in the City of Londons case the Constitution there made appearing to be agréeable to and warranted by their Charter néeded not to be so averred So also no price of money shall be expressed in the Writ because it appears of it selfe 46 E. 3. 16. Likewise 12 H. 4. 17. The sonne within age brings an Assise of Mortdancester he ought not to aver that it is within time of limitation for it appears Co. l. 10. 67. b. 4. The case of the Church-warden of St. Saviour c. 6 In a speciall verdict concerning a Bargain and Sale Demise The consideration not to be found by a Jury or the like the Iurors shall not be constrained to finde the payment of the money mentioned amongst the other considerations for it shall be néedlesse to finde that which is affirmed to be already payd and satisfied in time before the Grant and is a personall consideration already executed And this is true as well in the Kings case as in the case of a Subject F. N. B. 38. l. 7 Where in a writ of right of Advowson Parson imparsonee shall not have a writ to the Bishop c. the Defendant claims the same Advowson as Parson imparsonée albeit the title be found for the Defendant yet shall he not in that case have a Writ to the Bishop ad admittendum Clericum For in construction of Law he is already in the Benefice F. N. B. 106. g h. 8 If a man recover in a Praecipe quod reddat against a Tenant by false Verdict No attaint before execution the Tenant cannot have an attaint before execution bée had against him because in an Attaint the judgement is that he shall be restored c. and it were improper and néedlesse to give such judgement when the Tenant still retains the possession of the land Note that this is put as a quere in Fitz but hee seemes rather to favour this opinion c. 〈◊〉 tenants 〈◊〉 need not â—verred â—nced 9 In an action upon the Statute of 32 H. 8. 9. Pl. Co. 87. b. 3. Partridges case against buying of pretenced Titles if the Plaintiff sheweth by his count that neither the Defendant nor any of his Ancestors nor any other by whom he claims c. were in possession of the land c. nor of the reversion or remainder c. nor received the rents or profits c. by the space of a yeare c. The Plaintiff néed not aver the title to be pretenced for the Statute it selfe maketh the right of him which hath not béen so in possession to be pretenced and therefore to aver that which appears plainly by the Statute it selfe and the Declaration is néedlesse and impertinent So if it be pleaded â—eed of â—nment that the Lessée surrendred to the Grantée of the reversion there is no néed of pleading attornment for attornment is included in the surrender 40 Where the foundation faileth all goeth to the ground Debile fundamentum fallit opus
granted in the time of Quéen Eliz. Quaere whether or no the Extent was returned without warrant Errour 78 In debt the Iudgment was reversed Dyer 130. 58. 6 Eliz. because there was no warrant of Attorny entred and this albeit the Writ of Error was brought the same terme the record remaining still in the breasts of the Iustices and the Plaintiff had prayed entry thereof Note that both the first Action and the Writ of Errour were brought in Banco Regis Lease void 79 The Provost of Wels being Parson imparsonee of the Parsonage of Winsam leaseth the tithes for fifty years rendring rent Dyer 239. 40. 7 Eliz. which was also confirmed by the Deane and Chapter but not by the Patron and Ordinary the Provostship was by Parliament united to the Deanary cum primo vacare contigerit The Provost dies the Deane accepts the rent yet the lease is not affirmed by such acceptance for the Provosts lease was void by his death as it is of a Parson or Prebend It was otherwise of a Bishop Deane Abbot c. which were elective and before the Statute of 1 Eliz. not printed might make discontinuance but if the lease above had béen for life it had not been void before entry Also the acceptance above was to no purpose for the reversion was determined and the name of succession altered As if Tenant in Dower or other particular Tenant make a lease and die and he in reversion or remainder accept the rent this is no affirmation because the reversion is altered 80 Hob. 10 Doctor Leyfield against Tisdale 41 Things incident are adhaerent to their Superiours or Principals Deeds c. in whose custody to remain 1 A man seised of Lands in fee hath divers Charters Deeds Co. inst pars 1. 6. a. 2. The Lord Buckhursts case Co. l. 1. 1 2. and Evidences and maketh a feoffment in fee either without warranty or with warranty onely against him and his heirs In this case the Purchaser shall have all the Charters Deeds and Evidences as incident to the lands ratione terrae to the end he may the better defend the land himself having no warranty to recover in value for the evidences are as it were the sinews of the land and the Feoffor being not bound to warranty hath no use of them But if the Feoffor be bound to warranty so that he is bound to render in value then is the defence of the title at his peril and therefore the Feoffee in that case shall have no deeds that comprehend warranty whereof the Feoffor may take advantage Also he shall have such Charters as may serve him to deraign the warranty paramount Likewise he shall have all Deeds and Evidences which are material for the maintenance of the title of the land but other evidences which concern the possession and not the title of the land as Court Rolls c. the Feoffee shall have them as concomitantia incidentia to the possession Land on the part of the mother 2 If a man seised ol Lands as heire of the part of his Mother Co. Inst pars 1. 12. b. 4. maketh a feoffment in fee reserving a rent to him and to his heirs this rent shall go to the heirs of the part of the Father vide N.B. 40. 70. but if he had made a gift in falle or a lease for life reserving a rent the heire of the part of the Mother shall have the reversion and the rent also as incident thereunto shall passe with it but the heire of the part of the Mother shall not take advantage of a condition annexed to the same because it is not incident to the reversion nor can passe therewith The like for service 3 If a man had been seised of a Mannor Co. ibid. as heire on the part of his Mother and before the Statute of Quia emptores terrarum had made a feoffment in fee of parcell to hold of him by rent and service albeit they be newly created yet for that they are parcell of the Mannor they shall with the rest of the Mannor descend to the heirs of the part of the Mother quia multa transeunt cum universitate quae per se non transeunt Co. ibid. 4 If a man hath a Rent-seck of the part of his Mother The like for distresse and the Tenant of the land granteth a Distresse to him and his heires and the Grantee dieth the Distresse shall go with the rent to the heir of the part of the Mother as incident or appurtenant to the rent for now is the Rent-seck become a Rent-charge Co. ibid. 19. b. 3. 5 By the Statute of Westm 2. The land incident to the tenant in tail the land is as it were appropriated or incident to the Tenant in tail to the heirs of his body and therefore if an estate be made either before or since the Statute of 27 H. 8. cap. 10. to a man and the heirs of his body either to the use of another and his heirs or to the use of himselfe and his heirs this limitation of use is utterly void for before the said Statute of 27 H. 8. he could not have executed the estate to the use P. 14 Jac. in B. R. And so it was adjudged in an Ejectione firmae between Cooper Plaintiff and Franklin c. Defendant Co. ibid. 22. b. 3. 6 The possibility of having heirs to inherit is so inherent and incident to a man as long as he lives A remainder to a mans right heirs is a limitation to himselfe that it cannot by any act of his be severed from him during his life except when his blood is corrupt by attainder T. 23 Eliz. Fenwick and Mitfords case c. And therefore at this day since the Statute of 27 H. 8. cap. 10. If a man seised of lands in fee make a feoffment in fee and depart with his whole estate and limit the use to his daughter for life and after her decease to the use of his sonne in taile and after to the right heirs of the Feoffor In this case although he departed with the whole Fee-simple by the feoffment and limited no use to himselfe yet hath he a reversion for whensoever the Ancestor takes an estate for life and after a limitation is made to his right heirs the right heirs shall not be purchasers And here in this case when the limitation is to his right heirs and right heire he cannot have during his life for non est haeres viventis the Law doth create an use in him during his life untill the future use cometh in esse and consequently the right heirs cannot be purchasers And there is no diversity when the Law creates the estate for life and when the party And if the limitation had béen to the use of himselfe for life and after to the use of another in taile and after to the use
extinct but if a man make a gift in taile or a lease for life c. rendring rent and disseise the Tenant in taile or for life c. and make feoffment in fée Here albeit the estate passeth to the Feoffée yet when the Donée or Lessée re-enters he shall revive the rent as an incident to the reversion There is the same Law also of a lease for years c. Co. l. 7 4. b. 3. Calvins case 48 Ligeance is a true and faithful obedience of the subject due to his Sovereign Allegiance 〈◊〉 Incident And this allegiance and obedience is an incident inseparable to every Subject for as soon as he is born he oweth by birth-right ligeance and obedience to his Sovereign Co. l. 7. 18. a. 3. Calvins case 49 There be regularly unlesse it be in special cases thrée incidents to a Subject born The like 1 That the Parents be under the actual obedience of the King 2 That the place of his birth be within the Kings Dominion And 3 The time of his birth is chiefly to be considered for he cannot be a Subject borne of one Kingdome that was born under the ligeance of a King of another Kingdome albeit afterwards one Kingdome descend to the King of the other Co. l. 8. 54. a. 3. Syms case 50 If a man be seised of an house in right of his wife Estovers incident to a house and another grants to the Baron and his heirs to have sufficient Estovers to burne in the house In this case the Estovers are incident and appurtenant to the house and shall descend to the issue of the Baron and Feme So likewise if one hath an house of the part of the Mother and one grant to him and his heires competent house-boot to be burnt in the same house Here those Estovers are incident to the house and therefore albeit that was a new purchase yet it shall go with the house to the heire of the part of the Mother Imprisonment incident to a Fine 51 Vnto every Fine imposed in Court Imprisonment is incident Co. l. 8. 59. b. 3. â—eechers case And therefore in all actions Quare vi armis as Rescous trespasse vi armis c. if the Defendant upon judgement given against him be fined he shall also be imprisoned For when the judgement is quòd defendens capiatur that is as much to say as quòd capiatur quousque finem fecerit c. A rent incident to a reversion 52 If a man make a lease of thrée acres all of equall value per annum Co. l. 8. 79. b. 3. Wiat Weilds case rendring 3 s. rent and the Lessor grants the reversion of one acre and the Tenant attorns the Grantée shall have 12 d. rent For albeit there was but one lease one reversion and one rent yet that rent being incident to the reversion which was severable shall therefore attend upon the reversion and upon every part of it Incidents to Corporations 53 When a body politique is incorporated by prescription by a certaine name then to implead or to be impleaded to grant and purchase Co. lib. 10. 29. b. 4. The case of Suttons Hospital Co. lib. 11. 77. a. 3. Magdalen Colledge case c. are things incident unto it Incidents inseparable 54 If the Donee in taile holds of the Donor by fealty and the Donor by deed inrolled grants the fealty to the King that grant is meerly void because fealty is an incident inseparable to the reversion as it was holden 26 Ass Pl. 66. So also if the founder of a Colledge c. will grant his Foundership to the King by deed inrolled that is void because it is inseparable to the blood as it was holden Co. l. 11. 78. a. 3. the same case Tempore H. 8. B. R. tit And therefore if before the Statute of 18 Eliz. cap. 2. which was to make good all Grants made either by or to the Queen a grant had been made to the Queen of such inseparable incidents as of a Foundership or of such services of Donee in taile as aforesaid that Act would not have made such grants good because such things are not grantable c. Estovers 55 Estovers or wood granted to be burnt in such an house 12 Eliz. 381. Finch 15. shall go to him that hath the house by whatsoever title he hath it for one is inseparably incident to the other Fealty 56 Lord and Tenant by Fealty and Homage 7. E. 3. 11. the Lord releaseth his fealty this is void for Fealty is incident to Homage Finch 15. An office 57 An office of skill and diligence 12 Eliz. 379. or an Annuity pro concilio impendendo cannot be forfeited by attainder of Treason Finch 15. Court Baron Faire 58 A Court Baron is incident to a Mannor 19 H. 8. Br. Incidents 34. and a Court of Pipowders to a Faire And therefore one cannot grant the Mannor or Faire reserving those Courts Finch 15. Castle-guard 59 Where one holdeth of a man to keepe his Castle 31 E. 3. Assise 441. the Lord cannot grant his Castle-guard reserving his Castle Finch 15. Covenant incident to the â—and 60 It hath been adjudged Co. Inst pars 1 384. b. 4. that where two Coparceners make partition of land and the one made a covenant with the other to acquit her and her heirs of a suit that issued out of the land the Covenantee aliened In this case the Assignee shall have an action of Covenant albeit he was a stranger to the Covenant because the acquitall did run with the land and was incident unto it in whose hands soever it should come 42 E. 3. per Finchden Covenant â—â—ns with the â—and 61 A. seised of the Mannor of D. whereof a Chappel was parcell Co. ib. 385. a. 1. a Prior with the assent of his Covent covenanteth by deed indented with A. and his heirs to celebrate Divine Service in his Chappel weekly for the Lord of the said Mannor and his servants c. In this case the Assignees shall have an action of Covenant albeit they were not named for that the remedy by Covenant doth run with the land to give damages to the party grieved and is as it were incident and appurtenant to the Mannor But if the Covenant had been with a stranger to celebrate Divine Service in the Chappel of A. and his heirs there the Assignee shall not have an action of Covenant for the Covenant cannot be annexed to the Mannor because the Covenantee was not seised of the Mannor F. N. B. 138. l. 62 In some case the heire shall have an action of Detinue for Charters albeit he hath not the land as if I be enfeoffed with warranty A detinue for charters and I enfeoff another with warranty in fée Here my heire shall have a Writ of Detinue for the déed by which I
was enfeoffed to the end he may have the advantage of the warranty c. Co. l. 7. 9. b. 1. Calvins case 63 Ligeance and obedience on the Subjects part to his Prince Ligeance inseparably incident in all places to the subject is an inseparable incident to that power and protection whereby the Prince may command and ought to defend his Subject And this ligeance and obedience which that power and protection thus draweth after them cannot be locall or confined to any certain place or Kingdom but follows the Subject whethersoever he goeth And therefore it is truly said Qui abjurat regnum amittit regnum sed non Regem amittit patriam sed non patrem patriae c. for notwithstanding the abjuration he still oweth the King his ligeance and still remaineth within his protection because the King if he please may pardon and restore him to his Countrey again c. Littl. §. 366. Co. Inst pars 1. 227. b. 4. 64 If a man seised of lands in fee lets them for life without deed A condition incident to as estate for life rendring rent with clause of re-entry upon non-payment of the rent whereupon if the Lessor enter and the Lessée bring an Assize of Novel Disseisin the Iurors may finde the matter at large and the Iustices ought to adjudge it for the Tenant albeit regularly a condition is not valid without deed shewed in Court and that the Lessor shew no deed for they that have conusance of a thing are to have conusance also of all incidents and dependance thereupon and in this case the condition is an incident necessarily depending upon the estate for life which was perfected by livery Vide supra 28. Dyer 2. 1 2. 6 H. 8. 65 Emson avows for Rent-charge granted to him by a stranger Rent land incident to the person who was seised of the land where c. pro consilio impendendo the Plaintiffe pleads in barre that the Defendant was attainted of Treason and committed to the Tower yet the Grantor had néed of Counsel and could not have accesse c. and upon demurrer the Iudgment was that the Avowant should have return because the rent being incident to the person of Emson could not be granted over or forfeited So likewise land given by the King to a Duke to support his dignity cannot be granted over See Max. 45. Dyer 45. 35. 36. 30 H. 8. 66 The King can by no way grant or sever the tenure and seigniory in Chiefe from the Crown Tenure in Capite for no Subject can take it of his grant with such a prerogative And therefore if the King make a release to his Tenant in Capite to hold by a penny and not in Capite this is a void release for that tenure is méerly incident to the person and Crown of the King and hath such a prerogative that it cannot be held of any Subject as the Tenant in Frankalmoigne cannot hold of any other than of the Donor and of his person because it is a speciall tenure Also if the King at this day make a gift in taile to hold of him in Capite and after he grant the reversion of that land to another in fée neither the tenure nor service passe to the Grantée but remain in the King because they are not incident to the reversion but to the person of the King Dyer 175. 25. 132 Eliz. 67 The office of Exigenter of London being void Exigenter of London and Coke Chief Iustice of the C. B. being then also dead Quéen Mary during the vacation of the said places conferred by her Letters Patents the Exigenters office upon Colshil and then made Brown Chiefe Iustice of that Court But Brown refuseth Colshil and admits Scrogges thereunto And in this case it was resolved by all the Iudges and others save the Iustices of the Common Bench that the said office did not appertain to the Qu. to grant but onely in the dispose of the Chiefe Iustice for the time being as an inseparable incident to his person and place and that by reason of common usage and prescription â—ase of Deâ—esnes 68 A Prior makes a lease of the Demesnes of a Mannor rendring rent Dyer 233. 10. 7 Eliz. the King after the dissolution makes a lease for years of the Mannor And it was adjudged that by the name of the Mannor the rent and reversion of the Demesnes passed â—hattel vestâ—â— 69 A wardship fell to the Bishop of Durham by a tenure of him in Capite who dies before seisure yet his Executors shall have it Dyer 277. 57. 10 Eliz. and not the King or Successor for it was incident to his person and a chattel vested in him before his death 42 Quod tacitè intelligitur deesse non videtur V. 64. 11. â—opiholds 1 When custome hath once created Copiholds of Inheritance Co. l. 4. 22. a. 3. in Brownes case and that the land shall be descendable then the Law doth also direct the descent according to the Maximes and rules of the Common Law as incidents to every estate descendable So 5 E. 4. 7. when uses have gained the eeputation of Inheritances descendable the Common Law shall direct the descent of them and that there shall be Possessio fratris of an use as well as of other Inheritances at the Common Law â—ontract imâ—orts an Asâ—umpsit 2 Every contract executory imports in it selfe an Assumpsit Co. l. 4. 94. a. 4. Slades case For when one agrées to pay money or to deliver any thing he doth thereby assume and promise to pay or deliver it and therefore when one sells any goods to another and agrées to deliver them at a day to come and the other in consideration thereof agrées to pay so much money at such a day In this case both the parties may have an action of Debt or an action upon the case upon Assumpsit For the mutual executory agreement of both the parties imports in it selfe as well a reciprocal action upon the case as an action of debt And with this agrées the Iudgment in Reade and Northwoods case Pl. Co. fol. 128. â—xchange imâ—orts warranâ—â— and a conâ—ition 3 In every exchange rightly made Co. l. 4. 121 a. 4. Bastards case this word Excambium imports in it selfe tacitè a condition and also a warranty the one to give re-entry the other Voucher and recompence and all in respect of the reciprocal consideration the one land being given in exchange for the other but that is onely a special warranty for upon Voucher by force thereof he shall not recover any other land in value but that only which was so given in exchange c. And as it is in case of warranty so is it also in case of the condition which the Law implies upon the exchange for if the exchange be betwixt A. and B. and A. aliens his exchanged land to
second deliverance is a Supersedeas to the Returno habendo by which it is implyed that the Sheriff ought not to serve the Returno habendo Dyer 135. 13. 3 4 P. M. 24 In a Quare Impedit the Plaintiff entitles himselfe to the next avoydance by the grant of the right Patron to a stranger An administration in Law who made two Executors and died and for that the Executors granted the next avoidance to him Et hoc absqueta ostentione literarum without shewing the testament of the first Grantée And in this case it séems he néed not shew them because albeit the Executors never proved the testament yet their grant of the next avoydance was good for that it was an administration implyed by Law Debt for rent 25 A lease for yeares is made of an house with divers Implements rendring rent the Lessor enters and makes feoffment Dyer 212. â—7 4 Eliz. the Lessée re-enters and for rent arreare the Feoffée brings debt and adjudged mainteinable albeit there wâ—â— no privity Howbeit the regresse of the Lessée is an attornment in Lâ—â— whereupon it seemes the Law creates a privity For in this case the rent was not extinct but onely suspended untill the Termor by his regresse revived the reversion Ejectione Firmae 26 In an Ejectione Firmae of a lease of a Rectory Dyer 304. 52. 14 Eliz. the verdict passed for the Plaintiff and it was moved in arrest of Iudgement that it was not shewed that the Parson was in life Howbeit because it was averred by Implication in the Court by these words Fuit adhuc est seisitus c. the Plaintiff had judgement Quare Impedit 27 A Church was void by the taking of a second Benefice upon the Statute of 21 H. 8. 13. and lapse devolved to the Queen Dyer 360. 7. 20 Eliz. who presents A. who was admitted instituted and inducted and afterwards the Queen presents B. A. dies the Patron brings a Quare Impedit against B. and counts of the avoydance and lapse suprà and that the Queen presented A. who was admitted and instituted and that the Church is now void by the death of A. And the question was whether or no this was sufficient without saying Inducted And it séemed it was because the Plaintiff alleadged that the Church was void by the death of A. which implies Induction and then it was not revocable 28 Vide Hob. 5. Gardiner against Bellingham 8. Yardly against Ellill 43 Things by reason of another are in the same plight Possessio fratris 1 Albeit the Maxime in Law be Co. Inst pars 1 15. b. 3. Possessio fratris facit sororem esse haeredem yet if the Sister die living the Brother her issue shall inherit before the brother of the halfe blood because he personates the Mother and therefore shall succeed the brother in the inheritance Acceptance of Rent 2 Tenant in taile makes a lease for forty yeares reserving a rent Co. ibid. 46. b. 1. to commence ten years after Tenant in taile dies the issue enters and enfeoffs A. the ten yeares expire the Lessee enters if A. accepts the rent the lease is good for he shall have the fame election that the issue in taile had either to make it good or to avoid it c. Coparceners 3 If there be two Coparceners of a reversion Co. ibid. 53. b. 4. and Waste is committed and the one of them die the Aunt and the Niece shall joyne in an action of Waste Courtesie Dower Waste 4 A Tenant by the Courtesie or in Dower Co. ibid. 54. a. 1. can hold of none but of the heire and his heirs by descent and therefore if they grant over their whole estate and the Grantee doth Waste yet the heire shall have an action of Waste against them and recover the land against the Assignee Waste 5 If Tenant for life grant over his estate upon condition Co. ib. 54. a. 3. and the Grantée doth Waste and the Grantor re-entreth for the condition broken the action of Waste shall be brought against the Grantée and the place wasted recovered c. 21. Tenant at â—ill â—aron and â—me 6 If a woman make a lease at will reserving a rent Co. ibid. 55. b. 4. Co. lib. 5. 10. Hensteads case and then taketh Huâ—band this is no countermand of the lease at will but the Husband and Wife shall have an action of Debt for the rent And so is it if a lease be made to a woman at will reserving a rent and the Lessée taketh Husband this is no countermand of the lease but the Lessor may have an action of Debt and distrain them for the rent So if the Husband and Wife make a lease at will of the wives land reserving a rent and the husband die yet the lease continueth In like manner if a lease be made by two to two others at will and the one of the Lessors and of the Lessées die the lease at will is not determined in either of these cases c. Co. Inst pars 1. 58. b. 1. 7 Tenant for years Tenant by Statute Merchant Staple Elegit Domini pro tempore at will Guardian in Chivalry c. may be Lords of a customary Mannor as well as those that have fée for â—â—â—eit they be not properly seised but possessed yet are they Domini pro tempore not onely to make admittances but to grant voluntary copies of ancient Copihold lands which come into their hands by forfeiture escheat or otherwise Also admittances made by Disseisors Abators Intruders Tenant at sufferance or others that have defeasible titles stand good against them that right have because it is a lawfull act and they are compellable to do it Howbeit they cannot make voluntary grants of Copies as aforesaid to binde the Disseisées c. because they come in by wrong and have estates that may he defeated Co. ibid. 58. b. 2. 8 In some special case an estate may be granted by Copie by one Copiholds grantable by an Executor that is not Dominus pro tempore nor that hath any thing in the Mannor As if the Lord of a Mannor by his Will in writing deviseth that his Executors shall grant the customary Tenements of the Mannor according to the custome c. for the payment of his debts and dieth the Executor having nothing in the Mannor may make grants according to the custome of the Mannor Co. ibid. 59. b. 3. 9 If the Lord of the Mannor for the time being be Lessée for life Dominus pro tempore coâ—pellable to admit or for years Guardian or any that hath a particular interest or Tenant at will of a Mannor all which are accompted in Law Domini pro tempore do take a surrender into his hands and before admittance the Lessée for life dieth or the years interest or custodie do end or determine or the
is to be bound by it And yet if the Father be Tenant for life the remainder to the same in fee the father by covin and consent maketh a lease for years to the end that the Lessee shall make a feoffment in fee to whom the father shall release with warranty and all this is executed accordingly the father dieth Here this warranty shall not binde albeit the Disseisin was not done immediately to the son for the feoffment of the Lessee is a disseisin to the father who is particeps criminis So it is if one brother make a gift in taile to another and the Vncle disseise the Donee and enfeoffeth another with warranty the Vncle dieth and the warranty descendeth upon the Donor and then the Donee dieth without issue Here albeit the Disseisin was done to the Donee and not to the Donor yet the warranty shall not binde the Donor So likewise if the father the son and a third person be Ioyntenants in fee the father maketh a feoffment in fee of the whole with warranty and dieth the son dieth the third person shall not onely avoid the feoffment for his own part but also for the part of the son and he shall also take advantage that in this case the warranty commenced by disseisin though the disseisin was done to another c. Co. l. 5. 79. b. Fitzherberts case Co. ibid. 372. a. 4. 23 By the Statute of the 32 H. 8. cap. 36. Fine barres aâ— entail in reversion a fine with proclamations according to the Statute of 4 H. 7. cap. 24. shall barre the estate taile but not him in the reversion or remainder if he maketh his claime and pursue his action within five years after the estate taile spent c. Howbeit if a gift be made to the eldest son and to the heires of his body the remainder to the father and to the heires of his body the father dieth the eldest son levieth a fine with proclamations c. and dieth without issue this shall bar the second son for the remainder descended to the eldest and therefore what the father might have done by force of a fine the eldest son shall in this case also do c. Co. lib. 3. 84. The case of Fines Dalison 2 El. 7 Eliz. 24 If the Lessor enter for the condition broken Debt for rent after surrender c. or if the Lessee surrender unto the Lessor Here the estate and terme is determined and yet the Lessor shall have an action of debt for the arrearages due before the condition broken or the surrender made as appears in Fitz. N. B. 120. 122. 30 E. 3. 7. 6 H. 7. 3. b. contrary to the booke of 32 E. 3. tit Barre 262. which is not Law and this is in respect of the contract betwixt the Lessor and the Lessee Co. lib. 3. 23. b. 4. Walkers case 25 A man may prescribe in a Water-course leading to his Grist-mill Prescription 〈◊〉 a Waterhouse albeit it was of late time changed from a Fulling-mill to a Grist-mil Et vice versa because that alteration is not of the substance of the prescription but the Mill may be so described to shew the nature and quality of it and doubtlesse at first he might prescribe in the Water-course before any Mill was built Co. l. 4. 87. a. 1. Luttrels case Co. ibid. 26 If a man have Estovers either by grant or prescription belonging to his house Prescription 〈◊〉 Estovers c. although he alter and change the rooms and chambers of the house as to make the Hall to be the Parlour and the Parlour to be the Hall and such like alteration of the quality of the house and not of the house it selfe and without making any new Chimneys whereby the owner of the wood may suffer prejudice or albeit he make new Chimneys or an addition to the house yet spend none of the Estovers in thâ—se new Chimneys or in the part newly added doth in none of these cases destroy the ancient prescription for then many prescriptions would be destroyed There is the same law of Conduits Water-pipes and the like Also if a man have an ancient window in his Hall and after he convert his Hall to a Parlour or any other use yet his neighbour cannot stop it for he can prescribe to have a light in such a part of his house â— corporation â—ranslated enâ—oyes the ancient priviledges 27 If a Corporation hath Franchises and Priviledges by grant or prescription and after they are incorporate by another name Co. ibid. b. 1. as if they were Bailiffs and Burgesses before now they are Major and Cominalty or Prior and Covent before and after they are translated to a Deane and Chapter c. Although in these cases the quality and name of their Corporation is changed and especially in the case of the Prior and Covent for of Regular which are dead persons in the Law they are made Secular yet the new Corporation shall enjoy all the Franchises Priviledges and Hereditaments which the old Corporation had be it by grant or prescription for no man can be prejudiced by it c. A stranger â—ound by a cuâ—tome 28 In debt against an Administrator upon an Obligation Co. l. 5. 83. a. Snellings case the Defendant pleads that the custome of London is that the Administrator shall be bound to pay a debt upon a simple contract as upon an Obligation c. and that he had already payd I. S. c. And in this case it was adjudged that the Plaintiff being a stranger was as well bound by that custome as if he had béen a Citizen Vide 1 E. 4. 6. accord Presentation â—o an Advowâ—on 29 Winsor Plaintiff hath an Advowson of two parts Co. l. 5 102. Winsors case the Defendant of the third the Plaintiff presents one the Incumbent dies then in the time of E. 6. he presents one Parry who in the time of Quéen Mary was deprived quia conjugatus c. whereupon the Defendant presents his Clerke who 1 Eliz. was also deprived by Juell and other High Commissioners and the first sentence adjudged void and Parry restored the Clerk of the Defendant dies Parry also dies the Defendant presents because his Clerk was deprived whereupon the Plaintiff demurres And in this Quare Impedit judgment was given against the Plaintiff for albeit the Clerk of the Defendant was Parson for the time to all purposes and during the first deprivation Parry was not Incumbent yet when the second sentence came then was Parry incumbent againe by force of the first presentation institution and induction and there néeded no new institution c. And by force of the second sentence the Presentée of the Defendant was removed and Parry restored And therefore when Parry dyed which was the last Presentée of the Plaintiff the Defendant shall present as in his turn and by force of the second sentence Parry was
50. E. 3. nu 123. And it hath béen attempted in Parliament to give an action of accompt against the Executors of a Guardian in Soccage but never could be effected â—â—nity and 〈◊〉 charge 3 An annuity is a yearly payment of a certain sum of money granted to another in fée for life or yeares Co. ib. 144. b. 3. and charging the person of the Grantor onely but doth not enure to the Grantée onely for his heire and his and their Grantée shall have a writ of Annuity but if a Rent charge be granted to a man and his heires he shall not have a writ of Annuity against the heire of the Grantor albeit he hath assets unlesse the grant be for him and his heirs â—â—cisor â—ease 4 If a Disseisor make a lease for life the remainder in fée Co. ib. 275. b. 2. and the Disseisée releaseth unto the tenant for life all his right this release shall enure to him in remainder because as to this and some other purposes they are but as one Tenant in Law Howbeit if the Disseisée release all actions to the Tenant for life after the death of the Tenant for life he in the remainder shall not take benefit of this release for it extended onely to the Tenant for life and ended with his life as it was adjudged in Edw Althams case Co. l. 8. 148. So also if the Disseisor make a lease for life and the Disseisée release all actions to the Lessée this enureth not to him in the reversion c. â—taile in an â—cale 5 In a writ of right when the tryall is by Battaile Co. ib. â—94 b. 4. neither the Tenant nor Demandant shall fight for themselves but shall finde each of them a Champion to fight for them because if either the Demandant or Tenant should be slain no judgement could be given for the lands and tenements in question It is otherwise in an appeal for here the Defendant shall fight for himselfe and so shall the Plaintiff also because there if the Defendant be slaine the Plaintiff hath the effect of his suit viz. the death of the Defendant c. â—â—mment in life of â—â—tor and â—â—ntee 6 Vpon the grant of any thing whereunto attornment is necessary Co. ibid. 309. a. 4. as of a Seigniory rent reversion remainder c. the attornment must be made during the lives both of the Grantor and also of the Grantée for if either of them die before attornment the grant is void And the reason hereof is for that every grant must take effect as to the substance thereof in the lifetime both of the Grantor and of the Grantée whereas in this case if the Grantor dieth before attornment the seigniory rent reversion remainder c. descends to his heire and therefore after his decease the attornment cometh too late so likewise if the Grantée dieth before attornment an attornment to the heire is void for nothing descended to him and if he should take he should do it as a purchasor whereas heires were added but as words of limitation of the estate and not to take as purchasors c. Co. lib. 2. 36. a. Sir Rowland Heywards case 7 If a man for good consideration bargain sell Election and demise a reversion of land to the use of another for yeares and the Grantor or Cestuy que use die before attornment or enrollment the grant is in this case void or good at the election of Cestuy que use void if taken at the Common Law by way of grant because then there wants attornment but good by way of Bargain and Sale according to the Statute of Vses 27 H. 8. cap. 10. and because the Statute of 27 H. 8. cap. 16. of Enrolments extendeth not unto it for that no estate of Franktenement pâ—sseth but onely an estate for yeares And notwithstanding the death of the Grantor and Cestuy que use either one or both the Executors or Administrators of Cestuy que use have power as well as Cestuy que use himselfe to choose by which way they will claime whether by way of grant at the Common Law or by way of Bargain and Sale according to the said Statute of Vses because Cestuy que use had immediately upon the grant a present interest in him which hee or in case he had died his Executors before election might have assigned over and for that he claims one and the same thing by two several wayes it being in his or his Executors power to choose which of them they please It is otherwise where the election is to choose one of two several things by one and the same way or title for then nothing passeth before election and that election must be made during the life of the parties And therefore if I have thrée horses and I give unto you one of my horses in this case the election ought to be made in the life of the parties for in as much as none of the horses is given in certain the certainty and therefore the property commenceth by election And with this agrées Bullocks case in the 10 of Eliz. 281. The Bishop of Sarum having a great Wood of 1000 acres called Berewood enfeoffs another of an house and of 17 acres parcell of the said wood and makes livery in the house here nothing passeth of the wood before election and therefore his heire could not make election c. Co l. 8. 6â— a. 1. in Jo Trollops case 8 If the Bishop make Certificate and die before it be received Certificatâ— a Bishop the Certificate is worth nothing but the Successor ought to certifie a new Fitz. 55. Co. lib. 9. 87. a. 4. Pinsons case 9 An action of Debt lyeth not against Executors upon a contract for the eating and drinking of the Testator for that action dieth with him Wager of Law Executors because in that case the Executors cannot wage their Law as the Testator might have done for a man shall never have an action against Executors where the Testator might in his life time have waged his Law because they cannot have the benefit of Law-wager as he might have had c. 15 E. 4. Vide infrà 14. Co. lib. 11. 1. The Lord De la Wares case 10 Of the family of the Lord De la Ware there was Grandfather Dignity restrained foâ— life Father and Sonne the Grandfather 3 H. 8. was summoned to the Parliament by Writ and after in 3 E. 6. it was enacted that the father should be disabled during his life from claiming any dignity but was afterwards by Qu Eliz. called to the Parliament and sate in the House as a puisne Lord and died after whose death the sonne sued in Parliament to be restored to the place of his Grandfather viz. betwixt the Lord Berkley and the Lord Willoughby of Ersby and it was granted him For there was a diversity taken betwixt a disability personal and
action brought becomes no deed either by rasure addition or other alteration or by breaking the seale c. In this case although it were once a déed yet the Defendant may safely plead Non est factum for without question at the time of the plea which is in the present tense it was not his déed 36 H. 8. Dyer 59. in an action of Debt upon an obligation against Hawood the Defendant pleads non est factum and before the day of apparance of the Inquest the Mice had eaten the Label unto which the seale was fixed by the negligence of the Clerke in whose custody it was Here the Iustices charged the Iurors that if they found the déed to be déed of the Defendant at the time of the plea pleaded they should then give a special verdict which they did accordingly Co. l. 6 15. a. 1. Trepors case 9 If A. Tenant for life and B. in remainder in fée Lease and confirmation joyne in a lease to C. Immediately after the delivery of the déed it is the lease of A. during his life and the confirmation of B. and after the death of A. it is the lease of B. and the confirmation of A. according to the opinion of Dyer and Brown Mich. 6 7 Eliz. fol. 234 235. Co. l. 6. 22. Ambrosia Gorges case 10 If a man marry an Inheritrix of lands holden of the King in Capite and hath issue by her a Daughter and afterwards the Feme die A daughter iâ— ward during the life of her father the Daughter shall not be in Ward because she is yet heire apparant to her Father But if the Father take another Wife and hath issue a Son then shall the Daughter be in ward to the King because the Son is now his heire apparent and not the Daughter And no heire apparent shall be in ward during the life of the Father Co. l. 7. 18. a. Calvins case 11 The time of the birth of a man or woman is chiefly to be considered to make them a Subject borne or not Ante-nati Post-nati and is as it were of the essence of a Subject born For a man cannot be a Subject to the King of England unlesse at the time of his birth he was under the ligeance and obedience of the King of England albeit the Kingdome of the King under whose ligeance he was borne do afterwards descend to the King of England And this is the reason that Ante-nati in Scotland for that at the time of their birth they were under the ligeance and obedience of another King are aliens borne in respect of the time of their birth c. â—â—ttle in â—und tender 〈◊〉 late 12 Tender of the rent upon the land before the Distresse Co. l. 8. 147. 2. 4. The 6 Carpenters case makes the Distresse tortious tender after the Distresse and before the imparkment makes the detainer but not the taking tortious tender after the imparkment makes neither the one nor the other tortious for then it comes too late in regard the cause is then put to the tryall of the Law to be there determined 13 Distinguenda sunt tempora concordabis leges Co. l. 9. 16. b. Anna Bedingfeilds case â—state to the â—st issue in â—ile 14 Thomas Bowles in consideration of marriage with Anne Hide Co. lib. 11. 80. a. 4. Lewes Bowles case covenants to stand seised of the Mannor of D. to the use of himselfe and Anne for their lives and after to their first issue male and the heires male of his body and after to the heirs male of the bodies of Thomas and Anne c. In this case before issue had Thomas and Anne were seised of an estate taile executed sub modo viz. untill issue and then by operation of Law the estates were divided viz. Thomas and Anne became Tenants for life the remainder in taile to the issue the remainder to the heirs male of Thomas and Anne c. â—landerous â—ords 15 A man brings an action upon the Case for these slanderous words Thou art an arrant Knave a Cosener a Traitor Co. l. 10. 131. a. 1. Ja. Osborns case being all spoken together at one and the same time and upon not guilty pleaded the Iurors finde for the Plaintiff and assesse damages generally for all the words herein they did well for all those words taken together make but one scandal and albeit no action lieth for these words Thou art an arrant Knave a Cosener spoken apart by themselves yet being spoken at one and the same time and coupled with the other words and a Traitor which are indéed actionable they aggravate them and make them worse Howbeit if at one time the Defendant calls the Plaintiff Traitor and at another time he calls him arrant Knave and Cosener and the Plaintiff brings an action upon the Case and alleadgeth the said several words spoken at several times as several causes of action theâ—e if upon not guilty pleaded the Iurors assesse damages intirely judgement shall be arrested for all for he grounds his action upon two several scandals whereas one of them is not actionable c. 〈◊〉 perquisite â—y the purâ—hase of a â—illein 16 If a man hath a Villein in right of his wife Co. Inst pars 124. b. 1. and the Villein purchase land he shall have that perquisite in her right but if the Villeine purchase it after issue had then the Baron shall have the perquisite to him and his heires because by the issue he is entitled to be Tenant by the Courtesie in his own right 49 Quod prius est tempore potius est jure Vide Max. 62. Pl. 10. 19. â—emitter 1 One of the reasons of a Remitter is Co. Inst pars 1 347. b. 3. because that title which is first and more ancient is alwayes more sure and worthy And therefore many books in stead of Remitter say that he is En son primer estate or en son melior droit or en son melior estate c. or the like For Quod prius est verius est quod prius est tempore potius est jure c. Confirmation â—st best 2 The Lessée for life made a lease for thirty years Co. ib. 296. a. 3. and after the Lessor and Lessée for life made a lease for 60 years to another which lease for sixty yeares the Lessor did first confirme and after the Lessor confirmed the lease for thirty years and after the Tenant for life died within the thirty yeares In this case the lease for thirty yeares was determined by the death of the Tenant for life and the Lessée for sixty yeares might enter for that albeit the lease for sixty yeares was the later in time yet was it of greater force in Law because the Lessor who had power to confirm which of them he would did first confirm the second lease Inter Unwel and Lodge
party heir or assignée but in privity of estate yet any that is in of another estate be it by disseisin abatement intrusion usurpation or otherwise shall rebutt by force of the warranty as a thing annexed to the land which sometimes was doubted among the Sages of our Law Release of a writ of Errour 84 If a man be out-lawed in a personal action Co. Inst pars 1. 289. a. 2. c. and brings his writ of Error if he at whose suit he was out-lawed will plead against him a release of all actions personal this séems to be no plea because by the said action he shall recover nothing in the personalty but onely to reverse the Outlawry Howbeit in that case a release of the writ of Errour is a good plea For albeit the Plaintiff in the writ of Errour is to recover or be restored to nothing against the party Yet inasmuch as the Plaintiff in the former action is privy to the record a release of a writ of Errour to him is sufficient to barre the Plaintiff in the writ of Errour of the suit and vexation by the said writ of Errour Co. ib. 48. a. 4. 49. b. 3. Co. ib. 54. a. 1. 85 If there be divers Feoffées Livery to 〈◊〉 Joyntenant good to boâ—â— and the Feoffor makes livery onely to one of them according to the deed In this case the land passeth to them all in respect of the privity of their estate c. So likewise if there be two Ioyntenants of a Ward and one of them do waste both shall answer for it for the same reason Co. ib. 54. a. 1. 86 A Tenant by the Courtesie or in Dower Wast against tenant in dower and by the Courteâ—â— can hold of none but of the heire and his heirs by descent and therefore if they grant over their whole estate and the Grantee doth waste yet the heir shall have an action of waste against them and recover the land against the Assignee but if the heir either before the assignment had granted or after the assignment doth grant the reversion over the stranger shall have an action of waste against the Assignee because then in both cases the privity is destroyed Co. ibid. a. 2. c. Vide infrà 94. Also if waste be done by a stranger they shall answer for it c. Co. l. 2. 66. b. 4. Tookers case 87 There are two Iointenants for life Attornment 〈◊〉 one Joyntenant good 〈◊〉 both the reversioner grants over his estate in fee one of the Iointenants onely doth attorn this is a good attornment of both to settle the reversion in the Grantee in respect of the privity and intirenesse of their estate Co. ib. 67. a. 2. c. So if the Lessor disseise his two Lessees for life and enfeoff another and one of the Lessees re-enter this act of one of them is an attornment in Law for both If one Iointenant give seisin of rent that shall binde his companion as it is agreed in 39 H. 6. 2. If a lease be made to two and after the reversion is granted to one of them and he accepts the deed this is holden good attornment in Law for both Baldwin 28 H. 8. Dyer 12. b. Co. l. 3. 2. a. 4. The Marq. of Winchesters case 88 Albeit by the general words of the act of attainder of all rights Right of actâ—on not forfeâ—ed by attaâ—â—er c. and hereditaments c. made against the Lord Norris in the 28 H. 8. all his lands c. in demesne reversion or remainder and also all his right to lands and tenements into which his entry was congeable were given to the King yet neither a writ of Errour nor right of action to recover land were given to him by the general words of the same act although such a right is truly a right and also an hereditament because such a right for which the party hath no remedy but by action onely to recover the land is a thing which consists onely in privity and which cannot escheat or be forfeit at the Common Law Of this sort are the right of Formedon in descender the right of action upon a disseisin and a descent cast and the like Co. l. 7. 13. a. 4. in Englefeilds case Co. ib. 4. a. 3 4. 89 Vpon judgement given against Tenant for life A reversioner shall bring Errour c. or against Tenant in tail since the Statute de donis conditionalibus he in the reversion or remainder may have a writ of Errour albeit he was not party to the suit by aid prayer voucher or receipt But he could not in that case bring that writ till after the particular estate determined Howbeit if he was party and privy to the first record by aid prayer voucher or receipt then might he have a writ of Errour presently during the life of the Tenant in tail or for life for that he was in that case party and privy to the first record c. Co. l. 3. 6. a. Cuppledikes case 90 Baron and Feme are seised of lands to the use of them Upon fine and vouching tenant in tail the remainder is barred and the heirs male of the body of the Baron the remainder in fee to another the Baron acknowledgeth the fine of the land in fee and a stranger recovers the land against the Conusee who voucheth the Baron onely and he voucheth over the common Vouchee and judgement and seisin are given accordingly the Feme being still in life This recovery shall bind the remainder for here was a lawful Tenant to the precipe and albeit the Baron who had the estate tail was onely vouched and not the Feme who had a joynt estate with him Yet the Baron coming in as Vouchee he comes in privity of the estate tail and not of any other estate and then the recovery in value gives recompence both to the estate tail which the Baron hath and also to the remainder over because although by the fine the estate tail as also the estate of the Feme and the remainder were all devested or discontinued yet the Baron as Vouchee shall be in judgment of Law in of his estate tail And the case is the stronger inasmuch as the estate of the Feme was put to a right So that the Baron comes in now as sole Tenant in tail and cannot be joyntly seised with the Feme because she was not Vouchée Neither yet can the Baron be in of any other estate for that he once had an estate tail and now comes in as Vouchée and therefore in that case in respect of the privity shall be said in as of the estate tail and not otherwise But if the wives inheritance had béen joynt with her husbands it might be doubted 108. 28. The like 91 If A. be Tenant in tail the remainder to B. in tail Co. ibid. the remainder to C. in tail
c. â—laim within â—â—e years by â—â—urdance â—c 112 Vpon a fine acknowledged of lande according to the Statute of 4 H. 7. cap. 24. Co. lib. 9. 106. a. Margaret Podgers case The Guardian by nurture or in soccage may enter in the name of the infant who hath right to enter into the same lands and this shall vest the estate in the infant without any commandment or assent because there is privity betwéen them So likewise he in the reversion expectant upon an estate for life or years or the Lord of a Tenant by copy c. may well enter within that Act in the name of the Tenant for life Lessée for years or Tenant by Copy and also in their own right as well to save their own Franktenement and Inheritance as also the said particular interests for the Lessor or the Lord are not Strangers because they are privies in estate And as the entries of those particular Tenants shall availe the Lessor and the Lord in those cases in respect of the privity of their estates So the entry of the Lessor or the Lord in the like cases in the names of the particular Tenants shall availe the same Tenants in regard of the privity of their estates and for the salvation of their several rights without any request precedent or assent subsequent for in these cases the Lessor and the Lord pursue the title and claime which they have to the inheritance by lawfull entry within the five years according to the saying contained in the said Act Howbeit he that is a méer stranger and hath no right shall not by his entry within the 5 years in the name of him that right hath avoid such a fine unlesse he have some request or commandment precedent or assent subsequent to authorize him to do it because the said Act hath appropriated the pursuit thereof by way of action or lawfull entry unto him that right hath either by interest or privity or else by request or Commandment precedent or assent subsequent c. Co. l. 10. 43. b. 4. Jennings case 113 At the Common Law recovery against Tenant for life with Voucher upon true warranty and recovery in value shall bind him in remainder as the books are in 19 E. 3. Recovery in value 20. 23. E. 3. Recovery against Tâ—â— for life ibid. 13. 44. Ass pl. 35. 5 E. 4. 2. And the reason hereof is because the particular estate and the estate in remainder in respect of the privity make but one estate and one warranty may extend to both and therefore the recompence in value shall also enure to both Co. l. 10. 48. a. 3. in Lampets case 114 Albeit the wisedome and policy of the Sages of our Law hath provided that no possibility right title Right and title may be released 〈◊〉 not transfered or thing in action shall be granted or assigned to strangers to avoid multiplicity of suits oppression of the people principally of the Terre-tenants and the subversion of the due and equal execution of Iustice Neverthelesse all rights titles and actions by the prudence and policy of the Law may be released to the Terre-tenant for the same reason of his repose and quiet and for the avoidance of suits and contentions and to the end every one should live in his calling with peace and plenty And therefore a right or title to the Frank-tenement or Inheritance be it in presenti or futuro may be released in five manners 1 To the Tenant of the Frank-tenement in Déed or in Law without any privity 2 To him in remainder 3 To him seised of the reversion without any privity but an estate cannot be enlarged without privity 4 To him that hath right onely in respect of privity As if the Tenant be disseised the Lord may release his Services in respect of the privity and right without any estate 5 In respect of privity onely without right As if Tenant in tail make Feofment in fée the Donée after the Feofment hath not any right and yet in respect of the privity onely the Donor may release unto him the rent and all services saving the fealty So also the Demandant in a precipe may release to to the Vouchée or to the Tenant after feofment c. Vide suprà 44. Co. l. 10. 92. a. 4. 93. a. b. Doct. Leyfields case 115 It is a Maxime in the Law that when he Release 〈◊〉 not plead 〈◊〉 where theâ—â— is privity without â—â—â—ing it that is party or privy in estate or interest or he that justifies in the right of him who is party or privy is forced to plead a Déed albeit he that is privy claimes but parcel of the original estate yet in that case he ought to shew the original Déed to the Court As if the King demiseth land to B. for life B. demiseth the same land to C. for years here if C. be impleaded he ought to produce in Court the Letters patents of the demise granted to B. because B. and C. are privies in estate Vide William Poles assise 3 H. 6. 20 21 22. which was in effect this A. by indenture enfeoffes B. of the Mannor of Dale rendring unto A. and his heirs 5 marks rent per annum with clause of distresse A. grants to C. for life xxvi s. viii d. per annum parcel of the same rent who being first seised and then disseised brings an Assise of the said parcel granted to him and because in the same Assise the Plaintife produced not the original indenture of the reservation of the whole rent made to his Grantor Iudgement was given against him albeit he claimed but parcel of the said rent and the reason thereof was in regard William Pole the plaintife was privy in the estate of the rent and claimed by the first grant And in the case above put the reason holds against the stranger in regard the Lessée might have bound the Lessor by Covenant to have shewed forth the Déed when occasion should have required In 35 H. 6. it was agréed that Guardian in Chivalry shall not plead a release made to his Tenant without shewing it forth So in 14 H. 8. 4. It was agréed by all that he who is privy in estate as Feoffée Lessée for years c. or that justifies as servant to him that is privy ought to shew the Déed to the Court which they plead c. And in Debt against the heir he shall not plead a release made to the Executors without shewing it for there is privity betwixt them and with this agrées the 13 E. 2. Monstrans des faits 4â— Howbeit on the other side where a man is a stranger to the Déed and claimeth not the thing comprised in the grant nor any thing out of it nor doth any thing in right of the Grantée as Bailife or Servant there he shall plead the Patent or Déed without shewing it If the Tenant plead the grant of the Lord with
attornment Co. ib. 94. 2. he shall not shew it sic de simlibus But when he that claimes the thing or any right or interest out of it or justifies in right of the Grantée there he ought to shew the first grant as the second Grantée of a rent charge shall shew the first grant and so shall his Bailife and the Grantée of a rent charge shall not plead the release of the Disseisée to the Disseisor without shewing it for albeit he claime not the land of which the release is made yet he that hath rent out of land hath also right in the land which by a release of all his right shall be extinct and therefore in such case he ought to produce the Déed And with this agrées the 20 H. 7. 6. 14 H. 8. 5. The Disseisée shall not plead a release to the Disseiser neither of right in the land nor of rent issuing out of the land without shewing it for where one claims the thing unto which the release is made or right or interest out of it the Law creates a privity in respect of his estate or right in the land viz. to this intent that he shall not have benefit of the Déed without shewing it Impeachment â—f wast is gone â—y altering the â—â—tate 116 If an estate of land be granted without impeachment of wast Co. l. 11. 83. b. 3. Lewis Bowles case that priviledge is individually annexed unto that estate 3 E. 3. 44. per Shard and Stone If one that hath a particular estate without impeachment of wast change his estate he loseth that advantage 5 H. 5. 9. a. If a man make a Lease for years without impeachment of wast and after he confirmes the land to him for his life he shall be afterwards chargeable for wast 28 H. 8. Dyer 10. b. If a Lease be made to one pur auter vie without impeachment of wast the remainder to him for terme of his own life here he is punishable of wast for the first is estate drowned and gone and so it is also of a Confirmation The heir at the Common Law shall have prohibition of wast against the Tenant in Dower but if the heir grant over the reversion his Grantée shall not have prohibition of wast For it appears in the Register fol. 72 that such an Assignee in an action of wast against Tenant in Dower shall recite the Statute of Glocester and therefore he shall not have prohibition of wast at the Common Law for then he should not recite the Statute Vide F. N. B. 55. 14 H. 4. 3. 5 H. 7. 17. b. suprà 1 4. â—ouchee c. â—y have a â—rit of Erâ—â— c. 117 If a man be vouched and enter into warranty and leaseth F. N. B. 21. c. he may have a Writ of Error and shall assigne the errors which hapned between the Demandant and the Tenant or between the Demandant and himselfe as Vouchee And so he in reversion that prays to be received for default of the Tenant for life or for his faint pleading if he be recovered and plead and lose he shall have a Writ of Error and shall assigne the error that hapned betwéen the Demandant and Tenant or betwéen the Demandant and himselfe that so prayed to be received So also if Tenant for life lose by default he in the reversion shall have a Writ of Error albeit he neither was received nor prayed to be received And he shall assigne for error any matter that hapned betwéen the Demandant and Tenant that so lost by default And all this is in respect of the privity and interest which the Vouchee and Reversioner had in the land so recovered by the Iudgement F. N. B. 21. l. m. n. 118 In a plea of land against the Tenant if the Tenant die Who may bring writs 〈◊〉 Error he that is heir to the Tenant for that land shall have a Writ of Error and not he that is heir at the Common Law as in Borough English if the Tenant lose the land by erronious Iudgement the youngest sonne shall have the Writ of Error and so shall he that is heire in special tail And this in respect of the special privity and interest which they have in the land And for the same reason it is that in case land be lost by erronious Iudgement the Tenant may have a Writ of Error and so also may the Vouchee have another Writ of Error upon one and the same Iudgement and so may the Tenant and the Tenant by receit and all at one time hanging Executors also or Administrators shall have a Writ of Error upon a Iudgement given against their Testator for debt or damages So likewise the heir shall have a Writ of Error to reverse an out-lawry of Felony pronounced against his father to restore him to the privity of bloud betwéen his father and him F.N.B. a. 22. b. The Successor of an Abbot Prior Parson or such like bodies politique shall have a Writ of Error upon a Iudgement given against their Predecessor of all things which touch the Succession or Corporation but if a man recover against a Parson Bishop or the like debt or damages by judgement or action personal their Executors shall have a Writ of Error upon such Iudgement and not their Successors because their Executors or Administrators have interest in such things and not the Corporation c. If a man sue execution erroniously against the recongnisor upon a recognisance the Feoffée of the recognisor shall have a Writ of Error c. F. N. B. 22. c. 119 In a praecipe quod reddat of land if the Tenant disclaime No writ of Eâ—ror upon diâ—claime whereby the Demandant recovers in that case the Tenant shall not have a Writ of Error against his own Disclaimer because by that plea he hath waved all the privity and interest that he had in the land but if the Tenant onely plead non-tenure and thereupon it is found against him so that the Demandant recovers in that case the Tenant shall have a writ of Error c. F.N.B. 98. q. r. 120 If a man lose land by default in a praecipe quod reddat and die Heir and â—â—cutor privies the heir shall have an action of deceit as well as the father and shall have restitution for he is privy in bloud So likewise if a man have execution by default upon a recognisance in a Scire facias sued against one and that Defendant die his Executors shall have a Writ of deceit and shall be restored for they are privies in right c. F.N.B. 108. a. 121 The Vouchée or Tenant by receit or he in the reversion Reversione shall have â—taint or Eâ—â— where he joyns to the Tenant for terme of life by aid prayer shall have an attaint if they lose by false verdict And if the Tenant for life lose by false verdict he in the
Fée-simple by purchase because his heirs may inherit him And albeit it be true that the Statute extendeth to an estate in Frankmarriage acquired by purchase yet doth it extend also to all estates in tail as well by descent as by purchase Frankmarriage being put there but onely for an example Littl. §. 738. Co. ib. 387. a. 4. 28 If Tenant in Fée-simple that hath a warranty for life Warranty life either by an expresse warranty or by Dedi be impleaded and vouch he shall recover a Fée-simple in value albeit his warranty were but for term of life because in that case the warranty was annexed and did extend to the whole estate of the Feoffée in Fée-simple But if Tenant in taile let the Tenements for life the remainder to another in fée and a collateral Ancestor confirm the estate of the Tenant for life for the terme of his life onely with warranty and die and the Tenant in tail hath issue and die Here the issue is barred during the life of the Tenant for life by the Collateral warranty And in that case if the Tenant for life be impleaded and vouch he shall onely recover in value but an estate for life because the warranty was annexed and doth extend to that estate onely c. â—wo estates â—ade together â—f the same â—nd 29 If a man make a Charter of feofment of an acre of land to A. and his heirs Co. ib. 21. a. 2. and also another Déed of the same acre to A. and the heirs of his bodie and deliver Seisin according to the form and effect of both Déeds In this case he cannot take a Fée simple onely as some hold because Livery was made according to the Déed in tail as well as to the Charter in fée neither can the livery enure onely to the Déed of estate tail with a Fée simple expectant because livery was made as well upon the Déed in Fée simple as the Déed in tail And therefore others hold that in this case it shall enure by moities viz. to have an estate tail in the one moity with the Fée simple expectant and a Fée simple in the other moity And so the livery shall work immediately upon both Déeds And this last séemes to be the opinion of Coke himselfe being put last according to his own rule which he often delivers in this part of his Institutes â—ower of â—ings intire 30 Albeit of many Inheritances that be intire whereof Co. Inst pars 1. 32. a. 1. no division can be made by metes and bounds a woman cannot be endowed of the thing it selfe yet a woman shall be endowed thereof in a special and certaine manner As of a Mill a woman shall not be endowed by metes and bounds nor yet in common with the heir but either she may be endowed of the third toll-dish or de integro molendino per quemlibet tertium mensem And so of a Villain either the third dayes work or every third wéek or moneth A woman shall also be endowed of the third part of the profit of Stallage of the third part of the profits of a Faire of the third part of the profits of the Office of the Marshalsie of the kéeping of a Park of a Dove-house of a Piscary viz. tertiam piscem vel jactum retis tertium Of the third presentation of an Advowson A Writ of Dower also lieth de tertia parte exituum provenientium de custodia Gaolae Abathiae Westm And herewith agréeth reverend antiquity De nullo quod est sua natura indivisibile secationem sive divisionem non patitur nullam partem habebit sed satisfaciat ei ad valentiam Of the third part of the profits of Courts Fines Heriots c. Also a woman shall be endowed of tithes and then her surest way is to take the third sheaf for what land shall be sown is uncertaine â—ower recoveâ—d by parts 31 Regularly the Feme ought to be endowed of an intire third part in severally by metes and bounds Co. ib. 32. b. 1. Littl. §. 36. And yet if a man solely seised of lands in Fee take a wife and enfeoffe eight persons and dies a Writ of Dower is brought against those eight persons and two confesse the action and the other six plead in barre and descend to issue here the Demandant shall have judgement to recover the third part of two parts of the lands in eight parts to be divided and after the issue is found for the Demandant against the other six the Demandant shall have also judgement to recover against them the third part of six parts of the same land in eight parts to be divided â—nsent of â—iage equal 32 If a man of the age of 14 years marry a woman of the age of ten Co. ib. 79. b. 1. at her age of twelve he may as well disagrée as she may albeit he were of the age of consent because in the contracts of matrimonie either both must be bound or equal election of disagréement given to both and so è conversò when the woman is of the age of consent and the man under â—elivery of â—ods by a â—nkrupt 〈◊〉 good El. 7. 33 Delivery of goods by the Bankrupt to a Creditor after the Commission sealed according to the Statute of 13 Eliz. cap. 7. Co. l. 2. 25. b. 1. The case of Bankrupts shall not be of force to avoid proportionable distribution of the same goods together with all the rest unto the other Creditors which are willing to submit to the order of the Commissioners in that behalfe for the Statute saith that the distribution shall be To every one of the Creditors c. rate and rate like according to the quantity of his or their debt So that one shall not prevent the rest but all may be in equali jure according to that of Cato Ipsae etenim leges cupiunt ut jure regantur Co. ibid. 35 H. 8. tit Testaments Br. 119. 34 A man holds thrée Mannors of thrée several Lords by Knight Service each Mannor of equal value here Devise of 3 Mannors â—â—den by Knigâ— Service he cannot devise two of the Mannors and leave the third to descend according to the generalty of the words of the Statutes of the 32 and 34 H. 8. of Wills For then he should prejudice the other two Lords but by a favourable and equal construction of the said Statutes he hath power to devise onely two parts of each Mannor So that equality amongst them shall be observed 4 E. 3. tit Ass 178 Co. ibid. 35 The Lord of a Mannor shall not approve it all Approvemeâ— albeit he leave sufficient Common in the lands of other Lords according to the Statute of Merton cap. 4. Co. ib. 48. E. 3 5. 36 In Dower Voucher in Dower if the heir be vouched in three several Wards within the same County execution shall be had against one onely but
the Mesne during his nonage which indeed he cannot avoyd and shall not have remedy till his full age but inasmuch as his nonage shall not priviledge him from the payment of the rent during his nonage the Law also in that case gives remedy to him during his nonage c. Co. l. 9. 133. b. 3 Matth. Meves rase 55 A. seised of Gavelkind land Equality 〈◊〉 the third 〈◊〉 descending holden in soccage of I. S. and of other lands holden in Capite devised part thereof to B. the eldest sonne of his son being dead and the rest to his youngest son and dies B. being within age In this case it was resolved that the King shall have his third part out of each several part so that the charge shall be equal and shall not fall upon one of the parts onely Vide 35 H. 8. Br. Testam 19 E. 3. Ass 178. 21 22 Eliz. 366. b. Dyer Equity of executing a recognisance 56 If a man be bound in a Statute Merchant F. N. B. 103. b. Pl. Co. 72. Rosses case Co. l. 3. 12. b. 4. Sir Will. Herberts case and after make a feoffment of parcel of his lands to one man and of another parcel of his lands to another man and the Recognisée sues execution upon the Statute and hath execution against one of the Feoffées Here that Feoffee shall have an Audita quaerela against the other Feoffee to shew cause why the Recognisee shall not have execution against the lands of that other Feoffee as well as against the lands which he hath c. Equity of a later statute from a former 57 The Statute Merchant made 13 E. 1. Pl. Co. 82. b. 3. Partridg vers Strange and Croker binds all the lands of the Conisor to the execution and provides that they shall be delivered to the Conisee upon reasonable extent but speaks not a word that they shall be delivered to the Extendors in case they extend them too high yet they shall be delivered to the extendors by the equity of the Statute of Acton Burnel made before viz. Anno 11 E. 1. which saith that the goods praysed too high shall be delivered to the Praysers themselves at the rate they set them c. Vide 44. And yet the Statute Merchant is a penal law A Judgement bars a new action 58 If a man bring an action of Debt upon an Obligation Co. lib. 6. 46. a. 2. in Higgins case and he is barred by judgement so long as that judgement stands in force he cannot have a new action pari ratione when he hath judgement in an action upon the same Obligation so long as that judgement remains in force he shall not have a new action Copihold fines must be 59 If the fines of Copiholders of a Mannor be uncertain Co. l. 11. 44. a. 4. in Richard Godfreys case the Lord cannot demand or exact excessive or unreasonable fines but if he do the Copiholder may refuse to pay the fine and the reasonablenesse thereof shall be determined by the Iustices c. Quà m rationabilis debet esse finis non definitur sed omnibus circumstantiis inspectis pendet ex justiciariorum discretione And so it was adjudged in C. B. betwéen Stallon and Brady P. 9. Jac. Rot. 1845. Vide Co. l. 4. 47. b. reasonable 60 An advowson descends to two Coparceners Dyer 55. 5. 34 35 H. 8. one of them being within age and in ward the Guardian marries with the elder the Church is voyd the Guardian presents in the name of both the sisters and the Church is void again when the younger sister comes to full age In this case it séems the eldest shall have the Presentation if the younger sister will not joyn with her for this shall be said the commentâ—ment of the Turn because the presentment was before in both their names Quaere tamen because it may be imputed to the folly of the Baron who would not present in his and his wives name when he had full power to do it according to Max. 117. Coparceners Presentment Verdict 61 If a Iury eat or drink before their agreement at their own costs Dyer 55. 10. 34 35 H. 8. that offence is unable but if it be at the costs of either party it is cause of Errour in the judgement that passeth upon such a verdict because it implies affection and suspition 62 Vide Max. 178. 22. Prohibition against committing of waste 63 If a Parson of a Church and A. be Tenants in Common of a Wood and A. endeavours to make Waste Co. l. 11. 49. a 2. in Richard Lifords case the Parson for the preservation of the timber trées shall have a prohibition against him that he shall not make Waste and the reason thereof is said to be for that if the Parson of a Church will waste the inheritance of his Church to his private use in felling the trées the Patron may have a prohibition against him for the Parson is seised as in right of his Church and the Glebe is the Dower of his Church for thereof it is said to be endowed and so say many ancient records and therefore inasmuch as a prohibition lyeth against him reason requires that he shall have like remedy against him who holds with him in common See likewise ubi supra a notable case wherein the Bishop of Duresme is inhibited to commit Waste in the Woods belonging to his Bishoprick at a Parliament holden at Carlisle in the 35 E. 1. by the ordinary remedie at the Common Law by prohibition out of the Chancery c. Vide F. N. B. 49. 3. 11 H. 7. 12. b. 64 A man binds himselfe and his heirs in an obligation having heirs and leaving lands both of the part of the father and of the mother Lands equally charged In this case both the heirs shall be proportionably charged Co l. 2. 25. b. 4. In the case of Bankrupts Dyer 186. 68. 2 Eliz. 65 The Statute of 1 M. 7. ordaines that all Fines Fines whereupon proclamations are not duely made by reason of the adjournment of any term by Writ shall be as good as if that terme had béen holden from the beginning to the end and proclamations therein made according to the Statute of 4 H. 7. 24. The said Statute of 1 M. speaks of the adjournment of the whole terme yet if part of the terme be onely adjourned that is taken to be within the equity of the same Statute as it hapned in 2 Eliz. when in Tr. T. there were but two dayes dies juridici Dyer 230. 56. 6. Eliz. 66 A Servant makes a bill Contract by a servant testifying the buying of ware to the use of his Master and this without seal in which he binds himselfe to pay the debt In this case debt lyeth not against the Servant but action upon the case for it is the
L. Jud. cap 1. ver 6 7. persecuti sunt eum Israelitae prehendentes eum amputarunt pollices manuum ejus pedum ejus tum dixit Adonibezek septuaginta rege pollicibus mannum suarum pedum suorum amputatis colligebant sub mensa mea quemadmodum feci sic rependit mihi deus c. 59 Omne majus continet in se minus Co. Inst pars 1 44 b. 1. 1 Albeit by the Statute of 13 El. cap. 10. Grants of Ecclesiastical persons Ecclesiastical persons are in expresse terms restrained from making any estates of the lands which they hold in right of their Bishopricks Colledges Churches c. other then for one and twenty years and three lives from the making of them yet may they make Leases for lesser terme or fewer lives c. 25. Co. ib. 45. b. 3. 2 In the Kings case this word Committo doth amount sometimes to a grant as when he saith Commissimus de W. de B. officium Seneschalliae Commission imports a Lease c. quam diu nobis placuerit and by that word also he may make a Lease and therefore a fortiori a common person may do the same Co. ib. 52. b. 1. Hill 39 El. inter Stanton Barnes in B. R. Co. l. 3. 9. a. 3. Heydons case l. 4. 23. a. Gravenors case 3 A custome of a Mannor time out of mind used Copihold grantable in fee may be granted for a lesser terme was to grant certaine lands parcel of the said Mannor in Fée-simple and never any grant was made to any and the heirs of his body for life or for years And the Lord of the said Mannor did grant to one by Copie for life the remainder over to another and the heirs of his body And it was adjudged that the grant and remainder over was good for the Lord having authority by Custome and an interest withall might grant any lesser estate because in this case the Custome that enableth him to the greater enableth him to the lesser Omne majus continet c. It is otherwise where one hath but a bare authority c. 17. Co. ib. 68. a. 1. 4 Fealty is a part of Homage and incident unto it because all the words of Fealty are comprehended within Homage Co. ib. 223. a. 3. 5 A man before the Statute of Quia emptores terrarum might have made a feofment in fée and added further Restrainâ— to alien good that if he or his heirs did alien without licence that he should pay a fine at that time this had béen good So likewise it is said that then the Lord might have restrained the alienation of his Tenant by Condition because the Lord had then a possibility of reverter And therefore it is so still at this day in the Kings case because he may reserve a tenure to himselfe c. Littl. §. 418. Co. ibid. 25 3. a. 4. 6 When a man makes a feofment of lands lying in several towns within the same County Claime in pâ—â— good for all 〈◊〉 the same County Livery of Seisin given of the land lying in one of those towns in name of all the rest lying in the other towns will passe the estate of all to the Feoffée And therefore a fortiori it séems good reason when a man hath title of entry into lands or tenements lying in divers towns within the same County before any entry by him made that by entry into parcel thereof in the name of all the seisin of all is vested in him as well as if he had actually entred into every parcel For if it be so in a feofment passing a new right much more it is for the restitution of an ancient right as the worthier and more respected in Law c. Co. ibid. 260. a. 3. 7 If a man in prison shall not be bound by a recovery upon default for want of answer in a Court of Record in a real action A prisoner 〈◊〉 bound for a default which is mattter of Record A multo fortiori a descent in pais which is a matter of Déed shall not for want of claime bind him that is in prison c. Co. ibid. 8 As the argument à minore ad majus doth ever hold affirmatively Major â—nor Negatiâ— Affirmative so the argument à majore ad minus doth ever hold negatively and the reason hereof is this Quod in minori valet valebit in majori quod in majori non valet nec valebit in minori Co. Inst pars 1 262. Littl. §. 441. 9 At the Common Law before the Statute of Non-claim Anno 34 E. 3. cap. 16. and in the Stat. of 4 H. 7. cap. 24. One out of thâ— Realm not barred by a descent If a man that had titâ—e of entry into lands had not layed his claim within a year and a day after a fine leâ—yed of the same land he had lost the land for ever Howbeit in that case if he that had such right were out of the Realm at the time of the fine levied his title had béen thereby saved And if against a fine which is a matter of record the title of a stranger shall be in that case saved much more against a descent which is a matter in fait shall the entry of him that is out of the Realm at the time of the descent cast c. be preserved so that he may well enter at his return notwithstanding such descent c. â—elease of all â—emands disâ—argeth all â—ctions c. 10 If the Plaintiff after judgement release all demands Co. ib. 291. a. 4 b. Littl. §. 508. the execution is discharged Also by a release of all demands all actions real personal and mixt are discharged Likewise Appeals title or right of entry Rent-service Rent-charge Rent-seck Common of Pasture c. A warranty which is a Covenant real and all other Covenants real personal Estovers all manner of Commons and profits apprender Conditions before they be broken or performed and also after Annuities Recognisances Statutes Merchant and of the Staple Obligations Contracts c. All these and divers others by the word Demands are released and discharged because that word being of so large an extent contains them all c. â—o disseisin of â—ent without â—ornment 11 A Disseisor cannot disseise the Lord of the rents and services without the attornment of the Tenants to the Disseisor Co. ib. 322. b. 4. For séeing an attornment is requisite to a feoffment and other lawful conveyances A Fortiori a Disseisor or other wrong doer shall not gain them without attornment The like law is of an Abator and an Intruder â—etenced â—ht 12 Where the Stat. of 32 H. 8. cap. 9. Co. ib. 369 a. 4. Vide infrà 40. made for the suppression of Maintenance prohibiteth buying selling c. of any pretenced rights or titles in the plural
Feme shall be admeasured Howbeit hée may well assigne her lesse Omne majus c. Pl. Co. 83. a. 2. Partridges case Co. Inst pars 1. 369. a. 4. 41 Where the Statute of 32 H. 8. cap. 9. Pretenced title c. prohibiteth the buying or selling of any pretenced rights or titles in the plural number yet the buying or selling of any one right or title is also prohibited by the same Statute for the singular is included in the plural Pl. Co. 86. b. 3. per Hales Partridges case Vide suprà 12. Pl. Co. 86. a. 4. in Partridges case per Hales 42 The Statute of the 1 H. 5. cap. 3. recites Entry into land that some people do of late use to forge divers false deeds and muniments c. And therefore it ordaines that the party so grieved may have his suit in that case c. Here that Statute speaks of false déeds c. in the plural number yet if a man forge one false déed onely he shall incurre the penalty of that Statute So likewise the Statute of 5 R. 2. cap. 7. forbids that none shall make entry into any lands or tenements except in case where entry is given by the Law Yet if one enter onely into one tenement he shall be punished notwithstanding that Statute is in the plural number for the plural number contains in it the singular number and more c. Pl. Co. 87. a. 3. Partridges case 43 Where the Statute of 32 H. 8. cap. 9. prohibits the buying Pretenced 〈◊〉 to a lease c. of any pretenced rights c. a lease for years is prohibited as well as an estate in fée in taile or for life for under the word any the lesse estate shall be conteined in the greater So also the Statute of 23 H. 6. Sheriffs cap. 10. prohibits that no Sheriff shall let to farme in any manner his County c. whereby he is restrained to let to farme any part of his County because the lesse is contained in the greater c. Co. l. 5 pars 1. 34. b. 4. in the K. Ecclesiastical law 44 It was adjudged in the Court of Common Pleas by Dyer Weston Ecclesiastical persons may resign to the King and the whole Court that a Deane or any other Ecclesiastical person may resigne to the King as divers did to King E. 6. because the King hath the authority of the supream Ordinary For Cui licet quod majus est non debet quod minus est non licere Co. Inst pars 1 129. a. 2 45 If the King by his prerogative may make one An alien maâ—denizen that is an alien born an absolute Denizen viz. Quòd ille in omnibus tractetur reputetur habeatur teneatur gubernetur tanquam ligens noster infra dictum regnum nostrum Angliae orâ—undus c. à fortiori he may grant to such an Alien a particular denization viz. Quòd in quibusdam curiis suis Angliae audiatur ut Anglus quod non repellatur per illam exceptionem quòd sit Alienigena natus in partibus transmarinis c. to enable him to sue onely or may grant him a denization sub conditione c. Devise for Executors â—hall sell 46 If a man deviseth his land to A. for life Co. ib. 112. b. 3. and that after his decease it shall be sold by his Executors generally and make thrée or four Executors and during the life of A. one of the Executors dieth and then A. dieth the other two or thrée Executors may sell for the greater number includes the lesse and the plural number of Executors still remains whereby the words of the Will are also satisfied It is otherwise if before the Statute of 21 H. 8. 4. he had made but two Executors and one had died or if he had made I. S. I. N. and I. D. his Executors by name and one of them had died for then the words of the Will had not béen satisfied which in such case giving but a bare power must be thereby observed so also if he had devised it to be sold by his sons in law being thrée and one dies the other two might have sold it but not if there had béen onely two and one die or refuse before sale Vide Rule 110. 21. Isabel Goodcheaps case 49 E. 3. Arbitrament 47 The submission to an award betwixt A. and B. was general Co. l. 8 98. a. 2. Baspoles case viz. of all actions c. and the award was that A. should pay B. 20 pound And in this case it was objected that it did not appeare that the matter of the arbitrament was the matter onely that was betwixt them because the submission was general of all actions demands c. And therefore if the arbitrament were not made of all the matters in controversie the Award was void But the Award was adjudged good because when the submission is general of all actions c. Generale nihil certi implicat and therefore it stands well with the generality of the words that there was but one cause depending in controversie betwixt them And Omne majus continet in se minus But it is otherwise where the submission is of certain things in special c. Waste 48 The Lessée covenants to cut no trées Dyer 115. b. â—7 1 2 P. M. and gives bond to perform covenants the Lessée cuts ten trées and the Lessor sues him upon the bond and assignes for breach the cutting of twenty trées he pleads that he did not cut twenty trées upon which they are at issue and the Iury found that he cut onely ten yet judgement was given for the Plaintiffe for the other tenne trées were but surplusage and omne majus c. Lease by a â—rebend 49 A Prebend of Sarum makes a lease for seventy years the Bishop Dyer 338. 43. 17 Eliz. Deane and Chapter confirm the Bishop being Patron and Ordinary for 50 years and no more In this case the demise and all conteined in the Indenture was adjudged good for 50 years 60 Additio probat minoritatem â—e is Fee-â—â—mple 1 When you finde it said in any Book Co. Inst pars 1. 189. a. 3. that a man is seised in fée without saying more it shall be understood in Fée-simple and not in Fée-taile unlesse there be but unto it such an Addition Fee-taile c. And therefore in Heraldry the younger sonnes give the differences And in France by Monsieur without any addition or other title is to be understood the Kings onely brother and by Madame without more the Kings onely sister and therefore they are said in French to be Monsieur sans queüe and Madame sans queüe viz. without any other addition or title But if there be in France any occasion of naming any other Lord or Lady they are always named with their proper and peculiar title as Monsieur de
every one hath a part of the Mannor without saying any thing of the Advowson appendant the Advowson remains in coparcenary and yet in every of their turns it is appendant to that part which they have and so it is also if they make composition to present against common right yet it remains appendant Co. ib. 131. b. 2. 4 The King by his Prerogative regularly is to be preferred in payment of his duty or debt by his debtor before any subject The Kings debt first pâ—â— except in sâ—â— where a fine 〈◊〉 due to the 〈◊〉 and damages to the party although the Kings debt or duty be the latter and the reason hereof is for that Thesaurus Regis est fundamentum belli firmamentum pacis And thereupon the Law gave the King remedy by the writ of Protection Cum clausula volumus to protect his Debtor that he shall not be sued or attached until he had paid the Kings debt but hereof grew some inconvenience because many times to delay other men of their suits the Kings debts were the more slowly paid For remedy whereof it was enacted by the Stat. of 25 E. 3. cap. 19. That the other Creditors might have their actions against the Kings Debtor and also procéed to judgement but not to execution unlesse that Creditor will take upon him to pay the Kings debt and then he shall have execution for both the debts Howbeit in some cases the Subject shall be satisfied before the King for regularly whensoever the King is entitled to any fine or duty by the suit of the party the party shall be first satisfied as in a Decies tantum against a Iuror or an Embraceor for there the ten-fold damages shall be first satisfied and then the Kings fine because this is as accessary to that So likewise if in an action of Debt the Defendant deny his déed and it is found against him in that case he shall pay a fine to the King but the Plaintiff shall be first satisfied And so it is in all other like cases The like course was also taken in Bils preferred by Subjects in the Starre Chamber For if costs and damages were there recovered by the party they were answered before the Kings fine c. Vide 189. 41. Co. ib. 138. a 4. 5 If Tenant in tail of a Mannor whereunto a Villein is regardant A Mannor drawes the Villein enfeoff the Villein of the Mannor and dieth the issue shall have a Formedon against the Villein and after the recovery of the Mannor he shall seise the Villein Howbeit before the recovery of the Mannor he cannot seise the Villein for that the Mannor was principal c. Littl. § 229 Co. ib. 152. a. 3. 6 If the Donor or Lessor of land grant his reversion to another Rent and â—vice incidenâ— to the reversion c. and the Tenant attorns the rent and service passe by this word reversion because they are incident unto it but by the grant of the rent the reversion shall not passe because the Incident shall passe by the grant of the Principal but not the Principal by the grant of the Incident Accessarium non dâ—cit sed sequitur suum principale Scire facias â—llows the â—cord 7 Where the Statute of 32 H. 8. cap. 5. Co. ib. 290. a. 2. concerning executions of lands c. in case the said lands be evicted giveth a Scire facias out of the same Court from whence the former execution did procéed c. to have execution of other lands c. If the record be removed by writ of Errour into another Court and there affirmed the Tenant by execution that is evicted shall have a Scire facias by the equity of that Statute out of the Court into which the writ of Errour was brought because the Scire facias must be grounded upon the record and Accessarium sequitur principale c. â—illein and â—dvowson apâ—endant to a Mannor 8 Albeit a man cannot at all be put out of possession of his Villein in grosse nor directly of his Villein regardant yet may he per obliquum Co. ib. 306. b. 4. c. and by a mean be put out of possession of his villein regardant to a Mannor For by putting him out of possession of the Mannor which is the Principal he may likewise be put out of possession of the Villein regardant which is but accessory And so it is also of an Advowson appendant to a Mannor And therefore by the grant of a Mannor without saying cum pertinentiis the Villein regardant Advowson appendant and the like do passe For if the Disseisor shall gain them as Incidents to the Mannor whose estate is tortious A multo fortiori the Feoffée who cometh to his estate by lawful conveyance shall have them as Incidents And where the entry of the Disseisée is lawful he may seise the Villein regardant or present to the Advowson c. before he enter into the Mannor But it is otherwise where his entry is not lawful And so are our ancient Authors to be intended and a point much controverted in our books to be resolved Vide Dyer 5 6. 9 If the reversion of Lessée for life be granted Co. ib. 316. a. 3. Littl. § 568. and Lessée for life assigns over his estate Attornment â—ollows the â—and the Lessée cannot attorn but the Assignée for the attornment follows the land So likewise if Lessée for life assigneth over his estate upon condition the Assignée shall attorn because he is Tenant of the land c. The demesns c. follows the Mannor 10 Attornment of the Tenant of a Mannor to a Disseisor of the Demesnes shall dispossesse the Lord of the rents and services Co. Inst pars 1. 323. a. 1. parcel of the Mannor because both Demesns rents and services make but one intire Mannor and the Demesnes are the principal c. A charge follows the land 11 If there be 80 acres of Meadow Co. ib. 343. b. 3. which use to be divided yearly amongst divers persons by lot or otherwise viz. thirtéen acres thereof to A. 10 acres to B c. So as sometime the 13 acres lie in one place and sometime in another and so of the rest In this case if A. being seised of these 13 acres in fée grant a Rent-charge out of those 13 acres generally lying in the Meadow of 80 without mentioning where they lye particularly There as the estate of the land removes the charge shall remove also Advowson â—ollows the Mannor 12 Tenant in tail of a Mannor whereunto an Advowson is appendant maketh a discontinuance Co. ib. 349. b. 2. 5 H. 7. 35. Co. l. 3. 3. a. 4. in the Marq. of Winchesters case the Discontinuée granteth the Advowson to Tenant in tail and his heirs Tenant in tail dieth the issue is not remitted to the Advowson because the issue had no action to recover the Advowson before
1. 173. b. 4. that shall avoid the partition in the whole be it of a Mannor that is intire or of acres of ground or the like that are several for the partition in that Case implyeth for this purpose both a Warrantie and a Condition in Law and either of them is intire and giveth an entry in this Case to the whole Co. l. 4. 1. 12. Bustards Case And so it was resolved in Bustards Case Co. l. 4. 121. both in the Case of exchange and partition â—eerage in copercinencie 77 If an Earldome Baronie Co. Inst pars 1. 156. a. 3. or other Peerage descend to Coparteners the Lands shall be divided as amongst other Parteners but the dignitie being intire cannot be parted neither shall it descend to the eldest alone but in such Case the King who is the soveraigne of honor and dignitie may conferre it upon which of the Coheries he please A County intire 78 A writ of Dower is brought against the Alienée of the Baron Co. lib. 9. 17. b. 2. in Anus Benigfields Case and he voucheth the heire In this Case the Demandant may testise that the heire hath Lands descended unto him in the same County for to another County the originall doth not extend and may pray that he may be endowed of his Estate So in 4 E. 4. 36. 6 E. 3. 11. The Tenant in a writ of Dower vouched the heire of the Baron and the Demandant testifieth that he hath Lands by descent c. in the same County and judgement was given against the heire But if he had none there it should have béen given against the Tenant Vide suprà 55. 110. An intire condition 79 If there be an obligation with Condition Dier 16. 88. 28 H. 8. that if I infeoffe another before such a Feast of the Mannor of Dale discharged of all manner of Rents In this Case if a stranger hath a Rent issuing out of the said Mannor and I make a Feoffment and at another day afterwards and before the Feast I purchase a release of the stranger here the Condition is not observed in as much as the Mannor ought to have bin discharged at the time of the Feoffment simul semel because the Condition was intire But if the Condition be that I pay 10. l. build an house and goe of your errand to Pauls before such a Feast In such Case I may well doe these Acts upon several dayes before the Feast because the Condition was not intire â—ease to two 80 If a Lease be made to two for lives terme of their Dier 67. a 18. 3 E. 6. and they make partition and the one dies his part shall revert to the Lessor because their lives are several the life of the one not being the life of the other But in a Lease be made to two for term of yeares with proviso that if the Lessées die within the term that then the term shall cease and they make partition or out of them aliens his part and dies In this Case the Lessor cannot enter into his part that dies but the grantee or the executors of the Lessée if he made an alienation shall have his part during the life of the Survivor because the terme of yeares is intire and cannot cease as to one and continue to the other â—stresse 81 An Honor is intire as well as a County or Mannor and therefore a distresse taken in the County of Wilts in a place which is parcel of the Honor of Wallingford the Castel and Court whereof is within the County of Berk was driven to that Castel and there impouded and upon a replevin delivered since the Statute of 1 2. P. M. 12. Dier 168. 20. 1 El. and held good For afterwards at the suit of the Defendant the Plaint was removed by an Accedas ad Curiam directed to the Sheriffe of Oxon and the Plaintife counted of the taking in praedicto loco in Com. Wilts and all held good per Curiam Dier 227. 44. 6 El. 82 A general pardon discharged all post fines under 6 l. And for the fine there were two writs of Covenant Post-fine but onely one concord of Lands in two Counties and the Post-fine being extracted intirely did exceed 6 l. but being divided it was under which division Sank-ford requested but the Concord being intire the Court adjudged the Post-fine but one also Dier 246. 70. 8 El. 83 In a Replegiare against a Bishop and others Challenge they were at several issues but one venire facias was awarded the Bishop challengeth the Array because there was no Knight and this challenge was held good for all because the venire facias was intire albeit the issues were several Dier 256. 11. 9 El. 84 Tenant for life surrenders the one Moitie Intire reservation and the Lessor grants the whole Land to a stranger Habendum the one Moitie for life and the other for 40 yeares after the death of the Tenant for life rendring 40 l. per annum In this Case the Lessor may distraine and a vow for the whole Rent presently albeit the one Moitie be but terra revertens and the reason is for that the reservation is intire Dier 260. 22. 9 El. 85 In Debt upon a lease for yeares of several parcels Non demisit pleaded the parties are at issue upon non dimisit and it was found a demise of all but one parcel and damages assessed Howbeit the Plaintife could not have judgement because the Lease and Count were intire and did containe all Hob. 66. Cox and Jenner 86 Where two commit Trespass Trespass a release to one of them of all actions real and personal enures to both albeit he to whom the release is made is not party to the suit but is onely mentioned in the declaration with a simul tum c. because the Trespass is intire and therefore cannot be released to one but must also be released to all that are guilty thereof Vide Hob. 70 Parkens Case Ho. 180. Slowley and Sveley 87 Where a man hath a personal Action against two Defendants Trespass if they plead severally and he be non-suite against the one before he hath judgement against the other he shall be barred against both for the Trespas being intire the non-suite worketh in nature of a release of the whole 71 Argumentum à Divisione est fortissimum in Lege Co. Inst p. 1. 213. b. 3. 1 An example or two of this Argument you shall find in Littleton An impaâ—â—â— Rent whereof the first is in Sect. 344. where he puts this Case If a man enfeoffe another upon Condition that he and his heires shall render unto a stranger and his heires an annuall Rent of 20 s. c. and upon failer of payment that the Feoffor and his heires may enter this is a good Condition yet the summe so reserved cannot be
ancient recompence yet doubtlesse the place wasted being in the realty must néeds be the more principal And therefore upon a Recovery had by default in an Action of Waste against tenant in Dower or by the Courtesie a Quod ei deforceat lieth as well as in any other Action c. for à digniori fieri debet denominatio resolutio c. â—â—e Kings â—nnis-playes 2 If the King grant the office of the Tennis-Playes in Westminster Co. l. 8. 45. b. 4. in John Webs Case by the name of the Kings Tennis-playes in VVestm c. this grant shall be taken in a reasonable sence viz. the Tennis-playes for the Kings Houshold and not onely for the Tennis-play when the King himself playes in his Royal Person for the King is the Head of his Houshold and therefore à digniori parte the Tennis-playes for his houshold may be well called The Kings Tennis-plays c. Co. l. 10. 47. b. a. in Lampets case 3 A. Lessée for 500 years deviseth to B. for his life Executor or Legatee Election and after his decease the remainder to C and to the heires of his body and makes B. his executor and dies B. takes upon him the charge and enters In this Case when the devise is ut suprà to the executor for life and after to another c. and the executor enters generally he shall have the Lease as executor which is his first and general authority and not as Legatory without claim or demonstrartion of his election albeit the testator was not indebted to any c. Co. l. 11. 38. b. 4. in Metcalfes case 4 When a thing whereof there are divers degrées and qualitites is indefinitely mentioned in a Writ Count or other Record Principal things includâ— inferiour the principal and most worthy thing shall be intended as in 6. Eliz. Dier 236. when a penalty is inflicted by Act of Parliament to be recovered in any of the Kings Courts of Record it shall be intended of the Principal Courts at Westm 20. H. 6. 23. In accompt supposing the Defendant to be his Receiver from the feast of St. Michael this shall be intended the principal Feast of St. Michael the Archangel and not of St. Michael de Monte Tumbe so 13. H. 4. 4. 21. H. 6. 8. 37. H. 6. 29. If the father and son are of one name viz. I. S. if I. S. be named generally in a Writ Count or other Record this shall be intended of the father for he is the more worthy Likewise 10. E. 4. 11. 7. R. 2. Tit. Barr. 241. A man is bound to prove a thing or a thing is to be tried this shall be by the most principal proof and trial in law viz. by a Iury so if it be spoken of fée it shall be intended fée-simple Litt. §. 193. Co. Inst part 1 124. b. 3. or if of escuage it shall be intended of the principal Escuage viz. of Escuage uncertain Litt. fol. 21. And fée a notable case to this purpose in 5 E. 2. Resceit 165. were the Case was this In admeasurement of Pasture against a man and his wife Iudgment was given that the admeasurement should be made and after it was made in pais and returned in Banco 15. Hillar at which day the Baron made default and the Feme came in Court before the judgment rendred in the principal and the prayed to be received In this case albeit it was moved that she came too late viz. after the admeasurement awarded which is a judgment yet thereunto Herle said that it was no judgment upon the principal And where the Statute of West cap. 3. is Si uxor ante judicium venerit c. Statutum debet intelligi de principali judicio So also in 2 E. 3. Resceit 139. In an Assise of Mortd against Baron and Feme the Assise was awarded by default and the Assise remained alwayes pro defectu Juratorum then the Feme prayed to be received and it as objected that judgement was given that the Assise should be taken neverthelesse the Feme comming in before final judgment was received and with this accords 17. E. 2. ibid. 173. and 22. Ass pl. 22. After the Assise awarded the Feme was received 24. E. 3. 29. and divers other Books accord c. Co. l. 11. 39. a. 4. in Metcalfes ease 5 These words in a writ of Error Si judicium inde redditum sit No writ of Eâ—ror before judgment 〈◊〉 all c. are intended not onely de principali Judicio but also de integro Judicio viz. when all the matter within the original is determined as in 34. H. 6. 18. in Humphrey Bohuns Case in Quare impedit brought by two the one pleads to the Issue and the other confesseth the Action upon which confession Iudgment is given and he against whom the Iudgment was given sues a writ of Error to remove the Record into the Kings Bench Here Prisot tota Curia say this cannot be for the writ of Error shall rehearse all those that are parties to the original writ and then the writ saith Et si Judicium inde redditum sit tunc recordum illud habeatis c. which proves that it cannot be removed before the whole matter be determined c. 76 The Law requireth decencie and order The Homager must seek his Lord. 1 The tenant ought to séek the Lord to do him homage Co. Inst pars 1 104. b. 4. Bract. fol. 80. Britton fo 171 if the Lord he within England for this service is personal as well on the Lords side as on the tenants and in this Case the Law requireth decency and order And therefore Bracton saith Et sciendum quod ille qui homagium suum facere debet obtentu reverentiae quam debet domino suo audire debet dominum suum ubicunque inventus fuerit in regno vel alibi si commodè possit adiri non tenetur dominus quaerere suum tenentem sic debet homagium ei facere c. and there is the same Law for fealty ec Causae Matriâ—onii praelocuti 2 If a woman give lands to a man and his heirs Co. ibid. 204. a. 3. 226. a. 3. causa matrimonii praelocuti In this Case if she either marry the man or the man refuse to marry her she shall have the land again to her and to her heirs but on the other side if a man give land to a woman and to her heirs causa matrimonii praelocuti though marry her or the woman refuse he shall not have the lands again for it stands not with the modesty of women in this kinde to ask advice of learned Councel as the man may and ought c. And for the same reason a woman may aver the cause although it be not contained in the Déed yea albeit the feofment be made without Déed Order in pleading 3 The order
Case if an Infant Tenant make Feofment and die without Heire the Feofment is un-avoidable here is the same Law of Coverture and non sanae memoriae c. Co. l. 6. 76. b. 4. in Sr. Geo. Cursons Case 19 It is said that one of the Chiefest reasons 32 34 3â— H. 8. of Wilâ— that moved the Parliament in 32 H. 8. and in 34 35 H. 8. to give libertie to dispose of the two third parts of Lands by will or otherwise for a Competent livelyhood of Wives and Children or for payment of Debts was this Because these Cases were ordinary usual and necessary And for that every man is in his life time bound by the Law of God of Nature and of Nations to make provision for his Wife and Children and also for the payment of his Debts c. Co. ibid. 77. a. 2. 20 There is a neerer Relation betwéen Father and Sonne Father neeâ— then Grandfather then betwéen Grand-father and Grand-child And therefore if there be Grand-father Father and divers Sonnes and the Grand-father in the life time of the Father conveys his Land to some of the Sonnes this is out of the Act of 32 H. 8. of Wils For the Father ought to have the immediate care of his Sonnes and Issues But if the Father be dead then the care of them belongs to the Grand-father and then if he convey any of his Lands to any of them that is within the said Statute Co. Inst pt 1. 123. b. 2. Litt. §. 189. 21 It is regularly true A Villein may sue his Lord. that the Villain cannot bring any Action against his Lord yet he may have against his Lord an appeale of the death of his Father or of any other of his Ancestors whose heire he is c. because the villain is both by duty and in nature bound to pursue such an Action Co. lib. 3. 12. b. 2. St. Will. Herberts Case 22 If a man seised of three Acres of Land No contribution to the heire acknowledgeth a recognisance or Statute c. And enfeoffes A. of one Acre and B. of another and the third descends to his heire in this Case if execution be sued onely against the heire he shall not have contribution For he comes in the place of his Ancestor and sits in his State Haeres enim est alter ipse filius est pars patris And as it is said Mortuus est pater quasi non mortuus quia reliquit similem sibi Co. Inst p 1. 174. a. 4. 23 If one Copercener maketh a Feoffment in Fée and after the Feoffée is impleaded and voucheth the Feoffor The heire apparent shall derraigne the warrantie from upon feofâ—â—â— for the mother she may have ayde of her Coperceuer to deraigne a Warrantie per amount but never to recover per rata against her by force of the Warrantie in Law upon the partition For as Littleton saith by her alienation she hath dismissed her selfe to have any part of the Land as parcener but if there be two Coperceners and they make partition and the one of them enfeoffs her Sonne and heire apparant and dieth and after the Sonne is impleaded Here albeit he be in by the Feoffment of his Mother yet shall he pray in ayde of the other Copercener to have the Warrantie per amount and to recover per rata not onely because the Warrantie betwixt his Mother and him is by Law annulled but likewise for that he is alter idem with his Mother Dier 2. b. 1. 19 H. 8. 24 A fine levied by Tenant in taile after the Statute of 4 H. 7. 24. Issue in taile barred by 〈◊〉 fine and before the Statute of 32 H. 8. 36. did bind the issue in taile and his title was not preserved by any of the savings in 4 H. 7. because albeit he claimed per formam doni yet claiming thorough his Father the Land came to him in the nature of a descent Dier 128. b. 61 2 3. P. M. 25 If any of the Kings subjects be beyond Sea and is commanded by the King to return home and in contempt refuseth so to do Allegiance all his Goods and Chattels Lands and Tenements shall be seised for the use of the King And this is by reason of the faith and allegiance which he oweth to the King by the Law of Nature And this was the Earle of Richmonds Case in 19 E. 2. in Scaccario The like 26 If a Bastard were borne at Turney Dier 224. 19. 5. Eliz. when it was under the obedience of H. 8. he was a denizen by the Law of Nature So it is also of the issue of Aliens born within this Realme 27 Vide Hob. Rep. pag. 1. The Earle of Clanrichards Case 10. Grisley against Lother Formedon 28 In a cessavit brought by the Husband and Wife Hob. 1. The E. of Clanrichards Case or in a writ of Escheat a consimili casu or Action or Wast because there is a vested in them already either a Signiory or reversion actually and therefore the Land holden or the present Estate to return is come in possession therefore in these Cases Reverter is to be made to them both and so are the Bookes in 3 H. 6. 2. 20 E. 3. Briefe 372. Register 238. F. N. B. â—10 Also in a Formedon in Reverter wherein nothing is already revested but the right onely returnes there the right may be laid to return either to the Wife alone or to the Husband and Wife as Douby resolves it 33 H. 6. 54. See also 18 H. 8. 20. 5 H. 3. 13. 38 E. 3. 16. and 18 E. 3. 3. where it was sometimes to the Wife sometimes to the Husband and Wife But in a Formedon in descender upon a descent to the Wife there the descent must be made in the writ to the Wife alone because the descent followeth the bloud and to that the Husband is a stranger and so are the Bookes in 19 H. 6. 46. and 53 H. 6. 10. where a Formedon in descender was brought by two Husbands and their Wives and made the descent in bloud to the Wives onely and yet concluded that the right ought to descend to the Husbands and Wives And exception was taken to it and ordered by the Court that it should be amended and the descent made onely to the Wives Assumpsit 29 In an Action upon an Assumpsit Hob. 10. Grisley and Lother that A. would give to B. 100 l. if B. would give her consent that A. might marry her Daughter and it was moved in arrest of judgement that the action would not lie the consideration being to travel or charge but onely a bare consent howbeit it was held by three Iustices against one that the consideration was good because the Mother hath by the Law of Nature a special stroke to incline the Daughters mind either one way or other and the desire of
Vide Dier 150. 84. Co. ib. 207. a. 4 24 If a man make a single bond Condition collateral or acknowledge a Statute or Recognisance and afterwards make a defeasance for the payment of a lesser sum at a day if the Obligor or Conusor tender the lesser sum at the day and the Obligée or Counsée refuseth it he shall never have any remedy at Law to recover it because it differeth in quality from the sum contained in the Obligation Statute or Recognisance because if is no parcel thereof but contained in the defeasance made at the time or perhaps after the Obligation Statute or Recognisance And in such Case in pleading of tender and refusal the party shall not be driven to plead Uncore prist neither hath the Obligée or Counsée any remedy by law to recover the sum contained in such defeasance so likewise it is if a man make an Obligation of 100 l. with condition for the delivery of corn or timber c. or for the performance of an Arbitrement or the doing of any Act c. This differing in nature from the sum contained in the Obligation and being no parcel thereof is collateral thereunto And therefore in such Case also a tender and refusal is a perpetual bar The like Law it is of tender and refusal of money upon a Mortgage of Land because the money is collateral and differeth in nature from the land Dier 5. b. 26. H. 8. 1 2. 25 A man seised of land devisable by the custome lets it for years Rent reservâ—â— a chattel rendering rent and deviseth the rent to a stranger and dies and the stranger is seised of the rent and dies also In this case the rent being in its nature but a chattel shall go to the executor of the Devisée and not to his Heir 26 In debt against Executors brought in the County of Middlesex Debt against Executors the Defendants plead fully administred Dier 30. b. 206 28. H. 8. The Plaintiffe saith that they have Assets in Essex and thereupon the Defendants demurred and judgment was given for the Plaintiff because Assets in their nature is a thing transitory and not local and if it had been in issue and trial of a Iury of Middlesex they might have found the Assets in any County of England Rent-service apportionable 27 Rent-service was apportionable at the Common Law before the Statute of Quia Emptores terrarum Co. Inst p. 1. because there are divers kinds of Rent-service which are not within that Statute and yet were apportionable by the Common Law as if a man maketh a lease for life or years reserving a rent and the Lessée surrender part of the land to the Lessor or if the Lessor recover part of the land in an Action of wast or entreth for a forfeiture or granteth part of the reversion to a stranger or if tenant by knight-service by his last will in writing deviseth two parts of his lands In all these cases the rent shall be apportioned yet they are not within the words of the said Statute but the reason séems to be for that rent-service is of the nature of the land and therefore partable as it is partable according to Max. 64. It is otherwise of a rent charge because it is not of the nature of the land being against common right and collateral to the land Livery out of ward 28 A livery to be out of ward being in nature of a restitution Co. ib. 77. a. 4. shall be taken and expounded favourably And therefore if livery be made of a Mannor cum pertinentiis the Heir shall thereby have the Advowson appendant It is otherwise of Grants by Letters Patents Confirmation 29 If a Lease for life be made to two Co. Inst p. 1. 299. b. 1. to have and to hold the one moity to the one for life and the other moity to the other for life and the Lessor confirm their estate in the land to have and to hold to them and their heirs In this Case they are tenants in common of the Inheritance for regularly the confirmation shall inure according to the quality and nature of the Estate which it doth inlarge and increase 30 There being thrée Coperceners of land in Gavelkind in reversion Dier 128. a. 58 2 3. P. M. depending upon an Estate for life Partition the youngest aliens his part by fine in fée the tenant for life dies and the eldest son enters into the whole and then the second brother and the alienée bring a joynt writ of partition upon the Statute of 31 H. 8. 1. against the eldest brother But it was adjudged that it was not maintainable because they were entituled to writs of partition of several natures viz. the one to a writ of Copercenarie at the Common Law and the other to a writ of Partition by the Statute and therefore could not joyn â—eprivation 31 The President of Magdalen Colledge in Oxford being deprived by the Bishop of Winchester their Visitor Dier 209. 20. 3 4. Eliz. could not have an Appeal to the Delegates because the deprivation was temporal and not spiritual and therefore out of the Statute of 25. H. 8. 19. And so he was put to his Assise â—â—sance 32 Tenant for life of an house brings an Action upon the Case against one who stopped the way in his land Dier 250. 88. 8 Eliz. which time out of mind had béen a passage betwixt the house and a Park and albeit the Park was the Lessors and not the tenants for life yet it was held by the Count that such an Action lay not for the tenant for life but an Assise of Nusance 〈◊〉 in grosse 〈◊〉 rent 33 The Lord Dacres lets certain land and stock to friends Dier 275. 49. 10 Eliz. who covenant to pay 100 l. per annum to him and his wife his heirs assignes during the term and also 2000 l. at a certain day for the marriage-portion of his daughter he dies his son within age suffers more then a third part of all his land to descend after the Feme dies And in this Case it was adjudged that the Quéen should not have the 100 l. per annum but the executors of the Feme because in nature and quality it is not a rent which goeth to the heir but a sum in grosse 81 In persons the Law looketh at the excellency of some and giveth them singular Priviledges and preheminences above others as to the King the Queen his Wife Noblemen and Peeres of the Realme also unto persons of holy Church Co. Inst pt 1. 21. b. 3. 1 If the King give Land to a man with a Woman of his kindred in Frank-marriage and the Woman dieth without Issue Frank-marriage the man in the Kings Case shall not hold it for his life because the Woman was the cause of the gift but it is otherwise
and the six moneths passe and after the Kings tenant dies before the Bishop presents by laps and leaves his heir within age and in ward to the King In this case the Bishop shall not present by laps but the King shall have the presentment by reason of the ward c. F. N. B. 35. p. 75 In a Quare Impedit for the King Not stopt albeit the Defendant hath a writ to the Bishop against the King yet the King may sue a new Quare Impedit against the party of the same avoidance and make another title F. N. B. 37. f. 76 The King may sue a Ne admittas after the six moneths past Ne admittas where he hath a Quare Impedit or an Assise de Darrein presentment depending because Nullum tempus occurrit Regiâ— It is otherwise in the Case of a common person because the Bishop may then present by laps the title of presentment being devolved to him c. F. N. B. 38. e. 77 In a Quare Impedit betwéen two strangers The Kings title if the title appears to the Court for the King they award a writ to the Bishop for the King accordingly F. N. B. 60. i. 78 Vpon grant of a Reversion Wast Attornment although it be by fine the Grantée cannot bring an Action of wast against the tenant before Attornment but if the King grant a Reversion by his Letters Patents the Grantée may have an Action of waste before Attornment F. N. B. 85. a. 79 At the Common Law every man may go out of the Realm for Merchandizing Peregrination Ne exeâ—s regâ— absque lier 〈◊〉 Regis or other Cause whatsoever pleased him without the Kings licence and he was not to be punished for it Howbeit because every man is by Law bound to defend the King and his Realm therefore the King at his pleasure may by his Writ de securitate invenienda quòd se non divertat ad partes exteras sine licentia Regis command that he shall not go out of the Realm without his licence c. And if he doth it he may be punished for dis-obeying the Kings Command And it séems that this Commandement may be made by the Kings Writ under the Great Seal Privy Seal or Privy Signet For in this Case the Subject is bound to take notice of every Seal the King hath as well as of the Great Seal F. N. B. ibid. c. The King may do the like by his Proclamation in Case he cannot be found to have the Writ served upon him which if he obey not it is a contempt for which he shall make fine to the King Note that by the Statute of 5 R. 2. cap. 2. it was ordained that none should go out of the Realm without the Kings licence which continued in force until 4 Jac. and then by the Statute of 4 Jac. cap. 1. that Clause of that Statute was repealed So that at this day it séems that the Subject hath the same liberty that he had at the Common Law Dier 296. 19. yet by the words in the beginning of the writ which are these Rex A. de B salut c. Quia datum est nobis intelligi quod tu versus partes exteras absque licentia nostra clà m destinas te divertere It séems he cannot go out of the Realm unlicensed by the King c. As Dyer observes 165. p. 6. Ideo quaere de hoc Protection 80 If after the King hath granted to one his protection F. N. B. 92. b. c. any man takes his Goods or enters into his Lands c. or beats his Servants c. the partie grieved shall have a special writ directed to the Seriffe to inquire of them and to certifie it before the King c. And it séemes that the King shall make processe against them by venire facias as upon an Indictment and that they shall make fine hereupon Sea-banks Sâ—wers 81 The King ought of Right to have and defend his Realme as well against the brâ—akings in of the Sea F. N. B. 133. a. as against enemies that it be not drowned or wasted and to provide remedy for it And also to provide that his subjects have their passages throughout the Realme by Bridges and safe Wayes And therefore if the Sea-bankes be broken or Sewers and Gutters be not scoured that the fresh waters may have their direct Course the King may and ought to make a Commission to inquire thereof c. And to hear and determine those defaults But now matters that concerne Sewers are regulated by direct late Statute viz. 23 H. 8. 5. 13 El. 9. c. Priority Wardship 82 If a Man hold of the King by Posteriority F. N. B. 142. f. and of another man by priority and after the King grants to the Quéen the Seigniory for terme of life and after the Tenant dies his heire within age In this Case the Quéen shall have the wardship of the body having no regard to the Posteriority Because the Reversion of the Seigniory remaines still in the King It had béen otherwise if the King had granted it in remainder to another in Fée for then it seemes they should not have had the priority c. Annuity 83 If the King grant an Annuity to one for terme of life or yeares F. N. B. 152. k. it ought to be expressed in the grant by whose hands he shall receive that Annuity as to say by the hands of the Sheriffe of S. or by our Baylife of the Mannor of S. and then the Sheriffe or Baylife shall have allowance upon that Patent shewing if he pay it And if there be not such words in the grant of the Annuity then the grant is void For he cannot sue to the King for it and no person is bound to pay it unto him if he be not named and expressed in the Patent c. â—yde â—â—ayer Procedendo 84 If a Man pray in Ayde of the King F. N. B. 253. e. f. and the Ayde is granted then shall it be awarded that he shall sue to the King in the Chancery And the Iustices of the Common Pleas shall cease until a Writ De procedendo in loquela come unto them c. And then they may procéed in the Plea until it go on so farre that Iudgement ought to be given c. For the Plaintiffe And then also the Iudges ought not to procéed to Iudgement until another Writ De procedendo ad judicium be brought unto them And if the King certifie the Iustices by his writ that the Lands are seised into the Kings hands then also shall they surcease until a writ De procedendo loquela be sent into them c. And if it appeare to the Iustices upon Record that the Tenements are seised into the Kings hands or if it appeare to the Court by the pleading and shewing of the Parties that the
plead by prochiene amy Finch ibid. Tender upon a Mortgage for an Ideot 45 In Case of a mortage Littl. saith § 334. Co. Inst p. 1. 206. b. 4. if a stranger of his owne head that hath no Interest c. will tender the moneys c. to the feoffée at the day appointed the feoffée is not bound to receive them c. yet if the tender ought to be made by an heire that is and Ideot of what age soever In that Case any man may make the tender for him in respect of his absolute dis-ability and the Law in this Case is grounded upon charity and so in like Cases â—â—â—ant not outâ—â—ed 45 Minor verò Bracton l. 3. fol. 125. r. quia infra aetatem 12 annorum fuerit utlagari non potest nec extra Legem poni quia ante talem aetatem non est sub lege aliqua nec in decemi â—â—ant no acâ—â—â—tant â—or can make â—â—th 46 An infant under the age of 12 yeares shall not be charged in account as Receiver or Bailiffe Co. ibid. 128. Co. Inst p. 1. 172. a. 3. Litt. §. 258. Co. ib. 172. b. 1. because by intendment of Law before his full age he hath not skill and ability to raise or make any improvement or profit of the lands Goods or Chattels committed to his charge Neither shall an infant under that age be sworne of an Inquest for the Rule of Law is Minor jurare non potest And therefore an infant cannot make his Law of non summons neither shall his default in such Case grieve him for séeing the mean to excuse the default is taken away by Law the default it self shall not prejudice him Howbeit an Infant at the age of 12 yeares shall take the oath of Allegiance to the King an this was as Bracton saith Secundum leges Sancti Edwardi but indéed such was the Law in the time of King Arthur Howbeit an Infant cannot wage his Law in an Action of debt no more then make oath of non summons as afore-said 47 In Trespass by Will. de Walton against John Martin judgement was given â—prisonment â—pited that the Parliament should recover damages Co. Inst p. 1. 289. a. 4 quod praedict Joannes capiatur And the Record saith quod praedict Joannes venit coram Domino Rege reddidit se prisonae quia constat Curiae per inspectionem corporis ipsius Joannis quod idem Joannes est talis aetatis quod poenam imprisonamenti subire non potest idem dictum est ei quod eat inde sine die Also Allen Abbot brought an appeale of Robbery against John Boskiseleke Clerk and others who pleaded Not-guilty and were not found guilty whereupon judgement was given that they should go quit praedict Elena pro falso appello suo committatur prisonae c. for by the Statute of Westm 2. cap. 12. she ought to be imprisoned in that Case for a yeare but the Record saith Quia cadem Elena pregnans fuit in periculo mortis ipsa dimittitur per manucaptionem c. ad habendum corpus usque Quind Mich. c. 48 Vide Max. 135. 1. and for Infants sée Dier 104 a. 10 c. and Max. 149. 55. Dier 148. 75. 338. 41. Hob. 137. 49 A Lunatique shall not be charged with meane rates for default of Livery sued or tendered Burchers Case 84 The Law in some Cases tendreth the ignorance of men un-lettered 7 E. 3. 9. Co. Inst P. 1. 301. b. 4. 1 If a man make a lease to A. for yeares Lease for life and after by his déed the Lessor voluit quòd haberet teneret terram pro termino vitae suae this is adjudged by this verbe volo to be a good confirmation for term of his life Benignae enim faciendae sunt interpretationes cartarum propter simplicitatem Laicorum ut res magis valeat quà m pereat Co. lib. 5. 55. b. 2. in Knights Case Co. lib. 2. 3. a. Mansers Case Dier â— 16. El. 337 338. Pl. 39. 2 A man not lettered is not bound to seale and deliver any writing which shall be tendred unto him if there be not some present Not bound tâ— seale a deeâ— unlesse read that can and do first read the déed unto him if he require them so to do and if the déed be in Latin French or any other Language which the partie that should seale the writing understandeth not in that Case if the partie desire one to read it and expound it and there is none present that can or will do it in a language that the party sealing doth understand he may well then refuse to deliver it So likewise albeit a man can read yet if the déed be written in Latin French or some other language that he understand not and he demand to have it expounded but can not have it done accordingly In that Case also he may refuse to deliver it For Ignorantia est duplex viz. facti juris rursum ignorantia facti quoad rem nostram attinet est duplex viz. Lectionis linguae Now ignorance in reading or of the language quae sunt ignorantiae facti may excuse but as it is commonly said ignorantiae Juris non excusat Co. l. b. 2. 9. a. Thorough goods Case Co. l 4. 44. b. 3. in Sanches Case Co. l. 9 51. b. in the Earle of Shroesburys Case 3 A writing read or expounded in another forme then it purports to one not Lettered is not his déed though be seal and deliver it Not bounds 4 An Indictment ought to be full expresse and certaine Inditement and shall not be maintained by argument or implication because it is to be found by the oath of Lay-men 5 Pleading ought to be precise exact and certain Special Veâ—dicts It is otherwise of special verdicts which are to be found by Lay-men for the Law requireth no such precisenesse in them c. In the Earle of Shroesburys Case 6 If three distinct obligations are written upon one and the same piece of Parchement Co. lib. 11. 27. b. 1. in Henry Pigots Case and one of them onely is read to the obligée Several Obâ—â—gations upâ—â— one parchment and he being a man not lettered seals and delivers the whole this is good for that obligation which was read but void for the rest And this Case is agréed by Brudnel and Pollard in 14 H. 8. 26. So if there be two absolute and distinct clauses in a déed and one of them is read to the partie not lettered and the other not it is good for the clause that was read and ab initio void for the other Obligation of xx l. c. for xx s. 7 In 9 H. 5. fol. 15. Co. ibidem One brings a writ of debt of xx l. against another and counts upon an obligation of the same summe the defendant pleads that
which is within memory and cannot make a custome And it stands not with reason that the undue actings of strangers should debarre the Plaintiffe of his due Debt Tofts Case 87 Nemo punitur pro alieno delicto Co. Inst p. 1. 145. b. 3. 1 In a Replevin Replevin the Defendant cannot claim property by his Bailiffe or Servant because if the claim fall out to be false he that claims shall be fined for his contempt which the Lord cannot be unlesse he maketh claim himself And Nemo punitur pro alieno delicto Co. ib. 54. a. 1. 2 A Guardian shall not be punished for waste done by a stranger Guardian it is so penal unto him for he shall lose the wardship both of the body and of the land though the waste be but of the value of twenty shillings and if that sufficeth not to satisfie for the waste then he shall recover damages of the waste over and above the losse of the ward And Nemo punitur c. Co. l. 4. 33. b. 4 in Mittons Case 3 Qéen Eliz. by her Letters Patents grants the Office of the Clerkship of the County-Court of the County of Sommerset to Mitton and then constitutes Arthur Hopton Grant of the Clerk of the County High Sheriff of the same County who grants that Office to another and upon Mittons complaint it was adjudged that he might And one of the reasons of that resolution was this That in all writs to remove any Plea out of the County Court into the Common Pleas the King calls the County-Court the Court of the Sheriff and if the Sheriff do not by force of such writs certifie the Record then shall issue out processe of contempt against him and if the Record be imbeziled the Sheriff shall answer for it And therefore it will be full of danger and damage to Sheriffes if others shâ—ll be appointed to kéep the Entry and Rolls of the County-Court and yet the Sheriff to be liable to answer for them as immediate Officer to the Court for Nemo punitur c. And therefore the Sheriff ought to appoint Clerks under him of the County-Court for which he shall at his peril answer c. Co. l. 12. 5. b. 3. in Sanders Case 4 In Fosters Myles Case p. 28. Eliz. in Com. Banco Rot. 820. Waste it was said that if Lessée for years devise his term to another and makes his executors and dies and then the executors make waste and after assent to the Devisée In this Case albeit betwéen the executors and the Devisée that hath relation and the Devisée is in by the Devisor yet an action of waste shall be maintainable against the executors in the tâ—nuit So likewise if the Grantée of a Term upon Condition make waste and after the Grantor enter for the Condition broken the action of waste shall be maintainable against the Grantée in the tenuit c. 30 E. 3. 16. accord Co. l. 11. 42. b. 3. in Godfreys Case 5 At a Léet the Homage was jointly fined six pounds Joynt-fine in Leet because they would not present according to their duty c. And it was resolved that the Fine so imposed upon the Iurors jointly was not legally imposed because the refusal of any of them being several and personal and the refusal of one not the refusal of another the Fine ought to have béen assessed upon them severally and not joyntly for if some of them did refuse and the rest were ready to present c. those that refused were onely to be fined And therefâ—re the Case put Prisot in 35. H. 6. Examination 17. that if one of the Enquest escape after that they are sworn so that they cannot give their verdict although the rest did not assent thereunto yet all should be fined was utterly denied to be law for Nemo debet puniri pro alieno delicto whereunto he was neither party privy assenting nor consenting because then it might be said Rutillius fecit Aemilius plectitur And it was said that that Case was either ill reported or ill printed Waste 6 If a stranger make waste of his own wrong after the writ of Estrepement delivered unto the tenant and against the tenants will F. N. B. 61 h. In that Case the tenant shall not be punished for that waste Joint-amerciament in Court Baron Co. Pl. c. 7 In a Court Baron F. N. B. 75. g h i k. if two be amercied outragiously for one and the same trespasse they shall not joyn in a writ de moderata miserecordia for they ought to be severally amercied albeit the trespass was joyntly committed So it is also in a Plaint sued by two if they be non-suited for the amerciament ought to be several and they shall not joyn in a moderata miserecordia because the one ought not to be charged with the offence of the other And therefore the course in the Common Pleas is when divers Defendants are amercied to make the Estreats of the amerciaments several Likewise if divers Demandants are amercied in a Plea real for their Non-suit they set the Estreats severally upon them And in these Cases in the Common Pleas the course is for the Clerk of the Warrants to deliver those Estreats to the Clerks of Assise and they to the Coroners who are to affeire them and then to re-deliver them to the Clerks of the Assise and they to the Clerk of the Warrants who makes the Estreats and then one of the Iustices of the Bench together with the Clerk of the Warrants goes with the Roll of the Estreats into the Exchequer and there puts them in before the Barons of that Court from whence they issue to the Sheriffe of every respective County to be levied for the Kings use and the Officer in the Exchequer that serves them and so prepared them for every severall County is called the Clerke of the Estreates 〈◊〉 audita queâ—â—lâ— Non-suit no â—â—ejudice 8 In an Audita querela brought by two Co. Inst p. 1. 139. a. 4. concerning the personalty the Non-suit of the one is not the Non-suit of the other because it goeth by way of discharge and fréeing of themselves And therefore the default of the one shall not hurt the other â—â—â—asâ—avit 9 In Debt against two Executors Dier 210. 23. 3 â—liz one appears and confesseth the Action the other makes default and judgment to recover de bonis Testatoris in both their lands to which purpose a Fieri facias issues out to the Sheriffe who returns riens but that he who made default had wasted before the receipt of the writ whereupon a Scire facias issued out against him onely that had wasted the goods and he making default upon Scire feci returned Execution was awarded of his proper goods onely and not of his Companions 〈◊〉 to acâ—â— suâ—â—eties 10 In a writ de Plegiis acquietandis Dier
157. 12. 9. Eliz. the Plaintiff counts that he was bound with the Defendant as his surety and at his request to a stranger by Bill Obligatory and that at the day assigned the Creditor was not paid by the Defendant whereupon at the Creditors Suit the Plaintiff was arrested and imprisoned c. And the Defendant cognovit Actionem whereupon Iudgement was given quòd acquieteâ— the Plaintiff versus the Creditor of the sum and damages assessed by the Court c. Vide F. N. B. 137. c. â—avishment 11 The Statute of West 2. 35. Hob. 93. 7 Jac. Rot. 759 More Hussey against ravishment of Wards hath two aspects in it one civil another criminal for it provides that the Executor shall answer for the value sed non quoad poenam prisonae for Nemo pro alieno facto est puniendus It is so likewise for husband and wife For albeit the wife be onely guilty yet the husband shall answer the dammages but shall not be subject to abjuration or immediate Imprisonment which is to be perpetual Howbeit to the mediate Imprisonment viz. upon a writ of Execution for the dammages and the value of the Marriage he shall be liable as in other trespasses where the wife onely is guilty of the fact 88 The Law favoureth things done in anothers Right Co. Inst p. 1. 52. a. 2. 1 Few or no persons are disabled in Law to be private Attorneys to deliver seisin for Monks Infants Femes covert Attorney to deliver seisin Persons disabled persons attainted out-lawed excommunicated Villains Aliens c. may be Attorneys So a Feme may be an Attorney to deliver seisin to her husband and the husband to the wife and he in the remainder to the Lessée for life And the reason hereof is for that the Attorney doth nothing in his owne right but in the right of another Co. ib. 52. a. 3. 2 If Lessée for life make a déed of Feoffment Attorney to deliver seisin and a Letter of Attorney to the Lessor to make Livery and the Lessor maketh Livery accordingly notwithstanding such making of Livery he shall enter for the forfeiture because he doth it in anothers right and the Lessée for life had Fréehold whereof to make Livery It is otherwise of Lessée for years because in that Case the Fréehold being in the Lessor and not in the Lessée the Lessor cannot do it as Attorney to the Lessée c. Co. ib. a. 4. 3 If the Lessor make a déed of Feoffment Lessee for years Attorney to deliver seisin and a Letter of Attorney to the Lessée for years to make Livery and he doth it accordingly this shall not drown or extinguish his Term because he did it as a Minister to another and in anothers right And that is accounted in Iudgement of Law the act of the Feoffor and not of the Lessée neither yet doth the Feoffée claim any thing from the Lessée c. Co. ib. 4 If the tenant devise that the Lord shall sell the Land Devise and dieth and the Lord selleth it accordingly yet the Seigniory doth still remain because the Lord selleth the Land in anothers right c. Co. ib. 88. b. 4. 5 A Guardian in soccage shall not forfeit his Interest by Outlawry or attainder of Felony or Treason Guardian is Soccage because he hath nothing to his own use but onely to the use and in the right of the heir whose Guardian he is Co. ib. 112. a. 4. 10 H 7. 20. 6 If after the Statute of 1 R. 3. cap. 1. Sale by Feâ—â— to Baron and before the Statute of Vses in 27 H. 8. cap. 10. Cestuy que use had devised that his Wife should fell his Land and had made her Executrix and died she had taken another husband In that Case she might have sold the Land to her husband for she doth it in auter droit and her husband would have béen in by the Devisor c. Co. ib. 113. a. 3 7 If a man devise that his Executors shall sell his Land Devise of a Reversion tâ— be sold by eâ—ecutor In this Case the Executors have no Estate or Interest in the Land but onely a bare and naked power yet this Feoffment amounteth to an alienation to vest the Land in the Feoffée for they do it in auter droit And the Feoffée shall be in by the Devisor So likewise if a man deviseth that a Reversion or other thing that lieth in grant shall be sold by his Executors they may sell the same without Déed for the Vendée shall be in by the Devisor and not by the Executors Causa qua suprà Co. ib. 117. a. 2 124. a. 4 c. 8 If a man be Lessée of a Villain for life for years or at will Villain the Villain purchaseth the lands in fée if the Lessée entreth into the lands he shall hold the Lands as a perquisite to him and his heires for ever For the Law respecteth the quality and not the quantity of his Estate But if a Bishop hath a Villein in right of his Bishoprick and he purchaseth Lands and the Bishop entreth the Bishop shall have his perquisite to him and his Successors and not to him and his heires Bishop for it came into his hands as in anothers right So if Executors have a Villein for yeares Executors and the Villein purchaseth Lands in fée and the Executors enter they shall have a fée-simple but it shall be assets in their hands For they have it in right of the Testator c. Villein Executor Lord Debt Trespas 9 A Villein may as Executor have an Action of debt against his Lord because it is not to recover a debt to his owne use Lit. §. 191 192 Co. ibid. 124. Finch 27. but to the use of the Testator neither yet shall the Lord take out of the possession of such Villein who is Executor the goods of the deceased because he is possessed of them in anothers right And if the Lord do take them the Villein shall maintain an Action of Trespass against him and therein recover damages against him to the use of the Testator c. for they shall be assets in his hands c. Oâ—t-lawry no â—is-ability 10 If an Executor or Administrator sueth an Action Co. ibid. 128 a. 3 Finch 27 out-lawry in the Plaintiffe shall not dis-able him because the sute is in auter droit viz. In the right of the Testator and not in his owne right And for the same a Mayor and Cominalty shall have no Action though the Mayor be out-lawed c. So it is also of one excommunicated â—bbot c. â—lien 11 An Abbot Prior or Prioresse Alien shall have Actions reall Co. ibid. a. 4. b. 1. personal or mixt for any thing concerning the possessions or goods of his Monastery here in England although he be an Alien borne
Alien that is condemned in an information shall have a writ of Error to relieve himselfe Et sic de similibus â—â—eading 12 If an Alien that is no Alien Enemy Co. ibid. b. 2. in Calv. Case ubi suprà commence a suit the Tenant or Defendant may plead in dis-ability and ought at last to demand Iudgement Si il sera respondue But if an Alien Enemy bring a suit he shall conclude to the Action by saying Judgement si action Co. ib. 156. b. 4 and 129. a. 1. 13 It is a principal Challenge to the Poll Juror that the Iuror is an Alien born and that is propter defectum Patriae or rather ligeanciae as Littleton hath it or Subjectionis as Bracton Co. l. 7. 6. a. 4 in Calvins Case 14 It is to be observed that it is nec Coelum nec Solum Ligeance makes a Subject born neither the Climate nor the Soil but ligeantia obedientia that make a man to be a Subject born for if enemies should come into this Kingdome and possesse a Town or Fort and have issue there that issue is no Subject to the King of England though he be born upon his Soil and under his both Climate and Meridian because he was not born under the ligeance of a Subject nor under the protection of the King Co. ib. 15 If an Alien of a Countrey in league with the King come into this Kingdome and here commit Treason An Alien in league shall be indicted It is otherwise of an alien Enemy who shall be punished by Martial Law c. he shall be indicted for it and procéeded against according to the municipal Law of the land and the indictment shall begin and end as other indictments do viz. the beginning shall be contra Dominum Regem c. and it shall also end thus Contra ligeantiae suae debitum c. Onely in the middle these words shall be omitted naturalem Dominum suum c. as it was resolved in Hill 36. Eliz. in the Case of Stephano Ferrara de Gama and Emanuel Ludovico Tinoco two Portugals born who comming into England under the safe Conduct of Quéen Elizabeth and living here under her protection joyned with Doctor Lopez in treason against her Majesty But if an alien enemy come to invade this Land and be taken in war he cannot be indicted of treason for it because the indictment cannot conclude Contra ligeantiae suae debitum for he never was in the Kings protection nor ever ought any manner of ligeance unto him but malice and enmity and therefore in that Case such an Alien shall be put to death by Martial law And so it was in 15 H. 7. in the Case of Perkin VVarbeck who being an Alien born in Flanders feigned himself one of the sons of E. 4. and invaded this Kingdome with intent to take upon him the Royal Dignity but being taken in war it was resolved by the Iustices that he could not be punished by the Common Law but before the Constable and Marshal according to Martial Law and so he was according to that Law adjudged to be hanged drawn and quartered and was in that manner executed accordingly Co. ibid. 17. a. 16 Every Alien is either a friend that is in league An alien friend and enemy c. or an enemy that is in open war c. Every alien enemy is either so pro tempore a temporary enemy for a time or perpetuus perpetual or specialiter permissus permitted in a special manner An alien friend so long as he so continues to be may acquire by gift or purchase Lands c. but cannot hold them he may also have Leases and Goods for Trade and Commerce sake maintain personal actions c. as is above-said But if such an Alien become an Enemy as all Aliens friends may then is he utterly dis-abled to maintain any action or get any thing within this Realm but a perpetual enemy though there be no Wars by fire and sword between them cannot maintain any Action or get any thing within this Realm such as are all Infidels which are in law estéemed perpetui inimici because the Law presuming that they will not be converted that being remota potentia betwéen them as with Devils whose Subjects they are and the Christian there is perpetual hostility and can be no peace For as the Apostle saith 2 Cor. 6.15 Quae autem concordia Christo cum Beliali aut quae portio fideli cum infideli And the Law saith Judaeo Christianum nullum serviat mancipium Nefas enim est quem Christus redemit Blasphemum Christi in servitutis vinculis detinere Register 282. Infideles sunt Christi Christianorum inimici And herewith agréeth the Book in 12 H. 8. fol. 4. where it is holden that a Pagan cannot have or maintain any action at all And upon this ground there is a diversity betwéen the Conquest of a Kingdome of a Christian King and the Conquest of the Kingdome of an Infidel For if a King come to a Christian Kingdome by Conquest séeing that he hath vitae necis potestatem he may at his pleasure alter and change the Lawes of that Kingdome but untill he doth make an alteration of them the ancient Lawes thereof shall remain Howbeit if a Christian King should conquer a Kingdome of an Infidel and bring them under his subjection there ipso facto the Lawes of the Infidel are abrogated for that they be not onely against Christianity but against the Law of God and Nature contained in the Decalogue And in that Case until certain Lawes be established amongst them the King by himself or such Iudges as he shall appoint shall judge them and their Causes according to natural equity in such sort as Kings in ancient time did within their Kingdomes before any certain municipal Lawes were given But if a King hath a Kingdome by title of Descent there séeing by the Lawes of that Kingdome he doth inherit the Kingdome he cannot change these Lawes himself without consent of Parliament c. As for an Alien Enemy that is inimicus permissus he is an Enemy that comes into the Realme by the Kings Conduct c. Vide 7. 4. The Defendant pleaded an Alien 17 In an Action brought by a Subject against an Alien Co. ibid. 25. a. 4. in Calvins Case the Subject shall plead that the Defendant is an Alien born for the benefit of the King to the end that the King upon Office found may seise that whereof the Alien is seised or possest and also that the tenant may yield the same to the King and not to the Alien because the King hath best right thereunto Flea against an Alien 18 In an Action real against an Alien born Dier 2. 8. 6 H. 8. it is a good plea in dis-ability of the person to say that he is an Alien born otherwise in Actions personal but against an
value soever shall in judgement of Law be déemed excessive And albeit the Lord distraine for them oftentimes so that the Tenant cannot manure his land yet the Tenant shall not therefore have an Assise de sovent distresse as he shall have for Rent and other profits Vide 28 Ass Pl. 50. 11 H. 4. 2. 42 E. 3. 26. Br. distresse 80. Title of King and Subject 7 When the Kings title Co. l. 4. 55 a. 4. The Sadlers Case and the title of a subject concurre in commencement the Kings title shall be preferred as Weston holds Pl. Co. 263. b. The Kings title by Judicial Record and conveyance of Record 8 In all Cases at the Common Law Co. l. 4. 59. b. 3. in the Sadlers Case when the Kings Title accrued unto him by a Iudicial Record as Gascoigne saith 9 H. 4. 4. by judgement of Record there albeit the King had granted all his Estate over yet the party grieved who is put unto his petition and was to have a scire facias against the Patentée as in Case of Attainder Recovery c. 44 E. 3. 22. 10 H. 6. 15. 21 H. 7. 2. 3 M. 139. 7 H. 4. 21. But where the King was onely entitled by conveyance of Record as if the disseisor had conveyed the land to the King by fine déed enrolled or other matter of Record there albeit the party was put to his petition against the King yet if the King had granted the land over the disseisée or he that right had might enter or have his Action against the Patentée for a Iudicial Record is always preferred before a conveyance of Record by assent c. The Common law preferred before the Staâ—â—â—e Law 9 A. By déed indented barganies and sels a reversion of land to B. and his hieres and before attornement of the Tenant Co. l. 4. 71. a. 1 in Hyndes case or enrollment of the déed according to the Statute of 27 H. 8. cap. 16. levies a fine thereof to B. and his heires and after the déed is inrolled within 6 moneths In this Case the Conusee shall be in by the fine and not by the Indenture enrolled For when the Fée-simple passes by the fine to the Conusée and his heires the enrolment of the déed indented afterwards cannot devest and turne the Estate out of the Conusée which was absolutely established in him by the fine because then whereas he was in before in le per he shall be now in le post Also when the Common Law and Statute Law concurre the Common Law shall be preferred c. 10 When land is given to any expresse superstitious use Co. l. 4. 111. b. a Adams and Lamberts case prohibited by the Statute of 1 E. 6. 〈◊〉 good use â—referred beâ—re an imâ—â—â—ed â—uperstitious â—â—e incertain cap. 14. without limitation of any certainty for the finding of it there all is given to the King by the said Act but when a good use is limited and besides a solarie in certain for a Priest and towards the finding of him other things as Books Bread Wine Vestiments c are tacitè implyed and requisite which are uncertain there the King shall not have all by reason of the implyed incertainty because a good use expressed shall be preferred before any thing implied and incident to a superstitious use c. Co l. 5. 28. b. in Harrisons Case 11 In debt against an Administrator who pleads Judgement paiable before other debt obligation before a Statute to perform covenants that the Intestate was bound in a Statute staple Oustre que il mad biens c. the Plaintife replies that there were Indentures of defeasance for the performance of covenants which are performed huc usque the Defendant demurres And in this Case judgement was given for the Plaintiffe for an Obligation shall be paid before a Statute to performe covenants which per-adventure will never be broken but are things in contingency and futuro and shall never barre any present debt upon an Obligation or other specially And it was adjudged in B. R. Per totam Curiam H. 42. Co. l. 6. 45. b. 2. in Higgons Case El. that a debt recovered in the Kings Court by judgment shall be paid before a bond in nature of a Statute staple or Marchant because the judgement is a matter of a higher and more worthy nature then private Records portable in pockets also it shall be preferred before a recognisance acknowledged in any Court by assent which may also be privately done And a judgement so given in the Kings Court upon ordinary and judicial procéeding which remaine in the custody of a sworne officer are Records which are preferred in Law before such Statutes Et non refert whether the judgement or recognisance or Statute be first for be the judgement first or last it shall be first satisfied c. And so it was holden per totam Curiam in Co. Ba. in Pemberton and Bartams Case Pl. 32 El. Rot. 235 Which see in the end of the Sadlers Case in the 4. Rep. Dier 80. 53. Co. l. 5. 86. b. 3. Blumfeilds Case 12 There are good diversities betwixt an execution not valuable as of the body of the Defendant and an execution valuable as of lands c. An Execution valuable or without satisfaction As if two men are bound jointly and severally in an obligation and the one is sued condemned and taken in execution and after the other is also sued condemned and taken in execution and then the first escapes and the other brings his Audita querela In that case he shall be barred to bring that writ until the Plaintife be satisfied So likewise if the Defendant in debt die in execution yet the Plaintiffe may have a new execution by elegit or fieri facias but if the Plaintiffe have once execution of the lands of the defendant and after the lands are evicted there before the Statute of 32 H. 8. cap. 5. he shall not have any new execution for the execution of the lands was valuable and accompted in Law for a satisfaction and to avoid infinitenesse he shall have but one valuable satisfaction or one execution with satisfaction at the Common Law c. So likewise if a Villein be delivered to one in execution upon recovery in value and after the Villein dies without Issue yet the Defendant shâ—ll never have any new execution because his first execution was valuable and by the Law a man shall have but one execution valuable c. F. N. B. 33. m. 34. v. 13 If two Sisters have an Advowson which happens to be void Copercenâ—â— shall presâ—â— by turnes the eldest Sister shall have the first presentment and so the Baron of the eldest Sister if he be Tenant by the courtesie of the Advowson shall have the first presentment and the Tenant in Dower shall have but the third c. And if there be more Sisters
intailed within the said Statute for that they be not issuing out of Tenements nor annexed to nor exercisable within or concerning Lands or Tenements of Fréehold or Inheritance but concerning Chattels and savour nothing of the realty So it is likewise if I by my Déed for me and my Heires grant an Annuity to a man and the Heires of his body because this onely chargeth my Person and concerneth no Land nor laboureth of the Realty Baron Feme Chattels real and personal 5 If a Feme sole be possessed of an Estate for years Co. Inst p. 1. 351. 185. b. 3. 299. b. 4. and 46. b. 2. or by Statute Merchant Statute Staple or Elegit or of a wardship or other chattels real and taketh Baron the Baron is thereof possessed in her right onely And albeit during the Coverture he may dispose of such an Estate by Grant Demise c. or upon Out-lawry Attainder c. may forfeit it or may subject it to be sold by the Sheriff upon an execution for his Debt and in Case he survive the Feme shall then have a clear interest in it yet he cannot dispose of such an Estate by Will and if she survive him no disposition or forfeiture being thereof made as aforesaid she shall have it and not his executors or administrators because these Estates and Interests savour of the realty and therefore the Feme being thereof once possest her interest cannot be by the Inter-marriage so easily removed as if they were Chattels personal There is the same Law also of Chattels real which being of a mixt nature viz. partly in possession and partly in action happen during the Coverture As if the husband be seised of a rent-service charge or seck in the right of his wife the rent becomes due during the Coverture the wife dieth the husband shall have the arrerages but if the wife survive the husband she shall have them and not the executors of the husband So it is also of an Advowson if the Church become void during the Coverture he may have a Quare Impedit in his own name as some hold but his wife shall have it if she survive him and the husband if he survive her Et sic de similibus But as concerning Chattels personal the inter-marriage is an absolute gift of such goods which she hath in possession and in her own right whether the husband survive the wife or no so that he may at his pleasure dispose of them either by act execute in his life or by will and albeit he make no such disposition of them and die living the wife yet his Executors or Administrators shall have them and not the wife c. Howbeit if they be in action as Debts by Obligation c. the husband shall not have them unlesse recovered during the Coverture neither yet shall he have such goods as the wife hath in auter droit as Executrix or Administratrix c Vide R. 55. ex 129. â—enants in â—â—mmon â—hattels 6 If one Tenant in Common of Chattels take any Chattels real Co. ib. 200. a. z which are not of an intire nature from his companion the other may have his remedy to recover them by Action but if one of them take all the personal goods from the other he hath no remedy by Action or otherwise save onely to take them again by Catch-pole Law And so it is also of intire Chattels real as a Ship Horse Hawk or the like but that is in respect of the Intirenesse and inseverablenesse of their nature c. for which sée R. 70. ex 25. â—reehold or â—â—heritance 〈◊〉 reassumed â—e collateral â—â—sfaction 7 It is said in our Books that Accord with satisfaction is a good plea in personal actions where damages onely are to be recovered Co. l. 4. 1. a. 4 in Vernons case but not in real Actions For a right or title to any Estate of Inheritance or Fréehold cannot be barred by acceptance of any collateral satisfaction or recompence As if A. disseise B. tenant for life or in Fée of the Mannor of Dale after A. gives the Mannor of Sale to B. and his Heires in full satisfaction of all his rights and actions which he hath in or for the Mannor of Dale and B. accepts thereof Neverthelesse B. may enter into the Mannor of Dale or recover it in any real action it is otherwise of things in the personalty Dier 2. 8. 6 H. 8. 8 In real Actions to plead Alien Actions that the Plaintiff is an Alien is a good bar because an Alien can have no land within the Realm but such a Plea in personal Actions is no bar because an Alien may bring personal Actions unlesse he be an Alien Enemy Co. l. 6. 7. a. in Ferrers Case 9 Betwixt real and personal Actions there is a diversity Bar in personal actions binde not so in real for in personal Actions as in Debt Account c. the bar is perpetual because in such Cases a man shall not have an Action of a higher nature But in a real Action if the Demandant be barred by judgment upon Verdict Demurrer Confession c. yet he may have an Action of a higher nature and shall try the same right again because it concerns his Frank-tenement and Inheritance So if a man be barred in Assise of Novel disseisin yet upon shewing a descent or other special matter he may have an Assise of Mortdancestor Aiel Besaiel c. Vide infrà 1. 78 14. Litt. §. 146. Co. Inst p. 1. 103. a. 2. 10 An Abbot Prior Bishop Successor of an Abbot c. bouâ—d or other sole Corporation cannot dis-claim or devest any thing of Fée which is vested in their houses or other spiritual Corporations to the prejudice of the Successor Howbeit if an Abbot or Bishop c. acknowledge the Action in a writ of Annuity or in an action of Debt upon an Obligation Statute or Recognisance this shall binde the Successor so as he shall not prevent execution thereupon albeit they were granted and made without the consent of the Covent Chapter c. because these things being in the personalty the recovery thereof cannot be falsified in an higher action Et res judicata pro veritate accipitur Vide suprà M. 1. cap. 4. Co. ib. 125. b. 3 11 In a Plea real against divers tenants Pleas real and personal if one tenant plead in barre to parcel or which extendeth onely to him that pleadeth it and the other pleads a Plea which goeth to the whole viz. to both the tenants and which indéed would make an end of the business if it were tried yet those several Pleas shall have several trials as if a praecipe be brought by one as heir to his father against two and one of them pleads a Plea which extendeth but to himself and the other pleads a Plea which extends to both as Bastardie in the Demandant and it
and after I confirm the Estate of the Baron and Feme to have and to hold for their two lives In this Case the Baron holds not joyntly with the Feme but onely in her right during her life and shall have it for life if he survive her But if I let to a Feme sole Land for term of years who takes Baron and I confirm the Estate of the Baron and Feme to have and to hold for their lives In this Case they have a joynt Estate in the Frank-tenement of the land because the Feme had not Frank-tenement before but onely a Chattel whereof the Baron hath such a possession in her right as was capable of a confirmation or a release and the confirmation in this Case to the husband and wife for their lives maketh them Ioynt-tenants for life because this Chattel of the Feme covert may be drowned So note a diversity betwéen a Lease for life and a lease for years made to a Feme covert for her Estate of Fréehold cannot be altered by the confirmation made to her husband and her as the term for years may whereof her husband may make disposition at his pleasure Co. ib. 275. b. 4. 11 If Lessée for years be ousted and he in the Reversion disseised Release to the Disseisor and the Lessée release to the Disseisor the Disseisée may enter for the term for years is extinct and determined But otherwise it is in case of a Lessée for life for in that Case the Disseisor hath a Fréehold whereupon the release of tenant for life may inure but the Disseisor hath no term for years whereupon the release of the Lessée for years may inure Co. ib. 378. â— 4 12 A man letteth lands for life upon Condition to have Fée A Lease for years not capable of a warranty and warranteth the land in forma praedicta afterwards the Lessée performeth the Condition whereby the Lessée hath Fée In this Case the warranty shall extend and increase according to the State for a warranty being a Covenant real executory may extend to an Estate in futuro having an Estate whereupon it may work in the beginning but if a man grant a Seigniory for years upon condition to have fée with a warranty in forma praedicta and after the Condition is performed this shall not extend to the fée because the first Estate was but for years which was not capable of a warranty And so it is if a man make a lease for years the remainder in Fée and warrant the land in forma praedicta he in the remainder cannot take benefit of the warrantie because he is not party to the Déed and immediately he cannot take if he were party to the Déed because he is named after the habendum and the Estate for years is not capable of a warranty c. Waste 13 A Lease for life the remainder for years Finch 29. the remainder over in Fée an action of waste lieth for him in the remainder in Fée against the Lessée for life sor the mean Estate for yeares is not regarded Otherwise it were if the mean Estate for years were an Estate for life c. Joynt-tenants may prejudice one another 14 One Ioynt-tenant cannot prejudice his Companion Co. l. 2. 68. a. 3. in Tookers ca. as to any matter that concerns the Inheritance or Frank-tenement But as to the profits of the Frank-tenement they may prejudice one another c. per Popham Right of Action 15 There is a diversity betwéen Inheritance and Chattels Co. l 3. 3. a. 1 in the Marquesse of Winchesters Case for the right of action concerning Inheritances is not forfeited by Attainder c. but Obligations Statutes Recognisances c. and such other things in action are forfeited by Attainder or Outlawry Real and personal actions 16 The Law hath provided greater safety and remedy for matters of Frank-tenement and Inheritance then for Debts and Chattels Co. l. 6. 7. a. 1 in Ferrers Case for there once barred and ever barred for in personal actions as in Debt Accompt c. the bar is perpetual because the Plaintiff in that Case cannot have an Action of an higher nature but his onely remedy in such Case is by Errour or Attaint Howbeit if the Demandant be barred in a real Action by judgement upon Verdict Demurrer Confession c. yet he may have an Action of higher nature and try the same right again because it concernes the Frank-tenement and Inheritance as if one be barred in an Assise de novel disseisin yet he may have upon shewing a descent or other special matter an Assise of Mortdancestor Aiel Besaiel Entry sur disseisin to his Ancestor c. So if a man be barred in a Formedon in descender he may have a Formedon in reverter or remainder for that is an Action of an higher nature because in it the Fée-simple is to be recovered according to the opinion in Robinsons Case in the 5. Report fol. 33. â—ands not â—hargeable in â—â—cution 17 At the Common Law before the Statute of VVest 2. cap. 18. Co. l. 3. 11. b. 4 in Sir Wil. Herberts case which gave an Elegit against the moity of the Debtors Lands upon a Recognisance or Iudgment sued lands were not chargeable in execution but onely Goods and Chattels or else grain or other present profit increasing upon the land viz. Goods and Chattels by Fieri facias and such present profit by Levari facias c. Vide suprà Ru. 92. ex 16. Howbeit in the Kings Case by reason of his Prerogative and in Case of an Heir in by Descent and chargeable by the act of his Ancestor c. because otherwise in such Case the Creditor was without remedy c. lands were chargeable in execution c. 〈◊〉 by a terâ—â—r not good 18 A man deviseth a rent for life out of a Mannor Co l. 6. 58 b. 4 in Bredimans Case and deviseth the Mannor for years the termor enters and payes the rent after the term the Devisée brings an Assise for the rent against the Terre-tenant And in this Case seisin by the hands of the Termor was adjudged no sufficient seisin whereupon to ground the Assise but the seisin ought to have béen given by the hands of the Terre-tenant viz. of one the tenant of the Frank-tenement c. Vide suprà Ru. 86. ex 21. It had béen otherwise if the termor for years had béen Lessée for life for then the seisin had béen given by the hands of the Terre-tenant viz. of one that had Frank-tenement as may be collected out of Bredimans Case ubi in margine viz. fol. 58. b. â—â—rantee of a â—â—version â—â—dition 19 If a man make a Lease for years upon condition Co. l. 8. 95. b. 3 in Matt. Mannings Case Co. l. 10. 48. b. 3 in Lampets ca. that if the Lessée doth not such an act that the Lease
304. a. 4. the pleadings were nothing curious but plain and sensible ever having Chief respect to matter and substance and not to formes of words and were often holpen by a quaesitum est and then the questions moved by the Court and the answers by the parties were also entred into the rolle c. â—â—â—ding 17 Albeit a plea as to the forme be grosse and ignorant Co. l. 1. 42. a. 4. b. 3. 52. b. yet if good in substance it shall be adjudged sufficient In Alton woods Case â—ate of a â—eed 18 If a déed beare date after the delivery Co. l. 2. 4. b. Goddares ca. and after the decease of the party to whom it is delivered yet is it sufficient as if an obligation beare date the 4 of April 24 El. and the Obligor delivers it as his déed 30 July 23 El. and the Obligée dies before the date yet this obligation is good for albeit the Obligée in pleading cannot alleadge the delivery before the date as it is adjudged in 12 H. 6. 1. because he is stopt to take averment against any thing exprest in the déed yet the Iurors who are sworne ad veritatem diendam shall not be stopt in that Case And the reason hereof is because the date of a déed is not of the substance of the déed for if it want date or have an impossible date as the 30 day of February yet the déed is good there being onely three things of the essence and substance of a déed viz. the writing in paper or parchment sealing and delivery And if it have these thrée although it wants in cujus rei testimonium sigillum suum apposuit yet the déed is sufficient for the delivery is as necessary to the essence of the déed as the putting of the seale unto it and yet it is not necessary to expresse in the Déed that it was delivered c. And from hence it may be observed that if a man bring an Action of debt and count that the Defendant 4. Apr. 24. c. made an Obligation bearing date the same day and years and the defendant pleads non est factum and it is found that the déed was delivered at another day before or after the day that the Plaintiffe hath counted that yet the judgement shall be given for the Plaintiffe in as much as the date is not material and the Defendant cannot be twice charged c. Co. l. 2. 76. a. 4 in the Lord Cromwels Ca. Co. l. 5. p. 2. 26 b. 2. the E. of Rutlands case accords 19 If it be agréed by Indenture Variance in circumstance betwixt fine indenture tâ— prejudice that a fine shall be levied of certain Lands by the name of a certain number of Acres to divers persons and that they shall grant and render the Land again in Fée-simple which shall be to certain uses The fine is levied of the Land but there is some variance in the number of Acres comprised in the fine or the fine is levied to one of the parties onely who grants and renders the Land So that there is variance betwéen the Covenant and fine in number and person Neverthelesse in this Case the fine shall be averred to be to the use of the Indentures For the original bargain and agréement of the parties was declared by writing and albeit there be some little variance found in quantity person time or such other circumstances betwéen the fine and the Indenture yet the Law which in common conveyance hath great respect and regard to the Intent of the parties and to the substance and effect of their original bargaine and agréement will permit averment to agrée the fine and the indenture notwithstanding those little circumstances of number person time and the like when the party averres that there was not any new consideration or new agréement betwixt the partie but that the fine was levied according to the indenture and to the uses and intents contained in the same and indéed it is consonant to justice equity and principally in common assurances of lands betwixt party party that every litle variance in circumstance should not subvert all the substance of the agréement of the parties in their indenturs to the dis-herison of one of them therefore it was adiudged in Taverners case about the 42 of El. that if A. hath 10 acres in Dale B. hath as many in the same town and A. levie a fine to B. of 20 acres and B. grants and renders 20 acres to A. in fée yet A. shall not have the 10 acres of B. unlesse there was a special agréement betwéen them to that effect or otherwise the Conusée should be said to render more then he receives and the difference in the number of acres is but a circumstance c. Co. l. 4. 41. b. 3 in Heydons ca. 20 Exception was taken to an Indictment upon the death of a man because these words in pace Dei Domini Regis were omitted Inditement and albeit in Indictment those words are usually inserted yet the exception was not allowed because such words are not words of substance but onely inserted by way of Amplification to aggravate the heinousnes of the crime c. Co. l. 4. 87. a. 1. in Luttrels ca. 21 Where a man prescribes for a course of water to a Fulling-mill Prescription a water coâ—â— Estovers Roomes Window â— whereas indéed anciently it was a fulling-mill of late time was pulled down and a Grist-mill exected in stead thereof yet if that water course be turned by a stranger In an Action upon the Case c. he may well prescribe for the course of water to his fulling-mill so altered as afore said For the mill is the substance and the thing to be demanded and the addition of Grist or Fulling are but to shew the quality or nature of the mill And therefore in the Register and also in F.N.B. it appears that if a man will demand a Grift-mill Fulling-mill or any other mill the writ shall be general de uno molendino without any addition of Grist or Fulling and herewith agrées 21 Ass Pl. 23. of a Plaint in Assise So likewise if a man have estovers either by grant or by prescription to his house albeit he alter the roomes or chambers of the house as to make that the Hall which was the Parler or that the Parler which was the Hall or make the like alteration of the qualities and not of the house it selfe and without making new Chimneys whereby no prejudice may acrue to the owner of the wood this is no destruction of the prescription for then many prescriptions would be destroyed And although he build new Chimneys or make a new addition to the old house he shall not thereby lose his prescription Howbeit he must not imploy or spend any of the estovers in the new Chimneys or in the part newly added There is the same Law
induction to the barre or conveyance thereunto it is not necessary that such conveyance or induction should be so certainly pleaded as the effect it self ought to be So in Dive and Maninghams Case in the Commentaries it is sufficient to begin at the Liberate and not to recite the whole Record of that suit because that is sufficient to lead to the matter of the Sheriffes bond which the Statute makes void and is upon the matter but méerly circumstance So likewise if tenant by Elegit make an avowry in a Replegiare having let the land to a stranger rendring Rent c. he shall not plead the whole Record 34 H. 6. 48. avowry 26. â— Monst de faits 10. 19 H. 6. 29. Deâ—ceit 11. B. Bell 9. whereby he became tenant by Elegit as it was adjudged in 34 H. 6. 48. because that is but a circumstantial conveyance to the matter of the suit c. Also in 19 H. 6. 29. A bill of Desceit was sued against two attorneys of the Co. Pleas for imbezelling c. a Writ of Habeas corpora in placito terrae upon a Formedon betwixt the Plaintiff and another and judgment was demanded of the bill because the whole Record was not received in certain but the bill was awarded good notwithstanding it did not recite it certainly because the Record was but circumstance and a conveyance to the suit of Desceit c. Pl. Co. 81. b. 2 Patridges Case 35 In Debt upon the Statute of 32 H. 8. cap. 9. for granting a lease for yeares in Lands whereof the Lessor had a defective title Stat. 32 H. 8. against defective titles the Plaintiff counts that the Defendant had demised the lands for term of yeares indefinitely without naming in certaine for how many years and exception was taken thereunto because the number of yeares was not expressed in certaine c. But in that case it was not conceived necessary to specifie the expresse number of yeares because the term was but conveyance to the summe in demand and then that which is nothing else but conveyance ought not to be so certainly shewed as that which is substance And therefore in a Decies tantum all the Record shall not be shewed in certaine but onely such part thereof which conveys the party to his action but if a Writ judicial issue out of a Record in that case the Record ought to be certainly recited because the Record is the effect and substance and not conveyance onely as in the other case c. For there the shewing of the beginning and end of the terme is to no other purpose Pl. ib. 85. b. 2. then for the shewing of the length and shortnesse of the time and that is not there material because in such case if the Lease were made onely for an hour or for an hundred yeares it is all one as if Lessée for life is charged that he shall not alien in fée c. If he alien onely in tail that is a forfeiture So in that case alien he for a short time or for a long time it is all one Howbeit if he were to recover according to the value of the Lease then the beginning and end thereof ought to be shewed in certain And therefore in such case even in a Decies tantum the certainty of the money ought to be shewed for he shall recover ten times the value or quantity thereof and then to expresse the value thereof in certain is of substance c. â—dictment for â—â—rder found â—anslaughter â—ooâ— 36 If a man be indicted for Murder Pl. Co. 101 b. 1. Salisburies Case and the Iury finds him guilty of Man-slaughter onely yet the Iudge may give judgment upon him viz. that he shall be hanged for the Man-slaughter for the jury may give their verdict at large and find the whole matter as if one be arraigned for the death of a man and pleads not guilty the Iury may find that he did kill him in his own defence So in the other case when the prisoner is arraigned for killing a man upon malice praepense the substance of the matter is whether he killed him or no and the malice praepense is but of the form or circumstance of killing him And albeit the malice praepense makes the act more odious and for that cause the offender shall lose divers advantages which otherwise he should have as Sanctuary Clergy and the like yet that is indéed nothing else but the manner of the fact and not the substance thereof for the substance of the fact is the killing of the man and then when the substance of the fact and the manner of the fact are put in issue together if the Iurors find the substance and not the manner yet judgment shall be given for the substance As if a man arraigne an Assise for Disseisin with force and the Defendant pleads to the general issue and the Iurors find the Disseisin but not with force yet the Plaintiff shall have his judgment for the wrongful expulsion was the substance and the force was the manner and then when the substance is found he shall have judgment thereupon and shall be acquit of the force c. â—he King is â—solutely â—g before â—oronation 〈◊〉 37 The King of England immediately after the Predecessors demise of the Crown is absolutely King without the Ceremony of Coronation or any other act to be done ex post facto for Co. l. 7. 10. b. 4. in Calvins Case the Law doth respect his title to the Crown by birth right and descent and not the circumstance of Coronation which is indéed a Royal ornament and solemnization of the Royal descent but no part of the title Howbeit in 1 Jac. before his Coronation Watson and Clerk seminary Priests and others were of opinion that the King was no compleat and absolute King before his Coronation but that Coronation did adde a confirmation and perfection to the descent And therefore observe their damnable and damned consequent that they by strength and power might before his Coronation take him and his Royal issue into their possession kéep him prisoner remove his Counsellors and constitute others in their places and that these acts and others of like nature could be no treason before he were crowned but it was resolved by all the Iudges of England that presently by the descent his Majesty was compleatly and absolutely King without any essential Ceremony or act to be done ex post facto and that Coronation was but a Royal ornament and outward solemnization of the descent as is aforesaid and as it appeares evidently by infinite precedents and Book cases which see in the Book at large c. Co. l. 8. 133 a. 4 in Tawners Case 38 In an action of Debt brought against an Executor Pleading he pleads two recoveries against him in a Court of a Corporation being a Court of Record which amount to the whole in hand but sheweth not in
these cases he may Co. l 10. 47. b. 3 in Lampets Case 26 A. Lessée for 500 years deviseth to B. for life and after his decease the remainder to C. and the heires of his body this executory devise the remainder to C. and the heires of this body this executory devise may be released to B. but cannot be granted to a stranger it is otherwise of an interest executed Fit 2. N. B. 83. b 27 If the Lord levie aide to marry his Daughter Aide for marring c. and do afterward marry her she shall not have an action against the executors of the father for that money it is otherwise if she were not married in his life time So it is also of the sonne not made Knight c. F. N. B. 120. f 121. c 28 If a man take a feme who is indebted to an alien Baron not chargeable without reco and the feme dies before that Debt is recovered by action in that case the Baron is not chargeable It is otherwise if it were recovered living the feme c. Pl. Co. 52. a. 1. Wimb Talb. Case 29 An heir in tail that hath a Reversion An estate executed and executory div or remainder really executed in him shall not néed to plead specially how he is heir it is otherwise where it is to be executed So if Administrators bring an action of Trespasse for Goods taken out of their own possession they shall not shew the Letters of Administration Otherwise it is for Goods taken in the life of the Intestate for there the possession of the Goods were never executed in them but to be executed Also if a Lease be made for life the remainder in taile and he in the remainder is seised after the death of the Tenant for life his issue shall have a Formedon and shall declare upon the immediate Gift neither yet shall shew the Déed otherwise it is if that estate were to be executed Pl. Co. 51. a. 3. Wimb Talb. Case 9 H. 6. 23. Pl. Co. 56. b. 5. contra 30 A man deviseth land to one for life An estate vested shall remaine the remainder to the right heires male of the Devisor and to the heirs of his body begotten the Tenant for life dies and the next heir of the Devisor being a feme enters and after had a sonne And there it was holden by the best opinion that the some shall not out the feme because the sonne born after shall not take away the land before vested in the feme as heir for default of such person then in rerum natura to take the devise Co. Inst p. 1. 117. a. 3. 31 If lands be given to Villain and to the heires of his body Villain and alien tenantâ— in tail and the Lord enters and after enfranchiseth the Donée and then the Donée hath issue yet that issue shall never have remedie either by Formedon or entry to recover the Land for that it was executed in the Lord before the enfranchisment of the Donée and the Statute de Donis giveth remedy to the Issues of the Donée that have capacity and power to take and retaine such a gift c. So it is also if lands be given to an Alien and to the heires of his body upon office found the land is seised for the King afterwards the King makes the Alien a Denizen who hath issue and dieth in this Case also the King shall detaine the land against the Issue c. â— fâ—eri facias â—câ—ted shall â—d 32 Sale by the Sheriffe upon a fieri facias shall stand Co. l. 8. 76. b. 4. Mathew Manuings Case albeit the judgment afterwards reversed and the Plaintiffe in it restored to the value Dier 363. 24. 〈◊〉 original 〈◊〉 judicial â—ll abate or 〈◊〉 abate 33 There is a diversity betwixt writs real original Co. l. 10. 134 in Read and Redmans Ca. which are as things executory writs real Iudicial which Issue from the judgment being in the nature of a thing executed And therefore if 2 coperceners bring a real Action and the one is summoned and severed and after dies having issue or no Issue in this Case the writ shall abate so likewise if 2 jointenants bring an Assise or other original real Action and the one is summoned and severed and dies the writ shall abate albeit the thing in demand servive But if two coperceners bring a scire facias which is a judicial writ upon a fiue levied c. and the one copercener is summoned and severed then dies without Issue such judicial writ shall not abate And so it is also of two joyntenants Howbeit if the copercener that dies hath issue it shall abate because the right descends â—â—â—ter â—câ—â—ed 34 If lands be given to a man and the heires females of his body Co. Inst p. 1. 357. a. 2 and he maketh a feofment in fée and take backe an Estate to him and his heires and dieth having Issue a Daughter leaving his wife grossement ensuit with a Son and dieth the Daughter is remitted and albeit the Son be afterwards borne he shall not devest the remitter because it was executed â—e feme reâ—ed after â—ontinuâ—e 35 If the Baron discontinue the land of the Feme and go beyond Sea Litt. § 677. Co. Inst p. 1. 356. b. 4. and the discontinuée leases the land to the Feme for life and gives her seisin and after the Baron returnes and dis-agrées to the lease and livery of siesin made to the Feme yet in this Case she is remitted to her ancient Estate because by the lease for life and livery the remitter was executed in the Feme and the Estate for life to the Feme which wrought the remitter is vanished and whole defeated And therefore dis-agréement of the husband can devest the Estate gained by the lease which by the remitter was actually devested before 〈◊〉 plenâ—â—ty â—â—re induâ—â—n 36 A Clerk is not enabled by the Stat. of 25 E. 3. 7. Dier 1. 8. 4 H. 8. by the word possessor to plead in barre before induction for by that his possession is executed and then he is possessor and not before â—eâ—ants in â—â—mon of 〈◊〉 Advowson 37 Thrée Tenants in common 〈◊〉 an advowson make composition Dier 19. a. 194 28 H. 8. that each of them shall present by term if each of them hath once presented by his turn by vertue of the composition in a Qu. Imp. brought after amongst them it is not necessary to shew the composition because it was executed it is otherwise in Case it were not executed And such composition cannot be without writing it is otherwise of coperceners for such composition may be by parol amongst them because they are privies and as one heire and are compellable to make partition â—sâ—uy que use â—render in 〈◊〉 38 Cestuy que use after the Statute of 1
the Rent Ipsae etenim leges cupiunt ut jure regantur Ibid. 13. a. 1. 2 If the heir of the part of the Mother of land The heir of the Voucher shall sue execution whereunto a Warranty is annexed is impleaded and vouch and judgment is given against him and for him to recover in value and dieth before Execution the heir of the part of the Mother 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. Inst p. 1. 21. b. 1. 3 If lands be given by these words The word Frank-marriage create inheritance in Frank-marriage according to the Rules of Law then do these words create an estate of inheritance in special tail For the consideration of Marriage is in that case more favoured in Law then any other consideration in respect of the mutual recompence Ibid. 47. b. 3. 4 The Lessor for yeares must be seised of the Lands demised at the time of the Lease made The Lessor must be seised for in every Contract there must be quid pro quo because contractus est quasi actus contra actum And therefore if the Lessor hath nothing in the Land the Lessée hath not quid pro quo nor any thing for which he should pay the rent And in that case he may also plead that the Lessor non demisit and give in evidence the other matter Ibid. 78. a. 2. 5 If the Father enfeoffe his eldest Sonne Purchase bâ—â—â— fide a voideth Wardship or any of his younger Sonnes or others for the making of his Wife a Ioynture advancement of his Daughters payment of his Debt of the like and die his heir within age the heir shall be in Ward for his body and a third part of the land by construction of the Statutes of 32 34 of H. 8. but if his eldest Sonne or any of his younger Sonnes purchase Lands of the Father which are holden by Knight-service bona fide for a reasonable value the heir shall neither be in Ward nor pay Primer seisin Leonard Loveys Case Co. l. 10. 83. Ibid. 89. a. 4. 6 If a Guardian or a Bâ—yliff receive the conts and profits of the Lands and be robbed without their default or negligence A Carrier shalâ— answer Good robbed they shall be allowed them upon their Account but it is otherwise of a Carried H. Woodliefe Curties for he hath his Hiâ—e and thereby implicitely undertaketh the safe Delivery of the Goods delivered unto him and therefore shall answer the Value thereof if he be robbed of them Ibid. 99. b. 4. Pl. 306. b. Sheringtons Case 33 H. 6. 6. 39 H. 6. 29 7 The Mesne ought to acquit men of Religion Tenant in Frankalmeâ— ought to be acquit which hold of him in Frankalindigne of all Services to the Lord paramount for it is their duty to make prayers for their Founder and his heires and in consideration of those prayers the Founder c. is bound to pay to the Chief Lord all Rents and Services issuing out of that Land 14 E. 3. Mesne 7. Ibid. 101. a. 2. 18 H. 6. 2. b. per Newton 9 H. 3. Voucher 277. 8 If the Lord grant the Services of his Tenant by Homage Ancestrel Homage Ancestrel mixtures a Warranty in lanâ— the Tenant shall not be compelled in a per quae servitia to attorn unlesse the Conusée will grant in Court to warrant the Land unto him and if the Tenant vouch by force of this Warranty in Law it is a good Counter Plea that the Tenant or any one of his Ancestors recessit de servitio suo fecit servitium suum A. B. sine aliqua coactione de sua propria voluntate Ibid 102. a. 1. 9 If at a Sequatur sub suo particulo No Warraâ— Cartae or voâ—cher after a recovery in value both Tenant and Vouchée make default and the Demandant hath judgment against the Tenant and after brings a Scire facias to have Execution the Tenant may have a Warrantia Cartae or if he were impleaded by a stranger he may vouch again but if he had judgment to recover in value he shall never have a Warrantia Cartae or vouch again for by this judgment to recover in value he hath benefit of the Warranty Ibid. 102. a. 3. 10 The Lord that hath received Homage of his Tenant being vouched is thereby barred to disclaime â—â—ed eie for an 〈◊〉 c. 11 By the Ancient Law of England Ibid. 127. a. 3. if the Defendant in an appeale of Mayhem had béen found guilty the judgment against the Defendant had béen that he should lose the like member that the Plaintiffe had lost by his meanes as an hand for hand an eie for an eie c. 40 Ass 9. Mirror cap. 4. v. 5. Sect. 18. Britton cap. 25. fol. 144 145. Fleta lib. 1. cap. 38. The issue inâ—aile not barâ—ed without â—ecompence 12 In Littletons Case Ibid. 173. a. 1. § 260. where the eldest Sister hath the intailed Lands and the youngest the fée-simple Lands if the youngest daughter alien part of the Land in fée-simple and dieth so as a full recompence for the Land entailed descends not to her Issue her Issue may wave the taking of any profits of the fée simple lands and enter into the Land entailed for the Issue in taile shall never be barred without a full recompence Part of the â—â—me no satiâ—faction 13 Where the Condition is for the payment of 20 l. the Obligor or Feoffor cannot at the time appointed pay a lesser summe in satisfaction of the whole because it is apparent Ibid. 212. b. 4 Co. l. 5. 17. Pinnels Case that a lesser summe of money cannot be a satisfaction for a greater In Estate inâ—ile charged â—ithout fine or â—â—covery 14 It is commonly held Ibid. 143. b. 1 that Tenant in tail cannot alien or charge the Land in tailed without fine or recovery yet if a Disseisor make a gift in tail and the Donée in consideration of a release by the Disseisée of all his right to the Donée granteth a Rent-charge to the Disseisée and his heires proportionable to the value of his right this shall bind the Issue in tail albeit the Estate taile continue And this is in respect of the natural recompence â— Benefice â—harged withâ—â—â— the Paâ—â— 15 If there be Parson Patron and Ordinary Ibid. 343. b. 4. and the Parson by the Ordinance and assent of the Ordinary grant an Annuity to another having quid pro quo in consideration thereof this shall bind the Successor of the Parson without consent of the Patron â—nnanty my be anâ—exed to inâ—â—rporal â—â—â—ngs 16 Regularly a Warranty is onely annexable to frée-holds or inheritances corporeal yet to preserve mutual recompence Ibid. 366. a. 4 it may also be annexed to
thing collaterall and transfers or convey nothing as if the Major and Cominalty of London have an Estate for the life of I. S. if in this Case the Major and Cominalty attorne to the grantée of the reversion the law requires that it shall be by déed for notwithstanding that the grantée comes not in by them that attorne and that the attornment is but a bare consent yet in pleading the déed of Attornment ought to he shewed for in such Case the déed is requisite ex constitutione Legis but when a déed is onely requisite ex provisione hominis in such Case the provision of a man shall not charge the judgement of the law as if a man make a lease for years of land to A. upon condition that he shall not assigne it over but by déed and not by parol in this Case ex provisione hominis the assignement ought to be by déed yet because ex constitutione legis the déed is not necessary for the assignée he may plead the assignement without shewing the déed â—â—render â—arranty â—â—â—â—ment 14 Fortior aequior est dispositio legis quà m hominis Co. l. 6. 69. b. 3 in Sir Mâ—ile Finches Case and therefore he that hath a future interest cannot surrender it by any expresse surrender but by taking of a new lease which is an Act and amount to a surrender in law it may be surrendâ—ed and determined as it is held in 35 H. 6. c. vide suprà cap. 5. So if the father be enfeoffed in Fée and the Feoffor warrant the land to him and his heires here the assignée shall not vouch but if the father enfeoffe his sonne and heire apparent with warranty and die in this Case the heire being in truth assignée shall vouch for the law which hath determined the warranty of the father to the son will give the son benefit of the first warranty as it was adjudged in 43 E. 3. 5. by which it appeareth that the act in law is both more strong and more equal The principal Case therein effect then the Act of the party can be So also if A. Lessée for 50 yeares demiseth to B. for 10 yeares and then the reversioner levies a fine to B. and his heires who enfeoffes D. who outs B. and B. re-enters upon D. here the entry of B. is a good attornment in Law and stronger then an expresse attornment Co. l. 8. 82. a. 3 in Vivyors ca. 15 Albeit a man be bound in an Obligation to stand to abide c. Authorities revocable an Atbitrament yet he may contermand it For a man cannot by his owne Act make such an authority power or warrant as shall not be countermandable which by the Law and in its one nature is countermandable as if I make a Letter of Attorney to make livery or to sue an Action in my name or if I assigne Auditors to take an accompt or if I make one my Factor or submit to an Arbitrament albeit these are made by expresse words irrevocable or if I bind my selâ—e that they shall stand irrevocably yet they may be revoked So if I make my last Will Irrevocable yet I may afterwards revoke it For my Act or my Words can not alter the judgment of Law and make that irrevocable which of its owne nature is revocable Co. l. 10. 67. b. 2 in the Church wardens of St. Saviour in Southwarke their Case 16 The Church-wardens of St. Saviour in South-warke having a Lease of the Rectory almost expired contracted Surrenders 〈◊〉 Law that the Church-wardens then having and possessing the said Rectory would pay 20 l. fine and surrender the old Letters Patents to the King and in consideration thereof a new lease should be granted them They paid the 20 l. fine delivered into the Chancery the Letters Patents and discharged the fées there but did not take care that the Letters Patents were â—acated and yet the King was not deceived in his grant but the lease adjudged good For it was a good surrender in Law because albeit the lessées were a corporation aggregate of many and could not make an expresse surrender without déed in writing under their seale yet they may by Act in Law surrender their term without any writing So if the Prior without the consent of the Covent make a lease for yeares rendring Rent if the Prior by déed expressely release the rent and die the Successor shall recover the arrerages but if the Prior out the lessée and die this discharge in law shall discharge the rent that incurred during the Outer against the Successor as appears in 34 H. 6. 21. Co. l. 1â— 80. b. 4 in Lewes Bowles Case 17 The Estate of a Tenant in Taile after possibility Tenant is taile after possibility â— c. ought to be a Râ—maine and residue of an Estate Taile and this by the Act of God and not by the limitation of the party ex dispositione Legis and not ex provisione hominis and therefore if a man make a Gift in Taile upon Condition that if he do such an Act that he shall then have it but for life he is not Tenant in Taile after possibility c. for this is ex provisione hominis and not ex dispositione Legis but it ought to be the remaine and residue of an Estate Taile and that by the Act of God and the Law viz. by the death of one of the Donées without issue And therefore if Tenants in special taile recover in an Assise and after one of them die without issue and afterwards he that survives who is Tenant in taile after possâ—bility is re-disseised he shall have re-disseisin for the francktenement which he had before for it is parcel of the Estate taile Vid. sup Case 4. Co. l. 8. 152 a. 2 Edw. Althams Case 18 If the Disseisée release all Actions to the heire of the disseisor thereby his right is gone in judgment of Law Release of right for when a man hath not any other meane to come by his Land but onely by way of Action if he release all Actions by such release his right is Inclusive in Iudgement of Law gone because by his own Act he hath barred himselfe of all meanes and remedies to recover or attain thereunto but if the heire of the Disseisorâ— make a Lease for life the remainder in fée and the disseisée release to the Tenant for life all actions which he hath against him and after Tenant for life die the disseisée shall have an action notwithstanding such release against him in remainder for he did but release the action and the act in law will never extend the act of the party more largely then his expresse words as if the Lord disseise his Tenant and make a lease for life this release in law shall not entend farther then for the life of the lessée for true it is Fortior potentior est dispositio Legis quà m
When a man conveys a thing to another by several words which will admit several acceptions Co. l. 2. 35. b. 3. 36. b. 4. Sit Rowland Heywards Case the interest of the thing granted passes presently and the grantée his heires or executors may make their election when and in what manner they will take it And therefore if a man seised of a Mannor part in demesne and part in lease demiseth bargaines and sels it to another for yeares the Lessée may make his election whether he will take it by demise at the Common Law or by bargaine and sale So also in Sir Rowlands Heywards Case in the second Report it was said if a man give two Acres of land habendum the one acre in fée and the other in taile and he alien both and hath Issue and dies in this Case the Issue may bring a Formedon in descender for which Acre he pleaseth for the election was not determined by the grantées death because the Estate past presently by the livery and the issue takes by discent â—e heires Eâ—tion 13 If a feofment be made to two and the heires of one of them Co. l. 2. 61. a. 3 Wiscots Case and he that hath the fée dies and after he Tenant for life dies in this Case the heire hath election to have a Mortdancester or a scire facias or a Formedon in remainder at his pleasure The Lords Eâ—ction 14 If there be Lord and Tenant by Knight-service Co. l. 2. 68. a. 4. in Tookers ca. and the Tenant die his heire within age here the Lord hath election either to seise the Ward or to distraine for the services and waive the Ward Per Popham Election of â—hings in â—gant 15 If Tenant in taile of a Rent Advowson Tithes Common Co. l. 3. 84. a. 4. in the Case of Fines or other such things which lie in grant grants them by déed in fée and dies the grant is not absolutely determined by his death but it is at the Election of the Issue to make the grant voidable or void at his pleasure for if he bring a Formedon for the Rent c. he makes the grant voidable but if he distraine for the rent or claime it upon the land he thereby determines his election and makes it void Co. l. 4. 81. a. 1 in Nokes Case 16 If a man seised of land in fée lets the same for life rendring Rent and besides binds himselfe and his heires to Warranty Election of Warranty here the expresse warranty takes not away the Warranty in Law for if he in reversion grant over his reversion and the Lessée attorn and after is impleaded it is at his Election whether he he will vouch the grantée by the warranty in Law or the Lessor by the expresse warranty Vide 20 E. 3. Tit. Counterplea de Garrantie 7. Co. l. 4. 82. a. 4. in Sir Andrew Corbets Case 17 If a man deviseth demiseth or limiteth by way of use land to another untill 800 l. be raised for the perferment of his daughters and dies Election of entry or actions and the heire or he in Reversion or Remainder enter upon him to whom the Land is devised demised or limited as afore-said and expulse him In this Case it is in the Election of the person so expulsed either to bring his Action and recover the meane profits which shall be accounted parcel of the summe or he may re-enter and hold the Land until he may levie the whole summe and the time in which he was so expulsed shall not be accounted parcel There is the same Law in other Cases viz. of Tenant by Elegit Statute Merchant Statute Staple Guardian who holdes over for the double value If he in the Reversion who is to have the Lands outs them they have such Election as afore-said either to hold over or to bring their action Co. l. 4. 93. a. 4 in Slades Case 18 For money due upon the sale of corne or the like Election of actions it is in the election of the Plaintiffe to bring an Action upon the Case or an Action of Debt 1 For the greater number of Presidents and Iudgment in the point 2 Every contract executory justly implies an Assumpsit 3 Recovery in an Action upon the Case barres in Debt 4 It is the more speedy Action for if the payment be at several days no debt lies till the last this lies upon the first breach 5 It is a formed action in the Register and may lie where Debt lies as appeares there Fol. 97 98 100 103. See Dier 20. 118. 28 H. 8. Gore Woddeys Case Co. ib 94. b. 4. in Slades Case 19 When the Register hath two writs for one of the same Case Election of action it is at the election of the party to take and use either the one or the other and it appeares by divers Cases in the Register that an action upon the Case will lie albeit the Plaintiffe may have for the same thing another formed Action in the Register F. N. B. 94. g. Register 103. b. So if a man hath a Mannor within an Honor and hath a Léet within his Mannor for his owne Tenants if he or his Tenants are distrained by the Lord of the Honor to come to the Léet of the Honor he that is so distrained may have a general writ of Trespas or a special writ upon his Case So if an Officer take toll of him who ought to be quit of toll he shall have a general writ of Trespas or an action upon his Case as appeares by Fizt ibid. If a Prior or other Prelate be riding upon his journey and one distraines the horse upon which he rides when he might distraine other of his goods in this Case he may have a general action of Trespass or an action upon his Case as appeares by the Register fol. 100. F. N. B. 93. b. So if a Sheriffe suffer one in execution upon a Statute Marchant to escape the Conusée may have an Action of debt or an action upon the Case as appeares by the Register 98. b. F. N. B. 93 B. C. So if a man â—ust the Executors of his Lessée for yeares from their terme they may have a special writ upon their Case as appeares F. N. B. 92. g. Register 97. and yet they may also have an Ejectione firmae or Trespass for in all Cases when the Register hath two writs for one and the same Case it is at the election of the party to take either the one or the other 〈◊〉 of 〈◊〉 for 〈◊〉 20 Where a Prior is the Kings debtor Co. l. 5. p. 1. 16. a. 2. in the K. Ecclesiastical Law and ought to have tithes of another spiritual person he may choose either to sue for subtraction of his tithes in the Ecclesiastical Court or in the Exchequer and yet the persons and matter also was Ecclesiastical
the Bishop of Carliles Case 2 A prescription that if an inhabitant hath five fléeces of wool Titheâ— or above that then the inhabitant after the shearing and binding up of the said five fléeces without fraud or deceit shall truly pay unto the Rector after monition c. at the doore of the Mansion house of the said inhabitant c. the tenth part thereof without any sight or touch of the nine parts by the Rector is a void prescription for it is against common reason that any man should judge or divide for himselfe and then take choice of his own division against the Rule of Litt. § 245. for the truth of the tenth depends upon the proportion it holds with the nine parts therefore for the parishioner who is in the nature of an adversary to the Parson in this Case to set out a part of the tenth which he onely affirmes to be just is to give him méerly power to tithe as he lists and the prescription were as reasonable as to say plainly that the parishioners might set out what tithe they please 120 Nemo prohibetur pluribus desensionibus uti â—ral Pleas 〈◊〉 1 Where the Tenant or Demandant may plead a general issue Co. Inst p. 1. 304 a. 3. thereupon the general issue pleaded he may give in evidence as many distinct matters to barre the action or right of the Demandant or Plaintife as he can â—able matâ— pleaded 2 Where a special Verdict containes double or treble matter Co. ibidem the Tenant or Defendant may either make choice of one matter and to plead it to barre the Demandant or Plaintiffe or to plead the general issue and to take advantage of all or he may plead to part one of the pleas in barre and to another part another plea and the conclusion of his plea shall avoid doublenes 〈◊〉 as admiâ—ator or â—â—or 3 An Executor brings debt as Administrator Co. l. 5. 33. a. Robinsons Ca. and is barred by plea that he is Executor In this Case he may afterwards bring debt as Executor For he was barred as to the action of the writ to have Debt as Administrator but not to the Action â—â—tion 〈◊〉 satisfaâ—â— 4 Two men were bound jointly and severally in an Obligation Co. l. 5. 96. b. Blumfeilds ca. the one was sued condemned and taken in Execution and so not long after was the other And afterwards the first escaping the other brought an Audita quaerela but it was not admitted for albeit the Plaintiffe might have had his action against the Sheriffe upon the escape yet untill he be satisfied indéed the other shall not be enlarged nor have his Audita querela because the execution upon the first that escaped was not valuable being without satisfaction 〈◊〉 of actiâ—â—ll not 〈◊〉 recovery â—ise 5 If one be barred by plea to the writ Co. lib. 6. 7. a. in Ferreâ—â— Ca. he may have the same writ again if by plea to the Action of the writ he may have his right Action If the plea be to the Action and he be barred by judgment confession or verdict in personal Actions it is a barre for ever but in real actions he may have a writ of an higher nature and shall it is the same right again because it concernes his Frankteneâ—â—ent and Inheritance So if one be barred in an Assise of Novel disseisin yet upon shewing a discent or other special matter he may have an Assise of Mortdancester Aiel Besaiel a writ of Entry sur disseisin of his Ancestor c. or the like F.N.B. 5. n. And if he happen to fail in any such real action yet may he have last of all his writ of right in which the whole matter shall be tried and determined again Howbeit Recovery or barre in Assise is a barre in every other Assise and in a writ of entry in the nature of an Assise because they are both of his own possession and of the same nature So barre in a writ of Aiel is a haire in a writ of Besaiel Cosinage because they are ancestral and of the same nature yet in a Formedon in descender albeit the Dâ—mandant be barred by verdict or demurrer yet the issue in taile may have a now formedon in descender But this is by the construction of W. 2. c. 2. So likewise if the Ancestor be barred in a writ of Error upon a release by him made to the Tenant yet the issue shall have a new writ of Error For he claimes in not onely as heire but per formam doni And by the Statute he shall not be barred upon a feined or false plea of his Ancestor so long as the Right of the intaile remaines and with this accords 10 H. 6. 5. and 3 Eliz. 188. Dier Sir Ralfe Rowlets Case â—erse 6 In Trespas the Defendant makes title for that A. W. Co. lib. 6. 24. a Reades Case being seised in fée leased to him the Plaintife makes title by discent and traverseth the lease and good for it may be true that A. W. was seised and yet that a discent was cast to the Plaintiffe therefore the lease is most material to be traversed Howbeit it séemes that either the one or the other may be traversed So in Trespas the Defendant pleads that A. was seised who enfeoffed B. who enfeoffed C. who enfeoffed D. whose Estate the Defendant hath here the Defendant may traverse which of them he please Co. l. 8. 15. b. 4 in Edw. Althams Case 7 Where a man releaseth totum Jus generally By release of actions Entry remaines all his rights are thereby released but if the disseisée release to the disseisor omnes actiones viz. recuperandi sive prosequendi in judicio thereby his right of entry is not released for when a man hath divers means to come to his right he may release one of them in special and yet take benefit of the other and with this accords Litt. fol. 115. b. 19 Ass Pl. 3. 19 H. 6. 4. 21 H. 6. 23. 21 H. 7. 23. Co. l. 9. 23. b. 1 in the Case of Avowry 8 Notwithstanding the Statute of 21 H. 8. 19. The Lord 〈◊〉 avow as bâ—fore the Stat. the Lord may at this day avow upon a person certain as upon the utry Tenant according to the Common Law For the Statute taketh not away the Common Law in that Case but giveth liberty to the Lord to pursue the one or the other Co. l. 9. a. 4. in the Case of Avowry 9 If the Lessée or if Tenant peravaile in Case of Mesnalty be present when the Lord and his Bailiff comes to distraine Upon distresâ— rescous or trespass if nothing be in arreare he may well make rescous and so release himselfe as it was resolved in Bevils Case in Co. lib. 4. fol. 8. and divers other Bookes which sée in the Case of Avowry Co. lib. 9. 23. a. 4. Or otherwise
a capias he doth well but if he thereupon returne a non est inventus Sheriffes 〈◊〉 return he shall be adjudged a trespassor ab initio And in such Case in false imprisonment brought against him it is sufficient for him to alleadge that he was Sheriffe and that the capias came to him and that by force thereof he tooke and imprisoned the party and then to demand judgment si action and ought not to say that he returned non est inventus because that makes against him that is makes him a trespassor ab initio but the false returne ought to be alleadged by the Plaintiffe who is to take advantage thereof â—â—ed and â—â—in 4 If the Ecclesiastical Court will enjoyne a man to be examined upon oath for the discovery of any covin or fraud concerning himselfe Hob. 84. Spendlow a Prohibition lyeth for albeit the original cause belongs to their Conizance yet the covin and fraud are criminal and the avowing of the Act to be done bona fide is punishable both in the Starre-chamber and by the penal Law of fraudulent gifts and therefore not to be extorted out of himselfe by his oath 126 Nec se infortuniis periculis exponere 1 In making continual claime if the adverse party lie in waite in the way with Weapons or by words menace to beat mayhem or kill the party that would enter in such Case the Law allowes a claime made as néere the land as he dare approach for feare of death or other bodily hurt Howbeit saith Bracton Talis debet esse metus qui cadere potest in virum constantem qui in se continet mortis periculum corporis cruciatum Et nemo tenetur se infortuniis periculis exponere And therefore every doubt or feare is not sufficient for it must concerne the safety of the person of the man and not his houses or goods for the feare of burning his houses or taking away or spoiling his goods is not sufficient because he may recover the same or damages to the value thereof without any corporal hurt But if the Iury upon a special Verdict do find that the disseisée did not enter for feare of corporal hurt this is sufficient and it shall be intended that they had evidence to prove the same Also it séemeth that feare of imprisonment is sufficient because such a feare sufficeth to avoid a bond or a Déed for the Law hath a special regard to the salfety and liberty of a man and imprisonment is a corporal damage a restraint of liberty and a kind of captivity For the time of doing things it countenanceth more 127 Things done in time of Peace than in time of Warre â—â—â—sin in 〈◊〉 of warre 1 If a man be seised of tenements in fée by occupation in time of Warre and thereof die seised in time of Warre Litt. §. 412. Co. Inst p. 1. 249 a. c. and the tenements descend to his heire such descent shall not out any man of his entry Vide 7. E. 2. Now a time of Peace is when the Courts of Iustice be open and the Iudges and Ministers of the same may by Law protect men from wrong and violence and distribute Iustice to all on the other side when by invasion insurrections rebellions or the like the peacable course of Iustice is disturbed and stopped so as the Courts of Iustice he as it were shut up nam inter arma silent Leges then it is said to be a time of Warre And the trial thereof is by the records and Iudges of the Courts of Iustice for by them it will appeare whether Iustice had her equal course of procéeding at that time or no And this shall not be tried by Iury but by them as afore-said And therefore albeit during these late troubles the Courts of Iustice sate duly at Westminster as in other times of Peace yet quaere whether an occupation and discent at that time within the Kings Quarters would barre the disseisée for although they sate yet had they no power there to execute their judgment Co. ib. 249. b. 2 4. 2 If a man be disseised in time of Peace The like and the descent is cast in time of Warre this shall not take away the entry of the disseisée So likewise in real Actions the Explees or taking of the profits are layed tempore pacis 6 E. 3. 41. Co. l. 2. 93. a. 3 in Binghams Case F. N. B. 31. i. for if they were taken tempore belli they are not accounted off in Law And as it is in Case of discent so it is also in Case of presentation for no usurpation in time of Warre putteth the right Patron out of possession albeit the Incumbent come in by institution and induction And time of warre doth not onely give priviledge to them that be actually in Warre but to all others within the Kingdome And albeit the admission and induction be in time of Peace yet if the presentment were in time of warre it putteth not the right Patron out of possession 3 The Law countenanceth more the procéeding against a Felon in time of peace then in time of Warre And therefore if a man commit Felony in time of Peace he shall by judgment forfeit his lands thrée manner of wayes 1 quia suspensus per collum 2 quia abjura vit regnum 3 quia utlagatus est but they who are hanged by Martial Law in favorem belli forfeit no lands 128 Things done in the day more then those done in the night Co. Inst p. 1. 135. a. 4. Mirr l. 5. §. 1. 1 It is not lawfull to hold pleas in the night time or before Sun-rise And therefore the Mirroir saith No pleas the night Abusion est que lon tient pleas par Dimenches v. Sondayes ou par outres jours defenders or devant le Soleil levy ou nectanter c. Co. ib. 142. a. 3 2 For damage fesant a man may distraine in the night No distressâ— the night because otherwise it may be the beasts will be gone before he can take them but for a Rent or service the Lord cannot distraine in the night but it ought to be done in the day time and so it is also of a Rent-charge Vide suprà 110. R. 4. Co. l. 7. 6. b. 2. in Milbornes Case 3 For Robbery committed in the morning ante lucem No pursuit the night the Hundred shall not be charged And albeit no time be specified in the Statute of Winchester 13 E. 1. yet it shall not extend to Robbery done in the night because no laches or negligence can be adjudged in the Hundred for default of a good guard in the night Neither can they in the night make pursuit or inquire after them for as the Scripture saith The day is made for man to labour in and the night to rest Note that the Statute of 27 El. 13. hath altered this Law
seisin or Rent although it shall not enure by way of satisfaction yet it shall give sufficient seisin to an Assise or other remedy for the Rent For the 2 if the Rent be payable at Easter in that Case if the Tenant pay the rent in the morning and the lessor die two houres before noone of the same day this payment was voluntary and yet is good satisfaction against the heire but not against the King 44 E. 3. 3. As to the third the legal time is a convenient time before the last instant of the day and is the most extreme time and is satisfactory and not coercive for until the end of the day no remedy by Law is given 21 H. 6. 40. As to the fourth that is when the Rent being due and arreare is recovered by order of Law and this is satisfactory but coercive withall concerning all which several times the Poet saith Judicis officium est ut res ita tempora rerum Quaerere quaesito tempore tutus eris 12 Vide 183. 1. Dier 354. 32. 19 El. 13 A. levies a Fine to B. to the uses in a certain indenture mentioned wherein there is a proviso Notice of pâ—ment that if A. pay or tender 20 l. during his life to B. at the Font-stone of the Church of Sarum that it shall be to the use of A. in Fée In this Case because no day is limited the tender will not be to purpose unlesse A. give notice to B. when he will pay it to the end B. or his Assignée may be there to receive it 133 The third offence is esteemed most heynous 2 E. 4. 1. 1 The third writ not returned by the Sheriffe is a contempt Sheriffes returne where an attachment lieth Finch fol. 10. b. 134 The place also ought to be convenient Litt. §. 180. Co. Inst p. 1. 120. a. 1. 1 If a Villain purchase an Advowson full of an Incumbent At the Chuâ— the Lord may immediately come to the Church and claime the Advowson and by this claime it vests presently in him because if he should stay till an avoydance the Villein might alien the Advowson and so out the Lord of his presentment And in this Case albeit the Advowson is a thing incorporeal and not visible yet because the principal duty of the presentée of the Patron is to be done in the Church the claime of the Villains Lord must be made there and by that claime the Inheritance of the Advowson shall be vested in the Lord For every claime or demand to devest any Estate or Interest must be made in the place which is most apt for that purpose Co. ib. 153. a. 4 b. 3. 201. b. 4. Litt. §. 341. 2 When Rent is issuing out of Land and no place limited Upon the land at which it shall be payd the land is the debtor and the Rent must be demanded upon the land howbeit if there be house and land a demand upon the land is sufficient unlesse it be for a Condition broken for then it ought to be at the house Co. ib. 201. b. 1 3 If the King maketh a lease for yeares rendring a Rent payable at his receipt at Westminster The like and after the King granteth the reversion to another and his heires In this Case the grantée shall demand the Rent upon the land and not at the Kings receipt at Westminster For as the Law without expâ—esse words doth appoint the Lessée in the Kings Case to pay it at the Kings receipt so in Case of a subject the Law appoints the demand to be on the land Co ibidem 15 El. Dier 329 4 If there be a house upon the land Fore-door the Rent must be demanded at the house and that not at the back-doore but at the fore-doore thereof because the demand must be ever made at the most notorious place and it is not material whether any person be there or no and albeit the Feoffée or Lessée be in the hall or other part of the house yet the Feoffor or Lessor néed come no farther then to the fore-doore for that is the place appointed by Law although it be open â— Wood. 5 If a Feoffment be made of a Wood onely Co. ib. 202. a. 1. and Dyer ibid. the demand must be made at the gate of the Wood or at some high way leading through the Wood or other most notorious place And if one place be as notorious as another the Feoffor hath election to demand it at which he will And albeit the Feoffée be in some other part of the Wood ready to pay the rent yet that shall not avail him Et sic de similibus â—void deâ—and 6 If the Feoffor demand the rent on the ground at a place which is not most notorious as at the back Doore of a House c. Co. Inst p. 1. 202. a. 1. And in pleading the Feoffor alledge a demand of the rent generally at the House the Feoffée may traverse the demand and upon the Evidence it shall be found for him for that such a demand is void and indeed no demand at all 〈◊〉 another â—lace 7 If rent be reserved to be paid at any place from the land Co. Ibid. yet it being in Law a rent the Feoffor or Lessor must demand it at the place appointed and agréed upon by the parties observing the former Rule concerning the most notorious place â—t any place 8 When the Feoffée or Lessée are absent Co. ibid. a. 28 then the most notorious place is to be observed as hath béen said before But if the Feoffée commeth to the Feoffor at any place upon any part of the ground at the day of payment and offer his rent Albeit they be not at the most notorious place nor at the last instant of the day yet the Feoffor is bound to receive it or else he shall not take any advantage of any Demand of the Rent for that Day â—aim of a Remainder 9 Claim of a Remainder by force of a Condition ought to be upon the Land Co. l. 2. 54. a. 2 and a Claim thereof made out of the Land is not sufficient So if a Villain purchase a Reversion the Claim of the Lord ought to be upon the Land Sée Littl. fol. 40. and the Book in 15 Ass Pl. 12. is good Law that a Distresse upon the Land after the Condition broken amounts to a Claim of the Seigniory unto which it was annexed â—xre actions â— to be â—aght 10 A. recovers 20 l. against B. Co. l. 7. 1. Bulwers Case Vide Ho. 195. Hall Winkfield in the Common Pleas by Action laid in Norfolke and dies C. in the Name of A. upon the judgment before Execution out-lawes B. in London and afterwards takes him upon a Capias Utlagatum in Norfolke and imprisons him there two Moneths Hereupon B. brings his Action of the Case against C. in
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.
Assise for otherwise they should be without remedy and thus they must do Ne Curia Dom. regis c. And Lex non debet deficere conquerentibus in justicia exhibenda besides if they should not joyne they should have damnum injuriam and yet should have no remedy by Law which would be inconvenient for the Law will that in every case where a man is wronged and endamaged that he shall have remedy Aliquid conceditur ne injuria remanent impunita quod alias non concederetur Vide plus ibidem A Villaine 3. A man cannot be properly said to be dispossest of a Villain Co. ibid. 307. a. 1. either in grosse or regardant unlesse he be dispossest of the M. too for otherwise the Law would have given a remedy against the wrong doer as the Law doth in case of a Ward because the Lord may seise his Villain whersoever he finds him Tâ—e Lessee of a Copy-holder â—â—y have an Ejectment 4. The Lessee of a Copiholder for a year may maintaine an Ejectione firme for in as much as hiâ— terme is warranted by the Law Co. l. 4. 26. a. 4. in Melwitches case by force of the generall custome of the Realme it is reason that if he be ejected he should have an Ejectione firme for otherwise he should be without remedy And Interest reipublicae ne Curia c. 〈◊〉 West 2. â— 28. 5. The Statute of Westm 2. ca. 28 provides Quod quotiescunque de cetero exercerit in Cancelleria Co. l. 7. 4. a. 2. in Bulwers case quod in uno casu reperitur breve in consimili casu cadente sub eodem jure simili indigente remedio non reperitur concordent Clerici in Cancelleria in brevi faciendo c. vel ad proprium Parliamentum de consensu Jurisperitorum fiat breve And then concludes with this Maxime in Law Quod Curia Domini Regis non debet deficere conquerentibus in justicia perquirenda Vpon which Statute and ground divers things are admitted in consimili casu Vide plus ibidem No error beâ—â—re full Judgment 6. The Defendant in account after judgment to account Co. l. 11. 36. a. 4. Medcalfes case and before judgment finall brings Error but it was not allowed so in an action brought against two one pleads to the issue and the other confesseth it and thereupon judgment passeth against him yet he shall not have Error till the plea be determined against the other Vide plus ibidem And the reason of these and the like cases is because if the Record should be removed before the whole matter be determined there would be a Failer of Right for the Iudges of the Kings Bench cannot proceed upon a matter which is not yet determined â—eturne of the â—â—eriff 7. If a Sheriff returne upon a Replevin alias or pluries that he hath sent to the Bailiff of the Franchise who hath made him no return F. N. B. 68. f. g. or that he will not make deliverance of the Cattle in such case a Non omittas shall issue forth alias pluries to cause the Sheriff to enter the Liberty and to make returne or if the Bailiff make no return or will not make deliverance it seemes that by the Statute of West 1. ca. 27. upon such returnes the Sheriff may without Writ enter the Liberty and make deliverance of the Cattell in like manner as the Sheriff may do by the Statute of Marlebridge ca. 21. where a plea De vetit Nav. is in the County by plaint before the Sheriff and the Sheriff sends to the Bailiff of the Liberty to make deliverance and he doth nothing in this case also the Sheriff may without Writ enter the Liberty and do it Likewise if the Sheriff upon a Pluries returne that the Defendant hath conveyed the Cattell into another County or that he hath commanded the Bailiff of the Franchise who returnes that the Cattell are eloined into divers Liberties so that he cannot have the view of the cattell to make deliverance or that the Defendant hath eloyned the Cattell into divers places unknown or that the Defendant hath imparked them in the Rectory of the Church of O. that hee cannot make deliverance c. Vpon these returnes of the Sheriff the Plaintiff shall have a Writ of Withernam to take so many of the Defendants Cattell and detaine them in Pound untill the Defendant produce the Plaintiffes And all this is Ne Curia Domini Regis c. Pl. Co. 36. a. 3. in Plats case 8. The Statute of 1 R 2. 12. The Extent oâ— 1. R. 2. c. 12 which gives an action of debt against the Warden of the Fleet for suffering a Prisoner being in upon Iudgement to go at large without Writ is extended by equity to all other Keepers of Prisons although it be a penall Stâ—tute and that is for the better execution of justice and that the Creditors debts may be the sooner discharged Co. Inst pars 1. 294. 4. 9. If there be not foure Knights in the County for the electing of the twelve chosen for the tryall of the meere right in a Writ of Right when the Mise is joyned upon the meere Right Writ of right the next to them in the County shall be taken Ne Curia Regis c. Co. l 7. 4. a. 4 in Bulwers case 10. If there be Lord and Tenant Two Writs one Count. and the Tenancy extends into two Counties in this case if the rents and services are arreare the Lord shall have severall Writs of the Customes and Services for each County a Writ and shall have them returneable at one day in the Bench but he shall have but one Count upon them as his case is Quia aliter Curia Domini Regis deficeret conquirentibus in justitia proquirenda F. N. B. 26. h. 11. Vpon a Rescous returned by the Sheriff Rescous and thereupon an Attachment awarded against the party in this case he shall not appear by Attorney but in person and shall immediately upon his appearance be committed to the Fleet Nam expedit reipublice c. Litt. S. 438. Co. Inst pars 1. 260. a. 3. 12. Alb it the Law in divers respects favoureth a Prisoner Pâ—ocâ—edings against a Prisoner so as a Recovery then had against him by default shall be reversed by Error a descent then cast against him shall not annoy him yet it will not priviledge him from suits or Outlawries for if the Tenant or Defendant be in Prison hee shall upon motion by order of the Court be brought to the Barr and either answer according to Law or else the same being recorded the Law shall proceed against him and he shall take no advantage of his imprisonment Dyer 1. 5. c. p. 4 H. 8. 13. A Writ of error was brought by the feoffee of the Conusor of a Statute Error brought by a stranger because
of debt against any of them for the rent arreare in his time because otherwise the Executors should be without remedy and Qui sentit commodum sentire debet onus Vide supra 11. and 32. Co. l. 8. 50. a. 3. in John Webs case 39. It seemes incongruous and against reason The Ter-tenant may have an Assize for his own Land that the ter-tenant who is already seised of the land should have a Writ of Novel disseisin concerning the same Land And yet in some cases rather then hee should be left without remedy he shall have it As if the Lord c. distraine his tenant so often that he cannot manure his Land in this case the ter-tenant may have an Assise and the Writ shall be generall but he shall make a speciall Plaint that the Lord c. Sovent fois distraines c. And the Iudgement shall not be Quod querens recuperabit seisinam tenementorum praedictorum for the Plaintiff himselfe is seised of the Land but the judgement shall be that he shall have and hold the Land absque multiplici districtione c. So likewise in casu quo quis poscit alterius separale The ter-tenant shall have an Assise by the common Law And the Statute of West 2. ca. 25. that gives an Assise of Novel disseisin de libero tenemento in such cases is but an affirmance of the common Law for in like manner he shall have an Assise for fishing in his severall Piscary or for Turbary Common c. and the Writ shall be generall as appeares by that Statute but the Plaintiff in his plaint ought to shew that the Defendant claiming common of pasture in his severall with his Cattell disturbs him c. And the Iudgement shall not be that he shall recover the seisin of the tenements c. but that he shall have and hold them in severalty for the Plaintiff himself is already in seisin of the frank tenement In which cases and the like it may be observed that the Iudgement doth not pursue the Writ which regularly it should for then it should adjudge him the Land it selfe which is needlesse because he hath it already Howbeit least he should be without remedy it gives him the Writ by which Land is usually recovered Co. l. 10. 127. b. 3. in Cluâ—s case 40. If the Lessee pay his rent voluntarily before the day Part of the rent seisin albeit this payment be voluntary yet is it not satisfactory as to satisfie the rent not then due Howbeit if the rent or any part thereof be given before the day of payment in name of seisin of the rent this payment shall give sufficient Seisin to have an Assise or other remedy for the rent because the Law delighteth in giving remedies Tenant may bring an action without licence F. N. B. 3. c. 41. If there be Lord and Tenant of a Seigniory in grosse for which the Lord for want of suitors can keep no Court in this case the Tenant may sue in the Kings Court without licence of the Lord because otherwise he should be without remedy and the Lord shall not have â—n action against the Tenant for so doing nor any meanes to annull the Tenants action and in the end of the Writ thâ—se words shall be inserted Quia Dominus remisit curiam suam Tenant in Dower may sue in Co. B. without licence F.N.B. 8. a. b. 42. If the Baron give parcell of his Mannor in taile to hold of him and dye the Feme shall sue her Writ of right of Dower in the Court of the Heire of the Baron against the Donee in tail and the Writ shall be directed to the heire but if the Baron make a gift in tail of all the Land which he hath and dyeth and the Feme is to sue a Writ of Right of Dower of that Land here the heire of the Baron cannot have any Court because he hath but a Seignorie in grosse and therefore in such case she shall have a Writ of Right of Dower against the tenant in tail directed to the Sheriff and returnable in the Common Bench and this clause shall be in the Writ Quia B. Capitalis Dominus feodi illius nobis inde remisit curiam suam So likewise if the Baron makes a Lease of all his Land for terme of life to a stranger and dye and the Feme is to bring a Writ of right of Dower in such case also the Feme shall have a Writ of right of Dower against the Lessee for terme of life in the Common Bench because the Reversioner hath not any Court And albeit this clause viz. Quia B. Capitalis Dominus c. be put in the Writ yet because the Lord hath one by a seignorie in grosse and hath not any demesne land to hold a Court and albeit the Lord never remitted his Court nor that there is any matter apparant or demurrer in Chancery to prove the assent and will of the Lord to remit his Court yet the Writ returnable in the common Bench before the Iustices there is good and they shall proceed thereupon if the Lord hath not any Court to hold plea upon that matter And it seemes that the Lord shall not have an Action against the Demandant for the suit of that writ in the Co. Ba. if he hath not a court to hold plea thereupon and to do right to the party for if the party might not have liberty to sue in the Co. Ba. in that case she should be left without remedy Howbeit indeed if the Lord had a court to hold plea then he might sue a Writ of Prohibition to the Iustices of the Co. Ba. that they should not proceed upon that Plea but otherwise not A Quare Impeâ—it granted in improper cases 43. If one man hath the nomination to an Advowson F. N. B. 33. b. c. d. e. f. and another the presentation if he name his Clerk and the other that should present present another clerk he that hath the nomination shall have a Quare Impedit and the Writ shall be Quod permittat ipsum praesentare albeit he had but the nomination for otherwise he should be without remedy upon the same reason it is that upon disturbance to one to present to a priory or chantery donative to the King or a Bishop or the like a Quare Impedit lyeth and the Writ shall be Quod permittat ipsum praesentare and yet those words are not proper in such cases but because there is no other Writ hereby the party may have right done him rather than he should be without remedy the Law permits that Writ to be used The like 44. Regularly a man shall not have a Quare Impedit F. N. B. 33. h. i. if he cannot alleadge a presentment in himselfe or in his Ancestor or in some other person by whom he claimes the Advowson yet if a man by the Kings licence make a Parish Church
350. if he may enter he must enter and when he cannot enter he must make a claime for that a Freehold and Inheritance shall not cease without entry or claime And yet if Land be granted to a man for terme of five yeares upon condition that if he pay the Grantor within the first two yeares fourty pounds that then he shall have fee or otherwise but for the terme of five yeares and livery of seisin is made unto him by force of the Grant In this case if the Grantee pay not unto the Grantor fourty pounds within the first two yeares then immediately after the first two yeares the Fee and Frank-tenement shall be adjudged in the Grantor without entry because the Grantor cannot presently after the two yeares enter upon the Grantee Co. ibid. 21 a. 4. for that the Grantee hath yet a terme of three yeares in the Land and in as much as hee cannot enter hee shall not be driven to make any claime to the Reversion For seeing by construction of Law the Freehold and Inheritance if the Condition had beene performed was to passe Maintenant out of the Lessor by the like construction the Freehold and Inheritance by the default of the Lessee shall be revested in the Lessor without entry or claime There is the same Law of a Grant by Devise Lease and Release Bargaine and Sale by Deed indented and inrolled c. or whether it be of an Advowson Reversion Remainder Rent Condition or any other thing that lyes in Grant Feme recovered without Baron 53. The Husband is the Wives head Co. ibid. 352. b. 4. Litt. S. 668. and regularly shee can do nothing without him and yet in an action of Waste if the Baron make default to the great Distresse the Feme upon prayer shall be received and shall shew the whole matter and how shee is in her Remitter and shall barre the Lessor of his Action And albeit this priviledge be given the Feme by Westm 2. cap. 3. yet ancient Authors who wrote before that Statute do speake of such a kinde of receipt at the Common Law for otherwise the Feme would be without remedy Judgement upon a dead â—an 54. It seemes irregular Co. ibid. 390. b. 4. that Iudgement should be given upon a man already dead And yet in 8 Ed. 3. Judgement 225. the Defendant in an appeale of death did wage Battell and was slaine in the Feild yet Iudgement was afterwards given that he should be hanged and the Iustices sayd such Iudgement was necessary because otherwise the Lord could not have a Writ of Escheate and so would be without remedy Co ibid. 393. a. 4. 55. Regularly Two Recoveries upon one warranty there cannot be two recoveries in value upon one warranty and yet in some speciall cases rather then a man shall be without remedy there shall be two such recoveries for if a disseisor give lands to the Husband and Wife and to the heires of the Husband the Husband alieneth in fee with warranty and dyeth the Wife bringeth a Cui in vita the Tenant voucheth and recovereth in value if after the death of the Wife the Disseisee bring a Precipe against the Alienee he shall vouch and recover in value againe Co. l. 8. 61. a. 3. in Beechers case 56. In all actions reall and personall No amerciament against the Plaintiff if part be found for the Demandant or Plaintiff and part against him or all or part against the one Tenant or Defendant and nothing or but part against the other the demandant or Plaintiff shall be amerced Howbeit in Trespasse of Battery against Baron and Feme supposing the battery to be done by them both and the Feme is onely found guilty c. and the Baron acquit yet in this case the Plaintiff shall not be amerced because the Plaintiff in such case can have no other Writ and therefore he shall be excused Vide Max. 149. 41. 57. Vide 143. 15. Dyer 8. a. 28. H. 8. Pl. 11. 16. 58. In a Writ of Ward the Writ supposeth that B. held the land c. Variance inter writ and count no error and the Count declareth that B. was but Cestuy que use so as the Feoffees held the land and not B. Here this variance is no Error because the Statute of 4 H. 7. which gives the wardship of Cestuy que use appoints no speciall Writ for it and therefore the generall Writ and speciall Count suffiseth for otherwise the Lord should be without remedy which the Law will not permit So in a Warrantia Cartae the words of the Writ are Unde cartam habet and yet the Count may be upon warranty for Homage Ancestrel Dyer 56. 17. 35 H. 8. 59. A Writ of Right Quia Dominus remisit Curia Feme Covert c. was brought by Baron and Feme the Feme being under age the Feme appeares by Procheine amie who was admitted by the Court and upon the Tenants voucher and default of the Vouchee shee had judgement finall c. without her Husbands appearing in the action Vide supra 10. Dyer 206. 11. 3 4. Eliz. 60. A man makes a Lease for yeares to begin at a day to come Waste and before the day the reversion is granted over divers times afterwards the Termor enters and makes waste and the fourth Assignee bring waste and counts of the assignment and tenure of each of them to whom the Land came after the Lease albeit there was no tenure before the commencement of the Lease and it was held good and so it is also in the Regester Hob. 3. Pincombes case 61. Albeit regularly a warranty ought onely to be annexed to a freehold and not to any lower estate Warranty is a covenant yet when the breach or impeaching is not of a Freehold but of a chattell Viz. of a Lease for yeares for which there can neither be Voucher Rebutter nor Warrantia Cartae an action of Covenant may be grounded upon such a Warranty As if A. demiseth the Monnor of D. to B. for one and thirty yeares and afterwards grants it to C. in possession for life with warranty against him and his Ancestors C. may bring an action of Covenant upon that Warranty and shall recover damages thereupon See the Book at large Hob. 48. Coxes case 62. Lands in Ancient demesne where the possession is stirred Ancient demesne cannot be recovered but within their owne Franchise or Iurisdiction and this is regularly true yet actions at the Common Law upon which no remedy can be had in ancient demesne do lye in the Kings Court though they stir the possession as in a Quare impedit 7 H. 6. 35. because they cannot write to the Bishop And the reason is because the Common Law being as ancient as their priviledge is will not endure that by pretence of Priviledges there should be a Failer of Originall Right as that
descent cast because then his drunkennesse would be an advantage to him or his heir which ought not to be but doth aggravate his offence he being indeed to be reputed rather Voluntarius Daemon then non compos mentis Profession makes no descent 14. Profession in Religion shall not make a descent to take away Entry because it is the Disseisors owne act Litt. S. 410. Co. ibid. 248. b. 4. whereof neither he nor his heire shall take advantage So if a man be Tenant or Defendant in a reall or personall Action and hanging the Suit the Tenant or Defendant entreth into Religion by this the Writ shall not abate Causa qua supra there is the same Law of a Resignation c. but not of a Deposition or Deprivation because he is expelled by Iudgement and yet his offence c. was the cause thereof Sed in presumptione legis Judicium semper redditur indivisum Baron and Feme waste 15. If Land be given to a Feme sole for life Litt S. 525. Co. ibid. 299. b. 3. and after shee take Baron and the Reversioner confirmes the estate of the Baron and Feme to hold for their two lives here the Baron hath an estate for life in the Land by way of Remainder as Littleton termes it S. 525. or as others call it by way of Reversion but however it enures to him by way of encrease or inlargement of estate or otherwise he is seised of an estate for life in the Land And yet in this case if the Husband commit waste an Action of waste shall lye against Husband and Wife notwithstanding the meane Remainder because the Husband himselfe committeth the waste and doth the wrong and therefore shall not excuse himselfe for his committing of waste in respect he himselfe hath the Remainder no more then if a man leaseth to A. during the life of B. the Remainder to him during the life of C. if he commit waste an Action of waste shall lye against him Forfeiture 16. A. Tenant for life the Remainder to B. for life Co. ibid. 302. b. 3. the Remainder in tail the Remainder to the right heires of B. A. and B. joyne in a Feoffment by Deed here albeit it may be said that this is the Feoffment of A. and the confirmation of B. and consequently he in the Remainder in tail cannot enter for the forfeiture during the life of B. yet because B. joyned in the Feoffment which was tortious to him in the Remainder in taile and is particeps criminis they have both forfeited their estates and he in the Remainder in tail shall enter for the forfeiture Covin with a Diseisor on â—â—mitter 17. If the Baron discontinue the Land of the Feme Litt. S. 678. Co. ibid. 357. b. 2. and the Discontinuee is disseised and after the Disseisor lets the Land to the Baron and Feme for life in this case the Feme is remitted albeit the Baron were in this case of covin with the Disseisor but if the Baron and Feme were of Covin that the Disseisin should be done in that case the Feme is not remitted for she shall not any way take advantage of her own wrong So if Tenant in tail and his issue disseise the Discontinuee to the use of the Father and the Father dyeth and the Land discendeth to the issue In this case the issue is not remitted against the Discontinuee in respect he was privy and party to the wrong whereof therefore he shall not take any advantage but in respect of all other he is remitted and shall deraigne the first warranty Covin 18. A. and B. Ioynt-tenants are entitled to a reall Action against the Heire of the Disseisor A. causeth the heire to be disseised Co. Inst pars 1. 357. b. 3. against whom A. and B. recover and sue execution In this case B. is remitted for that he was not party to the Covin and shall hold in common with A. but A. is not remitted because he was of Covin and shall not take advantage of his own wrong Condition broken by demise 19. A. deviseth Land to his Wife Co. l. 1. 25. b. 3. Porters case upon Condition that shee convey them in convenient time to certaine persons in trust for the maintenance of a Free-schoole the Testator dyes and his Wife demised the Land to a stranger for yeares in this case the Condition is broken and the next Heire shall enter because by the demise shee hath disabled her selfe to convey them according to the Condition viz. in the same plight she had them and therefore shall not take advantage of her own wrong Co. l. 3. 29. b. 4. in Butler Bakers case 14 H. 4. 38. 1 H 5. Tit. Grants 43. 20. If Donee in tail make a Feoffment in fee in this case Donee still Tenant after discontinuance the Donee hath neither Jus in rei veritate nor Jus ad rem for by his own act he hath departed with all the estate that was in him and yet after this the Donee may extinguish or diminish his rent by release or confirmation made to him by the Donor because as to the Donor the Donee shall still remaine Tenant and of necessity for the rent the Donor shall avow upon the Donee for he cannot avow upon the Discontinuee because then by his own shewing the Reversion to which the rent is incident should be deâ—ested out of him by the Feoffment and by consequent he could not then maintaine his Avowry for the rent and therefore of necessity he shall avow upon the Donee notwithstanding he hath devested himselfe of all his estate for it is no reason that the Feoffment which is the Donees own act and by which wrong is done should availe the Donee to bar the Donor of his rent for then the Donee that made the discontinuance should take advantage of his own wrong Co. l. 3. 44. b. 2. in Baytons case Co. l. 3. 52. a. 4. in Rigewayes case 21. If one in execution escape of his own wrong be re-taken Escape of Prisoners he shall not have an Audita Querela to discharge himselfe of his Imprisonment because he shall not take advantage of his own wrong and in such case it is lawfull for the Gaoler to re-take him in what place soever he finds him And albeit the Prisoner in the pursuit be out of view at the turn of a corner or the like yet the Sheriff or Gaoloer may re-take him and although it be in places without their jurisdiction but the Plaintiff may bring an Action against the Sheriff before he can re take him and he shall be answerable for an escape albeit the Sheriff re-take him afterwards Howbeit the Sheriff may then justifie to retaine the Prisoner untill he save him harmlesse from the Plaintiffs Action or may bring an Action of Trespasse upon the case against him for the damages he shall suffer by the Plaintiffs
vita to say that the Feme had a lesse estate then Fee-simple yet the issue who claimed the Reversion of the Land as heire to the Baron shall not be bound by that Estoppel made by the Feme although he was heire to her also for then the Feme who had but an estate for life might by her own act have barred the heire that right had and claimed as heire to his Father C. l. 8. 76. a. 2. in the Lord Staffords case 33. If a man make a Lease for years upon Condition Outer by Lessor that if the Lessor out him within the Terme that he shall have fee and the Lessor doth out him accordingly in this case albeit the interest of the terme is by such ouster turned to a right yet the Lessee in such case shall have fee for that such ouster is the act and tort of the Lessor himselfe whereof he shall take no advantage Co. l. 8. 133. a. 4. Turners case 34. In debt against an Executor Executor de layes c. he pleads a Recovery against him in such a Court which amounts to the whole in his hands the Plaintiff replies that the recoverer hath accepted composition and that the Defendant delayes to accept a release with purpose to defraud the Plaintiff In this case the deferring to accept the release is a tort and against the duty of an Executor and therefore cannot helpe him for if any prejudice happen to him thereby it is by his own tort and default and therefore he shall not take any benefit thereby Co. l. 9. 68. b. 4. in Mackallies case 35. Vpon an arrest Resistance by Prisoner if the party arrested submit himselfe peaceably thereunto and gives the Serjeants or Bayliffs convenient leasure to acquaint him with their business they oughtupon demand to shew him their warrant and to let him know the occasion thereof as it was adjudged in the Countess of Rutlands case in the 6. Rep. fo 55. But if he make resistance and obey not their warrant they are not bound to shew it nor c. and if then any of them be killed it is murder for the Prisoner shall not in such case take advantage of his own wrong Co. l. 10. 134. b. 2. in Read and Redmans case 36. In reall Writs originall Summons and severance if he that is summoned and severed dyes which is the act of God the Writ shall abate but taking of Baron or entring into the Land by him that is summoned and severed or where there is no summons and severance shall not abate the Writ but onely make it abateable because these are the parties own acts whereof they shall not take advantage Co. l. 11. 81. b. 1 in Lewes Bowles case 37. If a Tenant for life or years fell Timber Trees Waste or pull down the Houses the Lessor shall have the Timber for the Lessee cannot have them by his demise but as things annexed to the soile And therefore it is absurd in reason that when by his own act and wrong he hath severed them from the Land he should gaine a greater property in them then he had by the demise F. N. B. 59. k. 37. The Tenant may fell Trees to repaire the Houses Waste but if the Houses be fallen into decay by his default if then he fell Trees to repaire them it is waste for he shall not usurp the power of felling Trees to amend the Houses when the cause why they wanted repairing was by his own neglect Pl. Co. 16. b. 4. in Fogassaes case 38. In Fogassaes case in the Commentaries Not weying Woad the not weying of the Woad is referred to the Collector And therefore the Collector shall not by his neglect take advantage in the Kings behalfe of the not weying thereof and by that meanes cause Fogassa to forfeit the same Dyer 30. 205. 28 H. 8. Dyer 42. 9. c. 30 H. 8. 39. The Condition of an Obligation was this Obligation to enjoy peaceably That the Obligor should surrender certaine Copyhold-land and also that he should suffer the Obligee and his heires peaceably to enjoy the Land without the interruption of any The Defendant pleads performance and also that the Plaintiff did peaceably continue the Possession thereof according to the condition for a certaine time and that afterwards the Lord for rent arreare in the Plaintiffs time entred according to the custome for the forfeiture Judgement fâ—action and this was held a good Plea because the reason why the Plaintiff did not enjoy the Land was caused by his own act which in this case shall not worke to his advantage So if the Obligee had been Tenant at the Common Law and had ceased the Obligation had been saved for that it was the act of the Plaintiff himselfe 148. And therefore the Law of it self prejudiceth none Distresse 1. Any goods may be distrained for damage-feasant Co. Inst parâ— 1. 47. a. 4 by reason of the necessity See Max. 110. Ex. 4. and such Distresse may also be made in the night time for the same reason Vide M. 128. E. 2. Howbeit for rent nothing can be distrained in the night time or which cannot be rendred in as good plight as it was in at the time of the Distresse taken as sheaves or shocks of Corne or the like cannot be distrained for rent because when a Distresse is made for rent it is in the custody of the Law and repliviable and during the time it so remains the Law will not suffer the owner thereof to suffer prejudice by the detainer and in such case there is no such necessity but that the Distresse may be made in a seasonable time and of convenient goods Howbeit Wagons or Carts loaden with graine Horses and all may be distrained for rent because they may be restored in the same condition they were in when they were taken And yet Beasts belonging to the Plough averria carucae shall not be distrained nor any Vtensils or Instruments of a mans Trade or Profession as the Axe of the Carpenter the Books of a Scholler c. while other Beasts or Goods which Bracton calls animalia or catalla otiosa may be distrained for that were un-charitable and an injury to the publique whereof the Law if possibly it may be otherwise will not be guilty Vide plus ubi supra Waste against Guardian 2. If the Guardian doth waste Co. ibid. 54. a. 2. and the heire within age brings an Action of waste the Guardian shall lose the Wardship but if the heire bring an Action of waste at his full age he shall then recover treble damages for when the Law at his age of one and twenty years takes away from him his advantage of having the Forfeiture of the Wardship in liew thereof it gives him treble damages because otherwise the Guardian might do him an injury and make him no recompence for it for then
such a Husband as would commit Waste But if a stranger commit the Waste without the consent of the Baron that is no Forfeiture because it cannot be then imputed to her folly Co. l. 4. 50. a. 4. in Andrew Ognels case 28. When a thing is due in right and truth Exposition of that and becomes remedilesse by no default in the party to whom it is so due but by the Act of God as by the death of the party or the like In such cases Acts of Parliament which are made to give remedy in such cases ought to have a favourable construction which may extend to advance the remedy proportionably to the mischeif and defect in Law Arrearages recoverable by Executors according to the meaning of the makers thereof And therefore if a man grants a Rent-charge out of his Land and after aliens the Land to a stranger who lets it at will to another the rent is arreare and the Grantee dyes In this case the Executors of the Grantee may distrain for the arrearages by the Statute of 32 H. 8. c. 37. And that the words of that Statute are That it shall be lawfull for the Executor c. to distrain for the arrearages c. upon the Lands so long onely as they remain in the Seisin or Possession of the Tenant in Demesne who ought immediatly to have paid the Rent or of any other claiming by and from him c. Here by the words of this Statute the Executors may onely distrain the Grantor or his immediate Grantee by and from being in the Conjunctive Yet in the case above they may distraine the Tenant at will and the word and shall be taken for or to the end the Lessee at will may be understood to derive his estate from him and so to be comprehended within the purview of that Statute for the reason above alleadged Clergy Appeale 29. By the Statute of 3 H. 7. c. 1. Holcrofts case alleadged in Wrote and Wigges case Co. l. 4. 46. b. An Appeale cannot be brought against the Felon after Clergy had but by consequence before Clergy it may And yet if a Felon be indicted and upon his tryall confesses the fact and prayes Clergy and the Iudges take time and will be further advised and then an Appeale is brought In this case the act of the Court to be advised as to the allowance of the Clergy shall not prejudice the party especially in case of life there being no default in him why he had not his Clergy when he prayed it Benefice Laps 30. If a Clerke be presented admitted and instituted Co. l. 4 79. b. 3. in Digbies case to a benefice with cure above the value of 8 l. and after and before induction to the first he accepts another benefice with cure and is thereunto inducted In this case the first is void by the Statute of 21 H. 8. for the words of the Statute are If any parson having one benefice with cure c. accept and take one other c. and he that is instituted to a benefice is sayd in Law to accept and have a benefice Howbeit although by such institution to the second benefice the first is void by the ecclesiasticall Law without any deprivation or sentence declaratory yet no laps shall in this case incur against the Patron without giving notice to him F. N. B. 35. h. no more then if the Church had become void by resignation or deprivation and yet the Patron may take notice thereof if he please and may present according to the said constitution but he is not bound to take notice thereof at his perill It is otherwise if he had been inducted for then he is to take notice at his perill because the avoydance after induction is declared by act of Parliament whereunto every one is party per Popham totam Curiam Co. l. 5. 13. b. The Countess of Salops case Waste Tenant at will 31. Tenant at will shall not be charged for permissive waste for it is not in his default but in the Lessors he having an uncertaine terme Emblements sowne 32. Tenant for life Remainder in fee Co. l. 5. 85. a. In Henry Knivets case the Tenant for life lets for years the Lessee for years is ousted and the Tenant for life disseised the Disseisor lets for years and his Lessee sowes the Land the Tenant for life dyes the Remainder in fee enters the Lessee of the Disseisor carries away the graine and the Remainder in fee brings an action of Trespasse And in this case it was adjudged that because the Lessee of Tenant for life could not know the end of his terme he had right to the Land and by consequence to the graine as things annexed to the Land and albeit by the death of the Tenant for life his Interest to the Land determined yet the Land being sowen before the death of the Tenant for life his right to the emblements remaines Execution of the body not valuable 33. Vpon a Iudgement in debt Co. l. 5. 86. b. 4. c. in â—lunfeilds case after the Plaintiff hath pursued an Elegit he cannot have a Capias ad satisfaciendum against the body because he hath made his election which he cannot waive so long as the Defendant lives neither yet can he have an Elegit after the party is taken upon a Capias ad satisfaciendum returned serv'd or after the Defendant is in Prison thereupon Howbeit if in such case the party dye in Prison which is the Act of God and can do no wrong the Plaintiff may have recourse to his Elegit or take some other course untill he be satisfied for his death is not the Plaintiffs fault So if there be two bound in an Obligation joyntly and severally and the Plaintiff hath Iudgement against them both and casts them both into Prison out of which one of them escapes and so the debt as to him is discharged and the Plaintiff is to have his remedy against the Sheriff Here albeit the debt seemes to be discharged against the other also because they were joyntly bound and it was but one intire debt yet the other remaining in Prison shall not have his Audita querela but shall there continue untill the whole debt and damages be fully satisfied because corporall Imprisonment is not valuable satisfaction of the debt and it was not in the Plaintiffs default that he did escape Co. l. 5. 10. a in Spencers case 34. Vpon a Writ brought by Journeys accounts A Writ by Journeys accounts Diversity if the first Writ abated by the default of the Demandant himselfe as by his mis-information of the name of the Tenant or of the Towne c. in such case the Demandant shall not have a Writ by Journeys accounts as the Books are in 48 E. 3. 21. 14 H. 4. 23. 22 H. 6. 62. 13 H. 4. Executors 118. But if the Writ abate by the default
588 589. Co. ibid. 323. b. 3. 3. If my Tenant who payes me a Rent-service in grosse Rent paid to a stranger atturnes and payes it to a stranger this shall not put me out of possession of the Rent albeit the stranger die and a Descent is cast for still I may distraine my Tenant for all in arreare and Nemo redditum alterius invito Domino precipere aut possidere potest Release of warranty 4. If one enfeoff two with warranty Co. ibid 393. a. 1. and the one release the warranty yet the other shall vouch for his moyety A Donative 5. If the Patron of a Church Prebend Chantery Chappell c. Co. ibid. 344. a. 2. Donative doth once present to the Ordinary and his Clerk is admitted and instituted it is now become presentable and shall never be Donative after and then also Laps shall incur to the Ordinary as it shall of other Benefices presentable but a Presentation to such a Donative by a stranger and admission and institution thereupon is meerly void Debt Execution 6. If the Defendant in debt dye in execution Co. l. 5. 86. b. 4. in Blumfeilds case the Plaintiff may have a new execution by Elegit or Fieri facias because the Plaintiff shall not be prejudiced nor the Defendant take benefit by the act or tort of the Defendant in not paying his debt when no default was in the Plaintiff he having pursued the due and ordinary course of Law Lord Mesne and Tenant 7. The King is Lord A. Mesne Co. l. 6. 6. a. 1. in Sir Jo. Molyns case and B. Tenant of the Mannor of D. B. commits treason and after Attainder an Office is found and the Mannor seised into the Kings hand afterwards the King grants the Mannor to C. and his heirs Tenendum de nobis heredibus successoribus nostris aliis capitalibus dominis feodi illius per servicia vide debita de jure consueta These are sufficient words to create a tenure in the Mesne as it was before the Attainder and Forfeiture and the tenure of the Mesne is thereby preserved for it is against reason and equity that the Mesne who did no wrong should lose his services Seisin of rent 8. Where payment of a rent by a Bayliff or Tenant for life Co. l. 6. 59. a. 4. in Bredimans case for years or at will workes a speciall prejudice to the Master or Lessor it shall not be accounted suffcient Seisin thereof as if the Lord hath not had Seisin of his rent within sixty years and the Tenant makes one his Bayliff generally of his Mannor In this case the Bayliff cannot without expresse command of his Master pay this remedilesse rent to the Lord or if he do it otherwise it worketh no Re-seisin thereof so it is also if the Tenant for life for years or at will pay such a rent without order of the Tenant of the Frank-tenement A grant without Attornement 9. If a man be seised of a Mannor part in Lease for life Co. l. 6. 68. a. 1. in Sir Moyle Finches case and other part in Lease for years and he levy a Fine to A. to the use of B. in taile with divers Remainders over In this case B. shall avow for rent or have an Action of Waste without Attornement for when a Reversion is setled in any in Iudgement of Law and he hath no possible meanes to compell the Tenant to atturne and no Laches or default in him in such case he shall avow or have Action of Waste without Attornment for the Rule is Quod remedio destituitur ipsa re valet si culpa absit Quare Impedit abate 10. A Quare Impedit against the Bishop and Incumbent Co. l. 7. 25. b. 4. in Halls case without naming the Patron shall abate for otherwise the Patronage shall be in that case recovered against him who hath nothing in the Patronage and it is against reason that he who is Patron should be dispossest and ousted of his Patronage when he is a stranger and no party to the Writ No damage without notice 11. A. by a writing purporting his Will Co. l. 8. 92 a. 3. in Frances case deviseth Land to B. and his Heires but afterwards without the knowledge of B. enfeoffs C. to the use of B. for life with divers Remainders over provided that B. disturbe not the Executors of A. from carrying away the goods A. dyes B disturbs the Executors the next in Remainder enters upon B. into the Land In this case albeit B. had made disturbance against the words of the Proviso yet he shall not thereby forfeit his terme without notice of the Condition for none shall lose any Estate or Interest which he lawfully hath without some act or default in himselfe and therefore in this case in as much as B. was a stranger to the Feoffment he shall not lose his estate without notice given him of the Proviso Quod nostrum est sine facto sive defectu nostro amitti seu in alium transferri non potest which accords with the opinion of Pophani in Mallories case in the 5. Report 113. b. that the Feoffee of Land or bargaine of a Reversion by Deed indented and inrelled shall not take advantage of a Condition for non-payment of rent reserved upon a Lease upon Demand thereof Co. l. 5. 113. in Mallories case without giving notice thereof to the Lessee The like 12. Co. l. 8. 92. a. 4. in Fraâ—ces case If the estate of the Lord of a Mannor cease by Limitation of an use whereby the use and estate thereof is transferred to another the demand of the rent of a Copy-holder who denies to pay it to him causeth no Forfeiture without giving notice to the Copy-holder of the alteration of the use and estate And so it was adjudged Hill 1. Jac. in Trespasse inter Beconshaw Plaintiff and Southcote and others Defendants So likewise the Bargainee of a Mannor by Deed indented and inrolled shall not take advantage of a Forfeiture of a Copy-holder for denyall of payment of rent without notice to him given of the bargaine and sale for the Law will never compell a man to take notice of acts done amongst strangers Co. ibid. 93. a. 1. or of any uncertainty upon paine of forfeiting a mans Estate or Interest but in such cases notice ought to be given to those that are to suffer the losse It is otherwise when a man binds himselfe to do a thing as to performe an Arbitrement to pay the ovus which such an Auditor assigned shall charge him withall or the like for in such case he takes upon him to doe it Error in a Fine 13. A Fine was levyed of a Mannor and other Lands Co. l. 5. 43. Bohuns case to the value of twenty Marks per annum so as the Kings-silver was forty shillings which was paid but in
with his attornement to the said Duke and after the Duke grants it over to E. 6. in fee by deed enrolled and doth not alleadge expressely that Sir Richard Sackvile granted the reversion by deed but generally quod concessit reversionem hadendam in feodo ad quam quidem concessionem idem querens se inde Atturnavit And in this case the Count per Dyer was good without saying per cartam and without producing it into Court because the Farmer was a stranger to the deed or grant and had not the power of it for that it belonged not to him neither did he convey any title to him under it T. 17. H. 6. Rot. 121. So in an Assise the Plaint was made of Land and rent and the tenant conveyed them unto him by the grant of A. in taile the remainder to the King in fee and prayed Aide of the King without shewing the deed and without saying concessit tenementum per cartam habuit Auxilium c. Feomedon 28. In a Formedon in Reverter the doner need not shew the pedigrees of the issues of the donee nor who was last seised Dyer 216. 56 4. Eliz. because he is a stranger to the pedigree and by intendment cannot come to the knowledge of it It is otherwise in a Formedon in discender Quaete in Remainder Appeal 29. The Lessee of a Parson brings an Ejectione firmae Dyer 240. 46. 7. Eliz. the defendant pleads that the parson was deprived the Plaintiff saith that the parson hath appealed to the Arch-Bishop of Canterbury in Curia sua prerogativa de Arcubus and because the words of the Statute of 24. H. 8. 12. are the appeal that shall be to the Arch-bishop of the Province or c. without limiting any Court in certaine the Defendant demurred And these words to the Arch-Bishop of Canterbury were held sufficient because of substance c. And in this argument although it appeared by the Civilians that the Arches were not the Praerogative Court yet because the Defendant did not shew it but demurred generally the Temporall Iudges were not bound to take notice of their Iurisdictions Formedon in Rem 30. In a Formedon in Remainder brought upon a Remainder in use after the Statute of 27. H. 8. It was held by the Justices Dyer 277. 58. 10. Eliz. that the demandant need not shew the deed of the remainder 1. because in this case the remainder might be created without deed 2. for that the deed did appertaine to the feoffees and not to Cestuy que use and therefore might not be in his power to produce Hob. 51. Holmes and Twist 30. A. being possest of 10 tunne of woad sels to B. one tunne thereof Assumpsit for which B. promiseth to pay him according to such rate as he should sell the rest for A. sels the rest after the rate of 23 l. the tunne In this case A. shall not recover the 23 l. of B. before he hath acquainted B. at what rate he sold the rest because the price is a secret thing betwixt A. and his other chapmen whereof B. is not bound to take notice as it was adjudged upon a Writ of Error in the Exchequer Chamber T. 12. Jac. Rot 1758. 152. Nor to do that which were in vain for him to do Litt. S. 103. Co. Inst pars 1. 79. a. 2. 1. If an heire female be married within the age of 14. in the life of her ancester and the ancester die she being still within the age of 14 Tender of marriage the Lord shall have but the ward of the land untill her age of 14 and shall not within the two years after tender her marriage according to the Statute of Westminster 1. cap. 22. for that is without the case of the Statute it being in vaine for the Lord to tender her marriage when she is already married Natura non facit vacuum nec Lex supervacuum Litt. S. 179. Co. ibid. 119. a. 3. 2. If a villaine purchase a reversion Claime by Lord. the Lord after attornment ought to claime it upon the land to entitle himselfe thereunto so it is also of a rent common or other inheritance issuing out of land but if a villaine purchase the seigniory or a rent common or c. issuing out of the land of the Lord himselfe it is said that the seigniory rent common c. are extinguished in the Lords possession without any claime for it is needlesse to claime them upon the Land when he himselfe is possessed of the land out of which they are issuing Co. ibid. 123. b. 3. 3. A villain shall not have an appeal of Robberie against his Lord Appeal Lord and Villain for that the Lord may lawfully take the goods of the villain as his owne and then it would be in vaine to bring an appeale against the Lord for taking his owne goods Litt. S. 194. Co. ibid. 126. b. 3. 4. If the Lord mayhem his villain Appeale of mayhem he may be indicted for it at the suite of the King and thereupon make Fine for his offence but the villain shall not have an appeale of mayhem against his Lord because in such appeale he shall recover onely damages which the Lord after execution may take againe and so the Iudgement would become inutile and illusorie and sapiens incipit a fine And the law never giveth an action where the end of it can bring no profit or benefit to the Plaintiff Litt. S. 273 Co. ibid. 178. b. 4. 5. A man seised of 30 acres of land of equall value Hochpot and having two Daughters gives 15 acres with one of them in frankmarriage and dies and the other 15 acres descends to the other Daughter In this case there shall be no casting into hochpot because the lands were of equall value at the time of the partition for it were in vaine to put them into hochpot being equall no alteration since by the act of God or otherwise whereby the lands are bettered or impared being to be had in consideration Co. ibid. 19â— b. 1. 6. If there be two tenants in common of a rent as money graine Tenants in common or any severable thing and they be disseised thereof they shall bring severall assises for the recoverie thereof because they have it by severall titles Howbeit if the rent be a Hawke horse or any other intire thing which cannot be severed they shall joyne in an assise for it because the Law will never enforce a man to demand that which he cannot recover and a man cannot recover the moitie of an Hawke horse or the like Lex neminem cogit ad vane seu inutilia Co. ibid. 218. a. 4. 7. If I grant a rent charge in fee out of my land upon condition Claime not needfull there if the condition be broken the rent shall be extinct in my hand because I that am in
and put to a right because he that hath the estate in him cannot be put to his Action Entry or Claime for that he hath already that which Action Entry or Claime can vest in him or give him And therefore in vaine was the bargaine and sale and Fine when they could not alter the estates of them in Remainder Co. l. 10. 90. a. 4. in Doctor Leyfields case 19. Colour shall not be given in any Action Colour to the Plaintiff where the Plea goes in bar of the right for it were in vaine to give colour of right and to bar it after As in Assize or Writ of Entry in nature of an Assize if collaterall Warranty be pleaded and the Defendant relye upon it or if an Estoppell be pleaded or Fine levyed with Proclamations c. there is no need of any colour to be given because the Plaintiff is barred albeit he had right So it is also where the Plaintiff conveys the title unto him by Letters Patents of the King or by Act of Parliament for that bars the right c. it is otherwise where the Possession is onely barred c. vide pl. ibid. P. C. 8. b. 3. in Fogassaes case 20. When a man is not bound to doe a thing Not tyed to answer in a Plea concerning it he need not make answer thereunto as in Fogassaes case exception was taken for that the suerty was not named that was bound for answering the custome and it was said that because the Statute speaks of no surety and the agreement might be good without surety it had been in vain to speak of it or to make answer thereunto and thereupon that exception quasht Death not traversable 21. In a Formedon in Reverter or Remainder P. C. 32. b. 1. Colthrist versus Bevishin a man shall not shew the death of the particular Tenant because it is but a Conveyance and not traversable nor issuable So in Colthrist and Bevishins case the Defendant shall not shew the deaths of Henry and Elenor Bevishin because the Plaintiff Colthrist should have traversed it and said that they were alive he should confesse that he had not title to the Land before their lives and would have destroyed his own Action And therefore in regard their deaths were not traversable it was in vaine for the Defendant to shew it by consequent he shall not be compelled to do it Covin 22. A man need not shew any speciall cause of Covin when it is apparent P. C. 49. b. 2. in Wimbish and Talboies case Ibid. 55. b. 3. as when Feme Tenant in tail for her Ioynture by Covin appeares in a Formedon in Remainder brought against her by one that pretends title in Remainder and she appeares the first day without Essoine View c. and Iudgement is had against her by nihil dicit here the Covin is apparent and need not be specially shewed for it is in vaine to shew that which is apparent of it selfe So it is a vaine thing to aver that an Horse bought which wants eyes is blind when it is apparent that he must be blind when he wants eyes If the Tenant enfeoff his Son within age by collusion the Lord shall seise him for his Ward and shall not be forced to shew this Collusion in speciall causa qua supra Pretenced titles 23. In an Action upon the Statute of 32 H. 8. 9. against buying pretenced titles P. C. 81. a. 4. in Partridges case against Strange and Croker the Plaintiff need not aver the title or right to be pretenced because the Statute declares and intends the title to be pretenced when neither his Ancestors nor those from whom he claimes have injoyed the Land in Possession Reversion or Remainder nor received the rents or profits thereof for a yeare before the purchase thereof and therefore because it were in vain for him to aver the pretenced title because the Statute makes it so he shall not doe it 153. Non licet quod dispendio licet Surrenders 1. M. Leases for twenty one years to S. and is bound to make a new Lease to S. upon surrender of the old Co. l. 5. 21. a. 4. in Sir Antohny Maines case M. Leases to another for eighty years by Fine and S. brings an Action of debt upon the Bond In this case albeit S. may surrender and ought to do the first act viz. to surrender yet M. hath forfeited his Bond although S. never surrender for S. shall not now be forced to surrender because if he should surrender M. cannot now make him a new Lease which w s the effect and end of the Surrender for by such Surrender S. will lose his old terme without possibility of having a new one And Non licet quod dispendio licet Parson not to â—esigne 2. I. Parson of the Church of G. was bound in an Obligation to the Prior of E. to resigne his Church to the Prior for a certaine Pension Co. l. 5. 21. b. 1. ibid. 14 H. 4. 19. a. as it should be agreed the Parson and Prior agree for a Pension of C. s. yet the Parson refused to resigne And 14 H. 4. 19. a. it was the opinion of all the Court that albeit they were agreed of the Pension yet the Parson was not bound to resigne untill he might be sure of his Pension and that could not be without Deed And therefore in such case the Parson was not bound to resigne untill the Prior should â—ender a Deed of the Pension whereby he might be sure 〈◊〉 it 154. It favoreth Truth Faith and Certainty Vide Max. 41. â—9 Co. Inst pars 1. 139. a. 3. 1. Regularly upon a nonsuit the Demandant or Plaintiff may againe commence an action of like nature c. Howbeit in an Attaint Nonsuit in Attaint peremptoria if the Plaintiff after apparance be nonsuit it is peremtorie and he is thereby barred from ever bringing an attaint against the first iury againe and the reason is for the faith that the Law gives to the verdict and for the terrible and fearefull judgment that should be given against the first jury if they should be convicted and therefore upon the nonsuit the Plaintiff shall be imprisoned and the pledges amercied Vide infra 11. Co. ibid 227. b. 3. Co. ibid b. 4. L. S. 366. 2. A speciall verdict or at large may be given in any action A speciall verdict and upon any issue be the issue generall or speciall because the truth of the cases may be the better discovered and discussed and justice and right donâ— so if a man seised of lands in fee le ts them for life without Deed rendring rent upon condition of re-entry upon non-payment of the rent whereupon if the lessor enter and the lessee bring an assise of Novel Disseisin the jurors may find the matter at large and the Iudges ought to adjudge it for the tenant albeit
False plea in Dower 2. In a Writ of Dower Co. ibid. 33. a. 1. if the Tenant being in by discent plead a false Plea he shall answer all the damages from the time of the Husbands death albeit for some part of that time he enjoyed not the Land nor received any profit thereof As it appeares in a notable Record between Belfeild and Rowle Mich. 8 9. Eliz. Rot. 904. in Com. Ba. In which Suite the Tenant as to parcell pleads non tenure and for the residue detainer of Charters upon which Pleas they were at Issue and both Issues found by the Iury against the Tenant and found further that the Husband dyed seised such a day and yeare and had Issue a Son and that the Demandant and the Son for six yeares after the decease of the Husband together took the profits of the Land and after the Son such a day and yeare dyed without Issue after whose decease the Land discended to the Tenant as Vncle and Heire to him by force whereof he entred and took the profits untill the purchasing of the Originall Writ and found the value of the Land by the yeare and assessed damages for the detaining of the Dower and costs of Suit upon which Verdict after much debating the Demandant had Iudgement to recover her damages for all the time from the death of her Husband without any defalcation And this was cheifely caused by his false Plea whereas he might have avoyded the answering of the damages for the six yeares if he had truly pleaded according to the truth of his case Assignment of Dower by a wrong-doer voidable 3. If assignment of Dower be made by any Disseisor Abator Co. ibid. 35. â— 2. in Bredi mans case Co. l. 6. 58. a. 1. Intrudor or any wrong doer in Lands and Tenements if they came to that estate by collusion and covin between the Widow and them albeit the Widow hath just cause of Action and the Assignment be indifferently made after Iudgement by the Sheriff of an equall third part yet shall the Disseisee c. avoid it for covin in this case shall suffocate the right that â—â—pertained to her and so the wrongfull manner shall avoid the matter that is lawfull See Pl. Co. 51. a. Rent-charge extinct by covin 4. If a man grant a Rent-charge out of two acres Co. ibid. 148. b. 3. and after the Grantee recovereth one of the Acres against the Grantor by a title Paramont the whole rent shall issue out of the other Acre but if the Recovery be by a faint title by Covin then the rent is extinct for the whole because he claimeth under the Grantor Forfeiture 5. If Tenant for life plead covinously Co. Inst pars 1. 252. a. 1. to the disherison of him in the Reversion this is a Forfeiture upon Record Avowry Stat. 11 H. 8. 19. 6. The Stat. of 21 H. 8. 19. which gives to the Lord Avowry upon the lands without naming any person certain being made to suppress fraud Co. ibid. 268. b. 2. in the case of Avowry Co. l. 9. 22. a. shall be taken with equity And therefore where the words of the Statute be If the Lord distraine upon the Lands and Tenements holden yet if the Lord come to distrain and the Tenant chase away his Beasts which were within view out of the Land holden and there the Lord distraine Albeit the Distresse be in that case taken out of his fee and Seigniory yet it is within the said Statute for in Iudgement of Law the Distress is lawfull and as taken within his fee and Seigniory because that Statute being made to prevent fraud and covin admits an equitable interpretation as aforesaid So it is also if his Bayliff do it tamen quaere de hoc but for Damage-feasant the Distresse must be taken upon the Land c. Attaint 7. Perjury which is a falsehood or fraud in a high degree is greivously punished by the common Law Co. ibid. 294. b. 2. And therefore in an Attaint which is a Writ that lyeth where a false Verdict in Court of Record upon an Issue joyned by the parties is given if the petty Iury be attainted of a false oath they are stained with perjury and infamous for ever for the Iudgement at the common Law importeth 8 greivous punishments 1. Quod amittat liberam legem imperpetuum viz. that they shall be infamous for ever and never be received to be a witness or of a Iury 2. Ferisfaciant omnia bona catalla sua 3. Terrae tenementa in manus domini Regis capiantur 4. Uxores liberi extra domos suas ejicerentur 5. Domus suae prostrentur 6. Arbores suae extirpentur 7. Prata sua urentur 8. Corpora sua carceri mancipentur And the Law esteemed perjury in this kind the more odious and afflicteth the greater punishment thereupon because the tryalls of all Actions reall personall and mixt depend upon the oath of twelve men and prudent Antiquity inflicted a strange and severe punishment upon them if they were attainted of falsehood and perjury ut poena ad paucos metus ad omnes perveniat for there is miserecordia puniens and there is also crudelitas paucens But this punishment is altered by the Statute of 23 H. 8. cap. 3. Co. ibid. b. 3. 8. The Statute of 23 H. 8. cap. 3. made to prevent perjury and false Verdicts shall be taken with equity for 1. where the Statute saith Attaint Stat. 23 H. 8. 3. that the party greived shall have an Attaint against the party who shall have Iudgement upon the Verdict yet the Attaint shall be maintained upon that Statute against the Executors of that party Howbeit it must be between party and party 2. In the Kings Bench or Common Pleas 3. Consider what Pleas may be pleaded in an Attaint by force of that Statute and what not Litt. S. 675. 9. If a man let Land to a Feme for life A false Recovery and afterwards one sues a feined and false Action against the Feme and recovers the Land against her by default so as the Feme may have a Quod ei deforceat according to the Statute of West 2. cap. 4. The Law gives so much respect to a Recovery Co. ibid. 356. a. 4. 362. a. 1. Co. l. 1. 15. b. 3. that it workes a Discontinuance so as the Reversioner shall not have an Action of Waste c. Howbeit if Tenant for life suffer a common Recovery or any other Recovery by covin and consent between the Tenant for life and the Recoveror this is a Forfeiture of his estate and he in the Reversion may presently enter for the Forfeiture See the Statute of 14 Eliz. cap. 8. concerning this matter and Co. l. 1. 15. Sir William Pethams case l. 3. 60. c. Litt. S. 678. 10. If the Baron discontinue the Land of the Feme Covin
Copyhold-lands are within the Statute of 32 H. 8. 9. for the Statute saith If any bargaine buy or sell c. Pretenced titles of Copiholds any right or title in or to any Lands or Tenements c. and Copyholds are Lands in and to which right or title may be had and made and they are included in that act to avoid Suites Maintenance and Champerty and by consequent fraud and deceit per Wray And note that in Partridge and Crokers case in Pl. Co. 76. A Lease for years is adjudged within that Act. Co. l. 5. 14. b. 2. 20. By all Statutes made to prevent and suppresse fraud Fraud The king bound the King is bound albeit he be not especially named because Truth Iustice and Religion are the Supporters of his Crowne and Diadem In the case of Ecclesiasticall persons Co. l. 5. 60 a Gooches case 21. In Debt upon an Obligation against the heire Fraudulent conveyance void the Defendant pleads riens per descent the plaintiff maintaines assets in Com. S. the Defendant saith that before the action commenced he had enfeoffed A. of those lands against which the Plaintiff alleadged and proved that the feoffment was by fraud unto which it was urged that the fraud ought to have been specially pleaded and could not be brought in evidence but it was adjudged per totam Curiam that it might be given in evidence and needed not to be specially pleaded 1. because the Statute of 13. Eliz. 5. provides generally that the estate as to the creditor shall be void and Acts of Parliament made for prevention and Suppression of fraud ought to have a benigne interpretation 2. If that matter ought to be pleaded it would prove mischievous to Creditors and would tend much to the mainteinance and increase of fraud and covin for fraud and covin because they are odious are so privily hatched in an hollow tree in arbore cava opaca and so artificially contrived and concealed that the partie grieved hath no meanes to find or know them and then to force the Plaintiff who is a stranger to it to plead the feoffment whereof he hath no notice and that it was done by fraud c. would be mischievous and against Law and reason and thereupon Iudgment was given for the Plaintiff Co. ibid b. 22. A. seised of land in fee makes a fraudulent conveyance to the intent to deceive and defraud purchasers contrarie to the stat of 27. The like Eliz. 4. continues in possession and is reputed as owner B. enters into communication with A. for the purchase thereof and by accident B. hath notice and intelligence of the fraudulent conveyance and notwithstanding that concludes with A. and takes his assuranre from him In this case B. shall avoyde the said fraudulent conveyance by the said Act notwithstanding such notice for the Act hath by expresse words made the fraudulent conveyance void as to the purchasor and in as much as it is within the expresse purview of that Statute it ought to be so taken and expounded in suppression of fraud per Wray but see the like case agreed and resolved per totam Curiam P. 3. Jac. in the case of one Standen Co. l. 5. 69 b. 4. in Burtons case 23. If A. lend 100 l. to B. upon the first of July 1653 and B. Usury grants to A. 20 l. per annum out of the Mannor of D. to begin to be paid at Christmas twelve Moneths after upon Condition if B. pay 100. pounds to A. the first of July 1654. that then the Annuity shall ceâ—se This is not within the Statute of usury but if it had been agreed betwixt them that notwithstanding such power of redemption the 100 l. should not be paid the first of July 1654. and the clause of redemption was inserted on purpose to evade the Statute that had been an usuriâ—us bargain and contract within the Statute Usury 24. A. lends B. 100 l. to pay 20 l. for the Loan of it for one yeare Co. ibid. per Popham if the Son of A. shall be then living this is Vsury within the Statute for if this shall be out of the Statute by reason of the uncertainty of the life the Statute will be of little effect because by the same reason that hee may add one life he may adde more and so he may evade the statute at pleasure that Liberty being like a Mathematicall line viz. Divisibilias in indivisibilia False deed 25. If a Deed be pleaded and shewed in Court and denyed Co. ib. 74. b. 4. in Wymarkes case then it shall alwaies remaine in Court to the end that if it be found not his Deed it should be damned for the falsity thereof Fraudulent conveyances 26. The statute of 11 H. 8. 5. Co. ibid. 77. a. 4. in Boothes case being made to suppresse Fraud and Deceit shall be taken and interpreted beneficially And therefore whereas the words of that Act are that where Tenant for life or yeares have demised or granted to the intent that those in Reversion viz. their Lessors their Heires or Assignes should not know their names and afterwards the first Tenants continually occupy the Lands c. and make Wast c. It is ordained c. that he in Reversion in such case shall maintain a Writ of Wast against the said Tenants for life or yeares yet every Assignee of the first Lessee mediate or immediate is within the sayd Act albeit not therein mentioned Also he in Remainder is within the Act as well as he in Reversion albeit both in the Preamble and Body of the Act there is only mention made of him in Reversion Profits 27. In Formedon the Tenant pleads non-tenure Co. ibid. b. 2. the Demandant saith that he hath made a Feoffment to persons unknown with purpose to defraud him of his Tenancy and still takes the profits In this case the pernancy of the profits and not the Feoffment is traversable 4 H. 7. 9. Warranty 28. The Father Tenant for life Remainder to the Son Co. l. 5. 80. b. 2 leases for yeares to A. with a designe to bar the Son A. enfeoffs B. to whom the Father releaseth with Warranty and dies In this case the Son is not barred by this Warranty being a Warranty that begins by disseisin for albeit it is said in our bookes and true it is that Warranty is much favoured in Law because it extends to establish him that is the Ter-tenant in possession yet when Warranties are mixt with Covin which is so odious and so much abhorred in Law they loose not only their favour but force also for Covin is like poyson that infects every good thing with which it is mixt c. Feigned arrest 29. The entring of feigned Actions in the Counter Co. l. 6. 54. b. 2. in the Countesse of Rutlands case upon pretence afterwards when the Serjeants have the Prisoner in
made twenty moneths after yet this Warranty begins by Disseisin so the intent maketh the act to enure otherwise then it would do for when covin is mixt with the truth it makes all unsavory So in Wimbish and Talboies case in the Com. Eliz. Talbois joyning by covin with W. Talbois in being taken by nihil dicit he was to lose her estate by force of the Stat. of 11 H. 7. and the Issue in tail might before that Statute falsifie a feined Recovery by covin 38. The 11 H. 7. 20. Pl. Co. 59. b. 1. ibid. and all other Statutes made for the suppressing of fraud shall be extended by equity the words of the Statute of Marlebridge cap. 6 are de his qui primogenitos haeredes suos infra aetatem existentes feoffare solent and yet if the first be dead and he enfeoff his second Son which is his heire that is within the equity of the Statute or if he levy a Fine to him which is matter of Record that is also within the equity of the Statute albeit the Statute speaks of Feoffment And the reason is because covin is alwayes abhorred in our Law and Statutes made for the suppression thereof are made for the publick good and therefore shall be extended by equity In like manner 1 H. 7. cap. 1. which gives a Writ of Formedon in Remainder against the perner of the profits was made for the suppression of covin for a Feoffment made to persons unknown to defraud those that right had Pl. Co. 81. b. 4. in Partridge and Stranges case was great covin and deceit in the Law and therefore a Scire facias to execute a Remainder shall be maintainable against the pernor of the profits as it is adjudged in 14 H. 7. fo 31. And to these Statutes and the like made for the suppression of fraud and covin are alwayes to be extended by equity and to have a favourable interpretation and construction And therefore the Statute of 32 H. 8. cap. 9. shall be also extended by equity Co. l. 5. 80. a. in Fitzharberts case being ordained for the suppression of fraud and covin in buying of pretenced titles so that Leases for years as well as higher estates shall be intended by it Warranty 39. The Father Tenant for life the Remainder to the Son and Heire apparent in tail Leases to A. for years with intent that A. should enfeoff B. unto whom the Father should release with Warranty all which is done accordingly This is a Warranty that commenceth by Disseisin for albeit the Warranty be not made at the time of the Disseisin which was upon the Feoffment to B. yet by construction of Law it shall be adjudged to be Warranty that begins by Disseisin by reason of the practice and covin betwixt the confederates for if the Father had made the Feoffment to B. with Warranty and had dyed this Warranty had barred the Heire c. vide pl. ibid. â—ttaint 40. A false Verdict is a contradiction in it selfe Co Inst parâ— 1. 128. 4. and so odious in the Law that in an Attaint Outlawry in the Plaintiff cannot be pleaded in disability of the person 41. The Statute of 31 Eliz. 6. Hob. 75. to prevent Simonie is to be largely expounded though penall The King against the Bishop of Norwich 158. Jus Fraus numquam Cohabitant Co. l. 10. 45. a. 4. in Jennings his case 1. The Statute of 14 Eliz. cap. 8. Recovery by Tenant in taile doth not extend to preserve any Reversion or Remainder expectant upon an estate taile or where the Tenant for life is impleaded and Tenant in tail is vouched for the title of the Act is For avoiding of Recoveries suffered by collusion by Tenant for life c. but a Recovery cannot be said to be by collusion where Tenant in tail is in the Recovery either Tenant in Fait or Tenant in Law as Vouchee for the Law as an incident to his estate hath made the Land and all Remainders and Reversions subject to his pleasure and he hath right and power to bar them all and Jus Fraus numquam Cohabitant And therefore the title of the Act being For avoyding of Recoveries by collusion c. it cannot extend to a Recovery where Tenant in tail is party or privy Pl. Co. 51. a. 2. in Wimbish and Talboies case 2. When truth is mixed with covin that wicked hearb or covin with truth Truth Covin that conjunction and mixture makes all bitter and unsavory and goodnesse is perverted into wickednesse for they cannot continue together no more then fire and water Dyer 55. 9. 35 H. 8. 3. A Verdict is said to be veri dictum Verdict Error which ought to have truth in it and no semblance of fraud or partiality to either party And therefore if a Iury before their agreement eat or drinke at the charge of either of the parties it is good cause of Error to reverse the Iudgement upon such a Verdict for there cannot be truth in such a Verdict which hath such a badge of fraud and falsehood because such practice implyes partiality and suspition 159. Quando aliquid prohibetur fieri ex directo prohibetur per obliquum Litt. S. 361. Co. Inst pars 1. 223. a. 4. 1. If a Feoffment in fee be made upon Condition A Feoffment upon Condition that the Feoffee shall not alien that the Feoffee shall not enfeoff I. S. or any of his Heires or Issues c. this is good for he doth not restraine the Feoffee of all his power howbeit if he enfeoff I. N. with intent and purpose that he should enfeoff I. S. some held that it is a breach of the Condition So if a Feoffment be made upon Condition that the Feoffee shall not alien in Mortmaine this is good because such alienation is prohibited by Law and regularly whatsoever is prohibited by Law may be prohibited by Condition but in this case if the Feoffee enfeoff I. S. with intent that he shall alien the Land in Mortmaine it seemes to be a breach of the Condition In ancient Deeds of Feoffment in fee there was usually this clause Quod licitum sit donatorio rem datam dare vel vendere cui voluerit exceptis viris religiosis Judaeis Co. ibid. 282. a. 3. 2. In an Action upon the case Innovation prohibited the Plaintiff declared for speaking of slanderous words which is transitory and laid the words to be spoken in London the Defendant pleaded a Concord for speaking of words in all the Counties of England save in London and traversed the speaking of the words in London the Plaintiff in his replication denyed the Concord whereupon the Defendant demurred and Iudgement was given for the Plaintiff for the Court said if the Concord in that case should not be traversed it would follow that by a new and subtile invention of pleading an ancient Principle in Law that for
sometimes in the count and for want of certainty it shall abate as in 3 E. 4. A man retained in Husbandry brings an Action of debt against a Prioresse for his salary and declares that he was retained with his Predecessor and shewes not the person that retained him this count abated for the uncertainty for it might be that one who had not Warranty retained him for the Predecessor Sometimes the Count and Writ also may be generall without certainty as in Assizes but there the certainty ought to be shewed by the Replication sometimes the Writ Count and Replication may be uncertaine but then the certainty ought to appeare by the Verdict as in a Quare Impedit the value appeares not in the Count nor in the Replication but it will appeare by the Verdict for they shall assesse double damages or damages by halfe a yeare according to the value of the Church so in a Writ of Ward the Iury shall find whether the heire be marryed or not and shall assesse damages for it and yet in the Count or Replication no such matter appeares So likewise in a Detinue the value of the goods shall appeare by the Verdict c. so as certainty ought alwayes to appeare to the Court. Jeofaile 72. In debt upon an Obligation for performance of Covenants Dyer 31. 217. 28 H. 8. whereby the Defendant was bound to do and suffer to be done upon request all such things for the Plaintiffs assurance in certaine Lands as should be devised by councell the Defendant saith that he was not requested the Plaintiff replyes that his councell advised that the Defendant should seal a Release which was required to be done and that the Defendnat refused to this the Defendant rejoynes and saith that he did not refuse and that he was ready to do it And the Court said that this re-joynder was a full Jeofaile and therefore insufficient for the uncertainty for that he waved his bar viz. the request which he ought to have maintained as to have said Quod non fuit requisitus Abayance 73. When the right of Fee-simple is perpetually by Iudgment of Law in abeyance without any expectation to come in esse Co. Inst part 1. 343. a. 3. there he that hath the qualified fee and to many purposes is no more then a bare Tenant for life concurrentibus hijs quae in jure requiruntur may charge or alien it as in case of a Parson Vicar c. when the Patron and Ordinary joyne with him in the Charge or Grant for in this case at the common Law when all that had an Interest in the thing did joyne the Charge or Grant might have been thereby made certaine and infallible but where the Fee-simple is in Abeyance and albeit by possibility it may every houre come in esse yet it is altogether uncertaine when or whether ever or never that may happen In such case the Fee-simple cannot be charged untill it come in esse so as it may be certainly charged or aliened As if a Lease for life be made the Remainder to the right Heires of I.S. Here the Fee-simple cannot be charged or aliened before I.S. be dead in case I.S. dye living the Tenant for life Co. ibid 378. a. 3. but if the Tenant for life happen to dye before I.S. then is the Remainder vanished and gone because it cannot immediatly vest after the death of the Tenant for life Second deliverance 74. Vpon a second deliverance the Defendant being a Widow justifies by an estate for life if she so long continue a Widow Dyer 142 51 c. 3 4. P. M. and averreth not that she is the same woman to whom the estate was made nor that she is still a Widow for which uncertainty and others concerning the place where the Cattell were taken the Plaintiff had Iudgentent c. Inquisition 75. Inquisitio capta apud D. of Land in S. Dyer 208 19. 3 4. Eliz. without shewing in what County either D. or S. is was adjudged insufficient for the uncertainty because upon a Traverse it could not be tryed for want of the knowledge where the Venue should be taken Dyer 254. b. 1. 9 El. 76. In debt for rent arreare the Plaintiff counts Debt for rent arreare that his termor devised to the Defendant the terme and dyed and that the Defendant entred and was possessed and that for arreare of rent the Action accrued to this the Defendant demurs 1. because he hath not alleadged that the Devisor made Executors and that the Defendant entred with their agreement 2. For that he saith not vertute cujus legationis the Defendant was possest for which uncertainties the Count was adjudged insufficient for if the Defendant were in of any other estate or title then as Assignee of the Lessee an Action of debt lyeth not against him for want of privity Dyer 264. 39 9. Eliz. 77. A new Assignment was in one Acre New Assignment terrae sive prati in campo vocat N. the Defendant pleads not guilty but for the uncertainty whether Land or Meadow and also because there was no abuttalls the Iury were discharged Hob. 2. Axworths case 78. In an Action upon the case by Thomas against Axworth Slander the words were This is John Thomas his writing innuendo the Plaintiff and he innuendo c. hath forged this Warrant the Sheriffs Warrant at the Suit of M. Hog against the Defendant Innuendo And in this case it was held that the Innuendo would not support the Action the word Warrant alone being of an uncertaine sense and the matter of the Action shall not be enlarged or ascertained by the Innuendo as Pox innuendo the French Pox. Vide Hob. 6. Miles case 45. Harvies case Hob. 38. Dawtries case 79. Office An office was found by Commissioners after the death of William Dawtry whereupon a Melius Inquirendum went forth and recited but thus Cum per quandam Inquisitionem captam apud Chichester c. and doth not say that it was either by Commission or Writ or before whom and it was held void for the uncertainty and the office also that was taken upon the Melius for by the Melius it ought to appeare that the first office was by warrant c. Hob. 89. Rich and Shere 80. In an Ejectione firmae the Plaintiff counts of a Messuage c. Ejectioâ—e firma with Appurtenances called Dizard in Cornewall to hold for five years the Defendant pleads not guilty whereupon the Plaintiff had Iudgement And the Defendant assignes for Error that the Plaintiff had not shewed in what Towne Parish Hamlet or place the Messuage lay but in the generall County and thereupon the Iudgement was reversed in the Exchequer Chamber 13. Jac. for here was a tryall without a Visne Hob. 90. 81. Vide Hob. 90. Keere and Owen upon an Elegit Elegit Error for omitting the Entry
the one being as ancient as the other as if a man hath a way over the Land of A. to his Franck-Tenement by Prescription time out of minde c. A. cannot alledge Prescription or Custome to stop the sayd way Co. l. 9. 109. b. 3. Meriel Treshams case 39. In Debt against an Administratrix she pleads in Bar Bar repugnant Quod ipsa plene administravit omina bona c. quae fuerunt c. quod illa nulla habet bona c. quae fuerunt c. nec habuit die impetrationis brevis c. praeter bona catalla ad valentiam of the Kings debt and of severall Recognizances by which plea she confesseth that she had sufficient in her hands to satisfie the sayd Debt and Recognizances And then she pleads further Quod ipsa nulla alia sive plura habet bona c. quae fuerunt c. Praeterquam bona catalla quae non sufficiunt ad satisfaciendum Praed seperalia debita Which is clearly and Ex diametro repugnant to what she had confest before and thereupon the sayd Bar was adjudged insufficient Co. l. 11. 80. b. 2. Lewes Bowles case 40. A Feme brings a Cui in vita quod clamat tenere ad vitam Cui in vita Contrariety and maintaines it in her Count by a gift in speciall Tail to her and her Husband and that her Husband is dead without Issue and the Writ abated for the contrariety of the Title for in the Writ she named her selfe but a bare Tenant for life whereas in her Count it appeared that she had such an Estate for life which had greater Priviledges incident unto it then a bare Estate for life hath Vide 18 E. 3. 37. Assignment of Errors Contrariety F. N. B. 21. b. 41. In a Writ of Error upon a Iudgement given in the Common Bench the Plaintiff cannot assigne for Error that the Iustices of the Common Bench did not give the Iudgement but that the Clarkes of their own heads did it Neither can he assigne for Error that the Iurors gave Verdict for the Defendant and that the Iustices entred it for the Plaintiff and gave Iudgement for him because such assignment is contrary to that which the Court doth as Iudges Remainder limited upon a contrariety 42. A Remainder limited upon a contrariety cannot be good Pl. Com. 29. b. 3. Colthrist and Bevisham as in the case of Rickill in Littleton S. 720. for when he had once made a Feoffment and vested the estate in one he could not make that estate cease as to him and cause it to remaine to another So if Land be given to a man and his heires so long as I. S. shall have heirs of his body and if I. S. die without heire of his body that then it shall remaine to another in fee this Remainder is void for the contrariety because the first estate was Fee-simple determinable upon which a Remainder cannot depend The like 43. If a Lease for life be made upon Condition Pl. Com. ibid. 32. a. 4. 34. b. 4. that if a stranger pay to the Lessor twenty pounds that then after the death of the Tenant for life it shall remaine to the stranger this is a good Remainder so if a Lease for life be made to Baron and Feme and it is appointed by the said Lease that if A. their eldest Son dye living the Baron and Feme that then it shall remaine to B. their second Son for life this is also a good Remainder for in these cases there is no contrariety because in the first the stranger shall have it expressely after the death of Tenant for life and in the other it is intendable that B. shall have the Remainder after the death of Baron and Feme But if a Lease for life be made upon Condition that if a stranger pay to the Lessor twenty pounds that then immediatly the Land shall remaine to the same stranger this Remainder is void for the contrariety because the Tenant for life ought to have it during his life during which time the stranger cannot have it Proviso repugâ—â—nt 44. C. makes B. and a Feme his Executors 19 H. 8. Dyer 4. Pl. 10. provided that B. shall not administer his Goods this Proviso is void for the repugnancy for when C. had made them once his Executors the severall powers limited to them afterwards are void because when the intent of a man who makes a Testament agrees not with the Law his intent shall be taken as void as if a man devise to H. in fee and if he dye without heire that M. shall have the Land this devise is void for the repugnancy as to M. for one Fee-simple cannot depend upon another Fee-simple by the Law Condition â—â—id 45. The Custome of London is Dyer 33. 12. 28 29 H. 8. that a man may devise his Purchase-Land in Mortmaine and a Purchasor devised by his Will that the Prior and Covent of Saint Bartholm and their Successors should have the Land Ita quod reddant annuatim Decano Capitulo Sancti Pauli 16. Marc. And if they failed of payment that their estate should cease and that then the said Deane and Chapter should have it and for the Condition broken those of Pauls entred and it seemed clear to Baldwin and Fitzh that the Condition was void for no estate could remaine after the Fee-simple given away because the Feoffor had determined his Interest and Right and then a stranger could not enter for the Condition broken but the heire ought to do it â—â—ape 46. In debt against the Sheriffs of London Dyer 66. a. 11. 3 E. 6. for an escape of a Prisoner out of Ludgate they plead that three years before Jerveis and Curteis their Predecessors suffered the same Prisoner to escape to Lambeth in Surrey he being then in their Guard in Ludgate Goale London which is impossible for the former Sheriffs could not let them go at large when he was imprisoned and in their custody at the time of the escape and then the escape ought to have been supposed in London where the Prison was for which repugnancy and other errors the Plea was adjudged void Dyer 68. b. 28. 5 E. 6. 47. An Indictment of Murder was adjudged insufficient Indictment for that the place of the assault was set down and not the place of the Murder nor these words adhuc Ibidem inserted in the Indictment in case the Assault and Murder were acted at one and the same place And this was for the uncertainty because the Assault and the Murder are of differing natures and might be done at severall places Dyer 209. 21. 3 4 Eliz. 48. A Lease is made for years upon Condition Condition repugnant that if the Lessor grant the Reversion the Lessee shall have fee the Lessor levies a Fine the Conusee brings a Quid juris
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
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 one do alien her part See Dyer P. 1 Mar. 98. b. pl. 52. Rolls Records 4 The Rolls of a Court of Record being the Records and memorials of the Iudges of the same Courts Co. ibid. 260. a. 2. import in them such incontrollable credit and veritie as they admit no averment plea or proof to the contrary And if such a Record be alleged and it be pleaded that there is do such record it shall be tried only by it self And the reason hereof is apparent for otherwise as our old Authors say and that truly there should never be any end of Controversies which would be inconvenient Howbeit during the Term wherein any Iudicial act is done the Record remaineth in the brest of the Iudges of the Court and in their remembrance and therefore in such case the Roll is alterable during that term as the Iudges shall direct but when that term is past then the Record is in the Roll and admitteth no alteration averment or proof to the contrary Fines 5 At the Common Law before the Statute of Non-claim 34 E. 3. cap. 16. after a fine levied of land Co. ibid. 262. a. 1. Littl. §. 441. if a stranger having title thereunto had not made claim within a year and a day after such fine he had béen barred for ever and the reason thereof was alleged to be Quia finis finem litibus imponebat but this is now helped by the Statute of 4 H. 7. 24. which gives 5. years after the fine and proclamations Extent 6 Before the Statute of 32 H. 8. 5. Co. ibid. 290. a. 4. Co. l. 5. 87. a. 3. in Blumfields case if an extent had been insufficient in Law there might have issued out a new extent But it appears by the Preamble of the said Statute and also by divers Books and resolutions of the Iudges that before that Statute after a full and perfect execution had by extent returned and of Record there could never be any re-extent upon any ejection And there are many inconveniences yet which are not remedied by that Statute for which see Co. ibid. fol. 289. 290. Vide supra 32 21. â—udgement final 7 Where the judgment is to be final Co. Inst par 1. 294. a. 4. there the Oath of the Grand Assise or Iury ought to be absolute and not to their knowledge as in a writ of right when the Mise is joyned upon the méer right or in an Attaint or in wager of Law for the judgement in every of these thrée is final Judgement in a Grand Assise 8 In a writ of right when the Mise is joyned upon the méer right Co. ibid. 295. b. 2. and the tenant tenders a Demy mark that the grand Assise may also inquire whether the demandants ancestor were seised in the time of the King as he had Counted In this case albeit the verdict of the Grand Assise be given only upon this last point yet judgement final shall be had thereupon so it is likewise if the tenant after the Mise joyned make default or confess the action or if the demandant be non sute and yet in none of these cases they of the Grand Assise give their verdict upon the méer right but the reason is because the Law aims at peace and quiet and that there might be an end of sutes and controversies Vide F. N B. 5. n. Hea. 9 Every plea that a man pleadeth ought to be triable for that without trial the cause can receive no end Et expedit reipublice c. Co. ibid. 303. b. 1. Co. ibid. 369. b. 1. 10 If there be tenant for life the remainder in fee by lawfull and just title Pretenced titles he in the remainder may obtain and get a pretenced title of any stranger notwithstanding the Statute of 32 H. 8 9. not only because the particular estate and the remainder are all one but for that it is a means to extinguish the seeds of troubles and sutes and cannot be to the prejudice of any Co. l. 4. 15. b. 1. in Stanhop Blithes case 11 If one tell another that he is perjured Slanderous words or that he hath forsworn himself in such Court these words are actionable because by these words it appears that he hath forsworn himself in a Iudicial proceeding but words of heat and passion as to say to one that he hath forsworn himself or that he is a Villein Rogue Varlet or the like by these or such like words an action ought not to be maintained for Boni Judicis interest lites dirimere And the rather because such frivolous actions are now more frequent than they have been in former ages Et malitiis hominum est obviandum Vide 188. 1. Co. l. 5. 77. b. Samons case 12 The plaintif and defendant submit themselves to the arbitrement of A. who awards that the defendant shall enter into bond Arbitrement that the plaintif and his wife shall enjoy certain lands quietly this award is void because the uncertainty of the sum wherein the defendant shall be bound may be an occasion of a new sute and controversie for that the Arbitrator not naming the sum he cannot assign his power to the plaintif defendant or any one else to do it Co. l. 5. 91. b. 3. in Semayns case 13 When any house is recovered by any real action Seisin or possession by the Sherif or by Ejectione firmae the Sherif may break open the house and deliver the seisin or possession thereof to the demandant or plaintif for the words of the writ are Habere facias seisinam or possessionem c. because otherwise there would be no end of such sutes and after judgement it is not in right and judgement of Law the house of the tenant or defendant Co. l. 6 7. a. in Ferrers case 14 When one is barred in any action real or personal by judgement upon demurrer confession verdict Barr in actâ—ons c. he is barred as to that or the like action of the same nature for the same thing for ever for Expedit Reipublicae c. Vide supra 93 9. Co. l. 6. 9. b. 1. in Ferrers case 15 At the Common Law before the Statute of Marlebridge Writ of Entry in the Post cap. 29. if land had been conveyed out of the degrees so as the demandant could not have a writ of Entry in the per or in the per and cui the demandant was put to his writ of right for there was no writ of Entry in the Post before it was given by the said Statute And the reason why the law was so before that Statute was quod sit finis litium and that he that right had should not be negligent but take his remedy by writ of Entry before there should be more than two alienations Co. l. 6. 45. a. 3. Higgens case 16 In debt upon an obligation the
defendant pleads Judgement barr to the bond That the plaintif hath recovered upon the same bond and that the judgement thereupon is removed by Error into the Kings Bench and was not yet reversed And this was adjudged a good plea because the judgement takes away the strength of the bond and if after judgement he might sue the same party upon the same bond he might do it infinitely and consequently the defendant might be infinitely amerced for upon every Iudgement the defendant shall be amerced and if he be a Peer of the Realm the amerciament is 100 s. and so the defendant might be infinitely amerced upon one and the same obligation which would be mischievous Et interest Reipublicae ut sit finis litium Co. l. 7. 43. Kenns case 17 A bill of reviver upon a bill of reviver shall not be suffered for the infiniteness Bill of reviver no more than a writ by Iourneys accompts upon a former writ of the same nature for so they might be had infinitely Barrettry 18 A Barrettor is in judgement of Law accounted one of the most dangerous and pernicious vermin in the Commonwealth Co. l. 8. 37. in the case of Barretry because whereas the Law endeavoureth to settle peace and amity and to suppress discord and contention he is seminator litium oppressor vicinorum suorum either by force and open Maintenance of possessions or the like or by fraud and malice under colour of Law as by multiplicity of unjust and feigned sutes Informations or the like to the end he may by that means enforce poor people ad redimendum vexationem to give him money or otherwise to compound with him c. A bitrement 19 Vpon an award albeit the parties do not discover all their differences to the Arbitrators so as they determine some C. l. 8. 98. a. 4. in Baspoles case and leave the rest undetermined yet the award is good because otherwise many Arbitrements might be avoided for the one or the other of the parties may conceal a trespass done to him or some other secret cause of action and so avoid the Arbitrement which were inconvenient for Expedit reipublicae c. Accord 20 Accords are much favoured in Law Co. l. 9. 79. b. 4. in Peytoes case because they prevent and compose sutes and controversies amongst neighbours Et concordiâ parvae res crescunt discordiâ maximae dilabuntur And therefore it was adjudged P. 3 sac rot 1033. that an Accord with satisfaction was a good plea in barr in Eden and Blakes case Fines 21 The general Statute of 32 H. 8. 36. Co. l. 11. 75. a. 1. of Fines shall bind the King though he be not named because it was ordained for the setling and quieting of estates and the prevention of debates and controversies in the Commonwealth in Magdalen College case Assets descended a barr 21 The Statute of Glocester in 6 E. 1. cap. 3. ordains Co. l. 52. b. 4. in Syms case Pl. Co. 110. Fulmerstons case that where tenant by the curtesie aliens his wives inheritance with warranty if assets descend from the heir he shall be barred for the value of the inheritance so descended and if lands after descend that then the tenant shall recover against the heir of the seisin of his mother viz. out of the residu of his mothers lands so much as the assets afterwads descended shall amount unto Here albeit at the making of this Act being in 6 E. 1. there were no intailed lands for all Inheritance was then viz. before Westm ◠being 13 E. 1. feesimple absolute or conditional yet intailed lands are since taken to be within the equity of the said Act of Gloc. but not to retain or recover the lands intailed but only the lands which should so descend because otherwise there would be occasion of new sutes and contention which the Law hates and abhorrs for if the tenant after assets descended might retain or recover the lands intailed then if the assets were aliened the issues inheritable to the estate tail might by writ of Formedon in descender recover the intailed lands again which would beget a new sute and no way answer the Intention of the said Act being indéed a good provision for féesimple lands but not for lands entailed without such a construction by equity as aforesaid And therefore in case of entailed lands so aliened with warranty the tenant shall have a Scire facias out of the Rolls of the Iustices before whom the sute depends to recover the lands descended according to the provision of the said Act of Glocester which in just and proportionable equity agrées with the case of the feesimple lands and the Intention of the same Act. Vide supra 15. 9. infra 186. 8. 179 Circuit of Action Co. Inst part 1. 265. a. 3. 1 Littleton saith § 446. If the father be disseised Rebutter and the son having only a possibility release to the disseisor without warranty such release is void Howbeit if there be a warranty annexed to the release then the son shall be barred for albeit the release cannot barr the right because the son had no right in the land in the life of the father yet the warranty may rebut and barr him and his heirs of a future right which was not in him at that time And the reason which in all cases is to be sought out wherefore a warranty being a covenant real shall barr a future right is for avoiding of circuit of action which is not favoured in Law viz. That he who made the warranty should recover the the land against Terre-tenant and then the Terre-tenant by force of the warranty should have as much land in value against the warrantor which course would occasion Circuit of action and more trouble than needs Mauxels case 7. b. Finch 2 Where the father enfeoffeth his son and heir apparent with warranty and dieth Voucher the son in a praecipe brought against him may immediately vouch his fathers feoffor for the Law will not suffer him to vouch himself according to Max. 54. and so when he comes in as vouchee he may darraign the first warranty to avoid Circuit of Action Finch fol. 14. Fr. Edit F. N. B. 18. f. 3 In false Iudgement against an Abbot the plaintif was non-sute False Judgement and the Abot had a Scire facias against the plaintif to shew cause why he should not have execution returnable quindena Paschae at which day the plaintif appears and assigns his errors and tenders security to sue cum effectu and prays a Scire facias against the Abbot ad audiendum errores and the opinion of the Court was that he might assign his errors against the Abbot without suing out any Scire facias against him Finch pag. 55. 4 In an action of waste upon a lease for years by déed Waste wherein the lessor granteth to the
lessee that he shall not be impeached of waste the lessee may plead this in barr of the action of waste without bringing his action of Covenant Finch ibid. 5 Vpon the grant of a ward with warranty the defendant in a writ of right of ward may rebut the plaintif by that warranty and shall not be driven to bring an action of Covenant upon the grant to avoid circuit of action Finch fo 14. Fr. Edi. 6 One that hath rent issuing out of land disseiseth the terre-tenant Recouper in an Assise by the disseisee the disseisor shall recoup the rent in the damages and the reason is for avoiding circuit of action for otherwise when the disseisee re-enters the action for the arrerages of rent shall be received but Circuitus est evitandus boni Iudicis est lites dirimere ne lis ex lite oriatur Vide Co. l. 5. 31. a. 2. in Coulters case 180 Matter of Vexation And therefore Co. Inst part 1. 127. a. 1. 1 If the demandant or plaintif be non sute Plaintif amerced or judgement given against him he shall be amerced pro falso clamore for vexing and troubling the tenant or defendant without just cause Co. l. 5. 73. b. The case of Orphans 2 If any Orphan of London Oâ—phans which by the custom of that City is under the government of the Maior and Aldermen there sue in the Ecclesiastical Court or in the Court of Requests c. for any goods money or chattels due unto them either by the custom of London or by any devise or legacy in the will of their Ancestor or to have accompt c. In such case a prohibition lyeth because the government of the Orphans of London belongs to the Maior and Aldermen of that City and they have Iurisdiction of them And per Popham if the Lord of a Manor hath probate of testaments within his Manor if any will prove such a will in the Ecclesiastical Court a prohibition lies because the jurisdiction thereof belongs to another And the reason of this is for that otherwise the party might have double vexation and trouble Iudgement drowns a â—oâ—d 3 Where a man hath judgement upon an Obligation Co. l. 6 45. a. 3. Higgens case he shall not afterwards bring an action of debt upon the same obligation against the same party not only because the judgement hath drowned the bond by changing it into a matter of record but likewise for that if he that so recovers might have another new action and another new judgment he might also by consequent have infinite actions and infinite judgements to the perpetual vexation and charge of the defendant and infinitum in lege reprobatur Co. ibid. 46. a. 2. And therefore if a man brings an action of debt upon an Obligation and is barred by the judgement as he so long as that judgement stands in force cannot have a new action Pari ratione when he hath judgement in an action upon the same Obligation so long as that judgement stands in force he shall not have a new action Sure in two Courâ—s 4 If any use the Countenance of Law which was instituted to prevent Co. l. 8. 60. a. 3. in Beechers case and make an end of controversies and vexation for double vexation he shall be fined As if a man sue in the Common pleas and afterwards for the same cause sue the defendant in London or any other Court the plaintif shall be fined for this unjust vexation 9 H. 6. 55. 14 H. 7. 7. And in a Recaption the plaintif shall recover damages and the defendant shall be fined and imprisoned for his double vexation Vide F. N. B. 71. f. m. infra 181. 7. 5 In good discretion no melius inquirendum shall be awarded after office found against the King without view of some Record Co. l. 8. 169. a. 4. in Paris Stroughters case or some other pregnant matter for the King to avoid further vexation of the subject And therefore where upon a Diem clausit extremum it was found that the land was held of the Quéen Dyer 292. pl. 71. 12 Eliz. sed per quae servitia Iuratores ignorant and thereupon a melius inquirendum awarded whereby the tenure was found of a subject and all other points certainly found In this case the first office was adjudged void by the sence of 2 3 E. 6. and the rather because it should give no further occasion of vexing the subject for that the usual course was upon a double Ignoramus to adjudge a tenure for the King in Capite 181 Pendente Lite nihil innovetur Quarâ— Impedâ—t 1 At the Common Law Co. Inst part 1. 344. b. 3. if hanging a Quare Impedit against the Ordinary for refusing the Patrons Clerk and before the Church were full the Patron had brought a Quare Impedit against the Bishop and hanging the sute the Bishop had admitted and instituted a Clerk at the presentation of another In this case if judgement were given for the Patron against the Bishop the Patron might have had a writ to the Bishop and removed the Incumbent that came in pendente lite by usurpation for pendente lite nihil innovetur And therefore at the Common Law it was good policy to bring the Quare Impedit against the Bishop as spéedily as might be Co. l. 115. b. Foliambs case F.N.B. 60 a. 2 In Real actions depending as Formedon dum fuit infra aetatem Estrepment writ of right or the like the demandant shall have a writ of Estrepment to inhibit the tenant from committing waste or estrepment hanging the sute the like writ also may be had after judgement and before execution Vide the Statute of Glocester 6 E. 1. cap. 13. It lyeth also in an action of waste and the words of the writ are Tibi praecipimus quod ad messuagium praed personaliter accedens totaliter ordinari facias quod vastum seu estrepamentum de eodem messuagio contra formam Statuti praedict non fait pendente placito praed indiscusso Co. l. 6. 29. b. 3. 3 In Dyer 339. 17 Eliz. A presentation obtained of the Queen Presentation hanging a Quare Impedit in deceit of the Queen was adjudged void In Greens case F. N. B. 20. c. 4 In a writ of Error after errors assigned and scire facias awarded against the defendant upon such assignment Error the plaintif shall not assign any error in fact as to allege that the plaintif in the other action was dead at the time of the judgement or before the judgement or the like And when the plaintif may assign errors in fact he shall assign but one error of that kind but he may assign as many errors as appear in the record because this shall be tried by the Iustices in Court but that by a Iury which innovation will much delay and prejudice
action upon his case as well as the Lord and so there might be infinite actions for one default neither yet are they in such case without remedy for they may and ought to sue in the Court Christian and there shall have it redressed Co. l. 5. 104. b. in Boulstones case 6 A man cannot have an action upon the case for damage by the Pigeons of a Dove-house Dove-house because then every man might have the like And therefore it hath béen held that if any man except the Lord of a Manor erect a Dove-house Prat and Sternes case it is presentable in the Leet Sed quaere de hac for it hath been since otherwise adjudged See the E. of Northumberlands case Poph. Rep. 141. Trin. 16. Jac. Co. l. 6. 8. b. 4. in Ferrers case 7 If the plaintif be barred by judgement upon demurrer Vexatious sutes confession or verdict in personal actions he is barred for ever and in real actions he must have recourse to his action of an higher nature and at last shall be finally barred in his writ of right if the Grand Assise find against him So likewise before the Statute of Marlbridge when the degrees were past and before the Statute of Westm 2. upon loss by default there was no remedy but by writ of right And the reason of the Common Law in these and the like cases was to avoid Multiplicity and Infiniteness of sutes trials recoveries and judgements in one and the same case And therefore in the judgement of the Law it was thought more profitable for the Commonwealth and more for the honour of the Law in some cases rather to leave some without remedy and to put others to their writ of right without any respect of Coverture Infancy or the like than that there should not be a convenient time for the ending of actions and sutes See the judgement in redisseisin and post diss F. N. B. 188 190. and the punishment inflicted by the Law in such case See also the Register 206. 208. And indeed without such a strict course there may be much oppression committed under colour and pretence of Law for so a rich and malitious man may by actions and sutes infinitely vex him that hath right and in the end for the avoiding of charge and vexation Compell him to forsake his right all which was remedied by the Rule and Reason of the antient Common Law the neglect whereof by introducing trials of rights and titles of Inheritance and franktenement in personal actions in which there is no end or limit of sutes hath brought with it four main Inconveniences 1. Infiniteness of verdicts recoveries and judgements in one and the same cause 2. Sometimes contrarieties of verdicts and judgements one against another 3. Continuance of sutes by 20 30 and 40 years to the utter impoverishing of the parties 4. All this tends to the dishonor of the Common Law which utterly abhorrs Infiniteness and protraction of sutes And herein the excellency of the Common Law is to observed viz. That the receding from the true institution thereof introduceth many Inconveniences and the observation of it is alwayes accompanied with peace and quiet the end and center of all human laws See the Epistle to the 4. Report fol. 1. b. 8 Vide Max. 180. ca. 3. 186 25. 183 The Law construeth things with Equity and Moderation Convenient time 1 In 18 E. 4. 22. Co. l. 3. 27. a 1. A man is bound to make an obligation immediately yet he shall have convenient time to do it In Butler and Bakers case Escape 2 For as much as Escapes are very penal to Sherifs Co. l. 3. 44. a. 4. in Baytons case Bailifs of Liberties and Keepers of Prisons the Iudges have alwayes made such favourable construction as the Law will permit in favour of them being Officers and Ministers of Iustice and will never adjudge one to make an escape upon any strict construction for albeit the Sherif or other officer that keeps prisoners ought not to suffer one in execution to goe at large by Bail or Baston but ought to keep them in salva arcta custodia and according to the Statute of Westm 2. cap. 11. which ordains quod carceri mancipentur in ferris to the end they may the sooner pay their Creditors yet if one be arrested upon a Capias ad satisfac and the Bailifs upon a habeas Corpus bring him to Westm and at his request carry him to Lambeth in Surrey and at the day of return deliver him to the Kings Bench This shall be adjudged no escape neither shall the prisoner thereupon have an Audita querela against the Creditors So it is likewise if the prisoner had of his own accord gone to Lambeth so as he had returned in time to be delivered into Court at the return of the writ as it was adjudged in Charnicks case Sheriff of the County of Bed in 31 Eliz. So if one be Sherif of two Counties hath several prisoners in execution in each County upon two habeas Corpora against two of them he may bring the one prisoner out of the one County into the other and then carry both the prisoners up according to the several writs to him directed and this shall not be adjudged any escape in the Sherif Also If a prisoner in execution escape and flie into another County and the Gaoler make fresh sute after him and taking him puts him into the Gaol again this shall be adjudged no escape for that upon fresh sute the Gaoler took him again and put him in prison before any action brought against him And in the cases above produced upon habeas Corpus the Sherif is not strictly bound to keep the direct way to West in recta linea so as he have him at the return of the writ and then deliver him into Court for if the effect of the writ be pursued it sufficeth Copihold Fines 3 Where fines in a Copyhold Manor are uncertain Co. l. 4. 27. b. 3. in Hubbert Hamonds case the Lord ought not to demand or exact excessive or unreasonable fines and if he do the Copyholder may deny to pay it without danger of forfeiture and it shall be determined by the opinion of the Iustices before whom the matter depends upon a demurrer or at the trial whether the fine demanded were reasonable or no for if Lords might assess fines excessively at their pleasure all the estates of Copiholders which are a great part of the Realm and have continued time out of mind would be at the will of the Lords to defeat and destroy which would be inconvenient And thus it was adjudged in the Common place in Hoddesdons case Sewers 4 Notwithstanding that the words of the Commission of Sewers give authority to the Commissioners to do according to their discretions Co. l. 5. 100. a. 3. in Rooks case yet their proccedings ought to be limited
further by the same deed that the grantee may distrain for the same rent in the tenancy Here albeit a distress were incident to the rent in the hands of the Grantor and although the tenant attorn to the grant yet cannot the grantee distrain for the distress remaining as an incident inseparable to the Seigniorie the tenant should then be subject to two several distresses of two several men which would be oppressive and inconvenient So it is likewise if the Lord in that case grant the rent in tail or for life saving the fealtie and further grant that the grantee shall distrain for it Here also albeit the reversion of the rent be a rent service yet the donee or grantee shall have it but as a rent seek and shall not distrain for it Coperceners 16 Estovers appendant to freehold Corodie uncertain Homage Co. ibid. 164. b. 4. Fealty Piscary uncertain Common sans number or the like shall not be divided between Coperceners for that would be a charge to the tenant of the soil The Lord Mountjoyes case 17 The Lord Mountjoye seised of the Manor of Canford in see Co. ibid. did hy deed indented and inrolled bargain and sell the same to Browne in fee who in the deed covenants that the Lord Mountjoye and his heirs shall digg ore and turf in the wastes of the said Manor And in this case thrée points were resolved 1. That this did amount to a grant of an Inheritance to the Lord Mountjoye 2. That notwithstanding this grant Browne and his heirs might dig also and like to the case of Common sans number 3. That the Lord Mountjoye might assign his interest to one two or more but then if it were to two or more they could make no division of it but work together with one stock neither could the Lord Mountjoye c. assign his interest in any part of the waste to one or more for that might work a prejudice and a surcharge to the tenant of the land And therefore if such an uncertain Inheritance descendeth to two Coperceners it cannot be divided between them Causâ quâ suprâ Tender of â—ebt in court 18 If an Obligation of 100 l. be made with condition for payment of 50 l. at a day and at the day the obligor tender the money Co. ibid. 207. a. 3. and the obligee refuseth the same yet in an action of debt upon the obligation if the defendant plead the tender and refusal he must also plead that he is yet ready to pay the money and tender the same in Court because the 50 l. are parcel of the obligation and not perishable but if a man be bound in 200 quarters of wheat for the delivery of 100 quarters if the Obligor tender at the day the 100 quarters c. he shall not plead uncore prist because albeit they are parcel of the obligation yet they are bona peritura and it is inconvenient and a charge for the Obligor to keep them Littl. §. 419. Co. ibid. 253. b. 19 Before a man can bring his action for the recovery of lands Entry and Claim whereunto he hath title or right the Law requires that he first make his entry and claim his right or title upon the land which entry gives him possession and seisin of the same and where he may enter a bare claim from off the land will not serve to give him seisin thereof yet if by reason of menacing words lying in wait in the way with weapons or the like he dare not enter upon the land in such case the Law gives him this liberty that if he claim his right as near the Land as he dare go for fear of such bodily hurt as may cadere in virum constantem that claim shall give him seisin as well as if he had entred upon the land Littl. §. 434. And if the party be sick decrepit or recluse he may do it by his servant c. Littl. §. 440. Co. ibid. 261. 20 The Rule of Law is that where a disseisor dies seised Descent a fuller Enâ—â—y it takes away the entry of him that right hath yet if the disseisee at the time of the disseisin and descent were not in England or the dominions thereunto belonging such descent shal not take away his entry because being beyond sea by intendment he could not have notice of the disseisin and yet without any folly or laches in him he should lose his right which were inconvenient and unjust Co. ibid. 282. b. 3. 21 In an action upon the case the plaintif declared for the speaking of slanderous words which is transitory Action of Slander and layd the words to be spoken in London the defendant pleaded a Concord for speaking of words in all the Counties of England saving in London and traversed the speaking of the words in London The plaintif in his replication denied the Concord whereupon the defendant demurred and judgement was given for the plaintif for the Court said that if the Concord in that case should not be traversed it would follow that by a new and subtil invention of pleading an antient principle in Law viz. that for transitory causes of action the plaintif may allege the same in what place or County he will should be subverted which ought not to be suffered and therefore the Iudges of both Courts allowed a traverse upon a traverse in that case And the wisdom of the Iudges and Sages of the Law hath alwayes suppressed new and subtil inventions in derogation of the Common Law Vide infra 193. 1. Co. Inst part 1. 315. a. 4. 22 Regularly in all actions an Infant shall have his age Attornment and yet if an Infant have lands by purchase or descent he shall be compelled to attorn in a per quae servitia and no mischief to the Infant at all for when he comes to full age notwithstanding such attornment he may disclaim to hold of him or may say that he holds by lesser services but a great mischief would fall upon the Lord if the Infant should not attorn or his attornment should not be good for then the Lord should lose his services in the mean time So likewise an Infant is compellable to attorn in a Quid juris clamat in case where he is lessee Vide Connys case Co. l. 9. 85. b. 1. Co. ibid. 54. a. 1. 23 A Guardian shall not be punished for waste done by a stranger it is so penal to him Waste because for waste he shall lose the wardship both of the body and of the Land albeit the waste be but to the value of 20 s. and if that suffiseth not to satisfie for the waste then shall he answer damages of the waste over and above the loss of the ward It is otherwise in case of Tenant by the Curtesie tenant in Dower tenant for life years c. for they shall answer for waste done by a stranger
facias issue out to summon the Iury they ought to be tried all together but if they in subtilty make several Challenges so as there cannot be left a full Iury the Clerk may sever the panel for otherwise upon sleight and subtilty they might evade the tryal Co. l. 4. 22. b. in the cases of Copyholds 36 Albeit the estate and interest of a Copyholder upon descent vesteth in him by force of the Custom of the Manor Copyhold yet in pleading the Law doth allow him to allege before admittance his ancestors admittance after admittance his own as a grant and this is so permitted him by the Law to avoid an inconvenience which otherwise would necessarily follow for if the Copyholder in pleading should be compelled to shew the first grant he would be at a loss in doing that because if the grant were before time of memory then is it not pleadable or if it were within time of memory then would the custom fail for which cause the Law hath allowed the Copyholder in pleading to allege any admittance as a grant either upon a descent or a surrender rather than to force him to plead that which may tend to his prejudice although in rei veritate he is in by the Custom and not by any grant Dyer 218 3. 5 Eliz. Fortescue against Strode 37 The condition of an obligation was Unreasonable condition that the obligor upon request should do all acts which to the Councel of the obligee should seem reasonable for the releasing of an obligation in which the obligee stood bound to the obligor hereupon request was made to seal a release of all demands to the obligee and one M. and averment that there was no other matter betwixt them but makes no mention of M. And this request was adjudged unreasonable albeit there were no matter betwixt the obligee and M. Dyer 262. 31. 9 Eliz. 38 Regularly Felo de se all the personal estate of a Felo de se is forfeited to the King yet if such a felon had due unto him a debt upon a simple contract without specialty it shall not be forfeited to the King because then the party should be rebutted from waging his Law which he might do against a common person 39 Vide Hob. 3 Pincombe against Rudge A warranty may be sued by way of Covenant 133. Allen and Walter for summons in Dower Hob. 91. Sir Tho. Packerings case 40 If an office be found only in one County of all the lands lying as well in other Counties as there which in Law is no office Offices but only for the proper County yet this by the Court of Wards was allowed as an office to all to ground a charge and process upon for that it was beneficial to the Subject who else by divers offices would have been put to an intollerable charge c. 185 Nemo bis punitur pro eodem delicto Appâ—al Indictment 1 Wetherol brings an appeal of murder against Darley Co. l. 4 40. a. 3. Darleys case the defendant pleads not guilty and he was found guilty of Homicide and had his Clergy And afterwards he was indicted of murder and thereupon arraigned at the Quéens sute and he pleads the former conviction in the appeal at the sute of the party And it was adjudged a good barr and thereupon he was discharged for it was a good barr at the Common Law and not restrained by any Statute And the reason thereof is because the life of a man shall not be twice put in jeopardy for one and the same offence Barr in mayhem 2 Hudson brings an appeal of Mayhem against Lee Co l. 4. 43. a. Lees case the defendant pleads that the plaintif had before brought an action of trespass in the Common Bench against him of assault battery and wounding and thereupon had recovered against him 200 Marks damages and 10 s. costs which were satisfied before the appeal brought and farther averred that the battery and wounding in the trespass the mayhem in the appeal were all one and not divers whereupon the plaintif demurrs And it was resolved per totam Curiam that the barr was good for albeit it was alleged that an appeal of mayhem being an action of an higher nature than an action of trespass could not be barred by it yet because in the appeal the plaintif was but to recover damages as he had done before in the action of trespass he shall not be twice satisfied nor the defendant twice punished for one and the same thing Vide 41 Ass pl. 16. 2 R. 3. 14. Action sur case Barr in debt 3 Recovery or Barr in an action upon the case sur assumpsit is a good barr in an action of debt brought upon the same contract Co. l. 4. 94. b. Slades case And vice versâ Recovery or barr in an action of debt is a good barr in an action upon the case sur assumpsit because in such an action upon the case he shall not only recover damages for the special loss which he hath if any be but likewise for the whole debt and reason will not permit that the defendant should satisfie one debt or duty twice Vide 12 E. 2. 13. a. 2 R 3. 14. 38 H. 8. Br. Action sur le case 105. Bis idem exigi bona fides non patitur in satisfactionibus non permittitur amplius fieri quod semel factum est Covenant 4 A. covenants with two and cum quolibet eorum Co. l. 5. 19. a 3. Slingsbies case in this case they cannot sue severally unless their Interests be several for their Interests and the Covenant must accord otherwise the covenantor may be twice charged for one and the same thing and therefore these words cum quolibet eorum are in such case but words of amplification and abundance and cannot sever the joynt cause of action In like manner one cannot be bound to many joyntly and severally for albeit authority may be so given as to two vel cuilibet eorum to give livery c. yet interest cannot causâ qua suprâ Trover 5 In an action of Trover and Conversion brought in the Exchequer by bill the defendant pleads that the plaintif had an action of Trover Co. l. 5. 61. a. 3. Sparries case c. for the same goods then depending in the K. B. and demands Iudgement of the Bill whereunto the plaintif demurrs and it was resolved by the Barons that the Bill should abate and one of the reasons thereof was this that the defendant should not be twice vexed for one and the same thing Nemo debet bis vexari si constat Curiae quod sit pro una et eadem causa Nusance 6 A man shall not have an action upon the case for a nusance levyed in the high way for it is a common nusance Co. l. 5. 73. a. 4. in Williams case and
of Record the lessee shall lose all advantages which are not so claimed of Record Prisoners Sherif 14 The Law hath so great a regard and care of executions Co. l. 3. 72. a. 2. in Westhies case which are the fruit and life of every sute that notwithstanding they be matters of Record and the Letters Patents granted to the new Sheriff and the writ of discharge and writ of delivery to the old Sherif yet until the prisoners are delivered unto the new Sheriff they still remain in the custody of the former Sheriff and all this to prevent a new sute and trouble for the recovery of that which is already determined by Law Sâ—ander 15 It one exhibit articles to Iustices of Peace against another Co. l. 4 14. b. 1. in Cutler Dixons case containing great abuses and misdemeanors not only touching the petitioner but many others also and all this to procure him to be bound to the good behaviour In this case the party accused for any matter contained in such articles shall not have an action upon the case because therein the party complainant pursues the ordinary course of Iustice and the Law will not permit actions in such cases lest such as have good cause of complaint should be deterred from doing it for fear of sutes and infinite vexation Common 16 In case of Common by reason of vicinage Co. l. 4. 38. b. 1. in Tirringhams case the one may inclose against the other for he that hath such a Common cannot put his cattel into the land of the other but the Cattel ought to be put into the land where they have Common and then if the Cattel stray into the other land they are excused of trespass by reason of the antient usage which the Law permits to prevent sutes which might arise if actions should be brought for every such trespass when there is no separation or inclosure betwixt their Commons Vide Co. l. 7. 5. b. Sir Miles Corbets case Execution of process 17 In all cases when the processe concerns the King Co. l. 5. 92. b. 3. in Semayns case the Sheriff or other officer upon refusal after demand to open the door may break open the door of the house or use other means to get in to doe execution But in case of a common person the Law doth not permit the Sheriff c. upon request made and denyal as aforesaid to break into the house of the defendant to execute any processe at the sute of any Subject for the great inconvenience that might ensue thereupon because if men as well in the night as in the day should have their houses which indeed are their Castles broken open upon pretence thereof great mischief and damage might fall out for by colour thereof upon any feigned sute the house of any man at any time might bâ— broken open when the defendant might be arrested elsewhere and so men should not be in safety and repose in their own houses And albeit the Sheriff be an officer of great authority and confidence yet it appears by experience that the Kings writs are many times executed and served by Bailifs wâ—o are generally persons of little or no value and therefore not to be trusted with the breaking open and ransacking of houses upon every slight occasion See Co. l. 11. 82. a. 4. Lewes Bowles case Co. l. 5. 101. b. 3. in Penruddocks case 18 If a nusance be levied to the prejudice of anothers franktenement Nusance the Law doth permit the party grieved to abate the nusance before he suffer any prejudice thereby and by that means prevent the damage before he be prejudiced by it Per Popham cum tota Curia Co. l. 5. 115. b. 3. in Folâ—ambs case 19 To prevent any further waste Waste Estrepement a writ of Estrepement lyeth in an action of waste at any time as well before Iudgement as after Iudgement and before execution Co. l. 6. 51. a. 3. in Boswels case 20 To prevent Simonie or any thing that might savour thereof Simonie the Plaintif in a Quare Impedit before the Statute of Westm 2. cap. 5. did at the Common Law recover no damages for the Law doth so abhorr Simonie that it giveth to the Patron no recompence either for his presentment or for his disturbance thereof Co. l. 6. 74. b. 2. in Sir Drue Druries case 21 In Sir Drue Druries case in the 6. Report the Iustices said Wardship Knighthood that it did behoove them to have good consideration in all cases depending before them nor only of the present case in question but likewise of the consequences thereof viz. what general prejudice might happen thereupon either to the King or the Subject So if a ward should be knighted after the grant of the wardship under the Great Seal if his knighthood might excuse him from the value of his marriage when he might be knighted not only by the King but likewise by his Lieutenants in Ireland or elsewhere this would tend very much to the damage both of the King and Subject for none would then purchase any wardship upon such uncertainties and therefore in that case his knighthood shall not excuse him from the value of his marriage which was vested in the Lord upon his ancestors death Co. l. 7. part 1. 18. b. 2. in Calvins case 22 The Common Law by inhibiting an Alien born to be capable of Inheritance in England prevents thrée great inconveniences Alien for otherwise 1. The secrets of the Nation might thereby be discovered 2. The revenues thereof being indeed the sinews of warr and the ornament of peace might be taken and enjoyed by Strangers born 3. It might at last bring the Nation to ruine and destruction 1. Tempore belli for then Strangers might fortifie themselves in the heart of the Realm not much unlike the Trojan horse in Virgil 2. Tempore Pacis for they having gotten into their hands a great part of the Inheritance of the Commonwealth and not being capable to serve of Iuries there would be a failer of Iustice c. Co. l. 9. 56. b. 2. in the Poulters case 23 To prevent mischief and oppression in the Commonwealth Conspiracy Conspirators are Inditable by the Common Law albeit they put nothing in execution by any overt act as if they shall be found guilty of conspiring to indict and acquit any though they put nothing thereof in ure Co. l. 9. 69. â— 4. in Mackallyes case 24 To prevent escapes upon arrests Arrests the Law doth not enjoyn a Serjeant or Bailif sworn and commonly known though not by the party arrested to shew his mace or warrant nor a special Bailif to shew his warrant without demand lest in the mean time the party arrested may escape but it shall be warning and warrant enough to say I Arrest you Things in action 25 To prevent multiplication of controversies and
Copyholders holding of a Manor parcel of the Rectory the Court granted a Prohibition to prevent further waste Hâ—b 62. Paâ—row Lâ—wâ—llyn 33 The privat delivery of defamatory Letters was criminal and censurable in the Starr-chamber and now as it seems Star-chamber inditable in the Upper Bench because such quarrellous Letters tend to the breach of the peace and to the stirring of Challenges and quarrels and therefore the means of such evils as well as the end are to be prevented 187 It moderateth the strictness of the Law it self Co. I st part 1 13. â— 1. 1 A Protection Moraturae or Profecturae have these clauses in them Protection Praesentibus minimè valituris si contingat ipsum c. a custodia Castri praedicti recedere Or si contingat iter illud non accipere vel infra illum terminum a partibus transmarinis redire according to the provision of the Statute of 13 R. 2. 16. nevertheless if he return into England and came over to provide Munition Habiliments of warr victuals or other necessaries it is no breach of the said conditional clauses nor against the said Act for that in judgement of Law coming for such things as are of necessity for the maintenance of the warre Moratur he doth stay according to the intention of the Protection and Statute aforesaid Annuity 2 If A. be seised of lands Co. ibid. 144. b. 2. and he and B. grant a rent charge to one in fée this prima facie seems to be the grant of A. and the confirmation of B. but yet the grantee may have a writ of annuity against both Howbeit if two men grant an annuity of 20 l. per annum to another although the persons be several yet he shall have but one annuity but if the grant be Obligamus nos et utrumque vestrum the grantee may have a writ of annuity against either of them but he shall have but one satisfaction Iudgement 3 An action of trespass was brought against Tilly and Woody for five boxes with charters taken c. Tilly pleads not guilty H. 7. E. 4. fol. 31. Title Judgement 50 Pl. Co. 66. b. 3. Dyve and Maningham and Woody makes title to him by a gift and the plaintif traverseth the gift and thereupon they were at issue and Tilly was found guilty and the issue was found for Woody against the plaintif In this case albeit the issue was found against Tilly yet the plaintif had not judgement against him for it was found betwixt the plaintif and Woody that the plaintif had not title and then in as much as it appeared to the Iudges by the Record that the plaintif had not title they ex officio ought to give judgement against the plaintif The like 4 An action of trespass was brought by lessee for years of Cattel taken the defendant saith P. 10 E. 4. fol. 7. Title Office del Court 7. Br. 29. Pl. Co. ibid. that the Lessor held of him by divers services c. and for so much arrear he took the Cattel the plaintif saith there is nothing arrear c. and hereupon they were at issue and it was found for the plaintif And yet per totam Curiam the plaintif shall not have judgement for albeit the defendant admitted the writ good yet the Court did abate it because it appeared unto them that the defendant was Lord against whom an action of trespass lyeth not Marbr 3. for the Statute saith Non ideo puniatur dominus c. Appeal 5 In an appeal by a feme of the death of her father Pl. Co. ibid. albeit the defendant affirm the writ yet the Court ex officio ought to abate it for it appears to the Court that no feme may have an appeal of the death of any save of her husband by the Statute of Magna Carta cap. 34. which was in affirmance of the Common Law Non est fâ—ctuÌ„ 6 In debt upon an obligation Pl. Co. 66. b. 4. if the defendant conclude his plea with Iudgement si action whereas his plea should have been non est factum yet if the Iustices find that it was not his deed so as the plaintif had no cause of action they ought ex officio to give judgement against the Plaintif Vide 11. 9. Attaint 7 The Statute of 23 H. 8. 3. Dyer 201. 65. 3 El. â— of Attaints lyeth as well against executors as the party himself albeit the party that recovers upon the false verdict be only named in that Statute for that Statute being made in mitigation of the rigor of the Common Law shall be taken by equity and the words against the party that hath judgement are superfluous for it lyes against any that enjoyeth the thing lost 188 Verba semper accipienda sunt in mitiori sensu Slander 1 If one say to another that he is perjured Co. l. 4. 15. b. 1. in Stâ—nhop Blithes case or that he hath forsworn himself in such a Court by these words an action may be maintained for by these words it appears that he hath forsworn himself in a judicial proceeding but to charge another generally that he hath forsworn himself is not actionable because he may be forsworn in usual communication And benignior sententia in verbis generalibus seu dubiis est praeferenda Vide 178 11. Co. l. 4. 15. b. 3. in Yeamans case 2 Yeamans charged Hext being then a Iustice of Peace in these words For my ground in Allerton Hext seeks my life Slander These words being taken in mitiori sensu were not actionable 1. because he may seek his life lawfully upon just cause and his land may be holden of him 2. seeking of his life is too General and for seeking only no punishment can be inflicted by the Law Co. l 4. 17. b. 4. in Iames Rutleches case 3 In an action upon the case for words Slander as an Innuendo cannot make the person certain which was uncertain before so neither can an Innuendo alter the matter or sense of the words themselves as to say that such an one was full of the Pox innuendo the French Pox this Innuendo doth not perform his proper office for it strives to extend the general words the Pox to the French pox by Imagination of an Intent which is not apparent by any precedent words unto which the Innuendo may referr And the words themselves shall be taken in mitiori sensu Co. l. 4. 20. a. 1. in Barhams case 4 Barham brings an action upon the case against Nethershall Slander the words were these Mr. Barham did burn my barn innuendo a barn with corn with his own hands and none but he And it was adjudged that they were not actionable for it is not felony to burn a barn unles it be parcel of a Mansion-house or full of Corn And in this and the like
Peace against another Slander containing divers great abuses and misdemeanors to the intent to have him bound to the good behaviour In this case the party accused shall not have for any matter contained in such Articles any action upon the case because he hath pursued the ordinary course of Iustice in such case provided And if actions shall be permitted in such cases they who have just cause to complain would not dare to make such complaint Co. ibid. Siâ— R ch Buckleys case for fear of infinite vexation So if a man had exhibited a Bill in the Star-chamber against another containing divers scandalous accusations albeit they were false yet no action upon the case would lie for them if they were examinable in that Court because the procéeding was in a Course of Iustice whereunto the Law giveth favour because it tends to the good of the Commonwealth See Dyer 11 Eliz. 285. pl. 37. Co. l. 4. 37. a. 2. in Tirringhams case 20 In antient time when a Lord enfeoffed another of arable land Tillage to hold of him in Socage viz. per servitium Socae the feoffée ad manutenendum servitium Socae had Common in the wasts of the Lord for his necessary Cattel that gained and compossed the land not only because that liberty was tacite implyed in the feoffment for he could not plow and compass the land without cattel and they could not live without pasture to sustain them but such Common appendant was principally given him for the maintenance advancement of tillage which is much regarded and favoured in Law because it is one of the chiefest supports of the Commonwealth so as such Common appendant is of Common right and began by operation of Law and in favour of tillage and therefore needs not prescription as it was held in 4 H. 6. 22 H. 6. which it ought to have if it were against common right Howbeit it is only appendant to the antient arable Hyde and Gaine and only for horses and oxen to plow the land and for Cows and Sheep to manure it And all this for the melioration and advancement of tillage as aforesaid And with this agrees 37 H. 6. 34. per tot Cur. and 29 H. 8. 4. Co. l. 4. 124 b. 2 in Bâ—verleys case 21 No felony or murder can be committed without a felonious intent and purpose Nam ideo dicta est felonia Non compos mentis quia fieri debet felleo animo And therefore a Mad man cannot commit felony because he cannot have a felonious intent so likewise if a feme Non compos mentis kill her husband it cannot be Petty treason Howbeit in some cases Non compos mentis may commit high treason as if he kill or offer to kill the King that is high Treason For the King est Caput et salus Reipublicae a capite bona valetudo transit in omnes and for that cause their persons are so sacred that no man ought to offer them violence and if he do he is Reus criminis Laesae Majestatis Co. l 5. 63. a 2. in the Chamberlâ—â—n of Londons case 23 The Inhabitants of a Town without any custom may make Ordinances or By-laws for the repair of the Church By-Lawes or of an High-way or any other such thing which is generally for the good of the Commonwealth and in such case the greater part shall bind all without any custom Vide 44 E. 3. 19. Also Corporations may make Ordinances or Constitutions without custom or the Kings charter for things which concern the Commonwealth as reparations of the Church common High-ways or the like Vide 8. E. 2. Assise 413. 21 E. 4. 54. 11 H. 7. 13. 21 H. 7. 20 40. Co. l. 5. 63. â— 4. 23 The Act of the Common Councel of London for bringing of Cloth to Blackwell-Hall to be searched Constitutions and the imposition of a penny for tallage upon every Cloth were adjudged lawfull constitutions because they were beneficial to the Commonwealth and not for any privat profit Constitutions 24 In 37 Eliz. 1695. The Term being appointed to be kept at St. Albons Co. l. 5. 64. a. Clerks case a Constitution was made there for the assessing of a sum of money for the preparing of Courts and other necessaries for the Term and every Inhabitant was enjoyned to pay his respective assesment on pain of imprisonment Clerk an Alderman who also consented to the assessment refused to pay his proportion and thereupon being imprisoned by the Mayor did bring an Action of false Imprisonment against the Mayor and had judgement to recover because the Constitution was against Magna Charta cap. 29. Nullus liber homo imprisonetur c. Howbeit if the Constitution had béen upon a pein of a reasonable sum of money and distress or action of debt for the recovery thereof the Mayor might have justified the distress or action because it was pro bono publico that the Town should make provision for the Term and the rather for that E. 6. who did incorporate them had granted them power to make Ordinances Albeit Corporations within time c. cannot have that privilege but by Parliament when it is pro commodo privato See Co. l. 8. 127. b. Penalties of Statutes not transferrable 25 When a Statute is made by Parliament for the publique good of the Realm Co. l. 7. 36. b. 3. in the cases of Penal Statutes the King cannot give the penalty or benefit thereof to any subject or give him power to dispence with it or to make a warrant to the Great Seal for licenses in such case to be made for when a Statute is made pro bono publico and the King as the head of the Commonwealth and the Fountain of Iustice and Mercy is by all the Realm trusted with it this confidence and trust is so inseparably annexed to the Royal person of the King in so high a point of Soveraignty that he cannot transferr it to the disposition or power of any private person or to any private use because it is committed to the King by all his Subjects for the Common good and if he might grant the penalty of one Act he may also grant the penalty of two and so in infinitum Dangerous to have London too populous 26 The Custom in London that a Foreiner shall not sell by retail Co. l. 8. 127. b. 2. in the case of the City of London was adjudged good because it was beneficial not only for the Citizens but likewise for the whole Commonwealth for that it would prevent the confluence of people from all parts of the realm to London which confluence might produce 3. great inconveniences 1. Impoverishment of all the good Towns in England 2. Depopulation of Towns in every Country 3. Destruction in the end of all trades and tradesmen in every part of the Realm Besides it might be a means to increase
720. Multiplyed 467 Indentures subsequent declare uses of a precedent Recovery 468 Inventions new are dangerous 756 Inclosures 563. Disseisin of a Rent 742 Inheritances shall not depend upon uncertaine words 107 Indicavit where it lyeth e contr 178. 179 Infidells accounted Enemies in Law 10 Interpretation of the Statute of 11 H. 8. Of the Statute of 32 H. 2. cap. 2. Of Charters as the Law was when they were first made 158. Joyntures void 75 Before marriage no bar of dower by the Common Law 414 Made in liew of Dower 464 Joynder in Action 600 430 Joynt tenants charge 164. May grant their moyeties 57. 59 of a right of differing natures 162. May prejudice one another 363 Issue where not inheritable 343 Issues of Jurors levyed upon the Feoffee 42 Journeys Accounts 121 588 Judgements in the Grand Assize 677. where defeated 122 123. Payable before debts 350. Upon dead men 561. Drowne Obligations 681. Finall 6. 77 Jurisdiction of Courts 139. Prohibited 139 Justices of the Benches 219. Must surcease upon the Kings Certificate 38. Where they ought to give Judgment ex officio 703. Where righteous Judgment 507 Juris Vtrum 161 K. KIng his command against the Law not to be obeyed 8. 103. Shall have the Purchases of Aliens 38. Shall not finde Pledges 106. Not deceived in making Leases 219. No Minor 224. his Debts shall first be paid 228. His Grants favourably interpreted 295. 299. His Prerogatives 296 297 298 299. 305. Acts to him done must be fully compleated 301. Where not barred by Acts of Parliament 303. Cannot be Joynt-tenant with another 305. absolute before his Coronation 389. Hath property of Felons goods waived 670 Knights-service 91 738 L. LAw Common Law preferred before the Statute Law 341. Favoureth Right 542. Where it excuseth 609 Appropriats to it self vocabula artis to expresse it self by 632. Penall not taken by Equity 686. hateth Vice 499. Countenanceth things done in peace more then in Warr 437 488. Lachesse shall not prejudice an Enfant 6 Of Entry shall bar the party 666 667 Leases 74 69 393. With condition to take the profits 11. The Commencement of them 7. Where exception in them is void 11 13. Durante viduitate 67. By Tenant in taile good only for his life 67. 162. When to begin 76. Where shall enure by grant or confirmation 102. where voidable 121. To one and his Heires at will void 242. Of a house with Implements Quid operatur 227. Void for incertainty 626. Drowned as to one hath continuance as to another 324. For yeares not capable of a Warranty 362. By Tenant in Taile 442. By Deanes an Chapters 715. Under the Exchequer Seale good 743 Legacies not grantable over 95 Leet 549 Livery and Seisin 728. Of an Estate in futuro void 73. By Attorney 96. Upon condition 99. void 113. To one enures to both 166 Of what it must be made 226. Within the view 393. 418. Where of part not good 5â—5 Not to be made nor taken without a Deed 623 Livery and ouster le Maine 37 203 Libells 744 Limitation of Uses 707 Licences not revocable 381. To alien where good 394. To sell Wines 157 418 Lord and Villaine manumission of the Villaine 50 London dangerous to be populous 735 M. MAintenance Where justifiable 432 Manumission 392 Marriage of Preists 73. Due to the Lord 102 An absolute gift of Chattells to the Husband 199 Mannor by the word Mannor a Reversion passeth 218. What things it draws to it 228 229 Magis Dignum 226 348 349 Market-overt 702. In London 716 Merchants 561 Manslaughter the diversity in it 211 Marshalsey none to sue there but those of the Kings Houshold 276. Office of it not grantable for yeares 757 Menalty 327 Misnosmer 391. 556. Shall not make void a Grant or a Presentment 21 27 Misprision of Clarkes where not amendable e contr 250 385 592 Miscontinuance of Suit 723 Monopolies 728 748 756 140 302. Monks 337 Mortgage 251. Where upon it the money is to be paid to Executors where to the heire 43 Monstrans of deeds 196. 595. 598 457 Modo formae not words of substance 381. 382 Mortmaine 309 Murder 747. An Act may be murder though not intended 48 50. All are Principle sin it 50. Intentions adjudged Murder 901 N. NAturalisation 284 Ne Exeat regnum 742 Necessity in what Cases it excuseth 425 426. Writs in what Courts to be sued in case of necessity 427. A Deed not shewed where it may be good in Evidence in case of necessity 498 Neife 356 Nobility 764. Gotten by marriage lost by marriage 71 Non-claime 316 Non-Residency good excuses of it 610 Nonage 74 Non Compos Mentis 43. 367. Shall not lose his life for Felony 355 Non Obstantâ— 310 Non est factum 158 591 Nonsuit in a Quare Impedit peremptory in Attaint peremptory 394 604 497 Notice where a man shall not forfeit his estate upon a Condition broken without notice 593. 596. Things done in one County taken notice of by them in another County e contr 595 Nusances 96. 154. 289. 602. For publick and private how the Actions shall be 683. Abated 700 O. OAth of Allegeance 741 Obligations joynt and severall 88. Severall upon one Parchment 320 321. Made Beyond-sea 381. Payable before Statutes 621. With Conditions to enfeoff 469. To performe an Accord 468. Released by making the Obligor Executor 468. Where not to be cancelled after Judgement 716 Office found 694. Not to be quashed but by Petition or matter of Record 70 Offices of trust not traversable 89. 153. Of Clarke of the Sheriff 133. Of Exigenter of London 137. Of the Marshall personall 152 153. 377. Of skill 153. Of Filizer 153. Of Auditor of the Court of Wards 264. Of the Kings Tennis playes 273. In the King without suing a Scire facias 301. Of Clarke of the County 334. Judiciall not grantable in Reversion 701. Granted to persons unskilfull or incapable void 729. Where they cannot be leased for yeares 553 Ordinary where he cannot dispose of the goods 160. 340. The Intestates goods committed to him 300 Order in Writs 271. In pleadings 275 Oyer and Terminer cannot sit where the Kings Bench is in Terme time 223. For Nusances 702 Outlawry where it gives a Forfeiture of Land e contr 50 51. Upon an Indictment reversed by Error 71. Outlaw babet Caput Lupinum 341. Where beyond the sea reversible 553 must be pleaded Sub pede sigilli 674 P. PAnell void 76 Pardon 164. 252. before Judgement discharges an annuity 31. Cannot pardon damages or costs before Judgement for Alienations 765 Payment no plea without acquittance 72 place of payment of a Rent 166 Parcenors Where they shall have the Rent joyntly where in common 37 42 43. Shall have aide to deraign the warranty 38. shall joyne in Assise 43. So of Deodands 46. Where the Judgement shall be to hold in severalty 65. The propriety of one not gone by alienation in respect of privity 175. Cannot make
Ravishment because he hath had the effect of his mariage A Chattel vested 37 If a man be Guardian in right of his Wife Fitz. 142. i. although his Wife die yet he shall have the Wardship because it is a Chattel vested in him Feoffee upon condition not disabled 38 If the Feoffee upon Condition be disseised Co. Inst pars 1 222. a. 3. and after bind himselfe in a Statute Staple or Merchant or in a Recognisance or take wife this is no disability in him of performing the Condition for that during the disseisin the land is not charged therewith neither is the land in the hands of the Disseisor liable thereunto because in that case if the wife die or the Conusee release the Statute or Recognisance and after the Disseisee doth enter he may performe the Condition in the same plight and freedome as when the land was conveyed unto him Accceptance cannot make a void Lease good 39 Where an Estate or Lease is ipso facto void by a Condition or Limitation Co. ibid. 215. a. 1. no acceptance of the rent after can make it to have a continuance Otherwise it is of an Estate or Lease voidable by entry 35. He that cannot have or performe the effect or consequence of a thing shall not have the thing it selfe Co. Inst pars 1 16. b. 2. 1 If a man be called by Writ to the Parliament No Peer unlesse he sit and the Writ is delivered unto him and he sit in Parliament by force of that Writ he is for ever after a Baron or Péer of the Parliament and thereby his bloud is ennobled to him and his lineal heires but if he die before he sits in Parliament he is no Baron or Péer neither shall he or his reap any benefit of the Writ because being prevented by death he cannot performe the effect or consequence of the Writ which is personaliter interesse cum Rege cum Prelatis magnatibus c. Super arduis urgentibus negotiis c. consilium suum impensurum c. Co. ibid. 8. b. 1. Bract. l. 2. fo 88. Fleta l. 1. cap. 10. 2 An Infant within age that is not in custody of another An Infant 〈◊〉 cannot be Guardian cannot be Guardian in Soccage because no Writ of account can lie against an Infant For as Bracton saith Alium regere non potest qui seipsum regere non novit Or as Fleta Minor minorem custodire non debet alios enim presumiter male regere qui seipsuÌ„ regere nescit And by the like reason An man non compos mentis a Lunatick a man caecus mutus or surdus mutus or a Leper removed by a Writ de leproso amovendo cannot be Guardian in Soccage Co. ibid. 89. a. 1. 3 A Guardian in Soccage shall not present to a Benefice in the right of the heire because he cannot be accomptable therefore A Guardian cannot present to a Benefice for that he can make no benefit thereof for the Law doth abhor Simony or any corrupt contract for Benefices And therefore in that case the heire shall present himselfe Co ibid. 100. a. 4. 4 If two Ioyn-tenants bring a Writ of Mesne One Joyn-tâ—nant cannot forejudge and the one is summoned and severed the other cannot fore-judge the Mesne for he ought to be attendant to the Lord Paramount as the Mesne was and that can he not be alone without his companion So it is also if there be two Ioyn-tenants Mesnes and in a Writ of Mesne brought against them one maketh default and the other appeares there can be no fore-judger Co. Ibid. 102. a. 3. 5 If Tenant in Frank-almoigne bring a Writ of Mesne against his Lord the Lord cannot disclaime in the Seigniory No Disclaimâ—â— in Frankalmoigne because he cannot hold of any man in Frank-almoigne but of the Donor and his heirs 6 If the Lord mayhim his Villaine No appeale by Lord against his Villaine he shall be indicted for it at the Kings suit but he shall not have an Appeal of mayhim against his Lord Littl. §. 194. Co. ibid. 126. a. 4. because he cannot in that case enjoy the damages recovered for that upon recovery and execution for the damages the Lord may immediately take them from him againe Vide infra 38. 1. 7 In a Quid juris clamat brought by two Executors Non-suit of one executor is of both the non-suit of the one is the non-suit of both because the Tenant cannot attorne according to the grant Co. ibid. 139. a. 4. 8 Regularly when any man will take advantage of a Condition if he may enter he must enter In some cases neither entry nor claime necessary and when he cannot enter he must make a claime Co. ibid. 218. a. 3 4. And his claime is to procéed and as it were to make way for his entry And the reason of this is because a Fréehold and Inheritance shall not cease without entry or claime yet in some cases when he cannot enter by reason of some presentin-interest which the Tenant hath in the land neither shall he then make his claime because he cannot enjoy the effect of his claime viz. to enter into the land As in the case of Littleton Sect. 350. If land be granted to a man for 5 yeares upon Condition that if he pay unto the Grantor within two yeares 40 marks that then he shall have Fee or otherwise but for the terme of 5 yeares if in this case the Grantee do not pay unto the Grantor the 40 marks within the first two yeaaes then immediately after those two yeares past the Fée and Frank-tenement is in the Grantor without entry or claime c. Vide 34. 11. and 55. 109. â—ersity of â—ctione and â—ise 9 If an Ejectione firma be brought Co. ibid 285. a. 3. and the terme incurreth hanging the Action yet the Action shall proceed for damages onely because an Ejectione doth lie after the terme for damages onely but if Tenant pur auter vie bring an Assise and Cesty que vie dieth hanging the Writ albeit the Writ were well commenced yet the Writ shall aâ—ate because he cannot have the effect of a recovery in an Assise which is to have as well the Land as the Damages and not Damages onely as in the case of an Ejectione firma â—o writ of Erâ— atter reâ—se 10 If Tenant in a real Action release unto the Demandant after recovery all his right in the land Co. ibid. 289. a. 1. 9 H. 6. 47. he shall not afterwards have a Writ of Error because he cannot have the effect of that Writ which is to be restored to the land â—o attaint afâ— release 11 If Debt or Damages be recovered in a personal Action by false verdict Co. ibid. 26 H. 8. 3. b. 13 E. 4. 1 2. and the Defendant releaseth unto the Plaintife all Actions
quando c. damna quicquid quod ipse defendere deber c. judgement shall be given against him â—jâ—ration 2 Albeit in 8 E. 2. Abjuration indefinitely is called a divorce betwéen the Husband and Wife yet every abjuration is not so Co. ib. 133. 23 for such abjuration as amounts to a divorce ought to be either by authority of Parliament or upon ordinary procéeding in Law as in the Case of Tho. of Weyland in 19 E. 1. Neverthelesse in that Case procéeding in Parliament or at Law are but in the nature of circumstance c. Co. ib. 137. b. 3 3 By the wisdome of our Ancients a great deale of solemnity was used in the manumission of Villains Manumission of Villein to the end the memory thereof might take the déeper impression in the mindes of the Assistants for which this was the old Rule Qui servum suum liberat in Ecclesia vel Mercato vel Comitatu vel Hundredo coram testibus palam faciat liberas ei vias portas conscribat apertes Lanceam Gladium vel quae liberorum arma in manibus ei ponat c. Co. ib. 143. b. 1 229. a. 3. Co. l. 5. 20. b. Stiles Case 4 A déed cannot be a déed indented A deed Indented unlesse it be actually indented For albeit the words of the déed be Haec indentura c. yet if it be not indented indéed it is no indenture but if the déed be indented albeit the words of the déed be not Haec indentura c. yet it is an indenture c. Co. ib. 152. a. 4 Co. l. 5. 112. b. 1. in Mallories Case 5 If a Lease for life be made Attornment necessary reserving a Rent upon Condition c. And the Lessor levies a fine of the reversion to a stranger In this Case albeit the Conusée is Grantée or Assignée of the Reversion and so seemes to have power given him of taking advantage of the Condition by force of the Statute of 32 H. 8. cap. 34. Neverthelesse without Attornment he shall not take advantage of the Condition For the makers of that Statute intended to have all necessary Ceremonies and incidents observed otherwise it might be mischievous to the Lessée c. Co. ibid. 216. Litt. § 349. 6 If Land be Granted to a man for two yeares upon Condition Livery that if he pay to the Grantor within the said two yeares 40 marks that thou he shall have Fée But the Grantor gives him no Livery In this Case albeit he pay the 40 Marks within the two yeares yet he shall not have Fée Because there wanted the Ceremony of Livery It had béen otherwise if Livery had béen made unto him c. Co. ib. 218. a. 3 7 Regularly when any man will take advantage of a Condition if he may enter the must enter and when he cannot enter Free-hold â— inheritance â— cannot be â— vested withâ— entry or thiâ— he must make a claime And the reason is for that a frée-hold and inheritance shall not cease without entry or claime As if a man Grant an Advowson to a man and his heires upon Condition that if the Grantor c. pay 20 li. on such a day c. the State of the Grantée shall cease and be utterly void The Grantor payeth the money yet the State is not revested in the Grantor before a claime and that claime must be made at the Church And so it is likewise of a Reversion or remainder of a Rent Common or the like For there also must be a claime before the State be revested in the Grantor by force of the Condition and that claime must be made upon the Land A fortiori in Case of a feofment which passeth by Livery of seisin there must be a re-entry by force of the Condition before the State be void Co. ibid. 8 A man bargaineth and selleth Land by déed indented and enrolled with proviso that if the bargaine pay Idem c. that then the state shall cease and be void he payth the money the State is not revested in the Bargainer before re-entry And so it is if a bargaine and sale be made of a Reversion Remainder Advowson Rent Common c So it is likewise if Lands be devised to a man and to his heires upon Condition that if the devisée pay not 20 pounds at such a day that his Estate shall cease and be void the mony is not payd the State shall not be dested in the heire before an entry And so it is also of a Reversion Remainder Advowson Rent Common or the like 9 All Déeds and Writings ought to be made in Parchment Co. ib. 229. a. 3. or Paper Writings must â—e in parchment or paper For if a writing be made upon a peice of wood or upon a piece of a linnen or in the barke of a trée or on a stone or the like c. and the same be sealed and delivered yet it is no déed for a déed must be written in Parchment or Paper Because a writing upon such materials is least subject to alteration and corruption 〈◊〉 Sâ—â—t 32 〈…〉 10 It is agréed in 28 H. 8. fol. 28. that where the Statute of the 27 H. 8. c. 10. of Uses provides Co. lib. 5. 112. b. 3. in Mallories Case that the actual possession shall be adjudged according to the use c. yet all circumstances required by the Common Law are to observed viz. actual entry de facto â—o free-hold â—ithout liveâ—y or c. 11 Tenant in taile of an House entring into it saith thus Brother Co. lib. 6. 26 Sharpes Case I here demise unto you my house as long as I live paying 20 li. per annum to me you finding me bord horse c. this amounts not to a demise for life Because there wants livery or some Act which the Law adjudged livery or at least apt words which amount thereunto For delivery of a Charter is an Act but the Law doth not adjudge that livery because it hath another effect viz. to make the Charter his déed as it hath béen adjudged but delivery of a turfe twig or any thing else which comes from the land or of the ring of the doore is good livery So if he saith enter and enjoy it c. that is good although out of the land if within view for that is a delivery of the land it selfe 27 Ass 61. after delivery of the déed upon the land to say have and enjoy the land according to the deed this is good livery so 41 E. 3. 17. after delivery c. upon the land he saith enter God give you joy this is good 37 H. 8. Feofments Br. â—o new lease â—exe entry 12 Vpon a lease for years by Indenture the Lessée covenants and grants Dier 6. 28 H. 8. 1. c. that if he his