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
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.
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
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
for life and therefore by his general attornment according to the writ he is barred for ever to claime any priviledge but a bare Estate for life c. Attornment 8 If a reversion be granted for life the remainder in fée by déed Co. l. 2. 67. b. 4. in Tookers Ca. and the grantée for life dies attornment to him in remainder is void for it is not according to the grant otherwise it is if the grant were by fine c. Vide supra 6. R. 55. e. 69. Waiver in Court of Reâ—â—â—d 9 At the Common Law Co. l. 3. 26. a. 3. in Butler and Bakers Case if lands be given to Baron and Feme in taile or in fée and the Baron die in this Case albeit the Feme before her entry reciting her Estate saith by parol in pais that she assents and agrées to the said Estate or words to that effect yet afterwards she may waive that Estate in a Court of Record So in M. 34 E. 1. Tittle Advowry 232. it was adjudged that if a man take a distresse for one thing yet when he comes into a Court of Record he may make Avowry for what thing he pleaseth Also in 13 R. 2. Joint-tenancy A Charter of feofment was made to four and seisin was delivered to thrée in name of all and the fourth comming and viewing the déed dis-agrées and saith by parol he will have nothing to do with the Land and it was adjudged that this disagréement by parol in pais shall not devest the frank-tenement out of him And Thorpe in 35 E. 3. Tittle Disclaimer saith that in such Case the tenancy remaines still until his dis-agréement thereunto in a Court of Record and therefore in such a Court he may dis-agrée and not otherwise c. 〈◊〉 compos â—â—â—is 10 The Law so much tendreth the debility and weaknesse of a non compos mentis that in many Cases the Acts which he doth in pais Co. l. 4. 124. a. 2. in Beverleys Case shall be avoided c. but matters of Record done by him shall not be avoided as if he levie a fine suffer a recovery acknowledge a Statute or recognisance c. such things as these shall not be avoided by any averment of non sanae memoriae either by his heires or executors c. â—oods of one 〈◊〉 lawed saâ—ed by a parâ—â— upon Reâ—â—d 11 If a man be out-lawed for felony Co. l. 5 111. a. 2. Foxleyes Case albeit he was in prison or beyond Sea c. renders himselfe upon the exigent and upon his triall is found not guilty yet he shall forfeit all his goods and chattels and shall not have restitution c. for Knivet in 43 E. 3. 17. saith that the party shall not have restitution of his goods although the writ of exigent erronice emanavit so long as the award of exigent which is there called a judgement stands in force because the fore-said averments of imprisonment or being beyond Sea c. are but matters in fuit But as it is said in the same Booke if such an out-lawed person have a charter of pardon of an older date then that of the Exigent the goods are saved for that the cause of saving them appeares upon Record c. â— Court of â—â—cord onely â—â—wer to imâ—â—â—son 12 In some Action the Defendant shall be fined in one Court Co. l. 8. 60. b. z. in Beechers Case Co. lib. 8. 41. a. 3. in Griesleys Case lib. 8. 120. a. 1. in Doctor Bonhams Case and onely amercied in another Court and yet the offence shall be one and the same As in a writ of Reception if it be brought in the Common Pleas and judgement there given the Defendant shall be fined and imprisoned but if the writ be Vicontiel and before the Sheriffe in the County the Defendant is convict the judgement shall not be quod capiatur c. but in such Case he shall be onely amercied And albeit the writ viz. the Reception is of Record yet in as much as the Iudges in the Court viz. the Sutors are not Iudges of Record nor the Court a Court of Record they cannot impose a fine or commit any to prison Quia nulla Curia qui Recordum non habet potest imponere finem neque aliquem mandare carceri quia ista spectant tantummodo ad Curias de Recordo c. Co. Inst p. 1. 233. b. 4. 13 If a Lease for life be made to a Feme covert or an Infant Infant Feme covert Forfeiture Mortmain Recovery Wast and they by Charter of Feoffment Alien in Fée the breach of this Condition in Law is no absolute forfeiture of her Estate So it is also of a Condition in Law given by Statute which giveth an entry onely As if an Infant or Feme covert with their husband Alien by Charter of feofment in Mortmaine this is no barre to the Infant or Feme covert But if a recovery be had against an Infant or Feme covert in an Action of wast there they are bound and barred for ever because that is matter of record unto which the Law gives high respect and therefore it is to be observed that a condition in law by force of a Statute which giveth a recovery is in some Case more strong then a Condition in Law without a recovery For if Lessée for life make a lease for yeares and after enter into the land and make wast and the Lessor recover in an Action of wast he shall avoid the lease made before the wast done But if the Lessée for life make a lease for yeares and after enter upon him and make a feofment in fée this forfeiture shall not avoid the lease for yeares c. Co. ib. 356. 24 14 If a man sue a false and feigned Action against Tenant for life Recovery Discontinuance and recover the land against him by default so that he may have against the recoveror a Quod ei deforceat according to the Statute of West 2. cap. 4. In this case albeit the Action be false and feigned yet is a Recovery being a matter of Record so much respected in Law that it worketh a discontinuance so that the Lessor cannot have an Action of wast neither against the one nor the other for by the recovery the privity betwéen the Lessor and Lessée is destroyed and betwéen the Lessor and the recoverer there never was nor can be any privity and by the recovery all the reversion is divested out of the Lessor and vested in the recoveror But if Tenant for life make a feofment in fée upon Condition and wast is done and after the Lessée re-enters for the Condition broken in this Case the Lessor shall have an Action of wast And so if a Bishop make a lease for life or yeares and the Bishop die and the Lessée the See being void doth wast the Successor shall have an Action of wast
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.
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
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
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
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
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
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
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
Montjoys case 5 Donée in taile is restrained by a particular Act of Parliament Warranty no barre quòd non faceret aliquid in nocumentum c. haered c. nisi pro juntur uxor c. reddend verum antiquum reddit c. Here if the ancient reservation was of gold he cannot reserve silver if two farmes were anciently let to several tenants for several rents he cannot let them both to one man for one intire rent nor demise parcel of the farme rendring rent pro rata nor reserve it payable at two feasts when it was before payable at four Howbeit he may reserve eight bushels of wheat instead of a quarter reserved before for they are all one in qualitie value and nature Co. l. 6 65. b. Sir Moile Finches case 6 The change of the name of a thing cannot alter the thing it selfe Reservation of rent but the new name may be used by the owner in conveyances praecipes c. without prejudice And therefore in Sir Moile Finches case in the 6. Rep. it was agréed that Exceter-house in the Strand and Dorset-house in Fleet-street having then within thrée yeares before gained those names might be well enough known to their neighbours by the same names and distinguished from all other houses and might also by those names be demanded in praecipes c. so in a praecipe brought of a Mannor in com Bedd by the name of the Mannor of Asple whereas it had béene formerly and was still called Asple guise here the tenant after the view demanded judgement of the writ unto which the demandant said the Mannor put in view was also known by the name of Asple 41 E. 3. tit Maint de briefe 49. 8 H. 6. 32. and it was adjudged that such a name gotten by the knowledge of the Country is sufficent Change of names without the true and proper name for in this sense it is true De nomine proprio non est curandum dum in substantia non erretur quia nomine mutabilia sunt res autem immobiles Co. l. 9. 110. b. in Meriel â—reshams case 7 Albeit Covina of it selfe and ex vi termini Corin. ought to be betwixt two yet when it is coupled with fraud which may be committed by one alone the Court shall adjudge upon the matter and not upon the strict Etymologie of the word for Plerunquè dum proprietas verborum attenditur sensus verborum amittitur Co. l. 11. 34. a. in Alexander Powlters case 8 The Statute of 23 H. 8. 1. House-burniâ— takes away Clergie from the House-burner the Statute of 1 E. 6. 12. gives the benefit of Clergie to all felons save onely for Murder Poysoning Burglary Robberie Horse-stealing and Sacriledge so as House-burning being in this Statute casus omissus such an offender séemeth thereby to be allowed his Clergie Neverthelesse because the Statute of 25 H. 8. 3. takes away Clergie from the House-burner that standeth mute challengeth above 20 or answereth not directly albeit the offence be committed in another County then where the offender is tried And likewise because the Statute of 4. and 5. P. and M. 4. takes away Clergie from the accessories of that offence it is adjudged that according to the intention of the makers of the Statute of 1 E. 6 House-burning is included within the meaning of that Act although it is a penal Law and quite left out of the letter of the same Act. Letters omitted 9 In 17 El. Dyer 342. a. Co. l. 9 48. a. The Earl of Shrewsburies case Co. l. 2. 17. a. Lauds case The four first letters in the name and stile of H. 7. viz. H. R. A. F. for Henricus Rex Angliae Franciae c. were left out of his Letters patents made to Simon Digby yet adjudged good And in the 38 H. 6. 33. A count in which it was alleadged that T. W. resignavit c. in manus J. Episcopi c. loci illius Ordinarii And exception was taken because it was not in manus Johannis Episcopi séeing the Letter J. signified nothing but yet the Count was adjudged good Wast 10 The Statute of Glocester cap. 5. Co. Inst 1. 54. b which gives an action of wast against the Lessée for life or yeares which lay not against them at the Common Law speaketh of one that holdeth for terme of yeares in the Plural number and yet it appeareth by Littleton Sect. 67. that although it be a penal Law whereby treble damages and the place wasted shall be recovered yet a tenant for halfe a yeare being within the same mischiefe shall also be within the same remedie although it be out of the letter of that Law 11 Vide Pl. Co. 109. b. sequent Indictment 11 False latin shall not quash an Indictment or a Count Col. l. 5. 121. a. 4. in Longs case for albeit an original writ shall abate for false Latin as it is holden in 9 H. 7. 16. 2 H. 4. 8. 44. E. 3 18. 10 E. 3. 1. yet Iudicial writs or a fine shall not be impeached for false Latin as is held in 9 E. 3. The same Law of an Indictment as praefato reginae for praefatae mamilla for mammilla c. Vide suprà 13 4. False Latine 12 In the 14 of E. 3. the King grants licence to found in Oxford Co. l. 11. 8. b. Doctor Ayries case an Hall under the name of the Hall of the Scholars of Oxford the Founder calls it the Hall of the Queen They present to a Church by the name of Provost Fellowes and Scholars of the Colledge of the Queen in the Universitie of Oxford The Incumbent devises the Rectorie which they confirme by the name of Provost Fellowes and Scholars of the Hall or Colledge of the Queen in the Universitie of Oxford Misnamer of a Colledge Notwithstanding these variances the presentation and confirmation are both good for a small variance is not to purpose if the description be such that no other can be intended as Abbot Richerd grants by the name of Richard 15 Talis interpretatio fienda est ut evitetur absurdum inconveniens ne judicium sit illusorium Pluralities of Benefices By the Statute of 31 H. 8. 13. Co. l. 4. 79. a. Digbies case if a Parson or Vicar having one benefice with cure of soules being worth eight pounds per annum or above take another and be instituted and inducted in the possession of the same c. the first shall be void Here albeit the Statute saith plainly instituted and inducted yet if he be onely instituted into it he shall lose the first before induction and this is in regard of the great inconvenience that would insue if the first benefice should not be void by institution to the second by force of the said Act for then one may be instituted to divers benefices with cure the great charge
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
right of Inheritance or Frank-tenement which is supposed originally to commence by Livery shall not be transferred or be extinct without some Ceremony as first by re-entry upon the Disseisor and then by giving Livery or by that which doth tant amount viz. by release or confirmation to him 13 H. 7. 13. 20. c. And therefore it is commonly said in our Books that accord with satisfaction is a good Plea in personal Actions where Damages onely are to be recovered but not in Real Actions Co. l. 4. 55. b. 56. a. In the Case of the Sadlers in London 29 Ass 31. Pierce Partifields case 12 In Pierce Partifields case cited in the case of the Sadlers of London in the 4 Report fol. 55. An office found for the King cannot be quasht but by petition matter of record of as high nature b. it was found by office by force of a Diem clausit extremum after the death of one that held houses of the King in London that the Tenant died without heir whereupon the King grants them to Pierce P. for life who sueth a writ to the Major to put him into possession the Major returnes that the Tenant made his Will and gave them to his wife for her life who was yet in life and seised of the said houses together with one Jo. Digle her then husband P. P. outs Digle and his wife who thereupon bring a Scire facias against P. P. who demands Iudgement of the Writ because in as much as he was but Tenant for life and the reversion was in the King they ought to sue the King which they could not do but by petition And it was adjudged by all the Justices assembled in the Chancery that the Writ should abate and that Digle and his wife should sue by petition because for as much as the Kings Title was found by inquest of office upon oath the Title of the Subject ought also to appear by Record of as high nature viz. by like inquest of office upon oath and not by return of the Major onely for albeit that return be matter of Record yet is it not of so high and great regard in the Common Law as an office found by oath Co. l. 4. 55. a The Case of the Sadlers in London 13 At the Common Law The like when the King was seised of any estate of Inheritance or Frank-tenement by any matter of Record were his Title by matter of Record judicial as attainder c. or ministerial as office or by conveyance of Record by assent as fine Déed inrolled c. or by matter in fact and found by office of Record upon oath as alienation in Mortmaine purchase by Alienée the Kings villein escheat by death without heire c. he that had right could not have any traverse whereupon he might also have an Amoveas manum but was alwayes put to his petition of right to be restored to his Frank-tenement and Inheritance Howbeit he might have his Monstrance de droit and was not forced to his petition when the King was intitled by matter in fact as Villein Mortmaine Escheat Alien c. found by office and by the same office the Title of the party did also appeare as if a Disseisor did alien in Mortmain or to an Alienée or to the Kings Villeine or did die without heire in all these cases the party grieved might have his Monstrance de droit at the Common Law And so are the Books to be understood in 9 E. 3. 51. 13 E. 4. 8. a. 4 E. 4. 21. 33 E. 3. title Travers 36. Co. ibid. 14 It was found by office that T. by the Kings Licence married the Kings Niefe The like and that certaine Lands descended to the same Niefe which the Baron had aliened without the Kings leave his wife being the Kings Niefe to another and for that cause the land was seised whereupon the Alienée comes into the Chancery and sheweth all the case as it was found by office And therefore because all the truth of the case viz. the Niefe maried by his Licence the descent to the Niefe after the Coverture c. did appeare in the Office it was awarded that the Baron for that cause should hold by the Curtesie and that the Feme by his alienation should be put to her Action and thereupon by award the Alienée had restitution The like 15 It was found by Office that I. held of the King 30 Ass Pl. 28. Co. ibid. 56. a. and that M. his daughter and heire was of full age and had Livery and by another Office it was also found that the same I. had another daughter K. which was yet within age whereupon a Scire facias went out against M. and her husband c. who said that the land was given to I. and to his first wife the Mother of M. in taile and that K. was his issue of another wife and so M. sole heire but by award of all the Iudges all the land was seised into the Kings hand because the entaile was not found by any Office but onely that M. was general heire A Noble woman by marriage made ignoble 16 If a Woman be noble as Dutchesse Countesse Baronesse Co. l. 4. 118. b 4 Acton case Co. l. 6. 53. b. 2. The Countess of Rutlands Case c. by descent although she marie under the degrée of Nobility yet her birthright remaines For that is annexed to her bloud and is Character inde lebilis But if a Woman attaine Nobility by mariage viz. of a Duke Earle Baron c. and after the death of her first husband take another under the degrée of Nobility by this last mariage with one that is ignoble she hath lost the dignity unto which she attained by her first marying one of the Nobility for eodem modo quo quicquid constituitur dissolvitur And Quando mulier nobilis nupserit ignobili desinit esse nobilis Ecclesiastical Law founded by the Common Law 17 If it be demanded what Canons Constitutions Co. l. 5. Part 1. 32. b. The case of the Kings Ecclesiastical Law Ordinances and Synodals provincial are still in force within this Realme the answer is that it is resolved and enacted by authority of Parliament That such of them as have béen allowed by general consent and custome within the Realme and are not contrariant or repugnant to the Lawes Statutes and Customes of the Realme nor to the damage or hurt of the Kings Prerogative Royal are still in force within this Realme as the Kings Ecclesiasticall Lawes of the fame Now therefore as consent and custome hath allowed those Canons c. So no doubt by the general consent of the whole Realme any of the same may be corrected inlarged explained or abrogated Writing annulled by writing 18 Although Indentures being made for the declaring of the uses of a subsequent Fine Co. l. 5. 26. a. The Earle of Rutlands
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
Parson in the same plight condition that he was in upon his first presentation notwithstanding the presentment of the other by the Defendant c. â—nferiour Courts 30 When a writ of right is directed to the Lord of a Mannor Co. l. 6. 11. a. Jentlemans case or his Bayliffs or a Iusticies or other Vicontiel Writs are directed to the Sheriffe c. that shall not change the nature or jurisdiction of those Courts as to make the Lord or Sheriffe to whom those Writs are directed to be Iudges of those Courts respectively which were not so before but the Sutors do still remaine Iudges thereof Neither yet shall the direction of those Writs to the Lord or Sheriffe as aforesaid albeit they are in themselves matter of Record constitute the Lord or Sheriffe to be Iudges of Record or a Court Baron Hundred Court or County Court to be Courts of Record For upon a Iudgment given in any of those Courts a writ of False judgement lies and not a writ of Errour c. No change by â—emise of the â—ing 31 When the King demises his Crown to the next Successor Co. lib. 7. 29. b. 4. Discontinuance of processe per mort de la Roygne upon the general resummons by the Kings writ which begins thus Mandamus vobis quod ad sectam nostram animumque ligeorum populi nostri c. the originall and issue if any be joyned is revived for that is a full record and ought to be entred it is otherwise of the processe before issue joyned voucher garnishment c. yet they shall be also revived upon a special writ reciting all the special procéeding And it appeares by the booke of Entries tit Reattachment 499. that if the Issue be joyned and the Iury returned and a day given for tryall before which day the King dies yet by special resummons all shall be revived for the Iury was returned of record and the record thereof was made full and perfect c. Co. lib. 11. 64. a. 2. Doctor Fosters case 32 It is ordained by the Statute of 1 Eliz. cap. 2. Statutes for going to Church That every person shall resort to their Parish Church or upon let thereof to some other every Sunday and Holiday c. And by the Statute of 23 Eliz. cap. 1. That every person not repairing to Church according to 1 Eliz. 2. being thereof lawfully convict shall forfeit twenty pound for every moneth they so make default and that of the forfeitures aforesaid the Queen c. shall have the two third parts viz. the one to her owne use the other for reliefe of the poore c. and the other third part the prosecutor shall and may recover by action of debt c. And by the Statute of the 29 Eliz. cap. 6. it is enacted That every such offender once convicted shall afterwards in Easter and Michaelmas Termes pay unto the Exchequer twenty pound for every moneths absence from Church c. and if default be thereof made c. the Queens Majestie c. shall and may by processe out of the Exchequer seize all the offenders goods and two parts of his lands c. And lastly by the Statute of 35 Eliz. cap. 1. It is ordained c. that for the more speedy recovering c. of the forfeitures c. payable to the Queen c. by vertue of this Act and of 23 Eliz. 1. all and every such forfeitures c. shall be recovered c. by action of debt c. in the Kings Bench the Common Pleas or Exchequer as other debts may be recovered c. Here albeit the Statutes of the 29 and 35. séems to alter the law of the 23. in respect of part of the penalty given to the prosecutor by the 23. and being all of it mentioned as given to the Quéen in the other two subsequent Acts Yet the Act of the 23. remains in full force according to the tenour of the same notwithstanding the said subsequent Acts because those two Acts do not give the penalty to any new person but to the same person to whom the Statute of the 23. giveth it viz. to the Quéen c. and they are but acts of addition especially that of the 35. to give a more speedy remedy than was given by that of the 23. c. As in a Writ of Mesne the processe at the Common Law was Distresse infinite and although the Statute of Westm 2. cap. 9. gives a more speedy processe and in the end a Forejudger yet the Plaintiff may take which processe he will either at the Common Law or upon the said Statute because both are in the affirmative Vide ibid. many authorities accordant c. Co. ibid. 4. 33 In many cases the designation of one person in a late Act of Parliament Grant of Ward shall not exclude another person which was authorized to do the same thing by an Act precedent It is provided by the Statute of the 8 H. 6. cap. 16. that after office found c. he which found himselfe grieved might within the moneth after traverse and to take the lands and tenements to farm and that then the Chancellour Treasurer and other Officer shall demise unto him to farme untill c. Vide 13 E. 4. 8. And now by the Statute of the 1 H. 8. cap. 16. he hath liberty by the space of three moneths And after the Statute of the 32 H. 8. cap. 40. gives authority to the Master of the Wards with the advice of one of the Council to make a lease of the Wards lands or of an Idiots during the time that they shall remain in the Kings hands Here albeit the last designes another person yet doth it not utterly take away the first For if before any lease made by the Master of the Wards the Chancellour and Treasurer make one according to the Statute of 8 H. 6. then cannot the said Master demise the lands So also if the Master grant them first to another the Chancellour Treasurer c. cannot demise them to the party grieved as Stanford holds Praer fol. 69. a. b. where he mentioneth the rule Leges posteriores prioâ—es contrarias abrogant In 43 Ass Pl. 9. the Statute of 13 E. 3. de Mercatoribus which gives assise to the Tenant by Statute Merchant taketh not away the Assize which the Tenant of the Franktenement had before but both may well stand together So in 33 H. 8. Dyer 50. if it should be enacted that the youngest son should have an appeale of the death of his father that would not exclude the eldest son of his fuit because there are no words of restraint c. â—ncient Deâ—esne 34 In a writ of right Close if the writ of the Demandant abate F.N.B. 19. d. and thereupon he brings a writ of false judgement in the Common Pleas and there the judgement being reâ—ersed the writ is awarded good then shall the Demandant hold
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
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
all shall be equally charged 29 E. 3. 39. there is the like case Co. l. 3. 13. a. 3. Sir Wiliam Herberts case Co. l. 3. 13. a. 4. in Sir William Herberts case But it is Sir John Lanfords case 29 E. 3. 50 37 Four men were bound in a Recognisance of debt to A. and after one of the Conusors dies leaving his heir within age A Recognisance by 〈◊〉 and one diâ— the Conusee brings a Scire facias against the thrée Survivours to have execution who plead that the heir of the Conusor who was dead was within age and in as much as during his minority he could not be charged and the Survivours ought not to be charged onely they demand Iudgement c. And because A. could not gainesay it the Court awarded that the Paroll should stay and this Iudgement was afterwards confirmed in the Kings Bench by a writ of Error Co. ibid. b. 3. 38 If Iudgement be given against two Disseisors in an Assise for the land and damages and one of the Disseisors die Judgement â—gainst two Disseisors 〈◊〉 one dies the execution shall not be awarded against the surviving Disseisor that was party to the wrong but the heir as well as the Disseisor shall be equally charged 19 E. 3. tit execution 81. Co. ibid. b. 4. 39 Albeit at the Common Law no land was subject to an execution for the debt of a Common person Land not chargeable with debt but onely by force of certaine Statutes made for that purpose yet the Iudges and Sages of the Law have alwayes expounded general Statutes of that nature according to the Rule of the Common Law which is alwayes grounded upon the perfection of reason and not according to any private and sudden conceit and opinion And therefore in as much as the said Statutes have subjected a mans land to an execution for his debt the Iudges and Sages of the Law have considered the rule and reason of the Common Law in case of the heir of an Obligor in which case the land was subject to an execution for debt by the Common Law and accordingly do adjudge and resolve the cases which arise upon the said Statutes Co. ib. 1â— a. 1. 40 If two men alien land with warranty Land equâ— charged the land of the one shall not be onely rendred in value neither yet if one of them die the land of the Survivour shall be onely rendred in value but the charge shall be laid equally upon them For a Ioynt bond that binds the land shall not survive or lie onely upon the Survivour as in case of a joynt warranty where two for them and their heirs warrant the land to another and his heirs the Survivour shall not be solely vouched neither yet may the Sheriffe deliver the land to the one or the other at his pleasure for in executions which concerne the realty and charge the land the Sheriffe cannot make execution of the land to one onely So also if two are bound to warranty and both die both the heire ought to be vouched and both of them ought to be equally charged â—equality of third part â—cending â—ands in â—ite requiâ— in a devise 34 H. 8. 41 Willam Barnerds and his wife being seised of the Mannor of Hinton in tail being the wives joynture and holden in Capite Co. l. 3. 32. a. 4. Butler and Bakers case And W. B. being also seised of lands in Fobing both which amounted to the full third part of all his lands And W. B. being likewise seised of the Mannor of Thoby holden also in Capite which amounted to two third parts c. W. B. devised to his wife the Mannor of Th. upon condition that she should waive her former joynture c. W. B. dies the wife in pais refuseth her former joynture In this case W. B. could not by the Statutes of Wills 32 34 H. 8. devise the whole Mannor of Thoby because the Mannor of H. and the lands in F. were not a third part of the cleer yearly value of all his lands as they ought to be according to the provision of the said Statutes for that the cléer title and present possession of the Mannor of H. was but in possibility and depended méerly upon the will and pleasure of the wife and she could not by a bare refusal in pais devest her title to the joynture But in that case W. B. had onely power by those Statutes to devise two third parts of the Mannor of H. and also two third parts of the rest of his lands to the end that the King might have an equal and proportionable third part apparelled with like accidents and circumstances that the other two thirds parts were according to the true intent and meaning of the same Statutes â—fine for â—ars within â—e Statute of 1 H. 7. 20. 42 If a Feme Tenant in taile accept a fine Sur conisance de droit come ceo c. and thereby doth grant and render the land for 1000 years Co. l. 3. 51. b. 2. in Sir George Browns case pretending that this is not within the words of the Statute of 11 H. 7. cap. 20. which prohibits discontinuance alienation release c. Yet that is alienation within the intention of the same act because within the same mischiefe c. â—ses within â—e Stat. of H. 8. 10. â—ough not â—thin the letâ— of that â—at 43 If a man make a feofment to the use of himselfe for his life Co. l. 4. 2. a. 2. Vernons case and after to the use of his wife for her life for the joynture of the wife this estate in remainder is within the intent of the Statute of 27 H. 8. cap. 10. For albeit that Statute doth onely expresse these five forms viz. 1 To the Baron and Feme and to the heirs of the Baron 2 To the Baron and Feme and to the heirs of their two bodies 3 To the Baron and Feme and to the heirs of the bodie of one of them 4 To the Baron and Feme for their lives 5 To the Baron and Feme for the life of the Feme yet many other estates not there particularly exprest are within that act for the said particular forms are but put there for examples and not to exclude any other estate which is to the like effect and accords with the intent of the makers of the same Act So likewise an estate in Fée simple conveyed to the Feme for her joynture Co. ibid. 3. b. 1. per Dyer in Villiers and Beuamonts case 4 5. P. M. 146. and in satisfaction of her Dower is a joynture within the equity of the said Act for that is a competent livelyhood to the Feme of an estate of Frank-tenement to take effect presently after the death of the Baron for all the life of the Feme and more And so it is resolved in Sir Morrice Dennis case 8.
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
be revoked So if I make my testament irrevocable yet may I revoke it for my act or my words cannot alter the judgement of the Law and make that irrevocable which of his own nature is revocable c. And therefore if I be bound by obligation to stand to the award of I. S. albeit if I discharge that arbitrement I shall forfeit my bond Yet is my submission in that case revocable and so is the book in 5 E. 4. 3. b. which séems to be contrary in that point well reconciled c. Restraint to demise void 18 The Charter of the Incorporation of Suttons Hospital restrains them to alien or demise but in a certain forme Co. l. 9. 30. b. 4. in the case of Suttons Hospital this is onely a precept and ordinance testifying the Kings desire but binds not in Law So likewise in another part of the same Charter the exemption of the Ordinaries jurisdiction is but a clause declaratory For being a Lay-corporation it neither can or ought to be visited c. A defective â—â—â—re 19 In the case of Monopolies in the 11 Report Co. l. 11. 85. b. 3. in the case of Monopolies the Defendant being charged by the Plaintiffe to have sold Cards c. contrary to the priviledge granted to the said Plaintiff by Letters Patents of Qu. Eliz. c. puts in this barre that the City of London is an ancient City and that within it time out of mind c. there hath béen a society of Haberdashers and that within the said City there was a custom Quod quaelibet persona de societate illa usus fuit consuevit emere vendere liberè mâ—rchandizare omnem rem omnes res Marchandizabiles infra hoc regnum Angliae de quocunque vel quibuscunque personis c. and pleaded farther that he was Civis liber homo de civitate societate illa and that he sold playing Cards c. as was lawful for him to do c. But the Justices gave no regard to this Barre because it was no more than what the Common Law would have said and then no such particular custome ought to have béen alleaged For in his quae de jure communi omnibus conceduntur Consuetudo alicujus patriae vel loci non est alleganda and with this accords 8 E. 4 5. c. Dyer 19. b. 115. 28 H. 8. 20 The Lessor covenants Lessee may take boots without assignment that the Lessée shall have sufficient Hedg-boot by the assignment of his Bailiff In this case for as much as this covenant is in the affirmative and floweth from the Lessor and is no more than what the Law gives a Lessée priviledge to do per Baldwin and Fitzherbert the Lessée may take Hedg-boot without assignment Tamen quaere for Shelley is of another opinion because Cujus est dare ejus est disponere Modus conventio vincunt legem and the Lessée also séems to be bound by the acceptance of the lease upon those termes Ideo quaere Howbeit if I let to one two acres of Meadow and that it shall be lawful for the Lessée to cut the grasse by the assignment of the Lessor yet the Lessée may cut the grasse without my assignment Dyer 179. 45. 2 Eliz. 21 A man seised in fée of lands in Burrough English since the Statute of 27 H. 8. makes a feoffment in fée to the use of himself Burrough English and the heirs males of his body engendred Secundum cursum communis legis and after dies seised accordingly having issue two sons In this case the youngest sonne shall have the land notwithstanding the words before Vide 26 H. 8. 5. Dyer 230. 57. 6 Eliz. 22 The Lord by Knight-service releaseth and confirms to the Tonant to hold by a Spurre In this case Tenure the new reservation is void upon the estate before created Howbeit the tenure by fealty still remains Dyer 238. 36. 7 Eliz. 23 A Coroners Inquest indicts a man of murther quòd fugam fecit Coroners Inquest and upon his arraignment he is acquit and another found guilty ut oportet and it was also found that he did not flie yet he shall forfeit his goods for upon his arraignment in this case the flight shall not be given in charge because they were before forfeited by the Coroners Inquest Hob. 5. Crow and Edwards 24 In debt upon an obligation of 60 l. for the payment of 31 l. 10 s. at Coventry issue was taken that the money was paid at Coventry Trial in forreign County and yet by consent of parties and a paper Rule of Court the issue was tried at London and found for the Plaintiff and judgement given Howbeit upon a Writ of Errour brought in the Exchequer Chamber the judgement was reversed for consent of Parties cannot change the Law Hob. 13. Sir Daniel Norton and Simmes 25 If a Sheriff will make an Vnder-sheriff Sheriffe provided that he shall not serve Executions above 20 l. without his special warrant this proviso is void as being against Law and Iustice For albeit he may choose not to make an Vnder-sheriff at all or may make him at his will and so remove him wholly yet he cannot leave him an Vnder-sheriff and yet abridg his power no more than the King may in case of the high Sheriff himself Vide 167. 52. Hob. 120. Smales and Dale 26 Albeit a Tenant in Common enter into the whole Tenants in Common and claim all expresly yet he cannot thereby dispossesse his companion for the possession of him that so enters is over all lawful as well before such claime as after so as there is no possession altered by such claim and then a sole claim without more can never change the possession and without a change of possession which the Law protects it remains as before and therefore a Coparcener Ioyntenant or Tenant in common can never be disseised by his fellow but by an actual Ouster For the same reason it is that is a Tenant in Common do alone bring an action of trespasse against a stranger his action shall be abated by pleading him Tenant in Common with another albeit his entry were made generally and expresly into all which proves that the entry of one serves for all for else they could not joyn in an action of trespasse 66 Expressio eorum quae tacitè insunt nihil operatur â—pon the Qu. â—ant of the â—version deâ—and must be â—pon the â—â—nd 1 Queen Eliz. le ts for years rendring rent Co. l. 4. 73. Boroughs case payable at the receipt of the Exchequer at Westm Seu ad manus balivorum vel recâ—pturum c. with condition to be void for non-payment c. the Quéen grants the reversion in fée Here the demand of this rent ought now to be made upon the land For in the Quéens case the limiting of
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 〈◊〉
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
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
Bedfords case 29 When a Subject is Guardian in Chivalry Voidable Leases he in the right of the heir within age and in his Guard shall avoid voidable Leases for so long time as he hath interest in the Lands by reason of the Wardship but this shall not prejudice the Heir of his election to make the Leases good by acceptance of the Rent c. when he shall attain his full age For Custos statum haeredis in custodia sua existentis meliorem non deteriorem facere potest The Law is also the same when the King is Guardian c. Co. l. 861. b. 4. in Beechers ca. 30 Infants shall not be amercied Amerc Pledges and consequently shall not finde pledges by reason of the weaknesse of their age And therefore in that Case the entry is Ideo in miserecordia sed perdonatur quia Infans Vide 43 Ass Pl. 45. 44 E. 3. tit Amerc 10. 3 E. 3 Enfant 14. 14 Ass Pl. 17. 41 Ass Pl. 14. 17 E. 3. 75. Bracton fol. 254. F. N. B. 195 h. Co. l. 8. 99. b. 4. in Sir Richard Letchfords cas 31 A Custome that the Lord shall seise Copiholds after thrée Proclamations at thrée Courts and non-claim by the heir Copiholds Proclamation Non-claim c. shall not binde the Heir that is beyond Sea extra Maria at the time of the Proclamations made so it is also of an Infant non compos mentis or one in prison because in judgment of Law they are not bound to make claim neither yet by intendment can they have notice thereof for if these four persons were excused by the Common Law though they made not claim within a year and a day after a Fine levied or a Recovery in a writ of Right being matters of record and of extraordinary high esteem in the Law so that they were not barred of their right notwithstanding their non-claim A Fortiori shall not Proclamations made in a base Court and in a private corner be any bar unto them c. Vide 5 E. 3. 222. and 7 E. 3. 335. Also if in a real Action a Recovery by default be had against a man in prison it shall not binde him but he may reverse it by writ of Errour as appears 5 E. 3. 50. b. 4 E. 2. Disceit 51. Littleton 102. b. Co. l. 9. 76. b. 4. in Combes case 32 Where the custome is Custome Feofment Age 15. that an Infant at the age of 15. may make a feofment he cannot do it by Attorney because the Custome that inables any person disabled by the Law ought to be pursued and an Infant cannot make any thing to passe out of him by Attorney Vide 11 H. 4. 33. Co. l. 9. 85. a. â— in Connys case 33 Albeit the tenant of a Mannor that is within age may be distrained for rent arrear and neither in that Case Distrain per quae serviâ— nor in a per quae servitia brought against him when the tenancy descends shall have his age because at first the Lord departed with the land in consideration that the tenant should hold of him pay his rent do his services c. And although upon grant of the Mannor by Fine he may be compelled to Attorn in such a writ and if he Attorn upon grant thereof in pais the Attornment is good yet in a writ of Customes and Services which is a writ of Right in his nature A writ of Custom Serv. Age. and in which Iudgement final shall be given against an Infant that is in by descent he shall have his age although it be upon his own Cesser because he knoweth not what arrerages to tender before judgement and that is a writ of right in his nature and if he make not true tender he shall lose the land And so it was adjudged in 28 E. 3. 99. Vide 9 E. 3. 50. 14 E. 3. Age 88. 31 E. 3. Age 54. 2 E. 2. Age 132. And albeit such an Infant do attorn in a Per quae servitia Attornment that can be no mischief unto him for notwithstanding his Attornment within age he may at his full age disclaim to hold of him or may say that he holds not of him or may acknowledge he holds of him but by lesse or other services And with this seems to accord 26 E. 3. 63. 32 E. 3. Per quae servitia 9. and Age 33. Vide 2 E. 2. Age 77 78. 37 H. 8. Attornment Br. Quid Juris clamat 34 In a Quid Juris clamat brought by an Infant the tenant saith 43. E. 3. sol 5. 32. E. 3. cited per Coke Ch. Justice l. 9 85 b. 2. in Connys Case that he holds the land for term of life of a Lease of the Infants Ancestor who granted that he should not be impeached of waste by déed which he shewed forth to the Court Waste And in this Case because the Plaintiff was within age and so could not acknowledge the déed during his non-age it was adjudged that he should stay untill his full age Neverthelesse in this Case if when the Infant attains his full age the Defendant attorns by judgement of Court Parol Demur No prejudice this shall not any way trench to the Infants prejudice For albeit the Attornment were after his full age yet in as much as there was no Laches in the Infant but that he brought his writ de quid juris clamat to force the tenant to attorn the delay which was till his full age which the Law provided for his benefit shall not turn to his prejudice And therefore by judgement of law which doth wrong to none he shall have as much advantage as well for the arrerages of rent as for waste done as if the Tenant had Attorned at the time of the Plea pleaded Devise Tail Conclusion 35 There was a Clause annexed to an Estate tail devised by will to a Feme sole Co. l. 10. 42. b. 4. in Mary Portingtons Case per Coke Ch. Justice that if she should apparently and willingly conclude and agree to dis-continue the Estate c. that then the land should from thenceforth remain to another c. the Feme takes husband and they two conclude and agrée with J. S. to suffer a recovery of the Land with intention to make void the Estate and thereupon a common recovery was suffered accordingly c. And in this Case Coke Chief Iustice was of opinion Feme covert â—an passe noâ—hing without â—xamination 〈◊〉 writ that such conclusion of a Feme covert was of no force neither yet could be any cause of forfeiture for no Feme covert shall be barred by her confession of her inheritance or frank-tenement but when she is examined by due course of Law 15 E. 4. 8. 44 E. 3. 28. Vide 14 E. 4 5. And none hath power to examine a Feme covert without writ Vide 21 E. 3. 43. John de
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
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
case if the Lord avow upon the Feoffée before tender of the arrerages he shall lose them as it is agréed in 7 E. 3. and 7. H. 4 c. And therefore in as much as in such Case the Common Law forces the Lord to avow upon the Feoffor for that reason at the Common Law such Seisin by the Feoffor necessitas causa was good 〈◊〉 Quare Imâ—â—â— against â—e King or 〈◊〉 19 Regularly Co. l. 7 26. b. 3. Halls Case a Quare Impedit brought against the Bishop and Incumbent without naming the Patron abates yet if the King presents to a Benefice and his Clerk is admitted instituted c. In this case a Quare Impedit may be brought for necessity against the Bishop or Incumbent for it lies not against the King So it was also of the Pope if he had usurped 12 H. 8. 12. 4 H. 7. 15 c. â—n Vicar geâ—â—â—al shall not â—â—â—fie but in 〈◊〉 of necesâ—â— 20 Albeit Co. l. 8. 69. a. 1 Trollops Case regularly the Vicar general cannot certifie excommunication yet he shall certifie it when the Bishop is in remotis aagendis viz. beyond Sea in the Kings Service but the Court must be acquainted therewith by matter of Record viz. by Writ out of the Chancery to direct them and not by the surmise of the party and then for necessity which is alwayes the Law of time for necessitas est lex temporis the Certificate of the Vicar General shall be allowed because no other can then do it for he onely ought to certificate to whom the Court may write to absolve the party as the Bishop or the Chancellor of the Vniversities Fee-simple â—â—th out of 〈◊〉 â—ing by â—â—â—essary withâ—â— Office c. 21 Reversion in the Queen upon an estate taile she grants it to T. in taile upon Condition that if be pay 20 s. Co. l. 8. 1. 6. b. 2. The Lord Staffords case at the receit of the Exchequer he shall have the said Reversion in Fée the Condition is performed the tenant in taile levies a Fine and his issue is barred And in this case the principal point was whether by the Condition performed the Reversion passed to T. And it was held that presently upon payment of the 20 s. by operation of Law the Fée was davested out of the Queen and vested in T. And this by necessity for if it should not vest at the time of the Condition performed it would never vest And therefore if in this Case either Office Petition Monstrance de droit or other thing should be requisite that would make the Quéens Grant void and would dis-able the Quéen to make such a Grant And with this agrées the Lord Lovels Case in the Commentaries for there it is said when the Condition is performed the Fée-simple shall be immediately out of the King without Petition Monstrance de droit or other circumstance for if he must tarry such circumstances then can it not vest presently and by consequent shall never vest because if the estate be not enlarged at the time of the enlargement appointed then shall it never be enlarged And therefore in such Cases for necessity the Fée-simple passeth out of the Quéen without any such circumstances with this also agrées Isabel Goodcheaps Case 49 E. 3. who being seised in Fée of an House in London holden of the King deviseth it to Richard Goodcheap and the heires of his body and for want of such issue to be sold by her Executors and she makes W. D. W. W. and I. de T. her Executors and dies without heir Rich. Goodch dies without issue whereby the House escheates to the King and after one of the Executors dies W. W. refuseth and W. D. sels the House and here the question was whether or no the Sale by one Executor was good but it was agréed by all that if the Sale were good it shall devest the House out of the King and the cause thereof is by necessity of Law for if the Sale did not devest the House at the time of such sale then could there be no Sale at all and the Executors who had but a power could not have any petition Monstrance de droit or other remedy Co. l. 8. 143. a. 2. Doctor Druries Case 22 There is a diversity betwixt mean acts done in Execution of Iustice which are compulsive and acts which are voluntary A diversity betwixt acts compulsive and volunâ—â—â— acts And therefore if erronious judgment be given in Debt and the Sheriff by force of a Fieri facias sell the Defendants term and after the judgment is reversed by a Writ of Error yet the term shall not be restored but onely the summe c. But if a Capias utlagatum be awarded whereby the Sheriff is commanded to take the body ut bona catalla quae per inquisitionem invenerit in manus nostras capias de vero valore c. And by force of this Writ the Sheriff by inquisition takes the Goods and Chattels of the out-lawed person and sels them and after the Out-lawry is reversed in this case the party shall be restored to his Goods and Chattels because the Sheriff was not commanded nor compelled by the Kings Writ to sell them Co. l. 9. 49. a. 4. The Earl of Shrewsburies Case 23 King James grants to the Earl of Shrewsbury the Stewardship of the Mannors of M. and B. An Earl may make a Depâ—ty but in the Patent power of making a Deputy was omitted neverthelesse it was adjudged that hee might make one for if such an Office descend to an Infant Ideot or man of non sane memoriae they by necessity ought to exercise it by Deputy So an Earl for the necessity that the Law intends of his attendance upon the King and the Common-wealth this Stewardship of a base Court shall be exercised by Deputy Co. l. 9. 66. a. 1. Mackallies ca. 24 An arrest in the night is lawful An arrest in the night laâ—ful as well at the suit of a Subject as of the King for the Officer ought to arrest him when he can find him otherwise he may perhaps never arrest him for Qui malè agit odit lucem and if the Officer do not then do it the Plaintiff may have an Action upon the Case against him and recover his losse in damages Therefore by necessity an arrest in the night is lawfull Co. ib. 66. b. 2. 25 The Lords day is not Dies juridicus An arrest the 〈◊〉 Sabbath and therefore judicial acts ought not to be done upon that day but Ministerial acts may in some Cases be lawfully executed upon that day as an arrest for otherwise perhaps they might never be executed and Christ permits Works of Necessity to be done upon that day bonum est benefacere in Sabbato Executors may sell lands in their owne names 26 If Attorneys have power by writing to make Leases by
Co. ib. in the E. of Shrewsburies Case 3 If before the Statute of Quia Emptores terrarum 18 E. 1. The like the King or any other had given Lands to hold of him in Knights-service viz. so attend the King 40 dayes in his Host sufficiently armed c. in this Case the Law had such regard to the Honor of Knight-hood which is the lowest Degrée of Dignity that he might find an able person to go with the King in his Warres Vide. 7 E. 3. 29. and this was for conveniencie c. Co. ib. the principal â—ase 4 Qu. Eliz. by Patent granted to the Earle of Shrewsbury Seneschal Dominiorum sive Maneriorum de Mansfield Bolsover Hotsley A Pear Steward may maâ—â— a Deputy without giving him power therein to make a Deputy yet he might make a Deputy because it was not convenient that the Earl should kéep such base Courts himself Pl. 9. b. 18. b. 5 The Statute of Marlebridge A Distresse may be brought intâ— another County prohibits that none shall bring a Distresse out of one County into another yet it is held per totam Curiam M. 1. H. 6. Pl. 9. fo 3. abridged by Fitz. Tit. Distresse 1. that where a Mannor extends into two Counties the Lord may distrain in one County and bring the Distresse into the other County where the Mannor is and this is to avoid the mischief and inconvenience that would insue if the Lord should be restrained from bringing the Distresse to his Mannor But see the contrary adjudged in 30. E. 3. 5. Co. Inst p. 1. 210. b. 1. 6 If the Condition of a Bond or Feoffment be to pay or to deliver Money no place being appointed where it should be paid in such Case the Obligor or Feoffor is bound at the day of payment to find out the Obligée or Feoffée to make payment or tender thereof if he be in England but if the Bond or Feoffment be to deliver 20 Quarters of Wheat or 20 Loads of Timber or the like In such Case the Obligor or Feoffor is not bound to carry the same about or to seek the Obligée or Feoffée but in such Case the Obligor or Feoffor must go to the Obligée or Feoffée before the day of payment and know where he will appoint to receive it and there it must be delivered and this the Law directs for the convenience So if rent be issuing out of Land it ought to be tendred upon the Land But 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 to whom the Service is to be done in any place within England In like manner if a man be bound to pay 20 l. at any time during his life at a certaine place the Obligor cannot tender the Money at the place when he will for then the Obligée should be bound to perpetual attendance and therefore the Obligor in respect of the uncertainty of the time and for convenience sake must give the Obligée notice that on such a day at the place limited he will pay the Money and then the Obligée must attend there to receive it for if the Obligor then and there tender the Money he shall thereby save the penalty of the Bond for ever There is the same Law if a man makes a feoffment in fée upon Condition that if the feoffor at any time during his life pay the feoffée 20 l. at such a place certaine that then c. In this Case also the feoffor must give notice to the feoffée when he will pay it but in both these last Cases if the Obligor or feoffor at any time méet the Obligee or feoffée at the place he may tender the Money Likewise if A. be bound to B. with Condition that C. shall enfeoff D. on such a day here C. is bound to seek D. to give him notice when he will do it Homage 7 No man of Religion Regular or Secular Co. Inst p. 1. 65. b. 3. when he doth Homage shall say I become your man for that were inconvenient because he hath professed himself the man of God yet shall he do Homage and say I do unto you Homage and will be unto you Faithful and Loyal c. And this Homage of Ecclesiastical persons in the old Books and Records of the Law is called Fealty for that it wanteth these Words I become your man yet in judgment of Law it is Homage because he saith I do to you Homage c. There is the same Law also of a feme sole for it is not fit that the should say to her Lord I become your woman but shall say I do you Homage c. Argumentum ab inconvenienti plurimum valet in lege Non solum quod licet sed quid est conveniens est considerandum Nihil quod est inconveniens est licitum â—â—â—ment 8 Attornment is appointed by Law to avoid inconveniences See Co. Inst part 1. 309. a. 3. Max. 121. cap. 3. 112. 3 Conformity â—â—dowment â—â—â—ium 1 In ancient time when a man did endow his Wife ad ostium Ecclesiae Co. Inst p. 1. 34. b. 1. he did there openly declare the quantity and certainty of the Land whereof she was so to be endowed for the Law for Conformity sake doth delight to have that and like acts to be openly and solemnly done â—ower of rent â—â—all be deliâ—â—ed by the 〈◊〉 ff 2 If a woman bring a Writ of Dower of six pounds Rent-charge Co. ib. 34. b. 3. and she hath judgment to recover the third part Albeit it be certain that she shall have 40 s. yet she cannot distrain for the 40 s. before the Sheriff do deliver the same to her For here because she demands nothing in certaine but onely a third part of the Rent she shall not distrain for it before Execution sued and thereupon a third part thereof delivered unto her in certaine by the Sheriff It is otherwise of Land Rent or other things demanded in certaine for in such cases the Demandant after judgment may enter and distraine before Seisin delivered by the Sheriff upon a Writ of Habere facias seisinam Also when the Wife of a Tenant in Common demands a third part of a moity yet after judgment she cannot enter untill the Sheriff deliver her the third part albeit such delivery of the Sheriff shall reduce it to no more certainty then it had before and all this is for conformities sake that the proceeding may be orderly Co. ib. 53. b. 3. 3 None shall have an Action of Waste Joynder in Waste unlesse he have the immediate Estate of Inheritance yet sometimes another shall joyn with him for conformity as if a Reversion be granted to two and the Heires of one they two shall joyn in an Action of Waste So likewise shall the surviving Co-parcener and 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
he may have an Action of Trespass against the Lord or Bailiff F.N.B. 9. g. 10 Vide sup Max. 118. R. 24. Parceners where parceners or heires in Gavel-kind may have a writ de rationabili parte or a Nuper obiit being ousted by one of their Coparceners Sée also suprà Maxime 118. Rot. 25. F.N.B. 21. c. 11 If a man be vouched and enter into Warranty and loseth Vouchee and Tenant by receit may havâ— a writ of Error he may have a writ of Error and assigne the Errors which have hapned betwixt the Demandant and the Tenant or betwixt the Demandant and the Vouchée So likewise he in reversion who prayes to be received for default of the Tenant for life or for his faint pleading here albeit he be received and plead and lose yet may he have a writ of Error and assigne the Errors that have hapned betwéen the Demandant and Tenant and the Demandant and him that so prayed to be received F.N.B. 99. b. 12 In a praecipe quod reddat against Baron and Feme Baron and Feme may have error at the Grand Cape the Baron appeares in proper person and the Feme by an Attorney who hath not sufficient warrant and thereupon judgment was given upon the default of the Feme against Baron and Feme c. yet if they were not duely summoned they may bring their writ of Error to reverse that judgment F.N.B. 135. d. 13 A man may have a Warrantia Cartae Recovery in value albeit he may vouch in the Action that is brought against him and if he recover in the Warrantia Cartae and afterwards lose in the Action brought against him in which he hath vouched him against whom he hath recovered the warranty then shall he have a writ of habere facias ad valentiam c. maintainable within a yeare after the recovery to recover in value according to his losse Plow 96. a. 1. 14 For Heriot-service the Lord may either distraine or seise Heriot-service and so he hath two several means to come by it 121 Consensus tollit Errorem When by consent no challenge 1 When in a writ of right the Iury that are to trie the méere right Litt. §. 514. Co. Inst p. 1. 294 a. 2. are once impanelled by the four Knights with the consent of both parties none of the 12 so chosen can be challenged because it is by consent of parties â—â—ebe may be â—â—rged 2 If the Parson of a Church charge the Glebe of his Church by his Déed Litt. §. 528. Co. ib. 300. a. Litt. § 648 Co. 34 3. a. Co. 301. a. 4. and the Patron having fée-simple in the Advowson and the Ordinary confirme that grant such grant shall stand in force according to the purport thereof Because done by the joynt consent of all the parties that can claime any interest in the Advowson So likewise may the Patron and Incumbent of a Chantery donative charge the land upon the same reason because the whole interest resides in them and the Ordinary is not to medle therewith Attornment 3 To avoid many inconveniencies Co. ib. 309. a. 3 Attornment was appointed by the Law which is nothing else but the consent of the particular Tenant to the reversioners grant And therefore it is said in the old Books Si Dominus attornare possit servitiam tenentis contra voluntatem tenentis tale sequeretur inconveniens quod possit eum subjugare Capitali inimico suo per quod teneretur sacramentum fidelitatis facere ei qui eum damnificare intenderet For such consent of the Tenant is conclusive and binds the Tenant to pay the purchaser the Rent and to performe all other services due for or in respect of the land 〈◊〉 facias 〈◊〉 â—â—nsent 4 In a Ejectione firmae upon the issue joyned the Plaintiffe makes suggestion to the Court that he the Sheriffe Co. l. 5. 36. b 4. in Baynehams Case Vide Dier 367 Pl. 40. 21 22 Eliz. and one of the Coroners were of the liveries of the Earle of Worcester and therefore that he had caused the Venire facias to be directed to the other Coroner and the Defendant also confessing the suggestion the venire facias was allowed accordingly and upon the trial the Verdict passed for the Plaintiffe Howbeit afterwards the Court was moved to arrest judgment because the suggestion did not containe principal challenge sed non allocatur because the venire facias was awarded ex assensu partium â—y things â—nsent 〈◊〉 5 A Common Recovery differs from the judgment and procéeding in other real actions Co. l. 5. 40. b 2 in Dormers Case for this reason amongst others because it is had by the mutual consent of the parties 39 E. 3. 1. The Demandant and Tenant consent that two of the four in a writ of right shall be Esquires albeit by the Law they ought to be all Knights and well because by consent 44 E. 3. 3. Trial of Villanage altered from natural trial by consent 7 H. 6. 7. Pleader of feofment in fée upon Condition without Déed and re-entry is good if the other part confesse the Condition 34 E. 3. Title Office de Court 12. If 12 be sworne and one departs another of the Panel by consent may be sworne and with the 11 give the Verdict 11 H. 6. 13. The Court in a Quare Impedit may by consent give longer day then is limited by the Statute of Marlebridge H. 4. The Statutes of 2 E. 3. 20 E. 3. provide that neither for the great Seal nor little Seal Iustice shall be delayed yet when the matter concernes the King onely if he command it it may be stayd F. N. Br. 21. b. 27 H. 8. A Tenure may be created at this day by consent of all notwithstanding the Statute of quia emptores terrarum 6 E. 6. Dier 78. By special consent of the Parties re-entry may be for default of payment of Rent without demand thereof 〈◊〉 by conâ— none 6 In a writ of Error to reverse a fine Co. l. 5. 45. b. Gages Case the Error assigned was for that the writ of Covenant bare Teste the 24 of April returnable 15 Paschal which in truth was 15 of April and so returne before the Teste And it was resolved that per totam Curiam that it should be amended because fines and common recoveries are but common assurances had by the mutual consent of the parties and therefore such mis-prisions may be amended Howbeit in other actions no amendment shall be in such Case So in 18 El. inter Norreys and Braybrooke A writ of Error was brought to reverse a recovery in 19 H. 8. and the Teste was a day after the return neverthelesse because it appeared to be but a mistake of the Clerke and was in the Case of a Common recovery which passeth by consent it was amended Co. l. 6.
or other Chantery which shall be presentable c. if he be disturbed to present thereunto he shal have a Quare Impedit without alleadging any presentment in any person shall count upon the speciall matter so likewise if one recover an Advowson by Writ of right against another when the Church is void he shall present and if he be disturbed he shall have a Quare Impedit alleadge presentment in him against whom he recovered it without alleadging any other presentment And a man shall have a Quare Impedit and alleadg a presentment by his procurator and it shall be good without alleadging any presentment by himselfe c. for otherwise in these cases and the like he should be without remedy So if an Abbot had been Parson imparsonee time out of mind c. And after the Abbey were dissolved c. In this case he of whom the Advowson was holden shall present and if he were disturbed he might have had a Quare Impedit without alleadging any presentment in the Count but therein shall shew the speciall matter F. N. B. 69. h. 45. One would think it a vaine act for a man to procure a Replivin A Replivin for cattell not detained when his cattell are already come home of their own accord or when he hath them againe safe in his own possession yet if the Lord take the cattell of his Tenant tortiously and after the cattell come home againe to the Tenant in this case albeit the Tenant is already possest of them yet shall he have a Replivin against the Lord for his cattell taken and shall recover his damages for the tortious taking of them because otherwise he should be without remedy for he cannot have an action of Trespasse against his Lord for such unjust taking of his cattell F. N. B. 74. f. 46. In a Replivin it were somewhat preposterous Withernam granted to the Defendant that the Defendant should have Withernam against the Plaintiff yet if the Defendant hath returne awarded him and he sues the Writ de Returno habendo and the Sheriff returne upon the Pluries Quod averria elongata sunt c. In this case the Defendant shall have a Scire facias against the pledges c. according to the Statute of West 2. And if they have nothing c. then shall he have Withernam against the Plaintiff for the beasts of the Plaintiff because otherwise he should be without remedy F. N. B. 97. c. 47. A man cannot be properly said to recover Land from another A Writ of Deceit who never entred into the Land nor ever had the actuall possession thereof And yet in a Precipe quod reddat if the Sheriff returne the Tenant summoned where he was not summoned whereby the Tenant upon the grand Cape returned loseth the Land by default in this case the Tenant shall have a Writ of Deceit both against him that recovered and also against the Sheriff for his false returne and by such Writ of Deceit the Tenant shall be restored to his Land againe And this Writ may be so brought by the Tenant after Iudgement and before any Entry in possession made by the Demandant For if the Tenant should not have this Writ before the Demandant enter it may be the Demandant will not enter untill the Summoners in the Precipe quod reddat and the Summoners Veyors and Pernors in the grand Cape are all dead And so should the Tenant be left without remedy to recover the Land for after the decease of all the Summoners Veyors and Pernors he cannot have such a Writ because whether he were summoned or no is to be tryed by their examination c. F. N. B. 114. b. Vide Sup. 31. 48. Next to life Merchant stranger the person and estate of a man are much favoured in Law Vide Max. 92. so as at the common Law a Capias lay not but in case of Trespasse vi armis Felony c. yet if an English Merchant hath his goods taken away from him beyond Sea by a Merchant stranger and there he prosecutes the Law to have Iustice done him and restitution and cannot have it and this matter is testified to the King in his Chancery by credible witnesses upon such bare testimony parte in audita altera if such Merchant stranger come afterwards into England with goods both body and goods shall be arrested and detained untill the party greived be satisfied all his damages by Writ out of the Chancery to be directed to the Officers or Merchants strangers of the place where he is or hath goods for otherwise the English Merchant should be without remedy And such Writs may issue to the severall Ports where the Merchant stranger hath any goods to each of them one c F.N.B. 120 d. 49. Action of debt by the Ordinary At this day the Ordinary shall not have an Action of Debt against the Creditor of the intestate because that Action is now given to the Administrator by the Statute of 31 E. 3. 11. and the Ordinary may commit the Administration of the goods and credits when he pleaseth but before that Statute Fitzharbert seemes to be of opinion that he might because it is requisite some person should have that power for otherwise the intestates debts could never have been recovered 50. If the Lessor let the terme by Deed pol and afterwards out the Lessee Writ of covenant against the Lessor F. N. B. 145. b. the Lessee shall have a Writ of Covenant against the Lessor upon the Deed Pol albeit he have no Indenture of it But if a stranger which hath no right out the Lessee he shall not have a Writ of Covenant against the Lessor because he hath remedy by action against the stranger Howbeit if the stranger enter by eigne title upon the Lessee he shall have a Writ of Covenant against the Lessor because in such case he hath no other remedy Action against the Gaoleâ— upon an escape 51. If one be in Prison upon execution for debt and makes an escape Pl. Co. 36. a. 3. in Plats case in this case the Debtor is discharged of the debt so as the Creditor can never renue his execution to take him againe And therefore in as much as after the escape the Plaintiffe is without remedy against the Defendant in the first suit the Common law which is common Reason provides that the Plaintiff should have an action of debt against the Goaler in whose default the execution of the Plaintiff was discharged for otherwise the Common Law should be defective in that point which must not be And therefore will rather permit the Plaintiff to recover against the Goaler then that he should be left without remedy albeit there never was any contract betwixt them Land revested without entry a claime 52. Regularly when any man will take advantage of a Condition Co. Inst pars 1. 218. a. 3. Litt. S.
B. for that the words In forma predicta do include the other but if a man let Lands to A. for life the Remainder to B. in Taile the Remainder to C. In forma predicta this Remainder is void for the uncertainty Co. ib. 34. b. 1. 5. In Dowment Ad ostium ecclesiae to the end it may have certainty Dowment ad â—ostium ecclesiae which is the Mother of quiet and repose and to avoid after contention the Law requireth that it be done openly and may be assigned in certainty to be enjoyed distinctly by it selfe and not in Common Co. ibid. 37. a. 3. Co. ibid. 6. In all cases where the demand of Dower is certaine Assigment of dower as in case of Dower Ad ostum ecclesiae or Ex assensu patris There the wife after the death of her Husband may enter but where the demand is uncertaine as in Writs of Dower at the Common Law there albeit the thing it selfe be certaine yet shall she not take it without Assignment as if a woman bring a Writ of Dower of three shillings rent albeit she ought to be endowed of one shilling yet cannot she after judgement distraine for 12 d. before Assignment because the demand was uncertain So it is if two Tenants in Common be and the wife of one of them bring a Writ of Dower to be endowed of a third part of a moiety and have Iudgement to recover yet cannot she enter without assignment Co. ibid. 34. b. 3. albeit the Assignment cannot give her any certainty because her Husbands Estate was uncertaine So if a woman bring a Writ of Dower of six pounds Rent-charge and she hath judgement to recover the third part albeit it be certaine that she shall have forty shillings yet she cannot distrain for forty shillings before the Sheriff do deliver the same unto her It is otherwise where a Writ demands Land Rent or other things in certaine for there the Demandant after Iudgement may enter and distraine before any Seisin delivered to him by the Sheriff upon a Writ of Habere facias seisinam c. Co. ibid. 45. b. 2. 7. If a man make a Lease for so many yeares as he shall live Lease void this is voyd for the uncertainty Co. ibid. 45. b. 4. 8. If the Parson of D. make a Lease of his Gleab for so many yeares as he shall be Parson there this cannot be made certaine by any meanes The like for nothing is more uncertain then the time of death Terminus vitae est incertus licet nihil certius sit morte nihil tamen incertius quam hora mortilo But if he make a Lease for three yeares and so from three yeares to three yeares so long as he shall be Parson this is a good Lease for six yeares if he continue Parson so long viz. First for three years and after that for three yeares and for the residue uncertaine Co. ibid. 49. b. 2. and Co. ib. 359. â— 3. 9. If A. be to make a Feoffment to B. and C. and their heires without Deed Livery and A. makes Livery to B in the absence of C. in the name of both and to their heires this Livery is void to C. because a man being absent cannot take a Freehold by a Livery but by his Attorney lawfully authorised by Deed to receive Livery unlesse the Feoffment be made by Deed and then the Livery to one in the name of both is good and the reason hereof seems to be because the Feoffment being made without Letter of Attorney or Deed it is uncertaine whether or no he consented thereunto which is apparent by his sealing of the Letter of Attorney or Deed of Feoffment Note That a Deed sealed may be delivered without words because there is sufficient certainty expressed in the Deed what is meant by the Delivery but Livery of Seisin requireth words to expresse it and also Ceremony to the end it may be certainly known what is intended by it And a man absent can neither take nor make Livery without Deed. A Plow-land uncertaine 10. A Fine of so many Acres of Land Meadow and Pasture Co. ibid. 69. a. 4. in certaine is good because the quantity of an Acre is certainly known by the Statute De terris mensurandis but a Fine De una virgata terrae shall not be received for the uncertainty because it containes in some places more in others lesse and therefore Prisot saith well in 35 H. 6. 29. That a Plow may till more Land in one yeare in one Country then in another Rent and Distresse uncertaine 11. There may be a certainty in uncertainty Co. ibid. 96. a. 1. 142. a. 3. as if a man hold of his Lord to sheere all the sheepe depasturing within the Lords Mannor this is certaine enough albeit the Lord hath sometimes a greater and sometimes a lesse number there for this uncertainty being referred to the Mannor which is certain the Lord may distrain for this uncertainty Howbeit no distresse can be taken for any Services that are not put into certainty nor can be reduced to any certainty for Id certum est quod certum reddi potest because Oportet quod res certa deducatur in judicium and upon the Avowry Damages cannot be recovered for that which neither hath certainty nor can be reduced to any certainty A Protection uncertaine 12. A Protection Co. ibid. 130. b. 4. as well moraturae as profecturae must be regularly to some place out of the Realme of England and must be also to some place in certaine as super salva custodia Caliciae c. and not to Carlile or Wales which are within the Realme or the like but it may be to Ireland or Scotland because they are distinct Kingdomes or to Calice Aquitaine or the like but a Protection granted to one c. untill he returne from Scotland was in 1 E. 3. 25. disallowed for the uncertainty of the time So likewise a Protection Quia moratur super altum mare will not serve not onely because as some think that Mare non moratur or for that a great part of the Sea is within the Realme of England but likewise for the uncertainty of the place A Bishops certificate 13. If a Bishop certifie that another Bishop hath certified him Co. ibid. 134. a. 3. that the party which is his Diosesan is excommunicated this certificate upon anothers report is not sufficient for the uncertainty there is the same reason also of an Hear-say in evidence A Villain 14. If the Lord make a Lease to his Villain for life or years by Deed or without Deed this is an infranchisment of the Villain Litt. S. 207. Co. ibid. 138. but if he make him a Lease at will by Deed or without Deed it is no infranchisement because he hath no certainty of his estate but the Lord may put him
ut supra Uncertain reâ—â—cation 62. A. seised of the Mannor of D. levies a Fine to uses with power of Revocation upon payment of 40 s. to the Conusee Co. l. 9. 106. b. 2. Lady Greshams case in Marg. Podgers case being likewise seised of the Mannor of S. levies another Fine thereof to the same Conusee but to other uses with like power of Revocation upon payment of 40 s. to the said Conusee Afterwards A. payes 40 s. to the Conusee for revocation of all the uses raised upon both the Fines and this payment was testified in writing under the Seales of the parties In this case none of the uses are revoked but the Revocation is utterly void for the uncertainty because two severall summs of 40 s. should have been tendred and not one summ onely for they were severall Indentures and severall Mannore and could not be satisfied by one summ because it was thereby left uncertain which uses and of which Mannor the Revocation was meant Uâ—certaine plea. 63. In debt against an Executor he ought not to plead Co. l. 9. 109 b. 3. Menel Treshams case Quod ipse non habet c. aliqua bona c. praeter bona c. quae non sufficiunt ad satisfacienda debita predicta but he ought to plead Quod non habet c. bona c. praeterquam bona cattalla ad valentiam of a certaine summe Et non ultra quae eiisdem debitis obligata onerabilia existunt c. for the first plea is insufficient for the uncertainty because the Plaintiff cannot reply thereupon so as a certain Issue may be taken â—ncertainty of â—â—e the perâ—â—n 64. When there is uncertainty in the person Co. l. 10. 51. a. 3. in Lampets case to whom a Release or other Grant is made such Release or grant cannot be good And therefore if a Lease for life be made the Remainder to the right heires of I. S. and the Lessee is disseised and the eldest Son of I.S. releaseth to the disseisor and after I. S. dyes In this case the Release is voyd for the uncertainty whether or no he shal be right heir at the death of his Father So likewise in 17 Eliz a man lets to Baron and Feme for 21 years the Remainder to the survivor of them for 21 yeares and the Baron grants over this term here also the grant is void for the uncertainty of the person for albeit of all Chattels reall which are the Femes the Baron may dispose yet in this case neither the Baron nor Feme had any thing untill the Survivor c. Co. l. 10. 90. a. 3. in Doctor Leyfeilds case 65. The reason why colour is given in a Writ of Entre sur disseisin Colour in pleading Writ of Entre in the nature of an Assize and Assize Trespasse c. is for that the Law which prefers and favours certainty as the mother of quiet and repose to the intent that either the Court may adjudge upon it if the Plaintiff demur or that a certaine Issue may be taken upon a certaine point requires that the Defendant when he pleads such a speciall Plea notwithstanding which the Plaintiff may have right shall give colour to the Plaintiff to the end that his Plea should not amount to a generall Issue and so leave all the matter at large to the Iurors which would be uncertaine and full of multiplicity and perplexity of matter Co. l. 10. 117. b. 2. in Rob. Piâ—folds case 66. In Trespasse the Plaintiff counts for damages twenty marks Uncertaine Verdict the Defendant pleads not guilty the Iurors tar damages and costs joyntly at twenty two markes In this case the Verdict cannot stand for it appeares not how much is for damages and how much for costs and therefore the Plaintiff can have Iudgement but for twenty marks for the uncertainty Co. l. 11. 25. b. 1. in Hen. Harpers case 67. An Ejectione firmae brought de omnibus omnimodis decimis in W. without saying garborum faeni lavae c. Uncertaine allegation this is not rightly layd for the uncertainty because there is no certainty alleadged of the nature or quality of the tithes whereupon a certaine Iudgement may be given or execution by habere facias possessione had And this also appeares in an Assize brought de quadam portione decimarum c. in 7 E. 6. Dyer 84. F. N. B. 41. a. 68. The Bishop shall not cite or distraine any to appeare before him to make oath at the pleasure of the Bishop against the will of him Citations that is so summoned or cited for such generall citations which the Bishops make to cite men to appeare before them prosalute animae without expressing any cause in speciall are against Law for which the party greived may sue a prohibition against the Bishop and thereupon an Attachment if the prohibition be not obeyed And such cause ought to be onely Matrimoniall or Testamentary Plow 56. a. 1. Wimbish and Talbâ—ies case 69. A Bar which is certaine to a common intent is good Replicationâ— must be certaine but Replications Titles Pleas in Abatement of Writs and Estoppels ought to containe Certainty for the Law which is grounded upon reason ordaines that Replications which make the Issue should be certaine to the end that neither the Court nor Iurors who trie the Issue should be misled or enveigled by uncertainty and therefore albeit a man may plead in Bar Que estate without shewing how he comes by the estate yet in a Replication if he plead Que estate generally it is not good as it is held in 2 E. 4. but he ought to shew how he comes by the estate for the cause aforesaid Pl. 65. a. 3. Dive and Manninghams case 70. Where a Recovery is had of two hundred Acres An uncertaine Plea upon occasion of pleading that Recovery to plead a Recovery of one hundred Acres inter alia is not good for the uncertainty as in 22 E. 4. in a Scire facias to have execution of two hundred acres of Land the Tenant pleads that since the Scire facias sued I.S. brought a Formedon of one hundred Acres inter alia and recovered and had execution Iudgement of the Writ for that parcell and this Plea was not held good for it is not the right forme of pleading such a Recovery because a Recovery ought to be certainly pleaded to every intent and these words inter alia are certaine to no intent but there it is held that he ought to have pleaded that I. S. brought a Formedon of two hundred Acres whereof those one hundred Acres now in demand are parcell and hath recovered and hath had execution Certainty in Law proceedings 71. The proceedings of a Suit Pl. 84. a. 4. Partridges case the allegations ought to be certaine in one part or other according to the nature of the Suit viz.
awarded he comes too late after for non constat Curiae Alien that he is an Alien Spinolaes case 174 Vigilantibus non Dormientibus Leges subveniunt Co. Inst pars 1. 139. b. 1. 1 At the Common Law upon every continuance or day given over before judgement the plaintif might have been nonsuted Non-sute and therefore before the Statute of 2 H. 4. cap. 7. after verdict given if the Court gave a day to be advised at that day the plaintif was demandable and might have been Nonsuted for vigilantibus non dormientibus c. Co. l. 4. 82. b. 3. in Sir Andrew Corbets case 2 A. deviseth land to B. till 800 l. be raised for the preferment of his daughters dies C. the heir of A conceals the will enters dieth Devise Notice In this case B. shall have alloâ—ance for the time that the will was concealed but albeit B. had not notice of the will yet if a stranger had occupied the land the devisee ought to take notice of the devise at his peril for vigilantibus non dormientibus c. And in such case none is bound to give him notice Co. l. 5. 76. a. The Earl of Pembrooks case 3 Where the defendant shewes a deed to the Court Deed entred the plaintif may pray the same Term that it may be entred in haec verba And so he may demurr or take issue at his pleasure But if he neglect to pray it that term he shall never have it so entred afterwards Co. l. 7. 27. b. Sir Hugh Portmans case 4 In a Quare impedit if the plaintif be nonsute after appearance Quare Impedit or discontinue the sute that is peremptory and the defendant becomes Actor and shall immediately have a writ to the Bishop c. Co. l 6. 8. b. 1 in Ferrers case 5 At the Common Law before the Statute of Westm 2. cap. 4. Recovery by default If any had suffered a Recovery in any real action by default if he were lawfully summoned and there were no error in the proceeding he could not have the case of an Infant only excepted any remedy but by writ of right And therefore the writ of Quod ei deforceat was by that Statute given to tenant in tayl by the Curtesie in Dower and for life after recovery had against them by default F.N.B. 20 g. 6 In a writ of Error when the record is come into the Court Error if the plaintif all that Term do not assign his errors and albeit he then assign the errors yet if he do not then also sue out a Scire facias ad audiendum errores against the defendant returnable the same term or the next term following all the matter is discontinued Dyer 232. 9. 7 Eliz. 7 An Infant at full age brings an Audita querela in Chancery to avoid a recognisance in the nature of a Statute staple by him made within age Infant but because his age was to be tried by the inspection of the Court it was adjudged that it did not lie so also it had béen if he had died within age for in such case he should have brought the Audita querela before his full age Dyer 241. 48 7 Eliz. 8 A Quare Impedit issued against the Archbishop of Canterbury Quare Imp. the Bishop of Lincoln and the Incumbent who made default to the great distress whereupon the plaintif made title that he might have a writ to the Bishop and a writ was awarded to enquire de damnis de plenitudine ad cujus praesentationem quantum temporis elabitur a vacatione et quantum Ecclesia valet per annum all which points were returned by inquisition and accordingly Iudgement was given that the plaintif should recover the presentment and should have a writ to the Bishop of Lincoln and damages to the value of the Church by half a year and the defendants in misericordia Error 9 If a writ of Error be delivered to the Chief Iustice of the C. B. or the Clerk of the Treasorie there this is a Supersedeas in Law Dyer 244. 63. 8 Eliz. and a stop to award execution Howbeit if the plaintif do not crave the removal of the record before the return of the writ of Error the Iustices may then award execution Vide 6 H. 7. 16. 175 It favoureth speeding of mens Causes And therefore Protections 1 In antient time Co. Inst pars 1. 130. b. 4. when Noblemen and others purchased by Letters Patents from the King protections either Profecturae or Moraturae to go or remain beyond the Grecian sea or elsewhere they were also by other Letters Patents to purchase licence to make their general Attorneys in all Courts so as no actions or sutes should be thereby delayed which Britton commends to be bien et sagement fait fol. 282. Protection 2 In an Assise of Novel disseisin a Protection is not allowable Co. ibid. 131. a. 1. Co. l. 8. 50. a. 2 in Jehu Webbs case nor yet in a Certificate upon an Assise because an Assise is festinum remedium to restore the disseisee to his freehold whereof he is wrongfully and without Iudgement disseised And therefore in this action the defendant shall not be essoined nor pray in aid but only of the King nor vouch a stranger nor any party to the writ unless he will immediately enter into the warranty there is the same Law also of receipt neither shall the Paroll stay for the non-age either of the plaintif or defendant and in many other respects an Assise is remedium maximè festinum Dower Appeal Assise 3 In Dower Co. l. 9. 30. b. 3. in the case of the Abbot of Strata Mercella or in appeal brought by the feme of the death of her husband or in an Assise brought by a feme which was the wife of B. if the tenant or defendant plead that the baron is in full life the tryal thereof shall not be by the Iury but by the Iustices upon examination made before them and that course is taken for the greater expedition Nonage inspected 4 If the tenant in a real action vouch A. as heir within age Co. l. 9. 30. b. 4. The same case or if the tenant for life be impleaded and pray in aid of A in reversion within age and pray also that the Paroll may demurr c. In both these cases if the demandant reply that he is in full age this shall not be tried by the Country for the great delay of the demandant but a writ of Venire facias shall issue to the Sherif to bring A. before the Iustices to be inspected by them whether he be of age or no. Assise 5 Of all actions an Assise is most favoured in Law Pl. Co. 75. b. 4. Wimbish and the Lord Willoughby because it gives the most speedy remedy And therefore the Statute
may aver him to be tenant of the land as the writ supposeth for the benefit of his damages which otherwise he should lose or otherwise he may pray judgement and enter at his election but where no damages are to be recovered as in a Formedon in descender and the like there he cannot averr him tenant but pray his judgement and enter for thereby he hath the effect of his fute and Frustra fit per plura c. And therefore if tenant in tail discontinue Littl. §. 691. and his issue bring a Formedon against the discontinuée and the discontinuée pleads that he is not tenant but utterly disclaims in the tenancy of the land In this case the judgement shall be that the tenant shall go without day and after such judgement the issue may enter into the land notwithstanding the discontinuance One patent better than two 2 When the King was to grant a reversion Co. l. 8. 167. a. 1. in the Earl of Cumberlands case the antient form was to recite the first grant and then to grant the reversion and besides by another patent to grant the lands in possession by which way a good estate passed to the patentee Howbeit to pass these several grants in one and the same patent is as good and effectual in Law as to pass them in several patents and frustra fit per plura c. Seisure Office 3 If the Office of the Marshalsie be forfeit Co. l. 9. 95. b. 3. in Sir Geo. Reynolds case the King shall be in possession thereof by seisure without office so it is also of the Temporalties of a Bishop or of a Prior Alien because the certainty of these appear in the Exchequer frustra fit c. In some cases also the King shall be in possession by office without seisure as of lands tenements offices c. which are local and whereof continual profit may be taken as where it is found by office that a condition is broken or that one attainted of felony is seised of land c. or in case of the ward of land c. In all these cases the King is in possession by office without any seisure 2 H. 6. 1. b. Finch fol. 54. 4 One that is in Court ready to joyn with the defendant may do it without process Vouchee as the vouchee the lessor of the plaintif being prayed in aid of when the defendant in a replevin avows upon him Or the Mesne when the Lord paramount avows upon him but joynder in aid cannot be by Attorney without process Co. l. 5. 21. Sir Anthony Maines case 5 M. leases for 21 years unto S. and covenants to make a new lease to S. upon the surrender of the old Covenant to surrender M. leases to another by fine for 8. years and hereupon S. without surrender of the old lease brings an action of Covenant against M. In this case the covenant is broken albeit S. do not surrender which ought to be the first act because it were in vain for him to do it in regard M. hath disabled himself to take the surrender or to make a new lease 4 E. 3. 170. 6 The demandant may waive issue upon Counterplea of voucher Waiver of issue and grant the voucher for if the Enquest pass the tenant cannot have more 1 H. 6. 4. b. 7 One that is a debtor to the King of Record in the Exchequer Kings debtor if he be seen in Court may be brought in to answer without process Dyer 59. ◠14. 36 H. 8. 8 In Replevin the defendant hath return awarded upon Nonsute of the plaintif Replevin and upon Returno habendo the Sherif returns averia elongata per Querentem and thereupon Withernam is awarded and the defendant hath delivered unto him as many of the plaintifs goods whereupon the Plaintif is to sue a second deliverance In this case he shall sue the second deliverance for the first distress and not for the Cattel delivered upon the Withernam for the Cattel of the first distress being the cause of the Withernam being delivered the other upon the Withernam will be also discharged Dyer 19◠24. 2 3. El. 9 The Sherif of Midd. had an attachment of privilege against one Kemp Cap. satisfac an attachment and likewise a Capias ad satisfaciendum against him at the same plaintifs sute both returnable the same term into the C. B. but the attachment was returnable first upon which he brings his body into Court and said he would return the Ca. sa at the day of return thereof Howbeit upon motion of one of the Protonotaries the Iustices sent the defendant to the Fleet and discharged the Sherif of him and would not stay untill the return of the Ca. Sa. there being a former judgement against him upon Record Vide Dyer 214. 47. Dyer 204. 1. 2. Eliz. Vpon nihil dicit in waste a writ issueth Waste that the Sherif in propria persona accedat ad locum vastatum to enquire of the damages and it was held good and not to enquire of the waste for that was confest by the Nihil dicit neither is it in such case necessary that he should then go in person according to West 2. cap. 25. for that is only in vasto inquirendo where the Defendant makes default to the distress 178 Expedit Reipublicae ut sit finis Litium 1 Regularly an Abbot Prior Bishop Abbot Annuity or other sole Corporation cannot disclaim Co Inst p rs 1. 103. a. 1. or do any act to the prejudice of their house or benefice but what may be avoided by the successor yet if an Abbot Bishop c. acknowledge the action in a writ of Annuity this shall bind the successor because he cannot falsifie it in an higher action and Expedit reipublicae ut sit finis Litium Vide supra Max. 1. case 4. 93 10. So it is likewise in an action of debt upon an Obligation Statute or Recognisance for there must be an end of sutes and Res judicata pro veritate accipitur Challenge 2 If the plaintif allege a cause of challenge against the Sherif Co. ibid. 158 a. 3. 18 E. 4. 8. the process shall be directed to the Coroners and if any cause against any of the Coroners process shall be awarded to the rest if against all of them then the Court shall appoint certain Elisors or Esliors so nanamed of the French word eslire to choose because they are named by the Court against whose return no challenge shall be taken to the array Howbeit challenge may be yet made to the Polles but that shall be also presently examined and setled in Court For Expedit reipublicae c. Partition 3 A partition of intailed lands betwéen parceners Co. ibid. 173. b. 1. being equal at the time of the partition shall bind the issues in tail for ever albeit
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
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
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
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
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
drawes right of property 225. followes the possession 227. may be forfeited 237. preferred before the possession 372. where extinct Et e contr 440. cannot incorporate with wrong 567. favourably expounded 502. cannot dye 504. Present or future may be barred 485 Robbery 110 Return The Court cannot proceed upon a-False returne 272 S. SAles not good upon the Lords day 8. by the Sheriff 707 Scandal magnatum 87 Seisin 668. payment of Rent by a Term or is no seisin 58. 287. 363. 548. 593. Presentment of the grantee a good seisin for the grantor in a Quare Impedit 191. not traversable 287. of a Rent by the Feoffor 421 Scire facias 160 613 690. When shall issue out when not followes the Record 229 Seales 743 Seizure of a villaine 162 Seigniory 263. suspended 361. 443. Sheriffs 244. must take notice who are in Execution 420. Where they may break up a house to deliver Execution or Seisin 678 Sewers 685 49 Socage lands deviseable 35 Subsidies uncertain made certain by circumstances 407 Surrenders 235 603. By Attorney 152 after a grant of a rent 164 intire 260 in Law 472 447 450 Suspence Seigniory suspended not grantable 56 personall things once suspended ever gone 154 Statutes what binde the King 13. subsequent expounded by equity of former 23 220 Interpretation of them 24 142 Of 32 H. 8. of pretenced rights 326 388 That abridge liberty how taken 355 taken by intendment 501 Stewardship 300 Services Intire 262 263 Divine 285 Summons and severance 337 574 T. TAil what things may be intailed 358 Void for incertainty 405 docked by recovery value 414 Tales 507 Terme not extinct by purchase of the Fee 335 not drowned 339 Tempus sem how to be accounted 12 Tender Of marriage 91 687 of amends 259 of mony to a stranger 200 Upon a mortgage 375 Excused 570. of Livery by the heire 610. Tender and refusall 470. â—or the Redemption of a mortgage by the Guardian 497. For an ideot 497. by a straner where saves a forfeiture 485. of the demy marke 677 Of the debt in Court 689 Tenant by the curtesie 41 581 Tenant in tail 313 550 cannot grant any remainder of his estate 57 barred by a common Recovery and how not 130 131 Tenant in Frankalmoigne 149. cannot disclaime 104 is not to be distrained for Arreares 106 Tenant Right 214 Tenants in common 244. shall joyn in Assise 545 where joyne where sever in actions 611 Tenant in tail after possibility c. 450 Tenant for anothers life 578 Tenant at sufferance 453 Tenures In capite 61. 142. In socage 97 136. not extinct by purchase of part of the Land 507 Treason 110 Treasure none can dispose of the Kings treasure without licence 303 304 Trade what it is 139 Traverse not without an office found 72. the place not to be traversed in personall actions 382. Traverse upon a traverse 618 Trespass 268. for oppression in the Common 387 Trees 231 Tryall in a forrain county 224 of villainage 351. of a Peer in Ireland 497. Per medietatem lingue 472 Trover brought by a Lunatick 427 Trusts where they shal go to executors 187 V. VAriance betweene the originall and judgment 637. in circumstances no prejudice 384 Between the writ and the count 636 637 Valore Maritagii 716 Verdict intire 261 in criminall causes not privy 353 where at large 604 708. incertain is insufficient 624. 631. 632. 648. where voided by acts done by the Jurors 697 Et e contr Villain 37 292 337 765 764. may sue his Lord 282 by Confession 419 may give his goods before seisure 666 View of the vouchee 92 Voyage royall 61 Voucher 92 449 of the heir and the younger Son 110 475. Of the assignee 169 in dower 194 Vsurpation 310 318 upon an Infant 444. Vnity of possession doth not extinguish partition 150 Vses 349. Revoked 72 of a recovery after it is suffered declared 109 regarded as E states 202 superstitious draw good uses 231 good and charitable to be preferred 740 741 752. introduced inconveniences 748 Declaration of them 771 good and superstitious how they shall operate 628. W. WAger of Law 429. 644. 697. 714. 716 419. Not by a prisoner for meat and drink 669. Where not in account and where in debt upon a Bond 51. Not by an Infant 94 Wardships 700. 713. the husband after the death of his wife guardian shall loose it 37. The second ward shall not sue Livery 37. Revived 40. No Wardship because the tenure begins in the Sons 61. of an use 111. Where though not dying seised 142. Not during the Fathers life 277 278 Way 377 Warrants 366 Waiver of goods To whom the goods belong 501. 502 Warranty 238. 314. 326. No bar e contra 20 256 340. Collaterall and Lineall 39. 163. 283 402. 648. Which commenceth by disseisin 45. 63. 144. 187. 250. 564. 617. 619. The Heire not bound to warranty where the Ancestor was not 57. Makes a discontinuance 99. Extinct 118. May increase upon an Estate granted 119 Determined 124. What words imply it 124. void 124. Without the word Heires 187. Implyed in Exchange and partition 191. For life only 206. Followes the Land 250. Intire 256. 262. Deraignment of it 535. Annexed to incorporeall things 411. With Assets bindes the King 411. Expresse and implyed 447. By Husband and wife 555. Continues after Partition 577 Warrantia Charta 157. 469. 719. Not after a Recovery in value 410 Waste 37. 141. 143. 334. 574 465 700. 728. 729. 750 751. 582. By him in the remainder maintainable where 39. Et e contra In Cole mines not opened 67. 573. Against Tenant in Dower and by the curtesie 188. Against the Guardian 575. Successor not charged with it 451. Women Not sworne in Leets 318. Withernam 560 Wills Void 74 Of an Infant when 85. Repugnant void 243. Revoked by marriage 465 Witnesses 453 Writings in parchment or in paper 393 Words In Grants needlesse 245. Of inferiour Ranck exclude them of higher 270. Construed in the mildeâ— sense 704. Generall Imply no certainty 635 636 Writs Of Customes and services 18 317. not to be changed without Act of Parliamen 68. De secunda superoneratione 273. Of Right oâ— Advowson 294. Of Mesne 371. 380. 445. Of Entry upon an Advowson 421. Oâ— Disceit 560. To the Bishop 112. Adversaâ—ia amicabilia and their difference 482 Where to be brought 496 Wreck 489. FINIS
he had been admitted and instituted to a Church whereof any subject had béen lawful Patron the Patron in that case had no other remedie to recover his Advowson but by a writ of right of Advowson wherein neverthelesse the Incumbent was not to be removed And so it was also at the Cōmon Law if an usurpation had béen had upon an Infant or a feme covert having an Advowson by descent or upon tenant for life c. the Infant feme covert and he in the reversion were driven to their writ of right of Advowson for at the Common Law if the Church were once full the Incumbent could not be removed And plenarty generally was a good plea in a Quare impedit or an Assize of Darrein presentment And the reason of all this was to the intent that the Incumbent might quietly intend and apply himselfe to his spiritual charge F. N. Br. 36. k. 143. a. Stat. 35. E. 3. 3. 13. R. 2. 1. 4 H. 4. 21. Howbeit at the Common Law also if any had usurped upon the King and his presentée had béen admitted instituted and inducted for without induction the Church had not béen full against the King the King might have removed him by Quare impedit and been restored to his Presentation for therein he hath a prerogative Quod nullum tempus occurit Regi neverthelesse in that case also he could not present for the pleanarty barred him of that neither could he remove him any way but by Action to the end the Church might be the more quiet in the meane time neither yet did the King recover damages in his Quare impedit at the Common Law But now the Statute of Westm 2. cap. 5. hath altered the Common Law in these cases And by that Statute the King is bound though not named 35 H. 8. 60. because it concerns the Church and Religion A Juris utrum taken against one tenant 6 Where a Juris utrum is brought against several tenants by several summons in the writ F. N. Br. 50. m. it may be taken against one tenant onely for that parcel and after against the others but it is otherwise in an Assize of Novel disseisin if it be not in some special case In a Quare Impedit a Non-suit peremptory 7 In a Quare impedit if the Plaintiff be non-suit after apparence Co. Inst pars 1 139 a. the defendant shall make title and have a writ to the Bishop and this is peremptorie to the Plaintiffe and is also a good barre in another Quare impedit and the reason of this is for that in this case the defendant in favorem Ecclesiae hath the said writ by judgement of the Court And therefore the Incumbent that cometh in by that writ upon such non-suit shall never be removed that being a flat barre as to that presentation And the same Law and for the same reason it is in case of a discontinuance c. A general accusation against a Parson or Vicar not good 8 In a Quare impedit against the Bishop it is not a good plea to alledge that the presentée is a Schismatick in general Co. l. 5. 58. b. Specots case but he ought to express Schisme in particular because it concerning the cure of souls is traversable and requireth more care and circumspection It is otherwise for the putting a Coroner out of his office for there a general suggestion in the writ that he is persona minus idonea is enough and not traversable But the reason is because this is but the keeper of the Rolles of the Crowne the other hath the cure and guard of souls Intire services remains after purchase of part by the Lord. 9 There is a diversitie concerning intire services to be reduced to the Lord as a spurre horse or the like Co. l. 6. 1. b. in Bruertons case Co. Inst pars 1. 149. a. for when they accrue to the sole benefit of the Lord and to the charge of the tenant if the Lord purchase part of the land the whole service is thereby extinct But when such intire services are reserved for works of devotion piety or charity as to marry a poor virgin yearly as you have it in 24 H. 8. Br. tenures 53 or to find a Preacher in such a Church or to provide ornaments for such a Church which tenure is in 35 H. 6. 6. In such case albeit the Lord purchase part yet the intire service remaines Protection 10 A spiritual person shall have a protection cum clausula nolumus to protect him his goods his farmers Co. Inst pars 1 131. b. and their goods from the Kings purveyors and carriages See the Stat. of 14 E. 3. Priviledge of Clergie 11 Before the Statute de articulis cleri cap. 15. Co. l. 11. 29. b. Alex. Poulters case he that confessed the felonie could not have the priviledge of Clergie because he could not make his purgation And although the Statute speakes onely of Abjuration and of an Approver yet the Iudges in favorem Ecclesiae extend it to all other confessions upon the Arraignement of the offender Tithes not extinct by unity of possession 12 If the Parson of a Church purchase a Mannor within his Parish here by this purchase and unity of possession the Mannor Dyer 43. p. 21. 30 H. 8. which was tithable before is now made non decimabilis because he cannot pay tithes to himself but if the Parson make a lease of his Parsonage and Rectorie to a stranger in this case the Parson himselfe shall pay tithes of his Mannor to the Lessée of the Rectorie or if the Parson make feofment of the Mannor the feoffée shall pay tithes to the feoffor being Parson because tithes cannot be extinct by any unity of possession as rent charge may which is issuing out of land but tithes are due by the law of God ex debito for the manurance and tillage of the occupier in whosoever hands the land comes unless it be in the hands of the Parson himselfe And therefore if the Parson let part of his Glebe land for yeares or life reserving rent the lessée shall pay the Parson tithes because they are due of common right vide Br. dismes 17. 2 Nunquam prosperè succedunt res Humanae ubi negliguntur Divinae Humane Affairs never succeed well where Divine Rites are neglected Co. Inst pars 1 246. a. 1. 1 Laches shall not prejudice an Infant in point of descent Laches shall prejudice an Infant c. but it shall be adjudged in him if he present not to a Church within six moneths for the law respecteth more the priviledge of the Church that the Cure may be served than the priviledge of Infancy F. N. Br. 160. c. d. 2 Men of Religion ought not to appeare at the Sheriffes turnes Clergy men not subject to personal charges nor the leet of any other without great cause and
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
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
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
default yet may the tenant give evidence and the Recognitors of the Assize may find for the tenant And therefore in these or the like cases the tenant or defendant non amittit per defaltum as the Statute and Littleton speak and they cite F.N.B. in the point Littl. Sect 674 675. West 2. c. 4. Fitz. 155. e. Neverthelesse others do hold the contrary because albeit in the writ of wast judgement is not given only upon the default yet the default is the principal and the cause of awarding the writ to enquire of the wast as an incident thereunto and the Law alwayes hath respect to the first and principal cause of a thing from whence it takes the first rise and being Co. ibid 364. a. 4. 10 H. 6. 10. 31 H. 6. Entry congeable 54. 22 Where Ioyn-tenants or Coparceners have one and the same remedie if the one enter the other shall enter also Joyn-tenants and tenants a common but where the remedies be several there it is otherwise As if two Ioyn-tenants or Coparceners joyne in a real action where their entry is not lawfull and the one is summoned and severed and the other pursueth and recovereth the moity the other Ioyn-tenant or Coparcener shall enter and take the profits with her because their remedie was one and the same But where two Coparceners be and they are disseised and a descent is cast and they have issue and die if the issue of the one recover her moity the other shall not enter with her because their remedies were several and yet when both have recovered they are Coparceners againe So if two Ioyn-tenants seised of lands the one of full age the other under age be disseised c. And the disseisor die seised and his issue enter the oâ—e of the Ioyn-tenants being still under age And after that he comes to full age the heir of the disseisor lets the lands to the same Ioyn-tenants for their two lives This is a remittor of the moity to him within age because his entry was congeable but the other Ioyn-tenant hath but an estate for life in the other moiâ—y by force of the Lease because his entry was taken away Lit. l. § 656. c. as you shall find it in Littleton Sect. 696. If A. and B. Ioyn-tenants in fée be disseised by the father of A. who dieth seised his sonne and heire entreth he is remitted to the whole and his companion shall take advantage thereof Otherwise here in the case of Littl. for that the advantage is given to the infant more in respect of his person than of his right whereof his Companion shall take no advantage But if the Grand-father had disseised the Ioyn-tenants and the land had descended to the father and from him to A. and then A. had died the entry of the other would have béen taken away by the first descent and therefore he should not have entred with the heir of A. c. Warranty that begins by disseisin 23 If A. de B. be seised of an house Littl. § 368. and F. de G. enter into the same house clayming it to him and his heires and make a feofment thereof with warranty to certaine Barrettors in the Country to be maintained by them by reason whereof A. de B. dare not stay in the house but goes out This is warranty that beginnes by disseisin because that feofment was the cause why A. de B. left the possession of the same house Tenant in tail the reversion in the King 24 If a subject make a gift in tail Co. ibid. 372. b. 3. the remainder to the King in fée Albeit the words of the Statute of 34 H. 8. cap. 20. be whereof the reversion or remainder at the time of such recovery had shall be in the King c. yet séeing the estate taile was not originlly created by the King the estate taile may be barred by a Common recovery So likewise if Prince H. sonne of H. 7. had made a gift in taile the remainder to H. 7. in fée which remainder by the death of H. 7. had descended to H. 8. So as he had the remainder by descent yet in this case also a Common recovery would have barred the estate taile No fine before admitance 25 Popham Chief Justice said that it was adjudged in Sands his case Co. l. 4 28. a. 3. Copihold cases Hubbert and Hamons case that no fine was due to the Lord either upon surrender or descent untill admittance For the admittance is the cause of the fine and if after the tenant denie to pay it that is a forfeiture And so it was also resolved by Wray and Periam in a case betwixt Sir Nich. Bacon and Flatman The cause must be shewed why the Bishop refuseth to admit 26 If a Clerke be presented to a Bishop to be admitted to a Benefice and he refuseth him in pretence of insufficiency or other defect Co. l. 5. 58. a. â— Specots case In a Quare impedit the Bishop ought to alleadge some particular crime or cause why he did not admit him and not generally quòd non est idoneus quod est criminosus schismaticus inveteratus or the like For although it belongs not to the Kings Court to determine schismes or heresies yet the original cause of the suit being matter whereof the Kings Court hath conusance the cause of the schisme or heresie for which the presentée is refused ought to be alleadged in certaine to the intent that the Kings Court may consult with Divines to know whether it be schisme or no and if the party be dead may thereupon direct the Iury which is to try it Felons goods for flying cannot be forfeited by prescription 27 If a man flie for felony his owne goods are not forfeited Co. ibid. 109. b. 1. Foxlâ—yes case untill it be found by the indictment before the Coroner in case of death or otherwise lawfully found upon record that the felony was the cause of his flight For if the goods of any shall be forfeited onely by reason of this flying without more then a man may have such goods so forfeited by prescription as he may have waifs estrayes treasure trowe c. but in as much as bona fugitivorum are not forfeited untill the flight be lawfully proved upon record and because things forfeited by matter of record cannot be claymed by prescription which is a matter in suit for this cause they cannot be claymed by prescription 28 Deodands are the goods which caused the death of the party killed by misfortune Co. ibid. 110. b. 4. and are not forfeit Deodands not forfeited by prescription in England untill it be found upon record that they were the cause of his death and therefore they cannot be claimed by prescription no more than bona fugitivorum for which Vide suprà 27. M. 30 31. El. Co l. 6. 47. b. Dowdales case Co. Inst pars 1
Co. Inst pars 1 167. b. 2. Bracton l. 4. fol. 216. Britt f. 112. a. Ibid. vide Parl. author and the Diseissée bringeth an Assise or if the one Coparcener recover against the other in a Nuper obiit or a rationabili parte it hath béen said by some that the Iudgement shall be that the Demandant shall recover and hold in severalty but Britton is to the contrary for he saith Et si ascuns des parceners soit enget ou disturbe de seisinie per ses autres parceners Un ou plusors al dissiesi vaudra assise per severale pleynte sur ses parceners recovera Mes veny a tener en severalty mes en comune selon ceo que evant le fist Et si deux parceners ou plusors soyet disseisies per les autres parceners chescun parcener avera sa assise en severalte recoverout a tene en comune tout issint serra juge en touts autres brefs de possession entre parceners c. And this séemeth reasonable for she must have her Iudgement according to her playnt and that was of a moity and not of any thing in severalty and the Sheriffe cannot have any Warrant to make any partition in severalty or by Metes or Bounds Joyn-tenants shall do the like 24 If one Ioyn-tenant or Tenant in Common disseise another Co. Inst pars 1 187. a. 2. and the disseisée bring his Assise for the moity in this case though the Plaintife prayeth it yet no Iudgement shall be given to hold in severalty for then at the Common Law before the Statutes of 31 H. 8. cap. 1. and 32 H. 8. cap. 32. by which they are compellable to make partition there might have béen by compulsion of Law a partition betwéen Ioyn-tenants and Tenants in Common but that could not be because by the Rule of Law the Plaintife must have Iudgement according to his plaint and demand which was of a moity and not of any thing in severalty Feoffor Feoffee condition diversity 25 If a man make a feofment in fée upon Condition that the Feoffée before such a day shall re-enfeoffe the Feoffor Co. Inst pars 1 221. b. 3. and the Feoffée take wife entreth into Religion and is profest or make foefment in fée in all these cases the Feoffor may enter presently before the day yea albeit before the day the wife die the Feoffée be deraigned or take back the estate for in all these cases that disability in the Feoffée gives to the Feoffor present advantage of re-entry for the Feoffée being once disabled is ever disabled Howbeit it is otherwise in the case of the Feoffor for if a man make a feofment in fée upon Condition that if the Feoffor or his heires pay a summe of money before such a day and the Feoffor commits Treason is attainted and executed now is there a disability on the part of the Feoffor for he hath no heire but if the heire be restored before the day he may performe the Condition as it was resolved in Sir Thomas Wiats case Trin. 18. Eliz. in C. B. Otherwise it is if such a disability had growne of the part of the Feofféet And the reason of this diversity is because the estate of the land did originally flow from the Feoffor and therefore there remaines still in him an ayery right to have the land again So it is also if the Feoffor enter into Religion and is profest and before the day is deraigned he may in that case also performe the Condition causa quà suprà Dyer 149. 82. 3 4 Ph. M. 26 A feofment was made before the Statute of 27 H. 8. Estate to Baron and Feare joyntenancy to the use of a man and a woman unmaried and of the heires of their two bodies and after they intermarrie and after mariage the husband bargaines and sells the whole land in fée to one of the Feoffées and dies without issue and after the Statute of 27 H. 8. is made the feme claimes the whole by the survivour as Tenant in taile after possibility c. And per Curiam without argument she shall have but a moitie because the Baron and Feme had at first moities as Ioyn-tenants by reason of the Ioyn-tenancie made before marriage c. 26 A derived power cannot be greater than that from which it is derived Derivata potestas non potest esse major primitiva Co. Inst pars 1 162. b. 2. 1 If there be Lord and Tenant and the rent is behind Executors shal not recover â—â—reares and the Lord grant away his Seigniory and dieth the executors shall have no remedie for these arrearages because the Grantor himselfe had no remedie for them when he died in respect of his grant And the words of the Statute of 32 H. 8. 37. which gives remedie for the recovery of arrearages of rent are these in like manner as the Testator might or ought to have done Et sic de similibus Co. ibid. 164. a. 4. 2 If a man hath issue two daughters Coparoeners inherit a like and the eldest hath issue thrée daughters and the youngest onely one daughter here all these shall inherit but the thrée daughters of the eldest shall have no more than the daughter of the youngest viz. a moity because they can enjoy no more than she was to have through whom they claime and that is but a moity c. Vide suprà 25. 5. Littl. § 435. 3 The Attorney of one that is disseised cannot make claime off from the land if the disseisée himselfe durst have gone to the land The Attorney caÌ„not do more then his Master Finch 11. Littl. § 583. Co. ibid. 321. b. 1. Sir Moile Finches case Co. 6. 68. b. 3. 4 If there be Lord and Tenant and the Lord grants his Seigniory by fine to another in fée here A fine of a Seigniory not good without attornment without attornment nothing passeth And therefore in this case if the Conisée die before attornment his heire shall not have it for the heire shall not be in any better estate than his Ancestor was from whom he derives his title So also it is if the Conisée of a fine before attornment bargaine and sell the Seigniory by Déed indented and enrolled the Bargainée shall not distrein because the Bargainor from whom the Seigniory moved had never actual possession 28 Ass Pl. 4. 5 The Bailiffe of a Disseisor shall not say The Bailiff shall not say more then his Master that the Plaintiffe never had any thing in the land for the Master himselfe shall not have that plea because he is not Tenant of the Frée-hold Finch 11. 2 E. 4. 16. 6 The servant shall be estopped to say the Fréehold is his Masters by recovery against his Master though the servant himselfe be a stranger to it for he shall not be in better condition than he in whose right he claimeth
have one Attaint for the false verdict upon the forcible entry and A. shall have another single Attaint for the finding of the detainer Contract by a â—ervant 26 A servant makes a bill Dyer 230. 56. 6. El. testifying the buying of ware to the use of his Master and this without Seale in which he binds himselfe to pay the debt yet In this case debt lyeth not against the servant but onely an Action upon the case for it is the debt of the Master and the Assumpsit of the servant Copihold Dower 27 The Custome of a Mannor is that the Lord the Surveyor Dyer 251. 89. 8 Eliz. or his deputy may demise by copy the Lord deviseth authority to two fo make Customary estates for payment of his debts and dies they hold Court in their own names and grant copies in reversion according to the Custome the Feme of the Lord hath one of the Copiholds assigned by the Sheriffe upon recovery of the third part of the Mannor in Dower And it was held that she should avoid the grant made by the two assigned because she claimes by Title of Dower which is paramount the devise 32 According to the end Knight-service the defence of the Realm 1 The Tenant in Knight-service Co. Inst pars 1 70. b. 2. that is able to performe the Service himselfe may neverthelesse if he please performe it by another as well as he that is sick or an Infant or a Corporation aggregate of many c for Sapiens incipit a fine and the end of this Service is for defence of the Realme And therefore if it be done by an able and sufficient man and the end for which the Law ordained it be effected it is duly performed as it ought to be Tender to the heir female 2 If the Lord tender a comoenable mariage to the heire female within the two yeares Co. Inst pars 1 79. a. 1. 35 H. 6. tit gard 71. and she marry elsewhere within those two yeares the Lord shall not have the forfeiture of the mariage because the onely end which the Statute of West 1. cap. 22. giveth those two yeares is for the Lord to make his tender Co. l. 6. 71. a. The Lord Darcies case or rather that he should not lose the advantage of making his tender And the benefit of those two yeares are given unto him as it were in lieu of the forfeiture in case the heire female should refuse his tender for if he make tender within the two yeares and she accept the same and marry immediately after mariage she is out of ward Errour sued against a villain 3 If Villanage be pleaded by the Lord in an action real mixt Co. Inst pars 1 127. b. 4. 18 E. 4. 6. 7. or personal and it is found that he is no Villaine the bringing of a Writ of Error is no enfranchisement because the end of bringing that Writ against the Villaine is not to commence any new suit against him but onely to defeat the former Iudgement 4 If a Castle that is used for the necessary defence of the Realme Co. Inst pars 1 165. a. 4. Bract. l. 2. fol. 76. Fleta l. 5. c 9. Britton 186 187. Co. ibid. 31. b. 3 descend to two or more Coparceners Castles for defence and others this Castle might be divided by Chambers and Roomes as other houses be but yet for that it is pro bono publico pro defensione regni it shall not be divided for as one saith Propter jus gladii dividi non potest And another saith Pur le droit del esche que ne foeffre division en aventure que la force del Realme ne defaille par taut But Castles ordained for another end viz. for habitation and private use and not for the necessary defence of the Realme ought to be parted betwéen Coparceners as well as other houses and wives may also be thereof endowed but cannot be of Castles for defence c. Co. ibid. 268. b. 2. 5 It is ordained by the Statute of 21 H. 8. cap 19. That Avowry upoâ— distress for rent if the Lord shall distraine upon the lands and tenements holden c. he may then avow c. upon the same lands c. as in lands c. within his Fee or Seigniory c. without naming any person certaine and without making Avowry upon any person certaine c. Here albeit the purview of this Act be general yet all necessary incidents are to be supplied and the Scope and end of the Act to be taken And therefore though he néed not to make his Avowry upon any person certaine yet he must alleadge Seisin by the hands of some Tenant in certaine within forty yeares for otherwise rent and other annual payments are not recoverable by the expresse limitation of the Statute of 32 H. 8. cap. 2. Co. Inst pars 1 288. b. 1. Littl. § 503. 6 If a man be out-lawed in a personal Action by Process upon the Original and bring a Writ of Error if he Release of aâ— actions no plea in erroâ— at whose suit he was out-lawed will plead against him a Release of all manner of Actions personal that séemes to be no plea for by that Action he shall recover nothing in personaltie But the end of the Writ of Error is onely to reverse the out-lawry Co ibid. 368. a. 3. Plowd Com. 91. The Parson of Honylanes case Co. ibid. 369. a. 4. 7 If the Tenant in an Assise of an house desire the Plaintife to dine with him which the Plaintife doth accordingly Licence no seisin and so they be both in the house together and in truth one pretendeth one Title and the other another Title yet the Law in this case shall not adjudge the possession in him that right hath because the Plaintife came not thither to claime his right but onely to dine there at the instance of the Tenant And it would be to his prejudice if the Law should adjudge him in possession and doubtlesse a Trespasser he cannot be for that he came thither upon the Tenants invitation Co. ibid. 369. a. 4. 8 A Lease for yeares to another to the intent to trie the Title in an Ejectione firma is out of the Statute of 32 H. 8. cap. 9. An ejectione firma no bought title which prohibits the buying and selling of pretenced Rights or Titles because it is directed to a lawful end and is in a kind of Course of Law but if it be made to a great man or any other with purpose to sway or countenance the cause that is to be taken within the same Statute being chiefly intended for the suppression of such abuses in the Common-wealth Co. Inst pars 1 381. b. 3. 9 Such construction must be made of a Statute that the end Stat. of Gloc. 6 E. 1. 3. for which it was ordained may be alwayes
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
the land be ancient Demesn again for the estate whereupon the confirmation should enure is defeated Finch 14. Absque impetione vasti determined 67 The priviledg of Absque Impetitione vasti is annexed to the privity of the Estate 3 E. 3. 44. per Shard and Stove so that if the estate Co. l. 11. 83. b. 3 Bowles case unto which that priviledg is annexed be changed the advantage of that priviledge is lost 5 H. 5. 9. a. And therefore if a man make a lease for years without impeachment of wast and after confirms the land to him for life he shall be ever after chargeable with waste 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 the term of his own life Now is he punishable of wast for the first estate unto which the advantage of Absque impetitione vasti was annexed is drowned and gone and therefore that priviledge is gone also So it is likewise of a Confirmation c. Priviledge of 〈◊〉 by the courâ—â—sie lost by aâ—â—nation 68 It was adjudged in the case of one Ewens M. 28. Co. ibid. 29 Eliz. that where the Tenant in taile after possibility of issue extinct granted over his estate the Grantée was forced in a Quid juris clamat to attorn because by the assignment that priviledge was lost And this judgement was affirmed in the Kins Bench in a Writ of Error and with it also agrees 27 H. 6. tit Aide in Statham No prohibition of wast by the alienee of the heire against tenant in dower 69 The heire at the Common Law shall have a prohibition of wast against Tenant in Dower but if the heire grant over the reversion Co. ibid. his Grantée shall not have it 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 then by consequent 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. Co. Inst pars 1 12. b. 4. 70 If a man be seized of lands as heire of the part of his mother Priviledg 〈◊〉 by a purchaâ—â— of the land and maketh a feoffment in fee and taketh back an estate to him and his heirs this is a new purchase and if he die without issue the heirs of the part of the father shall first inherit because the estate unto which the property of descending to the heirs of the part of the mother being by the change of the same estate destroyed that property it selfe is also destroyed So likewise if a man so seized makâ—th a feoffment in fee reserving a rent to him and to his heirs this rent shall goe to the heirs of the part of the father c. Co. ibid. 83. a. 2. Co. l. 4. 88. in Luthrels case 71 If there be Lord and Tenant by Castle-guard Castle-guard gone by aâ—â— nation and the Lord granteth over his Seignory to another In this case the Castle-guard is gone because the Grantee hath not the Castle which is the ground of the service For the same reason it is that if one holdeth of me as of my Mannor of D. by fealty and suit of Court if I grant over the services of this Tenant the suit is gone because the Grantée hath not the Mannor But if the Castle be wholly ruinated Si castrum sit penitùs dirutum yet the tenure remaineth by Knight service and it goeth in benefit of the Tenant as to the guarding of the Castle untill it be re-eedified but ward and marriage belongeth unto the Lord in the meane time Co. Inst pars 1. 53. b. 4. 72 After Waste done Wast made dispunishable there is a special regard to be had to the continuance of the reversion in the same state that it was in at the time of the Waste done for if after the Wast committed the reversion granteth it over though he taketh back the whole estate again yet is the Wast dispunishable So likewise if he grant the reversion to the use of himselfe and his wife and to his heirs yet the Wast is dispunishable and so of the like because the estate of the reversion continueth not but is altered and consequently the Action of Wast for Wast done before which consists in privity is gone also Co. l. 5 28. a. 3. in Middletons case 73 An Executor before probat may release an action Executor may release befoâ—â— probat not the Administrator albeit before probat he cannot bring an action for the right of action is in him So also if two Executors prove the Will and the third refuse yet he may release It is otherwise of an Administrator for if A. release and after take administration that shall not barre him because the right of action was not in him at the time of the release made Co. Inst pars 1 76. b. 3. 74 If there be Lord and Tenant A conditional wardship devested and the Tenant maketh a feoffment in fée of Lands holden by Knight service to the use of the Feoffée and his heirs untill the Feoffor pay unto the Feoffée or his heirs 100 l. at a time and place limited the Feoffée dyeth his heire within age Here the Lord shall have the wardship of body and lands conditionally For if the Feoffor pay the money and enter into the land the wardship of both body and lands is divested Vide pro ibid. Dyer 155. Pl. 20 4 5. P. M. 75 A. by Indenture enrolled in Chancery in consideration of money Use upon an use bargains and sels to B. the Mannor of D. to have and to hold to B. and his heirs to the use of A. for life the remainder to the use of B. in taile Here because the first grant to B. is an use by the Statute of 27 H. 8. and one use cannot be engendred out of another the limitation of the two last uses was adjudged void Dyer 186. 1. 2 3 Eliz. 76 A man gives land to two habendum eis pro termino vitae eorum Cestuy que 〈◊〉 eorum alterius diutiùs viventis ad usum A. B. pro termino vitae suae without more and the two Lessées die In this case it seemed to the Court of Common Pleas that the estate was determined because the estate upon which the use was created and raised was gone c. But Quaere if such an estate had béen made before the Statute of 27 H. 8. of uses Dyer 205. 7. 3 4 Eliz. 77 A writ of extent was awarded in the time of Quéen Mary Extent returnable Quindena Martini and the Writ is executed in the life of the Qu but before the return she dies and yet it was returned and a liberate was thereupon
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
Déed but other things notwithstanding the said confirmation the tenant shall yield to the Lord as reliefe aide pur file marier and aide pur faire fitz Chivalier because these are incidents to the tenure which do still remaine and shall not be discharged without special words by the general words of all actions services and demands The like 31 If a man hold of me by Knight-service Rent-suit Co. ibid. c. and I release to him all my right in the Seigniory excepting the Tenure by Knight-service or confirme his estate to hold of me by Knight-service onely for all manner of services exactions and demands yet shall the Lord have Ward Mariage Reliefe Ayde pur file marier pur faire fitz Chivalier for these be incident to the Tenure which doth still remaine â—he rent pasâ—th with the â—version but â—t è converso 32 Where a Lease for terme of yeares or life Co. ib. 317. a. 1. Littl. § 572. or a gift in taile is made to a man reserving rent c. if the Lessor or the Donor grant the reversion to another and the Tenant attornes the rent passeth to the Grantée albeit the Deed of the grant of the reversion make no mention of the rent because the rent is incident to the reversion but not è converso for if a man in this case will grant the rent saving the reversion albeit the Tenant attorne yet that rent is but a rent-secke c. Co. ibid. 319. a. 3. 9 H. 6. 16. The Deane of Pauls case 20 Eliz. 33 If the Lessor disseise Tenant for life A rent incident or not incident to a reversion Diversity or ouste Tenant for yeares and maketh a Feofment in fée by this the rent is reserved upon the Lease for life or yeares is not extinguished but by the regresse of the Lessée the rent is revived because it is incident to the reversion And so it hath béen adjudged But if a man be seised of a rent in fée and disseise the Tenant of the land and make a Feofment in Fée the Tenant re-entreth this rent is not revived And to note a diversity betwéen a rent incident and a rent not incident to a reversion c. Littl. §. 590 591. Co. ibid. 324. 34 If I be seised of a Mannor parcel in demesne and parcel in service and I give certaine acres of land Rent incident to the reversâ—on A Donor cannot be ousted of it parcel of the demesnes to another in taile rendring rent in this case if I be disseised of the Mannor and all the Tenants attorne and pay their rents to the Disseisor and the Tenant in taile also pay to him the rent by me reserved and after the Disseisor dies and his heir is in by descent yet in this case I may well distraine the Tenant in taile and his heires for the rent so by me reserved because the rent reserved is incident to the reversion and the reversion of the land given in taile is still in me notwithstanding the disseisin and descent for as long as the Donée in tail is in possession he preserves the reversion in the Donor and so long as reversion continues in the Donor so long do the rents and services as incident thereunto belong to the Donor neither can the Donor be put out of his reversion unlesse the Donée be put out of his possession and if the Donee be put out of his possession consequently is the Donor put out of his reversion But if the Donee make a regresse and regaine his estate and possession thereby doth he ipso facto revest the reversion in the Donor c. There is the same reason of a Lease for life or yeares rendring rent c. 35 He that hath a remainder expectant upon an estate taile Error may bâ— brought by 〈◊〉 Reversionâ—â— or remâ—indâ—â— shall have a writ of Error upon a Iudgment given against the Tenant in taile Co. l. 3. 3. b. 4. The Marquess of Winchesters case albeit there was no such remainder at the Common Law For when the Statute de donis conditionalibus enabled the Donor to limit a remainder upon an estate taile all actions which the Common Law gave to privies in estate are by the same act as Incidents implicitely given also according to the rule of the Common Law And therefore as those in reversion or remainder expectant upon an estate for life shall have a writ of Error by the Common Law of a judgement given against Tenant for life although they were not made parties by aide prayer voucher or receipt So also since the Statute de donis conditionalibus shall he have that hath a reversion or remainder expectant upon an estate taile Co. l. 4. 8. b. 3. Bevils case 36 The seisin of a superiour service is seisin of all inferior services Superiour sâ—â—vice seisin oâ— inferiour incident unto it as seisin of Escuage is seisin of Homage and Fealty and seisin of Homage is seisin of Fealty and seisin of Rent is seisin of Fealty where the Seigniory is by Fealty and Rent Co. l. 4. 23. a. 1. Deal Rigdens case 37 Where by the custome of a Copihold Mannor plaints have béen made in the Court of the Mannor in the nature of reall actions Plaints in 〈◊〉 copihold 〈◊〉 to bar the 〈◊〉 in taile if a recovery in such a plaint be had against Tenant in taile admitting that Copihold land may be intailed that recovery shall work a discontinuance and shall take away the entry of the issue in taile for in as much as plaints in the nature of reall actions are warranted by the custome this is an Incident which the Law annexeth to the said custome viz. that such a recovery shall make a discontinuance which agrees with the reason of the principall point in Browns case Co. l. 4. 21. a. And the like judgement was given in B.R.M. 36 37 Eliz. betwixt Clun and Peale Rot. 1417. Copihold seâ—ered by cuâ—ome contiâ—ue severed â—lbeit surrenâ—red together â—n one copy 38 If a Copiholder is seised by force of several Copies Co. l. 4. 27. a. 4. Taverners case per Cur. Co. ibid. 28. a. 2. viz. of Black acre by 4d rent of White acre by vj d. and of Gréen acre by xij d. rent and he makes waste in part of Black acre or makes feoffment of it or denies the rent of it whereupon Black acre is forfeited This is no forfeiture of White acre or Gréen acre for although they are all in one and the same hand yet every of them is severally holden and to every acre there is a severall condition as an incident implicitely annexed unto it so that the forfeiture of one cannot be the forfeiture of any of the other because the severall conditions in Law do insue the severall tenures So likewise if the Copiholder of the said thrée acres surrender them altogether in one surrender to the use of A.
The case of the City of London upon the forfeiture of the paine of 5 l. for that he non existens libera persona c. usus est manuali occupatione de Tallow-chandler c. And upon the return of the Habeas Corpus into the Kings Bench the Court tooke advisement upon that part of it whereby it was averred that he non existens c. usus est manuali occupatione de Tallow-chandler c. and shewed not that he sold any Candles c. For if he made them for his owne use and sold none for gaine he might well do it as every one is permitted to bake or brew c. for their own use c. but it seemed to be implyed by the same averment that it was his trade by which he got his living viz. by selling the commodities of his Trade and not that he made them onely for his own use For it is not properly said that one useth a manual occupation when he onely doth it for himselfe as he that brews or bakes for his own use cannot be properly said to use the occupation of Brewer or Baker c. Malice praepence implied in indictments 12 If one kill a Minister of Iustice in the execution of his office Co. lib. 9 67. b. 3. Mackallies case the Indictment may well be general viz. that the Prisoner felonicè voluntariè ex malitia sua praecogitata c. percussit c. without alleadging any special matter for the evidence will well maintain the Indictment inasmuch as in this case the Law implies malice praepence So if a Thiefe which offers to to rob a true man kils the true man in resisting the Thiefe this is murder of malice praepence or if one kill another without any provocation or without any malice praepence that can be proved the Law adjudgeth that to be murder and implies malice And in both these cases they may be indicted generally that they killed de malice praepence for malice implied by the Law being given in evidence is sufficient to maintaine the generall indictment And so it was adjudged in Mackalleyes case for killing Fells a Serjeant of London Nuper implies the time past 13 If a man plead Co. l. 10. 59. b. 1. The Bishop of Sarums case Co. l. 10. 75. b. 2. The case of the Marshalsea that such a grant made per Iohannem nuper Episcopum Sarum c. was void These words nuper Episcopum c. imply and import that now he is not Bishop of Sarum Jurisdiction of a Court prohibited 14 When a Court is prohibited by Statute to hold plea of certaine causes if one be sued there contrary to that Statute he may not onely have a Supersedeas in the nature of a prohibition to cause the Iudge to cease proceeding but likewise shall have an action upon that Statute against the party that sues contrary to the same Statute notwithstanding that it is in course of legal proceeding and that the words of the Statute do not expressely give any such action to the party for that way of reliefe is a benefit which as a consequent is implied in every such Statute Co. lib. 11. 76. a. 4. Magdalen Colledge case 15 By the Statute of 18 Eliz. cap. 2. Good conâ—â—â—â—ration impâ—â—ed no conveyances of the Quéen are confirmed but such as are for the satisfaction of debts c. and other good consideration for so it is in the preamble and although good is omitted in the body of the Act yet it is necessarily implyed not onely by the connexion of the pâ—eamble to the purview but also by this word consideration which as in 16 Eliâ— Dyer 336. is a cause or occasion meritorious requiring a mutual recompence in Déed or in Law Co. lib. 11. 86. b. 3. The case of Monopolies 16 It appears by the Writ of Ad quod damnum in F. N. B. 222. Monopoliâ—â— that every gift or grant of the King hath this condition either expresly or implicitely annexed unto it Ità quòd patria per donationem illam magis solito non oneretur sèu gravetur And therefore every grant made in grievance or prejudice of the Subject is void Co. l. 11. 98. a. 4. James Bags case 17 There is a condition in Law tacitè annexed to the fréedome or liberty of a Citizen or Bâ—rgesse which if he break A Freemaâ— a Corporaâ— he may be dis-infranchised as if he commit any act which is against the duty and trust of his fréedome and to the prejudice of the City or Burrough and against the Oath which he tooke when he was made Frée-man these are causes of his removal Fitz. N. B. 134. f. 18 If the Tenant holds of his Lord by Homage Ancestrel Homage Ancestrel impâ— a warranty and is impleaded Albeit he hath no charter of it yet shall he have a Writ of Warrantia Cartae against the Lord for that tenure implies a Warranty Fitz. ibid. g. 19 If a man without deed makes a gift in taile Warranty aâ—plied or a lease for life rendring rent and after he is impleaded in an action wherein he cannot be vouched In that case he shall have a Writ of Warrantia cartae against the Donor or Lessor or his heire that hath the reversion for the reversion and the rent reserved makes a Warranty in Law by the Statute of Bigamis cap. ultimo albeit he hath no déed of it Fitz. ibid. h. 20 If a man grant land by these words Dedi concessi Dedi implies a warranty c. he shall be bound to Warranty during his life but not his heirs unlesse he be thereunto especially charged by the Grantor for these words Dedi concessi c. imply a Warranty and if the Feoffée be impleaded he shall have a Writ of Warrantia cartae against the Feoffor by force of those words in the deed c. 4. Dyer 26. 171. 28 H. 8. 21 Russell brings an action upon the case against A. for saying that he was a false Thiefe An action of the case for words and that such a night he would have robbed him to his damage c. And A. comes Et defend it vim c. quoad propalationem c. querens non fuit damnum in forma qua c. to which plea the Plaintiff demurred in Law and Iudgement was given for him because by implication the words are confessed and no damage can be more grievous then taking away a mans good name and a Writ of Inquiry was awarded 22 Vide Max. 19. Pl. 1. Dyer 41. 4. c. 30 H. 8. 23 In a Replevin the Plaintiff is non-suit Replevin Second deliverance whereupon the Defendant had a Returno habendo but about the same time the Plaintiff prays a Writ of second deliverance and had it and both the Writs were in the Sheriffs hands at one time unserved In this case the Writ of
of Lancaster was holden of the King in Capite but when they remained in one and the same person the ancient tenures of the Crown did sléep perpetuo somno because the King could not hold of himself F. N. B. 21. i. 24 In the Common Pleas upon Error in Processe Errour in 〈◊〉 not reversâ— in the same Court or in default of the Clerks the Iustices there may reverse their owne judgement so it be done the same terme without suing any Writ of Error And if it be deferred till another terme yet may it be reversed by the said Iudges upon a Writ of Error But if it be Error in Law which is the default of the Iustices themselves that Court cannot reverse such a judgment no not by a Writ of Error For that Error is to be redressed in another Court before other Iustices by Writ of Error because the Iustices of the Common Pleas are not competent Iudges of their owne error Conspiracy 25 A writ of Conspiracy cannot properly lye against one single person because one person cannot be said to conspire with himself F. N. B. 116. l. None can be a prisoner to himself 26 If the Warden of the Fléet who hath his office in fée Pl. Co. 37 a. 3. The Sheriffs of Londons case die seised his Son and Heire being then in prison and the office descends unto him being so in prison In this case the Law will adjudge him out of prison albeit the Fetters be upon his legs for that he cannot kéep himself in prison and therefore shall be adjudged at large No donor to himself Stat. 27 H. 8. 27 If A. seised of lands in fée before the Statute of uses made Anno Pl. Co. 59. a. 4. Wimbish and Talbois case 27 H. 8. had granted the same lands to Feoffees in trust to the use of himselfe and his wife in tail and afterwards the Statute is made Here by force of that Statute the possession being conveyed to the use the Feoffors are Donors and not A. For it seemeth improper and repugnant that A. should be Donor to himself Feoffees of lands charged with a recognisance 28 If the Conisor of a Recognizance according to the Statute of 23 H. 8. cap. 6. enfeoff the Conisee of parcel of the land Pl. Co. 72. b 3. Rosse Vens Sir Tho. Pope in Audita quaerela F. N. B. 104 n. 105. c. Vide Dyer 193. 30. 2 3 Eliz. and a stranger of another parcel and reserve parcel in his own hands Here the Conisee shall not have execution against the stranger For if one Feoffee of the Conisor where his land onely is put in execution may have an Audita quaerela against all the other Feoffees to make their lands also to be put in execution and to be contributary to the intire charge By the same reason if the Conisee himself be one of the Feoffees the lands in the hands of the other Feoffees shall not be chargeable with the execution for that the Conisee himself cannot be contributary with them for his part towards the satisfying of the charge because he cannot contribute to himself neither can he be contributary for a personal thing due to himself Neither yet shall the Charge be apportioned but all shall be extinct as against the other Feoffees Howbeit against the Conisor himself the Conisee shall have execution for the parcel still remaining in his hand c. Lands to be sold by Executors 29 At the Common Law Co. Inst pars 1. 113. a. 3. if lands had béen willed to be sold by Executors or had béen devised to Executors to be sold if any of them had refused the rest could not have sold them but now that is holpen by the Statute of 21 H. 8. cap. 4. viz. the first by the expresse words of that Statute and the other by the equity of the same Howbeit in neither of those cases when the one refuseth can the other make sale to him that so refuseth because he is party and privy to the last will and remaineth Executor still The younger â—rother chargeth the land â—f the elder 30 The younger brother disseiseth the elder Dyer 5. 1. 25 H. 8. who is barred in an Assise by a false oath the younger chargeth the land and dies without issue and the land descends to the elder brother In this case the elder brother is without remedy because there is none but himself against whom he may bring the attaint and therefore he shall still hold the land charged â—ythes 31 If the Parson of a Church purchase a Mannor within his Parish Dyer 43. 21. 30 H. 8. Here by this purchase and unity of possession the Mannor which was tytheable before is now made non decimabilis because he cannot pay tythes to himself â—itnesse 32 It was resolved in the Common Bench Co. Inst pars 1 6. b. 4. Pasch 10 Jac. that a wife cannot be produced as a witnesse either against or for her husband because they are one person in Law Duae animae in carne una and he cannot be a witnesse to or for himself in his own cause Dyer 220. 14. 5 Eliz. 33 A recognizance was acknowledged to Sir Nicholas Bacon and two others before Sir Nicholas himself being then Lord Kéeper Recognisance and it was adjudged void as to him and good for the others Dyer 279. 10 11 Eliz. 34 The Citizens of Yorke were incorporate by R. 2. Yorke Citie by the name of Major Sheriffs and Citizens and claim to be so before by prescription and to have a custom to seise goods forraign bought forraign sold Now in a suit against them for seising such goods the Venire facias issued to the Sheriffe of the County De vicinetu Castri Eborum because it was next adjacent to the Citie for it was not thought fit to direct it to the Sheriffs or Coroners of Yorke because they were Citizens and parties Dyer 304. 54. 14 Eliz. 35 The next avoydance is granted to thrée Quare Impedit Habendum iis uni eorum conjunctim divisim the first presents the third who is admitted instituted and inducted and adjudged good Howbeit if the Bishop had refused to admit him alone his Quare Impedit peradventure would have failed he having a joynt Interest in the avoydance and the Habendum being void in Law as it séems Hob. 10. Fryer and Gildridg 36 The Obligée made the wife of one of the Obligors his Executrix Debt extâ—â— and died the woman Executrix administred then her husband being one of the Obligors made her his Executrix and died leaving assets to pay the debt then she died and a stranger took administration of the goods of the Obligée unadministred and brought his action against the surviving Obligor but it was adjudged per Curiam that the action would not lie because when one of the Obligors made
the Executrix of the Obligée his Executrix and left assets she could not sue her selfe but the debt was presently satisfied by way of retainer and consequently no new action could be had for that debt Vide suprà 46. 4. Hob. 85. Day and Savage 37 Trial of the Customes of London shall not be by Certificate from the Major and Aldermen of that Citie albeit it be by their Recorder to the superiour Courts of Iustice Customes of London because they cannot be Iudges and parties when their Customes come in question 55 The Law favoureth privity Vide Max. 47. 16. Co. Inst pars 1 28. a. 2. 1 Tenant in tail after possibility of issue extinct hath divers priviledges annexed to his estate Tenant in 〈◊〉 after possiâ—â—â—â—ty which a bare Tenant for life hath not for which see Co. Inst pars 1. 27. b. neverthelesse if he grant over his estate to another his Grantee shall not have them for he hath those priviledges in respect of the privity of his estate and of the inheritance that was once in him And therefore it was adjudged in the case of one Evens Mich. 28 29 Eliz. that where Tenant in tail after possibility of issue extinct granted over his estate to another that the Grantée was compelled to atturn in a Quid juris clamat as a bare Tenant for life Quid jurâ—â— clamat and is so to be named in the writ For by the assignment the privity of the estate being altered the priviledge was gone and this judgement was affirmed in a writ of Error And herewith also agréeth 27 H. 6. Aid Statham 29 E. 3. 1. b. Co. l. 11. fol. 83. b. Bowles case Vide infrà 116. Co. ib. 35. a. 1. 2 If the husband make several feoffments of several parcels Assignment Dower by 〈◊〉 Feoffee 〈◊〉 the heire and dyeth and one of the Feoffées assign dower to the wife of a parcel of land in satisfaction of all the Dower which she ought to have in the lands of the other Feoffées In this case the other Feoffées shall take no benefit of that assignment because they are strangers thereunto and cannot plead the same But in the same case if the husband died seised of other lands in Fée-simple and the same descended to the heire and the heire endoweth the wife of certain of those lands in full satisfaction of all the dower that she ought to have as well in the lands of the Feoffées as in his own lands this assignment is good and the several Feoffées shall take advantage of it And therefore if the wife bring a Writ of Dower against any of them they may vouch the heire and he may plead the assignment which he himself hath made in safety of himself lest they should recover in value against him So as there is a privity in this respect betwéen the Heire and the Feoffées and by this means the assignment may be pleaded by the heire that made it Livery to the Lessee for years 3 If a man let lands for years the remainder over to another in fee Co. ib. 49. a. â— 143. a. 2. Albeit livery be not necessary for the Lessee for years yet because the immediate possession belongeth to him he must of necessity take the livery otherwise no estate can passe to him in remainder And livery being accordingly made unto him it shall convey the estate to him in remainder by reason of the privity of those estates For the particular estate and the remainders which depends upon it though there be never so many do all make in Law but one estate and therefore livery to the Lessee for yeares shall enure to him in remainder c. Waste 4 The advantage of bringing an action of Waste consists in privity Co. ib. 53. b. 3 4. for if after the Waste done the Reversioner granteth away his estate albeit he afterwards taketh back the whole estate again yet as the Waste dispunishable So likewise if he grant the reversion to the use of himself and his wife and of his heirs yet the Waste is dispunishable c. because the estate of the reversion wherein the privity is to that purpose consisted continueth not but is altered c. If an estate taile determines hanging the action of Waste so that the Plaintiff becomes Tenant in taile after possibility c. the action of Waste is gone If the Tenant doth Waste and he in the reversion dieth the heire shall not have an action of Waste for the Waste done in the life of the Ancestor nor a Bishop Master of an Hospital Parson or the like for Wast done in the time of the Predecessor And so if Lessee for years doth Waste and dieth an action of Waste lyeth not against the Executor or Administrator for Waste done before their time But if there be two Coparceners of a reversion and Waste is committed and the one of them die the Aunt and the Niece shall joyn in an action of Waste c. Vide Inst 116. â—mage 5 If there be two Coparceners or Ioyntenants of a Seigniory Co. ib. 67. b. 2. if the Tenant doth Homage and Fealty to one of them he shall be excused against the other and this is by reason of the privity and intirenesse of their estate Homage exâ—inct 6 In homage Ancestrel Co. ib. 102 b. 3. continuance of bloud on the Lords side is not always necessary for an Abbot Prior Bishop or the like may be Lord by Homage Ancestrel but yet there ought to be privity of succession time out of minde in one and the same politique body for if that body be once dissolved though a new one be bounded of the same name and all the possessions be granted to them yet the Homage Ancestrel is gone Howbeit if a Prior and Covent be translated Concurrentibus hiis quae in jure requiruntur to an Abbot and Covent or to Deane and Chapter In that case because the privity is preserved the Homage Ancestrel doth also remain for albeit the name be changed yet the body was never dissolved but in effect remaineth still c. Homage exâ—inct upon aâ—ienation 7 If the Tenant that holds by Homage Ancestrel Co. ib. 103. a. 3. Litt. Sect. 147. aliens his land to another the Alienee shall not hold of the Lord by Homage Ancestrel because the privity of the estate is altered and the continuance of it in the bloud of the Tenant is dissolved And if the Tenant take againe an estate in see of the land from the Alienee he then holdeth by Homage but he shall not hold by Homage Ancestrel causa qua suprà So it is also if the Tenant make a feoffment in fee upon condition and dieth his heire performeth the condition and re-entreth Here the Homage Ancestrel is destroyed in respect of the interruption of the continuance of the privity and estate as it was agréed in a Case between the
ought to be continued and the condition ought to be performed by B. or his heirs Co. l. 8. 75. b. 1. The Lord Staffords case and the performance thereof is not available if the estate be altered and this is proved by the Lord Lovels case in Pl. Com. for if the Lessée for life or for yeares or Donée in taile who hath such a condition annexed to his estate alien before the Condition performed or if the Lessée for life or years surrender unto the Lessor he shall never after take benefit of the Condition because the privity of the estate in such case ought to continue for that the encrease of estate ought to enure upon the particular estate as upon a foundation And therefore in this case if Lessée for life or for years or the Donée alien all their estate and take an estate again and after perform the Condition yet nothing shall thereby increase unto him because by the absolute alienation the privity for a time was absolutely destroyed which by any taking againe of the estate cannot be revived as if a Coparcener after partition makes feofment in fee and then takes againe an estate to her and her heirs in that case the privity of the estate to have aid to deraigne the warranty paramount is destroyed 11 H. 4. 22. Vide 38. E. 3. 20. b. but if Lessée for life grant his estate upon Condition and enter for the Condition broken and after that performe the Condition annexed to his estate there peradventure the fee shall accrue unto him for the possibility was not absolutely destroyed and when he enters for the Condition broken he is in by his ancient estate neither yet is it necessary that the particular estate should continue to all respects but if such privity of estate continue as is capable of the increase of an estate it sufficeth And therefore if such a Lessée for life make a Lease for years or such a Lessée for years make a Lease for a lesse terme or if such a Donée make a Lease for his own life or for years yet for the privity of estate that still continues in them they are capable of a farther increase of their estate Howbeit if such a Tenant in taile make a Lease pur auter vic there he is not capable of any increase because he hath gained a new redersion in fee and the first privity remaineth not And yet in that case if the Lessée for life die then is the first privity of the estate revived So if a man make a gift in special tail with such a condition of encreaser as abovesaid and after the Feme dies without issue so that he is now become Tenant in tail after possibility of issue extinct In this case albeit the estate be changed yet in as much as the privity doth still remaine he may by the performance of the Condition have fee afterwards So also if a Lease be made to two with condition to have fée and the one dies the survivour may performe the condition and have fee but if the same Iointenants have made partition of the terme the condition is destroyed for the estate in fée ought to increase to them joyntly and not in severalty c. Vide 34. 11. Co. l. 9. 17. b. 2. Anne Bedingfields case 110 There is a greater privity Voucher 〈◊〉 Dower when the Feme is endowed of the immediate estate which the heir of the Baron hath by descent than when she is indowed either by a stranger or of any other estate for if the Feme be endowed of the immediate estate descended to the heir of the Baron if she be impleaded afterwards she shall vouch the heir and shall be newly endowed of other lands which the heir hath but if the Feme be endowed by the Alienée of the Baron or of the heir if she be impleaded she shall not vouch the Alienée to be newly endowed And this is the cause that when a Feme brings a Writ of Dower against the Alienée of the Baron c. and he vouch the heir the Demandant may testifie that the heir hath lands descended unto him in the same County for to another County the original doth not extend and may pray that she may be endowed of his estate and this is for the benefit of the Voucher to be newly endowed Vide in 4 E. 3. 36. 6 E. 3. 11. The Tenant in a Writ of Dower voucheth the heir of the Baron and the Demandant testifies that he hath lands by descent c. in the same County and judgement was given against the heir but if he had had none there it should have been given against the Tenant In 6 E. 3. 20. The Feme of a stranger brings a Writ of Dower and the Tenant voucheth the heir c. the Demandant shall not recover against the heir because there wants privity In 18 E. 3. 36. in Dower the Tenant voucheth and the Vouchee voucheth the heir of the Baron of the Demandant the Demandant testifies that the heir hath assets by descent in the same County here the Demandant shall not recover against the heir but against the Tenant onely for in this case there is not immediate privity betwixt the Demandant and the heir because the Demandant shall recover against the heir onely when the Tenant in Demesne voucheth him and not when the Vouchée of the Tenant in Demesne voucheth him Detainment of Charters no â—â—ea 111 No stranger albeit he be Tenant of the land Co. ib. 18. 2. 3. and hath the evidences conveyed unto him may in a Writ of Dower plead Deteinment de Chartres for this plea lies onely in privity viz. for the heir of the Baron And the heir also in this case may divers wayes be in the degrée of a stranger so that he shall be disabled from pleading Deteinment of Chartres as 1 If the heir hath the land by purchase 2 If the heir did deliver the Charters to the Feme as it is resolved 7 E. 3. Dower 101. 3 If the heir be not immediately vouched viz. by the Tenant in the Writ of Dower but by his Vouchee 18 E. 3. 36. 4 If the heir comes in as Vouchée having no lands in the County where the Dowâ—â— is demanded 5 If he comes in as Tenant by receit as appears in 16 E. 3. tit Dower 57. and by many other bookes And the reason hereof is manifest by the true pleading of deteinment of Charters for he who pleads that plea in barre of Dower ought to plead that he hath béen alwayes ready and yet is to render Dower if the Demandant will deliver unto him his writings now Tenant by receit or such a Vouchée as is aforesaid cannot plead that he hath been alwayes ready to render Dower for that the Demandant cannot recover against the heir in such cases viz. either being Vouchée or received neither can he render unto the Demandant the Dower which by the Law doth belong unto her
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
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
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
in the Mannor As if A. gives the Mannor of B. to B. in taile and after the Donor is attainted of treason whereby the King is seised of the reversion and after by his Letters patents grants Manerium de D. to another and his heirs In this case albeit the King grants the Mannor of D. is in possession yet the reversion shall passe for the King hath an estate viz. the reversion in fée grantable in him the estate taile of the common person néed not be recited c. The King not deceived 31 If the King be Tenant pur auter vie Co. l. 7. 12. a. 4. in Englefeilds case and makes a lease for forty years Here albeit the King having but an estate pur auter vie cannot absolutely contract for a lease of forty years yet without any recital or mention of the estate for life the lease is good for the lease for years is in judgment of Law lesse than a lease pur auter vie and the King doth no wrong or prejudice to any by such a demise neither yet is he deceived in his grant because in judgement of Law that is a lease for forty years if Cestuy que vie shall so long live c. Fine in a court Leet 32 If for an amerciament upon an offence committed out of a Court Léet and found by the Iury whereof the Iury onely have conisance and for which they onely are to impose the amerciament the Lord of the Léet hath power to distrain Co. l. 8. 41. a. 4. in Greisleys case c. Much more for a fine imposed by the Steward in Court for some contempt c. committed in the Court it self and whereof the Steward only hath conisance shall the Lord c. distrain the goods of the party offending and impound them c. or else make sale thereof at his election c. A lease for years lesse than an estate for life 33 If a man upon a grant reserve unto himselfe power to make leases so that they shall not excéed 21 years or thrée lives In that case Co. l. 8 70 b. in Whitlocks case he may make leases of 99 years if any three shall so long live because such a lease excéeds not thrée lives but is in truth lesse for an estate for years which is but a Chattel is lesse in estimation of Law than an estate for life which is a Franktenement An Officer may make a Deputy 34 When an Officer hath power to make assignes he hath power Co. l. 9. 48. b. 4. in the Earl of Shrewsburies case implicite to make Deputies For Cui licet quod majus est non debet quod minus est non licere And therefore when an office of Stewardship or the like is granted to one and his heirs he may thereby make an Assignée and by consequent also a Deputy c. An arrest within the liberties of London 35 In Mackallyes case in the 9 Rep. exception was taken to the Indictment viz. that the precept was to arrest the Defendant Co. l. 9. 67. a. 1. in Mackallyes case Si inventus foret infra libertates Civitatis praedicti viz. London And the Indictment was Quid in parochia Sancti Martini Bowyer Rowe in Warda de Farringdon infra Londinum praedict the Serjeant arrested him and so he pursued not the precept for the precept was infra libertates London But notwithstanding that exception the Indictment was resolved to be good because the said Parish and Ward in London shall be intended to be within the liberties of London For these words liberties of London have a larger extent than the word London and do include in them the Citie of London it self c. Justices of the Kings Bench are Justices of Gaol delivery Oyer and Terminer 36 The Justices of the K. Bench are taken to be within the words of the stat of 2 E. 6. cap. 24. which ordains Co. l. 9. 118. b 2. in the Lord Sanchiers case that for the tryal of accessaries in another County than where the principal was indicted Certificat of the Indictment of the principal shall be made to the Iustices of Gaole delivery or of Oyer and Terminer before whom the accessary is to be tryed c. for that the Iustices of the K. Bench are the sovereign Iustices of Gaol delivery of Oyer Terminer and therefore they are included within the same words And upon the same ground it is holden in 7 E. 4. 18. 4 H. 7. 18. that if an indictment of forcible entry be removed into the Kings Bench the Iustices of that Bench shall award restitution and yet the Sâ—at of 8 H. 6. cap. 9. speaks onely of Iustices of Peace but the reason is because the Iustices of the Kings Bench have sovereign and supream authority in such cases And therefore in the Lord Sanchiers case in the 9 Rep. the Iustices of the Kings Bench wrote according to the said Act of 2 E. 6. to the Iustices of Gaole delivery in London before whom the Principal was tryed c. who thereupon certified the record accordingly c. Co. l. 11. 60. a. 3 Doctor Fosters case 37 The Statute of 23 Eliz. cap. 1. which ordains Attaint moâ—â— than conviâ—â— that every person c. being lawfully convicted of not going to Church c. shall forfeit xx l. per mensem c. séems to intend onely conviction by verdict because that being a penal Law shall not be understood by equity Yet in that case he against whom any judgement is given either upon a Nihil dicit or upon an insufficient plea pleaded and demurrer thereupon is convict within the purview of the same Stat. For albeit this will not follow Such a man is convict therefore he is also attaint and judgement is given against him Yet this is a good consequence Such a man is attainted or adjudged ergò he is convict For he that is attainted or against whom judgement is given is convict and more c. 22. F. N. B. 56. 1. 38 In a writ of Waste if the premisses thereof rehearse Quare Waste cum de Communi Concilio regni nostri Angliae provisum sit quod non liceat alicui facere vastum c. in terris domibus boscis gardinis And in the end of the same Writ it is alleaged quod defendens vastum fecit in terris onely or in boscis onely or in houses onely yet is the Writ good For omne majus continet in se minus c. F. N. B. 136. f. 39 If the Tenant holds by the services Tenure by which the Mesne holds over and also by some other this is good equality to have acquital because it is such and more c. F. N. B. 150. p. 40 Glanvile saith that ad ostium ecclesiae Dower ad â—â—um man cannot assigne for dower more than a third part and if he doth the
reserving a rent to one of them the rent shall enure to them both because the reversion whereunto the rent is incident remains still in jointure unlesse the reservation be by déed indented and then he onely to whom it is reserved shall have it c. Vide Dyer 308. 75. Winters case Damages shal be several amongst Copâ—rceners 16 If thrée Coparceners recover land and damages in an Assise of Mortdancester albeit the judgement be joint Co. ib. 198. a. 4. viz. that they shall recover the land and damages yet the damages being accessory though personal do in judgement of Law depend upon the Frée-hold being the principal which is several And although the words of the judgement be joint yet shall it be taken for distributive And therefore in that case it two of them die the entire damages do not survive but the third shall have execution according to her portion c. A right may be forfeited 17 The right of a particular estate which is as accessory may be forfeited as well as the particular estate it selfe which is the principal and he that hath but a right of a Remainder or reversion Co. ib. 252. a. 2. shall take benefit of such a forfeiture As if Tenant for life be disseised and levy a fine to the Disseisor he in the reversion or remainder shall presently enter upon the Disseisor for the forfeiture So it is also if the Lessée after the disseisin had levied a fine to a stranger For albeit to some respects Partes finis nihil habuerunt yet is it a forfeiture of his right Co. ib. 252. b. 1. 18 The entry of a man to re-continue his inheritance or frée-hold Several disseisin must have several entries and actions must insue his action for recovery of the same As if thrée men disseise me severally of thrée several acres of land being all in one County and I enter in one acre in the name of all the thrée acres this is good for no more but for that acre which I entred into because each Disseisor is a several Tenant of the frée-hold as I must have several actions against them for the recovery of the land so mine entry must be several And so it is if one man disseise me of thrée acres of ground and letteth the same severally to thrée persons for their lives c. There the entry upon one Lessée in the name of the whole is good for no more than that acre which he hath in his possession But if the Disseisor had letten severally the said thrée acres to thrée persons for years there the entry upon one of the Lessées in the name of all the thrée acres shall re-continue and revest all the thrée acres in the Disseisée for that the Disseisée might have had one Assise against the Disseisor because he remained Tenant of the Frée-hold for all the thrée acres and therefore in that case one entry shall serve for the whole So if one disseise me of one acre at one time and after disseise me of another acre in the same County at another time in this case my entry into one of them in the name of both is good for that one Assise might be brought against him for both the Disseisins But if I enfeoff one of one acre of ground upon condition and at another time I enfeoff the same man of another acre in the same County upon condition also and why the conditions are broken and entry into one acre in name of both is not sufficient for that I have no right to the land nor action to recover the same but a bare title and therefore several entries must be made into the same in respect of the several conditions But an entry into one part of the land in the name of all the land subject to one condition is good although the parcels be several and in several Towns And so note a diversity betwéen several rights of entry and several titles of entry by force of a condition Co. ib. 387. a. 4. 19 If Tenant in Fée-simple that hath a warranty for life Warranty 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 the warranty extended in that case to the whole estate of the Feoffee in Fée-simple But if Tenant in taile make a lease for life the remainder in fée c. And a collateral Ancestor confirms the estate of the Tenant for life with warranty for term of life of the Tenant for life and dies In this case if the Tenant for life be impleaded and vouch he shall recover in value but an estate for life because the warranty doth extend to that estate onely Co. Inst pars 1. 392. b. 4. 20 If a man make a gift in taile with warranty All accessaries to an estate taile are intailed as well as the estate it selfe this warranty is also entaileâ— And therefore a release made by Tenant in taile of the warranty shall not barre the issue no more than his release shall barre the issue to bring an attaint upon a false verdict or a writ of Errour upon an erroneous judgement given against the father Neither yet can his gift barre the issue of the déed that created the estate taile nor of any other déed necessary for defence of the title For these are accessaries to the estate taile and are as firmly entailed as the estate it self c. Co. l. 8. 79. b. 4. Wiat Weilds case 21 A man is seised of a Messuage and forty acres of land Common apportionable unto which he can prescribe to have Common in 200 acres of waste belonging to the Mannor of Dale for all the cattle levant and couchant upon the said Messuage and 40 acres In this case if he sell five acres parcel of the forty whether the Common were appendant or appurtenant the Alienée shall enjoy a proportionable part of the Common as belonging to the said five acres For albeit at the beginning there was but one Common attending upon one tenancy yet in as much as it is attendant upon a tenancy that is severable and upon every part thereof the Common shall be severable as well as the tenancy so that the Alienée of part of the tenancy shall enjoy also a part of the Common answerable to that part of the tenancy c. So likewise if he that hath such a Common appertaining to his land as aforesaid demise parcel of the land to another the Lessée shall have common for his beasts levant and couchant c. Joynt coveâ—ants relate â—o joynt inteâ—ests 22 S. and his wife bring an action of Covenant against B. upon Covenant made by Indenture tripartite Co. l. 5. 18. b. 4. Slingsbies case in which B. covenants with the Plaintiffs and also with I. S. and his wife Et assignatis suis cum quolibet
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
Crown that in the Kings Case they shall go with the Crown to the successor and not to executors as in case of common persons as appears in 7 H. 4. 43. and 44 E. 3. 42. Neither yet doth every warrant serve for the issuing of the Kings treasure for it cannot be done by Parol or by the privy Signet but ought to be done under the Great Seal or Privy Seal It was also further resolved in this Case that albeit Sir VValter had thus received the Quéens treasure to his own use yet inasmuch as he received it without lawful warrant he knowing that it was the Quéens treasure the Law makes privity in the Quéens Case and therefore she might charge him as an Accomptant And so it was also adjudged in the Exchequer in Jurdens Case P. 31. Eliz. Rot. 150. Neither yet is it of necessity that the Kings money or goods should come into the hands of the Testator for if he were onely a mean or Instrument whereby the King was put to loss or damage he shall be charged with so much as he hath so endamaged the King and shall be compelled at the Kings Suit reddere rationem thereof which is in nature of an Accompt for which there is a notable president in M. 30. E. 3. Rot. 6. Porters Case which sée in Co. l. 11. 92. b. in the Earl of Devonshires Case And therefore it was also resolved in Sir VValter Mildmayes Case that the Quéen might either charge the executors of Sir VValter or those that made such unlawful warrant at her election And if they were dead their executors c. for in as much as they were in their life-time chargeable by the Law in that Case if they die before judgement against them without question their executors shall be charged because where the Testator is by the Law chargeable to satisfie the King for losse or dammage done unto him his death shall not dispence therewith but that his Executors shall be also chargeable to the King c. F. N. B. 5. l. 65 In a Praecipe in Capite the Tenant shall not plead Protestaâ—â— that the Tenements are not holden of the King albeit the writ supposeth as much but he ought to take it by protestation and to plead other matter in barre if he have any matter to plead â—ender Di. â—ark 66 In a writ of Right F. N. B. 5. m. the Demandant ought to count of his own seisin or the seisin of his Ancestor c. yet the seisin is not traversable but the tenant may tender a Di. mark to enquire of that seisin c. and if it be found with the tenant that the Ancestor was not seised the Demandant shall be barred Howbeit if the King be party Demandant the Tenant shall not tender a Demy Mark to enquire of the seisin but he ought to plead in bar and there the tenant shall not imparâ— without the assent of the Kings servants The King may â—â—cuse appeaâ—â—nce 67 The King by a writ de warrantia diei may command the Iustices to excuse the Defendant of appearing at the day F. N. B. 17. b. whereunto he was adjourned to appear in proper person And whether the Cause alledged in the writ be true or false it is not material when the King certifies that he is in his service for it séems by the words of the writ that the King by his Prerogative may warrant that default for a day And so also it séemes that if the tenant in a Praecipe quod reddat at the great Cape or petit Cape returned make default that before judgment upon that default the King may command such a writ to the Iustices rehearsing that the tenant was in his service c. and commanding them that his default should not turn to his prejudice And it stands with reason that the King may do it because every one is bound to serve the King in his affairs c. â—â—nipresence 〈◊〉 his Courts 68 If false Iudgment be given for the King in any Action or Suit F. N. B. 21. b. 107. q. Finch 81. the party grieved shall have a writ of Error and assign Errours without suing any Scire facias against the King ad audiend errores because the King is alwayes present in Court and that is the cause that the form of Entry in all Suits for the King is Edvardus Herbert Miles Attornatus Domini Regis generalis qui pro domino Rege sequitur venit hic in Curia c. And doth not say Dominus Rex per Edvardum Herbert Attornatum suum c. And therefore it is also that the King cannot be Non-suit that all Acts of Parliaments that concern him are general and the Court must take notice of them without pleading them for he is in all and all have their part in him c. â—ake Attorâ—ys 69 It séems that before the Statutes which ordain F. N. B. 25. c. e. â— 26. a. that a man may make Attorneys c. the Iustices neither would nor could suffer the Plaintiffe or Defendant Demandant or tenant to make Attorneys in any Action or Court whatsoever yet the King by his Prerogative even before those Statutes might grant to a man power to make Attorneys and by his Writs or Letters might command the Iudges to admit and receive them c. and that without any cause shewed in the writ c. â—â—e King canâ—â—t be Jointâ—ant 70 In the Register there is the form of a writ F. N. B. 32. g. wherein a common person is joyned with the King in a Quare Impedit which runs thus Rex vice comiti c. praecipe R. de C. quod justè c. permittat nos P. de T. praesentare c. But Fitz. saith in his N. B. that the common opinion in his time was that the King should have the whole presentment sole and should have a sole Action c. although he séems to hold the contrary himself Ideò quaere â—sent again 71 If the King recover by a Quare Impedit F. N. B. 34. f. and after ratifie the Estate of the Incumbent yet at the next avoidance the King shall present because the Recovery and Iudgement for him were not executed â—â—â—sent by 〈◊〉 72 In a Frée Chappel of the Kings F. N. B. 34. â— where the Dean ought to give the Prebends if he make not collation within six moneths unto them then shall the King present unto them by Laps as Ordinary F. N. B. 34. k. 73 If the Bishop make collation and die before induction Not inducted or instalment and the King seise the temporalties he shall have that presentment because the Church is not full against the King until the Parson or Prebend be inducted or installed F. N. B. 35. a. 74 If the Kings tenant hath title to present to an Advowson Advowson Ward Present which is void
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
in Capite which amounted to the other two parts VV. B. devâ—seth Thoby to his wife upon condition that she should take no former Iâ—ynture and dies the Feme in pais refuseth the Mannor of H. Here the question was whether the will was good for the whole Mannor of Th. or but for a part by the 32 34 H. 8. And it was adjudged that this refusal shall have onely relation as to the Mannor of H. and not to the Mannor of Th. and to the intent onely that the Feme should not be prejudiced by any thing concerning the Mannor of Hinton Howbeit that relation shall not prejudice the heir which is a third person and upon whom by the death of the devisor part of the Mannor of Thoby descended c. Mesnalty â—ent-seck â—eisin 12 If a â—esnalty become rent-seck by surplussage Co. l. 4 9. a. 4. in Bevils case as if the tenant holds of the Mesne by two shillings and the Mesne holds over of the Lord by 12 d. and the Lord purchase the tenancy In this Case the ancient seisin of the intire rent of 2 s. is sufficient for the surplussage being now changed to a rent-seck of 12 d. because the Mesnalty is extinct by the Act of the Lord and of the tenant peravail and the nature of the rent of the Mesne is not changed by his own Act but by the Act of others And therefore albeit the rent is become seck yet the Mesne shall distrain for it c. as it is said in 2 E. 2. tit Extinguishment 6. â—opihold surâ—â—nd before â—â—mit 13 The heir of a Copihold tenant may surrender to the use of another before admittance as any other Copiholder may Co. l. 4. 24. b. 1 in Browns ca. and fol. 23. a. Fitches Case but this shall not prejudice the Lord of his Fine due unto him by the custome of the Mannor upon the descent So admittance of a Copihold tenant for life is an admittance of him in remainder to vest the Estate in him Howbeit that shall not bar the Lord of his Fine which he ought to have by Custome c. â—â—pihold â—ease â—eisor 14 A Release by déed and not by way of surrender made by one Co. l. 4. 25. b. 3 in Kite and Queintons case that hath right to a Copihold to one that is in possession thereof by lawful admittance shall be effectual to extinguish that right and to establish the possession of the party so admitted because in such Case the Lord cannot suffer prejudice for that he hath his Fine but if a Copiholder be outed by wrong there his release by déed to the disseisor or any other wrong-doer shall not transferre his right nor any way bar him thereof because that would tend to the prejudice of the Lord being a third person for so the Lord might lose his Fine and services c. And therefore a release by déed in such Case is utterly void c. Co. lib. 4. 24. b. in Marrels Case 15 If the Lord of a Copi-hold Mannor Alien the Inheritance of one of the Copi-holds to another Copi-hold severed from the Mannor that shall not alter the nature of the Copi-hold but that it shall still retaine the quality of Copihold land to descend to the next heire c. for Custome having once established and fixed that Estate it cannot be changed by the Act of the Lord neither yet is it reason that the Act of the Lord and the alienée should in that Case prejudice the Copi-holder who is a stranger Howbeit such a Copi-hold after such severance of it from the Mannor can never afterwards be conveyed by surrender or otherwise but must still be left to descend c. Co. lib. 4. 118. a. 3. in Actons Case 16 If a Baronesse in her Widdow-hood retain a Chaplein according to the Statute of 21 H. 8. c. 13. and after marry a Péere of the Realme Retainer of a Chaplain Albeit this séemes to be casus omissus in that Act yet shall not such mariage be a Countermand of the retainer for Res inter alios acta c. Co. l. 5. 99. b. 4. 17 Tenants at Will Act of tenants or other particular Tenants or occupiers of Land cannot by their Act bind him that hath the Inheritance In Rookes Case Co. l. 6. 12. b. 4. Morriâ—â—s Case 18 It is said that if two joynt-tenants be with warranty Joint-tenants Warranty Severalty and one of them disseiseth the other and the disseisée brings an Assise and upon his prayer hath judgement to recover in severalty In this Case the Warranty is gone For albeit he hath partition by judgement yet he that is bound by the Warranty is neither partie nor privy or any way consenting unto it as he is when the partition is made by force of the Act of Parliament Co. l. 6. 50. b. 2. in Boswels Case 19 It is agréed per totam Curiam in 50 E. 3. 14. Presentment by terme Guardian b. that if Tenant for yeares or Guardian bring a Quare Impedit and the Defendant hath a Writ to the Bishop against the termor or Guardian and his presentée is admitted instituted and inducted yet the Tenant of the Franktenement is not put thereby out of possession c. Co. l. 6. 51. b. 4. in Boswels Case 20 No imcumbent shall be removed upon the Statute of West 2. In Quare Iâ—pedit the Iâ—cumbent 〈◊〉 cap. 2. by Quare Impedit or Assise de darrien presentment purchased within the six moneths unlesse the incumbent be named in the writ quia res inter alios acta alteri nocere non debet Although the incumbeâ—t be in by defeasible title And with his accords 9. H. 6. 32. For quicunque aliquid statuerit parte inaudita altera aequum licet statuerit haud equus fuerit Co. lib. 6. 57. Bredimans Case 21 A man deviseth rent for life out of the Mannor of D. and deviseth the mannor for yeares to another Rent paid bâ— the Lessee 〈◊〉 prejudice to the terre-teâ— the termor enters and pays the Rent afâ—er the terme ended the devisée of the Rent brings an Assise against the Terre-tenant And it was adjudged that the payment of the Rent by the Tenant for yeares was not sufficient seisin to bind the Terre-tenant after the term determiâ—ed For there is a diversity betwéen receiving and giving of seisin because it is true that he which hath but a term for yeares may take seisin to the benefit of him that hath the Frank-tenement In 45 E. 3. 26. The grantée for yeares of a Common useth it this gives seisin to him in Reversion 22 Ass 84. accord 11 E. 3. Assise 86. payment to the grantée for yeares of a Rent is sufficient seisin for him in Reversion in M. 39 40. El. the Countesse of Northumberlands Case in the 5. Rep. fol. 97. b. Presentment by the grantée for yeares of
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
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
So if the Lessée be disseised and wast is done and the Lessée re-enters an Action of wast shall be maintained against the Lessée and so in like Cases And yet in none of these Cases the Plaintiffe in the Action of wast had any thing in the reversion at the time of the wast made Howbeit in these Cases the privity utterly still remaines but in the other by force of the recovery it is for the present utterly destroyed c. Vide Statute 14 Eliz. cap. 8. concerning this matter Litt. §. 695. Co. ib. 364. a. 4. 15 The Disseisor lets the Land to the Disseisée for yeares Dâ—sclaime Remitter who enters and disclaimes by parol in pais to have any thing but the lease for yeares in the Land yet is the Disseisée in his Remitter notwithstanding such disclaimer in pais But if he disclaim in Court of Record that he hath not any Estate save onely such Estate for yeares such disclaimer in Court of Record shall conclude him And so observe a diversity betwéen a claime or disclaime in pais of an Estate and a claim or disclaime of Record for a claime or disclaime in pais shall not hinder a remitter But a claim or disclaim of Record shall because this worketh a Conclusion so doth not that c. Infants Acts upon record not avoidable 16 There is a diversity to be observed betwéen matters of Record done or suffered by an Infant and matters in fait Co. ib. 380. b. 2. for matters in fait he shall avoid either within age or at full age but matters of Record as Statutes Merchant and of the Staple Recognisaances acknowledged by him and a Fine levied by him or a Recovery against him by default in a real action saving in Dower must be avoided by him viz. Statutes c. by Audita querela and the Fine and Recovery by writ of Error during his minority and the like And the reason thereof is because they are judicial acts and taken by a Court or a Iudge c. Partition in Chancery of an Advowson 17 If Coperceners make partition in Chancery F N B 36 c or in the Common Pleas to present by turn and after a stranger usurpes in their several turnes yet after when their turnes happen each of them may have a Scire facias upon that partition against the stranger when her turn falls to shew wherefore he presents notwithstanding such usurpation made but it is otherwise as it séems where the partition is not of Record for then they are put to their writ of right by reason of such usurpation Bar to a writ of Eschear 18 Some do hold that if there be Lord and Tenant Co. Inst p. 1. 268. a. 4. and the Tenant be disseised and the Disseisée die without heir the Lord accepts rent by the hands of the Disseisor this is no bar to him but if he avow for the rent in a Court of Record this shall bar the Lord of his writ of Escheat Not named yet good 19 If a Grant be made to Co. ib. 3. 2. 3. or a Lease be made by a Dean and Chapter Mayor and Communalty or the like it is good without naming the Dean or Mayor c. by their names but in pleading the proper name of the Dean Mayor c. must be shewed because it is matter of Record and ought to be certain Partition 20 If there be two Coperceners Dier 52. 20. 33 H. 8 and one of them make a Lease for years of her part and afterwards the other brings a writ de partitione facienda against the Lessor and partition is thereupon made In this Case albeit the part allotted to the Lessor be lesse then the part of the other yet the Termor is without remedie But if the partition were without writ it séemes to be otherwise Ancient Deâ—esne 21 Ancient Demesne shall be extended by Elegit Co. l. 5. 105. a. 4. in Aldens ca. because in such Case no Iudgement is given to recover the possession of the land in a Court of Record but onely execution made by the Sheriff in pais Howbeit in an Assise brought by tenant by Elegit ancient Demesne is a good Plea as it is held in 22 Ass Pl. 45. because there the Plaintiffe shall recover the possession of the land by Iudgement upon Record Certificate recorded 22 The Certificate of the Messenger sent by Quéen Mary to the Palatinate in Germany to call Mr. Bartue and his wife Dier 177. 31. 2 El. the Dutchesse of Suffolk home and the abuses there offered him by their servants being recorded in Chancery and afterwars sent by Mittimus into the Exchequer could not be traversed for that it was a Record and could not be tried by any Visne of the Realm it is otherwise of matter of fact done in the Countrey c. 96 Conveyances by Livery or which passe Estates of the Land more then those that passe by Grant or onely passe things belonging to or issuing out of the Land Things in â—â—â—nt 1 Livery of seisin is of greater consideration in Law Co. Inst p. 1. 251. b. 2. then a bare Condeyance by Grant For a particular Estate of any thing that lies in Grant cannot be forfeited by any Grant thereof made in Fée Lit. §. 609 610 611. Co. ib. 330. b. 2. Life No forfeitâ—â—â— As if tenant for life or years of an Advowson Rent Common or of a Reversion or Remainder of land by Déed grant the same in Fée this is no forfeiture of their Estates because it passeth onely by Déed Conveyant by livery a forfeiture and nothing is divested neither yet doth any thing thereby passe but what may lawfull passe But if tenant for life of land enfeoff another of the land in Fée by livery without Déed that is a forfeiture of his Estate in regard of the solemnity of the livery whereby the Reversion or Remainder is divested So likewise if the Tenant for life or years of land the Reversion or Remainder being in the King make a Feoffment in Fée by livery c. Albeit in that Case no Reversion or Remainder is divested out of the King neverthelesse that also is a forfeiture of his Estate in respect of the solemnity by livery tending to the Kings dis-herisin c. Litt. § 598 599 600. and Co. ibid. 328 a. 3 Co. l. 3. 84. a c. in the case of Fâ—nes and 85. b. 4 c. 2 If tenant in tail be disseised A Release no Discontinuance and he then releafeth by his Déed to the Disseisor and his heirs all his right that makes no discontinuance because nothing can passe by such a release but that which may lawfully passe without prejudice to any other But otherwise it is if he make a Feoffment in Fée of the land in respect of the livery of Seisin because it is the most solemn and common
of Conduits and Water-pipes or the like So if a man have an ancient Window in his Hall and after covert the Hall to a Parler or any other use yet shall it not be Lawfull for the Neighbour at his pleasure to stop it For he may prescribe to hâ—ve a light in such a part of his House c. â—porâ—tions â—â—red yet the â—dy remaines 22 If a Corporation hath Franchises and Priviledges Co. ibid. b. 1. by grant or prescription and after they are incorporate by another name as whereas they were Bailiffs and Burgesses before now they are Mayor and Community Or Prior and Covent before and after translated to Deane and Chapter In these Cases albeit the qualities and name of their corporation is altered and charged and principally in the Case of Prior and Covent for of Regulâ—â— who are dead persons in Law they are made Secular yet the new body shall enjoy all the Franchises Priviledges and Hereditaments which the old Corporation or body Politique had either by grant or by prescription because albeit the name c. is changed yet the body which is the substance doth still remain c. 〈◊〉 of form â—dable by â— Clâ—râ—e 23 If a Count be insufficient in point of forme onely Co. l. 35. b. 1. in Playters Case which the Clerk is able to amend without the information of the Plaintiffe that error may be rectified by the Clerke by force of the Statute of 28 Eliz. cap. 14. It is otherwise if it be deficient in matter of substance As in Trespass if the Plaintiffe declare Quare clausum suum fregit pisces suos cepit c. without shewing the number or nature of the fish In this Case that omission is matter of substance and not of forme to be remedied by that Statute c. â—â—ke of the 〈◊〉 in some 〈◊〉 matter of â—nce 24 In a Writ of Error upon a recovery in wait Co. l. 5. 45. a Freemans Ca for that in reciting the Statute of Glocester the writ had destrictionem for destructionem it was adjudged that that mistake of the Clerke was matter of substance because destrictio was a Latin word which quite altered the sence of the Statute and therefore could not be helped by any Statute it had béen otherwise if it had béen matter of forme onely For at this day if the original writ want forme onely or containes false Latin or varies from the Register in matter of forme In such Case after verdict no judgement shall be stayed or reversed but if it want substance as in the Case aâ—ove said although it be onely the mistake of the Clerk yet it shall not be remedied by any Statute And therefore in a writ of partition the Iustices of the Common Pleas inserted this word oftensurus which was omitted and in a writ of Ayell they amended this word Ave and made it Avie 〈◊〉 arreare 〈◊〉 Kings 〈◊〉 25 Where the King hath right of entry for default of payment of a quarters Rent and by the office more rent is found arreare Co. l. 5. 56. b. 1 Knights Case then what the quarters rent amounts unto yet that is sufficient for the King when the Office hath matter and substance for the sole and substantial point which proves the breach of the Condition is the non-payment of the Rent or any part thereof and it is not material when the Rent was arreare for if any part thereof be arreare it suffiseth c. Co. l. 6. 47. b. 2 in Dowdales Case 26 In debt against an Executor the Iury finds assets in Regno Hyberniae and the verdict was adjudged good Assets found in any plaâ— albeit the Assets were found not onely in a Forraigne Country but in a forraigne Kingdome for the finding of assets is the substance and the place where is but sur-plussage and circumstance And therefore if an Executor have goods of the Testator in any part of the world as if the Testator were a Marchant or the like that had goods beyond Sea he shall be charged with them as Assets For the place is but circumstance c. Co. l. 8. 49. a in John Webbes Case Vid. Stat. W. 2. c 24 in 13 E. 1. 27 In ancient time Writs origiâ— used though the Case â—aâ— in circumstance when the Masters and Clarks of the Chancery were grave wise men well versed in the Lawes of the Land the first sort of them making writs in difficult Cases onely which were called Brevia Magistralia and they by reason of their profound learning called Masters of the Chancery the other making Brevia de causa and therefore called Cursitoriâ— writs were by them exactly formed without fault or error But now when such learned Clerks faile the Iudges in many Cases give allowance to ancient formes of writ and puts the partie to make a special Count and in such Case when the writ warrants the Count in substance they adjudge it sufficient although there be variance in circumstance Co. ibid 48. a. 4 For example the Original writ of Assisa ultimae praesenâ—ationis is formed in these words quis advocatus tempore pacis praesentavit ultimam personam quae mortua est This forme shall hâ—d and not be changed albeit the incumbent resigned as appeares in 18 E. 2. Tit. Assise de darreine praesentm 20. c. F. N. B. 53. h. Also the writ of Warr. Cartae is formed in these words Quòd justè c. warrantized B. unum mesuagium in D. c. unde cartam habet c. yet if he be bound to warranty by force of an exchange or by homage ancestrel the form of the writ shall not be altered Vide 9. E. 4. 49. 21 H. 6. 8. c. F. N. B. 134. Co. l. 8. 76. b. 2. in the Lord Staffords Case 28 The Law never requires circumstance Circumstaâ— not requireâ— when it 〈◊〉 subvert the substance when thereby the substance may be subverted As if the King grant Land to I. S. for life with Condition that if I. S. pay at the Exchequer such a day xx s. to the Kings use that then he shall have fée and I. S. payes the xx s. accordingly Although it be regularly true that the King by reason of the Majesty of his person cannot take or depart with any thing but by matter of Record yet in this Case I. S. shall have fée in the Land and the fée-simple shall be out of the King immediately upon the payment of the xx s. without petition monstrance de droit or any other such circumstances for if the Estate shall not vest before such circumstance then it cannot vest presently and if it vests not presently it shall never vest because if the Estate be not enlarged and therefore in such Case the fée-simple for necessities sake shall passe out of the King without any such circumstance for as is said before the Law never requires circumstance when it may
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
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
consideration of surrender the Quéen grants to the said B. for 21 yeares and 26 El. upon consideration of the surrender of the letters Patents of 23 El. she grants to him for thrée lives from the day of the making Here the demise for thrée lives is void being made upon consideration of the surrender of the letters Patents of 23 El. which were void they being upon consideration of the whole Estate which was not performed part being leased out to divers before Co. l. 7. 17. a. 1 The Case of Swannes 2 R. 3. 15 16. 35 The Custome in Com. Bucks is A signet for the nest that if Swans bréed upon any mans ground there the owner of the ground may take the third Signet in them of the ground where they did so bréed and it was adjudged a good Custome and reasonable because there is quid per quo The Lord Stranges Case in 2 R. 3. 15 and 16. cited in the Case of Swannes Co. 10. 37. b. 2 in Mary Portingâ—ons Case 36 Iudgment given against Tenant in taile with voucher and recompence in value shall bind the Estate taile Taile docke by recovery iâ— value nothwithstanding the Statute de donis 13 E. 1. and by such recovery in value the Tenant in taile shall have a formedon of the land so recovered in value as it was holden 15 E. 3. Briefe 324 vide plus in the Book at large And there is observed that albeit the docking of an Estate taile was never thought of by the Sages of the Law until 12 E. 4. yet long before that time the opinion of the Iudges was that it might be so barred in respect of the recompence of recovery in value Infant â—pellable â—â—â—urn 37 In a per quae servicia against an Infant Co. l. 9. 85. a. â— who hath the Tenancy by descent he shall not have his age but is compellable to attourn because at first the Lord departs with the Land in consideration that the Tenant shall hold of him and shall do him services and pay unto him a yearely Rent For the Tenant is called in Law Tenant peravaile because the Law presumes that he hath benefit and availe above the services that he doth and the Rent that that he payes to the Lord And therefore it is against Reason that when the heire hath the Tenancy peravaile by descent that he shall not pay the yearly Rent c. which was reserved upon the creation of the tenancy And therefore Attornment by an Infant is good which was the principal Case there resolved he being compellable to attourn in a per quae servicia as before is said upon the reason afore-said 〈◊〉 by farâ— not guarâ—â— 38 A Guardian shall not be punished for Wast done by a Stranger but the former shall F. N. B. 60. g. because as is supposed he receives profit out of the farme and may therefore have an action of Trespass against the stranger 〈◊〉 of Mesâ—â—h â—â—gh serâ— done 39 Albeit the Mesne have paid the services to the Lord Paramont Ibidem 138. b. yet if the Tenant be afterwards distrained for the services he shall have a writ of Mesne against the Mesne for it but whether he shall recover damages quaere yet it séemes he shall have damages because the Mesne shall have damages against the Lord Paramount if he will put his cattle into the pound for the Tenant and sue Replevin And yet nient distraine in his default is a good plea in a writ of Mesne â—â—y Aâ—â—l Parson â—â—sors 40 A writ of Annuity is maintainable against the Parson upon his Predecessors grant by assent of Patron and Ordinary Ib. 152. g. 1. and likewise upon an Ordinance made by the Ordinary without the Patron if he have quid pro quo So it is also by the Parson against the Vicar upon the Ordinaries Ordinance if he have quid pro quo Trespass â—â—cord no â—ervise of â—â—rament 41 When a trespass is done an Action conceived for it Pl. 6. a. 1 Fâ—gassaes Case a concord Executorie pleaded is no barre thereof For there being a wrong done and not denied it must be answered with recompence and then the Concord Executory is not any recompence de facto nether is there any Action given thereupon to compel the party to make recompence and so he is without recompence and destitute of means to recover any But upon an Arbitrament where the summe is awarded in recompence to be payd at a day to come that is a good barre because he may have an Act of debt is for at the day limited and so the Trespass is converted into another thing by the Arbitrators who are judges thereof and so it is answered with Action which countervails satisfaction in déed â—compence â—â—lue 42 In a Praecipe the Tenant voucheth Co. Inst p. 1. 393. a. 2. and at the sequatur sub suo periculo the Tenant and the vouchée make default whereupon the Demandant hath judgment against the Tenant And afterwards the Demandant brings a scire facias against the Tenant to have execution in this Case the Tenant may have a Warrantia Cartae And if in that Case a Stranger had brought a praecipe against the Tenant he might have vouched again for by the iudgment given against the Tenant the Warranty lost not his force But in such Case if the Tenant had judgment to recover in value against the vouchée he shall never vouche again by reason of that Warranty because he hath had recompence by taking advantage of the Warranty 43 If an Executor redeeme goods pawned by the Testator to the value of the goods Dier 2. 3. 6 H. 8. he may retaine those goods Executor redeemes a pawn and they shall not be assets in his hands for a man ought to be recompenced for that which he hath lawfully disbursed As a Disseisor who payes Rent chargable upon the Land shall have it recouped in damages Likewise if the Executor pay with his owne money the debt of the Testator he may retaine so many of the goods as amount to the summe or summes so disbursed by him and they shall not be assets in his hands Dier 35. 28. 29 H. 8. 44 A man recovers in a Writ of entry in the Post against Tenant in taile upon a voucher and recovery in value against the Common vouchee and before execution sued the Tenant in taile dies Recovery in value and his Issue enters In this Case the recoveror may well enter upon the Issue for the Issue cannot falsifie this recovery because of the recovery over in value P. Fitzherbert Baldwin sed Shelley è contrà Dier 90. b. 8. 1 Mar. 45 If I Bargaine and fell all my Trées in such a Close Quid pro qâ— an no mention is made of a summe of money for the consideration or if it be not said for a competent of money in this Case nothing passeth
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
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
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
release to one of them this shall enure to them both because these come in by feofment but those by wrong Co. ib. 278. a. 3. 14 If two Disseisors be and they enfeoffe another Release to Disseisors and take back an Estate for life or in Fée here albeit they remaine Disseisors to the Disseisée as to have an Assise against them yet if the Disseisee release to one of them the releasée shall hold out his Companion because their Estate in the land is by feofment Again if there be two Disseisors and they be disseised and release to their Disseisor and then the Disseisée release one or both of them yet the second Disseisor shall re-enter for they shall not hold the land against their owne release If their be two Femes joint Disseisors and the one taketh husband and the Disseisée release to the other she is solely seised and shall hold out the husband and wife because she claimes by a just title viz. by the release but they came in by wrong Co. ib. 279. b. 1 Litt. §. 478. 15 Dormit aliquando vis moritur nunquam Right canâ— die for of such an high estimation is right in the eie of the Law that the Law preserveth it from death and destruction trodden downe it may be but never trodden out for where it is said that a release of right doth in some Cases enure by way of extinguishment It is to be understood as Littleton doth § 478. in respect of him that makes the release or in respect that by construction of Law it enureth not alone to him to whom it is made but to others also who be strangers to the release which is a quality of an inheritance extinguished As if there be Lord and Tenant and the Tenant make a lease for life the remainder in fée if the Lord release to the Tenant for life the Rent is wholy extinguished and he in remainder shall take benefit thereof So when the heire of a Disseisor is disseised and the Disseisor make a lease for life the remainder in fée if the first disseisée release to the Tenant for life this is said to enure by way of extinguishment for that it shall enure to him in remainder who is a stranger to the lelease and yet in truth the right is not extinct but doth follow the possession viz. the Tenant for life hath it during his time and he in remainder to him and his heires and the right of the inheritance is in him in the remainder for a right to land cannot die or be extinct in déed and therefore if after the death of Tenant for life the heire of the Disseisor bring a writ of Right against him in the remainder and he joine the Mise upon the méer right it shall be found for him because in judgment of Law he hath by the said release the right of the first Disseisée Co. ib. 315. a. 1 16 Remedies to come to rights or duties are alwayes taken favourably Remitters â—â—voured in 〈◊〉 and therefore there is a diversity betwéen money given by way of Attornment and where it is given as parcel of a Rent by way of seisin of the Rent for albeit the Rent be not due before the day yet a payment of parcel of the Rent before hand is an Actual seisin of the Rent to have an Assise and so it is also if he give an Oxe an Horse a Shéepe a Knife or any other valuable thing in name of seisin of the Rent before hand this is good whereas money or any other thing given in name of attornment is onely a seisin in Law which the grantée hath before actual seisin So as a payment of part of the Rent in name of seisin is more beneficial for the Grantée being both an actual seisin and an attornment in Law also and yet being given before the day on which the Rent is due it shall not be abated out of the Rent in such sort that as to give seisin of the Rent it is taken as part of the Rent but as to the payment of the Rent it is accounted as no part of the Rent and such prevarications the Law permits when a right is concerned â—â—emiters faâ—â—ured in law 17 If Tenant in taile discontinue and hath issue a Daughter Litt. §. 671. Co. Inst p. 1. 353. b. 4. and die and the Daughter being of full age takes Baron and the discontinuée releaseth to the Baron and Feme for their lives this is a Remitter to the Feme and the Feme shall be in by force of the entaile because Remitters to ancient Rights are much favoured in Law It is otherwise of a discent for if a woman be disseised and being of full age taketh husband and then the Disseisor dieth seised this discent shall bind the wife albeit she was covert when the discent was cast because she being of full age when she tooke Baron did not claime her Interest in the land 〈◊〉 West 2. 〈◊〉 4. 18 There hath béen a Question in our Bookes upon these words of the Statute of West 2. cap. 4. by default as for example whether a recovery being had by default in an Action of waste against Tenant in Dower or by the Courtesie a Quod ei deforceat lyeth by the said Statute but doubtlesse it doth for albeit the Defendant may give in evidence if he knoweth it yet when he makes default the Law presumeth he knoweth not of it and it may be that he in truth knew not of it and therefore it is reason that séeing the Statute which is a beneficial Statute hath given it him that he be admitted to his Quod ei deforceat in which writ the truth and right shall be tried Ind so it is also of a Recovery by default in an Assise albeit the Recognitors of the Assise give a Verdict a Quod ei deforceat lyeth and all this as to this point was resolved in P. 33 El. Rot. 1125. And so the doubt in 41 E. 3. 8. is well resolved if Tenant for life make default after default and he in reversion is received and pleads to issue and it is found by Verdict for the Demandant the default and Verdict are causes of the judgment and yet the Tenant shall have a Quod ei deforceat in favour of Right and Iustice especially when the Statute intends him as much 〈◊〉 like 19 If the Baron discontinue the land of the Feme Littl. §. 677. Co. ib. 356. b. 4 and the discontinuée demise the same land to the Feme for term of her life and deliver seisin accordingly In this Case it séemes whether the Baron agrée or disagrée to the livery it is a Remitter to the Feme it is otherwise if she had béen sole but one of the reasons why in that Case she is remitted is for that the Law having once restored her ancient and better right will not suffer the disagréement of the husband to devest
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
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
supra Re-disseisin against the feoffee 3. A re-disseisin doth lye against the Re-disseisor Co. ibid. 154. b. 2. but likewise against his Feoffee for otherwise the Re-disseisor might prevent the Plaintiff of his Re-disseisin and so take advantage of his owne wrong Challenge to the Array 4. If the Plaintiff or Defendant have an Action of debt against the Sheriff this is a good cause of challenge to the Array Co. ibid. 159. a. 2. but albeit the Sheriff hath an Action of Debt against either party this is no good cause of challenge for the failer of paying a debt to the Sheriff is a wrong and against Law and if either party might challenge for such cause he should take advantage of his own wrong Cattell disâ—ained out of 〈◊〉 fee 5. If the Lord come to distraine Cattell Co. ibid. 161. a. 2. Co. L. 9. 22. a. 3 in the cases of Avowry 44 E. 3. 20. per Thorpe which he seeth then within his fee and the Tenant or any other in his behalfe to prevent the Lord to distrain drive the Cattell out of the Lords fee into some other place yet may the Lord freshly follow and distraine the Cattell and the Tenant cannot make rescous albeit the place in which the Distress is taken is out of his fee for if by such a shift the Tenant might prevent the Lord of his Distress he should take advantage of his own wrong And therefore in such case in Iudgment of Law the Distresse is taken within his fee and so shall the Writ of Rescous suppose in case the Cattell be rescued but it is otherwise of cattell to be distrained for Damage-feasant for they must be Damage-feasant at the time of the Distress Condition abâ—â—â—re Bond not valid 6. If a man make a Feoffment in fee upon Condition Co. ibid. 206. b. 2. that the Feoffee shall re-enfeoff him before such a day and before that day the Feoffor disseise the Feoffee and hold him out by force untill the day be past In this case the estate of the Feoffee is absolute for the Feoffor is the cause wherefore the condition cannot be performed and therefore shall never take advantage for the non-performance thereof So it is also if A. be bound to B. that J. S. shall marry J. G. before such a day and before the day B. marry with J. he shall never take advantage of the Bond for that he himself is the mean that the Condition could not be performed Obligation 〈◊〉 7. If a man be bound to A. in an Obligation to enfeoff B. who is a meere stranger before a day Co. ibid. 209. a. 2. the Obligor doth offer to enfeoff B. and he refuseth In this case the Obligation is forfeite for the Obligor hath taken upon him to enfeoff him and his refusall cannot satisfie the Condition but if the Feoffment had been by the condition to be made to the Obligee or to any other for his benefit or behoof a tender and refusall shall save the Bond because he himselfe upon the matter is the cause wherefore the Condition could not be performed and therefore shall not take advantage thereof to give himselfe cause of Action thereby Co. Inst pars 1. 210. b. 3. Litt. S. 340. 8. If Feoffment be made upon Condition to pay the Feoffee twenty pounds upon a certaine day In this case Tender excused the Feoffor is bound to find out the Feoffee and to make tender thereof unto him if he be in England but if he be out of the Land he is not bound to seek him nor to go out of the Realme unto him Neither shall the Feoffee take advantage of his own absence but the Feoffor shall enter into the Land as if he had duly tendred it according to the Condition because the Feoffee himselfe was the cause that the Feoffor could not make due tender at the day limited for the payment thereof Litt. S. 355 356. Co. ibid. 220. b. 4. â— 9. If Feoffment be made upon condition to enfeoff another Disability or to make a gift in tail to another c. And the Feoffee before the performance of the Condition enfeoffs a stranger or makes a Lease for terme of life In this case his Feoffee or Lessee shall not have the Land for then he should take advantage of his own wrong but the Feoffor and his Heires may enter because the Feoffee hath disabled himselfe to performe the Condition So it is also if he had made but a Lease for years for the estate ought to be in the same plight at the time of the re-enfeoffment that it was in at the time when he took the estate Litt. S. 383. Co. ibid. 236. a. 4. 10. If Lands be devised to be sold by his Executor in this case Laches the Executor is bound by the Law to sell them as soone as he can for otherwise he shall take advantage of his own Laches Co. ibid. 238. b. 2. 11. If there be Grand-father Father and Son and the Son disseiseth one and enfeoffeth the Grand-father who dyeth seised Grandfather Father and Son and the Land descendeth to the Father Now is the Entry of the Disseissee taken away but if the Father dye seised and the Land descend to the Son In this case is the Entry of the Disseisee revived and he may enter upon the Son who shall take no advantage of the descent because he did the wrong unto the Disseisee And the Law were the same if the Land had not descended to the Sonne but the Sonne had been in by purchase as by Feoffment in fee in tail or for life from his Father yet may the Disseissee enter upon him for he shall in no kind take advantage of his own wrong Litt. S. 395. Co. ibid 242. a. 1. 12. If a Disseisor enfeoff his Father in fee The like and the Father dye seised whereby the Land descends to the Disseisor as his Son and Heire c. In this case the Disseisee may well enter upon the Disseisor notwithstanding the descent because he being particeps criminis shall take no advantage of his own wrong for albeit a descent be cast and the Entry of the Disseisee taken away yet if the Disseisor cometh to the Land againe either by descent or purchase of any estate of Free-hold the Disseisee may enter upon him or have his Assise against him as if no descent or mean conveyance had been causa qua supra Co. ibid. 247. a. 3. in Beverleys case Co. l. 4. 125. a. 3. 13. The heir of one that is non compos mentis as an Ideot A Drunkard Lunatique c. shall after his Ancestors death avoid a descent but neither a drunkard himselfe nor his heir shall avoid it for albeit some are of such a beastly humor to be in a manner alwayes in that condition yet neither he nor his heire shall thereby avoid a
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
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
of Westm 2. cap. 25. saith of it quia non est aliquod breve in Cancellaria per quod querentes habent tam festinum remedium sicut per breve novae disseisinae c. And as the Law favours an Assise so likewise it favors all such things as may speed and expedite it and abhors any thing Pl. ibid. 89. b. assise of Fresh force in London that may hinder or retard it And therefore upon a bare surmise that the Sherif is allyed fo either party the writ shall be at first directed to the Coroners and this shall be no exception to abate the writ and many other exceptions which abate other writs shall not abate an Assise because it is much favoured in Law by reason of the expedition and dispatch which accompanies it and wherein the Law takes much delight and satisfaction Vide Dyer 84. b. 83. Co Inst pars 1. 155. a. 2. 6 Albeit the writ of Assise command the Sherif Assise Quod faceret duodecim liberos et lega les homines de vicineto c. videre tenementum c. yet by antient Course the Sherif must return 24 and this is for expedition of Iustice for if twelve should only be returned no man should ever have a full Iury appear or be sworn in respect of Challenges without a Tales which would be a great delay of trials 176 Hateth Delayes Co. Inst pars 1. 32. b. 4 1 Some say that the demandant in a writ of Dower Dower who procureth or suffereth delays in that sute shall not recover damages Co. ibid. 126. b. 4. 2 The cause of an Amerciament in a plea real Amerciament personal or mixt where the King is to have a fine is for that the tenant or defendant ought to render the demand as he is commanded by the Kings writ the first day which if do he shall not be amerced so as for the delay which the tenant or defendant doth use he shall be amerced Co. ibid. 128. a. 4. 3 If the defendant plead in disability of the person an Outlawry of the same Court he shall not need to shew it forth presently Outlawry or if he plead an outlawry in barr and it be denied then he shall have a day to bring it in But if he plead an Outlawry and offer withall to shew it to the Court he must shew forth the record of the Outlawry maintenant sub pede sigilli because the plea is but dilatory Co. ibid. 158. a. 2. 4 After challenge to the Array and trial duly returned Challenge if the same party take a challenge to the Polls he must shew cause presently so if a Iuror be formerly sworn if he be then châ—llenged the party challenging must shew cause presently and that cause must rise since he was sworn likewise when the King is party or in an appeal of felony the defendant that challengeth for cause must shew his cause presently Co. ibid. 161. a. 3. 5 To Counterplead the plaintif in an Assise Counterplea by which he is delayed maketh him that pleadeth it a disseisor Otherwise it is if he had pleaded Nul tort c. Co. ibid. 260. b. 3. 6 If a man be out of the Realm Recovery and a recovery be had against him in a Praecipe by default In this case he shall not avoid such recovery because by such means a man might be infinitely delayed of his freehold and Inheritance whereof the Law hath so great regard and few or none go over but of their own freewill neither is he in such case without his ordinary remedy either by his writ of an higher nature or by a Quod ei deforceat Howbeit it is otherwise of outlawry in a personal action for de minimis non curat lex Outlawry Imprisonment and he should otherwise be without remedy Also as to a recovery there is a difference betwixt being beyond sea and imprisonment c. Co. ibid. 390. b. 3. 7 If a man be convicted of felony by verdict Voucher and delivered to the Ordinary to make purgation he cannot be vouched for that the time of his purgation if any should be is uncertain and the demandant cannot be delayed upon such an incertainty besides the tenant is not without remedy for he may have his warrantia cartae Co. l. 4 35. b. 1. in Bozouns case 8 If the King grant a protection in a Quare Impedit Protection or an Assise with a non obstante of any Law to the contrary that grant is void for by the Common Law a Protection lieth not in either of these cases for the damage that may happen to the plaintif by such great delay and a non obstante cannot avail when by the Common Law the King cannot grant the thing it self Stat. 36 E. 3. â— 9 The Statute of 36 E. 3. Stat. 1. cap. 13. Co. l. 4. 58. a. 2. in the Sadlers case which gives traverses to offices of lands seised into the Kings hands shall be taken generally according to the letter and intention of the said Act because it is for the advancement and execution of Iustice against grievous and tedious delays Ad admittend 〈◊〉 10 In a Quare Impedit if the defendant do not come in at the distress returned against him F.N.B. 38. n. the plaintif shall have a writ ad admittendum clericum directed to the Bishop without making any farther title â—â—cedendo 11 If the Iudges of any Court as well of record as other do delay the party plaintif or defendant F.N.B. 153. b c d. and will not give judgement for him when they ought to do it In this case the party grieved may have a writ de procedendo ad judicium directed to such Iudges or Iustices and thereupon an alias and pluries if they will not procéed to give Iudgement and after that an attachment if they please directed to the Coroners and returnable into the Kings Bench or Common Pleas. Assise 12 The Law favours all things Pl. Co. 75. b. 4. Wimbish the Lo. Will. which have spéed and expedition in them and abhorrs all delayes which retard or delay Iustice and therefore an Assise which by the Statute of Westm 2. cap. 25. is said to be festinum remedium is much favoured in Law so as a writ of Assise upon a bare surmise shall be at first directed to the Coroners without first directing it to the Sherif and then upon a challenge to the Array to have it afterwards directed to the Coroners which is the ordinary course for other writs 177 Unnecessary Circumstances And therefore Frustrafit per plura quod fieri potest per Pauciora The entry of the issue conâ—eable after discontinuaâ—ce 1 In a praecipe where the demandant is to recover damages Co. Inst part 1. 362. b. a. if the tenant plead non-tenancy or disclaim there the demandant
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
therefore it is not reason that one particular person should bring the action for by the same reason that one person may have an action for it by the like reason every one may likewise have an action for it and so by that means the party may be punished 100. times for one and the same cause which were both unjust and unreasonable Co. l. 8. 61. a. 4 in Beecheâ—s case 7 In all causes real or personal Amerciaâ—ent when there is but one demandant or plaintif and divers tenants or defendants the demandant or plaintif may be divers times amerced but where there is but one tenant or defendant he shall not be twice amerced Co. l. 11. 43. b. 4. in Râ— Godfreyes case 8 If a man be convicted in the County Court before the Sherif in a Writ of Recaption he shall be only amerced Amerciament because it is not a Court of Record but if he be convicted in a Writ of Recaption before the Iustices viz. in a Court of Record he shall be fined and imprisoned but then he shall not be amerced for that were to punish him twice for one and the same offence Co. l. 11. 51. b. 1. in Lifords case 9 If my disseisor be disseised and after I re-enter Disseisin I cannot have an action of trespass against the second disseisor because then he would be doubly charged for one and the same offence viz. by me and the first disseisor And therefore by a fiction in Law I shall recover all the mesne profits against the first disseisor his servants and others who have committed trespasse by his Command and in his right F. N. B. 39. d. 10 If a man hath a Quare Impedit against one Damages and the defendant hath also an Assise of Darrein presentment against the plaintif and recovers in the Darrein presentment and the plaintif is non-sute in the Quare Impedit In this case the defendant shall have two judgements against the plaintif viz. to have a writ to the Bishop in both Actions and two writs shall be awarded to enquire of damages Howbeit he shall not pay damages twice for one and the same disturbance F.N.B. 43. g. 11 Where one is sued in the Common Bench and in the Court Christian for the same thing a prohibition lyeth Prohibition 12 Vide Hob. 2. Incerti temporis nominis Debt A debt shall not be twice satisfied Hob. 128. Pa Coke 13 Two Informations exhibited the same day against the same man for the same offence shall be both quashed Information 186 It flyeth and preventeth all occasions of Evill Co. Inst pars 1. 88. b. 1. Littl. §. 123. 1 The heir of lands in Soccage under the age of 14. shall not be committed to the custody of any person Heir in soccage unto whom the Inheritance by any possibility may or can descend lest by undirect practice he may gain the Inheritance to himself And therefore if a man hath issue two sons by several venters and having lands holden in soccage of the nature of Borough English dyeth the younger brother within the age of 14 years the elder brother of the half bloud shall not have the custody of the land because by possibility the elder brother may inherit the land for if the youngest die without issue and the land descâ—nd to the uncle the elder brother of the half bloud may be heir unto him And therefore the Rule in Lib. Rubr. cap. 70. is Nullus haeredipetae suo propinquo vel extraneo periculosa sarè custodia committatur And herewith also agrée our antient Authors as Bracton l. 2. fol. 87. Brit. fol. 163. Fleta l. 1. cap. 10. Fortesc cap. 40. Howbeit it is otherwise in the Civil Law Vide Fort. ibidem Co. ibid. 100. a. 3. 2 To prevent sutes and troubles Writs of Prevention there are six writs in Law that may â—e maintained Quia timet before any molestation distress or impleading As 1. A writ of Mesne before he be distrained 2. A Warrantia cartae before he be impleaded 3. A Monstraverunt before any distress or vexation 4. An Audita querela before any execution sued 5. A Curia Claudenda before any default of inclosure 6. A Ne injuste vexes before any distress or molestation And these are called brevia anticipantia writs of Prevention To prevent false verdicts 3 To prevent false verdicts Co. ibid. 228 a. 1. if the Iury after their evidence given unto them at Barr do at their own charges eat or drink either before or after they be agréed on their verdict it is finable but it shall not avoid the verdict Howbeit if before they be agréed on their verdict they eat or drink at the charge of the plaintif if the verdict be given for him it shall avoid the verdict but if it be given for the defendant it shall not avoid it Et sic e converso Howbeit if after they are agréed on the verdict they eat and drink at the charge of him for whom they do pass it shall not avoid the verdict The like 4 If the plaintif after evidence given Co. ibid. a. 2 and the Iury departed from the barr or any for him do deliver any letter from the plaintif to any of the Iury concerning the matter in issue or any evidence or any escrowl touching the matter in issue which was not given in evidence it shall avoid the verdict if it be found for the plaintif but not if it be found for the defendant sic e converso But if the Iury carry away any writing unsealed which was given in evidence in open Court this shall not avoid the verdict albeit they should not have carried it with them The like 5 By the Law of England a Iury after their evidence given upon the issue ought to be kept together in some convenient place Co. ibid. without meat or drink fire or candle which some Books call an Imprisonment and without Spéech with any unless it be the Bailiff and with him only if they be agréed After they be agréed they may in causes betwéen party and party give a verdict and if the Court be risen give a privy verdict before any of the Iudges of the Court and then they may eat and drink and the next morning in open Court they may either affirm or alter their privy verdict and that which is given in Court shall stand But in criminal causes of life and member the Iury can give no privy verdict but they must give it openly in Court Law-wager 6 In no case where a contempt trespass Co. ibid. 295. a. 2. deceit or injury is supposed in the defendant he shall wage his Law because the Law will not trust him with an Oath to discharge himself in those cases Only in some other cases as debt detinue and accompt the defendant is allowed by Law to wage his
and yet it may be that he was not his heir for it is not expresly said that he is his son and heir but that he entred as son and heir and yet in regard he pleads by way of barr the best shall be intended for the defendant In like manner in 27 Ass pl. 31. Tit. Barr 303. Br Assise 272. In an assise brought by the heir the tenant saith that the father of the plaintif being tenant by the Curtesie and yet in life let his estate to the ancestor of the tenant wâ—o died seised of that estate after whose death the tenant was in as son and heir and demands Iudgement si Assise c. And this was held a good barr And yet he saith not that he was the first that entred after the death of his Father and if he were not the first he hath no title for the land in such case Occupanti conceditur viz. to him that first enters and that might be the plaintif but yet the barr was held good because to a common intent it shall be taken that the tenant was the first that entred after the death of the father and if it were not so the plaintif may and ought to shew it Vide plus ibid. infra 195. 27. Capias pro fine 41 If a man be condemned in trespass F.N.B. 121. 1. or in debt upon an obligation where he denies his déed at the sute of the party and after he is taken by Capias pro fine within the year at the Kings sute and committed to the Gaol if the Gaoler suffer him to escape the party shall have an action of debt for this condemnation against the Gaoler and yet he was not committed to him at his sute but at the sute of the King Howbeit the Kings sute shall serve the party in this case because the King was entituled to the fine by the party but it is otherwise after the year for then it will be intended that the party hath accorded with him that was condemned And therefore after the year he shall be put to sue a Scire facias upon that Iudgement Vide Max. 63. pl. 4. Executor Heir Assets 42 In debt against an Executor the plaintif néed not count Co. l. 9. 94. a 3. in Will. Banes case that the executor hath assets for it will be intended prima facie that he hath assets So likewise in debt against the heir the plaintif shall never averr in his Count that he hath assets for the Law presumes it prima facie because the Law presumes that the testator or ancestor will not leave a greater charge upon the executors or heir than he leaves benefit to discharge it Perpetuities 43 In the Argument against perpetuities in Corbets case Co. l. 1. 87. b. 4. in Corbets case it was said by Glanvile Iustice that betwixt the making of the Statute of 13 E. 1. de donis and the Statute of 27 H. 8. of Uses such a proviso annexed to an estate tail that it should cease as if the tenant in tail were dead was never séen or heard of and therefore he concluded that it could not be done by Law Little f. 23. And so likewise concludes Littleton in the like case that if any action might have been brought upon the Statute of Merton cap. 6. De dominis qui maritaverint illos c. si parentes conquerentur c. it shall be intended that at some time or other it would have béen put in ure And therefore he saith that no action can be brought upon that Statute in as much as it was never seen or heard that any action was ever taken thereupon Attaint 44 By intendment of Law a verdict is true Dyer 212. 34. 4 El. and therefore the Law will admit of no new proof to defeat it for albeit where the defendants in an attaint give new matter in evidence to enforce the first verdict as they may the plaintif shall be admitted to disprove it yet the plaintif shall never be suffered to produce any new matter in evidence nor inforce the first by other matter afterwards discovered Devise Tenure 45 A man intitles himself as devisee of the whole land by the Statute of the 32 H. 8. of wills and albeit he shewed not the tenure Dyer 329. 16. 16 Eliz. it was ajudged well enough for that it ought to come on the other part and prima facie it shall be intended Socage because most part of the land is so holden 190 Stabit praesumptio donec probetur in Contrarium Co. Inst pâ—rs 1. 222. b. 3. 34 Ass pl. 1. 1 If an agréement be made between two Condition that the one shall enfeoff the other upon condition in surety of the payment of certain money and after the livery is made to him and his heirs generally the estate is bolden by some to be upon condition for that the intent of the parties did not appear to be changed but to continue at the time of the livery Co. ibid. 227. b. 1 Dyer 81. 2 An issue found by verdict shall alwayes be intended true Attaint until it be reversed by Attaint and for that reason upon an Attaint no supersedeas is grantable by Law Plow 49. b. Co. ibid. 310. b. 4. 3 If a man plead a feoffment of a Manor Attornment he need not plead an Attornment of the tenants for it will be intended that the tenants did attorn But if it be material it must be denied or pleaded of the other side Co. ibid. 361. a. 3. 4 The issue of tenant in tail may falsifie a recovery had against tenant in tail by default nihil dicit confession or demurrer Falsifying of a recovery but if the recovery passed upon an issue tried by verdict he shall never falsifie in the point tried because an attaint might be had against the Iurors and albeit all the Iurors be dead so as the attaint do fail yet the issue in tail shall not falsifie in the point tried because until it be lawfully avoided pro veritate accipitur As if the tenant in tail be impleaded in a Formedon and he traverseth the gift and it is tried against him and thereupon the demandant recovers In this case the issue in tail shall not falsifie in the point tried but he may falsifie the recovery by any other matter as that the tenant in tail might have pleaded a collateral warranty Littl. §. 688. or a release as Littl. putteth the case or to confess and avoid the point tried Co. l. 4. 71. â— 4. Hyndes case 5 A. seised of land in fee demiseth to B. for years Fine Deed inrolled and after by déed indented before Easter Term in 29 Eliz. bargains and sells the land to C. and the same Term levies a fine to C. and his heirs and afterwards in the same Term also the deed is inrolled A. commits waste for which C. brings his
indicted of felony and B. of the receit of A. A. essoignes himself and is outlawed B. was taken and putting himself upon the Inquest was found guilty whereupon B. was attainted and hanged and the Lord entred as in his escheat and after A. came and reversed the outlawry and pleading to the felony was found not guilty and thereupon was acquit whereupon the heir brings a Mordancester against the Lord by escheat who comes and shews all this matter and it was demurred in Iudgment thereupon whereupon it was awarded that the heir of B. should recover seisin of the land for if B. had been then 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 Vide plus ubi supra F. N. B. 45. d. 10 The writ of Indicavit shall not mention Tithes that the tithes and offerings which are in sute amount to the fourth part of the Church but decimas provenientes de centum acris or of such a Manor and if those Tithes be not of the value of the fourth part of the Advowson the other party may surmise it and pray Consultation for the Law presumes that the plaintif would not bring an Indicavit if the Tithes were not of that value until the defendant allege something to the contrary Plow 64. a. 3. 11 The return of a Sherif whether it be right or wrong Return is presumed by Law to be good and shall stand in force until it be reversed by error Plow 77. a. 2. 12 Vpon suggestion of consanguinity in the wife of the Sherif Assise directed to the Coroners and the wife of the plaintif an Assise was directed to the Coroners and an exception was taken to the suggestion for that it was not shewed that they were of the whole bloud but the Court held that it should be intended they were of the whole bloud until the contrary were shewed on the other part Co. Inst part 1. 295. a. 1. 13 Wager of Law lyeth not Wager of Law when there is a specialty or deed to charge the defendant but when it groweth by word so as he may pay or satisfie the party in secret whereof the defendant having no testimony of witnesses may wage his Law and thereby the plaintif is perpetually barred as Littl. saith § 514. for the Law presumeth that no man will forswear himself for any worldly thing Co. l. 5. 98 a. Buries case 14 The husband and wife were divorced Causa frigiditatis in the husband he marries again and hath issue this issue is legitimate Divorce for the first marriage was dissolved from the Matrimonial bond and albeit the second mariage be admitted voydable yet it stands good till it be avoided Dyer 179. 42. 2. Eliz. 15 A man arraigned of homicide pleads not guilty Bail and is found guilty but for the difficulty of the Clergy in the case he was reprieved before Iudgement and it was moved to the Iustices whether or no he were bailable in the mean time And it was held he was not because he was more than a vehemently suspected person being convicted of the offence It had béen otherwise if he had not been convicted for by presumption of Law before conviction he shall not be déemed guilty before he be so found upon his trial and the meaning of the Law in Bails is quod stat indifferenter whether he be guilty or not Dower 16 In 2 Eliz. a woman sued for her Dower Dyer 185. 65. 2. Eliz. and being put to prove her husbands death she did it by two witnesses whereof one was his brother viz that being a Minister in 1. Mar. he fled for religion into Germany and that by Merchants and other Englishmen who used to travel and trade in those parts they could never learn any tydings of his life and therefâ—â—e they did in their consciences rather think him dead than alive And this proof was adjudged sufficient for the recovery of her Dower Fine reversed 17 Cheney levies a fine and after brings error to reverse it Dyer 201. 63. 3. Eliz. and assigns non-age and hath a Scire facias against the Conisee and upon two Nihils the Court proceeds and by witnesses and inspection reverse the fine Cheney sells the land to others upon whom the first Conisee enters and the Vendees bring a writ of entry sur disseisin and against the former Iudgement the tenant gives in evidence an exemplification of the examination of witnesses in Chancery proving the full age and albeit it séemed to the Court not available against the Iudgement yet the verdict past with that testimony and afterwards was affirmed in attaint Office Tenure 18 Vpon a Commission in nature of a Diem clausit extremum a tenure in Socage is found of the Queen Dyer 248. 81. 8. Eliz. as of her Barony of S. Afterwards a second Commission finds Knight-service tenure as of the said Barony After that a third Commission issues reciting Quod compertum est per inquisitionem capt post mortem A. tempore H. 5. that the said land was holden of the King in Knight-service in Capite whereupon Knight-service in Capite is returned prout per dictum Inquisitionem tempore H. 5. liquet And in this case it was held that the heir need not traverse the two last Inquisitions because they were without warrant but that the first office although against the Quéen shall be allowed until disproved by Scire facias which shall issue out of the Record tempore H. 5. according to the Statute de Eschaetoribus 29 E. 1. Leases gâ—od 19 The Dean of Wells was deprived by the Bishop for having two dignities in the same Church Dyer 273. 35. 10. El. but he being afterwards restored by a Commission of Delegates made divers demises which were confirmed by the Bishop and Chapter and after that he was again removed by another Commission of Delegates yet the demises which he made while he was Dean were adjudged good Devise 20 Lessee for years deviseth his term to his executor for life Dyer 277. 59. 10. El. the remainder to A. and dies the executor enters and makes executor and dies the executor of executor enters and takes the profits for a year and he in remainder brings accompt for the profits And it was held it lay not 1. for want of privity 2. the remainder of the term was void Howbeit Weston Welsh and Harper held it might be good by devise though void by estate executed 3. for that the executor had not declared to have the term as devisee or as executor and it shall be intended as executors untill the contrary be shewed Debt against the heir 21 In debt against the executor of the heir Dyer 344. 1. 18. Eliz. there need no averment that assets descended to him for it is so intended unless the contrary be shewed
implies a warranty nevertheless because for the most part a warranty is contained in a Charter the writ retains the same form and in such cases the words unde chartam habet c. are not material Escheat 17 If a man be condemned to be hangd for felony and happen to die after such judgement and before execution thereof by the officer F.N.B. 144. b. yet the writ of Escheat shall say pro quo suspensus fuit c. and it is not material whether he be hanged or no but the writ retains that form because for the most part after such judgement the felon is hanged 192 Frequentia Actus multum operatur Fine Non-claim 1 A. possessed of divers lands in D. for years at will Co. l. 3. 79. b. 2. in Fermors case and by Copy and seised of other lands there in fée demises the whole to B. for life and then 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 five years pass yet is not the Lord barred by his non-claim because in as much as the lessée had lands in fée simple in the same Town the fine shall be presumed to be levied of such lands there whereof it is lawfull to levy a fine and then as for the quantity albeit the fine contain more acres than his own fee simple lands that can prove nothing to pass the Lease or Copy land because it is the common use and practice almost in all fines to insert more acres therein than the lands intended to be passed by such fines do contain Corporation 2 Albeit a Corporation have a Commencement by Charter Co. l. 4. 77. b. in the case of Corporations and by consequence within memory and it be expressed in their charter that the choice of their Maior Bailifs and other principal officers shall be by the Commonalty yet if by a continual usage they have chosen them by a certain select number of the principal of the Commonalty or of the Burgesses albeit no constitution can be shewed to warrant such election yet such election is adjudged good in Law because it it hath been so often put in execution Vide supra 189. 25. Duâ—chy of Cornwall 3 Ed. 3. gave unto the Black Prince the Dukedom of Cornwall Co. l. 8. 21. b. 1. in the Princes case c. habendum et tenendum eidem duci ipsius haeredum suorum Regum Angliae filiis primogenitis et dicti loci ducibus in regno Angliae haereditarie successuris c. This grant was adjudged fee simple and not at will as some would have had it And one of the reasons was because divers Acts both of E. 3. and the Black Prince himself did confirm the same to be fee simple and not any inferiour estate for E. 3. in the 14. year of his reign when he was to make war against Philip de Valois King of France which was but 3. years after the said Charter grants to the Prince by the name of Edward Duke of Cornwall to be Lieutenant of the Realm so long as the King should be beyond sea Then in 21 E. 3. the Prince for a fine of 1000 marks demiseth the Stanneries to Redman rendring 3000 marks rent per annum And divers other Letters Patents were cited in the Princes case in the 8. Rep. to the like purpose all which did confirm the said estate of the Prince to be fee simple For frequentia actus multum adjuvat Vide supra 71 4. Also another reason to prove the title of the Prince to the Dutchy of Cornwall was that ever since the creation thereof which was in the 11 of Ed. 3. in the succession of divers ages it had béen enjoyed according to the said Charter by the eldest son of the Kings of England c. for which sée the book at large 193 It alwayes construeth things to the Best And therefore Co. Inst part 1. 87. b. 3. 1 If a man be seised of a rent charge rent seck common of pasture Guardian Infant under 14. or such like Inheritances which do not lie in tenure and dieth his heir within the age of 14 years In this case the heir may choose his Guardian but if he be of such tender years as he can make no choice then if the father hath made no disposition of the custody of the child the Law adjudged it most fit that the next of kin to whom the Inheritance cannot descend should have the custody of him and whosoever taketh the rent c. the heir shall charge him in an accompt Co. ibid. 98. a. 3. 2 Where an Abbot holding in Frankalmoigne together with his Covent aliens the land to a Secular man he cannot hold as they held Frankalmoigne Socage viz. in Frankalmoigne yet because of necessity he must hold the land of some person and by some service the Law in this case creates and appoints him the lowest and easiest tenure that is viz. to hold the land of the Lord in socage by fealty only which is incident to every tenure Co. ibid. 99. b. 3. so likewise if the Seigniory be transferred to a stranger by act in Law and thereby the privity is altered In such case also the tenure in Frankalmoigne is changed to a tenure in socage by fealty And therefore if there be Lord Mesn and Tenant and the Tenant is an Abbot who holds of the Mesn in Frankalmoigne Here if the Mesn die without heir so as the Mesnalty escheats to the Lord Paramount the Abbot shall hold immediately of the Lord Paramount by fealty only because he cannot hold of him in Frankalmoigne 148 35. Co. ibid. 146. b. 3 3 If a Villein descend to two Coparceners Intire Inheritances this is an intire inheritance albeit the Villein himself cannot be divided the Law hath ordained that the profit of him shall be divided for one Coparcener may have the service one day one wéek c. and the other another day or wéek c. And for the same reason it is that a woman shall be endowed of a Villein viz. to have him every third day wéek or c. Likewise if an Advowson descend to Coparceners the Law hath so ordered it that they shall present by turns Et sic de similibus In all which cases the Law hath contrived and established the best way and order that may be for the parting of Intire inheritances which are otherwise in their nature indivisible Co. ibid. 214. â— 2. 4 If two joyntenants the one for life and the other in fee Iâ—intenants Tenant for life Reversioner joyn in a Lease for life or a gift in tail reserving a rent In this case the rent shall inure to them both for if the particular estate determine they shall be joyntenants again in possession But if tenant for life and he in the reversion joyn in a
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
be a default or defect than that the Law should be changed 13 Albeit the King hath a prerogative above others F. N. B. 7. b. Finch 84. that he may sue in what Court he pleaseth as to bring a Quare Impedit or a writ of Escheat of Lands in London retornable in the Kings Bench yet he cannot change the nature of the writ otherwise than the Law gives power to him and others or hath been formerly used Assise of Fresh force in London 14 In an Assise of Fresh force in London before the Maior and Aldermen against Foxley and Agnes his wife and 11 others Pl. Co. 90. b. 4. 10 of them appear by Bailiff and plead No such woman as Agnes the wife of Foxley in rerum natura and demand judgement of the Plaint and that it should be inquired by the Assise c. and the others plead the same plea by Attorney And it was adjudged that the Plaint should not abate but should stand good against all the rest save only Agnes And this resolution was given upon the advice of Iustice Hales to Southcote then Iudge of the Hustings where the sute was brought because as Hales said all the books went that way and not one the other way And therefore he advised Southcote to follow the judgements formerly given Trial of accessory 15 An accessory shall not be arraigned as accessory before all the principals be attainted Pl. Co. 99. b. because it had béen alwaies the usual course in such cases so to procéed and therefore it seemed the best way to the Court to pursue the same order that the Sages had formerly used and the rather for that he may not be accessory to one and yet may be found accessory to another Common Recâ—very 16 In the case of a Common Recovery Co. l. 2. 74. a. 3. in the L. Cromwells case he that enters into the warranty may if he please save his rent issuing out of the land yet if he enter into the warranty generally it may be saved by covenant and agréement in the Indenture made before the recovery as may be agreed betwixt them and this in favour of Common Recoveries which are the Common assurance of land the usual form whereof shall not be altered by any special matter of Entry saving his rent or condition but they ought to be saved by the Indenture dehors For Conveiances which are used for Common assurances of land shall be expounded and construed according to common allowance without prying into them with Eagles eyes And therefore Pasch 35 Eliz. in Dormers case it was adjudged in the Kings bench that a Common Recovery may be had of an advowson So was it also adjudged in the Exchequer in Sir Will. Pelhams case that if a Common Recovery be suffered by tenant for life it is a forfeiture of his estate and the reason of both these Iudgements was because that a Common Recâ—very is by usage a Common conveyance as a fine feoffment c. And it is said in Trevilians case 514. that in Common Recoveries the common usage and the intent of the parties are to be respected for a Common Recovery had against Baron and Feme shall barr the feme of her dower and yet the feme shall not have any recompence in value and therefore in strictness of reason it is strongly to be maintained that Common usage and the intent of the parties make this barr according to these rules Non recedendum est a Communi observantia Minime mutanda sunt quae certam habuerunt interpretâ—â—onem And these Rules hold not only in a Common Recovery but much strongger in a fine which is also a Common assurance of land for in case of a Recovery the Vouchée may enter into the warranty saving his action rent condition c. and yet because Common usage hath allowed it herâ—tofore they may be better saved by covenant and agréement as aforesaid Howbeit in a fine no saving can be contained therein and therefore by necessity and according to common usage alwayes allowed they ought to be saved by the direction and Rule of a precedent covenant and grant Vpon which ground it was adjudged in 6 E. 2 tit Estoppel 2. that if a man and his wife enfeoff two by déed to have and to hold to them and their heirs and after the feoffor and his wife levy a fine sur conusance de droit to them and the heirs of one of them yet this is no conclusion but that both of them may have the fée-simple as they had it before 203 A Communi Observantia non est recedendum Littl §. 371. Co. Inst pars 1. 229 b 4. Vide Max. 203. 1. 1 The making of an Indenture in the third person is the most sure way because it is most commonly used whereby it appeareth Indentures in the third person that the form which is most commonly used in conveyances is the safest Magister Rerum usus It is provided by the Statute of 38 E. 3. 4. that all Penal bonds in the third person be void and holden for none wherein some Books viz. 40 E. 3. 1. 2 H. 4. 10. 8 E. 4. 5. seem to differ but they being rightly understood there is no difference at all for the Statute is to be intended of Bonds taken in other Courts out of the Realm and so it appeareth by the preamble of that Act being indéed principally intended of the Courts at Rome and so it appeareth by Iustice Hankford in 2 H. 4. In which Courts bonds were taken in the third person so as such bonds made out of the Realm are void but other bonds in the third person are resolved to be good as well as Indentures in the third person by the opinion of the whole Court in 8 E. 4. Co. ibid. 303. a. 3. 2 The antient forms of Courts are to be duly observed Pleading as Cum dimisit or Cum dedit and not to say that he was seised and demised c. and yet if he say so it maketh not the Count vitious But in a barr replication or other kind of pleading the party must allege a seisin in the Lessor or Donor and antient forms of pleading are also to be observed Co. l. 1. 24 b. 3. in Porters case 3 The Statute of 23 H. 8. 10. ordains that if any grant of land Charitable uses c. shall be made in trust to the use of any Churches Chapels Church-wardens Guilds Fraternities Commonalties Companies or Brotherhoods c. all such uses shall be void they being no corporations but erected either of devotion or else by common consent of the people yet this Statute doth not make good and charitable uses not savouring of any superstition to be void as to find a Grammar-school to sustain poor people or any other such good use but only superstitious â—ses because that Statute hath been alwayes by the Common opinion so taken to be for almost
all the lands belonging to Towns and Boroughs not incorporat to defray the Common Taxes of the Town or to repair the Highwayes or the Church or for sustenance of the poor of the parish or to support other common charges of the parish are conveyed to divers Inhabitants of the parish their heirs in trust to imploy the profits therof to such good uses such good uses albeit prima facie they séem to be within the letter of that Act were never made void by that Statute and it is a thing dishonorable to the Law of the Land to make good uses void And it appears by a case reported by Serjeant Benlowes that it was held in the Common pleas in 5 6. E. 6. that a feoffment to the use of poor people was not within that Act of 23 H. 8. 10. Office 4 In Alton Woods case in the 1. Rep. Exception was taken to an office virtute officii returned into the Chancery for it was said Co. l. 1. 42. b. in Alton Woods case that it ought to have been returned into the Exchequer but upon the view of infinite presidents of offices found before the Escheator virtute officii and returned into the Chancery it was disallowed per totam Curiam Perpetuities 5 In the argument of Corbets case in the 1 Rep. Iustice Glanvile said that betwixt the making of the Statute of 13 E. 1. de donis Co l. 1. 87. b. 4. Corbets case c. 27 H. 8. such a proviso annexed to the estate tail viz. that it shall cease as if the tenant in tail were dead was never seen or heard of and therefore he concluded that it could not be done by Law And so likewise concludes Littl. fol. 23. in like manner that if any action might have been brought upon the Statute of Merton Disparagement cap. 6. De dominis qui maritaverint c. it would be intended that sometimes it would have been put in ure and therefore he concludes that no action can be taken upon that Statute in as much as it was never seen or heard that any action was ever brought thereupon Elections in Corporations 6 Where in the Charters of Corporations it is said Co. l. 4. 77. b. in the case of Corporations that the choice of the Maior Bailiffs Provosts or the like Magistrates or Officers shall be chosen by all the Commonalty or Burgesses if they have been chosen time out of mind by a certain select number of the principal of the Commonalty or Burgesses commonly called the Common Councel or by such like name and not in general by all the Commonalty or Burgesses nor by so many of them as will come to the election such antient and usual elections are good and well warranted by their Charters and by the Law also for in every of their Charters they have power given them to make Laws Ordinances and Constitutions for the better government of their Cities Boroughs c. by force whereof and to avoid popular confusion if they by their common assent do constitute and ordain that the Maior Bailifs or other principal officers shall be chosen by a certain select number of the principal of the Commonalty or Burgesses as aforesaid and prescribe also how such select number shall be chosen such Ordinance and Constitution was resolved in 40 41 Eliz. to be good and allowable and to agree with the Law and their Charters for avoiding of Popular discord and confusion And albeit such an Ordinance or constitution cannot be now produced yet it shall be presumed in respect of such a special manner of antient and continual election which cannot begin without common consent that at first such an Ordinance or Constitution was made Such reverend respect the Law attributes to antient and continual allowance and usage although it begin within time of memory Mos retinenda est fidelissimae vetustatis Quae praeter consuetudinem et morem Maiorum fiunt neque placent neque recta videntur Et frequentia actus multum operatur And according to this Resolution the antient and continual usages have been in London Norwich and other antient Cities and Corporations and God defend that they should be innovated or altered for many and great inconveniences may arise thereupon all which the Law hath well prevented as appears by this Resolution Co. l. 4. 93. a. 4. Slades case 7 Albeit an action of debt lyeth upon a Contract Action upon the case yet the bargainor may have an action upon the case or an action of debt for the same at his election and one of the chiefest reasons of that resolution was for that George Kempe secondary of the Protonotaries of the Kings Bench produced an infinite number of presidents as well in the Common Pleas as in the Kings Bench in the reigns of Hen. 6. E. 4. H. 7. H. 8. by which it appeared that the plaintiffs did Count that the Defendants in Consideration of a sale to them of certain goods did promise to pay so much money c. to which presidents and judgements being of so great number and in so many successions of ages and in the several times of so many reverend Iudges the Iustices in this case gave great regard and so the Iustices in antient time and from time to time have done as well in matters of form as in deciding of doubts and questions as well at the Common Law as in the Construction of Acts of Parliament And therefore in 11 E. 3. Formedon 32. it is held that the antient forms and manner of presidents are to be maintained and observed and in 34 Ass pl. 7. that which is not according to the usage shall not be permitted and in 2 E. 3. 29. The antient form and order is to be observed Vide plus ubi supra Co. l. 5. 32. a. Pettifers case 8 Vpon fieri facias of the Goods of the Testator Devastavit the Sheriff returns nulla bona c. hereupon a writ issues to the Sheriff to enquire by Enquest whether the executors have wasted c. He returns they have and thereupon Iudgement was given of their own goods but the executors suing a writ of error de redditione executionis the execution was reversed because this course of procéeding in such case had béen taken up of later times whereas the antient course was upon the return of Nulla bona to sue a scire fac to the Sheriff to levy c. out of the Testators goods and if it should appear to him that the executors have wasted then out of their own goods for albeit it was said that the said newer course was usual in the Common Bench and more favourable than the antient course was because thereby the Devastavit shall not be returned by the Sheriff only but shall be inquired likewise by an Inquest returned and thereupon a Scire facias ought to be awarded yet judgement was given that the
said proceeding was erronious because invented of later times And the rather for that by the antient course if the Sheriff make a false return the party may have his remedy by action upon the case which is a good mean to inforce the Sheriff to make true and just returns in such cases but by the said new course if the Sheriff take an inquest and return it although it be false yet the party hath no remedy either against the Sheriff or any other which would be inconvenient by which resolution it may be observed by the way how dangerous a thing it is to alter or change the antient forms and courses of Law for albeit a new way may prima facie seem specious and convenient yet afterwards it will prove incommodious by introducing sundry mischiefs which cannot be discovered otherwise than by future experience as in the case above recited which point it were to be wished our late Regulators would well study and consider before they presume to innovate any thing in the Law Co l. 9. 15. a. Aâ—â—â— Bedingfields case 9 In a writ of Dower an essoin was cast and challenged Essâ—in for that by the Statute of Essoins 12 E. 2. it is provided Quod non jacet Essonium in breve de Dote Howbeit because the Common essoin hath been alwaies allowed in a writ of Dower therefore the Iustices did construe that Statute to extend to an essoin of the Kings service and not to the Common essoin And the rather for that the Statute addeth a Reason of that purview viz. Quia videtur deceptio prorogatio Iuris and that is properly to be intended of an essoin of the Kings service which is a delay and prorogation of right for a year Vide 4 E. 3. 36. 4. Ass pl. 2. Long 5 E. 4. 70. Ward 10 Albeit 16 E. 3. Damages 80. and some other books are Co. l. 9. 74. b. 2. in Dr. Husseys case that Damages shall not be recovered in a writ of Ravishment of Ward yet for that it is held in 17 E. 3. 57. and many other books quas vide ubi supra and agreeth with common experience that Damages should be recovered in that writ it was so resolved accordingly Bastardy 11 It appears by the Statute of Merton Co. l. 5. pars 1. 12. a. 1. Merton 20 H. 3. that all the Bishops instanced the Lords that they would consent that all such as were born before Matrimony marriage following after should be legitimate as well as they that were born within Matrimony as to the succession of Inheritance for that the Church accepted such to be legitimate But all the Earls and Barons with one voice answered Nolumus Leges Angliae mutare quae hucusque usitatae sunt et approbatae A writ to the Coroners 12 If a writ be directed to Coroners Coronatoribus de Comitatu Pl. Co. 76 b. 4. Wimbish Willoughby or in Comitatu have the same construction de and in in this case signifying the same thing yet because in in such case hath been most frequently used upon such a direction to the Coroners de ought to be rejected and in retained for the order of the Register is that all writs directed to the Sheriff shall be Vicecomiti de Comitatu but those directed to the Coroners Coronatoribus in Comitatu as an Attachment against the Sheriff for not returning a Replevin is directed Coronatoribus in Comitatu c. So is likewise the writ of Certifying an Outlawry as appears in the book of Entries and so all other writs as a Diem clausit extremum is Escheatori in Comitatu and the like And he that finds fault with this direction argueth against the Register and also against the common usage of the Law heretofore practised Phrase 13 If I give you a pint of wine you shall not have the pint-pot Pl. Co. 85. b. 4. Partridges case but if I give you an Hogshead of wine you shall have the Hogshead for the phrase of the language commonly used expresseth the intent Et a Communi observantia c. 14 A writ of Inquiry being directed to the Sheriff himself to be executed he makes return Hob. 83. Virely and Gunstone Quod mandavit Balivo Hundredi de B. c. Qui quidem Balivus sic sibi respondit And so sets down the Inquisition taken before the Bailiff and 40 l. damages Howbeit upon a writ of Error it was agreed by all the Iudges that the return was insufficient because it was apparently untrue and against Law for that the warrant was directed to the Sheriff himself to be executed in any part of the County and no Venue contained in that Inquest of office as there is in other writs which intitle the Bailiffs of Liberties Howbeit the Court would not reverse the judgement because there were divers of the like kind both in the Kings Bench and Common Pleas especially in Suffolk and Norfolk in later times Vide Hob. 84. Skeat and Oxonbridge such an allowance in a writ of waste Star-chamber 15 In a sute in the Starr-chamber witnesses were examined to prove what was deposed concerning a will in the Ecclesiastical Court Hob. 114. but because depositions were not allowed in the Starr-chamber taken in other Courts they were rejected as a crafty device to induce depositions against the Rule of the same Court 204 Eventus varios Res nova semper habet And therefore it hateth new Inventions and Innovations Co. Inst pars 1. 379. a. 2. 1 Sir Edward Cooke speaking of Iustice Richel his Perpetuity Inventions observes that new inventions though of a learned Iudge in his own profession are full of Inconvenience Periculosum est res novas et inusitatas inducere And that Author saith farther that Littleton in the debate of that case § 721 722 723. hath taught us an excellent point of learning Co. ibid. b. 1. that when any innovation or new invention starts up the best way is to try it by the Rules of the Common Law for they are the true touchstones to sever the pure gold from the dross and sophistications of novelties and new inventions And by this example he saith you may perceive that the Rules of the Common Law which are indéed the Maximes of Reason being soundly applyed to such novelties it doth utterly crush them and bring them to nothing for commonly a new invention doth offend against many Rules and reasons of the Common Law Co. ibid. 282. b. 3. And therefore the antient Iudges and Sages of the Law have ever suppressed innovations and novelties as soon as they have offered to créep up lest the Quiet of the Common Law might be disturbed and so have Acts of Parliament also many times done the like And the Iudges say in 38 E. 3. We will not change the Law which alwayes hath been used And another saith in 2 H. 4. 18. Co. ibid. 303. b.
and his wife in the life of the wife but if a man demise land to a feme for life rendring rent Rent and she take baron and after the rent is arrear and then she dies In this case the baron shall be charged by writ of debt for those arrerages because he took the profit of the land by reason of his wife F. N. B. ibid. 12 If a man be bound by obligation to a feme and she take baron The like and the day of payment comes during the espousals and after the feme dies the baron shall not have an action of debt for this obligation because it was a duty due to the feme and a thing in action before the espousals but if a feme be endowed of a rent and after she take baron and the rent is arrear and then the feme dies In this case the Baron shall have a writ of debt for this rent because it was a duty accrued unto him during the espousals Co. Inst pars 1. 46. b. 3. 13 If a lease be made to Baron and feme for term of their lives Leases the remainder to the executors of the survivor of them the husband grants away this term and dieth this shall not barr the wife for that the wife had but a possibility and no interest But if a man be possessed of a term for forty years in right of his wife and maketh a lease for 20 years reserving a rent and die albeit the wife shall have the residue of the term yet the Executors of the husband shall have the rent for that it was not incident to the reversion because the wife was not party to the lease So if the husband had made a grant of the whole term upon condition that the grantee should pay a sum of mony to his executors c. and the husband had died and then upon breach of the condition the executors had entred This had been a disposition of the whole term and the wife had been barred thereof because the whole Interest was in that case passed away by the husband Also if husband and wife be ejected of a term in the right of his wife and the husband bring an Ejectione firmae in his own name and have judgement to recover this is an alteration of the term and vesteth it in the husband sic de similibus 214. Her will ought to become his will and to be subject unto it Co. Inst pars 1. 112. b. 1. 1. The husband may devise lands to his wife Devise because as Littleton saith § 168. the devise taketh not effect till after the husbands death Howbeit this reason holdeth not to make a devise of lands from the wife to the husband goo◠for if a Feme covert be seised of lands in fée she cannot devise the same to her husband because at the making of her will she had no power being sub potestate viri to devise the same and the law intendeth that it may be done by coercion of her husband Co. ibid. 132. b. 2. 2. A woman cannot be professed a Nun during the life of her husband Profession Howbeit in such case some do hold a diversity viz. that ante carnalem copulam the husband or wife may enter into religion without any consent but Post carnalem copulam neither of them can without the consent of the other Co. ibid. 310. b. 1. 3. If a Feme sole maketh a lease for life or years reserving a rent Attornment and granteth the reversion in fee and then taketh husband this is a countermand of the Attornment for that she had no such fréedom of will when her grant was to take perfection by attornment as she had at the time of the grant made her will now being subject to the will of her husband Co. l. 2. 57. a. 4. in Beckwiths case 4. If Baron and feme levy a fine of land Declaration of Uses whereof they are seised in right of the feme and the baron only declare the use of the fine this declaration of the use shall bind the feme if her disassent appear not albeit her assent to the limitation of the uses cannot appear for when she joyns with the baron in the fine it shall be intended if the contrary appear not that she joyned also with him in agreement in the declaration of the uses of the fine Declaration of uses 5. If Baron and feme sell the land of the feme to another for mony by parol and after levy a fine to the vendee and his heirs this is good Co. l. 2. 24. Beckwiths case and shall bind the feme without any writing proving her assent A fortiori when the use is declared by the deed of the baron and no other declared by the feme it shall bind vide 12 Eliz. 290. Dyer Baron and feme were seised of a tenement in London to them and the heirs of the Baron the Baron covenanted by Indenture in consideration of 20 l. that he and his wife should suffer a recovery by writ of right according to the custom of London which binds as a fine at the Common-law and that the recovery should be to the use of the recoverors untill they should make a lease by Indenture for 40 years and after the making of the lease then to the use of the baron and feme and the heirs of the baron and the recovery was had accordingly and the opinion of all the Iustices was that the lease was good and not disseisible by the feme who survived the baron And yet in this case the baron was only party to the deed that declared the use neverthelesse it bound the feme because the feme is sub potestate viri And therefore albeit the feme be owner of the land and the declaration or disposition of the use insues the ownership of the land sicut umbra sequitur corpus Co. l. 4. 51. b. 2. And. Ognels case yet in regard she is sub potestate viri she cannot in respect of her coverture without the barons consent limit the use no more than she can make an executor without such consent Devise 6. A feme sole deviseth land to a man and then takes him to husband Co. l. 4. 61. a. 3. c. Forse and Hemblings case and dies this intermariage is a revocation of the devise and the heirs of the feme shall have the land and not the husband because after mariage the will of the feme in judgement of law is subject to the will of her husband and as it is commonly said a feme covert hath not any will for the making of the will is but the inception thereof and takes not effect untill the death of the devisor Omne Testamentum morte consummatum est and voluntas est ambulatoria usque ad extremum vitae exitum Tenant at will 7. If a feme sole be lessor
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
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
clamat the Termor claimes fee this is a Forfeiture because the Condition was repugnant And note the Iudgement there that the terme shall be forfeit the Conuses might enter and the Fine shall be engrossed Vide Plowd Sanders against Freeman and Plesintons case 6 R. 2. Dyer 264. 40. 9 El. 49. Repugnant Lease Baron and Feme being Termors of the three Conyes in Fleet-street the Baron leaseth part of the terme by these words the Messuage called the three Conyes with all the Chambers Sellars and Shops except to the Baron the Shops ad proprium opus usum the Feme enters into the Shops and then brings Ejectione firmae and per Curiam the exception is but temporary to the Baron himselfe there being no mention of Executors or Assignes and also the exception is void for the Shops because repugnant to the demise of the Shops Dyer 288. 54. 12 El. 50. Exception repugnant If a common person grant the Mannor of D. except the Courts and perquisites the exception is void for the repugnancy and the Grantee shall keep Courts and have the perquisites notwithstanding such exception Howbeit it is otherwise in the Kings case Vide Max. 81. 103. Hob. 13. Sir Daniel Nortons case 51. If an Vnder-Sheriff covenant with his High-Sheriff Sheriff and Under-Sheriff that he will not execute any Writ of execution for any debt above twenty pounds without speciall Warrant from the High-Sheriff This Covenant is void for the repugnancy for albeit he may chose not to make an Vnder-Sheriff at all or may make him at his will and remove him also if he please yet he cannot leave him an Vnder-Sheriff and yet abridge his power no more then the King may in case of the Sheriff himselfe Vi. 65. 25. Hob. 39. John Ion's case 52. An Office was found Office that A. being seised of the Mannor of D. in fee enfeoffed B. in fee to the use of himselfe for life the Remainder to C. in fee and that A. being so seised of the Premisses dyed thereof so seised And this Office was adjudged void for the repugnancy 168. It will not drive a man to justifie or shew that which he goeth about to defeate or which makes against him Co. l. 7. 10. a. Vghtreds case 1. The Marquesse of Winchester grants the Captainship of a Fort Condition subsequent not to be averred and for the exercising of that Office and for finding a Gunner and six Souldiers he grants him an Annuity of two and thirty pounds yearly upon Suit for this Annuity exception was taken to the count for that the Plaintiff had not therein averred his exercising of the Office but the exception was over-ruled by the Court because in all cases when an Interest or Estate commenceth upon a Condition precedent be the Condition or Act to be performed by the Plaintiff or Defendant or any other and be the Condition in the affirmative or negative there the Plaintiff ought to shew it in his Count and to aver the performance thereof for then the Interest or estate commenceth in him by the performance of the Condition and is not in him untill the Condition be performed but it is otherwise when the Interest or Estate passeth presently and vests in the Grantee and is to be defeated by matter ex post facto or Condition subsequent be the Condition or Act to be performed by the Plaintiff or Defendant or any other and be the Condition in the affirmative or negative In such case the Plaintiff may count generally without shewing the performance thereof and it shall be pleaded by him that will take advantage of the Condition or matter ex post facto for every one ought to alleadge that which makes for him and which is for his advantage and no man shall be forced to alleadge that which makes against him Vide plus ibidem The like 2. If I grant to one that when he shall be promoted to a benefice Pl. Com 25 b 4. Colthrist and Bevish that then he shall have an Annuity In this case if he demand the Annuity he ought first to shew that he is promoted to a Benefice in such a case he shall have a Writ of Annuity and shall not shew that he is yet promoted because the annuity precedes and the promotion is subsequent and goes in defeasance of the annuity and therefore ought to be shewed on the contrary part and not by the Plaintiff because it makes against him Vide 15 H. 7. fol. 1. Br. Annuity 22. Count 43. Co. l. 7. 10. b. Vghtreds case The like 3. In Colth and Bevishams case Pl. Com. ibid. 26. b. 4. 30. a. 3. 32. b. 2. 34. a. 2. Pl. Com. The Grange was to remain to Peter Bevisham for life Si vellet inhabitare c. durante termino which was the whole Terme and immediatly after the death of Henry and Elianor and therefore it was alleadged that he should have shewed in his bar the time of his entry and his abode thereupon but it was resolved that the bar was good notwithstanding that exception because by common intendment it shall be taken that his entry was immediatly after the Remainder fell and if it were not so the Plaintiff ought to have shewed it and not the Defendant in his Bar because it made against him being in Defeasance of his Estate c. Condition subsequent 4. If I grant to one that when he shall do such an Act Pl. Com. 30. a. 2. Colthirst and Bevish that then he shal have a Rent charge out of my Land in this case he shall not avow for the Rent unlesse he first shew the performance of the Condition for that enables him to the Rent but if I grant to one out of my Land a Rent-charge upon Condition that he shall do such a thing here he shall avow for the rent without shewing the thing to be done for the Condition is subsequent and goes in defeasance of the estate which he that would have the estate to continue ought not to shew because it makes against him Copy-hold 5. A Copy-hold Lord in suing for a Fine upon admittance Ho. 135. Denny and Lemman need not aver that the Fine set upon the Copy-holder was reasonable because that might perhaps make against him if it should be adjudged by the Court unreasonable but the unreasonablenesse of the Fine ought to be pleaded on the Copyholders part 169. Non potest adduci exceptio ejusdem rei cujus petitur dissolutio Taile discontinued 1. If Tenant in tail of Lands make a gift in tail or a Lease for life Co. Inst pars 1. b. 2. rendring a rent and dyeth and the Issue bringeth a Formedon in the Descender in this case the Reversion and Rent shall not bar the Demandant because by his Formedon he is to defeate the Reversion and Rent Et non potest adduci c.
in this case the tenant may live 40 years after they are made In like manner if the service be to cover the Hall of the Lord or to march with him when there shall be warr betwixt the King and any of his enemies such casual services as by common possibility cannot happen within 40 years are not within that act There is the same Law also of a Formedon in descender for the tenant in tail may live 50 years after the discontinuance And therefore in Fitz williams case in 10 11 Eliz. it was adjudged Dyer 278. pl. 2. that Formedons in descender were not within the Statute for the common possibility aforesaid Vide plus ibid. Sale by the Sherif 24 The Sherif reciting Co. l. 4. 74. a. 3. Palmers case that A. had a lease of a Parsonage pro termino diversorum annorum extunc ventur sold it by force of a Fieri facias to another and this sale was adjudged good because by common intendment the Sherif cannot have precise knowledge of the commencement and end of the term The Law is otherwise in case of an Inquisition because a term cannot be extended without shewing the beginning and ending thereof to the end that the debtor may have the residue of the term when the debt is satisfied c. Co. l. 4. 77. b. 2. in the case of Corporations 25 Albeit a Corporation have a commencement by Charter Corporations and by consequence within memory it be expressed in their Charter that the choice of their Maior Bailifs and other principal Officers shall be by the Commonalty yet if by a long usage they have chosen them by a select number of the principal of the Commonalty or of the Burgesses although no such constitution can be shewd to warrant such election yet to avoid popular confusion such election is adjudged good in Law because it is presumed and intended that such special election which could not commence without common assent was formerly made and agreed upon Vide infra 192. 2. Co. l. 5. 12. a. in Sanders case 26 If a man hath land in part whereof there is a Cole-mine open Cole-mine and he deviseth the land to one for life or for years the lessee may digg in the mine for in as much as the mine is open at the time of the lease made and he demiseth all the land it shall be intended that his intent is here general as his demise is viz. that the lessee shall take profit of all the land and consequently of the mine within it Vide 17 E. 3. 7. And so the doubt in F. N. B. 149 c. well explained Co. l. 5. 96. b. 4. in Goodals case 27 A. seised of lands in fee by deed indented and enrolled covenants with B. that if B. shall pay to A. his heirs or assigns 100 l. such a day at such a place Assignee in Law and in fact Diversity that then A. and his heirs will stand seised of the land to the use of B. and his heirs before the day of payment A. having issue a son makes his will in writing and his wife executrix thereof and dies the wife renounceth the executorship and then takes administration In this case this word Assigns shall be only intended of the assigns of the estate of A. for he hath an estate in him assignable and the Law will never seek an assignee in Law when there may be an assignee in fact but if A. had made a feoffment in fee upon condition that the feoffee shall pay the mony to the feoffor his heirs or assigns c. there because he hath departed with his whole estate in fee and hath but a naked condition which cannot be assigned over the Law which never rejects any word if by any reasonable construction it may take effect will make construction what person shall be most apt as his assignee in Law to receive the money and these the Law adjudgeth to be his executors because they represent the person of the testator for all goods and chattels and in such case the feoffor cannot have any assignee in fact Vide 27 H. 8. 2. a. Co. l. 5. 97. a. 4. in Goodals case 28 In a special verdict all other matters shall be intended and supplied but only that Verdict special which the Iurors have referred to the consideration of the Court as it was adjudged in 30 31 Eliz. in B. R. inter Scovel Cabel and therefore in Goodales case in the Fifth Report albeit no title was there found for the defendant but was as a meer stranger yet the Court never doubted thereof but by intendment took it for granted and took only into their consideration that whereof the Iurors made doubt viz. whether the payment there were a good performance of the Condition Co. l. 5. 105. Aldens case 29 In an Ejectione firmae at the Common Law Antient Demesn is a good plea to the Iurisdiction of the Court Antient demesn because by common intendment the title and right of the Land will thereby come in debate and the plaintif shall recover the possession of the land and have execution by habere facias possessionem so also in Replevin writ of Mesn writ of Ward in accompt against Guardian in Socage c. Antient demesn is a good plea for the apparence and common intendment that the realty will come in debate the like Law is also in accompt against a Bailif because it is brought for the issues of the land which is antient demesn and therefore ought to be brought and determined in the Court of antient demesn and not elswhere c. Co. l. 6. 16. a. Collyers case 30 By intendment of Law a devise shall be for the benefit of the Devise devisee and not to his prejudice as if land of the value of 3 l per annum be devised to A. and that A. shall pay out of it 50 s. per annum in this case A. hath but an estate for life for he may pay it out of the profits of the land and is sure to be at no loss but if it be devised to B. for life the remainder to A. paying 50 s. per annum out of it In this case A. hath fee simple because after the payment thereof A. may die before he can receive satisfaction for the same out of the profits of the land and therefore such a devise shall be fee simple because the Law intends that the devise was intended for his benefit and not for his prejudice Error in popular actions 31 B. brings a plaint in the Court of Ludlow which is a Court of Record against C. tam pro Domina Regina quam pro seipso Co. l. 6. 19. b. Gregories case upon the Statute of 4 5. Ph. M. cap. 5. for exercising the trade of a woollen-weaver without having served seven years as an Apprentice c. and had judgement
c. hereupon C. brings a writ of Error c. and for one of the Errors assigns that albeit Ludlow be a Court of Record yet it is not such a Court as is intended by the Statute for causes of that nature for that the antient usage in all such popular actions or informations hath been that albeit the Informer tam pro domina Regina quam pro ipso exhibits the Information yet if the defendant pleads a special plea the Quéens Attorney shall reply alone and it was intended by the makers of the said Act that the sute should be in such a Court where the Kings Attorney may attend for the benefit which the King may have by such a sute and that is in the four Courts at Westminster And thereupon the Iudgement was reversed Vide Dyer 236. 24. Admission and Institution 32 He that comes in by Admission and institution Co. l. 6. 49. b. 1. in Boswels case comes in by a judicial act and the Law presumes that the Bishop who hath the cure of the Souls of all within his diocess for which he shall answer at his fearfull and final account in respect whereof he ought to defend them from all Schismatiques Heretiques and other Instruments of the devil will not do or assent to any wrong to be done to any Parsonage within his diocess but if the Church be litigious will inform himself of the truth de Iure Patronatus and so do right Peer agâ— 33 The person of a Peer of the Realm or a Countess Baroness Co. l. 6. 52. b. 3. in the Countess of Rutlands case c. by marriage or descent ought not to be arrested for debt or trespass because the Law presumes that they have sufficient in lands and tenements whereby they may be distrained and therefore in such cases issues only shall go out against their lands And albeit a Countess Baroness c. in respect of her sex cannot sit in Parliament yet she is a Peer of the Realm and shall be tried by her Peers as appears by the Statute of 20 H. 6. cap. 9. which is but a declaration of the Common Law Vide plus ibidem Cestuy que use 34 If Cestuy que use had granted his use by his will Co. l. 6. 76. a. 3. in Sir Geo. Cursons case no collusion could have been averred upon such a will to obtain the wardship of his heir for Nemo praeâ—umitur esse immemor suae aeternae salutis et maxime in articulo mortis et omne testamentum morte consummatum est And therefore the Statute of 4 H. 7. 10. which gives the wardship of Cestuy que use makes exception when any will is by him declared Vide 27 H. 8. 14. Divorce 35 Ch. and Eliz. were divorced in the Court of Audience ratione aetatis minoâ—is et impubertatis Eliz. after they had lived ten years together and had issue a daughter Co. l. 7. 43. b. Kennes case and afterwards Ch. marrying another woman by another Sentence in the Ecclesiastical Court the first marriage was declared void the second good and liberty given them ad exequenda conjugalia obsequia The second wife dies and Ch. marries a third wife and hath issue another daughter The last daughter is found heir by office the first traverseth the office by bill in the Court of Wards And in this case it was resolved that albeit the first was in truth a lawfull marriage yet the Sentence of divorce being in force no averment could be admitted against it because the Spiritual Iudge having jurisdiction thereof before the Sentence were repealed it was intended by Law to be Iust and our Law gave credence thereunto for Res Judicata pro veritate accipitur See Dyer 13. pl. 62. Co. l 9. 52. b. 4 in Hickmols case 36 If the Obligee confess himself to be discharged of all bonds betwixt him and the Obligor Release of bonds this by intendment of Law is a release or discharge of all bonds betwixt them for albeit the word discharge is not properly said of the part of the Obligee but of the Obligor for the Obligor is to be discharged yet in judgement of Law such an acknowledgement amounts to a discharge of the Obligor of all such duties Co. l. 9. 109. Meriel Treshams case 37 In debt against an executor he cannot plead quod ipse non habet c. aliqua bona c. praeter bona Plea of Executor c. quae non sufficiunt ad satisfacienda debita praedicta but he ought to plead quod non habet c. bona c. praeterquam bona catalla ad valentiam of a certain summ non ultra quae eisdem debitis obligata onerabilia existunt for the first plea is insufficient for the uncertainty vide Max. 162. pl. 61. and the other he ought to plead because he being privy and representing the person of the testator hath by intendment of Law notice of the certainty and certain value of the goods and therefore in such case ought to plead certainly as aforesaid The like Law is of an administrator for the goods of the Intestate Co. l. 11 13. a. 1. in Priddle and Nappâ—rs case 38 Of Impropriations formerly given to Monasteries Appropriations not only those which were truly Impropriate but likewise such as had been and were so in reputation were given to H. 8. by the intendment of the Statutes of Dissolution for albeit in those Statutes there is a saving of rights yet the Founders Donors c. are excepted out of that Saving so as they are bound by the body of the Act. Co l. 11. 16. a 4. in Doct. G anâ—s case 39 A Prescription Tites that every Inhabitant in the parish is to pay 2 s. in the pound according to the value of their houses yearly instead of Tithes is a good prescription because by intendment of Law the commencement thereof might be lawfull for it might be so by composition for the land before the houses were built 40 It is a Principle in Law that a barr is good if it be certain Plea in barr to a common intent good to a common intent Pl. Co. 28. a. 4. Colchrist Bernshin Vide ibid. 31. a. 33 a. 4. â—6 a. 3. as if a Messuage be demised to A. for life the remainder to B. for life si ipse B. vellet inhabitare in messuagio praedicto c. Here in an Action brought by the lessor for the recovery of the Messuage c. upon the condition broken it is a good barr for B. to say that after the death of A. he entred without averring the time of his entry viz. immediately after the death of A. because by intendment of Law it will be presumed he did so enter So if one plead in barr that A. died seised and that B. entred as son and heir to A. this is a good barr