made twenty moneths after yet this Warranty begins by Disseisin so the intent maketh the act to enure otherwise then it would do for when covin is mixt with the truth it makes all unsavory So in Wimbish and Talboies case in the Com. Eliz. Talbois joyning by covin with W. Talbois in being taken by nihil dicit he was to lose her estate by force of the Stat. of 11 H. 7. and the Issue in tail might before that Statute falsifie a feined Recovery by covin 38. The 11 H. 7. 20. Pl. Co. 59. b. 1. ibid. and all other Statutes made for the suppressing of fraud shall be extended by equity the words of the Statute of Marlebridge cap. 6 are de his qui primogenitos haeredes suos infra aetatem existentes feoffare solent and yet if the first be dead and he enfeoff his second Son which is his heire that is within the equity of the Statute or if he levy a Fine to him which is matter of Record that is also within the equity of the Statute albeit the Statute speaks of Feoffment And the reason is because covin is alwayes abhorred in our Law and Statutes made for the suppression thereof are made for the publick good and therefore shall be extended by equity In like manner 1 H. 7. cap. 1. which gives a Writ of Formedon in Remainder against the perner of the profits was made for the suppression of covin for a Feoffment made to persons unknown to defraud those that right had Pl. Co. 81. b. 4. in Partridge and Stranges case was great covin and deceit in the Law and therefore a Scire facias to execute a Remainder shall be maintainable against the pernor of the profits as it is adjudged in 14 H. 7. fo 31. And to these Statutes and the like made for the suppression of fraud and covin are alwayes to be extended by equity and to have a favourable interpretation and construction And therefore the Statute of 32 H. 8. cap. 9. shall be also extended by equity Co. l. 5. 80. a. in Fitzharberts case being ordained for the suppression of fraud and covin in buying of pretenced titles so that Leases for years as well as higher estates shall be intended by it Warranty 39. The Father Tenant for life the Remainder to the Son and Heire apparent in tail Leases to A. for years with intent that A. should enfeoff B. unto whom the Father should release with Warranty all which is done accordingly This is a Warranty that commenceth by Disseisin for albeit the Warranty be not made at the time of the Disseisin which was upon the Feoffment to B. yet by construction of Law it shall be adjudged to be Warranty that begins by Disseisin by reason of the practice and covin betwixt the confederates for if the Father had made the Feoffment to B. with Warranty and had dyed this Warranty had barred the Heire c. vide pl. ibid. â—ttaint 40. A false Verdict is a contradiction in it selfe Co Inst parâ— 1. 128. 4. and so odious in the Law that in an Attaint Outlawry in the Plaintiff cannot be pleaded in disability of the person 41. The Statute of 31 Eliz. 6. Hob. 75. to prevent Simonie is to be largely expounded though penall The King against the Bishop of Norwich 158. Jus Fraus numquam Cohabitant Co. l. 10. 45. a. 4. in Jennings his case 1. The Statute of 14 Eliz. cap. 8. Recovery by Tenant in taile doth not extend to preserve any Reversion or Remainder expectant upon an estate taile or where the Tenant for life is impleaded and Tenant in tail is vouched for the title of the Act is For avoiding of Recoveries suffered by collusion by Tenant for life c. but a Recovery cannot be said to be by collusion where Tenant in tail is in the Recovery either Tenant in Fait or Tenant in Law as Vouchee for the Law as an incident to his estate hath made the Land and all Remainders and Reversions subject to his pleasure and he hath right and power to bar them all and Jus Fraus numquam Cohabitant And therefore the title of the Act being For avoyding of Recoveries by collusion c. it cannot extend to a Recovery where Tenant in tail is party or privy Pl. Co. 51. a. 2. in Wimbish and Talboies case 2. When truth is mixed with covin that wicked hearb or covin with truth Truth Covin that conjunction and mixture makes all bitter and unsavory and goodnesse is perverted into wickednesse for they cannot continue together no more then fire and water Dyer 55. 9. 35 H. 8. 3. A Verdict is said to be veri dictum Verdict Error which ought to have truth in it and no semblance of fraud or partiality to either party And therefore if a Iury before their agreement eat or drinke at the charge of either of the parties it is good cause of Error to reverse the Iudgement upon such a Verdict for there cannot be truth in such a Verdict which hath such a badge of fraud and falsehood because such practice implyes partiality and suspition 159. Quando aliquid prohibetur fieri ex directo prohibetur per obliquum Litt. S. 361. Co. Inst pars 1. 223. a. 4. 1. If a Feoffment in fee be made upon Condition A Feoffment upon Condition that the Feoffee shall not alien that the Feoffee shall not enfeoff I. S. or any of his Heires or Issues c. this is good for he doth not restraine the Feoffee of all his power howbeit if he enfeoff I. N. with intent and purpose that he should enfeoff I. S. some held that it is a breach of the Condition So if a Feoffment be made upon Condition that the Feoffee shall not alien in Mortmaine this is good because such alienation is prohibited by Law and regularly whatsoever is prohibited by Law may be prohibited by Condition but in this case if the Feoffee enfeoff I. S. with intent that he shall alien the Land in Mortmaine it seemes to be a breach of the Condition In ancient Deeds of Feoffment in fee there was usually this clause Quod licitum sit donatorio rem datam dare vel vendere cui voluerit exceptis viris religiosis Judaeis Co. ibid. 282. a. 3. 2. In an Action upon the case Innovation prohibited the Plaintiff declared for speaking of slanderous words which is transitory and laid the words to be spoken in London the Defendant pleaded a Concord for speaking of words in all the Counties of England save in London and traversed the speaking of the words in London the Plaintiff in his replication denyed the Concord whereupon the Defendant demurred and Iudgement was given for the Plaintiff for the Court said if the Concord in that case should not be traversed it would follow that by a new and subtile invention of pleading an ancient Principle in Law that for
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.
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
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
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
and after I confirm the Estate of the Baron and Feme to have and to hold for their two lives In this Case the Baron holds not joyntly with the Feme but onely in her right during her life and shall have it for life if he survive her But if I let to a Feme sole Land for term of years who takes Baron and I confirm the Estate of the Baron and Feme to have and to hold for their lives In this Case they have a joynt Estate in the Frank-tenement of the land because the Feme had not Frank-tenement before but onely a Chattel whereof the Baron hath such a possession in her right as was capable of a confirmation or a release and the confirmation in this Case to the husband and wife for their lives maketh them Ioynt-tenants for life because this Chattel of the Feme covert may be drowned So note a diversity betwéen a Lease for life and a lease for years made to a Feme covert for her Estate of Fréehold cannot be altered by the confirmation made to her husband and her as the term for years may whereof her husband may make disposition at his pleasure Co. ib. 275. b. 4. 11 If Lessée for years be ousted and he in the Reversion disseised Release to the Disseisor and the Lessée release to the Disseisor the Disseisée may enter for the term for years is extinct and determined But otherwise it is in case of a Lessée for life for in that Case the Disseisor hath a Fréehold whereupon the release of tenant for life may inure but the Disseisor hath no term for years whereupon the release of the Lessée for years may inure Co. ib. 378. â— 4 12 A man letteth lands for life upon Condition to have Fée A Lease for years not capable of a warranty and warranteth the land in forma praedicta afterwards the Lessée performeth the Condition whereby the Lessée hath Fée In this Case the warranty shall extend and increase according to the State for a warranty being a Covenant real executory may extend to an Estate in futuro having an Estate whereupon it may work in the beginning but if a man grant a Seigniory for years upon condition to have fée with a warranty in forma praedicta and after the Condition is performed this shall not extend to the fée because the first Estate was but for years which was not capable of a warranty And so it is if a man make a lease for years the remainder in Fée and warrant the land in forma praedicta he in the remainder cannot take benefit of the warrantie because he is not party to the Déed and immediately he cannot take if he were party to the Déed because he is named after the habendum and the Estate for years is not capable of a warranty c. Waste 13 A Lease for life the remainder for years Finch 29. the remainder over in Fée an action of waste lieth for him in the remainder in Fée against the Lessée for life sor the mean Estate for yeares is not regarded Otherwise it were if the mean Estate for years were an Estate for life c. Joynt-tenants may prejudice one another 14 One Ioynt-tenant cannot prejudice his Companion Co. l. 2. 68. a. 3. in Tookers ca. as to any matter that concerns the Inheritance or Frank-tenement But as to the profits of the Frank-tenement they may prejudice one another c. per Popham Right of Action 15 There is a diversity betwéen Inheritance and Chattels Co. l 3. 3. a. 1 in the Marquesse of Winchesters Case for the right of action concerning Inheritances is not forfeited by Attainder c. but Obligations Statutes Recognisances c. and such other things in action are forfeited by Attainder or Outlawry Real and personal actions 16 The Law hath provided greater safety and remedy for matters of Frank-tenement and Inheritance then for Debts and Chattels Co. l. 6. 7. a. 1 in Ferrers Case for there once barred and ever barred for in personal actions as in Debt Accompt c. the bar is perpetual because the Plaintiff in that Case cannot have an Action of an higher nature but his onely remedy in such Case is by Errour or Attaint Howbeit if the Demandant be barred in a real Action by judgement upon Verdict Demurrer Confession c. yet he may have an Action of higher nature and try the same right again because it concernes the Frank-tenement and Inheritance as if one be barred in an Assise de novel disseisin yet he may have upon shewing a descent or other special matter an Assise of Mortdancestor Aiel Besaiel Entry sur disseisin to his Ancestor c. So if a man be barred in a Formedon in descender he may have a Formedon in reverter or remainder for that is an Action of an higher nature because in it the Fée-simple is to be recovered according to the opinion in Robinsons Case in the 5. Report fol. 33. â—ands not â—hargeable in â—â—cution 17 At the Common Law before the Statute of VVest 2. cap. 18. Co. l. 3. 11. b. 4 in Sir Wil. Herberts case which gave an Elegit against the moity of the Debtors Lands upon a Recognisance or Iudgment sued lands were not chargeable in execution but onely Goods and Chattels or else grain or other present profit increasing upon the land viz. Goods and Chattels by Fieri facias and such present profit by Levari facias c. Vide suprà Ru. 92. ex 16. Howbeit in the Kings Case by reason of his Prerogative and in Case of an Heir in by Descent and chargeable by the act of his Ancestor c. because otherwise in such Case the Creditor was without remedy c. lands were chargeable in execution c. 〈◊〉 by a terâ—â—r not good 18 A man deviseth a rent for life out of a Mannor Co l. 6. 58 b. 4 in Bredimans Case and deviseth the Mannor for years the termor enters and payes the rent after the term the Devisée brings an Assise for the rent against the Terre-tenant And in this Case seisin by the hands of the Termor was adjudged no sufficient seisin whereupon to ground the Assise but the seisin ought to have béen given by the hands of the Terre-tenant viz. of one the tenant of the Frank-tenement c. Vide suprà Ru. 86. ex 21. It had béen otherwise if the termor for years had béen Lessée for life for then the seisin had béen given by the hands of the Terre-tenant viz. of one that had Frank-tenement as may be collected out of Bredimans Case ubi in margine viz. fol. 58. b. â—â—rantee of a â—â—version â—â—dition 19 If a man make a Lease for years upon condition Co. l. 8. 95. b. 3 in Matt. Mannings Case Co. l. 10. 48. b. 3 in Lampets ca. that if the Lessée doth not such an act that the Lease
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
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.
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
the one being as ancient as the other as if a man hath a way over the Land of A. to his Franck-Tenement by Prescription time out of minde c. A. cannot alledge Prescription or Custome to stop the sayd way Co. l. 9. 109. b. 3. Meriel Treshams case 39. In Debt against an Administratrix she pleads in Bar Bar repugnant Quod ipsa plene administravit omina bona c. quae fuerunt c. quod illa nulla habet bona c. quae fuerunt c. nec habuit die impetrationis brevis c. praeter bona catalla ad valentiam of the Kings debt and of severall Recognizances by which plea she confesseth that she had sufficient in her hands to satisfie the sayd Debt and Recognizances And then she pleads further Quod ipsa nulla alia sive plura habet bona c. quae fuerunt c. Praeterquam bona catalla quae non sufficiunt ad satisfaciendum Praed seperalia debita Which is clearly and Ex diametro repugnant to what she had confest before and thereupon the sayd Bar was adjudged insufficient Co. l. 11. 80. b. 2. Lewes Bowles case 40. A Feme brings a Cui in vita quod clamat tenere ad vitam Cui in vita Contrariety and maintaines it in her Count by a gift in speciall Tail to her and her Husband and that her Husband is dead without Issue and the Writ abated for the contrariety of the Title for in the Writ she named her selfe but a bare Tenant for life whereas in her Count it appeared that she had such an Estate for life which had greater Priviledges incident unto it then a bare Estate for life hath Vide 18 E. 3. 37. Assignment of Errors Contrariety F. N. B. 21. b. 41. In a Writ of Error upon a Iudgement given in the Common Bench the Plaintiff cannot assigne for Error that the Iustices of the Common Bench did not give the Iudgement but that the Clarkes of their own heads did it Neither can he assigne for Error that the Iurors gave Verdict for the Defendant and that the Iustices entred it for the Plaintiff and gave Iudgement for him because such assignment is contrary to that which the Court doth as Iudges Remainder limited upon a contrariety 42. A Remainder limited upon a contrariety cannot be good Pl. Com. 29. b. 3. Colthrist and Bevisham as in the case of Rickill in Littleton S. 720. for when he had once made a Feoffment and vested the estate in one he could not make that estate cease as to him and cause it to remaine to another So if Land be given to a man and his heires so long as I. S. shall have heirs of his body and if I. S. die without heire of his body that then it shall remaine to another in fee this Remainder is void for the contrariety because the first estate was Fee-simple determinable upon which a Remainder cannot depend The like 43. If a Lease for life be made upon Condition Pl. Com. ibid. 32. a. 4. 34. b. 4. that if a stranger pay to the Lessor twenty pounds that then after the death of the Tenant for life it shall remaine to the stranger this is a good Remainder so if a Lease for life be made to Baron and Feme and it is appointed by the said Lease that if A. their eldest Son dye living the Baron and Feme that then it shall remaine to B. their second Son for life this is also a good Remainder for in these cases there is no contrariety because in the first the stranger shall have it expressely after the death of Tenant for life and in the other it is intendable that B. shall have the Remainder after the death of Baron and Feme But if a Lease for life be made upon Condition that if a stranger pay to the Lessor twenty pounds that then immediatly the Land shall remaine to the same stranger this Remainder is void for the contrariety because the Tenant for life ought to have it during his life during which time the stranger cannot have it Proviso repugâ—â—nt 44. C. makes B. and a Feme his Executors 19 H. 8. Dyer 4. Pl. 10. provided that B. shall not administer his Goods this Proviso is void for the repugnancy for when C. had made them once his Executors the severall powers limited to them afterwards are void because when the intent of a man who makes a Testament agrees not with the Law his intent shall be taken as void as if a man devise to H. in fee and if he dye without heire that M. shall have the Land this devise is void for the repugnancy as to M. for one Fee-simple cannot depend upon another Fee-simple by the Law Condition â—â—id 45. The Custome of London is Dyer 33. 12. 28 29 H. 8. that a man may devise his Purchase-Land in Mortmaine and a Purchasor devised by his Will that the Prior and Covent of Saint Bartholm and their Successors should have the Land Ita quod reddant annuatim Decano Capitulo Sancti Pauli 16. Marc. And if they failed of payment that their estate should cease and that then the said Deane and Chapter should have it and for the Condition broken those of Pauls entred and it seemed clear to Baldwin and Fitzh that the Condition was void for no estate could remaine after the Fee-simple given away because the Feoffor had determined his Interest and Right and then a stranger could not enter for the Condition broken but the heire ought to do it â—â—ape 46. In debt against the Sheriffs of London Dyer 66. a. 11. 3 E. 6. for an escape of a Prisoner out of Ludgate they plead that three years before Jerveis and Curteis their Predecessors suffered the same Prisoner to escape to Lambeth in Surrey he being then in their Guard in Ludgate Goale London which is impossible for the former Sheriffs could not let them go at large when he was imprisoned and in their custody at the time of the escape and then the escape ought to have been supposed in London where the Prison was for which repugnancy and other errors the Plea was adjudged void Dyer 68. b. 28. 5 E. 6. 47. An Indictment of Murder was adjudged insufficient Indictment for that the place of the assault was set down and not the place of the Murder nor these words adhuc Ibidem inserted in the Indictment in case the Assault and Murder were acted at one and the same place And this was for the uncertainty because the Assault and the Murder are of differing natures and might be done at severall places Dyer 209. 21. 3 4 Eliz. 48. A Lease is made for years upon Condition Condition repugnant that if the Lessor grant the Reversion the Lessee shall have fee the Lessor levies a Fine the Conusee brings a Quid juris
Disclaimer Error 2. If the Tenant disclaime Co. l. 8 61. b. 4. in Beechers case he shall not have a Writ of Error against his Disclaimer because by his Disclaimer he hath barred himselfe of his right in the Land for the words of the Disclaimer of the Tenant are Nihil habet nec habere clamat in illa terra nec die impetrationis brevis originalis c. habuit sive clamavit sed aliquid in illa terra habere deadâ—ocat disclamat And against this he cannot have a Writ of Error to have restitution of the Land against such Disclaimer Vide 6 E. 3. 7. F. N. B. 22. c. 170. None shall take exception to an Error or Act which operateth to his own advantage Co. l. 3. 69. b. 4. Lincoln Colledge case 1. C. and F. Ioynt-tenants for life Collaterall Warranty and to the heires of the body of C. intermarry and have Issue E. who after the death of C. disseiseth F. and suffers a common Recovery F. releaseth to the recoverors with Warranty and dyes also E. dyes without Issue and R. as heire male of the body of C. brings his Formedon in Descender and here the question was whether or no the collaterall Warranty of F. did bar the Demandant or that the heire in tail might have the Land by force of the Statute of 11 H. 7. 20 which gives Entry to the next Heire upon Discontinuance c. of the Inheritance of the Husband by the Feme But it was resolved that this case was out of the intention of the said Act because the intention of that Act was to restraine such women to make Discontinuance Warranty or Recovery in bar or prejudice of the heire in taile or of them in Remainder c. but when the heir in tail himself conveys assures the Land to others the release or confirmation of the Feme with Warranty is but to make perfect and corroborate the estate which the heire in tail hath made and therefore such Warranty is not restrained by the said Act for it shall be intended for the benefit of the heirs in tail and not to their prejudice And this is also the reason why a common Recovery in respect of the intended recompence was not restrained by the Statute of West 2. Co. l. 8. 59. a 3 in Beechers case 2. For the reversall of a Iudgement a man shall not assigne for Error that which maketh for his advantage Assignment of Error as to alleadge that he was essoined where he ought not to have been essoined or that he had a longer day then the common day or that he had ayd granted to him where it was not grantable or the like Vide 7 E. 3. 25. per Herle 8 H. 5. 2. 11 H. 4. 8. F. N. B. 21. f. Co. l. 11. 56. a. Benhams case 3. M. brings a Writ of Annuity against B. and they being at Issue Insufficient Verdict the Iury found for the Plaintiff and also the arrearages but did not assesse any damages or costs whereupon the Verdict was imperfect neither could it be supplyed by a Writ to inquire the damages Howbeit afterwards the Plaintiff released his damages and costs and thereupon had Iudgement whereupon the Defendant brings a Writ of Error and assignes for Error the insufficiency of the Verdict but the Iudgement was affirmed because the Plaintiffs release of the damages and costs was for the Defendants benefit and advantage and therefore ought not by him to be excepted against Vide 22 Eliz. Dyer 369 370. Where in a Writ of Ejectione Custodiae terrae haeredis the Iurors assessed damages intirely which was insufficient for it lyeth not for the heire yet the Plaintiff released his damages and had Iudgment for the Land Note that insufficient Assessment of damages and no Assessment is all one F. N. B. 22. d. 25. c. 4. It is not Error to suffer one to make an Attorney in an Action Attorney in which he ought not to make an Attorney because that is for his advantage 171 Nemo tenetur armare adversarium suum contrase Challenge 1 He that challengeth a Iuror for the hundred or for Cosinage Co. Inst pars 1. 157. a. 2. 4. must shew in what hundred he hath no land and how he is of kin and shall not drive the other party to shew it 2 The Plaintif in a Replevin pleads in barr of an Avowrie for damage fesant Co. l. 5. 78. b. 3. Grayes case that he hath common of Pasture by custom in the place where c. belonging to his Copyhold which custom was traversed and it was found that he had such Common there but withall that every Copyholder had used to pay time out of mind c. pro eadem communia unam Gallinam quinque ova annuatim and it was adjudged that upon this verdict the Plaintif should have Iudgement albeit he omitted in his barr the yearly payment of the Hen and five eggs And the reason was because the Plaintif was not bound to shew more than what made for him and tended to his advantage 172 It favoureth Diligence And therefore hateth Folly and Negligence Waste 1 Waste may be done in houses by suffering them by negligence to be uncovered whereby the spars fasters planchers Co. Inst pars 1. 51. a. 2. b. 2. or other timber of the house become rotten So likewise if he suffer a wall of the sea to be in decay so as by the flowing and reflowing of the sea the Meadow or Marsh adjacent is surrounded whereby the same becomes unprofitable Also the burning of an house by negligence or mischance is waste Waste 2 A prohibition of waste did lye at the Common law against tenant by the Curtesie tenant in Dower and a Guardian in Chivalry Co. ibid. 53. b. 4. because they were in by the Law but not against tenant for life or years because they come in by the Act of the lessor himself and therefore it is imputed to his own folly and negligence if upon granting the term he made not sufficient provision against committing of waste for in that case the Law did not aid him Vide Co. l. 4. 62. b. 3. in Herlakendens case Co. l. 5. 13. b. 3. in the Countess of Salops case Guardian in soccage 3 If Guardian in soccage marry the heir under 14 years of age without a convenient fortune Co. ibid. 88. a. 3. Littl. §. 123. he is compellable to make it good upon his accompt for it will be imputed to his own folly that he married him without provision of a convenient portion answerable to his estate Goods gaged 4 If goods be delivered to one as a gage or pledge Co. ibid. 89. a. 4. and be afterwards stollen from him yet he shall be discharged of them because he hath a property in them and therefore he ought to keep them no otherwise than as his
defendant pleads Judgement barr to the bond That the plaintif hath recovered upon the same bond and that the judgement thereupon is removed by Error into the Kings Bench and was not yet reversed And this was adjudged a good plea because the judgement takes away the strength of the bond and if after judgement he might sue the same party upon the same bond he might do it infinitely and consequently the defendant might be infinitely amerced for upon every Iudgement the defendant shall be amerced and if he be a Peer of the Realm the amerciament is 100 s. and so the defendant might be infinitely amerced upon one and the same obligation which would be mischievous Et interest Reipublicae ut sit finis litium Co. l. 7. 43. Kenns case 17 A bill of reviver upon a bill of reviver shall not be suffered for the infiniteness Bill of reviver no more than a writ by Iourneys accompts upon a former writ of the same nature for so they might be had infinitely Barrettry 18 A Barrettor is in judgement of Law accounted one of the most dangerous and pernicious vermin in the Commonwealth Co. l. 8. 37. in the case of Barretry because whereas the Law endeavoureth to settle peace and amity and to suppress discord and contention he is seminator litium oppressor vicinorum suorum either by force and open Maintenance of possessions or the like or by fraud and malice under colour of Law as by multiplicity of unjust and feigned sutes Informations or the like to the end he may by that means enforce poor people ad redimendum vexationem to give him money or otherwise to compound with him c. A bitrement 19 Vpon an award albeit the parties do not discover all their differences to the Arbitrators so as they determine some C. l. 8. 98. a. 4. in Baspoles case and leave the rest undetermined yet the award is good because otherwise many Arbitrements might be avoided for the one or the other of the parties may conceal a trespass done to him or some other secret cause of action and so avoid the Arbitrement which were inconvenient for Expedit reipublicae c. Accord 20 Accords are much favoured in Law Co. l. 9. 79. b. 4. in Peytoes case because they prevent and compose sutes and controversies amongst neighbours Et concordiâ parvae res crescunt discordiâ maximae dilabuntur And therefore it was adjudged P. 3 sac rot 1033. that an Accord with satisfaction was a good plea in barr in Eden and Blakes case Fines 21 The general Statute of 32 H. 8. 36. Co. l. 11. 75. a. 1. of Fines shall bind the King though he be not named because it was ordained for the setling and quieting of estates and the prevention of debates and controversies in the Commonwealth in Magdalen College case Assets descended a barr 21 The Statute of Glocester in 6 E. 1. cap. 3. ordains Co. l. 52. b. 4. in Syms case Pl. Co. 110. Fulmerstons case that where tenant by the curtesie aliens his wives inheritance with warranty if assets descend from the heir he shall be barred for the value of the inheritance so descended and if lands after descend that then the tenant shall recover against the heir of the seisin of his mother viz. out of the residu of his mothers lands so much as the assets afterwads descended shall amount unto Here albeit at the making of this Act being in 6 E. 1. there were no intailed lands for all Inheritance was then viz. before Westm ◠being 13 E. 1. feesimple absolute or conditional yet intailed lands are since taken to be within the equity of the said Act of Gloc. but not to retain or recover the lands intailed but only the lands which should so descend because otherwise there would be occasion of new sutes and contention which the Law hates and abhorrs for if the tenant after assets descended might retain or recover the lands intailed then if the assets were aliened the issues inheritable to the estate tail might by writ of Formedon in descender recover the intailed lands again which would beget a new sute and no way answer the Intention of the said Act being indéed a good provision for féesimple lands but not for lands entailed without such a construction by equity as aforesaid And therefore in case of entailed lands so aliened with warranty the tenant shall have a Scire facias out of the Rolls of the Iustices before whom the sute depends to recover the lands descended according to the provision of the said Act of Glocester which in just and proportionable equity agrées with the case of the feesimple lands and the Intention of the same Act. Vide supra 15. 9. infra 186. 8. 179 Circuit of Action Co. Inst part 1. 265. a. 3. 1 Littleton saith § 446. If the father be disseised Rebutter and the son having only a possibility release to the disseisor without warranty such release is void Howbeit if there be a warranty annexed to the release then the son shall be barred for albeit the release cannot barr the right because the son had no right in the land in the life of the father yet the warranty may rebut and barr him and his heirs of a future right which was not in him at that time And the reason which in all cases is to be sought out wherefore a warranty being a covenant real shall barr a future right is for avoiding of circuit of action which is not favoured in Law viz. That he who made the warranty should recover the the land against Terre-tenant and then the Terre-tenant by force of the warranty should have as much land in value against the warrantor which course would occasion Circuit of action and more trouble than needs Mauxels case 7. b. Finch 2 Where the father enfeoffeth his son and heir apparent with warranty and dieth Voucher the son in a praecipe brought against him may immediately vouch his fathers feoffor for the Law will not suffer him to vouch himself according to Max. 54. and so when he comes in as vouchee he may darraign the first warranty to avoid Circuit of Action Finch fol. 14. Fr. Edit F. N. B. 18. f. 3 In false Iudgement against an Abbot the plaintif was non-sute False Judgement and the Abot had a Scire facias against the plaintif to shew cause why he should not have execution returnable quindena Paschae at which day the plaintif appears and assigns his errors and tenders security to sue cum effectu and prays a Scire facias against the Abbot ad audiendum errores and the opinion of the Court was that he might assign his errors against the Abbot without suing out any Scire facias against him Finch pag. 55. 4 In an action of waste upon a lease for years by déed Waste wherein the lessor granteth to the
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
4. It is better that it be turned to a default than that the Law should be changed or any innovation made And therefore new and subtil inventions ought not to alter any principle of the Common Law Vide supra 184. 21. 159. 2. Co. ibid. 377. b. 4. 2 The Invention devised by Iustice Richel an Irishman born in the time of R. 2. the like by Thirning Chief Iustice in the time of H. 4. were both full of imperfections The like for nihil simul inventum est perfectum and saepe viatorem nova non vetus orbita fallit And therefore new inventions in assurances are dangerous Co. l. 1. 87 a. 4. in Corbets case 3 If a man make a feoffment in fée of land to the use of A. and his heirs every Monday and to the use of B. and his heirs every Tuesday Perpetuity and to the use of C. and his heirs every Wednesday these limitations are void because it is a new invention there being no such fractions of estates found in the Law And therefore not to be permitted for the inconvenience that may ensue thereupon Co. l. 1. 138. a. 3. in Chudlâ—yes case 4 By the Statute of 27 H. 8. of Uses The like some uses were executed presently others by matter ex post facto and others again were extirpated and extinguished by that Act Vses in esse did draw the possession presently by force of the Act Vses limited in futuro and agreeable to the Rule of the Common Law are also if they become in due time in esse within the provision of that Statute but uses invented and limited in a new manner and not agréeable to the antient Common Laws of the land are utterly extirpated and extinct by that Act for it appears by the express letter of the Act that it was the intent of the Parliament to extinguish and root them out and to restore the antient Common Law of the Land Vide plus ibidem Co. l. 5. 32. a. Pettisers case 5 Vpon a fieri facias of the goods of the testator Devastavit the Sheriff returns nulla bona c. And thereupon another writ issues to him to inquire by Enquest whether or no the executors have wasted c. he returns they have and thereupon execution is awarded of their own goods but this award of execution was reversed by writ of Error because that practice had béen taken up of late dayes wheras the antient course was and since the judgement in this case is taken up again to sue a fieri facias to the Sheriff to levy c. of the testators goods and if it appear to him that the executors have wasted c. then of their own goods And in such case an action upon the case will lie against the Sheriff if he make a false return whereas in the other case no such action lies because the Sheriff makes his return by Inquest Perpetuity 6 All perpetuities being new inventions are against the reason and policy of the Common Law Co. l. 6. 40. b. 3. in Sir Anthony Mildmayes case Co. l. 9. 128. a. 4. in Sondayes case for at the Common Law all Inheritances were fée-simple to the end that neither Lords should be defeated of their escheats wards c. nor purchasors or farmers should lose their estates or leases or be evict by the heirs of their grantors or lessors nor such infinite occasions of troubles contentions or sutes should arise And therefore it may be truly averred that the policy and Rule of the Common Law in this point was in effect subverted by the Statute de donis made in 13 E. 1. which ordained a general perpetuity by Act of Parliament for all such as had then made it or would afterwards put it in ure by force whereof all the possessions of England in effect were intailed accordingly which was the cause of the said and divers other mischiefs Howbeit divers attempts were made for remedy thereof in divers Parliaments and many bills exhibited accordingly but they were alwayes upon one pretence or other rejected Indéed the truth was that the Lords and Commons knowing that their estates tail were not forfeitable for felony or treason as their estates of Inheritance were before the said Act and principally in the Barons warrs in the time of H. 3. and finding also that they were not chargeable with the debts or incumbrances of their ancestors and that the sales alienations or leases of their ancestors did not bind them for the lands which were so entailed to their ancestors did alwayes reject such bills And this continued all the residue of the Reign of E. 1. and the Reigns of E. 2. E. 3. R. 2. H. 4. H. 5. H. 6. and until about the 12 of E. 4. when the Iudges upon consultation had amongst them did resolve that an estate tail might be docked and barred by a Common recovery and that by reason of the intended recompence the Common recovery was not within the restraint of the said perpetuity made by the said Act of 13 E. 1. whereby it appears that many mischiefs did arise upon the change of a Maxim and Rule of the Common Law which they who altered it could not discern when they made the said change for Rerum progressus ostendunt multa quae in initio praecaveri seu praevideri non possunt Vide 8. Marshalsie 7 In Sir Geo. Reynels case in the 9 Report Co. l. 9. 97. a. 2. one of the reasons why the office of Marshalsie could not be granted for years was because it was an antient office and had been alwayes granted for life or at will to the end the person to whom it was granted might be certainly known And therefore to grant it for years when it was never known to be so granted before being an Innovation might prove dangerous and of ill consequence to the Commonwealth An Intail docked 8 The docking of an Intail by a Common recovery in 12 E. 4. was no new invention Co. l. 10. 37. b. 2. in Mary Portingtons case but consonant to the opinion of the Sages of the Law even from the making of the Statute De donis as appears by divers authorities in our books viz. in 42 E. 3. 53. in 44 E. 3. 21 22. Octavian Lumbards case in 48 E. 3. 11. b. Jefferey Benchers case in 12 H. 4. 13. b. in 1 E. 4. 5. in 5 E. 4. 2. b. which resolutions and opinions in Law together with divers others of the like kind did as it séems produce the judgement in 12 E. 4. And therefore such barring of an estate tail was not then to be estéemed an innovation or new invention but the Iudges and Sages of the Law then perceiving what contentions and mischiefs had crept into the quiet of the Law by such fettered Inheritances upon consideration of the said Act and of the former exposition thereof by the Sages of the
720. Multiplyed 467 Indentures subsequent declare uses of a precedent Recovery 468 Inventions new are dangerous 756 Inclosures 563. Disseisin of a Rent 742 Inheritances shall not depend upon uncertaine words 107 Indicavit where it lyeth e contr 178. 179 Infidells accounted Enemies in Law 10 Interpretation of the Statute of 11 H. 8. Of the Statute of 32 H. 2. cap. 2. Of Charters as the Law was when they were first made 158. Joyntures void 75 Before marriage no bar of dower by the Common Law 414 Made in liew of Dower 464 Joynder in Action 600 430 Joynt tenants charge 164. May grant their moyeties 57. 59 of a right of differing natures 162. May prejudice one another 363 Issue where not inheritable 343 Issues of Jurors levyed upon the Feoffee 42 Journeys Accounts 121 588 Judgements in the Grand Assize 677. where defeated 122 123. Payable before debts 350. Upon dead men 561. Drowne Obligations 681. Finall 6. 77 Jurisdiction of Courts 139. Prohibited 139 Justices of the Benches 219. Must surcease upon the Kings Certificate 38. Where they ought to give Judgment ex officio 703. Where righteous Judgment 507 Juris Vtrum 161 K. KIng his command against the Law not to be obeyed 8. 103. Shall have the Purchases of Aliens 38. Shall not finde Pledges 106. Not deceived in making Leases 219. No Minor 224. his Debts shall first be paid 228. His Grants favourably interpreted 295. 299. His Prerogatives 296 297 298 299. 305. Acts to him done must be fully compleated 301. Where not barred by Acts of Parliament 303. Cannot be Joynt-tenant with another 305. absolute before his Coronation 389. Hath property of Felons goods waived 670 Knights-service 91 738 L. LAw Common Law preferred before the Statute Law 341. Favoureth Right 542. Where it excuseth 609 Appropriats to it self vocabula artis to expresse it self by 632. Penall not taken by Equity 686. hateth Vice 499. Countenanceth things done in peace more then in Warr 437 488. Lachesse shall not prejudice an Enfant 6 Of Entry shall bar the party 666 667 Leases 74 69 393. With condition to take the profits 11. The Commencement of them 7. Where exception in them is void 11 13. Durante viduitate 67. By Tenant in taile good only for his life 67. 162. When to begin 76. Where shall enure by grant or confirmation 102. where voidable 121. To one and his Heires at will void 242. Of a house with Implements Quid operatur 227. Void for incertainty 626. Drowned as to one hath continuance as to another 324. For yeares not capable of a Warranty 362. By Tenant in Taile 442. By Deanes an Chapters 715. Under the Exchequer Seale good 743 Legacies not grantable over 95 Leet 549 Livery and Seisin 728. Of an Estate in futuro void 73. By Attorney 96. Upon condition 99. void 113. To one enures to both 166 Of what it must be made 226. Within the view 393. 418. Where of part not good 5â—5 Not to be made nor taken without a Deed 623 Livery and ouster le Maine 37 203 Libells 744 Limitation of Uses 707 Licences not revocable 381. To alien where good 394. To sell Wines 157 418 Lord and Villaine manumission of the Villaine 50 London dangerous to be populous 735 M. MAintenance Where justifiable 432 Manumission 392 Marriage of Preists 73. Due to the Lord 102 An absolute gift of Chattells to the Husband 199 Mannor by the word Mannor a Reversion passeth 218. What things it draws to it 228 229 Magis Dignum 226 348 349 Market-overt 702. In London 716 Merchants 561 Manslaughter the diversity in it 211 Marshalsey none to sue there but those of the Kings Houshold 276. Office of it not grantable for yeares 757 Menalty 327 Misnosmer 391. 556. Shall not make void a Grant or a Presentment 21 27 Misprision of Clarkes where not amendable e contr 250 385 592 Miscontinuance of Suit 723 Monopolies 728 748 756 140 302. Monks 337 Mortgage 251. Where upon it the money is to be paid to Executors where to the heire 43 Monstrans of deeds 196. 595. 598 457 Modo formae not words of substance 381. 382 Mortmaine 309 Murder 747. An Act may be murder though not intended 48 50. All are Principle sin it 50. Intentions adjudged Murder 901 N. NAturalisation 284 Ne Exeat regnum 742 Necessity in what Cases it excuseth 425 426. Writs in what Courts to be sued in case of necessity 427. A Deed not shewed where it may be good in Evidence in case of necessity 498 Neife 356 Nobility 764. Gotten by marriage lost by marriage 71 Non-claime 316 Non-Residency good excuses of it 610 Nonage 74 Non Compos Mentis 43. 367. Shall not lose his life for Felony 355 Non Obstantâ— 310 Non est factum 158 591 Nonsuit in a Quare Impedit peremptory in Attaint peremptory 394 604 497 Notice where a man shall not forfeit his estate upon a Condition broken without notice 593. 596. Things done in one County taken notice of by them in another County e contr 595 Nusances 96. 154. 289. 602. For publick and private how the Actions shall be 683. Abated 700 O. OAth of Allegeance 741 Obligations joynt and severall 88. Severall upon one Parchment 320 321. Made Beyond-sea 381. Payable before Statutes 621. With Conditions to enfeoff 469. To performe an Accord 468. Released by making the Obligor Executor 468. Where not to be cancelled after Judgement 716 Office found 694. Not to be quashed but by Petition or matter of Record 70 Offices of trust not traversable 89. 153. Of Clarke of the Sheriff 133. Of Exigenter of London 137. Of the Marshall personall 152 153. 377. Of skill 153. Of Filizer 153. Of Auditor of the Court of Wards 264. Of the Kings Tennis playes 273. In the King without suing a Scire facias 301. Of Clarke of the County 334. Judiciall not grantable in Reversion 701. Granted to persons unskilfull or incapable void 729. Where they cannot be leased for yeares 553 Ordinary where he cannot dispose of the goods 160. 340. The Intestates goods committed to him 300 Order in Writs 271. In pleadings 275 Oyer and Terminer cannot sit where the Kings Bench is in Terme time 223. For Nusances 702 Outlawry where it gives a Forfeiture of Land e contr 50 51. Upon an Indictment reversed by Error 71. Outlaw babet Caput Lupinum 341. Where beyond the sea reversible 553 must be pleaded Sub pede sigilli 674 P. PAnell void 76 Pardon 164. 252. before Judgement discharges an annuity 31. Cannot pardon damages or costs before Judgement for Alienations 765 Payment no plea without acquittance 72 place of payment of a Rent 166 Parcenors Where they shall have the Rent joyntly where in common 37 42 43. Shall have aide to deraign the warranty 38. shall joyne in Assise 43. So of Deodands 46. Where the Judgement shall be to hold in severalty 65. The propriety of one not gone by alienation in respect of privity 175. Cannot make
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
thereof So likewise if the Son and heir apparent of a Baron retein a Chaplain and give unto him his Letters under his hand and seal and after his father dies and this Chaplain purchaseth a dispensation this retainer and those Letters will do him no good because they were not available at the first to make him capable Et quod ab initio non valet tractu temporis non convalescet Co. l. 4. 107. b. 3. Adams and Lamberts case H. 6. 7. E. 6. Dyer 81. 26 Pope Urbane at the request of Ralph Baron of Greystock A void foundation of a Colledge founded a Colledge of a Master and six Priests to be resident at Greystock and assignes to each of the Priests five marks per annum besides their bed and chamber and to the Master 40 l. per annum And upon the Statute of 1 E. 6. 14. it was certified in the Book of First-fruits and and Tenths Rectoriam Collegium de Greystock But it was resolved by all the Iustices that this reputative Colledge was not given to the King by the said Act because it had no lawfull beginning nor so much as the countenance of a lawfull beginning for the Pope cannot found or incorporate a Colledge within this Realme nor assigne or give Licence to assigne any temporal livings unto it but it ought to be done by the King himselfe and by no other Co. l. 5. 42. Codwels case 27 In appeal of Mayhem betwixt John Codwel Plaintife A void Panel and Thomas Parker Defendant the parties descend to issue and the Iury finds for the Plaintife and now it was moved in arrest of Iudgement that there was variance betwixt the Panel of the Venire facias and the Distringas and Postea in the name of one of the Iury that appeared and gave the verdict for in the Panel of the Venire facias he was named Palus Cheale And in the Distringas and in the Postea it was Paulus Cheale And because the name of a Iuror in the Venire facias was mistaken the Iudgement was arrested But if he had béen well named in the Panel upon the Venire and misnamed in the Distringas or Postea upon examination it might have béen amended because the Venire facias and Panel are the beginning and ground of the other subsequent Processe A void Presentation 28 D. was seised of a Mannor Co. l. 6. 50. a. 4. Boswels case 16 E. 3. Tit. Quare impedit 67. Adams case unto which an Advowson was appendant and dies the Mannor descends to E. an Infant the Church becomes void A. presents during the nonage of E. who at full age enfeoffes F. of the Mannor and after the Church becomes void againe and F. presents whereupon the Assignée of A. brings a Quare impedit And it was adjudged that by the feofment of E. when he had attained his full age the Mannor passed to the Feoffée but not the Advowson because by the usurpation the Infant was out of possession of the Advowson and he had but a right in it the usurpation being onely voidable by action which could not be transferred to a stranger And therefore the Advowson being not at all granted to F. he shall not gaine it afterwards by an usurpation A void grant of the Office of the Auditors of the Court of Wards 29 Quéen Eliz. in the 31 yeare of her Raigne grants unto Walter Tooke and William Curle Officium unius Auditorum Curiae suae Wardorum Co. l. 11. 4. a. 4. Auditor Curles Case c. habend dictis Waltero Willielmo alteri eorum conjunctim divisim pro termino vitarum suarum eorum alterius diutiùs viventis c. And afterwards King James in the 4 yeare of his Reign during the lives of the said Walter Tooke and William Curle grants the Reversion of the said Office to John Church-hill and John Tooke And in this case King James his grant was adjudged void because that Office being partly judicial and partly ministerial could not in respect of the Iudicial part be granted in Reversion for which the Rule is officia judicialia non concedantur antequam vacent And therefore being void at first it shall not be made good afterward for albeit William Curle one of the first Grantees and John Church-hill one of the last Grantees happen to die yet shall not John Tooke enjoy the Office by vertue of King James his grant because quod ab initio non valet c. A void grant of a Surveyorship â—0 John Bishop of Sarum grants the office of Surveyour of the Mannor of Sherborne unto Edward Green and John Green for their lives together with the fee of 6. l. 13. s. 4. d. per annum Co. l. 10. 61. b. 4. The Bishop of Sarums case whereas the office formerly used to be granted onely to one Edward Green dies as also the Bishop the fee is behind and John Green distreins for it but could not maintain the Avowry because the grant was void by the Statute of 1 Eliz. not printed which restraineth Ecclesiastical persons from making unusual grants c. and in this case albeit Edward Green being dead and John Green alone had the office when he distrained yet the grant being void at first shall not be made good by any subsequent Act that happens after to bind the Successor to perform it Quia quae malo sunt inchoata principio vix est ut bono peragente exitu quod initio non valet c. A void grant to a Colledge 31 A Grant by the Master and Fellowes of a Colledge to Queen Eliz. contrary to the Statute of 13 El. 10. being thereby made void Co. l. 11. 7â— a. 4. Magdalen Colledge case could not afterwards be made good by the Statute of 18 El. 2. for Confirmations of Grants made unto her because that can by no meanes be made good which was meerly void at the beginning Neither shall the general words of 18 El. enable any person to make any conveyance which by the Common Law was disabled as if an Infant had conveyed land to the Queen by Deed inrolled or had levied a Fine to her before the Statute of 18 El. and then that Act had been made yet the estates granted had not been confirmed by that Act because the Infant during his minority was absolutely disabled to make such a Grant and therefore notwithstanding that Statute he might have reversed the Fine by a Writ of Error as it was adjudged M. 32 and 33 Eliz. in B. R. by Wray and all the Court in Vaughans case So likewise if a man seised of land in fee had granted the land after his death Co. l. 11. 78. a. 3 The same case to the Queen her heires and successors the said Statute of Confirmation had not made such a grant good because it was against the Rules of Law 38 H. 6. 33. The Abbesse of Sions
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
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.
temps Eliz. Co. l. 4. 89. b. 4. Druries case 3 If a Countesse retain two Chaplains The first Diâ—pensations Wast void those two are onely capable of dispensation according to the Statute of 21 H. 8. cap. 13. And therefore if the Countesse retains a third that cannot devest the capacity of dispensation which was vested in the two first For albeit the Countesse may entertain as many Chaplains as she will at the Common Law yet can she not have more then two capable of Dispensations by force of the Statute and reason requires that he which hath longest served shall be first preferred For qui prior est tempore potior est jure F.N.B. 142. f. 4 If a man purchase divers lands by one feoffment Priority of wardship which are holden severally of divers Lords by Knight-service and after he dies his heire within age that Lord which shall first hap the Ward shall have him because there is no priority But if he purchase land which is holden by Knight-service of one Lord and after purchase other land holden of another Lord by the like service and after die his heire within age In this case that Lord shall have the Ward of the heire of whom the land which be first purchased is holden for that he held of him by a more ancient feoffment viz. by priority then he held of the other Lord of whom he held by posteriory c. Co. l. 4. 66. b. 3. Fulwoods case 5 If a man be bound in two Statutes A former â—â—â—tute first foâ—â— and the last Statute is first extended and put in execution Yet the first Conusée upon extent shall be first served and the last Conusée shall stay till the first be satisfied Dyer 32. 2. 28 29 H. 8. 6 In debt against Executors who plead fully administred Debt agaâ—â—â—â— Executors and it was given in evidence by the Defendants that they had paid divers debts upon contracts made by their Testator and shewed not that they were paid before the Plaintiffs writ purchased whereupon the Plaintiff demurres and that was the chiefe reason why Iudgement was given for the Plaintiff Dyer 133. a. 1. 3 4 P.M. 7 A man being Patron of a Benefice in right of his wife grants proximam advocationem to another Grant of the next avoydance after which grant the Incumbent makes a lease of the Benefice for 60 yeares reserving rent to him and his Successors under the value in the Kings books afterwards the Patron Grantor and his wife together with the Ordinary confirme the Lease and then the Incumbent is deprived for marriage and the Grantée presents his Clerk who enters upon the Lessée to avoid the lease In this case it séems his entry is congeable because the Grant preceded the lease Dyer 232. 5. 7 Eliz. 8 If debt be brought against the Ordinary for the debt of the intestate after notice he cannot dispose of any of the goods to others Ordinary before he hath satisfied that debt for which the action was brought against him Dyer 276. 52. 10 Eliz. 9 A Scire facias was brought by Basset against the Corporation of Torrington in Com. Devon to repeal their Patent of Faires and Markets But it was held Scire faciaâ— that a Puisne Patentée shall not have a Scire facias to repeal a more ancient Patent but è contrà 10 Vide Hob. 7. Spendlowes and Burket concerning the grant of an avoydance and a lease of a Prebendary in Lincoln 50 According to the diversity of the same person Co. Inst pars 1. 8. a. 1. in Calvins case Co. ib. 129. a. 3. 1 A man seised of lands in fée hath issue an Alien Alien not 〈◊〉 heritable viz. born out of the Kings ligeance that issue cannot be his heire propter defectum subjectionis albeit he be born within lawful marriage neither yet shall he inherit to his Father or any other although he be made Denizen by the Kings letters Patents Neverthelesse if the same man be naturalized by act of Parliament he shall not then be accounted in Law alienigena but indigena and shall be capable of inheriting c. â—uption of â—d for a 〈◊〉 2 The same man may have some children capable of inheriting his land after him and others incapable Co. ib. 8. a. 2. according to the several conditions in which he stood at the several times when he had those children Co. ib. 129. a. 3 As if an Alien be made Denizen the issue which he hath after the denization shall be his heire and not the issue which he had before So also if a man hath issue a sonne before his attainder and obtaineth his pardon and after the pardon hath issue another sonne here at the time of the attainder the bloud of the eldest was corrupted and therefore he cannot be heire but if he die living his father the younger sonne shall be heire for he was not in esse at the time of the Attainder and the pardon restored the bloud as to all issues begotten afterwards c. â—lain free 〈◊〉 a time 3 If Villenage be pleaded by the Lord in an action reall mixt Co. ib. 127. b. 4 or personal and it is found that he is no Villein the bringing of a Writ of Errour is no enfranchisement because thereby he is to defeat the former judgement and if in the mean time the Villain bring an action against the Lord the Lord néed make no protestation so long as the record remains in force for at that time he is frée c. â—â—â—is utrum â—â—rranty 4 If a Juris Utrum be brought by a Parson of a Church Co. ib. 370. a. 4 the collateral waranty of his Ancestor is no barre for that he demanded the land in the right of his Church in his politique capacity and the warranty descendeth on him in his natural capacity c. â—â—rranty â—fession 5 If a collateral Ancestor release with warranty Co. ib. 392. b. 3 and enter into religion now doth the warranty binde but if afterwards he be deraigned then is the warranty defeated â—nt extinâ—shed 6 One that hath a rent charge going out of the wives land 14 H. 8. 6. Finch 18. releaseth it to the husband and his heires Yet in this case the husband shall not have the rent but the release shall enure unto him by way of extinguishment onely as seised in right of his wife â—â—ant and â—firmation 7 The Parson of Weston in Com. Glocest An. 9 El. demised his Rectory to W. Hodges then Patron of the same Rectory for 50 years Co. l. 5. 15. a. 3 Mewcomes case Trin. 30 Eliz. in the Exchequer who Anno 14 Eliz. by his déed assigned it over to Sir John Throgmorton the Bishop confirms the lease Anno 17 Eliz. in the life of the Lessor And in this case it was resolved that the assignment of
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.
number neverthelesse any one right is within that Statute c. Pl. Co. 83. 86. Partridges case Vide 40. â—anslaughter 13 By a pardon of murther Man-slaugther is also pardoned Finch 21. Finch ibid. â—taint 14 An attaint supposing a Verdict to have passed before two Iustices whereas it passed before four is good enough â—covery 15 A recovery pleaded of thrée acres where it was of six Finch ibid. is good enough â—ndition 16 A condition that I shall not enfeoff I. S. is broken Finch ibid. if I enfeoff I. S. and I. D. â—pihold 17 A Copy-holder of a Mannor Finch ibid. where the custome giveth liberty to demise in fée may demise for any lesse estate without other prescription Vide 3. â—â—ise 18 Where the custome is 18 E. 3. 8. that a man shall not devise his lands for any higher estate than for terme of life Yet if a devise be made in fée and the Devisée claim but for life the devise is good Finch 21. â—iso 19 By the Statute of 32 H. 8. cap. 1. 2 3 P. M. Dyer 150. b. that giveth power to devise two parts of ones land a devise of the whole had béen good for two parts although the Stat. of Explanations 34 35 H. 8. cap. 5. had not béen made Finch 21. â—mes â—ure 20 An estate of Fée-simple conveyed to the Feme for her joynture Co. l. 4. 3. b. Vernons case and in satisfaction of her Dower is a joynture within the equity of 27 H. 8. For if an estate for life be a competent livelihood for her much more an estate in Fée-simple c. Sir Morrice Denurs case Dyer 8 El. 248. â—hold wiâ— estate 21 Where the custome of a Copihold Mannor is to grant Copihold lands for one two or thrée lives Co. l. 4. 29. b. 4. there a grant to a Feme Durante viduitate is good for that is a lesse estate and therefore included in the other c. Downes case â—nt inâ— conâ— 22 This word Attaint of murther in the Statute of 3 H. 7. cap. 1. Co. l. 4. 46. a. 4. in Kath. Wroteâ— case shall not be meant onely of a person that hath judgement of life but also extended to a person convicted by confession or verdict for a person attaint is a person convict and more 36. Co. l. 4 106. a. 4. in Adams Lamberts case 23 Albeit by the expresse words of 1 E. 6. cap. 14. Superstitious uses Estates in Fée-simple given to superstitious uses séem onely to be given to the King for the words are To the finding of a Priest to have continuance for ever c. yet that Stat. by construction extends also to every lesse estate as to an estate in taile for life c. Co. l. 5. pars 1. 6. b. 4. The Kings Ecclesiastical law 24 If by the proviso of 1 Eliz. cap. 2. The high Commission may censure depravers of the Common Prayer the Ecclesiastical jurisdiction of Arch-Bishops Bishops and other inferiour Officers is saved so that they may still punish by deprivation and other Ecclesiastical censures all such as shall deprave the book of Common Prayer notwithstanding by the same Act there is other provision made for the punishment of such offenders before temporal Magistrates Much more shall high Commissioners authorised by another Statute of the same year cap. 1. have power to inflict due punishment for the like offence albeit in the said Act of 1 Eliz. cap. 2. there be no such provision made for them as for Bishops c. Because Cui licet quod majus est non debet quod minus est non licere Co. l. 5. 6. b. 1. The Lord Mountjoys case 25 The words of the Statute of 1 Eliz. concerning leases to be made by Bishops c. are these other then for the terme of 21 yeares Leases by tâ—â— Clergy or three lives without saying or under and yet a lease for a lesse term is good There is also the same exposition of the Stat. of the 13 Eliz. cap. 10. whereof the words as to that point are the same 1. Co. l. 5. 29. b. 4. in Princes case 26 In Princes case in the 5 Rep. it was said Administration of boâ—â— Notabilis that it was adjudged in a case between Vere and Jeffres in tempore Reg. Eliz. That where one had goods onely in an inferiour Diocesse yet the Metropolitan of the same Province pretending that he had bona Notabilia in divers Diocesses committed the administration c. This administration was not void but onely voidable by sentence because the Metropolitan hath jurisdiction over all the Diocesses within his Province But if an Ordinary of a Diocesse commit the administration of the goods when the party hath bona Notabilia in divers Diocesses such administration is méerly void as well to the goods within his own Diocesse as elsewhere because he can by no means have jurisdiction of the cause Co. l. 5. 91. a. 1. in Hoes case 27 A man assignes a debt unto Quéen Eliz. by déed enrolled in satisfaction of a debt due to her from him as Collector of the Fifteens Three include 〈◊〉 with proviso that if the Lord Treasurer and the Barons of the Exchequer or any two of them for some reasonable cause should disallow revoke the same that then it should be void In this case revocation by three of the Barons shall be sufficient for if three doth it two doth it at least c. Co. l 5. 115. a. 1. in Wades case 28 If a man tender more money then he ought to pay Tender 〈◊〉 greater fâ—â—â— that is good enough for Omne majus continet in se minus and the other ought to receive so much thereof as is due unto him Quando plus fit quam fieri dâ—bet videtur etiam illud fieri quod faciendum est Et in majore summa continetur minor 29 In the general pardon of the 28 of Eliz. Burglary was excepted Attainder 〈◊〉 Burglary â—doned and thereupon the Iudges were then moved Co. l. 6. 13. a. 4. in the cases of pardon H. 29 Eliz. whether the attainder of Burglary was thereby also excepted And it was resolved that it was For if Burglary it selfe was excepted while it was yet doubtful whether it would be found Burglary or no and before it did appeare to the eye of the Law to be so à fortiori when Burglary appears upon record by judgement of Law it shall be excepted Co. l. 6. 56. a. 1. in the Lord Chandos case 30 By the grant of the Mannor without this word of the reversion By the 〈◊〉 Mannor 〈◊〉 version pâ—seth the reversion shall passe albeit at that time the Grantor had not the Mannor in possession but in revension for this word Mannor includes all estates and degrees of estates of or
hath his Clergy the accessory cannot be arraigned For the Maxime of Law is Ubi factum nullum ibi forcia nulla ubi non est principalis non potest esse accessarius Then before there appears to be a principal one cannot be charged as accessory but none can be said to be principal before he be so proved and adjudged by Law and that ought to be by judgement upon verdict or confession or by outlawry for it sufficeth not that in truth there is a principal unlesse it appeare so by judgement of Law And this is the reason that when the principal is pardoned or takes his Clergy before judgement that then the accessory shall never be arraigned because it appeares not by judgement of Law that he was principal and the acceptance of the pardon or prayer of the Clergy may be an argument but can be no judgement in Law that he is guilty Howbeit if the principal after attainder be pardoned or hath his Clergy allowed there the accessory shall be arraigned because it then appears judicially that there was then a Principal 28 29. 34 35. Land tree severed 20 When a man makes a lease for life or years Co. l. 4. 64. b. 2. in Herlakendens case the Lessée hath but a special interest or property in the trées being great timber as accessories annexed to the land so long as they are annexed unto it But if the Lessée or any other sever them from the land the property and interest of the Lessée is thereby determined and the Lessor may take them as accessory things which were parcel of his Inheritance and in which the interest of the Lessée is determined c. The like 21 If I let my land for life and after grant the trées Co. ib. 62. b. 4. and after that the Lessée dies yet the Grantée cannot take them as it was holden per toram Curiam in 21 H. 6. 46. d. because at the time of the Grant the Lessée had a property in them as accessories annexed to the land c. Vide Max. 25. The like 22 If trées being great timber be blown down by the winde Co. ib. 63. b. 1. the Lessor shall have them for they were parcel of his Inheritance and not the Tenant for life or years But if they be dotards without any great timber in them the Tenant for life or years shall have them c. Superstitious uses draw good uses 23 When certain summes are limited to superstitious uses Co. l. 4. 115. a. 2. in Adams Lamberts case and one use is separated and divided from the other there the finding of one of them onely shall not give all the land to the King by the Stat. of 1 E. 6. cap. 14. but onely the sum appointed to the superstitious use which was employed within five years before the making of that Statute but if one of the uses depend upon the other there the finding of the principal or any part thereof shall give all the land to the King As if land be given to the intent that an Obit shall be found in such a Chappel and that upon the Obit 10 s. shall be distributed and employed to the Priest and 6 s. 8 d. to divers poor persons that shall be present at it and the residue of the profits to the reparations of the Chappel In this case if the Obit be maintained in any part within the five years although the 6 s. 8 d. be not employed to the poor men nor any thing at all upon the reparations of the Chappel within the five years Yet all the land shall be given to the King by the said Statute because all the uses depend upon the first 24 In suits in the Star Chamber before the repeal of that Court albeit the suit was for the King Co. lib. 5. 51. Halls case Upon censure or sentēce the King cannot pardon the damages or costs before censure or sentence contr◠and the offence such as the King might pardon yet when the censure was once given and damages given to the Plaintiff then the Plaintiff had particular interest in them by the censure which the King would not pardon But if the pardon had béene obtained before the censure there the pardon had discharged all for then the Court could not have procéeded to any censure of the Principal and by consequent neither of damages which are but accessories There is the same law of a pardon before sentence in suits depending betwixt party and party in the Court Christian for defamation casting violent hands upon a Clerk or the like for these being suits pro salute animae vel reformatione morum are in truth suits onely for the King although prosecuted by the party And therefore if in such a suit the Plaintiff hath expended any costs and the King before sentence pardons the Defendant in that case the costs are lost causa qua suprà It is otherwise if he be not pardoned till after sentence for then costs being thereby given to the Plaintiff he hath a particular interest in them which the Kings pardon cannot frustrate c. Co. l. 5. 96. b. 3. in Goodales case being adjudged in Randals case 23 24 Eliz. in the Court of Wards 25 A. seised in fée of certain lands A condition accessory to the estate by déed indented and enrolled according to the Statute covenants with B. That if B. pay unto A. his Heirs or Assignes 10 l. upon such a day at such a place that then A. and his heirs will stand seised of the said lands to the use of B. and his heirs A. having issue a son makes his Will in writing and makes C. his Executor and withal deviseth that C. shall have the land during the minority of his son and then dies his son within age In this case the question was to whom after the death of A. the Tenant ought to be paid and it was resolved that it ought to follow the estate of the land as an accessory unto it and shall not be paid unto C. either as Termor or Executor because C. could not be such an Assignée as is meant by the words of the Covenant having by the devise onely a particular interest in the land Neither yet if A. had granted the land for life or years could any such Lessee have béen Assignée in that case because notwithstanding such grant the reversion still remained in A. and the possibility of having the land again as in his former estate in case the condition were not performed and therefore the payment thereof ought to be made to his son and heir or unto the Assignée of the Covenantors whole estate as if the Covenantor had made an absolute feoffment in fée or else a gift in taile or lease for life with the remainder over in fée then the Feoffée Donée in tail or Lessée for life might be Assignées to whom the Condition ought to
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
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
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
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
intailed within the said Statute for that they be not issuing out of Tenements nor annexed to nor exercisable within or concerning Lands or Tenements of Fréehold or Inheritance but concerning Chattels and savour nothing of the realty So it is likewise if I by my Déed for me and my Heires grant an Annuity to a man and the Heires of his body because this onely chargeth my Person and concerneth no Land nor laboureth of the Realty Baron Feme Chattels real and personal 5 If a Feme sole be possessed of an Estate for years Co. Inst p. 1. 351. 185. b. 3. 299. b. 4. and 46. b. 2. or by Statute Merchant Statute Staple or Elegit or of a wardship or other chattels real and taketh Baron the Baron is thereof possessed in her right onely And albeit during the Coverture he may dispose of such an Estate by Grant Demise c. or upon Out-lawry Attainder c. may forfeit it or may subject it to be sold by the Sheriff upon an execution for his Debt and in Case he survive the Feme shall then have a clear interest in it yet he cannot dispose of such an Estate by Will and if she survive him no disposition or forfeiture being thereof made as aforesaid she shall have it and not his executors or administrators because these Estates and Interests savour of the realty and therefore the Feme being thereof once possest her interest cannot be by the Inter-marriage so easily removed as if they were Chattels personal There is the same Law also of Chattels real which being of a mixt nature viz. partly in possession and partly in action happen during the Coverture As if the husband be seised of a rent-service charge or seck in the right of his wife the rent becomes due during the Coverture the wife dieth the husband shall have the arrerages but if the wife survive the husband she shall have them and not the executors of the husband So it is also of an Advowson if the Church become void during the Coverture he may have a Quare Impedit in his own name as some hold but his wife shall have it if she survive him and the husband if he survive her Et sic de similibus But as concerning Chattels personal the inter-marriage is an absolute gift of such goods which she hath in possession and in her own right whether the husband survive the wife or no so that he may at his pleasure dispose of them either by act execute in his life or by will and albeit he make no such disposition of them and die living the wife yet his Executors or Administrators shall have them and not the wife c. Howbeit if they be in action as Debts by Obligation c. the husband shall not have them unlesse recovered during the Coverture neither yet shall he have such goods as the wife hath in auter droit as Executrix or Administratrix c Vide R. 55. ex 129. â—enants in â—â—mmon â—hattels 6 If one Tenant in Common of Chattels take any Chattels real Co. ib. 200. a. z which are not of an intire nature from his companion the other may have his remedy to recover them by Action but if one of them take all the personal goods from the other he hath no remedy by Action or otherwise save onely to take them again by Catch-pole Law And so it is also of intire Chattels real as a Ship Horse Hawk or the like but that is in respect of the Intirenesse and inseverablenesse of their nature c. for which sée R. 70. ex 25. â—reehold or â—â—heritance 〈◊〉 reassumed â—e collateral â—â—sfaction 7 It is said in our Books that Accord with satisfaction is a good plea in personal actions where damages onely are to be recovered Co. l. 4. 1. a. 4 in Vernons case but not in real Actions For a right or title to any Estate of Inheritance or Fréehold cannot be barred by acceptance of any collateral satisfaction or recompence As if A. disseise B. tenant for life or in Fée of the Mannor of Dale after A. gives the Mannor of Sale to B. and his Heires in full satisfaction of all his rights and actions which he hath in or for the Mannor of Dale and B. accepts thereof Neverthelesse B. may enter into the Mannor of Dale or recover it in any real action it is otherwise of things in the personalty Dier 2. 8. 6 H. 8. 8 In real Actions to plead Alien Actions that the Plaintiff is an Alien is a good bar because an Alien can have no land within the Realm but such a Plea in personal Actions is no bar because an Alien may bring personal Actions unlesse he be an Alien Enemy Co. l. 6. 7. a. in Ferrers Case 9 Betwixt real and personal Actions there is a diversity Bar in personal actions binde not so in real for in personal Actions as in Debt Account c. the bar is perpetual because in such Cases a man shall not have an Action of a higher nature But in a real Action if the Demandant be barred by judgment upon Verdict Demurrer Confession c. yet he may have an Action of a higher nature and shall try the same right again because it concerns his Frank-tenement and Inheritance So if a man be barred in Assise of Novel disseisin yet upon shewing a descent or other special matter he may have an Assise of Mortdancestor Aiel Besaiel c. Vide infrà 1. 78 14. Litt. §. 146. Co. Inst p. 1. 103. a. 2. 10 An Abbot Prior Bishop Successor of an Abbot c. bouâ—d or other sole Corporation cannot dis-claim or devest any thing of Fée which is vested in their houses or other spiritual Corporations to the prejudice of the Successor Howbeit if an Abbot or Bishop c. acknowledge the Action in a writ of Annuity or in an action of Debt upon an Obligation Statute or Recognisance this shall binde the Successor so as he shall not prevent execution thereupon albeit they were granted and made without the consent of the Covent Chapter c. because these things being in the personalty the recovery thereof cannot be falsified in an higher action Et res judicata pro veritate accipitur Vide suprà M. 1. cap. 4. Co. ib. 125. b. 3 11 In a Plea real against divers tenants Pleas real and personal if one tenant plead in barre to parcel or which extendeth onely to him that pleadeth it and the other pleads a Plea which goeth to the whole viz. to both the tenants and which indéed would make an end of the business if it were tried yet those several Pleas shall have several trials as if a praecipe be brought by one as heir to his father against two and one of them pleads a Plea which extendeth but to himself and the other pleads a Plea which extends to both as Bastardie in the Demandant and it
subvert the substance And with this agrées the reason in the Lo. Loveâ—â— Case in Pl. Co. and in Isabel Good-cheapes Case in 49 E. 3. 16. Co. l. 8. 161. a. 4. in Blackamores Case 29 Pleas in barre replications Pleas c. â— amended c. and regularly matter of substance in them and especially matters of fact shall not be amended in an other term as omission of averment hoc paratus est verificare c. for in some Cases as in avowry that is not necessary but colour which is of course and wherein the mistake of the Clerk is found may be amended c. Co. l. 9. 67. a. 4. in Mackalley's Case for killing the Serjeant of London 30 In Mackalley's Case the Indictment was An indictâ— good although noâ— pursued in â—â—â—cumstance that the Sheriffe directed his Warrant to the Serjeant to arrest the Defendant whereas it appeares by the Verdict that no Warrant at all was made but that by the Custome of London after plaint entred the Serjant might arrest him without warrant or precept and yet the indictment was adjudged good for it sufficeth if the substance of the matter be found without any such precise regard to the circumstance And therefore if a man be indicted that he with a Dagger gave to another a mortal wound whereof he died and upon the evidence it is proved that he gave the wound with a Dagger Rapier Staffe or Bill in this case the Offender ought to be found guilty For the substance of the matter is that the party indicted gave him a mortal wound whereof he died and the circumstance of the manner of the weapon is not material in case of an indictment yet such circumstance ought not to be omitted but some weapon ought to be mentioned in the indictment So if A. B. and C be indicted for killing of I. S. and that A. struck him and that the other were present procuring abetting c. and upon the evidence it appeared that B. struck him and that A. and B. were present c. In this case the indictment is not pursued in the circumstance and yet this is sufficient to maintain the indictment for the evidence agrées with the effect of the indictment and so the variance of the circumstances of the indictment is not material because it shall be adjudged in Law the stroke of each of them and it is as strongly the act of the other two as if all thrée had struck with the Staffe c. together and all had killed him that was slain And with this agrées Pl. Com. 98. a. So if one be indicted for murdering another upon malice prepense and he is found guilty of Man-slaughter he shall have judgment upon that verdict for the killing is the substance and the malice prepense is the manner of it and when the matter is found judgment shall be given thereupon although the manner be not precisely pursued and with this also agrées Pl. Com. 101. where it is farther said that when the substance of the fact and the manner of the fact are put in issue together if the Jurors find the substance and not the manner judgment shall be given upon the substance And this is the reason that in case of killing a Minister of Iustice in the execution of his Office the indictment may be general viz. that the prisoner felonicè voluntariè ex malicia sua praecogitata c. percussit c. without alleadging any special matter for in that case the evidence will well maintain the indictment because the Law implies malice prepense c. Co. l. 9. 119. a. 2 in the Lord Southams Case So likewise if one be indicted as accessory to two and he is found accessory to one yet the verdict is good c. â—respasse for â—ppression of Common 31 In trespasse upon the case for oppression of Common Co. l. 9. 112. a. 3 in Robert Maryes Case the plaintiffe saith that the Defendant put his Cattle upon the Common and that they depastured there from the 1 of May till Michaelmas the Defendant pleads not guilty and it was found by special verdict that the Cattle depastured there c. but that the Defendant put them not upon the Common And in this case albeit it was argued by the Defendants Council that the Iury had not found the wrong whereof the plaintiff complained because he complained of a Misfeasance and they had found a Non-feasance for the plaintiffe counted that the Defendant posuit averia sua c. and the Iurors found quod non posuit c. but that the Cattle did depasture c. which might be by escapâ— which is a Non-feasance c. Howbeit notwithstanding that allegation the action was adjudged maintainable enough For Iudges in finding of verdicts rather respect substance than circumstance c. 〈◊〉 unformal â—â—nclusion â—all not preâ—â—e 32 In an Attachment upon a Prohibition the plaintiff alleadgeth unity of possession of the Rectory and land in a Prior and his Predecessors before and at the dissolution c. and then concludes Co. l. 11. 10. a 4 in Priddle and Nappers Case ratione cujus idem nuper Prior omnes alii priores c. per totum tempus praedictum c. habuerunt tenuerunt c. praedict terrae exonerat c. was not de omnimodis deciminis c. whereas in truth by the unity of possession the land was not discharged of tythes but of the payment of tythes c. and therefore the conclusion in that pâ—int was not formal Neverthelesse in this case in as much as the prescription it selfe was well alleadged in substance so that the foundation thereof was good the mistake of the conclusion and consequent thereupon which is but a circumstance shall be no cause of granting a Consultation c. Co. l. 11. 78. a. 4 in Magdalen Colledge's Case 33 When the Grantor is a person able to grant 18 Eliz. 2. supplies circumstance and hath power over the land and the Déed is good and legal but wants circumstance as inrollment or the like such a Déed is made good and such omission is supplied by the Statute of 18 El. cap. 2. for confirmation of Patents or Grants made by or to the Quéen because that act makes the conveyance good according to the true intent and purport thereof which is the substance and therefore in such case want of circumstance shall not prejudice c. Pl. Co. 65. b. 2. in Dive and Maninghams Case 34 When a Record is to be pleaded in barre Conveyance to an action need not be certainly pleaded it ought to be intirely and certainly recited because in that case the Record alone is the matter of substance and the effect of the barre which ought to be full and perfect but when the recital of a Record is nothing but conveyance to another matter and not the effect of the barre but onely an
induction to the barre or conveyance thereunto it is not necessary that such conveyance or induction should be so certainly pleaded as the effect it self ought to be So in Dive and Maninghams Case in the Commentaries it is sufficient to begin at the Liberate and not to recite the whole Record of that suit because that is sufficient to lead to the matter of the Sheriffes bond which the Statute makes void and is upon the matter but méerly circumstance So likewise if tenant by Elegit make an avowry in a Replegiare having let the land to a stranger rendring Rent c. he shall not plead the whole Record 34 H. 6. 48. avowry 26. â— Monst de faits 10. 19 H. 6. 29. Deâ—ceit 11. B. Bell 9. whereby he became tenant by Elegit as it was adjudged in 34 H. 6. 48. because that is but a circumstantial conveyance to the matter of the suit c. Also in 19 H. 6. 29. A bill of Desceit was sued against two attorneys of the Co. Pleas for imbezelling c. a Writ of Habeas corpora in placito terrae upon a Formedon betwixt the Plaintiff and another and judgment was demanded of the bill because the whole Record was not received in certain but the bill was awarded good notwithstanding it did not recite it certainly because the Record was but circumstance and a conveyance to the suit of Desceit c. Pl. Co. 81. b. 2 Patridges Case 35 In Debt upon the Statute of 32 H. 8. cap. 9. for granting a lease for yeares in Lands whereof the Lessor had a defective title Stat. 32 H. 8. against defective titles the Plaintiff counts that the Defendant had demised the lands for term of yeares indefinitely without naming in certaine for how many years and exception was taken thereunto because the number of yeares was not expressed in certaine c. But in that case it was not conceived necessary to specifie the expresse number of yeares because the term was but conveyance to the summe in demand and then that which is nothing else but conveyance ought not to be so certainly shewed as that which is substance And therefore in a Decies tantum all the Record shall not be shewed in certaine but onely such part thereof which conveys the party to his action but if a Writ judicial issue out of a Record in that case the Record ought to be certainly recited because the Record is the effect and substance and not conveyance onely as in the other case c. For there the shewing of the beginning and end of the terme is to no other purpose Pl. ib. 85. b. 2. then for the shewing of the length and shortnesse of the time and that is not there material because in such case if the Lease were made onely for an hour or for an hundred yeares it is all one as if Lessée for life is charged that he shall not alien in fée c. If he alien onely in tail that is a forfeiture So in that case alien he for a short time or for a long time it is all one Howbeit if he were to recover according to the value of the Lease then the beginning and end thereof ought to be shewed in certain And therefore in such case even in a Decies tantum the certainty of the money ought to be shewed for he shall recover ten times the value or quantity thereof and then to expresse the value thereof in certain is of substance c. â—dictment for â—â—rder found â—anslaughter â—ooâ— 36 If a man be indicted for Murder Pl. Co. 101 b. 1. Salisburies Case and the Iury finds him guilty of Man-slaughter onely yet the Iudge may give judgment upon him viz. that he shall be hanged for the Man-slaughter for the jury may give their verdict at large and find the whole matter as if one be arraigned for the death of a man and pleads not guilty the Iury may find that he did kill him in his own defence So in the other case when the prisoner is arraigned for killing a man upon malice praepense the substance of the matter is whether he killed him or no and the malice praepense is but of the form or circumstance of killing him And albeit the malice praepense makes the act more odious and for that cause the offender shall lose divers advantages which otherwise he should have as Sanctuary Clergy and the like yet that is indéed nothing else but the manner of the fact and not the substance thereof for the substance of the fact is the killing of the man and then when the substance of the fact and the manner of the fact are put in issue together if the Iurors find the substance and not the manner yet judgment shall be given for the substance As if a man arraigne an Assise for Disseisin with force and the Defendant pleads to the general issue and the Iurors find the Disseisin but not with force yet the Plaintiff shall have his judgment for the wrongful expulsion was the substance and the force was the manner and then when the substance is found he shall have judgment thereupon and shall be acquit of the force c. â—he King is â—solutely â—g before â—oronation 〈◊〉 37 The King of England immediately after the Predecessors demise of the Crown is absolutely King without the Ceremony of Coronation or any other act to be done ex post facto for Co. l. 7. 10. b. 4. in Calvins Case the Law doth respect his title to the Crown by birth right and descent and not the circumstance of Coronation which is indéed a Royal ornament and solemnization of the Royal descent but no part of the title Howbeit in 1 Jac. before his Coronation Watson and Clerk seminary Priests and others were of opinion that the King was no compleat and absolute King before his Coronation but that Coronation did adde a confirmation and perfection to the descent And therefore observe their damnable and damned consequent that they by strength and power might before his Coronation take him and his Royal issue into their possession kéep him prisoner remove his Counsellors and constitute others in their places and that these acts and others of like nature could be no treason before he were crowned but it was resolved by all the Iudges of England that presently by the descent his Majesty was compleatly and absolutely King without any essential Ceremony or act to be done ex post facto and that Coronation was but a Royal ornament and outward solemnization of the descent as is aforesaid and as it appeares evidently by infinite precedents and Book cases which see in the Book at large c. Co. l. 8. 133 a. 4 in Tawners Case 38 In an action of Debt brought against an Executor Pleading he pleads two recoveries against him in a Court of a Corporation being a Court of Record which amount to the whole in hand but sheweth not in
the Plaintiffe himselfe confesse that they committed the Trespass severally there the writ shall abate and so observe the diverstty betwixt the finding of a Iury and the confession of the party because this is his own Act but that the Act of the Iurors F. N. B. 11. c. 62 If there be Lord and Tenant Distresse for more Rent then is due justifiable and the Tenant payes the Lord a greater Rent then is due to him and that voluntarily without cohersion of distresse here the Lord having gained seisin of so much Rent may distraine the Tenant for such surplussage of Rent and the Tenant cannot avoid the Lord in his avowry because of the seisin which the Lord had of so much Rent Howbeit he may have remedy by the writ of Ne injuste vepes grounded upon the Statute of Magna Carta cap. 10. but before that Statute he had no remedy as it séemes 〈◊〉 none by â—â—ance 63 In a writ of Entry sur disseisin F.N.B. 21. c if the original writ wants these words Quam clamat esse Jus haereditatem suam it is error yet if the Tenant admit the writ and pleads to the action and loseth he shall not assigne this default in the writ for error because he hath admitted the writ by his plea So likewise in a writ of detinue of Charters if the Plaintife in his Count declare not the certainty of the land it is a just cause of error yet if the defendant admit the Count good and pleads to the Action and loseth by judgment in a writ of error sued by him he shall not Assigne this default in the Count for error because he hath admitted it for good by his Plea Tamen quaere â—esentment â— an Advowâ— 64 A man may have an Assise of darrein presentment F. N. B. 13. q. l. albeit neither he nor his Ancestors presented to the last avoidance As if Tenant for life or years or in Dower or by the courtesie suffer an usurpation to the Church c. and die he in reversion that is heire to the Ancestor that last presented shall have an Assise of darrein presentment if he be disturbed But if a man presents and after grants the Advowson for life to another who suffers an usurpation or two or thrée usurpations and dies In this Case at the next avoidance he in the reversion shall not have an Assise of darrein presentment if he be disturbed to present because the Lessée was in by his own Act Howbeit his heire may have it but that is by the provision of West 2. cap. 5. So likewise if a man present to an Advowson and after let if for term of years and then the Church becomes void and the Tenant for yeares presents and after the Incumbent dies and the Lessor presents and is disturbed in this Case it séemes the Lessor shall not have an Assise of darrein presentment causa quà suprà And the termer for years presented in his own right â—â—â—ative 65 If a man hath a Chappel or Chantery Donative F.N.B. 35. e. and he presents once to the Ordinary his Clerke to that Chappel or Chantery In this Case he shall never make Collation afterwards but he ought to present to the Bishop and if he present not within six moneths the Ordinary shall have advantage of the lapss 〈◊〉 utrum 66 If a Parson receive Rent or fealty of the Tenant for the land aliened by his Predecessor he shall not have a juris utrum during his life F.N.B. 50. e. but his Successor may have it Recognisance â—â—charged 67 If the Recognisor enfeoffe a stranger of one parcel of the land charged and likewise enfeoffe the Recognisée of another parcel thereof F.N.B. 104. n. 105. e. and afterwards the Recognisée sues execution against the Recognisor and the other feoffée In this Case the feoffée shall have an Audita quaerela against the Recognisée and thereby discharge his land because the Recognisée hath discharged his parcel of the land by his owne Act. â— warrantia â—â— and â—â—cher 68 If a man be impleaded in any Action F.N.B. 134. i. in which he may vouch the party against whom he hath a warranty in such Case he shall not have a warrantia cartae against him but he ought to vouch him to warranty and if he vouch him not in such Action he shall never after have any action of warrantia cartae against him to maintain his title F. N B. 142. k. 69 If there Lord and Tenant and the Tenant make feofment by collusion and the Lord accept the services of the feoffée In this Case Wardship Collusion the Lord shall not afterwards have the wardship of the Tenants heir nor averre the Collusion F. N. B. 144. 0. 70 If a man be intitled to have a writ of Escheate Acceptance barres Escheate and he accepts the homage of the Tenant in this Case he shall not have a writ of Escheate against him afterwards because he hath accepted him for his Tenant So also it séemes reasonable if he accept fealty of him that in such Case also he shall not have a writ of Escheate Howbeit it is not so of Rent because the former are solemne services which the law respects more then Rent Vide suprà Max. 91. Pl. 19. Pl. Co. 66. a. 2. in Dive and Maninghams Case 71 When a man demurres he is to do it generally Pleading anâ— special demuâ— and not upon any special matter for otherwise he is tied up to that special matter and cannot take advantage of any other error or default in the declaration or other pleading And therefore in Dive and Maninghams Case in the Commentaries where the Defendant concludes unde ex quo scriptum praedictum non fuit factum sub tale conditione quali per Statutum fieri deberet petit judicium Here this special conclusion hath so straightned the Defendant that if the obligation were void for any other cause then what is mentioned in the conclusion the Defendant could not have benefit thereof by Order of Law So also in 34 H. 6. which is there also quoted where one deviseth a reversion of a Tenant for life to another in fée per nomen omnium terrarum tenementorum quae in manibus le Devisor ad tunc fuerunt and the heire of the Devisée brings an Action of waste reciting in his count the special grant ut suprà And the Defendant saith ex quo pro narrationem praedictam apparet that the Devisor did not devise the reversion but by the words ut suprà and the Tenant for life then held the tenements and that nothing of the reversion by the general words passeth to the Devisée and so he demands judgement c. And thereupon the Plaintiffe also demurred And there it was held that in as much as the Defendant had demurred in a point in special and hath rehersed the
intire yet it was conceived by many that it is good for the moity because the party to the Condition hath dispensed with the Condition by his acceptance of the Estate Dier 140. Pl. 43. 3 4 P. M. 80 If Lessée for years by indenture accept of another lease though it be but by parol to begin immediately A surrender Law this is a surrender in Law of his first lease because by his acceptance of the last lease he admits himselfe out of possession and that the Lessor hath lawfull power to demise him a new one Vide Dier 279. 11. Dier 144. 57. c. 3 4 P. M. 81 The Statutes of 27 E. 3. 8. and 28 E. 3. 13. of the Staple were made for the benefit and in favorem alienigenarum for trials per medietatem linguae yet if an Alien be Plaintiffe Trial per 〈◊〉 dietatem liâ—gua and omit the advantage of requesting it whereupon a general venire facias issueth out and is returned some say that thereby he hath slipt his time and that the Iudges are not bound ex officio to award any such special writ by reason of the said Statute for it appeareth not unto them by the Record quòd una pars sit alienigena and by the Common Law the trial was by all English Howbeit Treason shall not be tried per medietatem linguae Dier 158. Pl. 32. 4 5 P. M. 82 If a Guest come to a Common Inne to lodge there A Guest robbed and the Host saith that his house is already full of Guests and is not willing to admit him and the Guest saith that he will make shift amongst the other Guests and is there robbed of his goods in such Case the host shall not be charged therewith because he refused him but the Guest shall beare the losse himselfe Vide Dier 266 9. Dier 164. 57. 4 5 P. M. 83 If a man hath goods to value of 100 l. and is in Debt 20 l. and by his will gives his wife the moity of all his goods Goods bequeathed to be equally divided betwixt her and his Executors and then he makes Executors and dies in this Case if the Executors discharge the Debt to the Creditor by sale or other satisfaction out of the goods themselves the Feme shall have onely the moity of the residue viz. 40 l. but if they pay the Debt by their owne money the Feme shall have the moity of all the goods viz. to the value of 50 l. so as the Executors have assets Dier 200. 62. 3 Eliz. 84 The King demiseth a Messuage rendring Rent Surrender and afterwards the lessée takes a patent of the office of the kéeping of the said house this séemes to be a surrender in law of the lease Dier 226. 40. 6 Eliz. 85 In an Ejectione firmae against two Ejectione â—â—mae one appeares and pleads the general issue and processe is continued against the other who also appeares and pleads entry of the Plaintiffe into the land since the last continuance in abatement of the writ whereupon the Plaintiffe demurres afterwards the issue above was found for the Plaintiffe yet he shall not have judgment for by the demurrer he hath confessed the entry which abates his own writ Dier 261. 28. 9 Eliz. 86 The rasing of a lease in any place though not material by the lessée himselfe makes the lease void Rasing Hob. 119. Wood and Budden 87 In Trespass in 8 acres of Pasture in Tollard Royal Trespas the Defendant pleads that W. E. of Salisbury was seised of Cranborne Chase And so prescribed in liberty of Chase and that the said Chase did extend it selfe as well in and thorough the said 8 acres as the said Towne of Tollard Royal and â—ustifies the Trespass for use of the chase The Plaintiffe maintains his declaration and traverseth that the Chase extends not it selfe as well to the 8 Acres as to the whole Towne And this issue being found for the Plaintiffe it was moved in arrest of judgment that this issue and Verdict were faulty because if the Chase did extend to the 8 Acres onely it was enough for the Defendant and therefore the finding of the Iury that it did not extend as well to the whole Towne as to the 8 Acres did not conclude against the Defendants right in the 8 Acres which was onely in question But it was answered by the Court that there was no fault in the issue much lesse in the Verdict which was according to the issue but the fault was in the Defendants plea who takes the exception for he put in his plea more thou he néeded viz. the whole Towne which being to his owne dis-advantage and to the advantage of the Plaintiffe there was no reason for the Plaintiffe to demurre upon it but rather to admit as he did and so to put it in issue And so judgement was given for the Plaintiffe 118 When several remedies are given the party to whom the Law giveth them hath thereby also election given him to take which he will â— writ of anâ—â—y or â—lâ—â—se 1 If a man grant by his déed a Rent-charge to another Litt. §. 219. Co. Inst p. 1. 145. a. 1. and the Rent is arrere the grantée may choose whether he will sue a writ of Annuity or distraine for the Rent arrere but in this Case he shall but choose once for if he recover in a writ of Annuity he shall never after distraine or if the distrainâ— and avow in Court of Record he shall never after bring a writ of Annuity because an avowry in a Court of Record being in nature of an Action Co. ib. 145. b. 4. is a determination of his election before any judgment given Electio semel facta placitum testatum non patitur regressum Quod semel placuit in electionibus amplius displicere non potest â—ction of â—â—at or 〈◊〉 So if a Rent-charge be granted to A. and B. and their heires Co. ib. 146. a. 1 A. distraineth the Beasts of the grantor who sueth a replevin A. avoweth for himselfe and maketh conusance for B. A. dieth and B. surviveth Here B. shall not have a writ of Annuity for in that Case the Election and avowry for the Rent of A. barâ—eth B. of his election to make it an Annuity albeit he assented not to the avowry And here is a diversity to be observed betwéen the Case above-said where the grantée makes it either real or personal at his Election real when he distraines or personal when he brings his writ of Annuity and where a man may have Election to have several remedies for a thing that is méerely personal or méerely real from the beginning As if a man may have an Action of account or an Action of Debt at his pleasure and he bringeth an Action of account and appeare to it and after is non-suit yet may he have an Action
the Bishop of Carliles Case 2 A prescription that if an inhabitant hath five fléeces of wool Titheâ— or above that then the inhabitant after the shearing and binding up of the said five fléeces without fraud or deceit shall truly pay unto the Rector after monition c. at the doore of the Mansion house of the said inhabitant c. the tenth part thereof without any sight or touch of the nine parts by the Rector is a void prescription for it is against common reason that any man should judge or divide for himselfe and then take choice of his own division against the Rule of Litt. § 245. for the truth of the tenth depends upon the proportion it holds with the nine parts therefore for the parishioner who is in the nature of an adversary to the Parson in this Case to set out a part of the tenth which he onely affirmes to be just is to give him méerly power to tithe as he lists and the prescription were as reasonable as to say plainly that the parishioners might set out what tithe they please 120 Nemo prohibetur pluribus desensionibus uti â—ral Pleas 〈◊〉 1 Where the Tenant or Demandant may plead a general issue Co. Inst p. 1. 304 a. 3. thereupon the general issue pleaded he may give in evidence as many distinct matters to barre the action or right of the Demandant or Plaintife as he can â—able matâ— pleaded 2 Where a special Verdict containes double or treble matter Co. ibidem the Tenant or Defendant may either make choice of one matter and to plead it to barre the Demandant or Plaintiffe or to plead the general issue and to take advantage of all or he may plead to part one of the pleas in barre and to another part another plea and the conclusion of his plea shall avoid doublenes 〈◊〉 as admiâ—ator or â—â—or 3 An Executor brings debt as Administrator Co. l. 5. 33. a. Robinsons Ca. and is barred by plea that he is Executor In this Case he may afterwards bring debt as Executor For he was barred as to the action of the writ to have Debt as Administrator but not to the Action â—â—tion 〈◊〉 satisfaâ—â— 4 Two men were bound jointly and severally in an Obligation Co. l. 5. 96. b. Blumfeilds ca. the one was sued condemned and taken in Execution and so not long after was the other And afterwards the first escaping the other brought an Audita quaerela but it was not admitted for albeit the Plaintiffe might have had his action against the Sheriffe upon the escape yet untill he be satisfied indéed the other shall not be enlarged nor have his Audita querela because the execution upon the first that escaped was not valuable being without satisfaction 〈◊〉 of actiâ—â—ll not 〈◊〉 recovery â—ise 5 If one be barred by plea to the writ Co. lib. 6. 7. a. in Ferreâ—â— Ca. he may have the same writ again if by plea to the Action of the writ he may have his right Action If the plea be to the Action and he be barred by judgment confession or verdict in personal Actions it is a barre for ever but in real actions he may have a writ of an higher nature and shall it is the same right again because it concernes his Frankteneâ—â—ent and Inheritance So if one be barred in an Assise of Novel disseisin yet upon shewing a discent or other special matter he may have an Assise of Mortdancester Aiel Besaiel a writ of Entry sur disseisin of his Ancestor c. or the like F.N.B. 5. n. And if he happen to fail in any such real action yet may he have last of all his writ of right in which the whole matter shall be tried and determined again Howbeit Recovery or barre in Assise is a barre in every other Assise and in a writ of entry in the nature of an Assise because they are both of his own possession and of the same nature So barre in a writ of Aiel is a haire in a writ of Besaiel Cosinage because they are ancestral and of the same nature yet in a Formedon in descender albeit the Dâ—mandant be barred by verdict or demurrer yet the issue in taile may have a now formedon in descender But this is by the construction of W. 2. c. 2. So likewise if the Ancestor be barred in a writ of Error upon a release by him made to the Tenant yet the issue shall have a new writ of Error For he claimes in not onely as heire but per formam doni And by the Statute he shall not be barred upon a feined or false plea of his Ancestor so long as the Right of the intaile remaines and with this accords 10 H. 6. 5. and 3 Eliz. 188. Dier Sir Ralfe Rowlets Case â—erse 6 In Trespas the Defendant makes title for that A. W. Co. lib. 6. 24. a Reades Case being seised in fée leased to him the Plaintife makes title by discent and traverseth the lease and good for it may be true that A. W. was seised and yet that a discent was cast to the Plaintiffe therefore the lease is most material to be traversed Howbeit it séemes that either the one or the other may be traversed So in Trespas the Defendant pleads that A. was seised who enfeoffed B. who enfeoffed C. who enfeoffed D. whose Estate the Defendant hath here the Defendant may traverse which of them he please Co. l. 8. 15. b. 4 in Edw. Althams Case 7 Where a man releaseth totum Jus generally By release of actions Entry remaines all his rights are thereby released but if the disseisée release to the disseisor omnes actiones viz. recuperandi sive prosequendi in judicio thereby his right of entry is not released for when a man hath divers means to come to his right he may release one of them in special and yet take benefit of the other and with this accords Litt. fol. 115. b. 19 Ass Pl. 3. 19 H. 6. 4. 21 H. 6. 23. 21 H. 7. 23. Co. l. 9. 23. b. 1 in the Case of Avowry 8 Notwithstanding the Statute of 21 H. 8. 19. The Lord 〈◊〉 avow as bâ—fore the Stat. the Lord may at this day avow upon a person certain as upon the utry Tenant according to the Common Law For the Statute taketh not away the Common Law in that Case but giveth liberty to the Lord to pursue the one or the other Co. l. 9. a. 4. in the Case of Avowry 9 If the Lessée or if Tenant peravaile in Case of Mesnalty be present when the Lord and his Bailiff comes to distraine Upon distresâ— rescous or trespass if nothing be in arreare he may well make rescous and so release himselfe as it was resolved in Bevils Case in Co. lib. 4. fol. 8. and divers other Bookes which sée in the Case of Avowry Co. lib. 9. 23. a. 4. Or otherwise
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
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
False plea in Dower 2. In a Writ of Dower Co. ibid. 33. a. 1. if the Tenant being in by discent plead a false Plea he shall answer all the damages from the time of the Husbands death albeit for some part of that time he enjoyed not the Land nor received any profit thereof As it appeares in a notable Record between Belfeild and Rowle Mich. 8 9. Eliz. Rot. 904. in Com. Ba. In which Suite the Tenant as to parcell pleads non tenure and for the residue detainer of Charters upon which Pleas they were at Issue and both Issues found by the Iury against the Tenant and found further that the Husband dyed seised such a day and yeare and had Issue a Son and that the Demandant and the Son for six yeares after the decease of the Husband together took the profits of the Land and after the Son such a day and yeare dyed without Issue after whose decease the Land discended to the Tenant as Vncle and Heire to him by force whereof he entred and took the profits untill the purchasing of the Originall Writ and found the value of the Land by the yeare and assessed damages for the detaining of the Dower and costs of Suit upon which Verdict after much debating the Demandant had Iudgement to recover her damages for all the time from the death of her Husband without any defalcation And this was cheifely caused by his false Plea whereas he might have avoyded the answering of the damages for the six yeares if he had truly pleaded according to the truth of his case Assignment of Dower by a wrong-doer voidable 3. If assignment of Dower be made by any Disseisor Abator Co. ibid. 35. â— 2. in Bredi mans case Co. l. 6. 58. a. 1. Intrudor or any wrong doer in Lands and Tenements if they came to that estate by collusion and covin between the Widow and them albeit the Widow hath just cause of Action and the Assignment be indifferently made after Iudgement by the Sheriff of an equall third part yet shall the Disseisee c. avoid it for covin in this case shall suffocate the right that â—â—pertained to her and so the wrongfull manner shall avoid the matter that is lawfull See Pl. Co. 51. a. Rent-charge extinct by covin 4. If a man grant a Rent-charge out of two acres Co. ibid. 148. b. 3. and after the Grantee recovereth one of the Acres against the Grantor by a title Paramont the whole rent shall issue out of the other Acre but if the Recovery be by a faint title by Covin then the rent is extinct for the whole because he claimeth under the Grantor Forfeiture 5. If Tenant for life plead covinously Co. Inst pars 1. 252. a. 1. to the disherison of him in the Reversion this is a Forfeiture upon Record Avowry Stat. 11 H. 8. 19. 6. The Stat. of 21 H. 8. 19. which gives to the Lord Avowry upon the lands without naming any person certain being made to suppress fraud Co. ibid. 268. b. 2. in the case of Avowry Co. l. 9. 22. a. shall be taken with equity And therefore where the words of the Statute be If the Lord distraine upon the Lands and Tenements holden yet if the Lord come to distrain and the Tenant chase away his Beasts which were within view out of the Land holden and there the Lord distraine Albeit the Distresse be in that case taken out of his fee and Seigniory yet it is within the said Statute for in Iudgement of Law the Distress is lawfull and as taken within his fee and Seigniory because that Statute being made to prevent fraud and covin admits an equitable interpretation as aforesaid So it is also if his Bayliff do it tamen quaere de hoc but for Damage-feasant the Distresse must be taken upon the Land c. Attaint 7. Perjury which is a falsehood or fraud in a high degree is greivously punished by the common Law Co. ibid. 294. b. 2. And therefore in an Attaint which is a Writ that lyeth where a false Verdict in Court of Record upon an Issue joyned by the parties is given if the petty Iury be attainted of a false oath they are stained with perjury and infamous for ever for the Iudgement at the common Law importeth 8 greivous punishments 1. Quod amittat liberam legem imperpetuum viz. that they shall be infamous for ever and never be received to be a witness or of a Iury 2. Ferisfaciant omnia bona catalla sua 3. Terrae tenementa in manus domini Regis capiantur 4. Uxores liberi extra domos suas ejicerentur 5. Domus suae prostrentur 6. Arbores suae extirpentur 7. Prata sua urentur 8. Corpora sua carceri mancipentur And the Law esteemed perjury in this kind the more odious and afflicteth the greater punishment thereupon because the tryalls of all Actions reall personall and mixt depend upon the oath of twelve men and prudent Antiquity inflicted a strange and severe punishment upon them if they were attainted of falsehood and perjury ut poena ad paucos metus ad omnes perveniat for there is miserecordia puniens and there is also crudelitas paucens But this punishment is altered by the Statute of 23 H. 8. cap. 3. Co. ibid. b. 3. 8. The Statute of 23 H. 8. cap. 3. made to prevent perjury and false Verdicts shall be taken with equity for 1. where the Statute saith Attaint Stat. 23 H. 8. 3. that the party greived shall have an Attaint against the party who shall have Iudgement upon the Verdict yet the Attaint shall be maintained upon that Statute against the Executors of that party Howbeit it must be between party and party 2. In the Kings Bench or Common Pleas 3. Consider what Pleas may be pleaded in an Attaint by force of that Statute and what not Litt. S. 675. 9. If a man let Land to a Feme for life A false Recovery and afterwards one sues a feined and false Action against the Feme and recovers the Land against her by default so as the Feme may have a Quod ei deforceat according to the Statute of West 2. cap. 4. The Law gives so much respect to a Recovery Co. ibid. 356. a. 4. 362. a. 1. Co. l. 1. 15. b. 3. that it workes a Discontinuance so as the Reversioner shall not have an Action of Waste c. Howbeit if Tenant for life suffer a common Recovery or any other Recovery by covin and consent between the Tenant for life and the Recoveror this is a Forfeiture of his estate and he in the Reversion may presently enter for the Forfeiture See the Statute of 14 Eliz. cap. 8. concerning this matter and Co. l. 1. 15. Sir William Pethams case l. 3. 60. c. Litt. S. 678. 10. If the Baron discontinue the Land of the Feme Covin
out when he will An Earledome to Daughters 15. If an Earle hath his dignity to him and his Heirs and dyeth Co. ibid. 165. a. 3. having issue one onely Daughter the Dignity shall descend to the Daughter and to her posterity as well as any other Inheritance as it fell out in Sampson Leonards case who marryed Margaret the onely Sister and Heire of Gregory Fines Lord Dacre of the South and in the case of William Lord Rosse for in such case there can be no uncertainty when there is but one Daughter or Sister Howbeit where there are more Daughters then one the eldest shall not have the Dignity and power of the Earle viz. to be a Countesse but in such case the King who is the Soveraigne of honor and dignity may for the uncertainty confer the dignity upon which of the Daughters he please Howbeit the Lands shall be divided betwixt them as amongst Parceners for they are divisible and certaine Co. ibid. 211. a. 2. 220. a. 4. 16. If a man be bound to pay twenty pounds at any time during his life at a place certaine Uncertain day of payment the Obligor cannot tender the money at the place when he will for then the Obligee should be bound to perpetuall attendance and therefore the Obligor in respect of the uncertainty of the time must give the Obligee notice that on such a day at the place limited he will pay the money and then the Obligee 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 So likewise if a man make a Feoffment in fee upon Condition that if the Feoffor at any time during his life pay to the Feoffee twenty pounds at such a place certaine that then c. In this case also the Feoffor must give notice to the Feoffee when he will pay it for without such notice as aforesaid the tender will not be sufficient Also if A. be bound to B. with Condition that C. shall enfeoff D. on such a day C. must give noâ—â—ce thereof to D. and request him to be on the Land at the day to receive â—he Feoffment and in such case he is bound to seek D. and to give him notice In all which cases it is to be observed that what the contract of the parties leaves uncertain the Law to prevent contention reduceth to a certainty And therefore in such cases Littletons advise is wholesome councell viz. Not onely to limit a certaine place and day Litt. S. 342. Co. ibid. 212. a. 3. but likewise to set down in the Condition a certaine time of the day as betwixt the houres of two and four or the like And indeed it is good in Conveyances to set downe every thing in certainty and particularity for certainty is the mother of quietnesse and repose and uncertainty the cause of variance and contention And therefore for the obtaining of the one and avoyding of the other the best meane is in all assurances to take councell of learned and well experienced men and not to trust onely without advice to a Presiden for as the Rule is concerning the state of a mans body Nullum medicamentum is idem omnibus so in the state and assurance of a mans Lands Nullum exemplum est idem omnibus Co. ibid. 218. a 2. 17. A Lease is made to a man and a woman for their lives upon Condition that which of them two shall marry first Lease on Condition to marry that one shall have the fee they intermarry In this case neither of them shall have fee for the uncertainty Co. ibid. 227. a. 1. 18. If the Iury give a Verdict of the whole Issue and of more Insufficient Verdict c. that is surplusage and shall not stay Iudgement for utile per inutile non vitiatur and necessary incidents required by Law the Iury may find Howbeit a Verdict finding matter uncertainly or ambiguously is insufficient and no Iudgement shall be given thereupon as if an Erecutor plead plene administravit and Issue is joyned thereupon and the Iury finde that the Defendant hath goods in his hands to be administred but find not to what value this is uncertaine and therefore insufficient so a Verdict that finds part of the Issue and nothing for the residue is insufficient for the whole because they have not tryed the whole Issue whereby they are charged As if an Information of Intrusion be brought against one for intruding into a Messuage and one hundred Acres of land upon the generall Issue the Iury find against the Defendant for the Land but say nothing for the House this is insufficient for the whole and so it was twice adjudged viz. H. 25 Eliz. in a Writ of Error in the Exchequer Chamber inter Brace and the Queene and M. 28 29 Eliz. inter Gomersall and Gomersall in account in Banco Regis Co. Inst pars 1. 271. b. 4. 19 A Feoffee to the use of A. and his Heirs before the Statute of 27 H. 8. for money bargaineth and selleth the Land to C. and his Heirs Uncertainty or an use who hath no notice of the former use yet no use passeth by this bargain and sale for there cannot be two uses in esse of one and the same Land and seeing there is no transmutation of Possession by the Ter-tenant the former use can neither be extinct nor altered And if there could be two uses of one and the same Land then could not the Statute of Uses execute either of them for the uncertainty Detinue 20. A Writ of Detinue lyeth for goods delivered or found Co. ibid. 286. b. 2. when the Plaintiff can declare in certain what they are but it lyeth not for money out of a Bag or Chest or for Corne out of a Sack or the like because these cannot be distinguished from other money or Corne So likewise an Action of Detinue lyeth for Charters which concerne the Inheritance of Land if he know them in certaine and what Land they concerne or if they be in a Bag sealed or Chest locked albeit he know not the certainty of them but the Writings or at least the Bag or Chest he must know in certaine otherwise that Action lyeth not And in case of a Bag or Chest it is good to declare if he can of one Writing in certaine for then the Defendant cannot wage his Law which otherwise he may Plaas double and multiplied 21. In dilatory Pleas there may be duplicity and multiplicity of distinct matter for in their time and place a man may use divers of them Co. ibid. 304. a. 3. but in Pleas perpetuall and peremptory there ought not to be duplicity or multiplicity of distinct matter to one and the same thing whereunto severall answers admitting each of them to be good are required for that is not allowable in Law for the
is deprived and that thereupon it belongs to the Patron to present for Notitia dicitur a noscendo and Ex vi termin it ought to be speciall and certaine for Notitia non debet claudicare Co. l. 35. b. 1. The Bishop of Bathes case 51. If one let the Mannor of D. to I. S. for so many yeares An uncertain Lease as I. N. hath in the Mannor of S. and he hath ten years in it such Term shall I. S have in the Mannor of D. so if a Lease be made to another during the minority of I. S. and he is of the age of ten yeares this is a good Lease for 11 years if I.S. so long live because such Leases have a certaine commencement and a certaine end but if the wife of I.S. be great with childe and a Lease be made untill the issue in ventre sa mere shall come to full age this is no good Lease for the uncertainty for at the time when the Lease is to take effect it is uncertain when the child will be borne and by consequent the commencement continuance and end of that Lease is uncertaine and therefore void So if a man let Land of the value of 20 s. per annum untill 21 l. be levied of the Issues and profits without Livery this is but a Lease at Will for the uncertainty for it is not certain that the Land will hold to be every yeare of one and the same yearely value vid. plus ibidem 52. Vide Max. 36. 1. Co. l. 6. 60. a. 3. Gatewards case 53. Common by reason of Commonancy is against reason Common for commonancy for such a Common is transitory and utterly uncertaine because it followes the person and that for no certain time or estate but only during his inhabitancy which kind of Interest the law will not suffer for custom ought to extend to that which hath certainty and continuance Co. l. 8. 68. b. Trolops case 54. A Bishop certifies in generall that I.S. is excommunicate Excommunication this is not good for the uncertainty for he ought to certifie the particular cause in certaine wherefore he was excommunicate Co. l. 8. 91. a. 4. Frances case 55. If Land be devised to I.S. upon condition that he suffers his Executors to carry away his goods Devise disturbance by Parol is no breach of the Condition but the heir that claimes interest must alledge some speciall disturbance in certaine by some act done as by shutting the doors upon them laying hands upon them or the like whereunto the other party may make a certaine answer and whereupon a certain issue may be taken whereof the Iury may enquire and the Court may judge whether it be a sufficient breach of the Proviso or no. Co. l. 8. 121. a. 1. in Doctor Benhams case 56. Regularly Uncertain plea. those that have power to impose Fine and Imprisonment except a Court of Iudicature shall plead the particular cause in certain wherefore the party was so fined or imprisoned and not in a generall or uncertaine manner because in such Cases upon an Action brought by the party fined or imprisoned the cause is traversable as the Fine and Imprisonment in Doctor Bonhams case and the Acts and Orders of Commissioners of Banckrupts for they are traversable and therefore ought not to be uncertainly pleaded Co. l. 8. 135. a. 4. in John Nedhams case 57. An Administrator cannot plead uncertainly and in generall The like that the Intestate had Bona notabilia but he ought to plead them in certain for otherwise it will be intended that the Intestate had not Bona notabilia in severall Diocesses Co. l. 8. 155. a. 3. in Edw. Althams case 58. If a man by Deed gives goods to one of the sons of I. S who hath divers Sons here he shall not take averment which son he meant for by judgement of Law upon this Deed this gift is void for the uncertainty which cannot be supplyed by averment Vide 11 E. 4. 2. Co. l. 9 18. a. 2. Ann Bedingfeilds case 59. In Dower upon plea of detainer of Charters in bar thereof Detainer of Charters the heir must shew the certainty of the Charters or that they are in a chest or box locked or sealed to the end that a certaine Issue may be joyned thereupon and it is not enough to plead detainer of Charters in generall for that is an insufficient plea for the uncertainty See also Co. l. 9. 110. a. 2. Co. l. 9. 25. a. 2. in the case of Strata Mercella 60. In the case of the Abbot De Strata Mercella Uncertain plea. the Defendant pleaded Quod pred Abbas licite habuit bona felonum c. And yet shewed not his case in so certain and speciall manner that the Court might adjudge whether the Abbot by the Law had Felons goods or no And thereupon his plea was adjudged insufficient for the Vncertainty So also it is agreed in 22 E. 4. 40. The Lord Lisles case where one was bound in an Obligation upon Condition that he should come to B. such a day and shew the Obligee or his Councill a sufficient discharge of an Annuity of 40 s. which he claimed out of two houses c. And in Debt upon this Obligation the Defendant pleaded that he came to B. at the day aforesaid and there offered to shew to the Plaintiff and his Councill a sufficient discharge and that they refused to see it upon which the Plaintiff demurred in Law And it was adjudged that the plea was insufficient for the plea ought to have alledged what manner of discharge in certain he offered to shew viz. a Release unity of possession or other matter of discharge whereupon the Court might have adjudged whether it had been sufficient or no. Ravishment of Gard an uncertain verâ—â—ct 61. In Ravishment de Gard Co. 9. 74. a. 3. in Doctor Huâ—sers case according to the Statute of Westm 2. 35. The Iurors found generally that the Ward was married and that at the time of his marriage he was eighteen years old and upwards c. and this was adjudged an insufficient Verdict because it is not only thereby left uncertain who procured him to be married viz. Whether the Ravishor a stranger or the Plaintiff himselfe or that the Ward of his own accord married himselfe but also it is uncertaine in the time when he was married whether before or after the Ravishment And therefore it is well sayd in 30 E. 3. 23. That the Verdict ought to be such that the Iudges may cleerly proceed to Iudgement and by consequent ambiguous and uncertaine Verdicts are insufficient and void as in 40 E. 3. 15. in Debt against Executors they plead fully administred c. the Iurors finde that they have goods in their hands but do not say to what value and for this uncertainty their Verdict was held insufficient and void See more authorities
sometimes in the count and for want of certainty it shall abate as in 3 E. 4. A man retained in Husbandry brings an Action of debt against a Prioresse for his salary and declares that he was retained with his Predecessor and shewes not the person that retained him this count abated for the uncertainty for it might be that one who had not Warranty retained him for the Predecessor Sometimes the Count and Writ also may be generall without certainty as in Assizes but there the certainty ought to be shewed by the Replication sometimes the Writ Count and Replication may be uncertaine but then the certainty ought to appeare by the Verdict as in a Quare Impedit the value appeares not in the Count nor in the Replication but it will appeare by the Verdict for they shall assesse double damages or damages by halfe a yeare according to the value of the Church so in a Writ of Ward the Iury shall find whether the heire be marryed or not and shall assesse damages for it and yet in the Count or Replication no such matter appeares So likewise in a Detinue the value of the goods shall appeare by the Verdict c. so as certainty ought alwayes to appeare to the Court. Jeofaile 72. In debt upon an Obligation for performance of Covenants Dyer 31. 217. 28 H. 8. whereby the Defendant was bound to do and suffer to be done upon request all such things for the Plaintiffs assurance in certaine Lands as should be devised by councell the Defendant saith that he was not requested the Plaintiff replyes that his councell advised that the Defendant should seal a Release which was required to be done and that the Defendnat refused to this the Defendant rejoynes and saith that he did not refuse and that he was ready to do it And the Court said that this re-joynder was a full Jeofaile and therefore insufficient for the uncertainty for that he waved his bar viz. the request which he ought to have maintained as to have said Quod non fuit requisitus Abayance 73. When the right of Fee-simple is perpetually by Iudgment of Law in abeyance without any expectation to come in esse Co. Inst part 1. 343. a. 3. there he that hath the qualified fee and to many purposes is no more then a bare Tenant for life concurrentibus hijs quae in jure requiruntur may charge or alien it as in case of a Parson Vicar c. when the Patron and Ordinary joyne with him in the Charge or Grant for in this case at the common Law when all that had an Interest in the thing did joyne the Charge or Grant might have been thereby made certaine and infallible but where the Fee-simple is in Abeyance and albeit by possibility it may every houre come in esse yet it is altogether uncertaine when or whether ever or never that may happen In such case the Fee-simple cannot be charged untill it come in esse so as it may be certainly charged or aliened As if a Lease for life be made the Remainder to the right Heires of I.S. Here the Fee-simple cannot be charged or aliened before I.S. be dead in case I.S. dye living the Tenant for life Co. ibid 378. a. 3. but if the Tenant for life happen to dye before I.S. then is the Remainder vanished and gone because it cannot immediatly vest after the death of the Tenant for life Second deliverance 74. Vpon a second deliverance the Defendant being a Widow justifies by an estate for life if she so long continue a Widow Dyer 142 51 c. 3 4. P. M. and averreth not that she is the same woman to whom the estate was made nor that she is still a Widow for which uncertainty and others concerning the place where the Cattell were taken the Plaintiff had Iudgentent c. Inquisition 75. Inquisitio capta apud D. of Land in S. Dyer 208 19. 3 4. Eliz. without shewing in what County either D. or S. is was adjudged insufficient for the uncertainty because upon a Traverse it could not be tryed for want of the knowledge where the Venue should be taken Dyer 254. b. 1. 9 El. 76. In debt for rent arreare the Plaintiff counts Debt for rent arreare that his termor devised to the Defendant the terme and dyed and that the Defendant entred and was possessed and that for arreare of rent the Action accrued to this the Defendant demurs 1. because he hath not alleadged that the Devisor made Executors and that the Defendant entred with their agreement 2. For that he saith not vertute cujus legationis the Defendant was possest for which uncertainties the Count was adjudged insufficient for if the Defendant were in of any other estate or title then as Assignee of the Lessee an Action of debt lyeth not against him for want of privity Dyer 264. 39 9. Eliz. 77. A new Assignment was in one Acre New Assignment terrae sive prati in campo vocat N. the Defendant pleads not guilty but for the uncertainty whether Land or Meadow and also because there was no abuttalls the Iury were discharged Hob. 2. Axworths case 78. In an Action upon the case by Thomas against Axworth Slander the words were This is John Thomas his writing innuendo the Plaintiff and he innuendo c. hath forged this Warrant the Sheriffs Warrant at the Suit of M. Hog against the Defendant Innuendo And in this case it was held that the Innuendo would not support the Action the word Warrant alone being of an uncertaine sense and the matter of the Action shall not be enlarged or ascertained by the Innuendo as Pox innuendo the French Pox. Vide Hob. 6. Miles case 45. Harvies case Hob. 38. Dawtries case 79. Office An office was found by Commissioners after the death of William Dawtry whereupon a Melius Inquirendum went forth and recited but thus Cum per quandam Inquisitionem captam apud Chichester c. and doth not say that it was either by Commission or Writ or before whom and it was held void for the uncertainty and the office also that was taken upon the Melius for by the Melius it ought to appeare that the first office was by warrant c. Hob. 89. Rich and Shere 80. In an Ejectione firmae the Plaintiff counts of a Messuage c. Ejectioâ—e firma with Appurtenances called Dizard in Cornewall to hold for five years the Defendant pleads not guilty whereupon the Plaintiff had Iudgement And the Defendant assignes for Error that the Plaintiff had not shewed in what Towne Parish Hamlet or place the Messuage lay but in the generall County and thereupon the Iudgement was reversed in the Exchequer Chamber 13. Jac. for here was a tryall without a Visne Hob. 90. 81. Vide Hob. 90. Keere and Owen upon an Elegit Elegit Error for omitting the Entry
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
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
lessee that he shall not be impeached of waste the lessee may plead this in barr of the action of waste without bringing his action of Covenant Finch ibid. 5 Vpon the grant of a ward with warranty the defendant in a writ of right of ward may rebut the plaintif by that warranty and shall not be driven to bring an action of Covenant upon the grant to avoid circuit of action Finch fo 14. Fr. Edi. 6 One that hath rent issuing out of land disseiseth the terre-tenant Recouper in an Assise by the disseisee the disseisor shall recoup the rent in the damages and the reason is for avoiding circuit of action for otherwise when the disseisee re-enters the action for the arrerages of rent shall be received but Circuitus est evitandus boni Iudicis est lites dirimere ne lis ex lite oriatur Vide Co. l. 5. 31. a. 2. in Coulters case 180 Matter of Vexation And therefore Co. Inst part 1. 127. a. 1. 1 If the demandant or plaintif be non sute Plaintif amerced or judgement given against him he shall be amerced pro falso clamore for vexing and troubling the tenant or defendant without just cause Co. l. 5. 73. b. The case of Orphans 2 If any Orphan of London Oâ—phans which by the custom of that City is under the government of the Maior and Aldermen there sue in the Ecclesiastical Court or in the Court of Requests c. for any goods money or chattels due unto them either by the custom of London or by any devise or legacy in the will of their Ancestor or to have accompt c. In such case a prohibition lyeth because the government of the Orphans of London belongs to the Maior and Aldermen of that City and they have Iurisdiction of them And per Popham if the Lord of a Manor hath probate of testaments within his Manor if any will prove such a will in the Ecclesiastical Court a prohibition lies because the jurisdiction thereof belongs to another And the reason of this is for that otherwise the party might have double vexation and trouble Iudgement drowns a â—oâ—d 3 Where a man hath judgement upon an Obligation Co. l. 6 45. a. 3. Higgens case he shall not afterwards bring an action of debt upon the same obligation against the same party not only because the judgement hath drowned the bond by changing it into a matter of record but likewise for that if he that so recovers might have another new action and another new judgment he might also by consequent have infinite actions and infinite judgements to the perpetual vexation and charge of the defendant and infinitum in lege reprobatur Co. ibid. 46. a. 2. And therefore if a man brings an action of debt upon an Obligation and is barred by the judgement as he so long as that judgement stands in force cannot have a new action Pari ratione when he hath judgement in an action upon the same Obligation so long as that judgement stands in force he shall not have a new action Sure in two Courâ—s 4 If any use the Countenance of Law which was instituted to prevent Co. l. 8. 60. a. 3. in Beechers case and make an end of controversies and vexation for double vexation he shall be fined As if a man sue in the Common pleas and afterwards for the same cause sue the defendant in London or any other Court the plaintif shall be fined for this unjust vexation 9 H. 6. 55. 14 H. 7. 7. And in a Recaption the plaintif shall recover damages and the defendant shall be fined and imprisoned for his double vexation Vide F. N. B. 71. f. m. infra 181. 7. 5 In good discretion no melius inquirendum shall be awarded after office found against the King without view of some Record Co. l. 8. 169. a. 4. in Paris Stroughters case or some other pregnant matter for the King to avoid further vexation of the subject And therefore where upon a Diem clausit extremum it was found that the land was held of the Quéen Dyer 292. pl. 71. 12 Eliz. sed per quae servitia Iuratores ignorant and thereupon a melius inquirendum awarded whereby the tenure was found of a subject and all other points certainly found In this case the first office was adjudged void by the sence of 2 3 E. 6. and the rather because it should give no further occasion of vexing the subject for that the usual course was upon a double Ignoramus to adjudge a tenure for the King in Capite 181 Pendente Lite nihil innovetur Quarâ— Impedâ—t 1 At the Common Law Co. Inst part 1. 344. b. 3. if hanging a Quare Impedit against the Ordinary for refusing the Patrons Clerk and before the Church were full the Patron had brought a Quare Impedit against the Bishop and hanging the sute the Bishop had admitted and instituted a Clerk at the presentation of another In this case if judgement were given for the Patron against the Bishop the Patron might have had a writ to the Bishop and removed the Incumbent that came in pendente lite by usurpation for pendente lite nihil innovetur And therefore at the Common Law it was good policy to bring the Quare Impedit against the Bishop as spéedily as might be Co. l. 115. b. Foliambs case F.N.B. 60 a. 2 In Real actions depending as Formedon dum fuit infra aetatem Estrepment writ of right or the like the demandant shall have a writ of Estrepment to inhibit the tenant from committing waste or estrepment hanging the sute the like writ also may be had after judgement and before execution Vide the Statute of Glocester 6 E. 1. cap. 13. It lyeth also in an action of waste and the words of the writ are Tibi praecipimus quod ad messuagium praed personaliter accedens totaliter ordinari facias quod vastum seu estrepamentum de eodem messuagio contra formam Statuti praedict non fait pendente placito praed indiscusso Co. l. 6. 29. b. 3. 3 In Dyer 339. 17 Eliz. A presentation obtained of the Queen Presentation hanging a Quare Impedit in deceit of the Queen was adjudged void In Greens case F. N. B. 20. c. 4 In a writ of Error after errors assigned and scire facias awarded against the defendant upon such assignment Error the plaintif shall not assign any error in fact as to allege that the plaintif in the other action was dead at the time of the judgement or before the judgement or the like And when the plaintif may assign errors in fact he shall assign but one error of that kind but he may assign as many errors as appear in the record because this shall be tried by the Iustices in Court but that by a Iury which innovation will much delay and prejudice
action upon his case as well as the Lord and so there might be infinite actions for one default neither yet are they in such case without remedy for they may and ought to sue in the Court Christian and there shall have it redressed Co. l. 5. 104. b. in Boulstones case 6 A man cannot have an action upon the case for damage by the Pigeons of a Dove-house Dove-house because then every man might have the like And therefore it hath béen held that if any man except the Lord of a Manor erect a Dove-house Prat and Sternes case it is presentable in the Leet Sed quaere de hac for it hath been since otherwise adjudged See the E. of Northumberlands case Poph. Rep. 141. Trin. 16. Jac. Co. l. 6. 8. b. 4. in Ferrers case 7 If the plaintif be barred by judgement upon demurrer Vexatious sutes confession or verdict in personal actions he is barred for ever and in real actions he must have recourse to his action of an higher nature and at last shall be finally barred in his writ of right if the Grand Assise find against him So likewise before the Statute of Marlbridge when the degrees were past and before the Statute of Westm 2. upon loss by default there was no remedy but by writ of right And the reason of the Common Law in these and the like cases was to avoid Multiplicity and Infiniteness of sutes trials recoveries and judgements in one and the same case And therefore in the judgement of the Law it was thought more profitable for the Commonwealth and more for the honour of the Law in some cases rather to leave some without remedy and to put others to their writ of right without any respect of Coverture Infancy or the like than that there should not be a convenient time for the ending of actions and sutes See the judgement in redisseisin and post diss F. N. B. 188 190. and the punishment inflicted by the Law in such case See also the Register 206. 208. And indeed without such a strict course there may be much oppression committed under colour and pretence of Law for so a rich and malitious man may by actions and sutes infinitely vex him that hath right and in the end for the avoiding of charge and vexation Compell him to forsake his right all which was remedied by the Rule and Reason of the antient Common Law the neglect whereof by introducing trials of rights and titles of Inheritance and franktenement in personal actions in which there is no end or limit of sutes hath brought with it four main Inconveniences 1. Infiniteness of verdicts recoveries and judgements in one and the same cause 2. Sometimes contrarieties of verdicts and judgements one against another 3. Continuance of sutes by 20 30 and 40 years to the utter impoverishing of the parties 4. All this tends to the dishonor of the Common Law which utterly abhorrs Infiniteness and protraction of sutes And herein the excellency of the Common Law is to observed viz. That the receding from the true institution thereof introduceth many Inconveniences and the observation of it is alwayes accompanied with peace and quiet the end and center of all human laws See the Epistle to the 4. Report fol. 1. b. 8 Vide Max. 180. ca. 3. 186 25. 183 The Law construeth things with Equity and Moderation Convenient time 1 In 18 E. 4. 22. Co. l. 3. 27. a 1. A man is bound to make an obligation immediately yet he shall have convenient time to do it In Butler and Bakers case Escape 2 For as much as Escapes are very penal to Sherifs Co. l. 3. 44. a. 4. in Baytons case Bailifs of Liberties and Keepers of Prisons the Iudges have alwayes made such favourable construction as the Law will permit in favour of them being Officers and Ministers of Iustice and will never adjudge one to make an escape upon any strict construction for albeit the Sherif or other officer that keeps prisoners ought not to suffer one in execution to goe at large by Bail or Baston but ought to keep them in salva arcta custodia and according to the Statute of Westm 2. cap. 11. which ordains quod carceri mancipentur in ferris to the end they may the sooner pay their Creditors yet if one be arrested upon a Capias ad satisfac and the Bailifs upon a habeas Corpus bring him to Westm and at his request carry him to Lambeth in Surrey and at the day of return deliver him to the Kings Bench This shall be adjudged no escape neither shall the prisoner thereupon have an Audita querela against the Creditors So it is likewise if the prisoner had of his own accord gone to Lambeth so as he had returned in time to be delivered into Court at the return of the writ as it was adjudged in Charnicks case Sheriff of the County of Bed in 31 Eliz. So if one be Sherif of two Counties hath several prisoners in execution in each County upon two habeas Corpora against two of them he may bring the one prisoner out of the one County into the other and then carry both the prisoners up according to the several writs to him directed and this shall not be adjudged any escape in the Sherif Also If a prisoner in execution escape and flie into another County and the Gaoler make fresh sute after him and taking him puts him into the Gaol again this shall be adjudged no escape for that upon fresh sute the Gaoler took him again and put him in prison before any action brought against him And in the cases above produced upon habeas Corpus the Sherif is not strictly bound to keep the direct way to West in recta linea so as he have him at the return of the writ and then deliver him into Court for if the effect of the writ be pursued it sufficeth Copihold Fines 3 Where fines in a Copyhold Manor are uncertain Co. l. 4. 27. b. 3. in Hubbert Hamonds case the Lord ought not to demand or exact excessive or unreasonable fines and if he do the Copyholder may deny to pay it without danger of forfeiture and it shall be determined by the opinion of the Iustices before whom the matter depends upon a demurrer or at the trial whether the fine demanded were reasonable or no for if Lords might assess fines excessively at their pleasure all the estates of Copiholders which are a great part of the Realm and have continued time out of mind would be at the will of the Lords to defeat and destroy which would be inconvenient And thus it was adjudged in the Common place in Hoddesdons case Sewers 4 Notwithstanding that the words of the Commission of Sewers give authority to the Commissioners to do according to their discretions Co. l. 5. 100. a. 3. in Rooks case yet their proccedings ought to be limited
the writ should by the non-return of the writ be tortious then the Sherif will never find buyers to whom he may sell any defendants goods by force of any writ of execution which would be inconvenient and great delay of executions which are the fruit and life of every sute 30 If a rent be granted out of the Manor of Dale Rent charge and the grantor grant over Co. l. 7. 24. a. 3. Buts case that if the rent be behind the grantee shall distrain for the same in the Manor of Sale this is no grant of the rent but only a penalty in the Manor of Sale for if the grantée should bring a writ of Annuity that would only extend to the Manor of D. for upon the grant of the distress in the Manor of Sale no writ of Annuity lyeth because the Manor of S. is only charged and not the person of the grantor as to that And therefore the bringing of the writ of Annuity cannot discharge the Manor of S. of any rent And so the Law by construction against the words and intention of the parties shall doe an injury to the grantor to charge him twice which were inconvenient Co. l. 9. 85. a. 4. in Connys case 31 In a writ of Mesne the Paroll shall not demurr for the nonage of the plaintif because it is not reason Parol demur nonage that the Infant should be distrained for the services of the Mesne during his nonage and yet he to have no remedy until his full age but in regard his nonage shall not privilege him from the payment of the rent during his nonage the Law will also give him remedy during that time Writ of Error 32 These two Rules in Law are regularly true Co. l. 11. 41. a. 1. in Metcalfs case 1. That a writ of Error lyeth not upon an award until the principal judgement be given 2. That it lyeth not until the whole matter in the original be determined yet each of these have exceptions For as to the first in Trin. 18 H. 7. in B. R. Rot. 3. E. was indicted for the death of M. before Iustices of Peace in the County of Lincoln whereupon a Capias was awarded and thereupon also an Exigent after which E. dies before any Attainder upon which award of the Exigent his executors bring a writ of Error and it was adjudged that the writ of Error did well lie because by the award of the Exigent his goods and chattels were forfeit and of such awards which tend ad grave damnum of the party a writ of Error lyeth sic de similibus As to the second you shall find in 36 H. 6. Fieri fac 3. That in debt against divers by several praecipes if there be error in the Iudgements against one of them he shall have a writ of Error for in Originals wherein there are several Counts and Error is against one he shall have a writ of Error and the record of his Count and the pleading c. shall be severed from the original and removed into the Kings Bench and yet the Original shall still remain in the Common Place for it would be inconvenient and prejudicial in that case to stay until judgement be given upon the whole original Howbeit where there is one original and one Count he cannot have a writ of Error untill all be determined for the record cannot be in the Kings Bench and the Com. Pl. all at one time Collusion 33 It is provided by the Statute of Marlebridge cap. 6. that the Lord by Knight service shall not lose his custody by feoffment made by Collusion Co. l. 11. 77. b. 3. in Magdalen Colleges case veruntamen non licet eis hujusmodi feoffatos sine Iudicio disseisire fed brevia habeant de hujusmodi custodia sibi reddenda yet if the tenant enfeoff the Villein of the Lord upon collusion the Lord may enter and expell him and shall not be put to his action as it is held in 33 H. 6. 16. for the general words of the Act shall not enable the Villein who is disabled against his Lord by the Common Law and if the Lord should bring an action against him according to the letter of the Act he shall be thereby enfranchised which would be a prejudice to the Lord and was never intended by the Makers of that Act. Intent of the Law performed no breach 34 In every Law there are some things which when they happen Pl. Co. 18. a. 4. in Fogassaes case 19 b. 1. a man may break the words of the Law and yet not break the Law it self and such things are exempt out of the penalty of the Law albeit they are done against the letter of the Law for the breaking of the words of the Law is not the breaking of the Law so as the intent of the Law is not broken and when the words of the Law are broken for the avoiding of greater inconveniences For example it is against the Law for any man to assault bind or beat another yet in the 22. Book of Assises pl. 56. If a man be mad and out of his wits whereby he doth or is likely to do great hurt other men may assault bind and beat him too and justifie it by Law to prevent the hurt and mischief which he may do in that condition So the Statute of Marlebridge cap. 4. prohibits generally that none shall convey a distress out of one County into another yet it is adjudged in 1 H. 6. Tit. Distress 1. that if one hold land of a Manor in another County the Lord may distrain and bring the distress from the land holden of the Manor into the County where the Manor is and this is for the avoiding of a mischief inconvenience for it would be great damage to the Lord if he might not bring the distress to his Manor for the avoidance whereof the Law is not offended albeit the letter of the Law is not observed In like manner there was a Law amongst the Romans that whosoever scaled the walls in the night should be condemned to die yet in the time of warr one scaled the walls in the night to discover the approach of the Enemy and he was by the Senate not only discharged of death but besides was well rewarded for that his service to the Commonwealth for although he thereby infringed the words of the Law yet the grave Senators expounded it to be no breach of the intent of the Law because that Law was made to prevent hurt and danger and not to inhibit benefit and safety to the City So likewise in Fogassaes case the incertainty of the word being caused for the avoiding of a great inconvenience viz. the loss of many mens lives shall excuse the incertainty of the agreement with the Collector Pl. Co. 100 b. in matters of the Crown 35 In an appeal of murder against five Trial. if one Venire
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
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
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
of a clause in the Roll which were expressed in the Writ and Returne Hob. 128. Pie and Coke 82. Two Informations exhibited the same day against the same party for one and the same offence Iudgement shall be given for neither for the uncertainty Vide Hob. ibid. for an Inrolment of a Deed 129. Wilton for an Amerciament in a Leet 163. Impersonalitas non concludit nec ligat Co. Inst 1. 352. b. 1. Pl. Co. 398. a. 1. 1. An Estoppell shall not be spoken impersonally as to say ut dicitur An Estoppell or the like but it ought to be a precise affirmation of that which maketh the Estoppell neither yet doth a recitall conclude any thing because it is no direct affirmation The Earle of Leycesters case in Plowd 164. Generale nihil certi implicat Generall words 1. Co. Inst 1. 33. a. 3. Dodingtons case If the King or a common person grant omnia illa messuagia in tenura l. B. scituate in W. whereas in truth they lye in D. In this case because the grant is generall and is restrained to a certaine Towne the Patentee or Grantee shall not have any Lands out of that Towne unto which the generalty of the Grant refers Slander 2. If one saith to another that he is perjured Co. l. 4. 15. a 4. Stanhop and Bilths case or that he hath forsworn himselfe in such a Court such words of slander are actionable for by these words it appeares that he hath forsworne himselfe in a judiciall proceeding but if one say to another that he hath a Mannor and hath gotten it by swearing and forswearing these words will beare no Action because they are too generall and words which shall charge any with an Action in which damages shall be recovered ought to have convenient certainty So if one call another Villain Rogue Varlet or the like or tels him that he is forsworn such words are not actionable because they are accounted words of heate and passion and benignior sententia in verbis generalibus seu dubijs est praeferenda for Actions of slander shall not be maintained by any strained construction or argument because they are more frequent now-a-dayes then in times past Schisme 3. Co. l. 5. 58. a. 4. Spâ—cots case It is not a sufficient allegation for the Bishop who refuseth to present to a benefice to say that the Presentee is a Schismatick in generall but he ought to accuse him of some Schisme or heresie in certaine to the end the Court may consult with Divines to know whether if be Schisme or no and thereupon make Iudgement whether the originall cause of refusall be just or no. Arrests 4. When the Sheriff Bayliffs or Serjeants arrest one C. l. 6. 54. a. 4. The Countess of Rutlands case it is not sufficient for them to say in generall words I arrest you but they ought upon the arrest to shew at whose Suit out of what Court for what cause they do it and when the Processe is returnable to the end that if it be upon an Execution he may pay it and free his person from Imprisonment and if upon a meane Processe either to agree with the party or to put in bail according to Law Errors 5. In Assignment of Errors a generall Assignment is not good F. N. B. 20. h. as to say in omnibus erratum est for that expresseth no certainty but the Assignment ought to be speciall and certaine as to say in hoc erratum est c. and to shew the certainty of the things and againe to say in hoc erratum est and to shew another thing sic de singulis in which he will assigne Errors Arbitrement 6. The submission to an award betwixt A. and B. was generall Co. l. 8 98. a. 2. Baspoles case viz. of all Actions Demands c. And the Award was that A. should pay B. twenty pounds And in this case it was objected that it did not appeare that the matter of the Arbitrement was the matter onely that was betwixt them because the submission was generall of all Actions Demands c. And therefore if the Arbitrement were not made of all the matters in controversie the award was void Howbeit the award was adjudged good because when the submission is generall of all Actions Demands c. Generale nihil certi Implicat and therefore it stands well with the generalty of the words that there was but one cause depending in controversie betwixt them 165. Dolosus versatur in generalibus Co. l. 3. 80. b. 4. Twines case 1. P. being indebted to T. in foure hundred pounds A fraudulent Deed. and to C. in two hundred pounds C. brings an Action of debt P. possessed of goods to the value of three hundred pounds makes a gift to T. in part of payment by the name of all his Goods and Chattells but continues the Pessession and imployes them to his own use to prevent the execution of a Fieri facias at the Suit of C. Here one of the badges of Fraud alleadged in that Grant was for that it was generall viz. of all his Goods c. Co. l. 5. 57. b. 4. Specots case 2. Schismatiquâ— It is not a sufficient allegation for a Bishop upon refusall of a Clerk to say in generall that he is a Schismatique Heritique or the like but he ought to accuse him of some crime or Error in particular because if such generall allegation shall be admitted Bishops at this day might at their pleasure deprive all Patrons of their Presentations Vide 164. 3. for Dolosus versatur c. 166. Variance Co. Inst 1. 131. a. 4. 1. A materiall Variance between a Protection Protection and the Record doth avoid it Co. ibid. 53. a. 3. 183. a. 1. 2. If the Tenant do or suffer waste to be done in Houses Waste yet if he repaire them before any Action brought there lyeth no Action of Waste against him Howbeit he cannot in such case plead Non wast fait for by reason of the Variance between the Evidence and such a Plea the Issue wil be found against him but he must plead the speciall matter according to the truth of his case Co. ibid. 282. b. 4. 3. In Battery Not guilty is a good Issue Battery where the Defendant committed no Battery at all but regularly at the common Law if the Defendant hath cause of Iustification or excuse then can he not plead not guilty for then upon the Evidence it shall be found against him because by such a Plea he confesseth the Battery and upon the Issue cannot justifie it but he must plead the speciall matter and confesse and justifie the Battery for otherwise the Variance of the Evidence from his Plea will cause the Iury to find him guilty The like Law is in many other cases and therefore it is a learning necessary to be