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
second deliverance is a Supersedeas to the Returno habendo by which it is implyed that the Sheriff ought not to serve the Returno habendo Dyer 135. 13. 3 4 P. M. 24 In a Quare Impedit the Plaintiff entitles himselfe to the next avoydance by the grant of the right Patron to a stranger An administration in Law who made two Executors and died and for that the Executors granted the next avoidance to him Et hoc absqueta ostentione literarum without shewing the testament of the first Grantée And in this case it séems he néed not shew them because albeit the Executors never proved the testament yet their grant of the next avoydance was good for that it was an administration implyed by Law Debt for rent 25 A lease for yeares is made of an house with divers Implements rendring rent the Lessor enters and makes feoffment Dyer 212. â—7 4 Eliz. the Lessée re-enters and for rent arreare the Feoffée brings debt and adjudged mainteinable albeit there wâ—â— no privity Howbeit the regresse of the Lessée is an attornment in Lâ—â— whereupon it seemes the Law creates a privity For in this case the rent was not extinct but onely suspended untill the Termor by his regresse revived the reversion Ejectione Firmae 26 In an Ejectione Firmae of a lease of a Rectory Dyer 304. 52. 14 Eliz. the verdict passed for the Plaintiff and it was moved in arrest of Iudgement that it was not shewed that the Parson was in life Howbeit because it was averred by Implication in the Court by these words Fuit adhuc est seisitus c. the Plaintiff had judgement Quare Impedit 27 A Church was void by the taking of a second Benefice upon the Statute of 21 H. 8. 13. and lapse devolved to the Queen Dyer 360. 7. 20 Eliz. who presents A. who was admitted instituted and inducted and afterwards the Queen presents B. A. dies the Patron brings a Quare Impedit against B. and counts of the avoydance and lapse suprà and that the Queen presented A. who was admitted and instituted and that the Church is now void by the death of A. And the question was whether or no this was sufficient without saying Inducted And it séemed it was because the Plaintiff alleadged that the Church was void by the death of A. which implies Induction and then it was not revocable 28 Vide Hob. 5. Gardiner against Bellingham 8. Yardly against Ellill 43 Things by reason of another are in the same plight Possessio fratris 1 Albeit the Maxime in Law be Co. Inst pars 1 15. b. 3. Possessio fratris facit sororem esse haeredem yet if the Sister die living the Brother her issue shall inherit before the brother of the halfe blood because he personates the Mother and therefore shall succeed the brother in the inheritance Acceptance of Rent 2 Tenant in taile makes a lease for forty yeares reserving a rent Co. ibid. 46. b. 1. to commence ten years after Tenant in taile dies the issue enters and enfeoffs A. the ten yeares expire the Lessee enters if A. accepts the rent the lease is good for he shall have the fame election that the issue in taile had either to make it good or to avoid it c. Coparceners 3 If there be two Coparceners of a reversion Co. ibid. 53. b. 4. and Waste is committed and the one of them die the Aunt and the Niece shall joyne in an action of Waste Courtesie Dower Waste 4 A Tenant by the Courtesie or in Dower Co. ibid. 54. a. 1. can hold of none but of the heire and his heirs by descent and therefore if they grant over their whole estate and the Grantee doth Waste yet the heire shall have an action of Waste against them and recover the land against the Assignee Waste 5 If Tenant for life grant over his estate upon condition Co. ib. 54. a. 3. and the Grantée doth Waste and the Grantor re-entreth for the condition broken the action of Waste shall be brought against the Grantée and the place wasted recovered c. 21. Tenant at â—ill â—aron and â—me 6 If a woman make a lease at will reserving a rent Co. ibid. 55. b. 4. Co. lib. 5. 10. Hensteads case and then taketh Huâ—band this is no countermand of the lease at will but the Husband and Wife shall have an action of Debt for the rent And so is it if a lease be made to a woman at will reserving a rent and the Lessée taketh Husband this is no countermand of the lease but the Lessor may have an action of Debt and distrain them for the rent So if the Husband and Wife make a lease at will of the wives land reserving a rent and the husband die yet the lease continueth In like manner if a lease be made by two to two others at will and the one of the Lessors and of the Lessées die the lease at will is not determined in either of these cases c. Co. Inst pars 1. 58. b. 1. 7 Tenant for years Tenant by Statute Merchant Staple Elegit Domini pro tempore at will Guardian in Chivalry c. may be Lords of a customary Mannor as well as those that have fée for â—â—â—eit they be not properly seised but possessed yet are they Domini pro tempore not onely to make admittances but to grant voluntary copies of ancient Copihold lands which come into their hands by forfeiture escheat or otherwise Also admittances made by Disseisors Abators Intruders Tenant at sufferance or others that have defeasible titles stand good against them that right have because it is a lawfull act and they are compellable to do it Howbeit they cannot make voluntary grants of Copies as aforesaid to binde the Disseisées c. because they come in by wrong and have estates that may he defeated Co. ibid. 58. b. 2. 8 In some special case an estate may be granted by Copie by one Copiholds grantable by an Executor that is not Dominus pro tempore nor that hath any thing in the Mannor As if the Lord of a Mannor by his Will in writing deviseth that his Executors shall grant the customary Tenements of the Mannor according to the custome c. for the payment of his debts and dieth the Executor having nothing in the Mannor may make grants according to the custome of the Mannor Co. ibid. 59. b. 3. 9 If the Lord of the Mannor for the time being be Lessée for life Dominus pro tempore coâ—pellable to admit or for years Guardian or any that hath a particular interest or Tenant at will of a Mannor all which are accompted in Law Domini pro tempore do take a surrender into his hands and before admittance the Lessée for life dieth or the years interest or custodie do end or determine or the
intire yet it was conceived by many that it is good for the moity because the party to the Condition hath dispensed with the Condition by his acceptance of the Estate Dier 140. Pl. 43. 3 4 P. M. 80 If Lessée for years by indenture accept of another lease though it be but by parol to begin immediately A surrender Law this is a surrender in Law of his first lease because by his acceptance of the last lease he admits himselfe out of possession and that the Lessor hath lawfull power to demise him a new one Vide Dier 279. 11. Dier 144. 57. c. 3 4 P. M. 81 The Statutes of 27 E. 3. 8. and 28 E. 3. 13. of the Staple were made for the benefit and in favorem alienigenarum for trials per medietatem linguae yet if an Alien be Plaintiffe Trial per 〈◊〉 dietatem liâ—gua and omit the advantage of requesting it whereupon a general venire facias issueth out and is returned some say that thereby he hath slipt his time and that the Iudges are not bound ex officio to award any such special writ by reason of the said Statute for it appeareth not unto them by the Record quòd una pars sit alienigena and by the Common Law the trial was by all English Howbeit Treason shall not be tried per medietatem linguae Dier 158. Pl. 32. 4 5 P. M. 82 If a Guest come to a Common Inne to lodge there A Guest robbed and the Host saith that his house is already full of Guests and is not willing to admit him and the Guest saith that he will make shift amongst the other Guests and is there robbed of his goods in such Case the host shall not be charged therewith because he refused him but the Guest shall beare the losse himselfe Vide Dier 266 9. Dier 164. 57. 4 5 P. M. 83 If a man hath goods to value of 100 l. and is in Debt 20 l. and by his will gives his wife the moity of all his goods Goods bequeathed to be equally divided betwixt her and his Executors and then he makes Executors and dies in this Case if the Executors discharge the Debt to the Creditor by sale or other satisfaction out of the goods themselves the Feme shall have onely the moity of the residue viz. 40 l. but if they pay the Debt by their owne money the Feme shall have the moity of all the goods viz. to the value of 50 l. so as the Executors have assets Dier 200. 62. 3 Eliz. 84 The King demiseth a Messuage rendring Rent Surrender and afterwards the lessée takes a patent of the office of the kéeping of the said house this séemes to be a surrender in law of the lease Dier 226. 40. 6 Eliz. 85 In an Ejectione firmae against two Ejectione â—â—mae one appeares and pleads the general issue and processe is continued against the other who also appeares and pleads entry of the Plaintiffe into the land since the last continuance in abatement of the writ whereupon the Plaintiffe demurres afterwards the issue above was found for the Plaintiffe yet he shall not have judgment for by the demurrer he hath confessed the entry which abates his own writ Dier 261. 28. 9 Eliz. 86 The rasing of a lease in any place though not material by the lessée himselfe makes the lease void Rasing Hob. 119. Wood and Budden 87 In Trespass in 8 acres of Pasture in Tollard Royal Trespas the Defendant pleads that W. E. of Salisbury was seised of Cranborne Chase And so prescribed in liberty of Chase and that the said Chase did extend it selfe as well in and thorough the said 8 acres as the said Towne of Tollard Royal and â—ustifies the Trespass for use of the chase The Plaintiffe maintains his declaration and traverseth that the Chase extends not it selfe as well to the 8 Acres as to the whole Towne And this issue being found for the Plaintiffe it was moved in arrest of judgment that this issue and Verdict were faulty because if the Chase did extend to the 8 Acres onely it was enough for the Defendant and therefore the finding of the Iury that it did not extend as well to the whole Towne as to the 8 Acres did not conclude against the Defendants right in the 8 Acres which was onely in question But it was answered by the Court that there was no fault in the issue much lesse in the Verdict which was according to the issue but the fault was in the Defendants plea who takes the exception for he put in his plea more thou he néeded viz. the whole Towne which being to his owne dis-advantage and to the advantage of the Plaintiffe there was no reason for the Plaintiffe to demurre upon it but rather to admit as he did and so to put it in issue And so judgement was given for the Plaintiffe 118 When several remedies are given the party to whom the Law giveth them hath thereby also election given him to take which he will â— writ of anâ—â—y or â—lâ—â—se 1 If a man grant by his déed a Rent-charge to another Litt. §. 219. Co. Inst p. 1. 145. a. 1. and the Rent is arrere the grantée may choose whether he will sue a writ of Annuity or distraine for the Rent arrere but in this Case he shall but choose once for if he recover in a writ of Annuity he shall never after distraine or if the distrainâ— and avow in Court of Record he shall never after bring a writ of Annuity because an avowry in a Court of Record being in nature of an Action Co. ib. 145. b. 4. is a determination of his election before any judgment given Electio semel facta placitum testatum non patitur regressum Quod semel placuit in electionibus amplius displicere non potest â—ction of â—â—at or 〈◊〉 So if a Rent-charge be granted to A. and B. and their heires Co. ib. 146. a. 1 A. distraineth the Beasts of the grantor who sueth a replevin A. avoweth for himselfe and maketh conusance for B. A. dieth and B. surviveth Here B. shall not have a writ of Annuity for in that Case the Election and avowry for the Rent of A. barâ—eth B. of his election to make it an Annuity albeit he assented not to the avowry And here is a diversity to be observed betwéen the Case above-said where the grantée makes it either real or personal at his Election real when he distraines or personal when he brings his writ of Annuity and where a man may have Election to have several remedies for a thing that is méerely personal or méerely real from the beginning As if a man may have an Action of account or an Action of Debt at his pleasure and he bringeth an Action of account and appeare to it and after is non-suit yet may he have an Action
he may have an Action of Trespass against the Lord or Bailiff F.N.B. 9. g. 10 Vide sup Max. 118. R. 24. Parceners where parceners or heires in Gavel-kind may have a writ de rationabili parte or a Nuper obiit being ousted by one of their Coparceners Sée also suprà Maxime 118. Rot. 25. F.N.B. 21. c. 11 If a man be vouched and enter into Warranty and loseth Vouchee and Tenant by receit may havâ— a writ of Error he may have a writ of Error and assigne the Errors which have hapned betwixt the Demandant and the Tenant or betwixt the Demandant and the Vouchée So likewise he in reversion who prayes to be received for default of the Tenant for life or for his faint pleading here albeit he be received and plead and lose yet may he have a writ of Error and assigne the Errors that have hapned betwéen the Demandant and Tenant and the Demandant and him that so prayed to be received F.N.B. 99. b. 12 In a praecipe quod reddat against Baron and Feme Baron and Feme may have error at the Grand Cape the Baron appeares in proper person and the Feme by an Attorney who hath not sufficient warrant and thereupon judgment was given upon the default of the Feme against Baron and Feme c. yet if they were not duely summoned they may bring their writ of Error to reverse that judgment F.N.B. 135. d. 13 A man may have a Warrantia Cartae Recovery in value albeit he may vouch in the Action that is brought against him and if he recover in the Warrantia Cartae and afterwards lose in the Action brought against him in which he hath vouched him against whom he hath recovered the warranty then shall he have a writ of habere facias ad valentiam c. maintainable within a yeare after the recovery to recover in value according to his losse Plow 96. a. 1. 14 For Heriot-service the Lord may either distraine or seise Heriot-service and so he hath two several means to come by it 121 Consensus tollit Errorem When by consent no challenge 1 When in a writ of right the Iury that are to trie the méere right Litt. §. 514. Co. Inst p. 1. 294 a. 2. are once impanelled by the four Knights with the consent of both parties none of the 12 so chosen can be challenged because it is by consent of parties â—â—ebe may be â—â—rged 2 If the Parson of a Church charge the Glebe of his Church by his Déed Litt. §. 528. Co. ib. 300. a. Litt. § 648 Co. 34 3. a. Co. 301. a. 4. and the Patron having fée-simple in the Advowson and the Ordinary confirme that grant such grant shall stand in force according to the purport thereof Because done by the joynt consent of all the parties that can claime any interest in the Advowson So likewise may the Patron and Incumbent of a Chantery donative charge the land upon the same reason because the whole interest resides in them and the Ordinary is not to medle therewith Attornment 3 To avoid many inconveniencies Co. ib. 309. a. 3 Attornment was appointed by the Law which is nothing else but the consent of the particular Tenant to the reversioners grant And therefore it is said in the old Books Si Dominus attornare possit servitiam tenentis contra voluntatem tenentis tale sequeretur inconveniens quod possit eum subjugare Capitali inimico suo per quod teneretur sacramentum fidelitatis facere ei qui eum damnificare intenderet For such consent of the Tenant is conclusive and binds the Tenant to pay the purchaser the Rent and to performe all other services due for or in respect of the land 〈◊〉 facias 〈◊〉 â—â—nsent 4 In a Ejectione firmae upon the issue joyned the Plaintiffe makes suggestion to the Court that he the Sheriffe Co. l. 5. 36. b 4. in Baynehams Case Vide Dier 367 Pl. 40. 21 22 Eliz. and one of the Coroners were of the liveries of the Earle of Worcester and therefore that he had caused the Venire facias to be directed to the other Coroner and the Defendant also confessing the suggestion the venire facias was allowed accordingly and upon the trial the Verdict passed for the Plaintiffe Howbeit afterwards the Court was moved to arrest judgment because the suggestion did not containe principal challenge sed non allocatur because the venire facias was awarded ex assensu partium â—y things â—nsent 〈◊〉 5 A Common Recovery differs from the judgment and procéeding in other real actions Co. l. 5. 40. b 2 in Dormers Case for this reason amongst others because it is had by the mutual consent of the parties 39 E. 3. 1. The Demandant and Tenant consent that two of the four in a writ of right shall be Esquires albeit by the Law they ought to be all Knights and well because by consent 44 E. 3. 3. Trial of Villanage altered from natural trial by consent 7 H. 6. 7. Pleader of feofment in fée upon Condition without Déed and re-entry is good if the other part confesse the Condition 34 E. 3. Title Office de Court 12. If 12 be sworne and one departs another of the Panel by consent may be sworne and with the 11 give the Verdict 11 H. 6. 13. The Court in a Quare Impedit may by consent give longer day then is limited by the Statute of Marlebridge H. 4. The Statutes of 2 E. 3. 20 E. 3. provide that neither for the great Seal nor little Seal Iustice shall be delayed yet when the matter concernes the King onely if he command it it may be stayd F. N. Br. 21. b. 27 H. 8. A Tenure may be created at this day by consent of all notwithstanding the Statute of quia emptores terrarum 6 E. 6. Dier 78. By special consent of the Parties re-entry may be for default of payment of Rent without demand thereof 〈◊〉 by conâ— none 6 In a writ of Error to reverse a fine Co. l. 5. 45. b. Gages Case the Error assigned was for that the writ of Covenant bare Teste the 24 of April returnable 15 Paschal which in truth was 15 of April and so returne before the Teste And it was resolved that per totam Curiam that it should be amended because fines and common recoveries are but common assurances had by the mutual consent of the parties and therefore such mis-prisions may be amended Howbeit in other actions no amendment shall be in such Case So in 18 El. inter Norreys and Braybrooke A writ of Error was brought to reverse a recovery in 19 H. 8. and the Teste was a day after the return neverthelesse because it appeared to be but a mistake of the Clerke and was in the Case of a Common recovery which passeth by consent it was amended Co. l. 6.
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 〈◊〉
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
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
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
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
ancient recompence yet doubtlesse the place wasted being in the realty must néeds be the more principal And therefore upon a Recovery had by default in an Action of Waste against tenant in Dower or by the Courtesie a Quod ei deforceat lieth as well as in any other Action c. for à digniori fieri debet denominatio resolutio c. â—â—e Kings â—nnis-playes 2 If the King grant the office of the Tennis-Playes in Westminster Co. l. 8. 45. b. 4. in John Webs Case by the name of the Kings Tennis-playes in VVestm c. this grant shall be taken in a reasonable sence viz. the Tennis-playes for the Kings Houshold and not onely for the Tennis-play when the King himself playes in his Royal Person for the King is the Head of his Houshold and therefore à digniori parte the Tennis-playes for his houshold may be well called The Kings Tennis-plays c. Co. l. 10. 47. b. a. in Lampets case 3 A. Lessée for 500 years deviseth to B. for his life Executor or Legatee Election and after his decease the remainder to C and to the heires of his body and makes B. his executor and dies B. takes upon him the charge and enters In this Case when the devise is ut suprà to the executor for life and after to another c. and the executor enters generally he shall have the Lease as executor which is his first and general authority and not as Legatory without claim or demonstrartion of his election albeit the testator was not indebted to any c. Co. l. 11. 38. b. 4. in Metcalfes case 4 When a thing whereof there are divers degrées and qualitites is indefinitely mentioned in a Writ Count or other Record Principal things includâ— inferiour the principal and most worthy thing shall be intended as in 6. Eliz. Dier 236. when a penalty is inflicted by Act of Parliament to be recovered in any of the Kings Courts of Record it shall be intended of the Principal Courts at Westm 20. H. 6. 23. In accompt supposing the Defendant to be his Receiver from the feast of St. Michael this shall be intended the principal Feast of St. Michael the Archangel and not of St. Michael de Monte Tumbe so 13. H. 4. 4. 21. H. 6. 8. 37. H. 6. 29. If the father and son are of one name viz. I. S. if I. S. be named generally in a Writ Count or other Record this shall be intended of the father for he is the more worthy Likewise 10. E. 4. 11. 7. R. 2. Tit. Barr. 241. A man is bound to prove a thing or a thing is to be tried this shall be by the most principal proof and trial in law viz. by a Iury so if it be spoken of fée it shall be intended fée-simple Litt. §. 193. Co. Inst part 1 124. b. 3. or if of escuage it shall be intended of the principal Escuage viz. of Escuage uncertain Litt. fol. 21. And fée a notable case to this purpose in 5 E. 2. Resceit 165. were the Case was this In admeasurement of Pasture against a man and his wife Iudgment was given that the admeasurement should be made and after it was made in pais and returned in Banco 15. Hillar at which day the Baron made default and the Feme came in Court before the judgment rendred in the principal and the prayed to be received In this case albeit it was moved that she came too late viz. after the admeasurement awarded which is a judgment yet thereunto Herle said that it was no judgment upon the principal And where the Statute of West cap. 3. is Si uxor ante judicium venerit c. Statutum debet intelligi de principali judicio So also in 2 E. 3. Resceit 139. In an Assise of Mortd against Baron and Feme the Assise was awarded by default and the Assise remained alwayes pro defectu Juratorum then the Feme prayed to be received and it as objected that judgement was given that the Assise should be taken neverthelesse the Feme comming in before final judgment was received and with this accords 17. E. 2. ibid. 173. and 22. Ass pl. 22. After the Assise awarded the Feme was received 24. E. 3. 29. and divers other Books accord c. Co. l. 11. 39. a. 4. in Metcalfes ease 5 These words in a writ of Error Si judicium inde redditum sit No writ of Eâ—ror before judgment 〈◊〉 all c. are intended not onely de principali Judicio but also de integro Judicio viz. when all the matter within the original is determined as in 34. H. 6. 18. in Humphrey Bohuns Case in Quare impedit brought by two the one pleads to the Issue and the other confesseth the Action upon which confession Iudgment is given and he against whom the Iudgment was given sues a writ of Error to remove the Record into the Kings Bench Here Prisot tota Curia say this cannot be for the writ of Error shall rehearse all those that are parties to the original writ and then the writ saith Et si Judicium inde redditum sit tunc recordum illud habeatis c. which proves that it cannot be removed before the whole matter be determined c. 76 The Law requireth decencie and order The Homager must seek his Lord. 1 The tenant ought to séek the Lord to do him homage Co. Inst pars 1 104. b. 4. Bract. fol. 80. Britton fo 171 if the Lord he within England for this service is personal as well on the Lords side as on the tenants and in this Case the Law requireth decency and order And therefore Bracton saith Et sciendum quod ille qui homagium suum facere debet obtentu reverentiae quam debet domino suo audire debet dominum suum ubicunque inventus fuerit in regno vel alibi si commodè possit adiri non tenetur dominus quaerere suum tenentem sic debet homagium ei facere c. and there is the same Law for fealty ec Causae Matriâ—onii praelocuti 2 If a woman give lands to a man and his heirs Co. ibid. 204. a. 3. 226. a. 3. causa matrimonii praelocuti In this Case if she either marry the man or the man refuse to marry her she shall have the land again to her and to her heirs but on the other side if a man give land to a woman and to her heirs causa matrimonii praelocuti though marry her or the woman refuse he shall not have the lands again for it stands not with the modesty of women in this kinde to ask advice of learned Councel as the man may and ought c. And for the same reason a woman may aver the cause although it be not contained in the Déed yea albeit the feofment be made without Déed Order in pleading 3 The order
Case if an Infant Tenant make Feofment and die without Heire the Feofment is un-avoidable here is the same Law of Coverture and non sanae memoriae c. Co. l. 6. 76. b. 4. in Sr. Geo. Cursons Case 19 It is said that one of the Chiefest reasons 32 34 3â— H. 8. of Wilâ— that moved the Parliament in 32 H. 8. and in 34 35 H. 8. to give libertie to dispose of the two third parts of Lands by will or otherwise for a Competent livelyhood of Wives and Children or for payment of Debts was this Because these Cases were ordinary usual and necessary And for that every man is in his life time bound by the Law of God of Nature and of Nations to make provision for his Wife and Children and also for the payment of his Debts c. Co. ibid. 77. a. 2. 20 There is a neerer Relation betwéen Father and Sonne Father neeâ— then Grandfather then betwéen Grand-father and Grand-child And therefore if there be Grand-father Father and divers Sonnes and the Grand-father in the life time of the Father conveys his Land to some of the Sonnes this is out of the Act of 32 H. 8. of Wils For the Father ought to have the immediate care of his Sonnes and Issues But if the Father be dead then the care of them belongs to the Grand-father and then if he convey any of his Lands to any of them that is within the said Statute Co. Inst pt 1. 123. b. 2. Litt. §. 189. 21 It is regularly true A Villein may sue his Lord. that the Villain cannot bring any Action against his Lord yet he may have against his Lord an appeale of the death of his Father or of any other of his Ancestors whose heire he is c. because the villain is both by duty and in nature bound to pursue such an Action Co. lib. 3. 12. b. 2. St. Will. Herberts Case 22 If a man seised of three Acres of Land No contribution to the heire acknowledgeth a recognisance or Statute c. And enfeoffes A. of one Acre and B. of another and the third descends to his heire in this Case if execution be sued onely against the heire he shall not have contribution For he comes in the place of his Ancestor and sits in his State Haeres enim est alter ipse filius est pars patris And as it is said Mortuus est pater quasi non mortuus quia reliquit similem sibi Co. Inst p 1. 174. a. 4. 23 If one Copercener maketh a Feoffment in Fée and after the Feoffée is impleaded and voucheth the Feoffor The heire apparent shall derraigne the warrantie from upon feofâ—â—â— for the mother she may have ayde of her Coperceuer to deraigne a Warrantie per amount but never to recover per rata against her by force of the Warrantie in Law upon the partition For as Littleton saith by her alienation she hath dismissed her selfe to have any part of the Land as parcener but if there be two Coperceners and they make partition and the one of them enfeoffs her Sonne and heire apparant and dieth and after the Sonne is impleaded Here albeit he be in by the Feoffment of his Mother yet shall he pray in ayde of the other Copercener to have the Warrantie per amount and to recover per rata not onely because the Warrantie betwixt his Mother and him is by Law annulled but likewise for that he is alter idem with his Mother Dier 2. b. 1. 19 H. 8. 24 A fine levied by Tenant in taile after the Statute of 4 H. 7. 24. Issue in taile barred by 〈◊〉 fine and before the Statute of 32 H. 8. 36. did bind the issue in taile and his title was not preserved by any of the savings in 4 H. 7. because albeit he claimed per formam doni yet claiming thorough his Father the Land came to him in the nature of a descent Dier 128. b. 61 2 3. P. M. 25 If any of the Kings subjects be beyond Sea and is commanded by the King to return home and in contempt refuseth so to do Allegiance all his Goods and Chattels Lands and Tenements shall be seised for the use of the King And this is by reason of the faith and allegiance which he oweth to the King by the Law of Nature And this was the Earle of Richmonds Case in 19 E. 2. in Scaccario The like 26 If a Bastard were borne at Turney Dier 224. 19. 5. Eliz. when it was under the obedience of H. 8. he was a denizen by the Law of Nature So it is also of the issue of Aliens born within this Realme 27 Vide Hob. Rep. pag. 1. The Earle of Clanrichards Case 10. Grisley against Lother Formedon 28 In a cessavit brought by the Husband and Wife Hob. 1. The E. of Clanrichards Case or in a writ of Escheat a consimili casu or Action or Wast because there is a vested in them already either a Signiory or reversion actually and therefore the Land holden or the present Estate to return is come in possession therefore in these Cases Reverter is to be made to them both and so are the Bookes in 3 H. 6. 2. 20 E. 3. Briefe 372. Register 238. F. N. B. â—10 Also in a Formedon in Reverter wherein nothing is already revested but the right onely returnes there the right may be laid to return either to the Wife alone or to the Husband and Wife as Douby resolves it 33 H. 6. 54. See also 18 H. 8. 20. 5 H. 3. 13. 38 E. 3. 16. and 18 E. 3. 3. where it was sometimes to the Wife sometimes to the Husband and Wife But in a Formedon in descender upon a descent to the Wife there the descent must be made in the writ to the Wife alone because the descent followeth the bloud and to that the Husband is a stranger and so are the Bookes in 19 H. 6. 46. and 53 H. 6. 10. where a Formedon in descender was brought by two Husbands and their Wives and made the descent in bloud to the Wives onely and yet concluded that the right ought to descend to the Husbands and Wives And exception was taken to it and ordered by the Court that it should be amended and the descent made onely to the Wives Assumpsit 29 In an Action upon an Assumpsit Hob. 10. Grisley and Lother that A. would give to B. 100 l. if B. would give her consent that A. might marry her Daughter and it was moved in arrest of judgement that the action would not lie the consideration being to travel or charge but onely a bare consent howbeit it was held by three Iustices against one that the consideration was good because the Mother hath by the Law of Nature a special stroke to incline the Daughters mind either one way or other and the desire of
intailed within the said Statute for that they be not issuing out of Tenements nor annexed to nor exercisable within or concerning Lands or Tenements of Fréehold or Inheritance but concerning Chattels and savour nothing of the realty So it is likewise if I by my Déed for me and my Heires grant an Annuity to a man and the Heires of his body because this onely chargeth my Person and concerneth no Land nor laboureth of the Realty Baron Feme Chattels real and personal 5 If a Feme sole be possessed of an Estate for years Co. Inst p. 1. 351. 185. b. 3. 299. b. 4. and 46. b. 2. or by Statute Merchant Statute Staple or Elegit or of a wardship or other chattels real and taketh Baron the Baron is thereof possessed in her right onely And albeit during the Coverture he may dispose of such an Estate by Grant Demise c. or upon Out-lawry Attainder c. may forfeit it or may subject it to be sold by the Sheriff upon an execution for his Debt and in Case he survive the Feme shall then have a clear interest in it yet he cannot dispose of such an Estate by Will and if she survive him no disposition or forfeiture being thereof made as aforesaid she shall have it and not his executors or administrators because these Estates and Interests savour of the realty and therefore the Feme being thereof once possest her interest cannot be by the Inter-marriage so easily removed as if they were Chattels personal There is the same Law also of Chattels real which being of a mixt nature viz. partly in possession and partly in action happen during the Coverture As if the husband be seised of a rent-service charge or seck in the right of his wife the rent becomes due during the Coverture the wife dieth the husband shall have the arrerages but if the wife survive the husband she shall have them and not the executors of the husband So it is also of an Advowson if the Church become void during the Coverture he may have a Quare Impedit in his own name as some hold but his wife shall have it if she survive him and the husband if he survive her Et sic de similibus But as concerning Chattels personal the inter-marriage is an absolute gift of such goods which she hath in possession and in her own right whether the husband survive the wife or no so that he may at his pleasure dispose of them either by act execute in his life or by will and albeit he make no such disposition of them and die living the wife yet his Executors or Administrators shall have them and not the wife c. Howbeit if they be in action as Debts by Obligation c. the husband shall not have them unlesse recovered during the Coverture neither yet shall he have such goods as the wife hath in auter droit as Executrix or Administratrix c Vide R. 55. ex 129. â—enants in â—â—mmon â—hattels 6 If one Tenant in Common of Chattels take any Chattels real Co. ib. 200. a. z which are not of an intire nature from his companion the other may have his remedy to recover them by Action but if one of them take all the personal goods from the other he hath no remedy by Action or otherwise save onely to take them again by Catch-pole Law And so it is also of intire Chattels real as a Ship Horse Hawk or the like but that is in respect of the Intirenesse and inseverablenesse of their nature c. for which sée R. 70. ex 25. â—reehold or â—â—heritance 〈◊〉 reassumed â—e collateral â—â—sfaction 7 It is said in our Books that Accord with satisfaction is a good plea in personal actions where damages onely are to be recovered Co. l. 4. 1. a. 4 in Vernons case but not in real Actions For a right or title to any Estate of Inheritance or Fréehold cannot be barred by acceptance of any collateral satisfaction or recompence As if A. disseise B. tenant for life or in Fée of the Mannor of Dale after A. gives the Mannor of Sale to B. and his Heires in full satisfaction of all his rights and actions which he hath in or for the Mannor of Dale and B. accepts thereof Neverthelesse B. may enter into the Mannor of Dale or recover it in any real action it is otherwise of things in the personalty Dier 2. 8. 6 H. 8. 8 In real Actions to plead Alien Actions that the Plaintiff is an Alien is a good bar because an Alien can have no land within the Realm but such a Plea in personal Actions is no bar because an Alien may bring personal Actions unlesse he be an Alien Enemy Co. l. 6. 7. a. in Ferrers Case 9 Betwixt real and personal Actions there is a diversity Bar in personal actions binde not so in real for in personal Actions as in Debt Account c. the bar is perpetual because in such Cases a man shall not have an Action of a higher nature But in a real Action if the Demandant be barred by judgment upon Verdict Demurrer Confession c. yet he may have an Action of a higher nature and shall try the same right again because it concerns his Frank-tenement and Inheritance So if a man be barred in Assise of Novel disseisin yet upon shewing a descent or other special matter he may have an Assise of Mortdancestor Aiel Besaiel c. Vide infrà 1. 78 14. Litt. §. 146. Co. Inst p. 1. 103. a. 2. 10 An Abbot Prior Bishop Successor of an Abbot c. bouâ—d or other sole Corporation cannot dis-claim or devest any thing of Fée which is vested in their houses or other spiritual Corporations to the prejudice of the Successor Howbeit if an Abbot or Bishop c. acknowledge the Action in a writ of Annuity or in an action of Debt upon an Obligation Statute or Recognisance this shall binde the Successor so as he shall not prevent execution thereupon albeit they were granted and made without the consent of the Covent Chapter c. because these things being in the personalty the recovery thereof cannot be falsified in an higher action Et res judicata pro veritate accipitur Vide suprà M. 1. cap. 4. Co. ib. 125. b. 3 11 In a Plea real against divers tenants Pleas real and personal if one tenant plead in barre to parcel or which extendeth onely to him that pleadeth it and the other pleads a Plea which goeth to the whole viz. to both the tenants and which indéed would make an end of the business if it were tried yet those several Pleas shall have several trials as if a praecipe be brought by one as heir to his father against two and one of them pleads a Plea which extendeth but to himself and the other pleads a Plea which extends to both as Bastardie in the Demandant and it
and after I confirm the Estate of the Baron and Feme to have and to hold for their two lives In this Case the Baron holds not joyntly with the Feme but onely in her right during her life and shall have it for life if he survive her But if I let to a Feme sole Land for term of years who takes Baron and I confirm the Estate of the Baron and Feme to have and to hold for their lives In this Case they have a joynt Estate in the Frank-tenement of the land because the Feme had not Frank-tenement before but onely a Chattel whereof the Baron hath such a possession in her right as was capable of a confirmation or a release and the confirmation in this Case to the husband and wife for their lives maketh them Ioynt-tenants for life because this Chattel of the Feme covert may be drowned So note a diversity betwéen a Lease for life and a lease for years made to a Feme covert for her Estate of Fréehold cannot be altered by the confirmation made to her husband and her as the term for years may whereof her husband may make disposition at his pleasure Co. ib. 275. b. 4. 11 If Lessée for years be ousted and he in the Reversion disseised Release to the Disseisor and the Lessée release to the Disseisor the Disseisée may enter for the term for years is extinct and determined But otherwise it is in case of a Lessée for life for in that Case the Disseisor hath a Fréehold whereupon the release of tenant for life may inure but the Disseisor hath no term for years whereupon the release of the Lessée for years may inure Co. ib. 378. â— 4 12 A man letteth lands for life upon Condition to have Fée A Lease for years not capable of a warranty and warranteth the land in forma praedicta afterwards the Lessée performeth the Condition whereby the Lessée hath Fée In this Case the warranty shall extend and increase according to the State for a warranty being a Covenant real executory may extend to an Estate in futuro having an Estate whereupon it may work in the beginning but if a man grant a Seigniory for years upon condition to have fée with a warranty in forma praedicta and after the Condition is performed this shall not extend to the fée because the first Estate was but for years which was not capable of a warranty And so it is if a man make a lease for years the remainder in Fée and warrant the land in forma praedicta he in the remainder cannot take benefit of the warrantie because he is not party to the Déed and immediately he cannot take if he were party to the Déed because he is named after the habendum and the Estate for years is not capable of a warranty c. Waste 13 A Lease for life the remainder for years Finch 29. the remainder over in Fée an action of waste lieth for him in the remainder in Fée against the Lessée for life sor the mean Estate for yeares is not regarded Otherwise it were if the mean Estate for years were an Estate for life c. Joynt-tenants may prejudice one another 14 One Ioynt-tenant cannot prejudice his Companion Co. l. 2. 68. a. 3. in Tookers ca. as to any matter that concerns the Inheritance or Frank-tenement But as to the profits of the Frank-tenement they may prejudice one another c. per Popham Right of Action 15 There is a diversity betwéen Inheritance and Chattels Co. l 3. 3. a. 1 in the Marquesse of Winchesters Case for the right of action concerning Inheritances is not forfeited by Attainder c. but Obligations Statutes Recognisances c. and such other things in action are forfeited by Attainder or Outlawry Real and personal actions 16 The Law hath provided greater safety and remedy for matters of Frank-tenement and Inheritance then for Debts and Chattels Co. l. 6. 7. a. 1 in Ferrers Case for there once barred and ever barred for in personal actions as in Debt Accompt c. the bar is perpetual because the Plaintiff in that Case cannot have an Action of an higher nature but his onely remedy in such Case is by Errour or Attaint Howbeit if the Demandant be barred in a real Action by judgement upon Verdict Demurrer Confession c. yet he may have an Action of higher nature and try the same right again because it concernes the Frank-tenement and Inheritance as if one be barred in an Assise de novel disseisin yet he may have upon shewing a descent or other special matter an Assise of Mortdancestor Aiel Besaiel Entry sur disseisin to his Ancestor c. So if a man be barred in a Formedon in descender he may have a Formedon in reverter or remainder for that is an Action of an higher nature because in it the Fée-simple is to be recovered according to the opinion in Robinsons Case in the 5. Report fol. 33. â—ands not â—hargeable in â—â—cution 17 At the Common Law before the Statute of VVest 2. cap. 18. Co. l. 3. 11. b. 4 in Sir Wil. Herberts case which gave an Elegit against the moity of the Debtors Lands upon a Recognisance or Iudgment sued lands were not chargeable in execution but onely Goods and Chattels or else grain or other present profit increasing upon the land viz. Goods and Chattels by Fieri facias and such present profit by Levari facias c. Vide suprà Ru. 92. ex 16. Howbeit in the Kings Case by reason of his Prerogative and in Case of an Heir in by Descent and chargeable by the act of his Ancestor c. because otherwise in such Case the Creditor was without remedy c. lands were chargeable in execution c. 〈◊〉 by a terâ—â—r not good 18 A man deviseth a rent for life out of a Mannor Co l. 6. 58 b. 4 in Bredimans Case and deviseth the Mannor for years the termor enters and payes the rent after the term the Devisée brings an Assise for the rent against the Terre-tenant And in this Case seisin by the hands of the Termor was adjudged no sufficient seisin whereupon to ground the Assise but the seisin ought to have béen given by the hands of the Terre-tenant viz. of one the tenant of the Frank-tenement c. Vide suprà Ru. 86. ex 21. It had béen otherwise if the termor for years had béen Lessée for life for then the seisin had béen given by the hands of the Terre-tenant viz. of one that had Frank-tenement as may be collected out of Bredimans Case ubi in margine viz. fol. 58. b. â—â—rantee of a â—â—version â—â—dition 19 If a man make a Lease for years upon condition Co. l. 8. 95. b. 3 in Matt. Mannings Case Co. l. 10. 48. b. 3 in Lampets ca. that if the Lessée doth not such an act that the Lease
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 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
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
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
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
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
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
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
Hob. 78. Saint-Iohn Saint-Iohn 22 In debt by Saint-John against Saint-John Bailiff of Stockbridge upon the Statute of 23 H. 6. 15. for not returning him Burgess of that Town to the then intended Parliament And where the Statute saith that the Sherif shall send his precept to the Maior and if there be no Maior then to the Bailif the plaintif declared that the Sherif had made his precept to the Bailif without averring that there was no Maior And after a verdict for the plaintif this was moved in arrest of Iudgement But the Court was of opinion clearly that it shall be presumed there was no Maior except it be shewed and if there were it ought to be shewed on the other part 191 Ad ea quae frequentius accidunt Jura adaptantur Co. Inst part l. 238. a. 2. 1 It is said Descent a Toll entry that Abators and Intruders are out of the Statute of 32 H. 8. cap. 33. which gives the disseisee five years to prevent a descent c. because that Statute is penal and extends only to a disseisor who is only named in it And the reason why he only was therein named and not the Abator or Intrudor was because disseisin was the most common mischief Et ad ea quae frequentius accidunt c. Co. ibid. 295. a. 1. 2 In times past wager of Law was accounted a good trial in an action of debt without specialty because the Law presumed Wager of Law that no man would forswear himself for any worldly thing But of later times mens Consciences are grown so large especially in this case passing with impunity that the plaintif now dare not many times adventure the debt upon the defendants oath by bringing an action of debt but rather chuseth to bring an action upon the case upon his promise wherein he cannot wage his Law Co. l. 5. 83. b. in the case of Market overt Popham 84. 11. 3 The proper and most usual place for selling plate in London or any other Market overt is a Goldsmiths shop Market overt because such commodities use to be sold there and not in a Scriveners shop or the like And therefore if stoln Plate be sold in a Scriveners shop although it be openly and upon the market day it shall not alter the property but the party shall have restitution It is otherwise if it be sold openly in a Goldsmiths Shop c. Vide Max. 186. pl. 32. 134. 4. Co. l. 5. 127. b. 1. Palmers case 4 Guardian in Knight-service shall have the single value of the mariage without tender Valore maritagii And yet the words of the writ de valore maritagii are Quare cum Maritagium praed B. ad ipsum A. pertineat eo quod praed B. terram suam de eo tenuit per servitium militare idem A. praed B. dum fuit infra aetatem c. compotens maritagium absque disparagatione c. saepius obtulerit c. But the reason thereof is for that writs are most commonly framed according to that which doth most usually fall out alwayes in this case supposing that a tender is made because for the most part it so happens to be And therefore whereas the Rule is Ad ea quae frequentius accidunt Iura adaptantur it may in like manner be said Ad ea quae frequentius accidunt rescripta sive brevia adaptantur And in other cases a special case shall have an usual writ and a special Count. Co. l. 6 45. l. 3 in Higgins case 5 In 17 E. 3. 24. In debt upon an obligation of 20 l. Iudgement was obtained before the Maior of Newcastle Obligation not to be cancelled after Judgement and execution had thereupon and because the obligation was not cancelled which after judgment had was the usual course in those dayes the plaintif had judgement in another action upon the same obligation and the defendant upon pleading the first Iudgement could not be relieved because it was imputed to his folly that he did not procure the obligation to be cancelled upon the first Iudgement which was the ordinary usage of the Iudges at and about that time because men in antient time after a judgement obtained were apt to be quiet and to rest contented therewith without bringing writs of Error or Attaints which then were very rare especially writs of Error But now of later time men growing more contentious and not satisfied with any trial or judgement but being apt upon every such trial or judgement to bring a writ of Error or Attaint the Iudges have thought it dangerous to order the deed to be cancelled either where the plaintif recovers or where he is barred by judgement for in both cases the judgement may be reversed by Error or Attaint And therefore the reason or cause of the Iudgement in 17 E. 3. being now changed there is now no question but at this day judgement and execution upon an obligation is a good barr in a new action thereupon albeit the obligation be not cancelled Statute of wills 6 If there be Grandfather Father and divers Sons Co. l. 6. 77. a. 2. in Sir Geo. Cursons case and the Grandfather in the life of the Father convey his lands to any of the Sons this is out of the Statute of 32 H. 8. 1. of Wills for the words of the Statute are for the advancement of his wife preferment of his children c. and therefore because the Fathers children are none of the Grandfathers children such a conveyance is out of that Statute But the makers of that Act framed it according to that which was most vulgar and usual and that was for the father to dispose to his children and Ad ea quae frequentius accidunt c. Presentation 7 If a man present to an Advowson and after the Parson resigns F.N.B. 31. h. or is deposed and the Patron presents again and is disturbed he shall have an Assise of Darrein presentment and the form of the writ shall be Quis Advocatus tempore pacis praesentavit ultimam personam quae mortua est ad ecclesiam c. Albeit he resigned and is in full life Also the form of the writ is to suppose that the defendant did deforce him out of the Advowson and yet by his Count he shall declare that he or his ancestor presented last to the Advowson by which he supposeth that he is in possession of the Advowson and yet this good for ad ea quae frequentius accidunt c. Nomination 8 If a man hath the nomination to an Advowson F.N.B. 33. b. c. and another hath the presentation if he name his Clerk and he that ought to present present another Clerk he that had the nomination shall have a Quare impedit and the writ shall be Quod permittat ipsum praesentare c. And in his Count he shall declare the special matter and
drawes right of property 225. followes the possession 227. may be forfeited 237. preferred before the possession 372. where extinct Et e contr 440. cannot incorporate with wrong 567. favourably expounded 502. cannot dye 504. Present or future may be barred 485 Robbery 110 Return The Court cannot proceed upon a-False returne 272 S. SAles not good upon the Lords day 8. by the Sheriff 707 Scandal magnatum 87 Seisin 668. payment of Rent by a Term or is no seisin 58. 287. 363. 548. 593. Presentment of the grantee a good seisin for the grantor in a Quare Impedit 191. not traversable 287. of a Rent by the Feoffor 421 Scire facias 160 613 690. When shall issue out when not followes the Record 229 Seales 743 Seizure of a villaine 162 Seigniory 263. suspended 361. 443. Sheriffs 244. must take notice who are in Execution 420. Where they may break up a house to deliver Execution or Seisin 678 Sewers 685 49 Socage lands deviseable 35 Subsidies uncertain made certain by circumstances 407 Surrenders 235 603. By Attorney 152 after a grant of a rent 164 intire 260 in Law 472 447 450 Suspence Seigniory suspended not grantable 56 personall things once suspended ever gone 154 Statutes what binde the King 13. subsequent expounded by equity of former 23 220 Interpretation of them 24 142 Of 32 H. 8. of pretenced rights 326 388 That abridge liberty how taken 355 taken by intendment 501 Stewardship 300 Services Intire 262 263 Divine 285 Summons and severance 337 574 T. TAil what things may be intailed 358 Void for incertainty 405 docked by recovery value 414 Tales 507 Terme not extinct by purchase of the Fee 335 not drowned 339 Tempus sem how to be accounted 12 Tender Of marriage 91 687 of amends 259 of mony to a stranger 200 Upon a mortgage 375 Excused 570. of Livery by the heire 610. Tender and refusall 470. â—or the Redemption of a mortgage by the Guardian 497. For an ideot 497. by a straner where saves a forfeiture 485. of the demy marke 677 Of the debt in Court 689 Tenant by the curtesie 41 581 Tenant in tail 313 550 cannot grant any remainder of his estate 57 barred by a common Recovery and how not 130 131 Tenant in Frankalmoigne 149. cannot disclaime 104 is not to be distrained for Arreares 106 Tenant Right 214 Tenants in common 244. shall joyn in Assise 545 where joyne where sever in actions 611 Tenant in tail after possibility c. 450 Tenant for anothers life 578 Tenant at sufferance 453 Tenures In capite 61. 142. In socage 97 136. not extinct by purchase of part of the Land 507 Treason 110 Treasure none can dispose of the Kings treasure without licence 303 304 Trade what it is 139 Traverse not without an office found 72. the place not to be traversed in personall actions 382. Traverse upon a traverse 618 Trespass 268. for oppression in the Common 387 Trees 231 Tryall in a forrain county 224 of villainage 351. of a Peer in Ireland 497. Per medietatem lingue 472 Trover brought by a Lunatick 427 Trusts where they shal go to executors 187 V. VAriance betweene the originall and judgment 637. in circumstances no prejudice 384 Between the writ and the count 636 637 Valore Maritagii 716 Verdict intire 261 in criminall causes not privy 353 where at large 604 708. incertain is insufficient 624. 631. 632. 648. where voided by acts done by the Jurors 697 Et e contr Villain 37 292 337 765 764. may sue his Lord 282 by Confession 419 may give his goods before seisure 666 View of the vouchee 92 Voyage royall 61 Voucher 92 449 of the heir and the younger Son 110 475. Of the assignee 169 in dower 194 Vsurpation 310 318 upon an Infant 444. Vnity of possession doth not extinguish partition 150 Vses 349. Revoked 72 of a recovery after it is suffered declared 109 regarded as E states 202 superstitious draw good uses 231 good and charitable to be preferred 740 741 752. introduced inconveniences 748 Declaration of them 771 good and superstitious how they shall operate 628. W. WAger of Law 429. 644. 697. 714. 716 419. Not by a prisoner for meat and drink 669. Where not in account and where in debt upon a Bond 51. Not by an Infant 94 Wardships 700. 713. the husband after the death of his wife guardian shall loose it 37. The second ward shall not sue Livery 37. Revived 40. No Wardship because the tenure begins in the Sons 61. of an use 111. Where though not dying seised 142. Not during the Fathers life 277 278 Way 377 Warrants 366 Waiver of goods To whom the goods belong 501. 502 Warranty 238. 314. 326. No bar e contra 20 256 340. Collaterall and Lineall 39. 163. 283 402. 648. Which commenceth by disseisin 45. 63. 144. 187. 250. 564. 617. 619. The Heire not bound to warranty where the Ancestor was not 57. Makes a discontinuance 99. Extinct 118. May increase upon an Estate granted 119 Determined 124. What words imply it 124. void 124. Without the word Heires 187. Implyed in Exchange and partition 191. For life only 206. Followes the Land 250. Intire 256. 262. Deraignment of it 535. Annexed to incorporeall things 411. With Assets bindes the King 411. Expresse and implyed 447. By Husband and wife 555. Continues after Partition 577 Warrantia Charta 157. 469. 719. Not after a Recovery in value 410 Waste 37. 141. 143. 334. 574 465 700. 728. 729. 750 751. 582. By him in the remainder maintainable where 39. Et e contra In Cole mines not opened 67. 573. Against Tenant in Dower and by the curtesie 188. Against the Guardian 575. Successor not charged with it 451. Women Not sworne in Leets 318. Withernam 560 Wills Void 74 Of an Infant when 85. Repugnant void 243. Revoked by marriage 465 Witnesses 453 Writings in parchment or in paper 393 Words In Grants needlesse 245. Of inferiour Ranck exclude them of higher 270. Construed in the mildeâ— sense 704. Generall Imply no certainty 635 636 Writs Of Customes and services 18 317. not to be changed without Act of Parliamen 68. De secunda superoneratione 273. Of Right oâ— Advowson 294. Of Mesne 371. 380. 445. Of Entry upon an Advowson 421. Oâ— Disceit 560. To the Bishop 112. Adversaâ—ia amicabilia and their difference 482 Where to be brought 496 Wreck 489. FINIS