so penned Vide 7 H. 7. 14. 39 E. 3. 12. yet if they be entred in the Parliament Roll and alwayes allowed for Acts of Parliament it shall be intended that they were by authority of Parliament although no mention be therein made of Lords or Commons Writs not to be changed 7 Writs formed and of course viz. Originals Co. l. 8 48. a. 4. in Iehu Webos case were at first authorised by Parliament and without Parliament they cannot be altered or changed but shall still remain the same albeit they may in some cases seem incongruous as the original writ De Assisa ultimae praesentationis was formed in these words Quis Advocatus tempore pacis praesentavit ultimam personam quae mortua est This form shall hold and cannot be changed albeit the Incumbent resigned as appears in 18 E. 2. Tit. Ass de dar pres 20. F. N. B. 31. h. So likewise the writ of Warrantia Cartae is formed thus Quod juste c. warrantizet B. unum Messuagium in D. c. unde cartam habet c. And yet if he be held to warranty by force of an exchange or by Homage ancestrel the form of the writ shall not be altered Vide 9 E. 4. 49. 21 H. 6 â— F. N. B. 134. and many other cases may be put upon this ground Arbitrement 8 A. being bound to stand to the award of B. countermands the authority of the arbitrator In this case the bond is forfeit Co. l. 8. 82. b. 4. in Vinyors case because the Condition is that A. the obligor should stand to and abide c. the rule order c. which form was invented by prudent antiquity to the end he should not revoke the submission And it is good alwayes to pursue in such cases the antient forms and presidents which are full of knowledge and wisdom Co. l. 9. 11. b. 3. in Dowmans case 9 The defendant in an Assise makes title by a recovery suffered by A. to certain uses the plaintif confesseth the recovery Declaration subsequent but withall saith it was to the use of A. and his heirs in fée and traverseth that it was to the uses mentioned by the defendant The Iury find that the recovery was suffered as the defendant had alleged and that by Indenture subsequent the intent of the parties to the recovery was declared to be as the defendant had alleged In this case such subsequent declaration was adjudged good for that no mischief or inconvenience could ensue upon that construction and if it should be otherwise construed great inconvenience might follow thereupon because the inheritances of many Subjects in England depend upon such declarations subsequent or at least upon Indentures which in truth were delivered after the recoveries suffered or the Fines levied and this resolution concurrs with the common opinion of men learned in the Law and Common experience and alterations of such opinions as concern assurances of inheritances would prove dangerous and be of ill consequence in the Commonwealth Co. l. 10. 40. a. 3. in Mary P rtingtons case 10 At this day to question the validity of a Common recovery to barr an estate tail albeit the land recovered in value be not had Common Recovery or the tenant in tail after judgement and before execution die is as great an absurdity as to deny Common and known Principles and if any should be so impudent as to dispute against that or any other of the legal Pillars of the Common assurances of the lands and inheritances of the Subjects he ought not to be heard And therefore in a cause depending before the Lords at a Parliament in Qu. Eliz. time One Hoord an Vtter-barrister of Councel with one Vernon who was barred by a Common Recovery rashly and with great malevolence inveighing against Common Recoveries not knowing the reason and foundation of them was with great gravity and some acrimony reproved by Sir James Dyer then Chief Iustice of the Common pleas who said that he was not worthy to be of the profession of the Law that durst speak against Common Recoveries which were the very sinews of the assurances of Inheritances and founded upon great reason and authority Semper in fictione Iuris subsistit aequitas Et contra principia negantem non est disputandum Co. l. 11. 35 a. 3. Alexander Powlters case 11 In Alexander Powlters case in the 11 Rep. it being doubted upon the penning of the several Statutes of 23 H. 8. 1. 25 H. 8. 3. 1 E. 6. 12. 5 6 E. 6. 10. 4 5. P. M. 4. whether or no one guilty of House-burning should be allowed his Clergy House-burning The Iudges had conference with divers Clerks of Assise and other antient Clerks to the end they might be satisfied of the usual course therein And for that upon view of many Records it appeared that the Principals and Accessories before had béen alwayes outed of their Clergy in case of House-burning except one in Essex before Sir John Puckering and his Companion Iustices there the said Powlter had judgement to be hanged for setting an house in Newmarket on fire whereby most of the Town was burnt and therefore was ordered to be hanged in Chains c. Co. l. 11. 83. a. 2. Lâ—wâ—s Bowles case 12 B. covenants to stand seised of the Manor of D. to the use of himself and his wife for life without impeachment of waste Waste the remainder to his 1. 2. and 3. sons successively in tail the remainder to the heirs of the bodies of B. and his wife with other remainders over they have issue a son then B. dies the wife enters the son dies a péece of a Barn parcel of the premisses is blown down by wind the wife causeth 30 loads of timber blown down to be carried from off the Manor for which he in the remainder brings an action of Trover and Conversion And upon the argument of this cause two questions were moved 1. Whether or no the wife shall be tenant in tail after possibility or that she shall have the privilege of tenant in tail after possibility viz. to make waste 2 Admitting she shall not have the privilege c. whether the clause without impeachment of waste gives to her propeâ—â—y in the timber so thrown down by the wind whereupon it was resolved that she had a property in the timber and might convert it to her own use for that as was said it was the continual and constant opinion of former times that these words without impeachment of waste do give power to the lessée to make waste to his own use and it would be dangerous now to recede therefrom And as it was said by the Iudges in 38 E. 3. 1. So the present Iudges did say in this case We will not change the Law which hath alwayes been used Also it is well said in 2 H. 4. 10. It is better that there should
by such defeasible title admit any of the Tenants upon surrender made to the use of another or gives admittance to the heire upon descent such admittances are good because grounded upon the custome of the Mannor and therefore such acts are lawfull and quodam modo judicial which he may be forced to do in a Court of Equity and for that cause such admittances will binde those that right have c. Copihold â—ce leased â—e custome is â—estroyed 41 If a Copihold estate be forfeit or escheat Co. l. 4. 3. 1. a. 3. Frenches case or otherwise fall into the Lords hands if the Lord make a lease for years thereof or for life or any other estate by déed or without déed or suffer if before any new grant thereof to be extended upon a Statute recognizance or the like or if the Feme of the Lord have it assigned unto her in dower c. In all these cases and the like the custome which supports the Copihold tenure being destroyed the tenure it selfe is also destroyed so that it shall never after be granted by Copie or holden by Copie of Court Roll Howbeit after it is so forfeited or escheated as aforesaid the Lord may kéep it as long as he please in his hands before he makes any voluntary grant of it and yet the Custome shall be preserved because it is all that while demised or demisable and so it ought to be by the Custome c. â—ease void â—on a void â—nsideration 42 The Kings patentée for years assigns divers parcells of the land to other severall persons still reserving to himselfe part thereof Co. l. 5. 94. a. 1. Barwicks case and takes another lease in reversion for 21 years the principall consideration whereof was the surrender of the old lease whereof he had assigned divers parcels to others as aforesaid And after 3 years of the last lease were expired in consideration of the surrender of the same last lease the King grants him another of all the same land for thrée lives In this case the last grant of the lease for lives was adjudged void because when the Patentee took the second lease the consideration thereof was the surrender of the first lease which could not be any good consideration for that he had before assigned divers parcels of the land to others and then the King was deceived in his Grant and by consequent the second lease was void Now therefore the surrender of the second lease which was void being the consideration of granting the last lease for lives that last lease being granted upon a consideration which was not valuable must néeds be void also â—meys acâ—ats 43 If a Writ abate for Non-tenure of all Co. l. 6. 10. a. 4. Spencers case the Demandant shall not have a new writ by Journeys accounts because the first writ was taken out without cause or ground 33 H. 6. but a praecipe of a Mannor being abated for non-tenure of parcell the Demandant shall have a Writ by Journeyes accounts because the Tenant is Tenant of the residue for which the Writ is brought and it were hard to force the Demandant to discover in whom the estate of every parcell of the Mannor stands 4 E. 3. 159. â—dable leaâ— 44 When voidable leases being void for a time Co. l. 7. 8. a. 2. The Earl of Bedfords case shall be ever after avoided and when not this difference is taken viz. when the interest of him that makes the avoydance is but for part of the terme so that after his interest determined a residue of the terme doth still remain and when he that makes the avoydance so avoyds the whole interest that no part of the terme at all doth remain after such avoidance As if Tenant in taile of Lands in Capite make leases not warranted by the Statute of 32 H. 8. 28. and die his heire being under age In this case although the King in right of the heir may avoid those leases for his time yet if after the Kings interest determined the heir accepts the rent they shall be thereby made good again But if the Patron of the Church of D. grant the prochein avoidance to another and after and before the Statute of 13 Eliz. the Parson Patron and Ordinary had made a lease for years rendring rent and the Parson had died and the Grantée had presented a Clerk who had béen admitted instituted c. in this case that lease had béen absolutely destroyed and the Successor although the Patron that was party to the lease present him shall avoid it c. Co. l. 8. 43. b. 4. in Whittinghams case 4 H. 6. fol. 2. 45 A man seized of certain Lands in right of his wife Deseasable 〈◊〉 states makes feoffment by déed indented of it to certain persons upon condition that they shall let the Land again unto the Baron and Feme for their lives with divers remainders over in taile the remainder to the right heirs of the Baron and after the Baron dies the Feoffées let the Land to the Feme for life the remainders over in taile the remainder to the right heirs of the Feme whereas it should have béen to the right heirs of the Baron In this case when the heir of the Baron enters for the condition broken by his entry the feoffment that made the discontinuance is defeated and so by consequence the discontinuance it self is defeated also so that the Feme may enter and shall be in as of her former estate Co. l. 8. 75. a. 3. in the Lord Staffords case per Coke chief Iustice 46 When one estate is to increase upon another estate by force of a condition precedent the first estate ought to be permanent Estates by â—â—cruer which may serve as a firme foundation whereon to build the future estate and not removeable at the will of the Grantor or Lessor And therefore if a man grant an Advowson to another at will upon condition that if he do such an act he shall have fée In this case the estate at will is no such foundation as the Law requires to support the encrease of an estate of Franktenement or Inheritance for the Grantor may determine his will before the performance of the condition and so avoid his owne grant and a Lease at Will cannot support a remainder over So likewise if a man grant an Advowson Rent c. for years upon condition if the Lessée within a yeare pay 10 s. he shall have for life and if he pay 20 s. within another yeare after he shall have fée the Lessée performs both conditions yet shall he have but for life for the estate for life at the time of the Grant was but in contingency which is no foundation upon which a greater estate may encrease because a possibility cannot encrease upon a possibility and the estate of Fee-simple cannot encrease upon the estate for years for that is drowned by the
K. Bench sits 10 At the Common Law the Court of Marshalsie had jurisdiction of Pleas of the Crown and had a general authority in effect Co. l. 10. 71. a. 73. b. in the case of the Marshalsie as Iustices in Eire had for they were in part the Vicegerents of the Chiefe Justice of England within the Vierge Howbeit after that by the Statute of 28 E. 1. cap. 5. the Iustices of the Kings Bench were enjoyned to follow the Court the general authority of that Court as to those purposes vanished because they being onely the Vicegerents of the Chief Justice in his presence their authority ought to cease for in presentia majoris cessat potestas minoris c An entaile extinct in a Fee-simple 11 Sir Thomas Wyat being seised of divers Mannors in taile Dyer 115. 65 66. 1 2 P. M. the remainder in H. 8. in fee in the beginning of Quéen Maries reign forfeits them for treason whereby they escheat to the Quéen In this case the estate tail was utterly extinct and the Quéen is in of her ancient Fée-simple executed for she cannot be in of the Fée-simple determinable upon the entaile because then there would be two Fee-simples in the Qu which is absurd And therefore rather than so the entaile shall be merged in the Quéens ancient Fée-simple Errour 12 An Exigent is returnable by the roll Octabis Mich. but the writ of Exigent was returnable Mense Dyer 211. 32. 4 Eliz. and the Defendant was out-lawed betwixt Octabis and Mense and this was adjudged error because the roll is of more credit than the writ and determines it 62 The more worthy thing draweth unto it things of lesse worthinesse Finch 23. 1 The body of a man is more worthy than land The bodie more worthy than land therefore land shall follow the nature of the person as a Villein shall make frée land to be Villein-land but Villein-land shall not make a frée man to be a Villein So likewise the Kings land which he hath in his natural capacity Co. Inst pars 1. 15. b. 3. shall be demeaned according to the priviledge and prerogatives of his body royal As if the King hath issue a sonne and a daughter by one Venter and a son by another Venter and purchaseth lands and dieth and the eldest son enters and dies without issue the daughter shall not inherit those lands nor any other Fée-simple lands of the Crown but the younger brother shall have them Where note that neither possessio fratris doth hold of lands which are the possessions belonging to the Crown neither yet doth Half-bloud make any impediment to the descent of lands of the Crown as it fell out in experience after the decease of E. 6. to Quéen Mary and from Quéen Mary to Quéen Eliz. both which were of the halfe blood and yet inherited not onely the lands which King Edward and Quéen Mary purchased but also the ancient lands parcel of the Crown A man that is King by descent on the part of his mother purchaseth lands to him and his heirs and dies without issue this land shall descend to the heir of the part of the mother whereas in the case of a Subject the heire of the part of the father shall have them So King Henry the eighth purchased lands to him and his heirs having issue two daughters Quéen Mary and Quéen Eliz. and after the decease of E. 6. the eldest daughter Quéen Mary did inherit onely all the lands in Fée-simple for the eldest daughter or sister of a King shall inherit all his Fée-simple lands So it is also if the King purchaseth lands of the custome of Gavelkind and die having issue divers sons the eldest son shall onely inherit those lands And the reason of all these cases is as afore is said for that the quality of the person doth in these and many other like cases alter the descent so as all the lands and possessions whereof the King is seised in jure Coronae shall secundum jus Coronae attend upon and follow the Crown And therefore to whomsoever the Crown descends those lands and possessions shall descend also For the Crown and the lands whereof the King is seised in jure Coronae are Concomitantia And the lands and possessions belonging to the Crown do follow and attend upon the Crown as upon the more worthy c. Co. ib. 43. a. 4. 2 When the Royal body politique of the King doth méet with the natural capacity in one person The King no minor the whole body shall have the quality of the Royal politique which is the greater and more worthy For Omne majus trahit ad se quod minus est And therefore in judgement of Law the King Co. ib. 16. a. 1. as King cannot be said to be a Minor because in the Royal body politique there can be no minority So likewise if the right heire of the Crown be attainted of Treason yet shall the Crown descend to him and eo instante without any other reversal the attainder is utterly avoided as it fell out in the case of H. 7. c. Co. ib. 87. b. 3. 3 If a man be seised of a Rent-charge Rent-seck Things in grant follow land Common of pâ—sture or such like inheritance which do not lie in tenure and dieth his heire being within the age of 24 years In this case the heire may choose his Guardian but if he hold lands in soccage together with such like inheritances Then shall the Guardian in soccage not onely take into his hand the lands holden in soccage but such inheritances also because he hath the custodie of the heir c. Co. ib. 114. b. 2. 4 Albeit a man cannot prescribe to have bona catalla proditorum Of felons goods no perscription faelonum c. yet may they or the like priviledges be had obliquely or by a meane by prescription For a County Palatine may be claimed by prescription and by reason thereof to have bona catalla Proditorum felonum c. â—he grant of a â—annor pasâ—eth services 〈◊〉 5 Whatsoever passeth by livery of seisin either in déed or in Law Co. ib. 121. b. 2 may passe without déed and not onely the rents and services parcel of the Mannor shall with the demesnes as the more principal and worthy passe by livery without déed but likewise all other things regardant appendant and appertinent to the Mannor as incidents and adjuncts to the same shall together with the Mannor passe without déed and all these shall so passe without saying cum appertinentiis Priviledges â—â—nct 6 If A. be seised of a Mannor Co. ib. 121. b. 4. whereunto the franchise of waife and stray and the like are appendant and the King purchaseth the Mannor with the appurtenances Now are these Royal franchises remitted to the Crown and not any longer appendant to the Mannor c. Common
the Act And M. 25 26 Eliz. in Boswells Case in Curiam Wardorum it was resolved that when an Act makes any conveyance good against the King or any other person or persons in certaine this shall not take away the right of any other albeit there be no saving in the act to preserve his right c. Co. l. 8. 145. b. 2. in Davenports Case 28 The Earle of Huntington being possest for 15 yeares of a Rectory unto which a Vicarage was appendant Procheine Avoidance infra 〈◊〉 grants the prochiene avoydance thereof and dies his Administrator surrenders the Vicarage becomes void within the terme And in this Case it was resolved that the term notwithstanding extinct by the surrender yet as to the grantée who was a person had continuance c. Co. l. 9. 135. b. 2. in Astoughs Case 29 It is regularly true Coperceners Disseisor that a Seigniory cannot be suspended in part and in esse for part as it is holden in 32 H. 8. Extinguishment Br. 48. neverthelesse habet haec regula plures fallentias as if there be two Coperceners of a Seigniory and one of them dissieseth the Terre-tenant or comes to the Land by defensible title the other may distraine her for her moity of the Signiory for the practise of her Copercener against the Terre-tenant cannot prejudice her in that Case Co. l. 9. 141. a. 2. in Beaumonts Case 30 If a disseisor make a gift in taile Tenant in 〈◊〉 Fine no baâ— the Donée makes a feofment to A. and after levies a fine with proclamations to B. who had nothing c. This fine with proclamations shall barre the issues in taile because the issues in taile being privy shall not plead quòd partes finis nihil habuerant But it shall not barre by the disseisée because the fine as to him was void So that in this Case as to the heires in taile the fine shall bind but not as to the disseisée who is a stranger So likewise in Beaumonts Case in the 9 Rep. fol. 141. the fine levied by the Baron as to the Issues in taile was a barre but not as to the Feme who was a stranger unto it And therefore if there be Baron and Feme tenants in special taile the Reversion to the Donor they have issue the Baron levies a fine with proclamations to a stranger and dies the Feme enters In this Case the Feme hath devested the whole Estate out of the Conusee and revested the Estate taile in herselfe the immediate reversion to the Donor and hath left nothing but a possibility in the Conusée for the practise between the Baron and the Conusée shall not barre the Feme of her right who is a third person Term not extinct by purchase of the fee. 31 A. possest of an house in London for 31 years deviseth Co. l. 10. 52. a. 3. in Lampets Case that Isabel his wife shall enjoy the profits thereof durante Viduitate and that then the residue of the term should remain to B. and dies Isabel by licence of the executor enters into the house and purchaseth the fée and then marries C. whereupon B. enters And it was resolved that he might so do for albeit the whole term was in Isabel quousque c. so that by the purchase of the Fée-simple the interest of Isabel was extinct yet that shall not defeat the executory Interest of B. but that after the marriage of Isabel and not before he may well enter c. Hammington and Rudyars Case Tr. 28. Eliz. rot 1674. cite per Co. Ch. Just ubi in margine In an Act of Parl. the subject concerned 32 Whereas the Act of 32 H. 8. cap. 46. ordains Co. l. 11. 3. b. 4. in Auditor Curles Case that the King shall appoint two to be Auditors of the Court of Wards who shall be accounted as one Officer In this Case the King cannot appoint onely one to execute that Office for that would be a wrong to the subject who by force of that Act are concerned in the appointment of that Officer according to the same Act c. In a popular Action the interest of the Informer not barred 33 After a popular Action commenced Co. l. 11. 65. b. 4. in Doctor Fosters Case albeit the Kings Attorney will enter Ulterius non vult prosequi or if the Defendant plead a special plea wherein the Attorney-General useth to reply alone albeit the Attorney will not reply or prosecute for the King yet the Informer may prosecute for his part because the Informer by commencing that Sult hath made that Action which was popular to become his private Action which neither the King nor any other can release as to the Interest of the Informer Tr. 31 Eliz. Stretton and Taylers Case cite ubi in margine A Praecipe in Câ—â—ite of lands â—ot holden â—tayed 34 If the tenant will sue a Praecipe in Capite in the Kings Court for such Lands as are holden of another Lord the Law will not suffer it F.N.B. 3. d. but that Lord shall in that Case have a writ out of the Chancery directed to the Iustices of the Common Pleas commanding them that if it do not appear unto them that the Lands are holden of the King but of another Lord that then they shall not procéed farther c. in that Plea c. â—ssise de Darâ—in presentâ—ent 35 If tenant for term of years life in Dower or by the Courtesie F. N.B 31. g. suffer an usurpation to the Church c. and the term determines or the tenant dies he in the reversion who is heir to the Ancestor that last presented shall have an Assise de darrein presentment if he be disturbed It is otherwise if his own tenant to whom he himself was Lessor suffer an Vsurpation for then he shall not have such an Assise c. because as it séems it will be then imputed to the Lessors folly that he would not restrain the tenent from so doing by the Covenant c. â—arrein preâ—ntment 36 In Darrein presentment betwéen two strangers F.N.B. 39. c. the Assise finds title for another stranger that was not party to the writ In this Case that third party shall have a writ to the Bishop awarded him albeit he was not party for the writ is Quis advocatus ultimò praesentavit c. F. N. B. 61. b. 37 In a real Action if the tenant make feoffment Estrepement vers tenant feoffee hanging the Plea and the Demandant is in doubt that waste will be committed c. the Demandant may have a writ of Estrepement both against the tenant and also against his feoffée c. And it séems by the same reason that he may likewise have a writ of Estrepement against the tenant and also against those that are his servants naming them by their names c. Albeit they have nothing in the
of debt against any of them for the rent arreare in his time because otherwise the Executors should be without remedy and Qui sentit commodum sentire debet onus Vide supra 11. and 32. Co. l. 8. 50. a. 3. in John Webs case 39. It seemes incongruous and against reason The Ter-tenant may have an Assize for his own Land that the ter-tenant who is already seised of the land should have a Writ of Novel disseisin concerning the same Land And yet in some cases rather then hee should be left without remedy he shall have it As if the Lord c. distraine his tenant so often that he cannot manure his Land in this case the ter-tenant may have an Assise and the Writ shall be generall but he shall make a speciall Plaint that the Lord c. Sovent fois distraines c. And the Iudgement shall not be Quod querens recuperabit seisinam tenementorum praedictorum for the Plaintiff himselfe is seised of the Land but the judgement shall be that he shall have and hold the Land absque multiplici districtione c. So likewise in casu quo quis poscit alterius separale The ter-tenant shall have an Assise by the common Law And the Statute of West 2. ca. 25. that gives an Assise of Novel disseisin de libero tenemento in such cases is but an affirmance of the common Law for in like manner he shall have an Assise for fishing in his severall Piscary or for Turbary Common c. and the Writ shall be generall as appeares by that Statute but the Plaintiff in his plaint ought to shew that the Defendant claiming common of pasture in his severall with his Cattell disturbs him c. And the Iudgement shall not be that he shall recover the seisin of the tenements c. but that he shall have and hold them in severalty for the Plaintiff himself is already in seisin of the frank tenement In which cases and the like it may be observed that the Iudgement doth not pursue the Writ which regularly it should for then it should adjudge him the Land it selfe which is needlesse because he hath it already Howbeit least he should be without remedy it gives him the Writ by which Land is usually recovered Co. l. 10. 127. b. 3. in Cluâ—s case 40. If the Lessee pay his rent voluntarily before the day Part of the rent seisin albeit this payment be voluntary yet is it not satisfactory as to satisfie the rent not then due Howbeit if the rent or any part thereof be given before the day of payment in name of seisin of the rent this payment shall give sufficient Seisin to have an Assise or other remedy for the rent because the Law delighteth in giving remedies Tenant may bring an action without licence F. N. B. 3. c. 41. If there be Lord and Tenant of a Seigniory in grosse for which the Lord for want of suitors can keep no Court in this case the Tenant may sue in the Kings Court without licence of the Lord because otherwise he should be without remedy and the Lord shall not have â—n action against the Tenant for so doing nor any meanes to annull the Tenants action and in the end of the Writ thâ—se words shall be inserted Quia Dominus remisit curiam suam Tenant in Dower may sue in Co. B. without licence F.N.B. 8. a. b. 42. If the Baron give parcell of his Mannor in taile to hold of him and dye the Feme shall sue her Writ of right of Dower in the Court of the Heire of the Baron against the Donee in tail and the Writ shall be directed to the heire but if the Baron make a gift in tail of all the Land which he hath and dyeth and the Feme is to sue a Writ of Right of Dower of that Land here the heire of the Baron cannot have any Court because he hath but a Seignorie in grosse and therefore in such case she shall have a Writ of Right of Dower against the tenant in tail directed to the Sheriff and returnable in the Common Bench and this clause shall be in the Writ Quia B. Capitalis Dominus feodi illius nobis inde remisit curiam suam So likewise if the Baron makes a Lease of all his Land for terme of life to a stranger and dye and the Feme is to bring a Writ of right of Dower in such case also the Feme shall have a Writ of right of Dower against the Lessee for terme of life in the Common Bench because the Reversioner hath not any Court And albeit this clause viz. Quia B. Capitalis Dominus c. be put in the Writ yet because the Lord hath one by a seignorie in grosse and hath not any demesne land to hold a Court and albeit the Lord never remitted his Court nor that there is any matter apparant or demurrer in Chancery to prove the assent and will of the Lord to remit his Court yet the Writ returnable in the common Bench before the Iustices there is good and they shall proceed thereupon if the Lord hath not any Court to hold plea upon that matter And it seemes that the Lord shall not have an Action against the Demandant for the suit of that writ in the Co. Ba. if he hath not a court to hold plea thereupon and to do right to the party for if the party might not have liberty to sue in the Co. Ba. in that case she should be left without remedy Howbeit indeed if the Lord had a court to hold plea then he might sue a Writ of Prohibition to the Iustices of the Co. Ba. that they should not proceed upon that Plea but otherwise not A Quare Impeâ—it granted in improper cases 43. If one man hath the nomination to an Advowson F. N. B. 33. b. c. d. e. f. and another the presentation if he name his Clerk and the other that should present present another clerk he that hath the nomination shall have a Quare Impedit and the Writ shall be Quod permittat ipsum praesentare albeit he had but the nomination for otherwise he should be without remedy upon the same reason it is that upon disturbance to one to present to a priory or chantery donative to the King or a Bishop or the like a Quare Impedit lyeth and the Writ shall be Quod permittat ipsum praesentare and yet those words are not proper in such cases but because there is no other Writ hereby the party may have right done him rather than he should be without remedy the Law permits that Writ to be used The like 44. Regularly a man shall not have a Quare Impedit F. N. B. 33. h. i. if he cannot alleadge a presentment in himselfe or in his Ancestor or in some other person by whom he claimes the Advowson yet if a man by the Kings licence make a Parish Church
sold Tamen Quaere if there be no difference for the Issue is Quod nullum Denarium inde debet So in Detinue of a chain of three ounces where it weighed but two ounces the Law lay 22 E. 4 Dyer 299. 34. 13. Eliz. 19. Issue was joyned that T. West Issue Miles dominus de la Warre non demisit and in truth he was then Dominus but at the time of the demise he was but Knight yet it seemed to three Justices that the dignity was parcell of the Issue so it could not be found with him that pleaded his Lease Dyer 338. 14. 18. Eliz. 20. In an appeal of the death of a Brother against I. S. of M. c. Appeal as principall and one F. as accessory whereas the name of the principall was T.S. The accessory appears and pleads Nul tiel in rerum natura as I.S. the day of the Writ purchased nor at any time since In this case the two Cheif Justices held That albeit there were another I.S. in another County if it were not in the same County where the Town of M. is or if he were dead before the Writ purchased the Plea sufficeth and there also it was held that in Favorem vitae a man might traverse the Sheriffs Return Hob. 38. 21. In Wast Wast if more Townes be mentioned in the Declaration then in the Writ where the Wast is supposed to be done the Writ shall abate The Earl of Cumberlands case Hob. 118. the Bishop of Yorks case 22. In a Quare Impedit for the Vicaridge of Leeds Amendment the word Vaccariam was inserted instead of Vicariam and exception being taken thereunto it was amended by the Cursitor in open Court Vide 40. 53. 167. Contrariety and Repugnancy And therefore Libera Eleemosina Co. Inst 1. 97. a. 1. If Lands were given to hold In libera Eleemosina reddendo a Rent the Reservation of the Rent seemeth to be void because it is repugnant and contrary to the former grant In libera Eleemosina Co. ibid. 142. a. 3. 2. A man upon his Feoffment or Conveyance cannot reserve to himselfe parcell of the annuall profits themselves Profits cannot be reserved as to reserve the Vesture or Herbage of the Land or the like for that would be repugnant to the Grant Non debet enim esse reservatio de profieiris ipsis quia ea conceduntur sed de redditu novo extra proficia Lit. S. 220. Co. ib. 146. a. 2. 3. When in a generall grant the Law doth give two remedies Proviso repugnant the Grantor may provide that the Grantee shall not use one of them and may leave him to take the other as upon the Grant of an annuity the Grantor may provide that the Grantee shall not charge his person but where the Grantee hath but one Remedy there that Remedy cannot be barred by any Proviso for such a Proviso would be repugnant to the Grant Co. ib. â— 3 4. The like If a man by his Deed granteth a Rent charge out of the Mannor of D. wherein the Grantor hath nothing with a Proviso that it shall not charge his person Here albeit the Repugnancy doth not appear in the Deed yet the Proviso taketh away the whole effect of the Grant and therefore is in Iudgement of Law repugnant for upon the matter it is but a Grant of an Annuity provided that it shall not charge his person The like 5. If a man by his Deed grant a Rent-charge out of Land Co. ib. a. 4. provided that it shall not charge the Land Here albeit the Grantee hath a double Remedy as above is sayd exam 3. yet the Proviso is repugnant because the Land is expressely charged with the Rent but the Writ of unity is but implyed in the Grant and therefore that may be restrained without any repugnancy and sufficient Remedy besides left for the Grantee Condition repugnant 6. If a man give Lands to another Co. ib. 164 a. 2. and to the Heires males of his body upon Condition that if he dye without heire female of his body that then the Donor shall re-enter this Condition is utterly void for he cannot have an heir Female so long as he hath an heir male The like 7. If a man make a Feoffment in Fee upon Condition that he shall not alien this Condition is repugnant and against Law Co. ib. 206. b. 3. 222. b. 4. Litt. S. 360. and the Estate of the Feoffee is absolute But if the Feoffee be bound in a Bond that the Feoffee and his Heirs shall not alien this is good for he may notwithstanding alien if he will forfeit his bond that he himself hath made So it is also if a man make a Feoffment in Fee upon Condition that the Feoffee shall not take the profits of the Land this Condition is repugnant and against Law and the Estate conveyed is absolute But a Bond with a condition that the Feoffee shall not take the profits of the Land is good If a man be bound with Condition to enfeoff his wife the Condition is void and against Law because it is against a Maxime of Law yet such a Bond is good so if he be bound to pay his wife money that is good also Et sic de similibus whereof there be plentifull Authorityes in our Bookes Devise Release c. 8. If a man devise Land upon Condition Co. ibid. 223. a. 1. that the Devisee shall not alien the Condition is void And so it is of a Grant Release Confirmation or any other Conveyance whereby a Fee-simple doth passe for it is absurd and repugnant to reason that he who hath no possibility to have the Land revert to him should restraine the Feoffee Devisee or Grantee in Fee-simple of all his power to alien Chattells 9. If a man be possest of a Lease for yeares or of an House Co. ibidem or of any other Chattell reall or personall and give or sell his whole Interest or Property therein upon Condition that the Donee or Vendee shall not alien the same this is a void Condition because his whole Interest and Property is out of him so as he hath no possibility of a Reverter and it is also against Trade and Traffick and bargaining and contracting betwixt man and man Iniquum est ingenius hominibus non esse liberam rerum suarum alienationem Again Rerum suarum quilibet est moderator arbiter Take also this Rule Regulariter non valet pactum de re mea non alienanda Seigniory in Rent c. 10. If a man be seised of a Seigniory Rent Advowson Common Co. ib. a. 3. or any other Inheritance that lyeth in Grant and by his Deed granteth the same to a man and to his Heires upon Condition that he shall not alien this Condition is also void for the repugnancy Howbeit some have sayd
then issue a sonne and a daughter And after the divisor dies also A. dies and B. dies without issue C. also and his wife die and the sonne hath issue a daughter and dies Here the question was whether the daughter of the sonne should have the land or no And it was resolved that she should not because in this case at the Common Law C. and his wife had but an estate for life with remainder to their children for life and then the cause or reason why they by the will should have an estate taile is onely grounded upon the intent of the divisor Howbeit it was resolved that such an intent ought to be manifest and certaine and not obscure and doubtfull because it will not then admit of any strained construction farther than the words themselves do import by a proper and genuine interpretation according to the Rules of Law Devise 5 If I devise lands to my sonne Thomas to hold to him and the heires male of his bodie for the terme of 500 yeares Co. l. 10. 87. a. Leonard Loves Case Dyer 7. pl. 8. 28 H. 8. his heire shall not have them but his executors for this terme is but a chattel and cannot be intailed and such a devisée may alien the terme if he please And Cook Chief Justice held that such a devise is but an estate for years because it is so in expresse words devised and that in this case against expresse words no inference or interpretation shall be admitted Tales 6 Tales de circumstantibus shall not be granted in an Assize by the Statute of 35 H. 8. 6. Co. l. 10. 105. a. Denbawdes Case because by the expresse words of that Act they are onely grantable in every writ of Habeas corpora or distringas with Nisi prius and no exposition can in this case be made against expresse words for viperima est ista expositio quae corrodit ventrem textus 7 If feme tenant for life take husband who makes wast Co. l. 5. 75. b. Cliftons Case and the feme dies Here the husband is not punishable for that wast because the Statute of Glocest 6 E. 1. cap. 5. is thus recited in the writ of wast Wast Quare cum de communi c. provisum sit quòd non liceat alicui vastum c. facere de terris c. sibi demissis ad terminum vitae vel annorum c. So that the land being not demised to the husband but he holding it onely for her life and in her right he shall not be chargeable for wast after the death of the wife by the expresse words of the Act as it is recited in that writ Devise 8 A devise of land by will is good without Probat Dyer 53. b. 11. 34 H. 8. because the Statute of wills ordaines onely that it shall be in writing and enjoynes no Probat and therefore if it be in writing and proved by witnesses it is good without Probat Tail of the King 9 If tenant in tail of the gift of the King Co. Inst pars 1 373. 1. the reversion to the King expectant is disseised and the disseisor levie a fine and five yeares passe this shall barre the estat tail notwithstanding the Proviso in the Statute of the 32 H. 8. cap. 36. So likewise if a collateral ancestor of the Donée release with warrantie and the Donée suffer the warrantie to descend without entry made in the life of the ancestor this also shall bind the tenant in raile because the words of that Statute are had done or suffered by or against any such tenant in taile And in this case he is not partie or privie to any act either done or suffered by or against him 17 Maledicta est expositio quae corrumpit textum Co. l. 2. 24. a. Baldwins Case 1 The Earl of Cumberland demises land to Anne and to one Anthony Baldwin her sonne and to the heires of the said Anthony Demise Habendum to them from the date for 99 yeares Here albeit heires are mentioned in the premisses yet is not the Habendum repugnant unto them but they have a joynt estate for yeares for it cannot be repugnant as to Anthony and yet good to Anne Viperima est ista expositio quae corrodit ventrem textus Co. l. 11. 70. a. Magd. Colledge Case Grants to the King Stat. 13 El. 10. 2 Grants to the King are restrained by the general words of 13 El. 10. for the words are to any person or persons Grants to the King of Church Livings bodie politique or corporate and the King is a person as it is said in 10 H. 7. 18. and a bodie politique as appears in Plowd fol. 213 234. Now therefore if the King be cléerely included in the letter if he shall be excluded out of the Act it must be by construction of Law and in this case the Law will make no such construction for the Quéen Lords and Commons who made the Act have adjudged as in the preamble appears that long leases made by Colledges c. are unreasonable and against reason much more estates in fée simple And the Law which is the perfection of reason will never expound the words of that Act against reason for maledicta est expositio c. 18 Nimia subtilitas in lege reprobatur Co. l. 5. 121. a. Longs case 1 Exception was taken to an Indictment Indictment because it was said to be taken coram W. S. Coronatore Dominae Reginae infra libertatem dictae Dominae reginae villae suae de Cossam praedict super visum corporis c. and doth not alleadge to what places the said libertie doth extend or whether part or any of the towne of Cossam be within the libertie and so it did not appear that the Coroner had any Iurisdiction in the place where the inquisition was taken nor where the murder was committed nor where the dead bodie lay for all is alleadged by the indictment to be at Cossam Howbeit the indictment was adjudged sufficient notwithstanding this exception for although it be true by the Rule of Law that indictments ought to be certaine yet it is to be observed that there are three sorts of certainties 1 To a common intent 2 To a certain intent in general 3 To a certain intent to each particular The first sufficeth in barres which are to defend and excuse the partie the second is required in indictments counts replications c. because they are to excuse or charge the partie the third is rejected in Law as too nice and curious for Talis certitudo certitudinem confundit And in this present case the indictment is certaine enough in general viz. that Cossam is within the libertie of Cossam but to imagine that the libertie may extend out of the town and yet the town it self to be out of the libertie is a captious and strained intendment which the
Law doth not allow Misnomer 2 In a conveyance of lands in Kent certain lands lying in Beamston were excepted by the name of the Mannor of Beamston Co. l. 6. 6 4. b. Sir Moyle Finches case whereas it had indéed formerly béen a Mannor but was none at that time yet was it adjudged to be well excepted And in the Argument of this point it was said that the Law favours not advantages of misnaming otherwise then as the strict rule of Law requires no not in writs which may be abated and new ones purchased much lesse in grants or other conveyances in which case they cannot have new ones And therefore if two be joyned in a writ the one shall not plead the Misnamer of the other as it is agréed in 14 H. 6. 3. 33 E. 3. Mainten de briefe 63. In an action against baron and feme albeit they are one person in Law yet the one shall not plead the Misnomer of the other so in trespasse in Heldernesse at W. the defendant pleads in respect of Misnomer that it was neither Town Hamlet or place known c. the Plaintiff replyeth it was without shewing in certaine either that it was a Town hamlet or place known And all this in detestation of nice and dilatorie exceptions Nice constructions 3 Cook Chief Iustice of the C. Pl. in the Earle of Rutlands case in 8 Rep. 6 Jac. complaines together with the other Iudges of the same Court Co. l. 8. 56. b. The Earl of Rutlands case that then of late time divers nice and strained constructions of Letters Patents had béen made and many of them upon slight grounds had béen brought in question with purpose to subvert the force and effect of them which practice said they did much tend to the dishonour of the King and wrong of the subject and was cléerly against the true reason and ancient Rule of Law as did manifestly appeare in all their Books because such nice and captious pretence of certainty confounds true and legal certainty Indictment 4 In Mackallies case in the 9 Rep. exception was taken to the indictment which said Co. l. 9. 66. be Mackallies case in Curia dicti Domini Regis in computatorio suo scituato in Parochia sancti Michaelis in Wood-street London and did not shew in what Ward the said Parish was but it was not allowed for as it was holden in 7 H. 6. 36. b. every Ward in London is as an hundred in the Country and every Parish in London as a town in the hundred and it is not necessarie to declare in what hundred a town is neither yet in what Ward a Parish is And therefore such nicety is to be avoided as néedlesse Vide plus ibidem Exception to a Charter c. 5 Exception was taken against the confirmation of the Charter of Queens Colledge in Oxford Co. l. 11. 20. a. 22. a. Doctor Ayrays case ann 8 Jac. because it was sub nomine Aulae Reginae whereas the Charter it selfe was Aulae Scholarium Reginae but not allowed So in 17 E. 3. 48. one was named Burgensis de novo castro super Tinam and the exception was taken that a Burgesse ought to be of a certain Town and not of a Castle but it was not allowed Exception to a Charter c. for the ancient Sages of the Law did alwayes reject such niceties concerning appellations and names when the thing intended might be thereby well enough known and distinguished III Maximes of Reason taken out of LOGICKE 19 Cessante causa cessat effectus The Corporation failing the land revests in the Donor IF Land holden of I. S. be given to an Abbot and his successors or to any other Corporation In this case if the Abbot and all the Covent die so that the bodie Politique is dissolved Co. Inst pars â— 13 b. 2. the Donor shall have againe the land and not the Lord by Escheate because in the case of a bodie Politique the fée simple is vested in their politique capacity created by the policy of man and therefore the Law doth annex a condition in Law to every such gift and grant that if such bodie Politique be dissolved the Donor or Grantor shall re-enter for that the cause of the gift or grant faileth But no such condition is annexed to the estate in fée simple vested in any man in his natural capacity but in case where the Donor or Feoffor reserveth to him a tenure and then the Law doth imply a condition in Law by way of Escheate Wedlock ceasing the Dower ceaseth 2 The wife shall be endowed of the lands c. of her husband â—o ibid. 32. a. 4 if the mariage continue till his death but if the husband and wife be divorced à vinculo matrimonii as in case of precontract consanguinity affinity or the like but not à mensa thoro onely as for adultery the Dower ceaseth For ubi nullum matrimonium ibi nulla dos See Dyer 13. a. The tenure ended the distress ceaseth 3 For the rent due the last day of the terme Co. ibid. 47. b. 3 the lessor cannot distraine because the terme is ended and therefore some use to reserve the last halfe yeares rent at the feast of St. John Baptist before the end of the terme so as if the rent be not then paid he may distraine betwéen that and Michaelmas following The tenure ended the estople ceaseth 4 If a man takes a lease for years of his own land by déed indented the estopel doth not continue after the terme ended Co. ibid. 47. b. 4 m. 31. 32. Eliz. Londons case Co. l. 4. 54. a. 3. for by making of the lease the estopel doth grow and consequently by the end of the lease the estopel determines and that part of the Indenture which belonged to the Lessée doth after the terme ended belong to the Lessor which should not be if the estopel continued Vide 40. 32. Co. ibid. 76. a. 1 5 If after the Lord hath the wardship of the bodie and land The Seigniory extinct the Wardship ceaseth the Lord doth release to the Infant his right in the Seigniory or the Seigniory descendeth to the infant he shall be out of ward both for the body and land for he was in ward in respect he was not able to do those services which he ought to do to his Lord which now are extinct and Cessante causa cessat causatum And Littleton saith that tenure by Knight-service draweth unto it ward mariage c. So as there must of necessity be a tenure continuing Upon release of all debts the Land in execution is also released So likewise if the CoÌ„nusor in a Statute merchant be in execution and his land also and the Conusée release to him all debts this shall discharge the execution For the debt was the cause of the execution and of the continuance of
default yet may the tenant give evidence and the Recognitors of the Assize may find for the tenant And therefore in these or the like cases the tenant or defendant non amittit per defaltum as the Statute and Littleton speak and they cite F.N.B. in the point Littl. Sect 674 675. West 2. c. 4. Fitz. 155. e. Neverthelesse others do hold the contrary because albeit in the writ of wast judgement is not given only upon the default yet the default is the principal and the cause of awarding the writ to enquire of the wast as an incident thereunto and the Law alwayes hath respect to the first and principal cause of a thing from whence it takes the first rise and being Co. ibid 364. a. 4. 10 H. 6. 10. 31 H. 6. Entry congeable 54. 22 Where Ioyn-tenants or Coparceners have one and the same remedie if the one enter the other shall enter also Joyn-tenants and tenants a common but where the remedies be several there it is otherwise As if two Ioyn-tenants or Coparceners joyne in a real action where their entry is not lawfull and the one is summoned and severed and the other pursueth and recovereth the moity the other Ioyn-tenant or Coparcener shall enter and take the profits with her because their remedie was one and the same But where two Coparceners be and they are disseised and a descent is cast and they have issue and die if the issue of the one recover her moity the other shall not enter with her because their remedies were several and yet when both have recovered they are Coparceners againe So if two Ioyn-tenants seised of lands the one of full age the other under age be disseised c. And the disseisor die seised and his issue enter the oâ—e of the Ioyn-tenants being still under age And after that he comes to full age the heir of the disseisor lets the lands to the same Ioyn-tenants for their two lives This is a remittor of the moity to him within age because his entry was congeable but the other Ioyn-tenant hath but an estate for life in the other moiâ—y by force of the Lease because his entry was taken away Lit. l. § 656. c. as you shall find it in Littleton Sect. 696. If A. and B. Ioyn-tenants in fée be disseised by the father of A. who dieth seised his sonne and heire entreth he is remitted to the whole and his companion shall take advantage thereof Otherwise here in the case of Littl. for that the advantage is given to the infant more in respect of his person than of his right whereof his Companion shall take no advantage But if the Grand-father had disseised the Ioyn-tenants and the land had descended to the father and from him to A. and then A. had died the entry of the other would have béen taken away by the first descent and therefore he should not have entred with the heir of A. c. Warranty that begins by disseisin 23 If A. de B. be seised of an house Littl. § 368. and F. de G. enter into the same house clayming it to him and his heires and make a feofment thereof with warranty to certaine Barrettors in the Country to be maintained by them by reason whereof A. de B. dare not stay in the house but goes out This is warranty that beginnes by disseisin because that feofment was the cause why A. de B. left the possession of the same house Tenant in tail the reversion in the King 24 If a subject make a gift in tail Co. ibid. 372. b. 3. the remainder to the King in fée Albeit the words of the Statute of 34 H. 8. cap. 20. be whereof the reversion or remainder at the time of such recovery had shall be in the King c. yet séeing the estate taile was not originlly created by the King the estate taile may be barred by a Common recovery So likewise if Prince H. sonne of H. 7. had made a gift in taile the remainder to H. 7. in fée which remainder by the death of H. 7. had descended to H. 8. So as he had the remainder by descent yet in this case also a Common recovery would have barred the estate taile No fine before admitance 25 Popham Chief Justice said that it was adjudged in Sands his case Co. l. 4 28. a. 3. Copihold cases Hubbert and Hamons case that no fine was due to the Lord either upon surrender or descent untill admittance For the admittance is the cause of the fine and if after the tenant denie to pay it that is a forfeiture And so it was also resolved by Wray and Periam in a case betwixt Sir Nich. Bacon and Flatman The cause must be shewed why the Bishop refuseth to admit 26 If a Clerke be presented to a Bishop to be admitted to a Benefice and he refuseth him in pretence of insufficiency or other defect Co. l. 5. 58. a. â— Specots case In a Quare impedit the Bishop ought to alleadge some particular crime or cause why he did not admit him and not generally quòd non est idoneus quod est criminosus schismaticus inveteratus or the like For although it belongs not to the Kings Court to determine schismes or heresies yet the original cause of the suit being matter whereof the Kings Court hath conusance the cause of the schisme or heresie for which the presentée is refused ought to be alleadged in certaine to the intent that the Kings Court may consult with Divines to know whether it be schisme or no and if the party be dead may thereupon direct the Iury which is to try it Felons goods for flying cannot be forfeited by prescription 27 If a man flie for felony his owne goods are not forfeited Co. ibid. 109. b. 1. Foxlâ—yes case untill it be found by the indictment before the Coroner in case of death or otherwise lawfully found upon record that the felony was the cause of his flight For if the goods of any shall be forfeited onely by reason of this flying without more then a man may have such goods so forfeited by prescription as he may have waifs estrayes treasure trowe c. but in as much as bona fugitivorum are not forfeited untill the flight be lawfully proved upon record and because things forfeited by matter of record cannot be claymed by prescription which is a matter in suit for this cause they cannot be claymed by prescription 28 Deodands are the goods which caused the death of the party killed by misfortune Co. ibid. 110. b. 4. and are not forfeit Deodands not forfeited by prescription in England untill it be found upon record that they were the cause of his death and therefore they cannot be claimed by prescription no more than bona fugitivorum for which Vide suprà 27. M. 30 31. El. Co l. 6. 47. b. Dowdales case Co. Inst pars 1
261. b. 29 In an action upon the case upon Assumpsit the Plaintiff counts Trial of a fact done in France that the defendant at London did assume that such a Ship should sail from Melcomb Reg. unto Abiville in France safely without violence c. and that the Ship sayling thitherwards was arrested by the King of France upon the River of Somme within the Kingdome of France c. And issue was joyned whither the ship was so arrested or not and before Wray Chief Justice in London it was found for the Plaintiff and in arrest of judgement it was moved that this issue arising méerly from a place which was out of the Realme could not be tried and that if it might be tried in England the trial should be by a Iury taken out of Melcomo because by common intendment they might be best acquainted with the arrest But it was resolved that although it be true that where the contract and the performance thereof are both of them done or to be done beyond sea there will want trial in our Law yet in this case the Assumpsit which is the ground and original cause of the action being made at London the trial thereof must of necessity be there also The like case was adjudged in P. 28. El. betwixt Hugh Gynue Plaintiff and Evangelist Constantine Defenaâ—t Co. 7. 6. a 4. Calvins case 30 It is neither Coelum nor Solum but Ligeantia and Obedientia One may be born in England and yet not within the Kings allegiance that make the subject borne for if enemies should come into the Realm and possesse a town or fort and have issue there that issue is no subject to the King of England although he be born upon his soile and under his meridian because he was not borne under the ligeance of a subject nor under the protection of the King c. And therefore when Stâ—phano Ferrara de Gama and Emanuel Lewes Tinoco two Portugals born comming into England under Qu. El. safe conduct and living here under her protection joyned with Doctor Lopez in treason within this Realme against her Majestie In that case two points were resolved 1 That their indictment ought to begin that they intended treason contra Dominam Reginam c. omitting these words naturalem Dominam suam and ought to conclude contra ligeantiae suae debitum But if an alien enemy come to invade this Realm and be taken in warre he cannot be indicted of treason for the indictment cannot conclude contra ligentiae suae debitum because he never was in the Kings Protection nor never owed any manner of ligeance unto him but malice and enmity And therefore such an alien enemy shall be put to death by Martial Law As it was in the case of Perkin Warbeck Anno 15 H. 7. who by the opinion of the Iudges was to be executed by Martial Law which was done accordingly Co. l. 7. 15. a. 3. Calvins case 31 Albeit since K. James tooke upon him the Crown of England A Postnatus cannot be noble in England without creation a Postnatus in Scotland or any of his posterity be the heir of a Nobleman of Scotland and by his birth is legitimated in England so that he may inherit Lande as well as a natural borne subject yet he is none of the Péers or Nobility of England For his natural ligeance and obedience due by the Law of nature maketh him a subject and no alien within England But that subjection maketh him not noble within England because Nobility had his first original by the Kings Creation and not of nature Co. l. 7. 2. a. 4. Bulwers case 32 Vide 3 E. 3. Tit. Assize 446. In debt if a man count of a lease Lease made of Land in another countrey for years in one County of land in another County he ought to bring his action in the County where the Lease was made and not where the land lies for the contract made by the Lease is the ground and cause of the action The action to be laid where the cause began 33 The Plaintiff counteth Co. ibid. 1. Bulwers case that H. H. recovered against him 20 l. in Banco and died before execution and that the Defendant deceptivè outlawed him after Iudgement in the name of H. H. and thereupon impâ—isoned him in Norfolke laying his action in that County where he was imprisoned whereupon the Defendant making objection that the action ought to have béen layd where the wrong did begin by the purchase of the cap. ad satisfact exigit cap. utlag viz. in London It was resolved that the action was well layd in Norfolke where the Imprisonment the most visible wrong was being indéed the chiefe ground and cause of the action Waste and a writ of right of ward to be brought in where the land lies 34 If a Lease be made in one County Co. ibid. 2. b. Bulwers case 14 E. 3. 3. and the land lies in another the action of wast shall be brought where the land lies and not where the Lease was made although the terme be past for the land and damages or damages onely for the wast which is local shall be recovered and are the ground and cause of the suit So also in all actions real if any issue arise upon the land 29 E 3. 3. 38 H. 6. 14. 22 R. 2. Breve 937. or in any action in which the possession of the land or a thing local or that which ariseth upon the land by reason thereof is to be recovered all these shall be brought in the County where the land lies As in a writ of right of ward of land or a writ of intrusion of ward they shall be brought in the County where the land lieth although the refusal or the Seigniory be in another County Likewise in a writ of right of ward of the body onely that shall be brought in the County where the land lies for it is in the right and sawours of the land 21 E. 3. 42. 30 E. 3. 25. 9 E. 3. 12 13. 10 E. 3. 7. But the writ of Ravishment of ward shall be brought where the Ravishment was and not where the land is or where the bodie is carried for that action is founded upon the Ravishment c. 36 H. 6. 14. 22 R. 2. Bre. 937. 12 Eliz. Dyer 289. Condition of Viciâ—age 35 If the Commons of the Town of A. and of the Town of B. are adjacent Co. l. 7. 5. b. 3. Sir Miles Corbets case and ought to have Common promiscuè the one with the other because of vicinage and within the Town of A. there are fifty arcres of Common and in the Town of B. 100 acres of Common In this case the Inhabitants of the Town of A. cannot put more cattle into their Common of 50 acres than it will well kéep without any respect at all to the Common within the Town of B.
or other Writing shall be void yet the Law implicitly requires order which ought to be pursued by the Obligor c. As if an Obligation be made to the Sheriffe against the Statute of 23 H. 6. cap. 10. or to one against the Statute of Usury 13 Eliz. cap. 8. in those and the like cases the Defendant ought to conclude Judgement si Action and cannot plead non est factum 7 E. 4 5. 7 E. 6. Br. non est factum 14. against the opinion of Montague in Dyve and Maninghams case in the Commentaries Pl. com 66. Againe when the Obligation or other Writing took at first effect and was once revera his Deed but afterwards before the Action brought became no Déed as by rasure addition alteration breaking of the Seal or the like in these cases albeit it were sometimes his Déed yet may the Defendant safely plead non est factum for doubtlesse at the time of the plea which is in the present tenures it was not his Deed. In Dyer 36 H. 8. 59. In debt the Defendant pleades non est factum and before the day of Apparence of the Inquest the mice had eaten the Label unto which the Seal was fixed by the negligence of the Clerke in whose custodie it was kept whereupon the Iustices commanded the Iury that if they found that it was his Deed at the time of the plea pleaded they should then give a special Verdict which they did accordingly If an Obligation be delivered to another to the use of the Obligée and the Obligée refuseth it upon tender in this case the delivery hath lost its force and the Obligée can never agrée to it afterwards and then also the Obligor may safely plead non est factum against the opinion in Dyer 1 Eliz. 167. So also if an Obligation be made to a Feme Covert and the Baron disagrée to it the Obligor may plead non est factum for by the refusal the Obligation loseth its force and becomes no Déed And by these resolutions the Quaere in Dyer 2. Mar. 112. and the disagreeing opinions in 14 H. 8. 28. Dyve and Maninghams case 66. 1 H. 7. 15. Dyer 1 Eliz. 167. and other places are well reconciled 30 A. Tenant for life the remainder to B. in Fée joyn in a Lease to C. this immediately after the delivery takes effect in this manner Where a Lease enures by grant or confirmatioâ— it is the Lease of A. during his life Co. l. 6. 15. Treports case and the Confirmation of B. and after the death of A. it is the Lease of B. and the Confirmation of A. according to the opinion of Dyer Brown M. 6. and 7 Eliz. 234 235. and therefore in an Ejectione firma brought by C. if he count of a joynt Demise from A. and B. his count is not good And in that case although the Lease be by Déed indented yet shall it not worke any conclusion for when the Déed enures by passing of an interest as in this case it doth it shall not be taken for any conclusion no more than a Lease for yeares of the Tenant for life by Déed indented shall be an Estoppel after his death because at the beginning it took effect by way of passing an Interest Co. l. 6. 74. a. 3. Sir Drue Druries case 31 When Tenant by Knight Service dies his heire within age Marriage dâ— to the Lord. Chattel veâ—â— presently the value of his mariage as a Chattel takes such effect and is so vested in the Lord 24 E. 3. 25. V. N. Br. 27 E. 3. that albeit such an heire within age be made a Knight and to that purpose in Iudgement of Law is estéemed of the full age of 21 yeares yet shall the Lord have the value of his mariage as well as the custodie of his land till his age of 21 yeares which last to remove all doubt was expressely given to the Lord by Magna carta cap. 3. Co. l. 7. 17. b. 3. Calvins case 32 If a King hath a Kingdome by Title of descent where the Laws have taken good effect and rooting The King cannot altâ—â— in as much as by the Laws of that Kingdome he doth inherit it Lawes without Parliament he cannot change those Lawes of himselfe without consent of Parliament So also if a King hath a Christian Kingdome by Conquest as King H. 2. had Ireland after King John had given unto them being under his obedience and subjection the Laws of England for the government of that Country no succéeding King could alter the same without Parliament A Recognisance chargeth a rent after release to the Terre-tenant 33 The Grantée of a rent charge issuing out of land acknowledgeth a Recognisance and afterwards releaseth to the Terre-tenant Co. l. 7. 38. b. 3. c. Lillingstons case the Conusée sueth Execution and extends the rent notwithstanding by the release it is extinguished for the Recognisance took effect to charge the rent before the extinguishment and therefore it shall be liable to the extent in whose hands soever it comes and as to the Conusée shall not be extinct A Chattel vested 34 If the King hath an Advowson in Fée which is void Fitz. 33. N.O. P.a. and during the avoidance the King grants away the Advowson in Fee the King shall not present to this avoidance But if the King hath an Advowson by reason of the temporalties of a Bishoprick which is void and during the avoidance the King restores to the Bishop the temporalties yet he shall present to the Advowson and not the Bishop for this avoidance because the presentation was a Chattel which vested in him before he restored the temporalties So if the heire sue Livery from the King and hath it yet the King shall present to the Advowson which voided during the time that the Advowson and land were in the Kings hand causa qua supra Likewise if a man be seised of an Advowson in Fee in grosse or appendant to a Mannor and the Advowson voides and he dies his Executors shall have the presentation and not the heire because it was a Chattel vested and severed from the Mannor neither shall the heire in taile have the presentation which falls in the life of the Tenant in tail but the Executors of the Tenant in tail c. The like 35 The Termor shall have the presentation Fitz. 34. b. N which happens during the terme albeit during the terme he present not to the Advowson So if a Vicarage happen to be void and before the Parson can present he is made a Bishop c. yet he shall present to that Vicarage because it was a Chatttel vested in him Where the Guardian shall not have ravishment 36 If the Guardian marry the heire after the age of 14 yeares Fitz. 142. h. and after the heire is taken by a stranger yet the Guardian shall not have a Writ of
of 12 men c. Co. Inst pars 1. 46. a. 2. 25 The Termor for yeares before the Statutes of Glocester 6 E. 1. cap. 11. and 21 H. 8. cap. 15. The Termâ—â— could not fâ—fie was not able by the Common Law to falsifie a covenous recovery of the Freehold because he could not have the thing that was recovered viz. the Fréehold Co. l. 8. 118. a. 3. 26 The Statute of Westm 2. cap. 21. Cessavit gives a Writ of Cessavit haeredi petenti super haeredem tenementum super eos quibus alienatum fuerit hujusmodi tenementum yet in 33 E. 3. Tit. Cessavit 42 in Doct. Boâ—hams case where there were two Coparceners Lords and Tenant by Fealty and certaine rent the one Coparcener hath issue and dies in this case the Aunt and Neice could not joyn in a Cessavit because the Neice though heire to her mother could not in this case have a Cessavit in regard she could not have the effect of it viz. the recovery of the arrearages accrued in her Mothers time for that they did not belong unto her but unto her Mothers Executor c. Divorce 27 Causa frigiditatis naturalis perpetuae Dyer 178. 40. 2. Eliz. is held a sufficient ground of divorce whereupon such a Sentence was given H. 2. Eliz. in the Court of Audience betwixt Sabel and his wife at the suit of the wife And such another about the same time betwixt Bury and his wife at the suit also of the wife who afterwards married Cary and had issue Bury also married another woman and had issue and therefore the Doctors of the Civil Law would have had them co-habit againe together because as they said Sancta Ecclesia decepta fuit in priori judicio 36 Non officit conatus nisi sequatur effectus Inheritances depend not upon uncertaine words 1 In Sir Anthony Mildmayes case in the 6 Report which was a resolution against perpetuities it was resolved that these words Attempt Co. l. 6. 42. a. 3. Sir Anthony Mildmayes case c. or goe about c. or enter into communication c. are words uncertain and void and God defend that Inheritances and Estates should depend upon such incertainties for it is true Quòd misera est servitus ubi jus est vagum quòd non definitur in jure quid sit conatus nec quid sit a going about or communication And the Rule of Law decides this point Non-officit conatus nisi sequatur effectus Resistance must be by some overt act 2 If the Testator devise lands to I. S. for 60 yeares Co. l. 8. 91. 2. 4. Frances case if he shall so long live provided if I. S. molest or hinder the Executor so that he cannot take and enjoy the goods of the Testator that then his estate shall cease In this case a bare denial by Parol is not a breach of the Proviso but here ought to be some act done as after request made by the Executor to shut the door against him or to put his hands upon him and to resist him or the like so that by reason of some such open act he doth not permit the Executor to carry away the goods according to the Proviso And Cook Chief Iustice said that in this case it is not sufficient to say Quòd praedictus Johannes non praemisit praedict execut c. quietè habere removere capere praedict bona or quòd praedict Johannes impedivit illum c. but he ought to alleadge a special breach by reason of some special disturbance or interruption in that case by some overt act unto which the other party may make a certaine answer and upon which a certaine issue may be taken whereof the Iury may inquire and the Court may judge whether it were a sufficient breach of the Proviso or not Cause of disfranchisement cannot be without some overt act 3 Sir James Bagge being a Capital Burgesse of the Town of Plimouth behaved himselfe contemptuously towards the Major there Co. l. 11. 98. a. 3. Sir James Baggs case and said unto him You are a cosening knave come kisse mine c. and perswaded A. and B. Vintners that they should not pay Wine-waight c. whereupon the Major removed him but upon complaint in the Kings Bench a Writ of Restitution was awarded to restore him upon this ground principally for that the cause of a disfranchisement in this case ought to be founded upon some act which he shall do against the duty of a Citizen or Burgesse and to the prejudice of the Common-Wealth of the City or Burrough whereof he is Citizen or Burgesse and against his oath which he took when he was made fréeman there but words of contempt or contra bonos more 's albeit they be against the chiefe Officers and his brethren may be good causes to punish him and to commit him till he put in sureties for the good behaviour but not to disfranchise him So likewise if he intend or endeavour of himselfe or conspire with others to do any thing against the duty trust of his fréedom and to the prejudice of the Common-wealth of the City or Burrough c. but putteth it not in execution this may be good cause to punish him as aforesaid but not to disfranchise him For Non officit conatus nisi sequatur effectus Non officit affectus nisi sequatur effectus And the reason of this is because when a man is a Frée-man of a City or Burrough he hath Franktenement in his fréedome for his life and together with others in their politique capacity hath inheritance in the lands of the Corporation interest also in their goods and peradventure it may concern his trade and meanes of life and his credit and estimation And therefore the matter which shall be cause of his disfranchisement ought to be some act or déed done and not a bare indeavour or enterprise whereof he may repent before the execution of it and whereupon no prejudice doth ensue Co. ibid. b. 3. 4 Those which have offices of trust and confidence Forfeiture of a Parke cannâ—â— be without some overt act shall not forfeit them by bare endeavours or intentions of doing acts although they declare them by expresse words except the Act it selfe be put in execution As if the kéeper of a Park shall say I will kill all the Game within my custodie or I will cut downe so many trees within the Park c. but in the mean time kills none of the Game nor fells any of the trées this is no forfeiture c. Co. ibid. b. 4. 5 If a Bishop Arch-deacon Parson c. cut downe all the trées Deprivation cannot be without soâ—e overt act c. this is a good cause of deprivation and with this accords 2 H. 4. 3. So if a Prior alien the land which he hath in jure domus suae this is a
the land descends to his heire and a Stranger abates and after the Sonne when he comes to full age releaseth all his right to the Abator In this case the heire of the Disseisor shall not have an Assise of Mortdancester against the Abator but shall be barred because the Abator is armed with the right of the Sonne of the Disseisee by his release and the entry of the Sonne was congeable for that he was within age at the time of the descent cast It is otherwise where a man of full age is disseised and a descent cast c. for then a release to the Abator c. is not good because in that case the entry of the Disseisee being taken away the release of the Disseisee to the Abator wants a good foundation upon which it may be grounded viz. the title of entry which in the other case it hath Co. Inst pars 1 295. b. 3. 17 It is said of a Confirmation Confirmation where good 〈◊〉 bad that it cannot strengthen a void estate Confirmatio est nulla ubi donum praecedens est invalidum ubi donatio nulla omnino nec valebit confirmatio For a Confirmation may make a voidale or defeasible estate good but it cannot work upon an estate that is void in Law Littl. §. 521. Co. ibid. 297. a. 3. 18 If my Disseisor make a Lease for terme of life Confirmation not good the remainder over in Fee and I confirme the estate of him in the remainder without any Confirmation made to the Tenant for terme of life In this case I cannot enter upon the Tenant for life because the remainder depends upon that estate and therefore if his remainder should be defeated the remainder should be also defeated and it were not reasonable that I should by my entry upon the Tenant for life defeat the remainder against my own Confirmation There is also the same Law and Reason if the Disseisor had made a Lease for life reserving the reversion to himself Co. ibid. 298. a. 1. c. for in that case neither could I have entred upon Tenant for life least I should have thereby also destroyed the reversion against my own Confirmation c. And therefore it hath been adjudged that if a Disseisor make a Lease for life and after levie a Fine of the reversion and the five yeares passe so as the Disseisee is for the reversion barred he shall not afterwards enter upon the Lessee for life Reported by Sir John Popham Chiefe Justice because then the Disseisee by entry upon the Tenant for life should also regaine the reversion which was irrecoverably lost by force of the Statute Co. ibid. 298. a. 2. 19 It is regularly true that when the particular estate is defeated Remainder where defeatâ—ble and where not the remainder thee by shall be also defeated neverthelesse it faileth in divers cases Pl. Com. Colthirsts case for where the particular estate and remainder depend upon one title there the defeating of the particular estate is the defeating of the remainder but where the particular estate is defeasible the remainder by good title there although the particular estate be defeated yet the remainder continues good As if the Lessor disseise A. Lessée for life and make a Lease to B. for the life of A. the remainder to C. in Fée albeit A. enter and defeat the estate for life yet the remainder to C. being once vested by good title shall not be avoided for it were against reason that the Lessor should have the remainder againe against his own Livery So it is also if a Lease be made to an Infant for life the remainder in Fee the Infant at his full age disagrees to the estate for life yet the remainder stands good for that it was once vested by good title And in both these cases there was a particular estate at the time of the remainder created A void remainder 20 If the Lord grant by Deed his Seigniory to A. for life Co. â—bid 310. a. 1. the remainder to B. in fee A. dieth and then the Tenant attorns to B. this attornement is voide because it is not according to the Grant for then B. should have a Remainder without any particular estate to support it and the particular estate being void for want of attornement the Remainder which depends upon it is also void Revâ—rsion void 21 Tenant in taile makes a Lease for life to A. for the life of A. and after grants the reversion to B. in fee the Tenant in taile dies Co. ibid. 333. a. 2. and after that A. dies In this case the entry of the issue in taile is lawfull because by the death of the Lessée the discontinuance is determined and consequently the grant made of the reversion gained upon that discontinuance is void also Rent Common c. charged upon the land where good or void 22 If Tenant in taile enfeoffe the heire in taile being under age Litl §. 660. Co. ibid. 349. a. 1. and when the heir is at full age he chargeth the land with a Rent Common c. and after the Tenant in taile dies whereupon the heire is remitted In this case by the remitter the grant of the Rent Common c. is determined because the Grantor had not any right of the estate in taile in him at the time of the grant but onely the estate in Fee simple gained by the Feofment which is wholly defeated and the state of the land out of which the Rent Common c. issued being defeated the rent is defeated also But if Tenant in taile make a Lease for life whereby he gaineth a new reversion in fee so long as Tenant for life liveth and he granteth a rent charge out of the reversion and after Tenant for life dieth whereby the Grantor becometh Tenant in taile againe and the reversion in fee defeated yet because the Grantor had a right in the entaile in him cloathed with a defeasible Fée simple the rent charge remaineth good against him but not against his issue c. The like 23 If the heire apparent of the Disseisée disseise the Disseisor Co. ibid. a 3. and grant a rent charge and then the Disseisee dieth the Grantor shall hold it discharged for his former estate being defeated by the remitter the rent which was granted out of it is also defeated So also if the Father disseise the Grand-father and granteth a rent charge and dieth now is the entry of the Grand-father taken away if after the Grand-father dieth the Sonne is remitted and shall avoid the charge c. A Discontinuance defeated as also all that dependâ— thereâ—pon 24 If the Baron discontinue the land of the Feme Litl §. 679. Co. ibid. 357. b. 4. and afterwards the Discontinuee lets the same land to the Baron and Feme for life by Deed indented reserving rent and for default of payment a
accession of the estate for life Co. l. 8. 142. b. 1. in Doctor Druries case 47 If a man hath judgement in a Quare Imepedit Quare Iâ—â—dit Errour and hath a Writ to the Bishop and the Bishop refuseth to admit his Clerk Here the Plaintiff upon this collateral matter of refusall may have a Writ of Quare non admisit but if the Defendant reverse the Iudgement by a Writ of Error and after the Plaintiff in the Quare Impedit brings his Quare non admisit the Defendant may plead no such record and so bar the Plaintiff of bringing that Writ Vide 26 E. 3. fol. 75. per Wilby and Hill In like manner Execution Errour Escape if A. be taken by the Sheriffe in execution at the suit of B. upon an erroneous Iudgement and after make an escape and after the judgement is reversed by a Writ of Error the action upon the escape is lost c. Ibid. the principall case 48 If the return of an Exigent be erroneous Exigent â—â—neous the Outlawry which is grounded thereupon is erroneous also because the Writ of Exigent is the warrant by which they proceed to the Outlawry Vide Proctors case 5 Eliz. Dyer 223. Ibid. 143. b. 2. 38 H. 6. 4. 12. 49 One that had cause of priviledge in Banco is arrested in London Priviledge Supersedeâ— and delivers a Supersedias notwithstanding which the Recorder gives judgement and he is taken in execution and is thereupon removed in Banco by a Corpus cum causa And here because after the Supersedeas delivered there was a Nullity in the proceeding and judgement the Court without Writ of Error awarded that he should be discharged of the Execution c. Ibid. 143. a. 1. 50 If two Iudgements are given Two judgements The first dâ—feated and the last depends meerly upon the first as upon his foundation there if the first fundamental judgement be reversed by Writ of Error or Attaint the last which appears in the Record to depend upon it shall be reversed also as in Assise and Redisseisin so of a judgement upon the original and another judgment in a Scire facias so also of a judgement against the Tenant and another against a Vouchee and the like c. Conusee of a Statute 51 The Conusee of a Statute Staple in a writ of Detinue of the same Statute upon garnishment recovers by erroneous Iudgement against the Garnisee and hath the Statute delivered unto him Ibid. 142. b. 7 H. 6. 4â— a. the Garnisée brings a writ of Error Garnishment and the Conusee sues execution upon the Statute and hath it Here albeit the Garnisee reverse the judgement yet inasmuch as the Statute was executed that execution shall not be avoided by the reversall of the judgement because the judgement was onely to have the Statute delivered Judgement Execution and the Execution upon the Statute is a thing executed not at all depending upon the judgement And yet in this case by the opinion of Coke Chiefe Iustice the Garnisee shall have remedy upon the reversal of the judgement by an Audita quaerela Audita Quaerela because the cause and ground of the Collateral Action is disproved and annulled by the reversall of the first judgement and the first Plaintiff restored to his first action upon which he may have his first and due remedie Executors have execution The Will annulled 52 Executors have judgement in account Ibid. 143. b. 4. per Coke chief Justice and for the arrerages have the Defendant in execution and afterwards the Testament was annulled because the Testator was an Idiot and the Record spirituall was removed into the Chancery by Writ and then sent into the Kings Bench where the Action was brought And hereupon the Defendant brought an Audita quaerela Audita Quaerela for that the Testament was disproved and it was resolved in the Exchequer Chamber an 35 H. 8. that the Audita quaerela would well lie A Melius Inquirend erroneous 53 It was found by Mandamus 2 Jac. that P. S. held the Mannor of O. in Soccage of Qu Co. l. 8. 168. a. Paris Slaughters case Eliz. as of her Mannor of N. In 7 Jac. a Melius Inquirendum was awarded reciting the former office to enquire whether the Mannor of O. at the time of the death of P. S. was holden of the King in Capite c. whereupon an office was found that at the time of the death of P. S. the said Mannor of O. was holden of Qu Eliz. by Knight service as of her Mannor of N. and that at the taking of the inquisition it was holden of the King c. In this case the Melius was repugnant in it selfe because it was impossible for the Iury to finde the Mannor holden of King James at the death of P. S. which was in the fourth year of Qu Eliz. for then it must needs be holden of the Queen King James being then King of Scotland c. Now therefore albeit the Iury by the Inquisition had rightly found the tenure of the Mannor and that their finding thereof in that respect was good and according to the truth of the case yet because it was not warranted by the Melius which was the ground of their Inquisition all was adjudged insufficient and void and a new Melius inquirendum was awarded An Idiot examined in Chancery 54 A man that is found an Idiot from his nativity by office Co. l. 9. 31. b. 4 in the case of the Abbot of Strata Mercella may come into the Chancery and pray to be examined or by his friends he may pray to be brought thither and if it be found upon examination that he is no Idiot the office thereof found and all the examination which was by force of the Writ or Commission are utterly void without any traverse monstrance de Droit or any other suit Assumpsit deâ—eaâ—â—d 55 An Executrix in consideration Co. lib. 9. 94. a. 4. Will. Banes case that the Plaintiff will forbeare till Michaelmas to sue for a debt due by the Testator to the Plaintiff upon lone promiseth to pay it at Michaelmas and in an Action upon the case brought against her upon that promise pleads non assumpsit here the consideration of forbearance is good because although it be no benefit to the promiser yet is it damage to the Plaintiff And yet in this case if in rei veritate the debt were not due debt Per Coke chief Justice or the Executrix had not assets at the time of the promise she may give that in evidence and shall be thereupon ayded for then in truth there was not any consideration upon which the assumpsit might be grounded because to forbeare a debt which was not due or wherewith she was not chargeable could be neither benefit to the Defendant nor damage to the Plaintiff Co. l. 9. 139. a. 3.
and his heirs and the Lord admit A. accordingly Tenendum per antiqua servitia inde prius debita de jure consueta or to the like effect and A. commits forfeiture in Black acre he shall forfeit onely that and neither of the other For the said Tenendum reddendo singula singulis continues the severall tenures In like manner if divers several Copiholds escheat to the Lord and he re-grant them to another Tenendum per antiqua servitia c. they shall be severally holden as they were before the Escheat c. Several times for several copies 39 If a man hath severall Copihold lands holden by several services Co. l. 4. 28. a. 1. Hubbert and Hamonds case the Lord ought to assesse and demand fines severally for each parcell so severally holden For the Tenant may refuse to pay the fine for one parcell and forfeit it and may pay the fines for the other because every severall tenure hath a severall condition in Law as an incident tacitè annexed unto it And therefore the Lord ought for every severall tenure to assesse and demand a severall fine The office of Shire-clerk incident to the Sheriffs office 40 Quéen Eliz. grants to one Mitton the office of Clerk of the County Court or the Shire-Clerk of the County of Somerset with all fées Co. l. 4. 33. a. 3. Mittons case c. for terme of his life and after the Quéen makes Arthur Hopton High Sheriffe of the same County who interrupts Mitton claiming that which was granted to him as a thing incident to his office of Sheriffe c. And it was adjudged that the County Court and the entring of all the proceedings in it are so incident to the office of Sheriffe that they cannot by Letters Patents be divided from it and albeit the said grant was made to Mitton when the office of Sheriffe was void yet when the Queen makes a new Sheriffe he shall avoid it c. Exigenter incident to the chief Justice 41 Tempore vacationis Co. ibid. 2 El. Dyâ—r 175. of the office of Chiefe Iustice of the Common Banke Queen Mary grants the office of the Exigenter of London to one Scrogges and it was holden void because it was incident to the office of Chiefe Iustice of the County which the Queen could not have And therefore the next Chiefe Iustice shall avoid it c. Gaoles incident to Sheriffs 42 Grants made by the King of the custody of the Gaoles of Counties are void Co. l. 4. 34. a. 1. in Mittons case per touts les justices because the custody of Gaoles of Counties of right do belong are by the Law annexed incident to the office of Sheriff as doth very well appeare by the judgement in Parliament Anno 14 E. 3. cap. 10. by which it is ordained that all Gaoles of Counties shall be rejoyned to the Sheriffs and that the Sheriffs shall again have the custody of the same Gaols as in times past was used and that they should put in such Gaolers for which they would answer c. Where a covenant binds and where not betwixt Lessor and Lessee 43 In a demise of Land when a covenant extends to a thing in esse Co. l. 5. 16. a. 4. Spencers case parcell of the Demise the thing to be done by force of the Covenant is quodam-modo incident and appurtenant to the thing demised and shall runne with the land and shall also binde the Assignée although he be not bound by expresse words But when the Covenant extends to a thing which hath not essence at the time of the Demise made that which hath not essence cannot be said to be incident or annexed to the thing demised and therefore in that case the Assignée shall not be hound to it unlesse specially named As if the Lessée covenant to repaire the houses c. this is parcell of the contract and extends to the supportation of the thing demised and therefore is quodam-modo incident and annexed to the houses and shall binde the Assignée although he be not expresly bound by the covenant But if the covenant be to build a brick-wall upon parcell of the land demised or the like which was not in esse at the time of the demise made but was to be done afterwards this covenant may binde the Covenantor himselfe and his Executors or Administrators but shall never binde the Assignâ—e because the Law will never annex a covenant to a thing which hath not essence c. It is otherwise Co. ibid. b. 3. if the Covenantor for himselfe and his Assignes covenant to do it for then the Assignes are specially named c. Co. 5. 24. a. 4. The Deane and Chapter of Windsor's case Co. ibid. 17. a. 4. 44 If a man demise or grant land to a Feme for years The like and the Lessor covenants with the Lessee to repaire the houses during the terme the Feme takes Baron and dies the Baron shall have an action of Covenant as well upon the covenant in Law by force of these words Demise and grant as also upon the expresse covenant because such a covenant runs with the land and is incident unto it There is the same Law of a Tenant by Statute Merchant or Statute Staple Elegit or of a terme sold by force of an Execution for in that case also the Vendée of the terme shall have an action of Covenant as a thing incident to the land albeit all these come to the terme by act in Law c. So likewise if a man grant to his Lessee for years that he shall have so many Estovers as shall serve to repaire his house or to burn within his house or the like during the term this covenant is as an incident and appertinent that runs with the land in whose hands soever it falls Co. l. 5. 47. a. 2. Franklins case 45 In a general pardon when an offence is excepted all the incidents and dependants thereupon are also excepted whether they be corporall or pecuniary c. Co. lib. 6. 7. a. 1. Wheelers case 46 If the King grant lands in fée Tenendum de nobis Fealty incident thougâ— not named c. per servitiuÌ„ unius rosae rubae annuatim c. solummodo pro omnibus omnimodis aliis servitiis c. This tenure is soccage in chief and in as much as fealty is incident to every Rent-service the Law annexeth fealty unto the said rent and then these words pro omnibus aliis servitiis are to be understood of other services which the Law doth not imply or add unto the rent so that then the tenure shall be by a Rose and fealty c. Co. l. 6 70. a. 3 Sir Moyle Finches case 47 If there be Lord and Tenant by Fealty and Rent Seigniory eâ—tinct and the Lord disseises the Tenant of the land and makes feoffment in fée by this the Seignory is
was enfeoffed to the end he may have the advantage of the warranty c. Co. l. 7. 9. b. 1. Calvins case 63 Ligeance and obedience on the Subjects part to his Prince Ligeance inseparably incident in all places to the subject is an inseparable incident to that power and protection whereby the Prince may command and ought to defend his Subject And this ligeance and obedience which that power and protection thus draweth after them cannot be locall or confined to any certain place or Kingdom but follows the Subject whethersoever he goeth And therefore it is truly said Qui abjurat regnum amittit regnum sed non Regem amittit patriam sed non patrem patriae c. for notwithstanding the abjuration he still oweth the King his ligeance and still remaineth within his protection because the King if he please may pardon and restore him to his Countrey again c. Littl. §. 366. Co. Inst pars 1. 227. b. 4. 64 If a man seised of lands in fee lets them for life without deed A condition incident to as estate for life rendring rent with clause of re-entry upon non-payment of the rent whereupon if the Lessor enter and the Lessée bring an Assize of Novel Disseisin the Iurors may finde the matter at large and the Iustices ought to adjudge it for the Tenant albeit regularly a condition is not valid without deed shewed in Court and that the Lessor shew no deed for they that have conusance of a thing are to have conusance also of all incidents and dependance thereupon and in this case the condition is an incident necessarily depending upon the estate for life which was perfected by livery Vide supra 28. Dyer 2. 1 2. 6 H. 8. 65 Emson avows for Rent-charge granted to him by a stranger Rent land incident to the person who was seised of the land where c. pro consilio impendendo the Plaintiffe pleads in barre that the Defendant was attainted of Treason and committed to the Tower yet the Grantor had néed of Counsel and could not have accesse c. and upon demurrer the Iudgment was that the Avowant should have return because the rent being incident to the person of Emson could not be granted over or forfeited So likewise land given by the King to a Duke to support his dignity cannot be granted over See Max. 45. Dyer 45. 35. 36. 30 H. 8. 66 The King can by no way grant or sever the tenure and seigniory in Chiefe from the Crown Tenure in Capite for no Subject can take it of his grant with such a prerogative And therefore if the King make a release to his Tenant in Capite to hold by a penny and not in Capite this is a void release for that tenure is méerly incident to the person and Crown of the King and hath such a prerogative that it cannot be held of any Subject as the Tenant in Frankalmoigne cannot hold of any other than of the Donor and of his person because it is a speciall tenure Also if the King at this day make a gift in taile to hold of him in Capite and after he grant the reversion of that land to another in fée neither the tenure nor service passe to the Grantée but remain in the King because they are not incident to the reversion but to the person of the King Dyer 175. 25. 132 Eliz. 67 The office of Exigenter of London being void Exigenter of London and Coke Chief Iustice of the C. B. being then also dead Quéen Mary during the vacation of the said places conferred by her Letters Patents the Exigenters office upon Colshil and then made Brown Chiefe Iustice of that Court But Brown refuseth Colshil and admits Scrogges thereunto And in this case it was resolved by all the Iudges and others save the Iustices of the Common Bench that the said office did not appertain to the Qu. to grant but onely in the dispose of the Chiefe Iustice for the time being as an inseparable incident to his person and place and that by reason of common usage and prescription â—ase of Deâ—esnes 68 A Prior makes a lease of the Demesnes of a Mannor rendring rent Dyer 233. 10. 7 Eliz. the King after the dissolution makes a lease for years of the Mannor And it was adjudged that by the name of the Mannor the rent and reversion of the Demesnes passed â—hattel vestâ—â— 69 A wardship fell to the Bishop of Durham by a tenure of him in Capite who dies before seisure yet his Executors shall have it Dyer 277. 57. 10 Eliz. and not the King or Successor for it was incident to his person and a chattel vested in him before his death 42 Quod tacitè intelligitur deesse non videtur V. 64. 11. â—opiholds 1 When custome hath once created Copiholds of Inheritance Co. l. 4. 22. a. 3. in Brownes case and that the land shall be descendable then the Law doth also direct the descent according to the Maximes and rules of the Common Law as incidents to every estate descendable So 5 E. 4. 7. when uses have gained the eeputation of Inheritances descendable the Common Law shall direct the descent of them and that there shall be Possessio fratris of an use as well as of other Inheritances at the Common Law â—ontract imâ—orts an Asâ—umpsit 2 Every contract executory imports in it selfe an Assumpsit Co. l. 4. 94. a. 4. Slades case For when one agrées to pay money or to deliver any thing he doth thereby assume and promise to pay or deliver it and therefore when one sells any goods to another and agrées to deliver them at a day to come and the other in consideration thereof agrées to pay so much money at such a day In this case both the parties may have an action of Debt or an action upon the case upon Assumpsit For the mutual executory agreement of both the parties imports in it selfe as well a reciprocal action upon the case as an action of debt And with this agrées the Iudgment in Reade and Northwoods case Pl. Co. fol. 128. â—xchange imâ—orts warranâ—â— and a conâ—ition 3 In every exchange rightly made Co. l. 4. 121 a. 4. Bastards case this word Excambium imports in it selfe tacitè a condition and also a warranty the one to give re-entry the other Voucher and recompence and all in respect of the reciprocal consideration the one land being given in exchange for the other but that is onely a special warranty for upon Voucher by force thereof he shall not recover any other land in value but that only which was so given in exchange c. And as it is in case of warranty so is it also in case of the condition which the Law implies upon the exchange for if the exchange be betwixt A. and B. and A. aliens his exchanged land to
plea there and a judiciall writ shall issue out of that Court in nature of the protestation made in the first writ and if the protestation were in the nature of an assise of Mortdancester the Iustices shall direct a writ to the Sheriff to summon the Iurors to come out of the ancient Demesne to the Common Pl. and the whole matter shall be tryed and determined in that Court And albeit judgement be given of that land in the Common Pleas yet shall the land still remain ancient Demesne as it was before â—resentation â—y lapse 35 If a man present to an Advowson and after the Incumbent dies F.N.B. 31. â— and the Ordinary presents by lapse another Incumbent and after that Incumbent also dies now may the right Patron present again and if he be disturbed he shall have an assise De Darrein presentment notwithstanding those meane presentments Disturbance 〈◊〉 present 36 If a disturber presents to an Advowson F. N B. 32. â— and the Patron brings an assise of Darrein presentment and hanging the Writ the Incumbent dies if the disturber present again another Incumbent and dies yet the Patron shall have an assise of Darrein presentment upon the first disturbance by Journeys accompts against the heire of the disturber And so if the disturber present two or thrée times within the six moneths the true Patron shall have an assise de Darrein presentment upon the first disturbance Presentation â—y Coparceâ—ers 37 If two Coparceners make partition to present by turne F.N.B. 34. i. albeit the one Coparcener usurp upon the other and presents in her turne this presentment shall not put her out of possession but she shall have her turne when it falls again and shall have a Quare Impedit or Scire facias upon the Composition if it be upon record if she be disturbed to present Presentation â—y an Abbot 38 If in the time of the vacation of an Abbey or Priory F.N.B. 34. m. a Church happens to be void which is of the patronage of the Abbey or Priory and a stranger usurps and presents unto it this usurpation shall not prejudice the Successor but that at the next avoydance of the said Church he may present and have a Quare Impedit It is otherwise when the usurpation is made in the time of his Predecessour for that puts the succession out of possession if the six moneths be past â—ction of Deâ—eipt 39 If a man loose land by default in a Praecipe quod reddat and die F.N.B. 98. q. his heire shall have an action of Deceit as well as the father and shall have restitution The like 40 If a man have execution by default upon a recognizance in a Scire facias sued against one and the Defendant dies F.N.B. 98. r. his Executors shall have a Writ of Deceit and shall be restored 〈◊〉 warrantia â—artae 41 If a man hath a Warrantia cartae hanging F.N.B. 135. l. albeit the Plaintiff that hath the Action against him who brings the Writ De warrantia cartae be non-suited in his action that shall not abate the Writ De warrantia cartae For he may have that Writ although he had no action sued against him for the land c. â—ecogniâ—ance â—udita quaeâ—a 42 Rosse was bound in a Recognizance of 1000 Marks to Pope Pl. Co. 72. Rosse Popes case and Curson according to the Statute of the 23 H. 8. cap. 6. and after Rosse and his wife by fine give to the Conisées the fifth part of the Mannor of Burton Constable and other lands in the County of Yorke in fée And after Pope as Survivor sues execution of the said Recognizance in London against Rosse and his body was taken and the said Rosse supposing the said fine of those lands in the County of Yorke would have discharged him of the recognizance brought his Aâ—dita quaeâ—ela containing the whole matter upon which Writ and Declaration Pope demurred in Law And in this case it was adjudged that the Audita quaerela would not lie nor that the purchase by the Conusées of parcell of the land that Rosse had at the time of the recognizance acknowledged could discharge the recognizance because the person was properly charged with it and not the land but in respect of the person c. Finch 15. 43 The custome of Gavelkind is not changed Gavelkind Ancient Demesne though a fine and recovery be had of the same at the Common Law for this is a custome by reason of the land 6 E. 6. Dyer 72. Finch 16. and therefore runneth always with the land But otherwise it is of land in ancient Demesne partable amongst the Males for there the custome runneth not with the land simply but by reason of the ancient Demesne And therefore because the nature of the land is changed by the fine and recovery from ancient Demesne to land at the Common Law the custome of parting it amongst the Males is also gone F.N.B. 21. b. Finch ibid. 44 If an erroneous recovery he had of lands in Burrough English the youngest son shall have a Writ of Errour Burrough â—â—glish because the land it self goeth to him so shall all the sons of lands in Gavelkind 42 E. 3. 3. Finch ibid. 45 Two Coparceners make partition Parceners and one covenants with the other to acquit the land Now if the Covenantée aliens his part the Alienée shall have a writ of covenant Co. Inst pars 1 171. a. 2. 46 If the annual value of the land be equal at the time of the partition and after become unequal by any matter subsequent Partition as by surrendring ill husbandry or the like yet the partition remains good Judicis officium est ut res ita tempora rerum Quaerere quaesito tempore tutus eris Co. inst pars 1. 23. a. 11. 47 Whosoever is seised of land Feoffmentâ— his own 〈◊〉 the old 〈◊〉 maines hath not onely the estate of land in him but the right to take the profits which is in nature of the use and therefore when he makes a feoffment in fée without valuable consideration to divers particular uses so much of the use as he disposeth not is in him as his ancient use in point of Reverter As if a man be seised of two acres the one holden by Knight service in priority and the other by the same service in posteriority and maketh a feoffment in fée of both acres to the use of himselfe and his heirs the old use continued in him and the priority and posteriority remain So it is of lands of the part of the Mother for if one make a feoffment in fée of them to the use of himselfe and his heirs the use shall still goe to the heire of the part of the Mother which could not be if it were not the old use but a thing newly created The like law
Retraxit cannot be acknowledged by an Attorney Co. lib. 9. 75. b. 4. Combes case 10 There is a diversity betwixt a general and absolute power and authority as owner of the land Surrender by Attorney and a particular power and authority by him which hath but a particular interest as a Copiholder being owner of the land according to the custome may surrender his Copihold land by Attorney but if A. be Tenant for life the remainder in taile c. And A. hath power to make leases for 21 yeares rendring the ancient rent c. he cannot make a lease by letter of Attorney by force of his power because he hath but a particular power which is annexed to his person And so it was resolved in the Lady Greshams case at the Assises in Suffolk 24 Eliz. by Wray and Anderson Chiefe Iustices and Iustices of Assise there Co. lib. 9. 76. a. 1. Combes case 11 Some things are so inseparably annexed to the person of a man Villein that he cannot do them by another as the making of Homage and Fealty So it is holden in the 33 E. 3. tit Trespass 253. that the Lord may beate his Villein for cause or without cause and the Villein shall have no remedy but if the Lord command another to beate his Villein the Villein shall have an action of Battery against him that so beats him Co. Ibid. 12 If the Lord distrain the Cattle of his Tenant Wrongful â—â—â—stresse when nothing is behind the Tenant for the respect and reverence which belongs to the Lord shall not have an Action of Trespass vi armis against the Lord but if the Lord in that case command his Bailiff or Servant to distrain him when nothing is arrear the Tenant shall have an Action of Trespasse vi armis against the Bailiffe or Servant c. 2 H. 4. 4. 11 H. 4. 78. 1 H. 6. 6. 9 H. 7. 14. Fitz. N.B. 25. c. 13 It séems that before the Statutes No Attorney allowed by the common Law which grant that a man may make an Attorney c. the Iustices would not suffer either Plaintiffe or Defendant Demandant or Tenant to make attorney in any suit or in any Court c. because the words of the Writ command the Defendant to appear which ought alwayes to be understood in proper person and at this day also a mans reall suit at a Leet or Sheriffs turne cannot be done by Attorny but ought always to be in proper person c. Howbeit before those Statutes the King by his Prerogative might have granted to a man to make an Attorney in every action or suit as well to the Tenant or Defendant as to the Demandant or Plaintiff and might have directed his writs or letters to the Iustices for that purpose c. F.N.B. 25. d. 14 If the Tenant for terme of life be impleaded in a praecipe quod reddat No receipt by attorney he in reversion may pray to be received to defend his right in default of the Tenant or upon his faint pleading but in this case he cannot pray by his Attorney to be received without a Writ out of the Chancery directed to the Iustices for that purpose upon some cause alleadged in the said Writ c. 22 E. 4. 34. Finch 16. 15 A man cannot excuse himselfe of a contempt as of not serving the Kings processe Answer of a contempt peâ—sonal of rescuing a Prisoner from the Sheriffe or other Officer or the like by Attorney but he ought to appeare thereupon in proper person c. Co. l. 9. 96. b. 4. Sir George Reynels case 16 The office of Marshal of the Marshalsie cannot be granted for years because it is an office of great trust annexed to the person The office oâ— the Marshâ—â— personal concerns the administration of Iustice and the life of the Law which is to kéep such as are in execution in salva arcta custodia to the end they may the sooner pay their debts And this trust is individual and personal and therefore cannot be transferred to Executors or Administrators For the Law will not confide in persons unknown for the ordering of Matters which concern the administration of Iustice c. 45. 6. â—ersonal serâ—â—ce not apâ—ortioned or â—ultiplyed 17 If a man hold land by the personal service of being Sewer Co. l. 8. 105. b. 4. in John Talbots case Carver Butler c. to his Lord or when the Tenant is bound by his tenure Ad convivandum Dominum suum familiam suam semel in anno or ad aequitandum cum Domino suo in Com. N. sumptibus suis propriis vide 10 E. 3. 23. in John de Bromptons case by alienation of parcel of the land the service shall not be apportioned or multiplyed because such services are personal and are to be personally performed by one man only Howbeit purchase of parcel by the Lord shall extinguish them â—ilizers office â—ersonal 18 The office of Filizer cannot be extended upon a Statute Dyer 7. b. 28 H. 8. 10. or Elegit albeit it is a Franktenement for which an Assise lyeth because it is an office of trust and personal â—everal torts â—everal actions 19 An action upon the Case was brought by two Dyer 19. 112. 28 H. 8. for that the Defendant called them two false Knaves and Thieves Here the action was not well brought joyntly for that the wrong done to the one was not the wrong done to the other and therefore they ought to have severed in actions as in case of false imprisonment A thing in action cannot â—e transferred 20 The reason why a thing in action cannot be transfered or granted over to another is because it is so annexed to the person Dyer 26. a 16â— 28 H. 8. 282. 28. 11 Eliz. 300. 36. 13 Eliz. that it cannot be severed from him nor by any meanes prosecuted but in his name as an Obligation Statute Recognizance or the like So if a man hath an Advowson and when it is void the Patron grants proximam nominationem Presentationem Institutionem cùm primò proximè vacuerint In this case the Grantée shall not have that Presentation because it is a thing in action which the Patron could not transfer but the next to it he shall have which was the first that could be granted 45 They cannot be granted or transferred over as matters of pleasure ease trust and authority To hunt way â—o dyet c. 1 A licence to hunt in my Parke to go to Church over my ground 12 H. 7. 25. 7 H. 4. 36. to come into my house to eat and drinke with me cannot be granted over So of a way granted for life over my ground Finch 17. Personal offices of trust 2 The Patentée for life of an office of trust 11 E. 4. 1. as to be a Chamberlain of the
action brought becomes no deed either by rasure addition or other alteration or by breaking the seale c. In this case although it were once a déed yet the Defendant may safely plead Non est factum for without question at the time of the plea which is in the present tense it was not his déed 36 H. 8. Dyer 59. in an action of Debt upon an obligation against Hawood the Defendant pleads non est factum and before the day of apparance of the Inquest the Mice had eaten the Label unto which the seale was fixed by the negligence of the Clerke in whose custody it was Here the Iustices charged the Iurors that if they found the déed to be déed of the Defendant at the time of the plea pleaded they should then give a special verdict which they did accordingly Co. l. 6 15. a. 1. Trepors case 9 If A. Tenant for life and B. in remainder in fée Lease and confirmation joyne in a lease to C. Immediately after the delivery of the déed it is the lease of A. during his life and the confirmation of B. and after the death of A. it is the lease of B. and the confirmation of A. according to the opinion of Dyer and Brown Mich. 6 7 Eliz. fol. 234 235. Co. l. 6. 22. Ambrosia Gorges case 10 If a man marry an Inheritrix of lands holden of the King in Capite and hath issue by her a Daughter and afterwards the Feme die A daughter iâ— ward during the life of her father the Daughter shall not be in Ward because she is yet heire apparant to her Father But if the Father take another Wife and hath issue a Son then shall the Daughter be in ward to the King because the Son is now his heire apparent and not the Daughter And no heire apparent shall be in ward during the life of the Father Co. l. 7. 18. a. Calvins case 11 The time of the birth of a man or woman is chiefly to be considered to make them a Subject borne or not Ante-nati Post-nati and is as it were of the essence of a Subject born For a man cannot be a Subject to the King of England unlesse at the time of his birth he was under the ligeance and obedience of the King of England albeit the Kingdome of the King under whose ligeance he was borne do afterwards descend to the King of England And this is the reason that Ante-nati in Scotland for that at the time of their birth they were under the ligeance and obedience of another King are aliens borne in respect of the time of their birth c. â—â—ttle in â—und tender 〈◊〉 late 12 Tender of the rent upon the land before the Distresse Co. l. 8. 147. 2. 4. The 6 Carpenters case makes the Distresse tortious tender after the Distresse and before the imparkment makes the detainer but not the taking tortious tender after the imparkment makes neither the one nor the other tortious for then it comes too late in regard the cause is then put to the tryall of the Law to be there determined 13 Distinguenda sunt tempora concordabis leges Co. l. 9. 16. b. Anna Bedingfeilds case â—state to the â—st issue in â—ile 14 Thomas Bowles in consideration of marriage with Anne Hide Co. lib. 11. 80. a. 4. Lewes Bowles case covenants to stand seised of the Mannor of D. to the use of himselfe and Anne for their lives and after to their first issue male and the heires male of his body and after to the heirs male of the bodies of Thomas and Anne c. In this case before issue had Thomas and Anne were seised of an estate taile executed sub modo viz. untill issue and then by operation of Law the estates were divided viz. Thomas and Anne became Tenants for life the remainder in taile to the issue the remainder to the heirs male of Thomas and Anne c. â—landerous â—ords 15 A man brings an action upon the Case for these slanderous words Thou art an arrant Knave a Cosener a Traitor Co. l. 10. 131. a. 1. Ja. Osborns case being all spoken together at one and the same time and upon not guilty pleaded the Iurors finde for the Plaintiff and assesse damages generally for all the words herein they did well for all those words taken together make but one scandal and albeit no action lieth for these words Thou art an arrant Knave a Cosener spoken apart by themselves yet being spoken at one and the same time and coupled with the other words and a Traitor which are indéed actionable they aggravate them and make them worse Howbeit if at one time the Defendant calls the Plaintiff Traitor and at another time he calls him arrant Knave and Cosener and the Plaintiff brings an action upon the Case and alleadgeth the said several words spoken at several times as several causes of action theâ—e if upon not guilty pleaded the Iurors assesse damages intirely judgement shall be arrested for all for he grounds his action upon two several scandals whereas one of them is not actionable c. 〈◊〉 perquisite â—y the purâ—hase of a â—illein 16 If a man hath a Villein in right of his wife Co. Inst pars 124. b. 1. and the Villein purchase land he shall have that perquisite in her right but if the Villeine purchase it after issue had then the Baron shall have the perquisite to him and his heires because by the issue he is entitled to be Tenant by the Courtesie in his own right 49 Quod prius est tempore potius est jure Vide Max. 62. Pl. 10. 19. â—emitter 1 One of the reasons of a Remitter is Co. Inst pars 1 347. b. 3. because that title which is first and more ancient is alwayes more sure and worthy And therefore many books in stead of Remitter say that he is En son primer estate or en son melior droit or en son melior estate c. or the like For Quod prius est verius est quod prius est tempore potius est jure c. Confirmation â—st best 2 The Lessée for life made a lease for thirty years Co. ib. 296. a. 3. and after the Lessor and Lessée for life made a lease for 60 years to another which lease for sixty yeares the Lessor did first confirme and after the Lessor confirmed the lease for thirty years and after the Tenant for life died within the thirty yeares In this case the lease for thirty yeares was determined by the death of the Tenant for life and the Lessée for sixty yeares might enter for that albeit the lease for sixty yeares was the later in time yet was it of greater force in Law because the Lessor who had power to confirm which of them he would did first confirm the second lease Inter Unwel and Lodge
formal attornment because the Baron cannot attorn to himselfe and his wife in his wives right yet his acceptance of the déed is a good attornment in Law to vest the services in the Feme and her heirs but during the coverture they are suspended c. Grant of the Seigniory to tenant for â—ife of the tenant 11 If there be Lord and Tenant Littl. §. 562. Co. ib. 314. a. 1 and the Tenant make a lease to a man for terme of his life saving the reversion to himselfe Here if the Lord grant the Seigniory to the Tenant for life in fée albeit as to all things concerning the right the Seigniory hath his being as if the Tenant die without heire the tenancy shâ—ll escheat to the Grantée c. yet as to the possession during the particular estate the Grantée shall take no benefit of the Seigniory and therefore during that time he shall have no Rent Service Wardship Reliefe Heriot or the like because these duties belong to the possession and he cannot do or pay them to himselfe Remitter 12 The principal cause Littl. Sect. 661. Co. ib. 349. a. 4. Littl. 665. Littl. 680. 682 683 684 c. why a Tenant in taile in many cases is remitted is because as Littleton saith there is no person against whom he may sue his Writ of Formedon for none is Tenant of the Franktenement but himself and against himself he cannot sue c. There is the same reason also of other Remittâ—rs Finch 19. Co. l. 33. a. 3. in the Marq. of Winchesters case Voucher asâ—ignee 13 If a man make a feoffment in fee to A. his Heirs and Assignes Co. ib. 385. b. 2. A. enfeoffeth B. in fée who re-enfeoffeth A. he or his Assignes shall never vouch because he cannot be his own Assignée but if B. had enfeoffed the heire of A. he might vouch as Assignée for the heire of A. may be Assignée to A. inasmuch as he claimeth not as heire Warranty 14 If Tenant in taile make feoffment to his Vncle Co. ib. 389. b. 3. 390. a. 1. Littl. Sect. 743. and after the Vncle make a feoffment in fée with warranty c. take again an estate to him in fee and then enfeoff a stranger without warranty and die without issue and the Tenant in taile die Here the issue in taile shall not be barred by the warranty made to the first Feoffee because that warranty by the Vncles resuming an estate in fee of the land is utterly defeated For if the warranty should have stood in force then should the Vncle have warranted it to himselfe which could not be c. â— selfe act â—â—id 15 A man cannot present himselfe to a Benefite Finch 19. 8 H. 6. 29. 3 El. Dyer 188 make himselfe an Officer sue himselfe or summon himselfe and therefore if a Sheriffe suffer a common recovery it is Error because he cannot summon himselfe Finch 19. 16 A man cannot be judge and party in a Suit No Judge of two Beâ—châ— at once And therefore if a Iustice of the Common Place be made a Iustice of the Kings Bench though it be but hac vice it determineth his Patent for the Common Place for if he should be Iudge of both Benches together he should control his owne judgments because if the Common Pleas erre that error shall be reformed in the Kings Bench. Co. l. 1. 174. a. 3. Diggs case 17 If a man by Indenture covenant to stand seised to the use of himselfe for life the remainder to others in tail The Feoffâ—â— in without 〈◊〉 try or claâ—â— c. and also reserve unto himselfe power of revocation and doth revoke the uses accordingly immediately upon such revocation the uses so limited are determined without entry or claim because he himselfe was Tenant for life of the land and he cannot enter or make claim upon or against himselfe c. And therefore it is agreed in the 20 E. 4. 18 19. that if a Feoffment be made upon collateral condition and before condition performed the Feoffée demiseth the land to the Feoffor if after the Feoffor perform the condition the land shall be immediately in the Feoffor without entry or claim because he himselfe is already in possession thereof So likewise if a Villain purchaseth rent issuing out of the Lords land that rent shall be in the Lord without entry or claime causa qua suprà Co. l. 2. 51. b. 4. Sir Hugh Cholmleys case 18 It is holden in 7 E. 3. that if the Advowson of the Church of Dale be granted to the Parson of Dale and to his Successors None can present hiâ— self this is void as to the Successor because the Successor can never take any benefit thereof by way of presentation for he cannot present himself c. Co. l. 4. 55. a. 1. The Sadlers case 19 In all cases at the Common Law No traâ—â—â— or action against the King when the King was seised of any estate of Inheritance or Franktenement by any matter of record he that right had could not by the Common Law have any travers or real action upon which he might have an Amoveas manum for that the King by his Writ could not command himselfe but he was put to his Petition of right in the nature of his real action to be restored to his Franktenement and Inheritance 4 H. 6. 12. 24 E. 3. 23. 1 H. 7. 3. 4 E. 4. 21. 9 E. 4. 52. Co l. 8. 68. b. 3. John Trollops case 20 If a Bishop himselfe be sued Bishop Eâ—communiâ—â—on and he pleads in disability of the party Plaintiff excommangement by himself or his Commissary who is as his Deputy albeit it be for another cause than that in question yet that shall not disable the Plaintiff because in this case the Bishop himselfe is party and with this agrées 16 E. 3. Excom 5. 5 E. 2. Excom 27. 5 E. 3. 8. 8 E. 3. 69. 18 E. 3. 58. 9 H. 7. 21. b. 10 H. 7. 9. Co. l. 8. 118. a. 1. Doctor Bonhams case 21 The President and five elect of the Colledg of Physitians in London ought not to be Iudges to give Sentence or Iudgement Judge and party Ministers to make summons and parties to have the moity of the forfeiture albeit they have an Act of Parliament to protect them viz. 14 H. 8. cap. 5. For Nemo debet esse judex in propria causa imò iniquum est aliquem suae rei esse judicem Co. ib. 118. b. 3. 22 If an Act of Parliament grant to any to hold or have Conusance of all manner of Pleas arising before him within his Mannor of Dale The like yet he shall hold no plea wherein himselfe is party For Iniquum est c. Co. 9. 123. b. 4. Anthony Lowes case 23 The Duchie of Lancaster before it was united to the Crown Duchy
of Lancaster was holden of the King in Capite but when they remained in one and the same person the ancient tenures of the Crown did sléep perpetuo somno because the King could not hold of himself F. N. B. 21. i. 24 In the Common Pleas upon Error in Processe Errour in 〈◊〉 not reversâ— in the same Court or in default of the Clerks the Iustices there may reverse their owne judgement so it be done the same terme without suing any Writ of Error And if it be deferred till another terme yet may it be reversed by the said Iudges upon a Writ of Error But if it be Error in Law which is the default of the Iustices themselves that Court cannot reverse such a judgment no not by a Writ of Error For that Error is to be redressed in another Court before other Iustices by Writ of Error because the Iustices of the Common Pleas are not competent Iudges of their owne error Conspiracy 25 A writ of Conspiracy cannot properly lye against one single person because one person cannot be said to conspire with himself F. N. B. 116. l. None can be a prisoner to himself 26 If the Warden of the Fléet who hath his office in fée Pl. Co. 37 a. 3. The Sheriffs of Londons case die seised his Son and Heire being then in prison and the office descends unto him being so in prison In this case the Law will adjudge him out of prison albeit the Fetters be upon his legs for that he cannot kéep himself in prison and therefore shall be adjudged at large No donor to himself Stat. 27 H. 8. 27 If A. seised of lands in fée before the Statute of uses made Anno Pl. Co. 59. a. 4. Wimbish and Talbois case 27 H. 8. had granted the same lands to Feoffees in trust to the use of himselfe and his wife in tail and afterwards the Statute is made Here by force of that Statute the possession being conveyed to the use the Feoffors are Donors and not A. For it seemeth improper and repugnant that A. should be Donor to himself Feoffees of lands charged with a recognisance 28 If the Conisor of a Recognizance according to the Statute of 23 H. 8. cap. 6. enfeoff the Conisee of parcel of the land Pl. Co. 72. b 3. Rosse Vens Sir Tho. Pope in Audita quaerela F. N. B. 104 n. 105. c. Vide Dyer 193. 30. 2 3 Eliz. and a stranger of another parcel and reserve parcel in his own hands Here the Conisee shall not have execution against the stranger For if one Feoffee of the Conisor where his land onely is put in execution may have an Audita quaerela against all the other Feoffees to make their lands also to be put in execution and to be contributary to the intire charge By the same reason if the Conisee himself be one of the Feoffees the lands in the hands of the other Feoffees shall not be chargeable with the execution for that the Conisee himself cannot be contributary with them for his part towards the satisfying of the charge because he cannot contribute to himself neither can he be contributary for a personal thing due to himself Neither yet shall the Charge be apportioned but all shall be extinct as against the other Feoffees Howbeit against the Conisor himself the Conisee shall have execution for the parcel still remaining in his hand c. Lands to be sold by Executors 29 At the Common Law Co. Inst pars 1. 113. a. 3. if lands had béen willed to be sold by Executors or had béen devised to Executors to be sold if any of them had refused the rest could not have sold them but now that is holpen by the Statute of 21 H. 8. cap. 4. viz. the first by the expresse words of that Statute and the other by the equity of the same Howbeit in neither of those cases when the one refuseth can the other make sale to him that so refuseth because he is party and privy to the last will and remaineth Executor still The younger â—rother chargeth the land â—f the elder 30 The younger brother disseiseth the elder Dyer 5. 1. 25 H. 8. who is barred in an Assise by a false oath the younger chargeth the land and dies without issue and the land descends to the elder brother In this case the elder brother is without remedy because there is none but himself against whom he may bring the attaint and therefore he shall still hold the land charged â—ythes 31 If the Parson of a Church purchase a Mannor within his Parish Dyer 43. 21. 30 H. 8. Here by this purchase and unity of possession the Mannor which was tytheable before is now made non decimabilis because he cannot pay tythes to himself â—itnesse 32 It was resolved in the Common Bench Co. Inst pars 1 6. b. 4. Pasch 10 Jac. that a wife cannot be produced as a witnesse either against or for her husband because they are one person in Law Duae animae in carne una and he cannot be a witnesse to or for himself in his own cause Dyer 220. 14. 5 Eliz. 33 A recognizance was acknowledged to Sir Nicholas Bacon and two others before Sir Nicholas himself being then Lord Kéeper Recognisance and it was adjudged void as to him and good for the others Dyer 279. 10 11 Eliz. 34 The Citizens of Yorke were incorporate by R. 2. Yorke Citie by the name of Major Sheriffs and Citizens and claim to be so before by prescription and to have a custom to seise goods forraign bought forraign sold Now in a suit against them for seising such goods the Venire facias issued to the Sheriffe of the County De vicinetu Castri Eborum because it was next adjacent to the Citie for it was not thought fit to direct it to the Sheriffs or Coroners of Yorke because they were Citizens and parties Dyer 304. 54. 14 Eliz. 35 The next avoydance is granted to thrée Quare Impedit Habendum iis uni eorum conjunctim divisim the first presents the third who is admitted instituted and inducted and adjudged good Howbeit if the Bishop had refused to admit him alone his Quare Impedit peradventure would have failed he having a joynt Interest in the avoydance and the Habendum being void in Law as it séems Hob. 10. Fryer and Gildridg 36 The Obligée made the wife of one of the Obligors his Executrix Debt extâ—â— and died the woman Executrix administred then her husband being one of the Obligors made her his Executrix and died leaving assets to pay the debt then she died and a stranger took administration of the goods of the Obligée unadministred and brought his action against the surviving Obligor but it was adjudged per Curiam that the action would not lie because when one of the Obligors made
is attainted of Felony the bloud on his part being corrupted the sonne as it séems to him hath but halfe the inheritable blood in him without corruption viz. the bloud of the mother and therefore he holds that such a sonne shall not be inheritable no not to his mother And with this agrées Bracton lib. 3. cap. 13. Non valebit felonis generatio nec ad hereditatem paternam vel maternam Si autem ante feloniam generationem fecerit talis generatio succedit in haereditatem patris vel matris a quò non fuerit felonia perpetrata because at the time of his birth he had two lawful blouds commixed in him which could not be corrupted by the attainder subsequent but onely as to him that offended See more of this matter Co. Inst pars 1. 8. a. Co. l. 11. 39. a. 4. in Metcalfs case 2 In an action of Accompt upon the judgement quod Computet No writ â—â—or befoâ— whole â—ment câ—â—pleated before the final judgement given for the arrerages and damages a writ of Error lyeth not for in that writ these words Si judicium inde redditum sit c. are meant not onely de principali judicio but also de integro judicio viz. When all the matter within the original is determined as in 34 H. 6. 18. in Humphrey Bohuns case in a Quare Impedit brought against two the one pleads to issue and the other confesseth the action upon which confession judgement is given and he against whom the judgment was given sues his waie of Error to remove the record into the Kings Bench but Prisot and the whole Court denied it because the writ of Error was to rehearse all those which were parties to the original writ and then the writ saith Et si judicium inde redditum sit tunc Recordarium illud habeatis c. By which it appears that the record shall not be removed by writ of Error before the whole matter be determined 〈◊〉 like 3 A writ of Trespasse is brought against two Co. ibid. b. 1. and the one appears and pleads so that he is attainted of the trespasse and judgement is given against him In this case the Defendant shall not have a writ of Error before the matter be likewise determined against the other c. The Lord Cromwels case against Cawary and others per Prisot tempore H. 6. 〈◊〉 like 4 In trespasse by the Lord of S. against one for his Cattle taken Co. ibib b. 2. 32 H. 6. 5 6. b. as to parcel the Defendant pleads not guilty and as to the rest he pleads another plea whereupon the Plaintiff demurs and after the issue was found for the Plaintiff upon which he had judgement In this case the Defendant shall not have a wait of Error until the whole matter be determined c. 〈◊〉 like 5 A man cast in a writ of Error upon a Iudgement given Co. ibid. b. 3. 39 H. 6. Error 11. where the judgement was given of the Principal and damages but not of the Costs Howbeit the writ was rejected because the writ is conditional Si judicium inde redditum sit c. 〈◊〉 like 6 In Formedon brought by Fitz-williams against Copley Co. ibid. b. 3. 12 Eliz. Dyer 291. the Demandant hath judgement of part c. And after the Tenant brings a general writ of Error before the discussion of the residue earnestly desired that the record might be removed into the Kings Bench but the Court would not grant it before the whole matter in demand should be determined for the Iustices of the Kings Bench should procéed without warrant if they should procéed upon a matter which is not determined and whereupon no judgement is given and the whole record ought to be either in the Common Pleas or in the Kings Bench also the original is intiâ—â— and cannot be here and there too c. 〈◊〉 Impe. 7 The next Advowson is granted to two Dyer 279. 8. 11 Eliâ— who joyn in a Quâ—â—e Impedit the one dies this shall cause the writ to abate 〈◊〉 not inheâ—blâ— 8 Baron and Feme being Donées in special tail Dyer 332. 27. 16 Eliz. the Baron is attainted of treason and executed having issue the Feme dies the issue shall not have the land for he ought to make his conveyance by both per Curiam â—ard 9 If an award be made for the performance of divers things on one side and nothing to be performed on the other it is a lame award Hob. 49. Nichol's case and void according to the book of 7 H 6. 10 A. brings an action of trespasse against B. C. and D. B. pleads not guilty whereupon issue was joyned C. and D. make a justification â—ob 70. Parkers case and thereupon after a replication a demurrer was joyned Hanging this demurrer the issue was tried against B. and damages given and judgement against him after which judgement the Plaintiff entred a Nolle prosequi against the Defendant C. and D. whereupon Error was brought by all the Defendants against the Plaintiff and the Error assigned was for that the Nolle prosequi had discharged all the Defendants but it was held that the Nolle prosequi against C. and D. had not discharged B. and so no error neither yet should C. and D. have joyned in this writ of Error because there was no judgement against them nor they grieved and the writ of Error is Ad grave daâ—â—um c. 68 Ex tota materia emergat Resolutio Co. l. 3. 59. b. 1. in Lincoln Colledg case 1 It is the office of a good Expositor of an act of Parliament to make construction of all the parts together Discontinâ—ance by the husband of 〈◊〉 wives land and not of one part alone by it selfe Nemo enim aliquam partem rectè intelligere possit antequà m totum iterum atque iterum perlegerit For example albeit the first branch of the Stat. of 11 H. 7. c. 20. makes the discontinuance alienation warranty and recovery made by the wife of the Inheritance of her deceased husband to be utterly void and of none effect Yet the clause following being joyned to the first with this conjunctive And that it shall be lawful for any person c. to whom the said Inheritance c. shall appertain to enter c. doth cléerly expound the generality of the words of the precedent branch And therefore the sense of both together is that they shall be void and of none effect by the entry of him unto whom the interest title or inheritance after the decease of the Feme doth appertain Howbeit they shall not be void but stand in force betwéen the parties themselves and against all others save onely against such as have title c. and they onely have power to make them void and of none effect by their entry as aforesaid For estates of Franktenement or Inheritance
that Service is not performed the Lord hath his remedy in foro seculari because the Service being certain proof thereof may be made in a temporal Court It is otherwise of tenure in frank-almoigne for that Service being spiritual and uncertain must be deâ—â—ned and recovered in foro Ecclesiastico in an Ecclesiastical Court unto which Court the Connusance of that cause doth properly belong c. Tenants in common for Rent arrear 9 If two tenants in common of Lands in fée make a gift in tail Co. ibid. 197. Litt. §. 314. or a lease for life reserving a yearly rent and a pound of pepper and an hawk and an horse and they are seised of that service and afterwards all the said service being arrear they distrain for it and the tenant makes rescâ—us In this Case as to the rent and pound of pepper they 〈◊〉 have two several Assises because the two tenants in common hold the reversion unto which that service is incident by several titles but as to the hawk and horse albeit they be tenants in common c. they shall joyn in the Assise for one of them above by himself cannot make his plaint in Assise for the moity of an hawk or of an horse because the Law will never suffer any man to demand any thing against the order of nature or reason as it appeareth by Littleton § 129. Lex enim spectat naturae ordinem c. Conditional â—eoffments â—or obligations 10 If A. enfeoff B. of Black acâ—e Co. ib. 208. b. 4 upon condition that if C. enfeoff B. of White acre A. shall re-enter In this Case C. hath time during his life to make the feoffment if B. doth â—oâ— hasten it by request and so likewise of all Obligation Howbeit in some Cases although the condition be collateral as aforesaid and is to be performed to the Obligée and no time limited c. yet in respect of the nature of the thing the Obligor shall not have time during his life to perform it As if the condition of an Obligation be to grant an Annuity or yearly rent to the Obligée during his life payable yearly at the Feast of Easter this Annuity or yearly rent must be granted before Easter or else the Obligée shall not have it at that Feast during his life sic de similibus And so it was resolved by the Iudges of the Common Pleas in Andrews case for which see Dier 14. Eliz. 311. â—he like 11 If a feofment or bond be made upon condition Co. ib. 210. a. 4 that the Feoffor or Obligor shall pay a certain sum of money to the feoffée or obligée at such a day but no place limited for the payment thereof In this case the Feoffor or Obligor ought to séek out the feoffée or obligée to make payment thereof accordingly if he be to be found within England c. for in case of an Obligation the Law was alwayes clear and in case of a feofment although it hath béen sometimes controverted yet at this day that doubt is setled it having béen oftentimes resolved that séeing the money to be paid is a sum in grosse and collateral to the title of the land the feoffor must tender the money to the person of the feoffée and it is not sufficient for him to to tender it upon the land otherwise it is of a rent that issueth out of the land Howbeit if the condition of a bond or feoffment be to deliver twenty Quarters of wheat or twenty loads of timber or the like the Obligor or Feoffor is not bound to carry the same about and to séek the Feoffée or Obligée but the Feoffor or Obligor before the day must go to the Feoffée or Obligée and know where he will appoint to receive it and there it must be delivered And so note a diversity betwéen money and things ponderous or of great weight Likewise if the Condition of a Bond or Feoffment be to make a Feoffment there it is sufficient for him to tender it upon the Land because the State must passe by livery c. Co. ibid. 285. b. 3. 12 Every man shall plead such pleas as are proper for him Pleas of a disseisor and apt for his defence to be pleaded As a disseisor that hath nothing in the land may plead a release of Actions personal because damages are to be recovered against him and therefore for his defence he may plead it But a release of Actions real he cannot plead because he hath no Estate in the land And none shall plead a release of Actions real in an Assise but the tenant of the land Et sic de caeteris Co. ibid. 338. a. 3. 13 A particular Estate of things that lie in grant cannot commence without déed Things that lie in grant and consequently that Estate cannot be surrendred without déed but albeit a particular Estate be made of Lands by déed yet may it be surrendred without déed in respect of the thing demised because the particular Estate might have béen made without déed And so on the other side if one be tenant by the Courtesie or tenant in Dower of an Advowson Rent or other thing that lies in grant albeit there the Estate began without déed yet in respect of the nature and quality of the thing that lies in grant it cannot be surrendred without déed And so if a Lease for life be made of Lands the remainder for life albeit the remainder for life began without déed yet because Remainders and Reversions though they be of lands are things that be in grant they cannot be surrendred without déed c. Co. ibid. 144. a. 3. 14 A Rent cannot be granted out of a Piscarie a Common No rent oâ—â— of things incorporeal an Advowson or such like incorporeal Inhabitants but out of lands or tenements whereunto the Grantée may have recourse to distrain or which may be put in view to the Re-cognitors of an Assise And although it be out of Lands or tenements yet it must be out of an Estate that passeth by the Conveyance and not out of a right as if the Disseisée release to the Disseisor of Land reserving a rent the reservation is void sic de similibus Co. l. 4. 43. b. 4. in Bibithes Case 15 John Goffe the brother and heir of R. Goffe No accessorâ—e before the 〈◊〉 in manslâ—â—â—hter brings an Appeal of murder of the said R. Goffe against Bibithe as principal and against Hoell David as accessarie before and against David Thomas as accessarie after The principal pleads not guilty and by nisi prius in the County of Manmouth he was found guilty of man-slaughter and not guilty of murder and in this Case it was resolved per Popham Chiefe Iustice totam Curiam in the Kings Bench that Hoell David was discharged because there could not be any accessory before the fact in Case of man-slaughter for
and the six moneths passe and after the Kings tenant dies before the Bishop presents by laps and leaves his heir within age and in ward to the King In this case the Bishop shall not present by laps but the King shall have the presentment by reason of the ward c. F. N. B. 35. p. 75 In a Quare Impedit for the King Not stopt albeit the Defendant hath a writ to the Bishop against the King yet the King may sue a new Quare Impedit against the party of the same avoidance and make another title F. N. B. 37. f. 76 The King may sue a Ne admittas after the six moneths past Ne admittas where he hath a Quare Impedit or an Assise de Darrein presentment depending because Nullum tempus occurrit Regiâ— It is otherwise in the Case of a common person because the Bishop may then present by laps the title of presentment being devolved to him c. F. N. B. 38. e. 77 In a Quare Impedit betwéen two strangers The Kings title if the title appears to the Court for the King they award a writ to the Bishop for the King accordingly F. N. B. 60. i. 78 Vpon grant of a Reversion Wast Attornment although it be by fine the Grantée cannot bring an Action of wast against the tenant before Attornment but if the King grant a Reversion by his Letters Patents the Grantée may have an Action of waste before Attornment F. N. B. 85. a. 79 At the Common Law every man may go out of the Realm for Merchandizing Peregrination Ne exeâ—s regâ— absque lier 〈◊〉 Regis or other Cause whatsoever pleased him without the Kings licence and he was not to be punished for it Howbeit because every man is by Law bound to defend the King and his Realm therefore the King at his pleasure may by his Writ de securitate invenienda quòd se non divertat ad partes exteras sine licentia Regis command that he shall not go out of the Realm without his licence c. And if he doth it he may be punished for dis-obeying the Kings Command And it séems that this Commandement may be made by the Kings Writ under the Great Seal Privy Seal or Privy Signet For in this Case the Subject is bound to take notice of every Seal the King hath as well as of the Great Seal F. N. B. ibid. c. The King may do the like by his Proclamation in Case he cannot be found to have the Writ served upon him which if he obey not it is a contempt for which he shall make fine to the King Note that by the Statute of 5 R. 2. cap. 2. it was ordained that none should go out of the Realm without the Kings licence which continued in force until 4 Jac. and then by the Statute of 4 Jac. cap. 1. that Clause of that Statute was repealed So that at this day it séems that the Subject hath the same liberty that he had at the Common Law Dier 296. 19. yet by the words in the beginning of the writ which are these Rex A. de B salut c. Quia datum est nobis intelligi quod tu versus partes exteras absque licentia nostra clà m destinas te divertere It séems he cannot go out of the Realm unlicensed by the King c. As Dyer observes 165. p. 6. Ideo quaere de hoc Protection 80 If after the King hath granted to one his protection F. N. B. 92. b. c. any man takes his Goods or enters into his Lands c. or beats his Servants c. the partie grieved shall have a special writ directed to the Seriffe to inquire of them and to certifie it before the King c. And it séemes that the King shall make processe against them by venire facias as upon an Indictment and that they shall make fine hereupon Sea-banks Sâ—wers 81 The King ought of Right to have and defend his Realme as well against the brâ—akings in of the Sea F. N. B. 133. a. as against enemies that it be not drowned or wasted and to provide remedy for it And also to provide that his subjects have their passages throughout the Realme by Bridges and safe Wayes And therefore if the Sea-bankes be broken or Sewers and Gutters be not scoured that the fresh waters may have their direct Course the King may and ought to make a Commission to inquire thereof c. And to hear and determine those defaults But now matters that concerne Sewers are regulated by direct late Statute viz. 23 H. 8. 5. 13 El. 9. c. Priority Wardship 82 If a Man hold of the King by Posteriority F. N. B. 142. f. and of another man by priority and after the King grants to the Quéen the Seigniory for terme of life and after the Tenant dies his heire within age In this Case the Quéen shall have the wardship of the body having no regard to the Posteriority Because the Reversion of the Seigniory remaines still in the King It had béen otherwise if the King had granted it in remainder to another in Fée for then it seemes they should not have had the priority c. Annuity 83 If the King grant an Annuity to one for terme of life or yeares F. N. B. 152. k. it ought to be expressed in the grant by whose hands he shall receive that Annuity as to say by the hands of the Sheriffe of S. or by our Baylife of the Mannor of S. and then the Sheriffe or Baylife shall have allowance upon that Patent shewing if he pay it And if there be not such words in the grant of the Annuity then the grant is void For he cannot sue to the King for it and no person is bound to pay it unto him if he be not named and expressed in the Patent c. â—yde â—â—ayer Procedendo 84 If a Man pray in Ayde of the King F. N. B. 253. e. f. and the Ayde is granted then shall it be awarded that he shall sue to the King in the Chancery And the Iustices of the Common Pleas shall cease until a Writ De procedendo in loquela come unto them c. And then they may procéed in the Plea until it go on so farre that Iudgement ought to be given c. For the Plaintiffe And then also the Iudges ought not to procéed to Iudgement until another Writ De procedendo ad judicium be brought unto them And if the King certifie the Iustices by his writ that the Lands are seised into the Kings hands then also shall they surcease until a writ De procedendo loquela be sent into them c. And if it appeare to the Iustices upon Record that the Tenements are seised into the Kings hands or if it appeare to the Court by the pleading and shewing of the Parties that the
Bedfords case 29 When a Subject is Guardian in Chivalry Voidable Leases he in the right of the heir within age and in his Guard shall avoid voidable Leases for so long time as he hath interest in the Lands by reason of the Wardship but this shall not prejudice the Heir of his election to make the Leases good by acceptance of the Rent c. when he shall attain his full age For Custos statum haeredis in custodia sua existentis meliorem non deteriorem facere potest The Law is also the same when the King is Guardian c. Co. l. 861. b. 4. in Beechers ca. 30 Infants shall not be amercied Amerc Pledges and consequently shall not finde pledges by reason of the weaknesse of their age And therefore in that Case the entry is Ideo in miserecordia sed perdonatur quia Infans Vide 43 Ass Pl. 45. 44 E. 3. tit Amerc 10. 3 E. 3 Enfant 14. 14 Ass Pl. 17. 41 Ass Pl. 14. 17 E. 3. 75. Bracton fol. 254. F. N. B. 195 h. Co. l. 8. 99. b. 4. in Sir Richard Letchfords cas 31 A Custome that the Lord shall seise Copiholds after thrée Proclamations at thrée Courts and non-claim by the heir Copiholds Proclamation Non-claim c. shall not binde the Heir that is beyond Sea extra Maria at the time of the Proclamations made so it is also of an Infant non compos mentis or one in prison because in judgment of Law they are not bound to make claim neither yet by intendment can they have notice thereof for if these four persons were excused by the Common Law though they made not claim within a year and a day after a Fine levied or a Recovery in a writ of Right being matters of record and of extraordinary high esteem in the Law so that they were not barred of their right notwithstanding their non-claim A Fortiori shall not Proclamations made in a base Court and in a private corner be any bar unto them c. Vide 5 E. 3. 222. and 7 E. 3. 335. Also if in a real Action a Recovery by default be had against a man in prison it shall not binde him but he may reverse it by writ of Errour as appears 5 E. 3. 50. b. 4 E. 2. Disceit 51. Littleton 102. b. Co. l. 9. 76. b. 4. in Combes case 32 Where the custome is Custome Feofment Age 15. that an Infant at the age of 15. may make a feofment he cannot do it by Attorney because the Custome that inables any person disabled by the Law ought to be pursued and an Infant cannot make any thing to passe out of him by Attorney Vide 11 H. 4. 33. Co. l. 9. 85. a. â— in Connys case 33 Albeit the tenant of a Mannor that is within age may be distrained for rent arrear and neither in that Case Distrain per quae serviâ— nor in a per quae servitia brought against him when the tenancy descends shall have his age because at first the Lord departed with the land in consideration that the tenant should hold of him pay his rent do his services c. And although upon grant of the Mannor by Fine he may be compelled to Attorn in such a writ and if he Attorn upon grant thereof in pais the Attornment is good yet in a writ of Customes and Services which is a writ of Right in his nature A writ of Custom Serv. Age. and in which Iudgement final shall be given against an Infant that is in by descent he shall have his age although it be upon his own Cesser because he knoweth not what arrerages to tender before judgement and that is a writ of right in his nature and if he make not true tender he shall lose the land And so it was adjudged in 28 E. 3. 99. Vide 9 E. 3. 50. 14 E. 3. Age 88. 31 E. 3. Age 54. 2 E. 2. Age 132. And albeit such an Infant do attorn in a Per quae servitia Attornment that can be no mischief unto him for notwithstanding his Attornment within age he may at his full age disclaim to hold of him or may say that he holds not of him or may acknowledge he holds of him but by lesse or other services And with this seems to accord 26 E. 3. 63. 32 E. 3. Per quae servitia 9. and Age 33. Vide 2 E. 2. Age 77 78. 37 H. 8. Attornment Br. Quid Juris clamat 34 In a Quid Juris clamat brought by an Infant the tenant saith 43. E. 3. sol 5. 32. E. 3. cited per Coke Ch. Justice l. 9 85 b. 2. in Connys Case that he holds the land for term of life of a Lease of the Infants Ancestor who granted that he should not be impeached of waste by déed which he shewed forth to the Court Waste And in this Case because the Plaintiff was within age and so could not acknowledge the déed during his non-age it was adjudged that he should stay untill his full age Neverthelesse in this Case if when the Infant attains his full age the Defendant attorns by judgement of Court Parol Demur No prejudice this shall not any way trench to the Infants prejudice For albeit the Attornment were after his full age yet in as much as there was no Laches in the Infant but that he brought his writ de quid juris clamat to force the tenant to attorn the delay which was till his full age which the Law provided for his benefit shall not turn to his prejudice And therefore by judgement of law which doth wrong to none he shall have as much advantage as well for the arrerages of rent as for waste done as if the Tenant had Attorned at the time of the Plea pleaded Devise Tail Conclusion 35 There was a Clause annexed to an Estate tail devised by will to a Feme sole Co. l. 10. 42. b. 4. in Mary Portingtons Case per Coke Ch. Justice that if she should apparently and willingly conclude and agree to dis-continue the Estate c. that then the land should from thenceforth remain to another c. the Feme takes husband and they two conclude and agrée with J. S. to suffer a recovery of the Land with intention to make void the Estate and thereupon a common recovery was suffered accordingly c. And in this Case Coke Chief Iustice was of opinion Feme covert â—an passe noâ—hing without â—xamination 〈◊〉 writ that such conclusion of a Feme covert was of no force neither yet could be any cause of forfeiture for no Feme covert shall be barred by her confession of her inheritance or frank-tenement but when she is examined by due course of Law 15 E. 4. 8. 44 E. 3. 28. Vide 14 E. 4 5. And none hath power to examine a Feme covert without writ Vide 21 E. 3. 43. John de
Quare vi armis and since that by sundry Statutes in divers other Actions viz. in Accompt debt detinue annuity Covenant Action upon the Statute of 5 R. 2. Action upon the Case c. Co. ibid. 201. b. 2 4 Villenage is such an exception in any plea brought by the Villein against the Lord that it shall make the writ abate Dis-ability persons so that he shall not have a resummons or Re-attachment as in Case of the Excommunication c. Co. ibid. 158. a. 1. 5 If a man be out-lawed in Trespass debt No Juror or any other Action he is thereby disabled to serve of a Iury for that is a principal Challenge to the Poll viz. propter delictum because he is Exlex and therefore is not legalis homo Co. ibid. 132. b. 4. 6 A man exiled or banished beyond Sea viz. by authority of Parliament Exiled Abjured Dead The Feme may sue or in Case of abjuration upon an Ordinary procéeding of Law is in the nature of a dead man in Law And therefore in such Case his Wife may sue or be sued without him as in Case when a man enters in Religion and is profest a Monk c. Thus it was in the Case of the Wife of Sir Robert Belknap 2 H. 4. 7. a. one of the Iustices of the Court of Common Pleas for during his banishment being yet alive she brought a writ in her owne name whereupon one said Ecce modò mirum quòd foemina fert breve Regis Non nominando virum conjunctim robore Legis So likewise E. 3. 10 E. 3. 53. 1 H. 4. 1. b. Pl. in Parl. 19 E. 1. brought a Quare Impedit against the Lady Maltravers and after that H. 4. brought a writ of Ward against Sibill B. during the exile of her Husband The like was also adjudged at the Parliament holden in Crastinum Epiphanum Ann. 19 E. 1. in the Case of Margery de Mose Wife of Th. of Weyland being the yeare before abjured the Realme for felony c. Howbeit if the Husband by Act of Parliament have judgement to be exiled but for a time which some call a Relegation that is no civil death but abjuration in 8 E. 2. Coron 425. is called a divorce betwéen the Husband and the Wife And therefore in that Case the Wife may sue and be sued c. Co. ib. 2. a. 4. Co. l. 7. 17. a. 2. in Calvins Case 25. a. 4. Calv. Case 7 If an Alien Christian or Infidel purchases houses lands Aliens purchase is the Kings tenements or hereditaments to him and his heires albeit he can have no heires yet he is of capacity to take a fée-simple but not to hold for upon an Office found the King shall have them by his prerogative of whomsoever the land is holden and in that Case the Lord shall lose his Seigniory So it is also if he purchase land and die for in that likewise the Law casteth the fréehold and inheritance upon the King If an Alien purchase any Estate of frée-hold in lands c. upon Office found the King shall have them If an Alien be made denizen and purchase lands and die without issue the Lord of the fée shall have the escheate and not the King If an Alien purchase a lease for yeares upon Office found the King shall have it unlesse it be of an house for habitation to the end he may use Merchandize and Commerce Howbeit such an house also if he return home and leave or die the King shall have it and not his Executors c. â—ne born out 〈◊〉 the Kings â—geance 8 A man seised of land in fée hath issue an Alien Co. ib. 8. a. 1. that is borne out of the Kings Ligeance he cannot be heire propter defectum subjectionis albeit he is borne within lawfull marriage And if he be made Denizen by the Kings letters patents yet cannot he inherit to his father or any other But it is otherwise if he be naturalized by Act of Parliament for he is not then accounted in law Alienigena but Indigena â—ue not inâ—â—ritable 9 When an Alien is made Denizen the issue Co. ib. Co. l. 7. 7. a. 4. in Calvins Casâ— 36 H. 8. dâ—nizen Br. 9 that he hath afterwards shall be heire to him but no issue that he had before So likewise if an Alien commeth into England and hath issue two Sonnes these two Sonnes are Indigenae subjects borne because they are borne within the Realme and yet if one of them purchase lands in Fée and dieth without issue his Brother shall not be his heire for there was never any Inheritable bloud betwéen the Father and them and where the Sonnes by no possibility can be heires to the Father the one of them shall not be heire to another Co. ibid. 129. a. 3. It is otherwise of naturalization by Act of Parliament for if the Father he naturalized by Parliament the Issue had before c. shall Inherit So if an Issue of an English-man be borne beyond Sea and the Issue be naturalized by Parliament he shall Inherit his Fathers Land but so he shall not although made Denizen because no Alien naturalized by Act of Parliament is to all intents and purposes as a naturall borne subject but so is not a Denizen Dower â—enant by Courtesie 10 If a man be seised af an Estate of frée-hold and inheritance in lands c. and take an Alien to Wife and dieth Co. ib. 31. b. 4. Co. l. 7. 25. a. 4. Calv. Case she shall not be endowed neither shall the Baron be Tenant by the courtesie Howbeit it is otherwise in the Kings Case c. And Edmond the Brother of E. 1. married the Quéen of Navarre and died And it was resolved by all the Iudges that she should be endowed of the third part of all the lands whereof her husband was seised fée â—is-ability of â—ing 11 It is a good plea in dis-ability of the person Litt. §. 189. Co. ib. 129. b. 1. Co. l. 7. 16. a. 4. in Calv. Case Co. ib. 17. a. 3. Calv. Case that the Demandant or Plaintiffe is an Alien vee and this exception holds good in all Actions both reall and personal against an Alien enemy but not absolutely against other Aliens for the Law doth distinguish betwéen an Alien that is a subject to one who is an enemy to the King and one that is subject to one who is in league with the King And true it is that an Alien Enemy shall maintaine neither Reall nor Personal Action Donec terrae fuerint communes viz. till both Nations be in peace But an Alien that is in league shall maintain personal Actions For such an Alien may trade and traficke buy and sell And then of necessity he must be of ability to have personal Actions but he cannot maintaine either reall or mixt actions So also an
of Conduits and Water-pipes or the like So if a man have an ancient Window in his Hall and after covert the Hall to a Parler or any other use yet shall it not be Lawfull for the Neighbour at his pleasure to stop it For he may prescribe to hâ—ve a light in such a part of his House c. â—porâ—tions â—â—red yet the â—dy remaines 22 If a Corporation hath Franchises and Priviledges Co. ibid. b. 1. by grant or prescription and after they are incorporate by another name as whereas they were Bailiffs and Burgesses before now they are Mayor and Community Or Prior and Covent before and after translated to Deane and Chapter In these Cases albeit the qualities and name of their corporation is altered and charged and principally in the Case of Prior and Covent for of Regulâ—â— who are dead persons in Law they are made Secular yet the new body shall enjoy all the Franchises Priviledges and Hereditaments which the old Corporation or body Politique had either by grant or by prescription because albeit the name c. is changed yet the body which is the substance doth still remain c. 〈◊〉 of form â—dable by â— Clâ—râ—e 23 If a Count be insufficient in point of forme onely Co. l. 35. b. 1. in Playters Case which the Clerk is able to amend without the information of the Plaintiffe that error may be rectified by the Clerke by force of the Statute of 28 Eliz. cap. 14. It is otherwise if it be deficient in matter of substance As in Trespass if the Plaintiffe declare Quare clausum suum fregit pisces suos cepit c. without shewing the number or nature of the fish In this Case that omission is matter of substance and not of forme to be remedied by that Statute c. â—â—ke of the 〈◊〉 in some 〈◊〉 matter of â—nce 24 In a Writ of Error upon a recovery in wait Co. l. 5. 45. a Freemans Ca for that in reciting the Statute of Glocester the writ had destrictionem for destructionem it was adjudged that that mistake of the Clerke was matter of substance because destrictio was a Latin word which quite altered the sence of the Statute and therefore could not be helped by any Statute it had béen otherwise if it had béen matter of forme onely For at this day if the original writ want forme onely or containes false Latin or varies from the Register in matter of forme In such Case after verdict no judgement shall be stayed or reversed but if it want substance as in the Case aâ—ove said although it be onely the mistake of the Clerk yet it shall not be remedied by any Statute And therefore in a writ of partition the Iustices of the Common Pleas inserted this word oftensurus which was omitted and in a writ of Ayell they amended this word Ave and made it Avie 〈◊〉 arreare 〈◊〉 Kings 〈◊〉 25 Where the King hath right of entry for default of payment of a quarters Rent and by the office more rent is found arreare Co. l. 5. 56. b. 1 Knights Case then what the quarters rent amounts unto yet that is sufficient for the King when the Office hath matter and substance for the sole and substantial point which proves the breach of the Condition is the non-payment of the Rent or any part thereof and it is not material when the Rent was arreare for if any part thereof be arreare it suffiseth c. Co. l. 6. 47. b. 2 in Dowdales Case 26 In debt against an Executor the Iury finds assets in Regno Hyberniae and the verdict was adjudged good Assets found in any plaâ— albeit the Assets were found not onely in a Forraigne Country but in a forraigne Kingdome for the finding of assets is the substance and the place where is but sur-plussage and circumstance And therefore if an Executor have goods of the Testator in any part of the world as if the Testator were a Marchant or the like that had goods beyond Sea he shall be charged with them as Assets For the place is but circumstance c. Co. l. 8. 49. a in John Webbes Case Vid. Stat. W. 2. c 24 in 13 E. 1. 27 In ancient time Writs origiâ— used though the Case â—aâ— in circumstance when the Masters and Clarks of the Chancery were grave wise men well versed in the Lawes of the Land the first sort of them making writs in difficult Cases onely which were called Brevia Magistralia and they by reason of their profound learning called Masters of the Chancery the other making Brevia de causa and therefore called Cursitoriâ— writs were by them exactly formed without fault or error But now when such learned Clerks faile the Iudges in many Cases give allowance to ancient formes of writ and puts the partie to make a special Count and in such Case when the writ warrants the Count in substance they adjudge it sufficient although there be variance in circumstance Co. ibid 48. a. 4 For example the Original writ of Assisa ultimae praesenâ—ationis is formed in these words quis advocatus tempore pacis praesentavit ultimam personam quae mortua est This forme shall hâ—d and not be changed albeit the incumbent resigned as appeares in 18 E. 2. Tit. Assise de darreine praesentm 20. c. F. N. B. 53. h. Also the writ of Warr. Cartae is formed in these words Quòd justè c. warrantized B. unum mesuagium in D. c. unde cartam habet c. yet if he be bound to warranty by force of an exchange or by homage ancestrel the form of the writ shall not be altered Vide 9. E. 4. 49. 21 H. 6. 8. c. F. N. B. 134. Co. l. 8. 76. b. 2. in the Lord Staffords Case 28 The Law never requires circumstance Circumstaâ— not requireâ— when it 〈◊〉 subvert the substance when thereby the substance may be subverted As if the King grant Land to I. S. for life with Condition that if I. S. pay at the Exchequer such a day xx s. to the Kings use that then he shall have fée and I. S. payes the xx s. accordingly Although it be regularly true that the King by reason of the Majesty of his person cannot take or depart with any thing but by matter of Record yet in this Case I. S. shall have fée in the Land and the fée-simple shall be out of the King immediately upon the payment of the xx s. without petition monstrance de droit or any other such circumstances for if the Estate shall not vest before such circumstance then it cannot vest presently and if it vests not presently it shall never vest because if the Estate be not enlarged and therefore in such Case the fée-simple for necessities sake shall passe out of the King without any such circumstance for as is said before the Law never requires circumstance when it may
his Court that the Corporation hath jurisdiction to hold Court either by prescription or by patent And it also appeares by the Court in that Court that the Action of Debt was brought for 100 l. without mentioning any obligation and therefore it was to be intended that there was no obligation and then the Executor was not chargeable in an action upon a single contract And in this case albeit the Defendant in his barre acknowledged that the Debt was by obligation yet that shall not make the Count good for when the Count wants circumstance of time or place c. that may be made good by the barre but when the Count Barre Replication or c. want substance this cannot be made good by the plea of either party Co. l. 5 72. a. 1. in St. Iohns Case 39 A Dagge is as well prohibited to be carried about one Dagge the same with Handgun as an Handgun by the Statute of 33 H. 8. 6. albeit a Dagge is not named in that Statute nor was then invented because a Dagge differs not from a Handgun in substance but hath onely some small alteration in form and quality Co. l. 8. 120. b 3 in Doctor Bonhams Case 40 When the Count or Declaration wants time place Pleading or other circumstance it may be good by the barre and the barre by the replication c. as appears by 18 E. 4. 16. b. but when the Count wants substance the barre cannot make it good and so it is also of the barre replication c. and with this accords 6 E. 4. 2. Bon. Case Dier 19. 113. 28 H. 8. 41 An obligation was thus drawn A bond without dare greâ—â— Ad quam quidem solutionem bene fideliter solvend obligo me per praesentes datum c. and saith not Sigillo meo sigillat nor In cujus rei testimonium yet by Shelley and Fitzherbert it is ruled good if it were sealed for that is of substance the other being but circumstances Co. l. 10 124. b. 2. Wingates Case 42 The Dean and Canons of Windsor were incorporate by act of Parliament in 22 E. 4. by this name Name of a Corporation The Dean and Canons of the Kings free Chappel of St. George the Martyr within his Castle of Windsor and in the Raigne of P. and M. they made a Lease of certain lands by this name The Dean and Canons of the King and Queens Frée Chappel of S. George within the Castle of VVindsor And in this case three variances were observed 1 Because it was named the King and Queenes Frée Chappel whereas it should have béen onely named the Kings 2 It ought to have béen S. George the Martyr whereas Martyr was omitted 3 It was said within the Castle whereas it should have béen within the Kings Castle In this case the first onely was adjudged a material exception and of substance but the other two onely matter of circumstance and not material and so the Lease adjudged void for the first Dyer 98. a. 50. 1 Mar. 43 Albeit in the summos of Parliament of 1 Mar. these words supremum caput Ecclesiae Anglicanae Supremum caput Ecclesâ— c. were omitted contrary to the Statutes of 26 and 35 H. 8. yet by the better opinion the summons is good because it was but an Addition or circumstance and not parcel or of the substance of the name of the Quéen This doubt was also moved in the Parliament of 1 El. 2. and upon great deliberation so likewise resolved Dyer 150. 85. 3 4 P. M. 44 The Corporation of Eaton Colledge was erected by H. 6. per nomen praepositi Collegii Regalis Collegii beatae Mariae de Eaton c. A void Leasâ— And in the time of E 6. a Lease was made per nomen Praepositi sociorum Collegii Regalis de Eaton omitting Collegium and Beatae Mariae and adjudged naught c. â—ppeal â—leâ— 45 The Lessée of a Parson brings an ejectione firmae the Defendant pleads that the Parson was deprived the Plaintiffe saith Dier 240. 46. 7 El. that the Parson hath appealed to the Arch-bishop of Canterbury in Curia praerogativa sua de Arcubus and because the Words of the Statute of 24 H. 8. 12. are that the appeale shall be to the Arch-bishop of the Province or c. without limiting any Court in certain the Defendant demurred in Law And it was held by the Iustices that the Words to the Archbishop of Canterbury being Words of substance were sufficient to maintain the Plea and that the other Words being but circumstantial and surplussage should not prejudice the Plaintiffe â—â—nomer 46 The Deane and and Chapter of Carleil being incorporate by the name of the Deane and Chapter Ecclesiae Cathedralis Sanctae individuae Trinitatis Carleil Dier 278. 1. 11 El. made a lease by the name of Decanus Ecclesiae Cathedralis Sanctae Trinitatis in Carliel totum Capitulum de Ecclesia praedicta And by the opinion of six Justices against thrée it was held good notwithstanding that variance because it is not of substance of the name Vide 35 H. 6. 4 5. A Prior sues by the name of Ecclesia Sancti Petri whereas the foundation was Petri Pauli and adjudged not good because of substance Replevin 47 Pope brings a Replevin against Skinner Hob 72. Pope and Skinner who avowes the taking as a Commoner in April 11 Jac. the Plaintiffe in barre saith that one Williams was seised of an house and land c. whereunto he had Common c. and demised the same unto him the 30 day of March in the same 11 yeare to hold from the Feast of the Annunciation next before for a yeare The Avowant traverseth the lease modo forma whereupon issue is taken and the Iury said that Williams made a lease to the Plaintiffe on the 25 day of March for one yeare from thence next insuing And albeit this was not the same lease that the Plaintiffe pleaded for this begins on the day and the other not so soone nor was to take his limitation but from the day exlcuded yet the Court gave judgement for the Plaintife for the substance of the issue was whether or not the Plaintiffe had such a lease from Williams as by force thereof he might Common at the time which appeareth for him in this Case and the modo forma in the rest is not material c. Vide Hob. 76. Parker and Parker 117. Napper and Jasper 133. Moon and Andrews 102 Yet for memory and solemnity substances are to be-exprest under Ceremonies 〈◊〉 actions deâ—ce must be 〈◊〉 1 In all Actions real personal or mixt Co. Inst p. 1. 127. b 3. albeit the Tenant or Defendant appeareth and pleads a sufficient barre yet if he makes not in his plea a lawful defence as in personall actions to say praedictus C. D. defendit vim injuriam
memoriae and yet doth the Law of Nature and Law of the Realme prohibits generally the beating of any but this special Case for the prevention of a greater mischief hath an exemption and a special priviledge Pl. ibid. b. 4. 35 In a praecipe quod reddat the Tenant shall excuse his default by the increase of Waters and yet every default is abhorced in Law Necessity â—â—cused a default because it is a contempt of the Court but for that he could not without peril of death appeare the necessity of the accident in such Case shall excuse him 1 Kings 21. Math. 12. Pl. ib. 19 a. 1. 36 The Law of God prohibited the eating of Proposition Bread Proposition Bread anâ— Eates of 〈◊〉 may be 〈◊〉 yet it was adjudged by CHRIST himself to be lawful for David to eat it in a time of necessity to prevent famine So also upon the like occasion was it lawful for Christs Apostles to pull the Eares of other mens Corne and to eat them And in our Law an Obligation per dâ—â—â—s or minas shall be avoided because it is done by compulsion Pl. 37. b. 4. Plats Case 37 If the Sheriffe of Middlesex suffer an in-voluntary escape of a prisoner and making fresh suit after him takes him in Surrey Pursuit upâ—â— an escape â— of a diâ—â—â— where he is not Sheriffe yet he may justifie the taking of him there So â—â—so if one come to distrâ—ine for Rent-service and the Tenant séeing him comming drives away his Cattle from off the land yet there the Lord may pursue them within view and retake them in whatsoever land they are albeit they are out of his Authority For the pursuit and the possession after shall be adjudged as a possession with continuance when it is for Rent-service But it is otherwise for damage fesant and so the diversity is held 16 E. 4. fol. 10. yet H. 6. R. 2. abr per Fitz. Rescous 11. it is held also justifiable for damage fesant and all this is allowed for the necessity of the occasion and in favour of right and justice â—â—it patent â—ed in the 〈◊〉 Court 38 If a man hold as of a Seigniory in grosse F. N. B. 3. c which hath not a Mannor where the Lord may kéepe any Court in such Case the Tenant may sue Briefe de droit patent in the Kings Court and the Lord shall not have any Action against him for it nor by any meanes annul his Action because he hath not any Court to hold plea thereof And therefore he is compelled by necessity to sue immediately in the Kings Court. 〈◊〉 of right 〈◊〉 Dower suâ—â— in the â—B 39 If the Baron give part of his Mannor in taile to hold of him and die F.N.B. 8. a. b the Feme shall sue her writ of right of Dower in the Court of the Heire of the Baron against the Donée in taile and the writ shall be directed to the Heire But if the Baron make a Gift in taile of all the Land he hath and die here the Heire of the Baron cannot kéep any Court because he hath but a Seigniory in grosse and therefore in such Case it séemes reasonable that she shall have her writ of right of Dower against the Donée in taile directed to the Sheriffe and returnable in the Common Place and there shall be this Clause in the Writ Quia B. Capitalis Dominus feodi illius nobis inde remisit Curiam suam So it is also if the Baron lease all his Land for life there also the Feme shall sue such a Writ against the Tenant for life returnable in the Common Place because the Heire of the Baron in that Case also can kéeps no Court having but a Seigniory in grosse And in these Cases and the like the Lord shall not sue a prohibition to the Iustices of that Court that they should not procéed in such pleas for that the Feme in such Cases is forced by necessity to do it 40 If an Infant or Feme covert present not within 6 moneths Fitz. ib. 34. c the Bishop shall present by laps for there is a necessity the Church should be served 41 Where wast is made by the Kings enemies or by tempest Fitz. ib. 59. l. the Tenant shall not be punished for it 42 Ubi aliud suader necessitas cessat humanae constitutionis cessat voluntas Nomothetae Erasm in Coll. Conv. Proph. 43 A Dedimus Potestatem was granted to receive an Attorney for the Defendant in a Quid Juris clamat Dier 135. pl 15 3 4. P. M. albeit no former President could be found for it and this was allowed per Curiam by reason of the weakenesse of the Defendant who could not appeare in person without manifest danger of life â—â—â—ing a 〈◊〉 it Sea 44 Hob. 13. Bridgmans Case Hob. 13. per Hobart concerning the Masters impawning of another mans Ship at Sea for necessity of fact or other provision â—â—â—er by a â—â—tick 45 An Action of Trover and Conversion may be brought in a Lunatiques owne name Ho. 215. Cocks and Darson for graine sowne upon his Copi-hold land and caried away by a stranger and that for necessity because it can be brought in no mans name else 111. 2 Conveniencie Co. l. 9. 49. a. b. The Earl of Shrewsburies Case Vide Max. 184 cap. 5. 1 If a Parkship be granted to an Earl Dignity respected for conveniencie without words to make a Deputy yet he may kéep it by his servants for the Law doth allow divers acts for convenience in respect of the Dignity of the person as if Licence be given to a Duke to hunt in a Parke the Law for conveniencie given him such attendante as are requisite to the Digntiy of his Estate Vide 12 H. 7. 25. 13 H. 7. 10. So when a Bishop is riding forth or upon the way it is not convenient for his Estate and Degrée to be then inforced to examine the Ability of a Clerk but he ought to attend his convenient leasure 14 H. 7. 21. 15 H. 7. 7. 8. Co. ibid. and Mirror of Justices cap. 1. §. 2. 2 At the first institution of this Monarchy an Earl was Praefectus The liâ—e or Propositus Comitatus for so the Saxon word Shire-reeve imports The Romans called him Satropas from the Persians viz. Praefectus Provinciae And the Sheriff at this day called Vice-comes quasi vicem generis seu vicariis Comitis hath the whole authority for the Administration and Execution of Iustice that the Earl had and if the King do now by his Letters Patents commit unto the Sheriff custodium Comitatus without expresse words to make a Deputy yet he who comes in the place of the Earl may make a Sub-vice-comes viz. a Deputy who was in times past Seneschallus Vice-comitis and by West 2. cap. 39. Sub-vice-comes and by 11 H. 7. cap. 15. Shire-Clerk
cause of his demurrer that if there were any other matter in the declaration whereof the Defendant might have advantage he could not take any benefit or advantage thereof Pl. Co. 84 b. 3. in Partridge and Strange Crokers Case 72 In a count or declaration if the Plaintiffe recite a Statute Count abaâ—â— by mis-recâ—â— which he néeds not do being a general Statute whereof the Iustices are bound to take conusance in such Case if he mis-recite it as in the date or otherwise his count shall abate for though it was not requisite to recite it yet he making use thereof by way of recital he ought to recite it as in truth it is because then he hath grounded his action upon the Statute by him recited where it appeares to the Court Iudicially that there was no such Statute at that time and so he hath abated his count by his own shewing c. Co. Inst p. 1. 207. a. 2. 73 If feofment be made upon Condition Tender and refusal that the feoffor shall pay a certaine sum of money at such a day c. if tender of the money be made accordingly and the feoffée refuse to receive it by this the feoffor and his heires may enter c. And then the feoffée is without remedy to recover the money at the Common Law because it was his folly that he would not receive it when he might So if an obligation of 100 l. be made with Condition for the payment of 50 l. at a day c. and at the day the obligor tender the money and the obligée refuse it In this Case albeit in an Action of Debt upon the obligation the 50 l. may be received because it is still a duty and parcel of the obligation and the obligée hath remedy by Law for the same according to the Rule Liberata pecunia non liberat ofterendum yet if the Defendant plead the tender and refusal wherein he must also say uncore prist and tender the money in Court if the Plaintiffe will not then receive it but take issue upon the tender and the same be found against him he hath lost the money for ever because he hath made two refusals when he might have had it â—cceptance of â—ent 74 C. purchaseth a Copi-hold of A. to him his wife and their childe for their lives Dier 30. 207. 28 H. 8. A. le ts the franck-tenement of the soile by Déed indented to B. for his life reserving Rent and livery and seisin is made accordingly Afterwards A. levies a fine sur conusance de droit come ceo c. to C. of the same land and C. accepts the Rent of B. In this Case it séemes that by the acceptance of the Rent of B. the Copihold of C. is gone So if a Disseisor make a lease for life reserving Rent and after grant the reversion to the Disseisée and he accept the Rent of the Lessée he shall never after oust him Quod fuit concessum per quosdam â—â—â—viledge 75 One of the Clerkes of the Chancery was sued in the C. B. and proces continued till the exigent Dier 3 3. 18. 28 29 H. 8. and the Defendant who was the Clerke sues a supersedeas to the Sheriffe quia improvidè and after he sues a writ of priviledge out of the Chancery directed to the Iustices of the B. reciting the priviledge of Chancery and requires the Iustices to surcease In this Case the priviledge was dis-allowed and the Clerke put to answer because the Court was lawfully seised of the plea by the Act of the Defendant himselfe for in as much as he sued out the supersedeas quia improvidè he thereby affirmed the jurisdiction of the Court for that every supersedeas quia improvidè recites the Defendants appearance in Court by an Attorney and names him and therefore it was his own default But if he had sued such a writ notwithstanding the exigent the priviledge had béen allowed him and then after the writ of priviledge come to the Iustices they ought to have sent a special supersedeas to the Sheriffe of the Out-lawry reciting the priviledge And this resolution agréed with Presidents shewed in Court Doâ—er imperâ—â—… plea. 76 In Dower the issue was Ne unque seisie que Dower luy puit Dier 41. 1. 30 H. 8. and a Déed of feofment made unto the Baron was by the Demandant given in evidence to the inquest and produced in Court whereunto it was answered that before the feofment the Baron was seised of land to him and his former wife in special taile and that after he made discontinuance and re-took the Estate in fée by the feofment afore-said and of such Estate died seised whereby the heire who is Tenant in taile is remitted and therefore the second Feme could not be endowed in this Case albeit the matter alleadged might have a voided the Dower if it had béen specially pleaded yet here the issue being onely ne unque seisie c. the Iustices were of opinion that the Iury ought to find for the Demandant c. se … is 77 If A. plant Conies in his owne ground which increase to such a number that they destroy the land of B. next adjoyning Co. l. 5. 104. b. Boulstones Ca. in this case B. cannot have an action upon the case for the damage he sustains by them for the property of them remaines no longer in A. then they remaine within his Warren and when they come upon the land of B. he may lawfully kill them because then they are his if he can catch them and it is his own fault if he do not take them 〈◊〉 to be of â—ounsel in a … s owne â—â—â—se 78 This Maxime teacheth us Co. Inst p. 1. 377. b. 4. that it is not safe for any man be he never so learned to be of Counsel with himselfe in his own Case but to take advice of other learned men and the rather because the phisautia and self-opinion which is in man by nature so obscures his understanding that he can hardly give a right judgement of things that concerne himselfe Non prosunt dominis quae prosunt omnibus artes and in suo quisque negotio habitior est quam in aliena And therefore in the new inventions of Iustice Richel an Irish-man in R. 2. time and of Thirming in H. 4. time Litt. §. 720. time there were found many imperfections and Richel was overthrowne in an Action upon the Case by his owne shewing in 2 H. 4. fol. 11. vide Co. l. 1. 88. a. 2. in Corbets Case Dier 69. b. 36 5 E. 6. 79 A man enfeoffs two upon Condition A Conditioâ— severable that the feoffées before a certaine day shall make an Estate again to the Feoffor for term of his life the remainder over in fée to a stranger one of the feoffées makes an Estate accordingly in this Case albeit the Condition was
66. b. 4 in Sir Moyle Finches Case 7 There is a diversity betwixt brevia adversaria Diversity betwixt brevia adversaria 〈◊〉 brevia amiâ—â— bilia vix brought as adversary to recover the land c. And brevia amicabilia viz. brought by consent and agréement amongst friends for true it is in brevibus adversariis the processe of the Common Pleas shall not pursue the custome or reputation of the Country as in 6 E. 3. 11. the Demandant in a writ of Entry demands the Mannor of C. the Tenant saith that the tenements put in view are a Messuage and a Carve of land called c. and not a Mannor c. whereby it appeares that if it were not a Mannor in truth albeit it was so in Common Appellation the writ should abate but it was adjudged in Sir Jo. Bruyns case in the beginning of Quéen El. Raigne that in Common Recovery which is had by the consent and agréement of the parties of acres of land they shall be accounted according to the accustomable and usual measure of the Country and not according to the Statute de terris mensurandis made in 33 E. 1. So likewise it is agréed in 47 E. 3. 18. if a man bargaine and sell so many acres of wood that shall be measured according to the use of the County viz. according to 20 foot to the Pole and not according to the said Act for in such Case consuetudo loci est observanda also if a fine be acknowledged of a Mannor which in déed is a Mannor in reputation onely and not in truth yet is the fiue good because done by consent of parties F. N. B. 38. t. 8 In a Quare Impedit if the Defendant plead to issue and after make default Precepartum a writ shall be awarded for the Plaintiffe to the Bishop ad admittendum Clericum but if to the distresse returned against the Defendant he comes and takes day per praece partium and then makes default the Plaintiffe shall not have a writ to the Bishop but a new distringas Dier 33. 13. c. 28 29 H. 8. 9 A lease for yeares is made rendring Rent Termors câ—sent and the lessor makes feofment of the land the termor being also upon the land and without his consent in this Case the Rent is extinct but if the feofment be made by the agréement of the termor that workes no extinguishment of the Rent or surrender of the terme c. 122 Volenti non fit injuria Co. Inst p. 1. 368. a. 2. Litt. §. 701. Pl. Com. 91. the Parson of Hony Lanes ca. 1 If the Tenant in an Assise of an house desire the Plaintiffe to dine with him in the house which the Plaintiffe doth accordingly Dyning in a house no entry but doth not clame the house at that time this is no entry or possession to cause the Assise to abate because if he had béen a stranger he had béen no trespasser for volenti non fit injuria Dier 275. 46. 10 El. 2 The Marshall suffers one in execution to go at large by licence of the Chiefe Iustice the Plaintiffe also agréeing thereunto in this case Prisoner in ecution after he returnes he is in execution again so as if he afterwards escape the Gaolor is subject to an action of Debt Dier 359. 1. 20 El. 3 The Tenant peravaile who held of a Mesne Tenure as of his Mannor of D. in soccage which Mannor of D. was held over of the King by Knight-service in capite purchaseth a release of the Mesualty in this Case the Tenant peravaile shall now hold of the King in capite for volenti non fit injuria 123 Quilibet potest renunciare juri per se introducto â—â—main 1 Land may be amortified by Licences granted by the King and all the Lords immediate and mediate of whom the land is holden Co. Inst p. 1. 98. b. 4. 99. a. 3. 99. b. 2 For it is a Rule in Law Alienatio licet prohibeatur consensu tamen omnium in quorum favorem prohibitum est potest fieri and quilibet potest renuntiare c. And the Licence of Lords immediate and mediate in this Case shall Enure to two intents viz. to a dispensation both of the Statute of Quia emptores terrarum and also of the Statute of Mortmaine Condition 〈◊〉 restraine â—â—ful liâ—â— 2 If a man make a gift in taile upon Condition Co. ib. 223. b. 3 that he shall not make a Lease for his owne life or if a man make a lease for life or years upon Condition that they shall not grant over their Estate or let the land to others In these Cases and the like albeit Tenant in taile hath power by the Law to make a lease for his owne life and the Lessee for life or yeares to grant and let yet by the Condition and their owne agréement they have restraindd themselves of the liberty which the Law gives them So likewise if a man make a gift in tail upon Condition that he shall not make a lease for thrée lives or 21 yeares according to the Statute of 32 H. 8. In this Case also the Condition is good to restraine the Tenant in taile from making such leases For albeit the Statute doth give him power to make such leases yet that power may be restrained by Condition and his own agréement because this power is not incident to the Estate but given to him collaterally by the Act according to that Rule of Law Quilibet potest renunciare c. â—eires â—â—ged 3 If there be Lord and Tenant Litt. §. 538. Co. ib. 305. a. 4 which Tenant holds of his Lord by fealty and 20 s. Rent here if the Lord by his Déed confirme the Estate of his Tenant to hold by 12 d. or by a penny or a halfe penny In this Case the Tenant is discharged of all the other services and shall render nothing to the Lord but what is comprised in the same confirmation For the Lord by his confirmation to hold by lesse services hath abridged himselfe of the power and interest which was before legally due to him â—â—e all 〈◊〉 all pasâ—â— 4 By the Common Law if Patron Ordinary Litt. §. 648. Co. ib. 343. Note that this law is altered by stat 13 El. cap. 10. and Incumbent had joyned in a grant of the Rectory or Vicarage they might have charged it or conveyed it to whom they pleased because they all together had the whole right in them viz. the Patron to present the Ordinary to admit institute and induct and the Incumbent to enjoy the glebe tithes and other profits And all these had liberty to depart with their several rights and interests at their pleasure â— good right â—â—de pretenâ—â— 5 If A. be lawful owner of land and in possession Co. ib. 369. a. 3 and be afterwards disseised in this Case A.
with Condition that if it happen the Rent to be behind by the space of a wéeke after any day of payment c. In this Case the Feoffor néedeth not demand it on the Feast day but the uttermost time for demand is a convenient time as afore-said before the last day of the wéeke unlesse before that the Feoffée méet the Feoffor upon the land and tender the Rent as is afore-said Co. ibid. 3 If Rent be granted payable at a certaine day The like and if it be behind and demanded that the grantée shall distraine for it In this Case the grantée néed not demand it at the day but if he demand it at any time after he shall distraine for it For the grantée hath election in this Case to demand it when he will to enable him to distraine The like 4 If Rent be granted payable upon Michaelmas day or within 20 dayes after it séems the grantée must demand it a convenient time before Sun-setting both upon Michaelmas day and the last of the 20 dayes for in this Case it séemes to be in the election of the grantor to tender and pay it upon Michaelmas day or the twentieth day at his pleasure Tamen quaere Pl. Co. 70. b. in Kedwellies Case against Brand. 5 If Rent be reserved to be payd upon Michaelmas day The like and if it happen to be behind forty days after that then the Lessor may re-enter In this Case the Lessor must demand it a convenient time before Sun-set upon the fortieth day to give advantage of re-entry Howbeit if the Rent be limited to be payd at another place assigned and not upon the land as Rent reserved out of Dale to be payable at Sale in such Case the Lessor may take advantage of re-entry without demand and the Lessée is then bound to tender it at his peril but when no place is limited the land is the place because it is principal Debtor Vide 52. 10. â—â—e like 6 If Rent be reserved to be payd at the Feasts of Michaelmas and the Annunciation Dier 142. 50. 3 4 P. M. or within a moneth after the said Feasts by equal portions and if it happen the Rent to be behind after any of the said Feasts and dayes by the space of 8 wéeks that then c. In this Case it séemed to Sanders Chiefe Iustice Whiddon and others that the 8 wéekes should be accounted from the 28 day after the Feast because that makes for the benefit of the Lessée and against the Lessor who grants and the 28 day is a day of payment at the Election of the Lessée as well as the first Feast and day Tamen quaere because no Feast and day certain is mentioned before but the Feast day and the moneth is not any day nor comprehends any day in certain c. Copi-hold 7 In Case of forfeiture of a Copi-hold upon non-payment either of Rent or Fine there must be a demand thereof Ho. 135. Denny and Lemman at the time it grew due or some time after of the person of the Tenant 132 When no time is limited the Law appointeth the most convenient and in some Cases the immediate time â—â—e conâ—â—â—ent and â—â—ng life 1 If a Feofment be made upon Condition Litt. §. 337. Co. Inst p. 1 208. a. 3. c. that if the Feoffor pay a certain summe of money to the Feoffée that then it shall be lawfull for the Feoffor and his heires to enter in this Case if the Feoffor die before the payment made tender by the heire is void because it was limited to be payd by the Feoffor himselfe viz. during his life for séeing no time is limited the Law doth appoint the time and that is during the life of the Feoffor wherein divers diversities are worthy the observation As first betwéen the said Case of the Condition of a feofment in Fée for the payment of money where no time is limited And the Condition of a bond for the payment of a sum of money where no time is limited For in such a Condition of a bond the money is to be paid presently viz. in convenient time And yet in Case of a Condition of a bond there is a diversity betwéen a Condition of an obligation Co. l. 6. 30. b. 4. in Bothies Ca. Co. l. 2. 79 80 81. in the Lo. Cromwels ca. which concernes the doing of a transitory Act without limitation of any time as payment of money delivery Charters or the like for there the Condition is to be performed presently that is in convenient time and whereby the Condition of the Obligation the Act that is to be done to the Obligée is of his owne nature local For there the Obligor no time being limited hath time during his life to performe it as to make a feoffment c. in Case where the Obligée doth not hasten the same by request Again where the Condition of the Obligation is local there is also a diversity when the concurrence of the Obligor and Obligée is requisite as in the Case of a feofment c. and when the Obligor may perform it in the absence of the Obligée as to acknowledge satisfaction in the Court of the Vpper-Bench for here albeit the knowledge of satisfaction is local yet because he may do it in the absence of the Obligée he must do it in convenient time and hath no time during his life Co. ib. 208. b. 3 Co. l. 6 30. b. 4 in Bothies ca. The Lo. Cromwels Case Co. ib. 218. b 4 2 There is a diversity betwéen a Condition of an Obligation The like and a Condition upon a feofment where the Act that is Local is to be done to a stranger and where to the Obligée or Feoffor himselfe as if one make a feofment in Fée upon Condition that the Feoffée shall enfeoffe a stranger and no time limited In this Case the Feoffée shall not have time during his life to make the feofment for then he should take the profits in the meane time to his owne use which the stranger ought to have and therefore in such Case he ought to make the feofment as soone as conveniently he may And so it is also of the Condition of an Obligation But if the Condition be that the Feoffée shall re-enfeoffe the Feoffor there the Feoffée hath time during his life for the privity of the Condition betwéen them unlesse he be hastned by request and so it is likewise of an Obligation Co. ib. 208. b. 4 also in Bothies Ca. in the Lo. Cromwels Ca. 3 There is also a diversity The like when the Obligor or Feoffor is to enfeoffe a Stranger and when a Stranger is to enfeoffe the Feoffée or Obligée As if A. enfeoffe B. of Black-acre with Condition that if C. enfeoffe B. of White-acre A. shall re-enter in this Case C. hath time during his life to enfeoffe B. if B. doth
Condition that he shall kill J. S. the bond is void So if a man make a feofment upon Condition that the Feoffée shall kill I. S. the Estate is absolute and the Condition void so as he who intends any unlawful Act is still by the Law crost in the designe or purpose he aimes at Dier 28. a 16. 31 H. 8. 7 Vice is so odious in the eie of the Law Bloud corrupt that it will not suffer any to inherit who derives his title through bloud tainted with any Capital offence As if a man hath issue two Sonnes and the eldest in the life of the Father is attainted for felony and dies living the Father and after the Father dies seised of the land in Fée this land shall discend to the younger Sonne as heire to his Father if the eldest Sonne hath no issue living but if he hath issue in life who by the Law should inherit the Land if it were not for the Attainder and albeit he hath committed no offence yet the land shall not discend to him nor yet to the younger Brother but shall escheate to the Lord of the Fée 140 Interest Reipublicae ne maleficia remaneant impunita â—â—feit inâ—â— no good 〈◊〉 1 Where an Indictment is found insufficient Co. l. 4. 45. a. 1 in Vaux his Case the offender may be indicted again for in such Case Autre fois acquite or convict is no good plea because that plea is allowed upon that Maxime of the Common Law viz. that the life of a man shall not be put in jeopardy twice for one and the same offence Howbeit this is intended upon a lawfull acquital or Condition for otherwise his life was never put in jeopardy but when the Indictment or other procéeding against him are insufficient he may be re-indicted For the Law doth abhorre that great offences should passe un-punished according to these ancient Maximes of the Law and State Maleficia non debent remanere impunita impunitus continuum affectum tribuit delinquendo minatur innocentes qui parcit nocentibus Howbeit if upon an insufficient Indictment of felony a man hath had judgment quod suspendatur collum and so is attainted which is the judgment and end that the Law hath appointed for felony in this Case he shall not be again indicted and arraigned until that judgment be reversed by Error 〈◊〉 it goods 〈◊〉 2 The Reason why bona waviata viz. Co l. 5. 109. a. 4 in Fauxleys Case such shelme goods as a felon in flying waives or leaves behind him are forfeit to the King and that the owner shall in such Case lose his property in them is because of the negligence and default in the owner for that he made not fresh suit to apprehend the felon for Interest Reipublicae ne maleficia remaneant impunita impunitas semper ad deteriora invitat And therefore the Law hath imposed this penalty upon the owner that if the felon by his industry and fresh suit be not taken by such default he shall lose all his goods which the felon so leaves behind him â—â—â—es taken intendâ—â— 3 In many Cases Penal Statutes shall be taken by intendment Co. l. 11. 44. b. in Alexander Pollers Case and not according to the expresse words thereof especially when it is to remedy a mischiefe in advancement of Iustice and for the suppressim of Crimes and heinous offences of which sée many examples in the book at large quoted in the margent â—ption 4 In a writ of Reception F. N. B. 72. h. where after Replevin the party distraines again for that same thing the Sheriffe is comanded to apprehend the party so offending and so to chastise him by amerciament quod castigatio illa in casu consimili timorem aliis praebeat delinquendi 〈◊〉 breaâ—â— 5 A man was put into the Stockes upon suspition of Felony Dier 99. a. 60. 1 Max. and another comes who lets him go at large this is felony at the Common Law de frangend prison albeit the party that escaped be not indicted for felony â—â—lt â—â—â—der 6 In Banco Reg. in the Case of one Tripcony the Iury to the Nisi prius gave the Plaintiffe but 40 l. damages for the cutting of his right hand Dier 105. a 4. 1 2 P.M. and they were increased by the Iustices to 100 l. because this was matter apparent to the Court and the offence and trespass therein was caried about with the person howbeit in the Case of Sir John Bonham against the Lo. Sturton for slander where the damages were 500 Marks the Iustices said they could not lessen them Dyer 211. 33. 4 Eliz. 7 By the better opinion albeit the Statutes of 27 H. 8. 4. 28. H. 8. 15. Admiral be penal and ordaine that Commissions to heare and determine piracies shall be awarded to the Admiral and others to be named by the Chancellor yet the Lord Keeper being no Chancellor may grant such Commissions and that for the necessity to punish such offences 141 It favoureth Justice and right Co. Inst p. 1. 33. a. 1. 1 In a writ of Dower brought against the heire tout temps prist is a good plea before demand to barre the woman of the meane values and damages because the heire holdeth by title Plea in dowâ— and doth no wrong till a demand be made It is otherwise in a writ of Ayd Cosinage c. where the land and damages are to be recovered for there such a plea is not good because in that Case the Tenant of the land hath no title but holdeth the land by wrong Co. ib. 103. a. 4 b. 1. 2 If there be Lord and Tenant by Homage Ancestrel Homage ancestrel contiâ—nued and the Tenant alien the land in Fée although it be but upon a Condition which is performed at the day yet is the tenure gone for ever because the privity and Estate being once discontinued it is for ever after extinct But if the land be recovered against the Tenant upon a faint title and the Tenant recover the same again in an Action of an higher nature there the Homage Ancestrel remaines for the right which is favoureth in Law was a sufficient meane for the continuance thereof so it is also if he had reversed it in a writ of Error Co. Inst p. 1. 143. a. 4. 3 Before the Statute of quia emptores terrarum if a man had made a feofment in Fée rendring Rent he might have distrained for the Rent arreare of Common Right and in Case he had made no reservation of Rent or service yet the Feoffée should then have held of the Feoffor by such services as the feoffor held over of the Lord paramount So as albeit the Feoffor were negligent and made no provision or reservation of Rent or service yet the Law it selfe so much regarded Equity and Iustice that it created a tenure where the party was
and was also capable at the time of the gift whereas when the gift was made shee tooke nothing but in expectancy when shee should become heire per forman doni And yet the law permits her to have a Writ in forme aforesaid least otherwise she should have been without remedy Co. ibid. 47. b. 3. 2. The Lord shall not have an action of debt for reliefe or for escuage due unto him because he hath other remedy to recover the same viz. Remedy for releife c. by distresse Howbeit his Executors or Administrators shall have an action of debt for them because they are now become as showers falne from the stock and they have no other remedy Litt. S. 67. Co. ibid. 52. b. 4. 3. If tenements are let to a man for the terme of halfe a yeare or a quarter of a yeare c. in this case if the lessee make waste For waste the lessor shall have against him a Writ of waste and the Writ shall say Quod tenet ad terminum annorum but he shall have a speciall Declaration upon the truth of the matter and the Count shall not abate the Writ and the reason is because he can have no other Writ whereby the wrong done him may be remedied And therefore albeit the Statute of Glocester ca. Co. ibid. 54. b 4. 5. which giveth the action of waste against the lessee for life or yeares which lay not against them at the common Law speaketh of one that holdeth for terme of years in the Plurall number neverthelesse although it be a penall Law whereby treble damages and the place wasted shall be recovered yet a tenant for halfe a yeare being within the same mischiefe shall be within the same remedy though it be without the letter of the Law causa qua supra Co. Inst pars 1. 56. a. 1. 4. If Lessee for yeares be disturbed of his way An action for a publick nusance for remedy thereof he shall have his speciall action upon the case but if it be a common way to avoyd multiplicity of suits it ought to be presented and reformed in the Leet or Turne and no particular person shall bring any action for it unlesse he suffer particular damage by the nusance as if he and his Horse fall into a ditch so made in the common way or the like which happeneth not to others Howbeit in the Kings Bench in a case betwixt Westbury and Powell it was adjudged that where the Inhabitants of Southwarke had by custome a watering place for their Cattell which was stopped up by Powell in that case any Inhabitant there might have an action because otherwise they should be without remedy for that such a nusance is not presentable in the Leet or Turne Co. ibid. 111. a. 4. 5. In Cities and Burrows where Tenements were devisable Ex gravi querela granted to Devisees of Lands if the heire of the devisor had entred and had held out the devisee albeit the devisee might have entred as Lit. saith S. 167. Yet besides the Law ordained a Writ for him called Ex gravi querela and this Writ without any particular usage was incident to the custome to devise because otherwise if a discent had been cast before the devisee had entred the devisee had been without remedy there being no other way provided for him to recover his land Litt. S. 179. Co. ibid. 119. a. 3. 6. If a Villain purchase a Signiory rent or other profit out of land Claime of a Reversion c. by the Lord of a Villain or a reversion after an estate for yeares life in taile by Statute Merchant Statute Staple or Elegit and attornement is made unto him according to the grant in such cases the Lord may come upon the land and claime the reversion and in so doing shall not be adjudged a trespasser for he hath no other means to come by the reversion because if he should stay untill the reversion should fall the Villain might alien it to another before his entry and so prevent him of his just title thereunto Also upon grant of an Advowson to a Villain claime must be made immediately at the Church though it be then full of an Incumbent Lit S. 180. for if he stay till an avoydance he may be prevented as aforesaid Vide infr 35. Outlawry no plea in Error to reverse it 7. Regularly an outlawed person cannot sue and if hee do Co ib. 128. a. 4. it is a good plea in disability of his person to say that he is outlawed yet in a Writ of Error to reverse an Outlawry Outlawry in that suit or at any strangers suit shall not disable the Plaintiff because if he in that action should be disabled and were outlawed at severall mens suits he should never reverse any of them Aliens may have actions personall 8. Albeit Aliens though in annuity are excluded from many priviledges that Subjects borne enjoy Co. ib. 129. b. 1. yet such a Alien may maintaine personall actions for an Alien may trade and trafficke buy and sell and therefore of necessity he must be of ability to have personall actions and an Alien that is condemned in an Information shall have a Writ of Error to relieve himselfe Et sic de similibus for otherwise they should be without remedy A Monk canâ— sue c. 9. If a Monk or other spiritual person profest were beaten wounded Co ib. 132. b. 3. or imprisoned he is prohibited to sue as Lit. saith S. 200. because he is a dead person in Law but here the Law gives a remedy for in that case the Abbot and Monke shall joyne in an Action against the wrong doer and if the Writ be Ad damnum ipsius Priores the Writ is good or if it be Ad damnum ipsorum it is good also yet in this case the Abbot or Pryor in his person was not wronged Also if a Monk were by Conspiracy falsely and maliciously indicted of Felony and Robbery and afterwards was lawfully acquitted his Soveraign and he should have joyned in a Writ of Conspiracy and the like There is the same Law also of a Nunne Sanctimonialis mutatis mutandis And if the Law did not provide such a course they might have been injured and left without remedy â— Feme Coâ—â—â— may sue â— be sued 10. A Feme Covert is disabled to sue without her Husband Co ib. 132. b 4. 2 H 4. s 7. a. and yet we read that in somâ— cases a Wife hath had ability to sue and to be sued without her Husband for the Wife of Sir Rob. Belknap one of the Iustices of the Court of Common Pleas who was banished beyond Sea did sue a Writ in her own name without her Husband he being alive whereof one said Ecce modo mirum quod foemine fert breve Regis Non nominando virum conjunctim robore Legis Also E. 3. brought a
their Custody to charge him with a Capias ad satisfaciendum to prevent an escape upon the Capias was condemned by all the Court of Starre-Chamber in the Countesse of Rutlands case because by the colour of Law and Iustice they by such feigned meanes do contrary to Law and Iustice and so cause Law and Iustice to be the Author of wrong and Injustice Seisin of rent 30. If A. having a Rent-seck issuing out of the Mannor of D. Co. l. 6. 58. a. 1. in Bredimans case granted unto him but no seisin thereof plots with B. to disseise the Ter-tenant to the end that after such disseisin B. may give him seisin of the Rent this seisin shall not bind the disseisee or he that right hath for the Covin makes it unlawfull Fraudulent Leases 31. The Father leases by Fraud and dyes Co. l. 5. 72. b. in Burrells case the Son knowing of it or not sels the Land in this case the Vendee shall avoid those Leases by the statute of 27 Eliz 4. so it is also where the Father leases to the Son who assignes fraudulently and then sells the Land c. False Deed. 32. If a man deny the Deed of his Ancestor Co. l. 8 60. a. 1. in Beechers case or plead a Deed made to his Ancestor and it is found against him yet he shall not be fined but onely amercied quia de alieno delicto c. But if the Tenant or Defendant plead a false Deed made to him or deny his own Deed and it is found against him or if he relicta verificatione cognoscit actionem he shall be fined for his falsity quia certi debemus esse de proprio facto Co. l. 8. 127. a. 1. in the City of Londons case 33. Where the custome is Inward shop that no Forraigner shall sell in any open Shop in paine to be fined he is a greater offender that trades there in an inward Shop or Chamber for such places are more dangerous and offensive then outward Shops because they may there use deceit and are not subject to search Qui male agit odit lucem omnia delicta in aperto leviora sunt See there likewise the case of the Prior of Dunstable to the like purpose Co. l. 8. 134. Mary Shipleys case 34. If an Executor plead pleni administravit Executor assets and assets be found by the Iury in his hands they shall pay the debt as far as they will answer but if they come short he shall answer the damages of his own goods for his false Plea Co. l. 9. 17. b. 1. in Ann Bedingfeilds case Co. ibid. 19. a. 3. 35. If a Feme having title of Dower do deceitfully detaine the Charters which concerne the Lands Rebutter in Dower out of which she is to have Dower assigned that is a good rebutter of the Action in a Writ of Dower brought by her against the Heire So if she deceitfully conceale and detaine the heire the Guardian in Chivalry may plead it against her in bar of her Dower but he cannot plead detainer of Charters which concerne the heire because they shall not be delivered to him Co. l. 9. 20. b. 4. in the case of Avowry 34. The Law will never suffer falsehood to suppresse truth Avowry and therefore if there be Lord and Tenant by Fealty and Rent and the Tenant make a Lease for years and the Lord distraines when there is no Rent or Services behind the Cattell of the Tenant and avowes upon a meere stranger as his true Tenant with purpose to charge the Plaintiff unjustly In this case the Lessee upon shewing the whole matter in speciall may pray in aid of the Lessor and shall thereby compell the Lord to avow upon the Lessor as his true Tenant and the false Avowry of the Lord upon the stranger who is not Tenant shall not annoy the Lessee against the truth of his case quia veritas nihil veretur nisi abscondi Co. l. 10. 110. a. 2. in Arthor Legats case 35. A false suggestion in the Kings Grant being the words of the Patentee makes the Patent void Void Patents upon false suggestion As where the King grants fifteen Acres of Land as concealed whereas they being parcell of a Mannor the profits thereof are duely answered to the King though occupyed by an Intrudor yet because they are onely detained and not concealed but suggested onely to be concealed the Patent is void So in 19 E. 3. tit grant 58. The King by his Letters Patents gives licence to appropriate the Advowson of D. to the Prior of C. Quae quidem advocatio non tenetur de nobis c. and in truth the Advowson was held of the King and the licence was held void for the Book saith that the suggestion was false And in 21 E. 4. 48. if the King grant the Mannor of D. c. Quod quidem manerium ad manus nostras devenit ratione eschaet c. and in truth the Mannor did not come to the King by escheat in this case also the Grant was void and the reason that Hussey cheife Iustice there gives is for that the falsehood comes of the surmise of the party Co. l. 11. 73. b. 4. 74. a. 4. in Magdalen Colledge case 36. A Grant to the Queen by the Master and Fellowes of Magdelen Colledge in Cambridge The like of an House in London rendring 15 l. per annum Rent upon Condition that she should re-grant it to Benedict Spinola Merchant Dâ—nizen and his heires was adjudged void because they made use of the Queens Prerogative to alien the Lands of the Colledge which they were prohibited to do by the Statute of 13 Eliz. within which Statute the Queen is included So if one intending to sell his Land had by Fraud conveyed it by Deed inrolled to the Queene with purpose to deceive the Purchasor and after he sels the Land for a valuable consideration and makes conveyance accordingly in this case the Purchasor shall enjoy the Land against the Queen by the Statute of 27 Eliz. 4. for albeit the Queen is not excepted yet the act being generall and made for suppressing of fraud shall bind the Queen c. vide pl. ibid. Covin in Feoffment Recovery Remitter 37. In Trin. 19 H. 8. fo 12. Br. Remitter 1. Pl. Co. 51. a. in Wimbish and Talboies case ibid. 54. b. 4. If one disseise the Discontinuee in tail by covin to the intent to enfeoff the Issue in tail within age who had no knowledge of the covin he enfeoffs him accordingly in this case by the better opinion the Issue in tail shall not be remitted notwithstanding his good title and the onely cause hereof is the covinous intent for covin may alter the matter where the title is good so if my Ancestor disseise me to the intent to make Feoffment with warranty to bar me here albeit the Warranty be
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
certain of their friends to make partition between them who make partition of the Rooms and Chambers of the Castle assigning some to one and some to another c. this Partition is void because a Castle which is to be kept intire pro bono publico and for the safeguard of the Commonwealth will not admit of any such division albeit such a partition of other lands that are partable had been good in Law and binding to the Coparceners after election of their several Parts Co. ibid. 31. b. 3. Dower Neither shall such a Castle be assigned for Dower albeit the parties consent thereunto because the publique shall be preferred before the privat Co. l. 7. 23. a. 3. Buts case 2 A. seised of black acre in fee Rent out of a lease for years and also possessed of white acre for years grants a rent charge out of both to B. for his life with Clause of Distress c. In this case the estate of the rent being a Franktenement according to the purport of the deed cannot issue out of the term for years but out of the land only which the grantor had in fee-simple because the Franktenement of the rent cannot issue out of a Chattel and the intire rent cannot be Franktenement out of black acre and a chattel out of white acre and to make two rents when one only is granted would be injurious Neither yet can the contract and mutual agreement of the parties charge such a thing with a rent which is not chargeable by Law as out of an Hundred or Advowson 30 Ass Pl. 5. or out of a Fair 14 E. 3. Scire facias 122. The Earl of Kents case Neither can a rent be granted or reserved of any estate of Franktenement out of any other Franktenement which is not mainourable either in possession reversion or by possibility but is only haereditamentum incorporeum for Pacta privata non derogant juri communi And in an Assise they cannot be put in view neither can any distress be taken in them And in the case above albeit white acre be haereditamentum corporeum and mainourable yet in respect of the exility and incapacity of the interest which the grantor hath in it that rent of Franktenement cannot issue out of it but out of the land in fee simple And in that case also in an Assise brought for the rent the land in fee shall be only put in view And if the Grantee should accept a lease or grant of white acre that will not suspend his rent Co. l. 9. 128. a. 4. in Sondayes case 3. Term. Hill 8. Iac. it was resolved by the two Chief Iustices Recovery Title the Chief Baron and the Court of Wards that no condition or limitation be it by act execute or limitation and use or by devise in a last will can barr tenant in tail to alien by a Common recovery for the causes and reasons reported at large in Sir Anthony Mildmayes case in the 6. Report Co. l. 9. 141. b 3. in Beaumonts case 4 If there be Lord and tenant of a Carue of land Confirmation and the tenant hath issue and is attainted of felony and the King pardons him and after the Lord confirms the estate of the tenant and the tenant dies In this case the Lord shall have the land against his own confirmation for the confirmation cannot add to the estate of the tenant a descendible quality to him who was disabled to take the land by descent For Pacta privata juri publico derogare non possunt The like 5 Baron and feme being tenants in special tail Co. ibid. 138. b. 141. b 4. the remainder to the heirs of the Baron the Baron levies a fine to E. 6. who grants to the Earl of Hunt in fee the Baron dies and the Feme enters and the E. of H. confirms her estate Habendum to her and the heirs of the body of the Baron then the Feme dies having issue a son In this case the confirmation is void for it cannot add a descendible quality to the issue in tail who was disabled by the fine to take by descent Again if that confirmation should add to the estate of the feme a descendible quality it would in effect as to that point repeal no less than two Acts of Parliament viz. 4 H. 7. 24. and 32 H. 8. 36. by which the estate in tail is barred as to the issues and the issues are disabled to claim the Land by force of the said estate tail Sed Pacta privata c. Common Recovery 6 Tenant in tail cannot be prohibited by any condition or limitation to barr the issues in tail as also the reversions or remainders Co. l. 10. 38. b. 1. 4. Mary Portingtons case by suffering a Common Recovery much less can he be prohibited to prevent by any such condition or limitation a going about conclusion or agréement to suffer such a recovery for to suffer such a recovery to the purposes aforesaid is an incident so inseparably annexed to an estate tail that it cannot possibly be prohibited by any such condition limitation or other agréement whatsover between the Parties Conventio privatorum non potest c. So likewise Dower or tenancy by the Curtesie cannot be restrained by condition because they are annexed to the estate tail by Law no more than a tenant by the Curtesie or tenant in tail after possibility can be by condition made punishable for waste Also things ordained by Statute cannot be restrained by condition c. as that the tenant in tail shall make no leases according to the Statute of 32 H. 8. 28. or levy a fine according to the Statutes of 4 H. 7. 24. 32 H. 8. 36. to barr the issues for none of these which are incident to his estate by Act of Parliament can be restrained by condition or limitation Auditors of the Wards 7 The King himself cannot do any thing against an Act of Parliament when the subject hath also an interest in it Co. l. 11. 3. b. 4 in Auditor Curles case And therefore albeit the words of the grant to the two persons ordained by the Statute of 32 H. 8. 46. to be Auditors of the Court of Wards be conjunctim divisim et alterius eorum diutius viventis yet that being an office of trust there shall be no survivor thereof for that it being enacted by that Statute that there should be two persons c. which should have a judicial voice the King cannot constitute one only for the Subject by the Act hath interest therein Et securius expediuntur negotia commissa pluribus Howbeit the King may constitute one at one time by one patent and another at another time by another patent And albeit he may so do yet he who is first constituted hath not any judicial voice until the other be constituted also for it is provided by the Statute
4. It is better that it be turned to a default than that the Law should be changed or any innovation made And therefore new and subtil inventions ought not to alter any principle of the Common Law Vide supra 184. 21. 159. 2. Co. ibid. 377. b. 4. 2 The Invention devised by Iustice Richel an Irishman born in the time of R. 2. the like by Thirning Chief Iustice in the time of H. 4. were both full of imperfections The like for nihil simul inventum est perfectum and saepe viatorem nova non vetus orbita fallit And therefore new inventions in assurances are dangerous Co. l. 1. 87 a. 4. in Corbets case 3 If a man make a feoffment in fée of land to the use of A. and his heirs every Monday and to the use of B. and his heirs every Tuesday Perpetuity and to the use of C. and his heirs every Wednesday these limitations are void because it is a new invention there being no such fractions of estates found in the Law And therefore not to be permitted for the inconvenience that may ensue thereupon Co. l. 1. 138. a. 3. in Chudlâ—yes case 4 By the Statute of 27 H. 8. of Uses The like some uses were executed presently others by matter ex post facto and others again were extirpated and extinguished by that Act Vses in esse did draw the possession presently by force of the Act Vses limited in futuro and agreeable to the Rule of the Common Law are also if they become in due time in esse within the provision of that Statute but uses invented and limited in a new manner and not agréeable to the antient Common Laws of the land are utterly extirpated and extinct by that Act for it appears by the express letter of the Act that it was the intent of the Parliament to extinguish and root them out and to restore the antient Common Law of the Land Vide plus ibidem Co. l. 5. 32. a. Pettisers case 5 Vpon a fieri facias of the goods of the testator Devastavit the Sheriff returns nulla bona c. And thereupon another writ issues to him to inquire by Enquest whether or no the executors have wasted c. he returns they have and thereupon execution is awarded of their own goods but this award of execution was reversed by writ of Error because that practice had béen taken up of late dayes wheras the antient course was and since the judgement in this case is taken up again to sue a fieri facias to the Sheriff to levy c. of the testators goods and if it appear to him that the executors have wasted c. then of their own goods And in such case an action upon the case will lie against the Sheriff if he make a false return whereas in the other case no such action lies because the Sheriff makes his return by Inquest Perpetuity 6 All perpetuities being new inventions are against the reason and policy of the Common Law Co. l. 6. 40. b. 3. in Sir Anthony Mildmayes case Co. l. 9. 128. a. 4. in Sondayes case for at the Common Law all Inheritances were fée-simple to the end that neither Lords should be defeated of their escheats wards c. nor purchasors or farmers should lose their estates or leases or be evict by the heirs of their grantors or lessors nor such infinite occasions of troubles contentions or sutes should arise And therefore it may be truly averred that the policy and Rule of the Common Law in this point was in effect subverted by the Statute de donis made in 13 E. 1. which ordained a general perpetuity by Act of Parliament for all such as had then made it or would afterwards put it in ure by force whereof all the possessions of England in effect were intailed accordingly which was the cause of the said and divers other mischiefs Howbeit divers attempts were made for remedy thereof in divers Parliaments and many bills exhibited accordingly but they were alwayes upon one pretence or other rejected Indéed the truth was that the Lords and Commons knowing that their estates tail were not forfeitable for felony or treason as their estates of Inheritance were before the said Act and principally in the Barons warrs in the time of H. 3. and finding also that they were not chargeable with the debts or incumbrances of their ancestors and that the sales alienations or leases of their ancestors did not bind them for the lands which were so entailed to their ancestors did alwayes reject such bills And this continued all the residue of the Reign of E. 1. and the Reigns of E. 2. E. 3. R. 2. H. 4. H. 5. H. 6. and until about the 12 of E. 4. when the Iudges upon consultation had amongst them did resolve that an estate tail might be docked and barred by a Common recovery and that by reason of the intended recompence the Common recovery was not within the restraint of the said perpetuity made by the said Act of 13 E. 1. whereby it appears that many mischiefs did arise upon the change of a Maxim and Rule of the Common Law which they who altered it could not discern when they made the said change for Rerum progressus ostendunt multa quae in initio praecaveri seu praevideri non possunt Vide 8. Marshalsie 7 In Sir Geo. Reynels case in the 9 Report Co. l. 9. 97. a. 2. one of the reasons why the office of Marshalsie could not be granted for years was because it was an antient office and had been alwayes granted for life or at will to the end the person to whom it was granted might be certainly known And therefore to grant it for years when it was never known to be so granted before being an Innovation might prove dangerous and of ill consequence to the Commonwealth An Intail docked 8 The docking of an Intail by a Common recovery in 12 E. 4. was no new invention Co. l. 10. 37. b. 2. in Mary Portingtons case but consonant to the opinion of the Sages of the Law even from the making of the Statute De donis as appears by divers authorities in our books viz. in 42 E. 3. 53. in 44 E. 3. 21 22. Octavian Lumbards case in 48 E. 3. 11. b. Jefferey Benchers case in 12 H. 4. 13. b. in 1 E. 4. 5. in 5 E. 4. 2. b. which resolutions and opinions in Law together with divers others of the like kind did as it séems produce the judgement in 12 E. 4. And therefore such barring of an estate tail was not then to be estéemed an innovation or new invention but the Iudges and Sages of the Law then perceiving what contentions and mischiefs had crept into the quiet of the Law by such fettered Inheritances upon consideration of the said Act and of the former exposition thereof by the Sages of the
a wife who is indebted to other persons F. N B. 120. f. the Baron and feme shall be sued for this debt living the feme but if the feme die the Baron shall not be charged therewith after the death of the feme Howbeit if the Creditor of the Baron and feme recover the debt during the Coverture which was due by the feme before the Coverture then albeit the feme die yet the Baron shall be charged to pay that debt after the death of the feme by reason of that Recovery c. And all this because during the coverture they are but one person in Law Remitter 5 If tenant in tail enfeoff a feme in fee and die Littl. §. 665. Co. Iâ—st pars 1. 350. b. 3. and his issue within age takes the feme to wife this is a remitter to the infant within age and the feme hath nothing left in her because they are one person in Law So likewise if the husband discontinue his wives land and take back an estate to him and his wife during the life of the husband this is a remitter to the wife presently albeit the estate is not by the limitation to have continuance after the decease of the husband because the husband and wife are one person as aforesaid Joint purchase 6 If a joint estate of land be made to Baron and feme and a third person in this case the Baron and feme shall have but a moity Littl. §. 291. Co. ibid. 187. a and the third person the other moity so likewise if land be given to Baron and feme and two others the Baron and feme have but a third part because they are but one person in Law Cui in vita 7 If the Baron discontinue the land of the feme Littl. §. 676. Co. ibid. 356. b. 1. and after take an estate to him and his wife and a third person for life or in fee This is only a remitter to the feme for the moity and for the other moity after the death of her husband she shall have a Cui in vita Witness 8 It was resolved in the Common Bench Co. ibid. 6. b. 4. in P. 10 Iac. that a wife cannot be produced as a witness either against or for her husband quia sunt duae animae in carne una and it might be a cause of implacable discord and dissention between the husband and wife and a mean of great inconvenience Pardon for alienation 9 Sir Robert Catlyn Chief Iustice purchased lands holden of the Crown in Capite to him and his wife Dyer 196. 40. 3. Eliz. and the heirs of the said Sir Robert and the Quéen pardons him omnes transgressiones et offensas pro quacunque alienatione sibi facta without speaking of his wife yet this was a sufficient discharge of the fine for the alienation to him and his wife because as it seems they were one person in Law Ho 179. Levendens case 10 An action of debt was brought against the husband and wife for the Recusancy of the wife Debt for Recusancy and the husband would have appeared alone by Supersedeas but the Court resolved that either both must appear or both be outlawed being one person in Law 209 The Wife is of the same Condition with her Husband Co. Inst pars 1. 16. b. 3. Co. l. 4 118 b. 3. in Actons case Co. l. 6. 52. b. 53. b. in the Countess of Rulands case 1 Nobility may be granted for term of life by act in Law Nobility without any actual creation As if a Duke take a wife by the intermarriage she is a Dutchess in Law and so of a Marquess an Earl and the rest and in some other case for that in such case she is of the same condition with her husband Howbeit there is a diversity betwéen a woman that is noble by descent and a woman that is Noble by mariage for if a woman that is noble by descent marry a man that is under the degrée of Nobility yet she remaineth Noble stil but if she gain it by marriagâ— she loseth it if she marry under the degree of Nobility and so is the Rule to be understood Si mulier Nobilis nupserit ignobili desinit esse Nobilis but if a Dutchess by mariage marieth a Baron of the Realm she remaineth a Dutchess and loseth not her name because her husband is Noble sic de caeteris Co. ibid. 30. b. 1. Co. l. 4. 55. a. 3. in the Commonalty of Sadlers case 2 If a man mary the Nief of the King by license and hath issue by her and after lands descend to the Nief and the husband enter Villeinage the Nief dieth he shall be tenant by the Curtesie of this land and the King upon any office found shall not evict it from him because by the marriage the Nief was enfranchised during the Coverture But if a free woman marry a Villein of the King by licence and lands descend to the Villein the Villein dieth the wife shall not be endowed but upon an office found the King shall have the land for the Villein remaineth still a Villein to the King Co. ibid. 123. a. 1. Littl. §. 187. 3 If a Nief marry a freeman Villenage by the Common Law of England the issue is free because in such case during the Coverture she is enfranchised and by consequence free And therefore they being both free the issue ought to have the same privilege So likewise if a Villein marry a freewoman the issues are Villeins for the like reason viz. because during the coverture they are both Villeins Co. ibid. 136. b. 1. 4 In case where a freeman marrieth a Nief some have holden Villein Nief that by this marriage the wife shall be free for ever but the better opinion of our books is that she shall be privileged during the coverture only unless the Lord himself marrieth his Nief and then some hold that she shall be free for ever Vide infra 9. Co. ibid. b. 2. 5 If a Nief be regardant to a Mannor Villein Nief and she taketh a freeman to husband by licence of the Lord and the Lord maketh a feoffment in fee of the Manor the husband dyeth the feoffee shall not have the Nief but the feoffor for that during the mariage she was severed from the Manor And so is the book of 29 Ass which is falsly printed to be understood Co. ibid. 6 If there be two Coperceners of a Villein Villeinâ— and one of them taketh him to husband she and her husband shall not have a Nuper obiit against her Copercener but after the decease of her husband 〈◊〉 may Petty treason 7 By the Statute of 25 E. 3. it is declared Pl. Co. 86. b. 2. in Partridges case that if a servant kill his Master it shall be adjudged
Longeville Madame de Chevreuse c. 61 A matter of higher nature determineth a matter of lower nature contrà Co. Inst pars 1. 83. a. 4. 1 If a Tenant by Castle-guard do serve the King in his warre Castle-guaâ—â— he shall be discharged against the Lord according to the quantity of the time that he was in the Kings host Co. ib. 115. a. 3 2 If there be any sufficient proof of record or writing against a prescription A record or writing quaâ—eth a â—rescrâ—ption albeit such a record or writing excéed the memory or proper knowledge of any man yet are they within memory of man and shall quash the prescription for a matter in writing shall determine a matter in fait and a record or sufficient matter in writing are good memorials and therefore it is said litera scripta manet and when we will by any record or writing commit the memory of any thing to posterity the phrase is tradere memoriae c. 21 H. 7. 5. 3 A man hath liberties by prescription The like and after taketh a grant of those liberties by Letters Patents from the King this determineth the prescription for a matter in writing determineth a matter in fait Finch 22. Co. l. 6. 45. a. 4. Higgens case Vide ib. parl auth 33 H. 8. Dyer 50. Pl. 4. 4 If an offence which is murther at the Common Law Murder dâ—â—ned by treason be made treason no appeal shall lie of it because the offence of murther is drowned and it is punishable as treason onely whereof no appeale lyeth c. Finch 2â— Co. ib. 41. b. 4. 5 If A. be Tenant for life the remainder or reversion to B. for life Tenant for life may sâ—â—render to the reversioner 〈◊〉 life in this case A. may surrender to B. For the estate of B. for term of his own life is higher than an estate for another mans life and therefore if Tenant for life enfeoff him in the remainder for life this is a surrender and no forfeiture And generally from this ground it is that estates of lower nature are drowned in others of higher nature when they méet together in one and the same person Hereupon also ariseth extinguishment betwéen Lord and Tenant c. Co. l. 541. a. 2. in Sparrows case 6 If a man bring an action of Debt by bill in London or Norwich Suit in a lower Court abates not 〈◊〉 in an highâ— or in any other inferiour Court and after bring a writ of Debt in the Common Pleas that suit in the higher Court which is purchased hanging the suit in an inferiour Court shall not abate as appears in 7 H. 4 8. 3 H. 6. 15. Vide 43 E. 3. 22. 7 H. 4. 44. Briminghams case Co. l. 6. 45. a. 2. in Higgins case 7 After judgement upon an obligation for Debt A Iudgmenâ— destroys a bond so long as that judgment remains in force the Plaintiff cannot have a new action upon thâ—t obligation For as when a man hath a debt by simple contract if he take an obligation for the same debt or for any part thereof that taking of the obligation determines the former contract 3 H. 4. 17. 11 H. 4. 9. 9 E. 3. 50 51. So when a man hath a debt upon an obligation and by the ordinary course of Law hath judgement thereupon the contract by specialty which is of a lower nature is by the judgement of the Law changed into a matter of record which is of an higher nature Vide 56. 4. Co. l. 6. 45. a. 4. ibid. 8 If a man hath an annuity by déed or prescription The like and bring a writ of Annuity and hath judgement So long as this judgement remains in force he shall never have a writ of Annuity more albeit the Annuity be of inheritance but shall in that case have a Scire facias upon that judgment because the matter of specialty or prescription is altered by the judgement into a thing of an higher nature Vide 37 H. 6. 13. Iudgment in an action of forging a false déed is a good barre in another action upon the same forger But if recovery be in debt upon an obligation per Justicies there notwithstanding such judgement the Plaintiff may have an action of debt upon the same obligation in a Court of Record For the County Court being not a Court of Record the obligation is not by a judgement in that Court changed into any other thing of an higher nature but so long as such judgement remains in force the Plaintiff shall not have any other action upon the same obligation by Justicies in the same Court M. 2. Jac. Rol. 3172. in Com. Banco 11 H. 4. Br. Faits 19. Howbeit if a man be indebted upon an obligation and afterwards acknowledg a Statute Staple for the same debt and in full satisfaction of the said obligation in that case the Creditor may sue which of them he pleaseth for a Statute Staple or obligation in nature thereof is but an obligation recorded and an obligation be it of record or not of record cannot drown another Also a bare obligation and an obligation in nature of a Statute Staple are two distinct bonds made by assent of the parties without processe of Law whereof the one hath no dependance upon the other but in an action brought upon an obligation the suit is grounded upon the obligation as the edifice upon a foundation and the Plaintiff hath judgement to recover the debt due by the same obligation so that by a judicial procéeding and act in Law the debt due by the obligation is transformed and metamorphosed into a matter of record And a judgement in a Court of Record is a higher matter than a Statute Staple Statute Merchant or any recognisance acknowledged by assent of parties without judicial procéeding No Oyer and Termin where the K. Bench sâ—ts 9 In the Lord Sanchiers case in the 9 Rep. it was moved Co. l. 9 118. b. 3. in the Lord Sanchiers case in the case of the Marshalsie Co. li. 10. 73. b. 4. whether the said Lord Sanchier might not in the Term-time be indicted arraigned and convicted at Newgate before Commissioners of Oyer and Terminer for the County of Middlesex and it was resolved that he could not For the Kings Bench is more than an Eire and therefore in the Term-time no Commissioners of Oyer and Terminer or of Gaole delivery by the Common Law may sit in the same County where the Kings Bench sits because in praesentia majoris cessat potestas minoris And with this accords the 27 Assises Pl. 1. But Carlisle and Inweng the two Confederates of the Lord Sanchier were indicted and attainted in London where the murther was committed before Iustices of Oyer and Terminer in the Term-time because it was in another County than where the Kings Bench sate No Marshalsie wher 's the