selleth c. unto A. B. and C. the said Mannor with the Appurtenances and the reversions and remainders thereof c. together with all rents reserved upon any demise c. to have and to hold to them and to their Assignes immediately after the decease of the owner of the Mannor for the terme of seventéen yeares In this case the grant ought to take effect intirely as a demise at the Common Law or intirely by bargain and sale by raising of an use by force of the Statute of 27 H. 8. and not for part by the Common Law and for another part by raising of an use for thereby the Mannor may be dismembred which is against the expresse demise and bargain because both parties agréed that a Mannor should be intirely demised and bargained and also that a Man nor should be accepted by the Lessée without any fraction or division thereof â—â—â—tenancy 〈◊〉 intire Eâ—â—â—te â—â—â—omment by â—e good for â—ll 43 If there bée two Iointenants for life Co. l. 2. 66. b. 4. 67. a. Tookers Case and the Reversioner grants over his estate whereupon one of the Iointenants onely doth attorn Yet this is a good attornment of both to vest the whole reversion in the Grantée because the estate of the joint Lessées being intire for every Iointenant is seised per my per tout the reversion which is dependant and expectant upon such an estate is intire also and therefore the attornment by one of them is attornment for both to convey the whole reversion c. So if the Lessor disseise his two Lessees for life and enfeoff another and one of the Lessées re-enter this act of one of them is attornmenf in Law for both If one Iointenant give seisin of Rent that shall binde his companion as it is agréed in 39 H. 6. 2. If a lease be made to two and after the reversion is granted to one of them this is holden good attornment in Law for both Baldwin 28 H. 8. Dyer 12. b. And all this in the respect of the intirenesse of their estate c. 〈◊〉 condition of â—â—bond to perâ—â—rm to Coveâ—ants is intire 44 A. having an office and power to make Deputies Co. l. 3. 83. b. 4. Colstrits Case by Indenture betwixt him and B. and for a hundred pound paid c. makes deputation thereof to B. and A. covenants with B. that if A. die before B. that then the Executors of A. shall repay unto B. fifty pounds with divers other Covenants in the said Indenture concerning the said office in the enjoyment thereof And A. was bound to B. in two hundred pounds for the performance of Covenants and in debt the breach was alleaged for the non-payment of the said fifty pounds in as much as B. survived A. Here albeit the said Covenant to repay fifty pounds was lawful yet in as much as the rest of the Covenants were against the Statute of 5 E. 6. cap. 16. The bond which was a thing intire being void for those un-lawfull Covenants it was utterly void for all And if the addition of a Law-full Covenant should make the bond of force as to it the Satute would then serve to little or no purpose c. Co. l. 4. 9. a. 3. Bedils Case Ibidem a. 4. 45 Seisin of any part of a service as of part of a Rent A reservatioâ— of a Rent intire of one dayes work when it is done or the like is actual seisin of all to have an Assise because the service in that case is intire c. So if a man make a Lease for life or a gift in taile rendring the first yeares a quarter of wheate and after the yearly Rent of C. S. the seisin of the wheate is the seisin of the Rent whereupon he may have an Assise for all is but one intire reservation c. Co. l. 4. 33. a. 2. in Mittons Case 46 When the King makes a Sheriffe durante beneplacito The Shrâ—ffeâ— Office intire albeit he may determine his Office at his pleasure yet he cannot determine it in part as for a Towne or hundred or any other part nor abridge the Sheriffe of any thing incident or appurtenant to his Office for the Office is intire and so ought he to continue in his Intiretie without any fraction or diminution whatsoever unlesse it be by Act of Parliament or that the King makes any Town c. A County of it self and Constitutes there a Shriffe and all things incident to a Sheriffe within the said Towne but he cannot determine the Office of the Sheriffe or any part thereof without but by constituting a new Sheriffe viz. for the execution and administration of Iustice because the Office is in its nature intire c. Co. lib. 4. 52. Rawlins Case 47 A possessed of an house whereunto a stable was adjoyning A proviso intire for the terme of 30 yeares by deed indented in consideration of 25 l. fine to be afterwards paid demised the same house and stable to B. for 21 yeares rendring unto A. 24 l. per annum quarterly and also 5 l. quarterly at the same feasts untill the saide 25 l. fine should be paid upon condition that if the said summe of 25 l. or the said Rent should be arreare at any Feast c. that then it should be Lawfull for A. to re-enter And afterwards and before any day of payement B. re-demiseth the said stable unto A. for 10 yeares who entred and after the Rent of 24 l. per annum is arreare and Lawfully demanded and also the 5 l. parcell of the summe in grosse was not paid In this case the whole Condition as also the re-entry of A. is suspended For albeit the condition stands upon two parts in the disjunctive viz. Either for the payment of Rent or of a summe in grosse which was collaterall yet in as much as B. re-demised part of the demise to A. viz. the stable whereinto A. entred and the Rent was hereby suspended and hereupon the intire condition both as to the Collaterall summe as also to the said Rent was likewise suspended because although the condition comprehend two severall things in the disjunctive of two severall natures viz. The one a Rent issuing out of the land which is incident to the reversion and may be suspended by the inter-medling with the land the other matter collateral to the land which cannot be suspended by the said re-demise yet here there are not several conditions but one intire condition which referres to two several branches and therefore being suspended in part it is suspended in all And that the condition was intire it appeares by the Conclusion thereof viz. that for the non-payment of the one or of the other it should be Lawfull for the Lessor to re-enter into all the land so that it is but one intire Condition and one intire entry which is not by the Acts of the Parties to be
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
juridicus Co. Inst pats 1 135. a. for that ought to be consecrated to divine service Pleas. 2 No plea shall be holden Quindena Paschae F. N. B. 17. f. because it is alwayes the Lords day but it shall be crastino quindenae Paschae Finâ—â— 3. Vpon a fine levied with proclamations according to the Statute of 4 H. 7. 24. if any of the proclamations be made on the Lords day Finches Ley pag. 7. all the proclamations are erroneous for the Iustices may not sit upon that day being a day exempt from such businesses by the Common Law for the solemnitie of it to the intent that all people may apply themselves that day to prayer and serving of God 1 El. Dyer 168 12 E. 4. 8. 3 If a writ of Scire facias out of the Common place beare Teste upon the Lords day it is errour because it is not dies dominicus in Banco Errour 4 No sale upon the Lords day shall be said a sale in Market overt to alter the propertie Sale 6 Gravius est divinam quam Temporalem laedere majestatem Co. l. 11. 29. b. Poulters case 1 Regularly Clergy a man shall by the Common law have the benefit of Clergie for any felonie Howbeit if a felon be also an Heretique Iew Sarazen or Infidel he shall not have it F. N. B. 269. b. Br. Heresie 1. Co. l. â— 58. a. Specots case 2 Heresie is an offence committed against the Majestie of God by a presumptuous oppugning of an Article of Faith or the like Heresie And therefore at the Common law this offence was punished by a more terrible and grievous mulct than any other felony whatsoever and indeed than Treason it selfe viz. by fire and faggot Howbeit to determine what is Heresie falls not within the Conusance of temporal Courts but is wholly left to the Ecclesiastical Iurisdiction for it appears by the writ de haeretico comburendo that at the Common law before an heretique could be committed to the Lay-power to be burnt he was to be convicted in a Provincial Synod before the Archbishop and his Clergie and then if he did either refuse to abjure the heresie or having abjured it upon a relapse were convicted again by such a Synod of that or any other heresie he was then delivered to the secular power to be punished by fire and faggot and no Sanctuarie could priviledge him Frowick Lect. Howbeit by the Statute of 2 H. 4. 15. any Bishop had power to do as much within his Diocesse and if the Sheriffe were present at his conviction the Bishop might deliver him to the Sheriffe to be burnt and that without the Kings writ but that Statute was repealed by 25 H. 8. cap. 14. and thereby that offence made presentable at Sheriffes Turnes and Léets and from thâ—nce to be certified to the Ordinarie which Statute the 25 H. 8. was also repealed by 1 E. 6. 12. from which time until 1 2 P. M. 6. which revived 2 H. 4. 15. an heretique was punishable at the Common Law as above is expressed but by 1 El. 1. the Statute of 1 2 P. M. was repealed and then by 1 El. the Quéenes Commissioners heretofore called the High Commission Court had power to judge of heresie but they were thereby also restrained to adjudge nothing Heresie but what was so adjudged by the holy Scriptures the four first General Councils or the Parliament with the assent of the Clergie in their Convocation Howbeit at this day the Iurisdiction of Bishops being taken away and that clause of 1 El. repealed by a later Act it séemes at present there is no law to punish that offence See more concerning heresies in the Statutes of 5 R. 2. 5. 2 H. 5. 7. 31 H. 8. 14. and 34 H. 8. 1. being all repealed by 1 E. 6. 12. See also Li. Intr. 264 and 340. Rast Ph. 319. 10. H. 7. fol. 17. and Doct. and Stud. L. 2. cap. 29. Howbeit observe that the said Statutes made in the raignes of H. 4. and H. 5. were chiefly intended against such as did then begin to discover the Pride Lucre and errors of the Church of Rome and in dirision were termed Lollards as you may read at large in the Book of Martyrs and elsewhere in divers other authors as Sleiden Brightman c. The Kings command against Law not to be obeyed by the Judges Stat. 18. E. 3. Stat. 3. 8. 3 One part of the Iudges oath is that they shall not deny right though it be by command from the King which if they breake they will be found guilty Laesae Majestatis divinae And therefore in such case they ought rather to disobey the Kings commands then thereby incurre the high displeasure of Almighty God for Gravius est divinam c. And to the end that the Iudges might be the better protected from this danger Stat. 2. E. 3. 8. the prudence of former times hath ordained divers Lawes whereby the Iustices have power to procéed Stat. 20. E. 3. 1. notwithstanding any command from the King to the contrarie no though it be under the Great or Privie Seal And therefore if the King write to the Iustices to prorogue an Assize because the defendant is in his service F. N. B. 153. h. yet the Iustices ought to procéed and not to cease for any such letter so likewise in an Assize the Bishop certifies Bastardie 29 E. 3. 14. Judgment 117 and the Kings letter is sent to the Iustices to cease because the certificate was suspicious notwithstanding which letter they tooke the Assize and afterwards albeit the Chancellor reversed the taking of the Assize in the Council because they obeyed not the letter yet notwithstanding that the Iustices gave Iudgement upon the Assize 22 F. 3. 12. Judgment 185 Also in dower the tenant was essoined and had farther day given at which the King sends a letter to excuse the tenants apperance alleadging that he was at Callis in his service Howbeit the Iustices gave no regard to it but proceeded notwithstanding that letter Nor by the Sheriff 4 The Sheriffe also 14 E. 3. Returns del Viscont 8â— who is but an Officer or Minister to the superiour Courts of Iustice ought not to desist from the due execution and return of writs directed unto him notwithstanding any command to the contrary from the King least he likewise incurre the like danger by breaking his oath And therefore we read in 14 E. 3. that N. de B. being attainted of disseisin with force An Exigi facias went forth against him to the Sheriff who returned that the King had certified him by writ that he had pardoned the trespasse and imprisonment commanding him that he should desist and that therefore he had not executed the writ whereupon saith Wilby the writ ought first to have béene sent to us that we might have commanded the Sheriffe to cease for the Sheriffe
County where he is Iustice Power lost and he takes him in the other County In this case he is his prisoner in the County where he takes him and ought there to be imprisoned and he cannot send or convey him to the Gaol of the County where he committed the felony for he is not his prisoner there and being out of his proper County his authority ceaseth as to that other County So if the Marshal hold plea of a thing done out of the verge or the Admiral of a thing done in the body of the County it shall be void for their authority extends to a certaine place and within a certain precinct and not elsewhere and if he which takes Sanctuary goes out any man may take him because he hath lost his priviledge Plowd 72. b. Sir Thomas Popes case 54 If the Conisée of a Recognisance according to the Statute of 23 H. 8. cap. 6 sell several parts of his lands to several feoffées No discharge by the Conusees purchase of part reserving also part thereof to himselfe if execution be sued against his part in an Audita quaerela he shall not compel any of the feoffées to contribute And therefore by the same reason the purchase of part by the Conisée shall not discharge the execution for the execution of the Conisée shall be discharged in consideration that he shall be contributory if he were Feoffée and not Conisée and then in as much as he shall not be contributory if he were Feoffée and not Conisee his purchase of part shall not discharge the execution being Conisée quià cessante causa c. Co. Inst pars 1 70. b. 3. 55 If the King had given lands to an Abbot and his successors to hold by Knight-service this had béen good Lands held by Corporations in Knights Service and the Abbot should have done homage and found a man c. or have paid escuage But there was no wardship or reliefe or other incident belonging thereunto yet if the Abbot with the assent of his covent had conveyed the land to a natural man and his heirs now wardship and reliefe and other incidents belonged of common right to the tenure And so it is if the King give lands to a Major and Communalty and their successors to be holden by Knight-service In this case the Patentées shall do no homage neither shall there be any wardship or reliefe onely they shall find a man c. or pay escuage But if they convey over their lands to any natural man and his heires now homage ward mariage reliefe and other incidents belong thereunto quià cessante ratione legis cessat ipsa lex Lord and Villain 56 If villanage be pleaded by the Lord in an action Real Co. ibid. 127. b. 4. 18 E. 4. 6. 7. personal or mixt and it is found that he is no villaine the bringing of a writ of errour is no enfranchisement because thereby he is to defeat the former judgement and if in the mean time the plaintiffe or demandant bring an action against the Lord he néed make no protestation so long as the record remaines in force for at that time he is frée but the Lord shall be restored to all by the writ of errour Waste 57 If lands be given to two and to the heires of one of them Co. ibid 247. b. 3. he that hath the fée simple shall not have an action of wast upon the Statute of Glocester against the Ioyntenant for life but his heir shall maintaine an action of waste against him upon that Statute So that in this case the heir shall maintaine that action which the Ancestor could not Dower 58 If the husband alien his land Co. Inst pars 1 33. a. 4. and then the wife is attainted of felony now is she disabled but if she be pardoned before the death of the husband she shall be endowed Also if the sonne endow his wife at her age of 7 yeares ex assensu patris if she before the death of her husband attaine to the age of nine yeares the dower is good Office and Rent 59 The King granteth to one an office at will Finch 8. Co. ibid. 42. a. 4 3 E. 4. 8. and ten pounds yearly rent during life pro officio illo here if the King put him out of his office the rent shall cease 21. 4. Guardian in Soccage 60 The executor or husband after the death of the wife guardian in Soccage shall not retain the wardship 7 El. 293. b. Finch 9. Co. Inst pars 1 89. a. 1. for the guardian hath it not to his owne use but for the benefit of the heire and the executor or husband by common intendment beare not such affection to the Infant as the testator or his wife did which was the cause that the law gave them the wardship A Pardon 61 If a stroke be given the first day of May 13 El. 401. Finch 9. and the King pardon him the second day of May all felonies and misdemeanors the party smitten dieth the third day of May so as this is no felony till after the pardon yet is the felony pardoned for the misdemeanors being pardoned all things pursuing it are also pardoned Livery 62 The King hath a Ward pur cause de gard 13 E. 4 10. b. Finch 9. and after maketh Livery to the first Ward the second Ward shall not sue Livery Coparceners 63 If two coparceners make a lease reserving a rent Finch 9. they shall have this rent in common as they have the reversion But if afterwards they grant the reversion excepting the rent they shall be from thenceforth Ioyntenants of the rent Challenge 64 It is no principal Challenge to a juror 14 H. 7. 2. Finch 9. that he hath married the parties mother if she be dead without issue for the cause of favour is removed Entry 65 If an Infant tenant in taile make a feofment in fée and die Co. Inst pars 1 337. a. 2. his issue may enter but if after the feofment made he be attainted of felony and dieth the entry of the issue is taken away for his entry is not lawful in respect of his estate onely but of his bloud also which is corrupted Formedon and therefore in that case he is driven to his Formedon Villain 66 Si mulier serva copulata fit libero c. partus habebit haereditatem Bract. lib. 4. fol. 298. b. Idem l. 1. c. 6. mater nullam dotem quià mortuo viro suo libero redit in pristinum statum servitutis nisi haeres ei dotem fecerit de gratia Co. Inst Pl. 1. 123. a. 2. Co. Inst pars 1 174. a. 4. 67 If one coparcener maketh feoffment in fée Coparceners and after her feoffée is impleaded and voucheth the feoffor she may have aide of her Coparcener to deraign a warranty
several Warranties in regard they are severally seised the one of part of the land and the other of the residue in severalty 6 E. 2. Covenant Br. 49. So also a joynt Covenant taketh severally in respect of the several interests of the Covenantées Vide 16 Eliz. 337 338. Dyer inter Sir Anthony Cook and Weston in Justice Windhams case Co. l. 5. 7. b. 4. Co. ibid. Justice Windhams case Sometimes also joynt Words or Grants shall enure severally in respect of the incapacity or impossibility of the Grantées to take joyntly as a Lease made to an Abbot and a secular man or to two men or two women and to the heires of their two bodies engendred for in these and the like cases the inheritance is several Vide 19. Co. l. 5. 103. a. Hungares case 12 In Debt upon an Obligation brought by Hungate against Mese and Smith A joint obligation whereof the Condition was to performe an Arbitrament betwixt the Plaintife on the one part and the Defendants on the other part Ita quod Arbitrium praedictum fiat deliberetur utrique partium praedictarum before such a day And the Defendants pleaded that the Arbitrament was indéed made before the day agréed upon and was also delivered unto the Plaintife and unto Mese one of the Defendants but not unto Smith whereupon the Plaintife demurred and Iudgement was given against the Plaintife for in that case it was resolved that sometimes the word uterque is discretive and hath the quality of severing and sometimes collective and hath the property of joyning together as if two or thrée be bound in an Obligation utrumque eorum this word utrumque makes the Obligation several but in the abovesaid case it shall be taken collective And the Rule alwayes to know in which of these two sences it shall be taken is to consider the Subject matter and to make construction according to the congruity of Reason Dyer 28. H. 8. 19. b. ut evitetur absurdum as in the case of the 39 H. 6 7. the Condition of an Obligation was si uterque eorum viz. the Obliger and the Obligée Steterit arbitrio Roberti Bozom c. And it was adjudged that each of them was bound pro parte sua and not the one for the other for that would be absurd and against the congruity of Reason And in the said case of Hungate in as much as both the parties were equally subject to the penalty and danger reason requires that the Arbitrament should be delivered to both the parties to the end they may performe it and avoid the danger of breaking it c. Vide suprà 8 9. Co. l. 62. a. 2. Catesbyes case 13 The time for the Bishop to collate by lapse is Tempus semestre Tempus Semestre halfe the yeare according to the Kalender and is not to be accounted according to 28 dayes for each Moneth for verba sunt accipienda secundum subjectam materiam and therefore because this computation of moneths concernes those of the Church it is great reason that the computation shall be according to the computation of the Church wherewith they are best acquainted 8. 4. Vide Dyer 327. 7. Co. l. 7. 10. a. 3. Calvins case 14 In regard the King albeit he be but one person Allegiance due to the natural capacity yet hath two several capacities in him the one natural as he is a man the othe other politique so called because framed by the policy of man if it be demanded to which of these capacities ligeance is due The answer is that it is due to the natural person of the King which is ever accompanied with the politique capacity and the politique as it were appropriated to the natural capacity and is not due to the politique capacity onely that is to his Crowne or Kingdome distinct from his natural capacity For every Subject is presumed by Law to be sworne to the King which is to his natural person and likewise the King is sworne to his subject as it appeareth in Bracton l. 3. de actionibus cap. 9. fol. 107. which oath he taketh in his natural person because the politique capacity is invisible and immortall nay that capacity hath no soul being framed by the policy of man And therefore in all indictments of Treason when any do intend or compasse mortem destructionem Domini Regis which must néeds be understood of his natural body his body politique being immortal and not subject to death the indictment concludeth contra ligeanciae suae debitum by which it plainly appeares that ligeance is due to the natural body of the King that capacity being indeed the onely subject matter capable thereof Co. l. 8. 85. b. 3. Sir â—ichard Pexhul case 15 If A. deviseth to B. ten bullocks and ten pounds issuing and payable out of his lands and tenements quarterly at the most usual Feasts c. Here these in words payable quarterly Ten Bullocks and ten pound rent ought to be understood Secundam subjectam materiam and to have reference to the rent for ten bullocks per annum cannot be delivered quarterly â—ffices of â—â—st personal 16 The Office of Marshall of the Marshalshey cannot be granted for yeares Co. l. 9. 96. b. 4. Sir George Keynels case because it is an Office of great trust annexed to the person and concernes the administration of Iustice and the life of the Law which is to kéep such as are in execution in salva aâ—cta custodia to the end they may the sooner pay their debts and this trust is indjviduâ—l and personal and shall not be transferred to executors or administrators for the Law will not confide in persons unknown for the ordering of matters which concerne the administration of Iustice c. Bond taken by the Sheriff 17 In debt brought by Dyve against Maningham upon an obligation of 40 li. with condition to save Dyve bring then high Sheriffe of the County of Bedford harmelesse and to be ready at his command Plowd 65. b. 2. Dyve against Maningham as his true prisoner c. the Defendant pleades the Statute of 23 H. 6. cap. 10. by which such bonds taken by the Sheriffe colore officii are made void and farther saith that one Thomas Palley purchased a Liberari fac out of a recognisance to him made by the said Defendant and procured it to be directed to the said Sheriffe of Bedford to be served and certified and shewed farther that the King had sent to the Sheriffes of London Middlesex and Hertford other writs in forme aforesaid and that the same Sheriffe returned the writ into the Chancery c. In this case one exception taken to the Defendants plea was for that there were diâ—ers Sheriffes named in it and at last it is said that the same Sheriffe returned the writ c. which was said to be uncertaine but it was resolved to be certain enough
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
Inst pars 1 83. b. 3. All Earldoms and Baronies were derived from the Crown and were holden of the King in Capite and the King would not then suffer them to be divided or severed And such intire Earldoms and Baronies are within that Statute to pay relief according to the limitation thereof Howbeit at this day Earls and Barons are without such Earldoms and Baronies of the Kings gift in chief For at the creation of an Earl he hath sometimes an Annuity granted unto him and sometimes nothing at all but rather giveth somewhat for his Honour So as such Earls and Barons so created are cléerely out of the Statute of Magna Carta and are to pay such reliefs as other men that hold of the King in Capite For as the heir of a Knight shall not pay 100 s. relief unlesse he hath a Knights fée c. so neither the Earl nor Baron shall pay any relief by that Statute unlesse he hath an Earldom or Barony intended by the same Statute c. â—xecutors to â—ll lands 14 By the Statute of 21 H. 8. cap. 4. it is provided Co. ib. 113. a. 3. that where lands are willed to be sold by Executors though part of them refuse yet the residue may sell And here albeit the letter of the Law extendeth onely where Executors have a power to sell yet being a beneficial law it is by construction extended also where lands are devised to Executors to be sold Co. ib. 143. a. 4 Littl. Sect. 216. 15 The Law so regardeth equity and equality Tenure of land that it will in divers cases work according to them without any provision or reservation of the party And therefore if before the Statute of Quia emptores terrarum a man had made a feoffment in fée rendring rent to him and his heirs this was Rent-service for which he might distrain of common right And if he had made no reservation at all of any rent or service Yet the Feoffée should then have holden of the Feoffor by such service as the Feoffor held over of his Lord next paramount For the Law in this case did create a tenure Littl. Sect. 222. Co. ib. 148. b. 3. 16 If a man seised of divers lands of some in Fée-simple Rent-servâ—â— apportionable and of the rest in tail make a gift in tail or a lease for life or years of all reserving a rent and die Here if the issue in tail avoyd the gift or lease as to the entailed lands the rent shall be apportioned for seeing the rent is reserved out of and for the whole land it is reason that when part thereof is evicted by an elder title that the Donée or Lessée should not be charged with the whole rent but that it should be apportioned ratably according to the value of the land Co. ib. 154. a. 1. 17 By the Statute of 7 R. 2. cap. 10. it is enacted Equity upâ—â— 7 R. 2. â—â— that an Assise of rents issuing forth of lands in divers Counties shall be taken in Confinio comitatus which séems to be meant onely of Counties that border one upon another Neverthelesse albeit the Counties do not joyn but have twenty Counties lying between them yet the assise in Confinio comitatus doth lye and the Iustices shall sit between the said Counties And where the Statute seems to speak of two Counties onely the like Law is when the rent issueth out of lands lying in more Counties than two Co. ibid. a. 3. 18 The Statute of Merton cap. 2. made 20 H. 3. Equity upâ—â— Merton 20 H. 3. which gives the writ of Redisseisin is as followeth Item si quis fuerit disseisitus de libero tenemento coram justiciariis Itinerantibus seisinam suam recuperaverit per Assinam novae disseisinae vel per recognitionem eorum qui fecerint disseisinam ipse disseisitus per Vicecomitem seisinam suam habuerit fi iidem disseisitores posteà post iter justiciariorum vel infrà de eodem tenemento iterum eundem conquerentem disseisiverint inde convicti fuerint statim capiantur c. Here albeit this Statute seems to intend onely lands and tenements Littl. Sect. 233. yet Littleton § 233. Rent-sec◠〈◊〉 charge expounds it to extend also to a Rent-charge or a Rent-seck For although they are against common right yet a man may have a Free-hold in them And therefore if a man grant omnia tenementa sua a Rent-charge or a Rent-seck will also passe thereby Also by the same Statute the Assise seems to be limited to be taken onely coram justiciariis Itinerantibus Howbeit Littleton there speaketh generally and so is the Statute to be intended viz. before any other Iustices that have authority to take Assises and Justices Itinerant are onely set down there for an example And albeit that Statute saith Recuperavit per Assisam c. by the verdict of the Assise as Littleton in the same Chapter expoundeth it or per recognitionem c. by confession yet if the recovery be upon a demurrer or by pleading of a record and failer of it or by any other manner such recoveries are also within the equity of the same Statute And therefore Littleton in the abovesaid Section speaketh generally Et recovera le seisin del rent intimating that it ought to be understood of all manner of recoveries in an Assise of Novel disseisin Westm 2. â— by equity though peâ— And in that manner is the abovesaid Statute confirmed by Westm 2. cap. 26. And here it is worthy observation that this Statute is expounded by equity notwithstanding it is a penal Law for by the said Statute of Westminst 2. double damages is given upon the recovery Co. ib. 174. a. 3. Co. l. 4. 121. b. 4 Bastards case 19 There is a diversity between a recovery in value by force of a warranty upon an exchange and upon a partition Exchange Partition Recovery for upon an exchange he that loseth shall recover a full recompence for all that he so loseth But upon a partition the patcener that loseth shall onely recover the moity or half of that which is lost to the end that the losse may be equal 48. Equity of 32 H. 8. 32. 20 The Tenant by the Courtesie shall have a writ of Partition upon the Statute of 32 H. 8. cap. 32. Co. ib. 175. a. 4. as well as Ioyntenant or Tenant in common for life or years For albeit he is neither Ioyntenant nor Tenant in common because a praecipe lyeth against the Parcener or Tenant by the Courtesie yet forasmuch as he is in equal mischief as another Tenant for life he shall be intended within the equity of that Statute Division of lands Hotchpot 21 If a man seised of lands in fee hath issue two daughters Littl. Sect. 267. and gives part of them to one of his daughters in Frankmarriage and dies In this case albeit
in the Mannor As if A. gives the Mannor of B. to B. in taile and after the Donor is attainted of treason whereby the King is seised of the reversion and after by his Letters patents grants Manerium de D. to another and his heirs In this case albeit the King grants the Mannor of D. is in possession yet the reversion shall passe for the King hath an estate viz. the reversion in fée grantable in him the estate taile of the common person néed not be recited c. The King not deceived 31 If the King be Tenant pur auter vie Co. l. 7. 12. a. 4. in Englefeilds case and makes a lease for forty years Here albeit the King having but an estate pur auter vie cannot absolutely contract for a lease of forty years yet without any recital or mention of the estate for life the lease is good for the lease for years is in judgment of Law lesse than a lease pur auter vie and the King doth no wrong or prejudice to any by such a demise neither yet is he deceived in his grant because in judgement of Law that is a lease for forty years if Cestuy que vie shall so long live c. Fine in a court Leet 32 If for an amerciament upon an offence committed out of a Court Léet and found by the Iury whereof the Iury onely have conisance and for which they onely are to impose the amerciament the Lord of the Léet hath power to distrain Co. l. 8. 41. a. 4. in Greisleys case c. Much more for a fine imposed by the Steward in Court for some contempt c. committed in the Court it self and whereof the Steward only hath conisance shall the Lord c. distrain the goods of the party offending and impound them c. or else make sale thereof at his election c. A lease for years lesse than an estate for life 33 If a man upon a grant reserve unto himselfe power to make leases so that they shall not excéed 21 years or thrée lives In that case Co. l. 8 70 b. in Whitlocks case he may make leases of 99 years if any three shall so long live because such a lease excéeds not thrée lives but is in truth lesse for an estate for years which is but a Chattel is lesse in estimation of Law than an estate for life which is a Franktenement An Officer may make a Deputy 34 When an Officer hath power to make assignes he hath power Co. l. 9. 48. b. 4. in the Earl of Shrewsburies case implicite to make Deputies For Cui licet quod majus est non debet quod minus est non licere And therefore when an office of Stewardship or the like is granted to one and his heirs he may thereby make an Assignée and by consequent also a Deputy c. An arrest within the liberties of London 35 In Mackallyes case in the 9 Rep. exception was taken to the Indictment viz. that the precept was to arrest the Defendant Co. l. 9. 67. a. 1. in Mackallyes case Si inventus foret infra libertates Civitatis praedicti viz. London And the Indictment was Quid in parochia Sancti Martini Bowyer Rowe in Warda de Farringdon infra Londinum praedict the Serjeant arrested him and so he pursued not the precept for the precept was infra libertates London But notwithstanding that exception the Indictment was resolved to be good because the said Parish and Ward in London shall be intended to be within the liberties of London For these words liberties of London have a larger extent than the word London and do include in them the Citie of London it self c. Justices of the Kings Bench are Justices of Gaol delivery Oyer and Terminer 36 The Justices of the K. Bench are taken to be within the words of the stat of 2 E. 6. cap. 24. which ordains Co. l. 9. 118. b 2. in the Lord Sanchiers case that for the tryal of accessaries in another County than where the principal was indicted Certificat of the Indictment of the principal shall be made to the Iustices of Gaole delivery or of Oyer and Terminer before whom the accessary is to be tryed c. for that the Iustices of the K. Bench are the sovereign Iustices of Gaol delivery of Oyer Terminer and therefore they are included within the same words And upon the same ground it is holden in 7 E. 4. 18. 4 H. 7. 18. that if an indictment of forcible entry be removed into the Kings Bench the Iustices of that Bench shall award restitution and yet the Sâ—at of 8 H. 6. cap. 9. speaks onely of Iustices of Peace but the reason is because the Iustices of the Kings Bench have sovereign and supream authority in such cases And therefore in the Lord Sanchiers case in the 9 Rep. the Iustices of the Kings Bench wrote according to the said Act of 2 E. 6. to the Iustices of Gaole delivery in London before whom the Principal was tryed c. who thereupon certified the record accordingly c. Co. l. 11. 60. a. 3 Doctor Fosters case 37 The Statute of 23 Eliz. cap. 1. which ordains Attaint moâ—â— than conviâ—â— that every person c. being lawfully convicted of not going to Church c. shall forfeit xx l. per mensem c. séems to intend onely conviction by verdict because that being a penal Law shall not be understood by equity Yet in that case he against whom any judgement is given either upon a Nihil dicit or upon an insufficient plea pleaded and demurrer thereupon is convict within the purview of the same Stat. For albeit this will not follow Such a man is convict therefore he is also attaint and judgement is given against him Yet this is a good consequence Such a man is attainted or adjudged ergò he is convict For he that is attainted or against whom judgement is given is convict and more c. 22. F. N. B. 56. 1. 38 In a writ of Waste if the premisses thereof rehearse Quare Waste cum de Communi Concilio regni nostri Angliae provisum sit quod non liceat alicui facere vastum c. in terris domibus boscis gardinis And in the end of the same Writ it is alleaged quod defendens vastum fecit in terris onely or in boscis onely or in houses onely yet is the Writ good For omne majus continet in se minus c. F. N. B. 136. f. 39 If the Tenant holds by the services Tenure by which the Mesne holds over and also by some other this is good equality to have acquital because it is such and more c. F. N. B. 150. p. 40 Glanvile saith that ad ostium ecclesiae Dower ad â—â—um man cannot assigne for dower more than a third part and if he doth the
Longeville Madame de Chevreuse c. 61 A matter of higher nature determineth a matter of lower nature contrà Co. Inst pars 1. 83. a. 4. 1 If a Tenant by Castle-guard do serve the King in his warre Castle-guaâ—â— he shall be discharged against the Lord according to the quantity of the time that he was in the Kings host Co. ib. 115. a. 3 2 If there be any sufficient proof of record or writing against a prescription A record or writing quaâ—eth a â—rescrâ—ption albeit such a record or writing excéed the memory or proper knowledge of any man yet are they within memory of man and shall quash the prescription for a matter in writing shall determine a matter in fait and a record or sufficient matter in writing are good memorials and therefore it is said litera scripta manet and when we will by any record or writing commit the memory of any thing to posterity the phrase is tradere memoriae c. 21 H. 7. 5. 3 A man hath liberties by prescription The like and after taketh a grant of those liberties by Letters Patents from the King this determineth the prescription for a matter in writing determineth a matter in fait Finch 22. Co. l. 6. 45. a. 4. Higgens case Vide ib. parl auth 33 H. 8. Dyer 50. Pl. 4. 4 If an offence which is murther at the Common Law Murder dâ—â—ned by treason be made treason no appeal shall lie of it because the offence of murther is drowned and it is punishable as treason onely whereof no appeale lyeth c. Finch 2â— Co. ib. 41. b. 4. 5 If A. be Tenant for life the remainder or reversion to B. for life Tenant for life may sâ—â—render to the reversioner 〈◊〉 life in this case A. may surrender to B. For the estate of B. for term of his own life is higher than an estate for another mans life and therefore if Tenant for life enfeoff him in the remainder for life this is a surrender and no forfeiture And generally from this ground it is that estates of lower nature are drowned in others of higher nature when they méet together in one and the same person Hereupon also ariseth extinguishment betwéen Lord and Tenant c. Co. l. 541. a. 2. in Sparrows case 6 If a man bring an action of Debt by bill in London or Norwich Suit in a lower Court abates not 〈◊〉 in an highâ— or in any other inferiour Court and after bring a writ of Debt in the Common Pleas that suit in the higher Court which is purchased hanging the suit in an inferiour Court shall not abate as appears in 7 H. 4 8. 3 H. 6. 15. Vide 43 E. 3. 22. 7 H. 4. 44. Briminghams case Co. l. 6. 45. a. 2. in Higgins case 7 After judgement upon an obligation for Debt A Iudgmenâ— destroys a bond so long as that judgment remains in force the Plaintiff cannot have a new action upon thâ—t obligation For as when a man hath a debt by simple contract if he take an obligation for the same debt or for any part thereof that taking of the obligation determines the former contract 3 H. 4. 17. 11 H. 4. 9. 9 E. 3. 50 51. So when a man hath a debt upon an obligation and by the ordinary course of Law hath judgement thereupon the contract by specialty which is of a lower nature is by the judgement of the Law changed into a matter of record which is of an higher nature Vide 56. 4. Co. l. 6. 45. a. 4. ibid. 8 If a man hath an annuity by déed or prescription The like and bring a writ of Annuity and hath judgement So long as this judgement remains in force he shall never have a writ of Annuity more albeit the Annuity be of inheritance but shall in that case have a Scire facias upon that judgment because the matter of specialty or prescription is altered by the judgement into a thing of an higher nature Vide 37 H. 6. 13. Iudgment in an action of forging a false déed is a good barre in another action upon the same forger But if recovery be in debt upon an obligation per Justicies there notwithstanding such judgement the Plaintiff may have an action of debt upon the same obligation in a Court of Record For the County Court being not a Court of Record the obligation is not by a judgement in that Court changed into any other thing of an higher nature but so long as such judgement remains in force the Plaintiff shall not have any other action upon the same obligation by Justicies in the same Court M. 2. Jac. Rol. 3172. in Com. Banco 11 H. 4. Br. Faits 19. Howbeit if a man be indebted upon an obligation and afterwards acknowledg a Statute Staple for the same debt and in full satisfaction of the said obligation in that case the Creditor may sue which of them he pleaseth for a Statute Staple or obligation in nature thereof is but an obligation recorded and an obligation be it of record or not of record cannot drown another Also a bare obligation and an obligation in nature of a Statute Staple are two distinct bonds made by assent of the parties without processe of Law whereof the one hath no dependance upon the other but in an action brought upon an obligation the suit is grounded upon the obligation as the edifice upon a foundation and the Plaintiff hath judgement to recover the debt due by the same obligation so that by a judicial procéeding and act in Law the debt due by the obligation is transformed and metamorphosed into a matter of record And a judgement in a Court of Record is a higher matter than a Statute Staple Statute Merchant or any recognisance acknowledged by assent of parties without judicial procéeding No Oyer and Termin where the K. Bench sâ—ts 9 In the Lord Sanchiers case in the 9 Rep. it was moved Co. l. 9 118. b. 3. in the Lord Sanchiers case in the case of the Marshalsie Co. li. 10. 73. b. 4. whether the said Lord Sanchier might not in the Term-time be indicted arraigned and convicted at Newgate before Commissioners of Oyer and Terminer for the County of Middlesex and it was resolved that he could not For the Kings Bench is more than an Eire and therefore in the Term-time no Commissioners of Oyer and Terminer or of Gaole delivery by the Common Law may sit in the same County where the Kings Bench sits because in praesentia majoris cessat potestas minoris And with this accords the 27 Assises Pl. 1. But Carlisle and Inweng the two Confederates of the Lord Sanchier were indicted and attainted in London where the murther was committed before Iustices of Oyer and Terminer in the Term-time because it was in another County than where the Kings Bench sate No Marshalsie wher 's the
be revoked So if I make my testament irrevocable yet may I revoke it for my act or my words cannot alter the judgement of the Law and make that irrevocable which of his own nature is revocable c. And therefore if I be bound by obligation to stand to the award of I. S. albeit if I discharge that arbitrement I shall forfeit my bond Yet is my submission in that case revocable and so is the book in 5 E. 4. 3. b. which séems to be contrary in that point well reconciled c. Restraint to demise void 18 The Charter of the Incorporation of Suttons Hospital restrains them to alien or demise but in a certain forme Co. l. 9. 30. b. 4. in the case of Suttons Hospital this is onely a precept and ordinance testifying the Kings desire but binds not in Law So likewise in another part of the same Charter the exemption of the Ordinaries jurisdiction is but a clause declaratory For being a Lay-corporation it neither can or ought to be visited c. A defective â—â—â—re 19 In the case of Monopolies in the 11 Report Co. l. 11. 85. b. 3. in the case of Monopolies the Defendant being charged by the Plaintiffe to have sold Cards c. contrary to the priviledge granted to the said Plaintiff by Letters Patents of Qu. Eliz. c. puts in this barre that the City of London is an ancient City and that within it time out of mind c. there hath béen a society of Haberdashers and that within the said City there was a custom Quod quaelibet persona de societate illa usus fuit consuevit emere vendere liberè mâ—rchandizare omnem rem omnes res Marchandizabiles infra hoc regnum Angliae de quocunque vel quibuscunque personis c. and pleaded farther that he was Civis liber homo de civitate societate illa and that he sold playing Cards c. as was lawful for him to do c. But the Justices gave no regard to this Barre because it was no more than what the Common Law would have said and then no such particular custome ought to have béen alleaged For in his quae de jure communi omnibus conceduntur Consuetudo alicujus patriae vel loci non est alleganda and with this accords 8 E. 4 5. c. Dyer 19. b. 115. 28 H. 8. 20 The Lessor covenants Lessee may take boots without assignment that the Lessée shall have sufficient Hedg-boot by the assignment of his Bailiff In this case for as much as this covenant is in the affirmative and floweth from the Lessor and is no more than what the Law gives a Lessée priviledge to do per Baldwin and Fitzherbert the Lessée may take Hedg-boot without assignment Tamen quaere for Shelley is of another opinion because Cujus est dare ejus est disponere Modus conventio vincunt legem and the Lessée also séems to be bound by the acceptance of the lease upon those termes Ideo quaere Howbeit if I let to one two acres of Meadow and that it shall be lawful for the Lessée to cut the grasse by the assignment of the Lessor yet the Lessée may cut the grasse without my assignment Dyer 179. 45. 2 Eliz. 21 A man seised in fée of lands in Burrough English since the Statute of 27 H. 8. makes a feoffment in fée to the use of himself Burrough English and the heirs males of his body engendred Secundum cursum communis legis and after dies seised accordingly having issue two sons In this case the youngest sonne shall have the land notwithstanding the words before Vide 26 H. 8. 5. Dyer 230. 57. 6 Eliz. 22 The Lord by Knight-service releaseth and confirms to the Tonant to hold by a Spurre In this case Tenure the new reservation is void upon the estate before created Howbeit the tenure by fealty still remains Dyer 238. 36. 7 Eliz. 23 A Coroners Inquest indicts a man of murther quòd fugam fecit Coroners Inquest and upon his arraignment he is acquit and another found guilty ut oportet and it was also found that he did not flie yet he shall forfeit his goods for upon his arraignment in this case the flight shall not be given in charge because they were before forfeited by the Coroners Inquest Hob. 5. Crow and Edwards 24 In debt upon an obligation of 60 l. for the payment of 31 l. 10 s. at Coventry issue was taken that the money was paid at Coventry Trial in forreign County and yet by consent of parties and a paper Rule of Court the issue was tried at London and found for the Plaintiff and judgement given Howbeit upon a Writ of Errour brought in the Exchequer Chamber the judgement was reversed for consent of Parties cannot change the Law Hob. 13. Sir Daniel Norton and Simmes 25 If a Sheriff will make an Vnder-sheriff Sheriffe provided that he shall not serve Executions above 20 l. without his special warrant this proviso is void as being against Law and Iustice For albeit he may choose not to make an vnder-Vnder-sheriff at all or may make him at his will and so remove him wholly yet he cannot leave him an Vnder-sheriff and yet abridg his power no more than the King may in case of the high Sheriff himself Vide 167. 52. Hob. 120. Smales and Dale 26 Albeit a Tenant in Common enter into the whole Tenants in Common and claim all expresly yet he cannot thereby dispossesse his companion for the possession of him that so enters is over all lawful as well before such claime as after so as there is no possession altered by such claim and then a sole claim without more can never change the possession and without a change of possession which the Law protects it remains as before and therefore a Coparcener Ioyntenant or Tenant in common can never be disseised by his fellow but by an actual Ouster For the same reason it is that is a Tenant in Common do alone bring an action of trespasse against a stranger his action shall be abated by pleading him Tenant in Common with another albeit his entry were made generally and expresly into all which proves that the entry of one serves for all for else they could not joyn in an action of trespasse 66 Expressio eorum quae tacitè insunt nihil operatur â—pon the Qu. â—ant of the â—version deâ—and must be â—pon the â—â—nd 1 Queen Eliz. le ts for years rendring rent Co. l. 4. 73. Boroughs case payable at the receipt of the Exchequer at Westm Seu ad manus balivorum vel recâ—pturum c. with condition to be void for non-payment c. the Quéen grants the reversion in fée Here the demand of this rent ought now to be made upon the land For in the Quéens case the limiting of
the land In this case the Rent and Escuage shall be apportioned but the Homage and Fealty shall still remain intire for the residue of the land still remaining in the Tenants hand because he still holds the residue of the land of him and then he must hold it by some service or other and therefore those services being in their nature unseverable and intire they shall totally remain being indéed the fréest and least chargeable services that the Tenant can hold by c. Co. ib. 150. a. 1. 14 Albeit in some cases a Rent-charge The charge of a stature not apportionable which is in his nature intire may by act in Law be apportioned as when the Grantée of the rent comes to the land by descent or the like Yet in such cases the writ of Annuity faileth because that writ being grounded upon the grant by déed which is intire must be sued for the whole and cannot be sued for part Also a rent in respect of the realty may be apportioned but the personalty is indivisible and shall not be severed no not by act in Law As if execution be sued of body and lands upon a Statute Merchant or Staple and afterwards the inheritance of part of those lands descends to the Conusée In this case all the execution is avoided for the duty being intire and personal cannot be divided c. Annua nec debitum judex non separat ipsum Co. ib. 15â— b. 2. 15 A Rent-service is of its own nature apportionable Rent-service becomes rent-seck Howbeit if it be changed from Rent-service to a Rent-seck by severance thereof from the Seigniory it thereupon becomes intire and unsevâ—â—able according to the nature of a Rent-secke And therefore if there be Lord and Tenant by fealty and certain rent and the Lord by déed grant the rent in fée fée-taile or for life saving the fealty the rent which before was Rent-service is by that severance of it from the Seigniory made a Rent-seck and then if the Grantée purchase part of the land out of which that rent is issuing the whole rent is extinct 16 If a man be seised of two acres of land in two several Counties Co. ib. 153. b. 4. and maketh a lease of both of them reserving two shillings rent In this case albeit several liveries be made at several times yet is it but one intire rent in respect of the necessity of the case and he shall distrain in one County for the whole rent and make one avowry for the whole c. A County intire for livery 17 Every County is as it were an intire body of it selfe Finch 79. Littl. § 418. so that upon a feoffment of lands in many Towns in one County livery of seisin made in one parcel in any one of those Towns in the name of all sufficeth for all the lands in all the other Towns within the same County but upon a feoffment of lands in divers Counties there must be livery of seisin in every County For entry In like manner Littl. § 417. Co. ib. 252 b. 4. if a man have cause to enter into lands lying in divers Towns in the same County if he enter into one parcel thereof lying in one Town in the name of all the lands in the same County by such entry he hath as good possession of all those lands as if he had entred into every parcel but if they lie in several Counties there must be several entries Co. ib. 153. b. 4. So likewise if a man de disseised of a rent issuing out of lands lying in divers Towns within one and the same County he shall néed to bring but one Assise for the recovery of that rent c. But if the lands lie in several Counties he shall have several Assises in confinio Comitatus and in either County shall make his pliant of the whole rent Howbeit there shall be but one Patent to the Iustice And this Assise in confinio Comitatus is given by the Statute of 7 R. 2. Stat. 7. R. 2. 10. For no Assise lay in that case at the Common Law but the party might distrain for the whole rent in either County The like for â—ervices 18 If a man hold divers Mannors or lands in divers several Counties by one tenure and the Lord is deforced of his services Co. ib. 154. a. 2. he shall have several writs of customes and services viz. For every County one writ returnable at one day in the Court of Common Pleas and thereupon Count according to his case by the Common Law But if the Tenant in that case do cease the Lord shall not have several writs of Cessavit ut suprà For the writ of Cessavit is given by Statute of West 2. cap. 21. and the form and manner of that writ is therein prescribed for which cause it is holden in our books that in that case a Cessavit lay not at the Common Law c. â— Villein adâ—owson c. â—ndivisible 19 Of Inheritances some be intire and some several and of intire Co. ib. 164. b. 3. some be divisible and some indivisible c. If a Villein descend to two Coparceners this is an intire inheritance and albeit the Villein himself cannot be divided yet the profit of him may for one Coparcener may have him one day or wéek and the other another day or wéek c. They may likewise have an Advowson in coparcenary and may present by turns because that is also an intire Inheritance which cannot be divided â—stovers â—â—ots and â—ings uncerâ—in not diviâ—ble 20 If a man have reasonable Estovers as House-boot Co. ibid. b. 4. Hay-boot c. appendant to his Frée-hold they are so intire as they shall not be divided betwéen Coparceners So if a Corodie incertain be granted to a man and his heirs and he hath issue divers daughters this Corodie shall not be divided betwéen them It is otherwise of a Corodie certain for thereof partition may be made Likewise Homage Fealty Piscary uncertain Common sans number and the like cannot be divided betwéen Coparceners and the two last not onely because they are intire but also because it would be a charge to the Tenant of the Soile if such hereditaments should be devisible the interest in them being unlimited c. Co. ib. 190. a. 3. 21 If a Corodie be granted to two men and their heirs In this case Grant of a Corodie to two because the Corodie is incertain and cannot be severed it shall amount to a several grant viz. to each of them one Corodie for the persons be several and the Corodie is personal and the grant shall be taken most strongly against the Grantor Littl. § 314. Co. ibid. 197. 22 If two Tenants in Common of lands in fée make a gift in taile or a lease for life to another rendring to them yearly a certain rent Tenants in common
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
which is within memory and cannot make a custome And it stands not with reason that the undue actings of strangers should debarre the Plaintiffe of his due Debt Tofts Case 87 Nemo punitur pro alieno delicto Co. Inst p. 1. 145. b. 3. 1 In a Replevin Replevin the Defendant cannot claim property by his Bailiffe or Servant because if the claim fall out to be false he that claims shall be fined for his contempt which the Lord cannot be unlesse he maketh claim himself And Nemo punitur pro alieno delicto Co. ib. 54. a. 1. 2 A Guardian shall not be punished for waste done by a stranger Guardian it is so penal unto him for he shall lose the wardship both of the body and of the land though the waste be but of the value of twenty shillings and if that sufficeth not to satisfie for the waste then he shall recover damages of the waste over and above the losse of the ward And Nemo punitur c. Co. l. 4. 33. b. 4 in Mittons Case 3 Qéen Eliz. by her Letters Patents grants the Office of the Clerkship of the County-Court of the County of Sommerset to Mitton and then constitutes Arthur Hopton Grant of the Clerk of the County High Sheriff of the same County who grants that Office to another and upon Mittons complaint it was adjudged that he might And one of the reasons of that resolution was this That in all writs to remove any Plea out of the County Court into the Common Pleas the King calls the County-Court the Court of the Sheriff and if the Sheriff do not by force of such writs certifie the Record then shall issue out processe of contempt against him and if the Record be imbeziled the Sheriff shall answer for it And therefore it will be full of danger and damage to Sheriffes if others shâ—ll be appointed to kéep the Entry and Rolls of the County-Court and yet the Sheriff to be liable to answer for them as immediate Officer to the Court for Nemo punitur c. And therefore the Sheriff ought to appoint Clerks under him of the County-Court for which he shall at his peril answer c. Co. l. 12. 5. b. 3. in Sanders Case 4 In Fosters Myles Case p. 28. Eliz. in Com. Banco Rot. 820. Waste it was said that if Lessée for years devise his term to another and makes his executors and dies and then the executors make waste and after assent to the Devisée In this Case albeit betwéen the executors and the Devisée that hath relation and the Devisée is in by the Devisor yet an action of waste shall be maintainable against the executors in the tâ—nuit So likewise if the Grantée of a Term upon Condition make waste and after the Grantor enter for the Condition broken the action of waste shall be maintainable against the Grantée in the tenuit c. 30 E. 3. 16. accord Co. l. 11. 42. b. 3. in Godfreys Case 5 At a Léet the Homage was jointly fined six pounds Joynt-fine in Leet because they would not present according to their duty c. And it was resolved that the Fine so imposed upon the Iurors jointly was not legally imposed because the refusal of any of them being several and personal and the refusal of one not the refusal of another the Fine ought to have béen assessed upon them severally and not joyntly for if some of them did refuse and the rest were ready to present c. those that refused were onely to be fined And therefâ—re the Case put Prisot in 35. H. 6. Examination 17. that if one of the Enquest escape after that they are sworn so that they cannot give their verdict although the rest did not assent thereunto yet all should be fined was utterly denied to be law for Nemo debet puniri pro alieno delicto whereunto he was neither party privy assenting nor consenting because then it might be said Rutillius fecit Aemilius plectitur And it was said that that Case was either ill reported or ill printed Waste 6 If a stranger make waste of his own wrong after the writ of Estrepement delivered unto the tenant and against the tenants will F. N. B. 61 h. In that Case the tenant shall not be punished for that waste Joint-amerciament in Court Baron Co. Pl. c. 7 In a Court Baron F. N. B. 75. g h i k. if two be amercied outragiously for one and the same trespasse they shall not joyn in a writ de moderata miserecordia for they ought to be severally amercied albeit the trespass was joyntly committed So it is also in a Plaint sued by two if they be non-suited for the amerciament ought to be several and they shall not joyn in a moderata miserecordia because the one ought not to be charged with the offence of the other And therefore the course in the Common Pleas is when divers Defendants are amercied to make the Estreats of the amerciaments several Likewise if divers Demandants are amercied in a Plea real for their Non-suit they set the Estreats severally upon them And in these Cases in the Common Pleas the course is for the Clerk of the Warrants to deliver those Estreats to the Clerks of Assise and they to the Coroners who are to affeire them and then to re-deliver them to the Clerks of the Assise and they to the Clerk of the Warrants who makes the Estreats and then one of the Iustices of the Bench together with the Clerk of the Warrants goes with the Roll of the Estreats into the Exchequer and there puts them in before the Barons of that Court from whence they issue to the Sheriffe of every respective County to be levied for the Kings use and the Officer in the Exchequer that serves them and so prepared them for every severall County is called the Clerke of the Estreates 〈◊〉 audita queâ—â—lâ— Non-suit no â—â—ejudice 8 In an Audita querela brought by two Co. Inst p. 1. 139. a. 4. concerning the personalty the Non-suit of the one is not the Non-suit of the other because it goeth by way of discharge and fréeing of themselves And therefore the default of the one shall not hurt the other â—â—â—asâ—avit 9 In Debt against two Executors Dier 210. 23. 3 â—liz one appears and confesseth the Action the other makes default and judgment to recover de bonis Testatoris in both their lands to which purpose a Fieri facias issues out to the Sheriffe who returns riens but that he who made default had wasted before the receipt of the writ whereupon a Scire facias issued out against him onely that had wasted the goods and he making default upon Scire feci returned Execution was awarded of his proper goods onely and not of his Companions 〈◊〉 to acâ—â— suâ—â—eties 10 In a writ de Plegiis acquietandis Dier
A. his heires c. pay to B. 100 l. after B. hath issue under age and dies the marriage takes not effect In this case the estate is executed in the heir of B. and shall have relation to the making of the Indenture c. But if the Grantée of a Reversion die no attornment can be done to his heir So it is also where the Devisée dies before the Devisor c. Pl. Co. Brets and Rigdens case 345. Vide Shelleys case where the Indenture bound the land albeit execution was not taken out till after his death for the estate was executed by the Indenture and Recovery before execution which shall have a retro-spect to the Indenture And 11 H. 7. 12. Where the heir shall have execution upon a fine But if the Feoffor or Feoffée die before entry feoffment by livery within view shall not take effect So also in the Rector of Cheddingtons Case Co. l. 1. 155 156 by the death of Tho. the term is not certaine nor can vest in his executors Co. l. 3. 86. a. 1. The Case of Fines 20 If the Bishop or Baron make a Lease for life Bishop Baron and after grant the Reversion in Fée and the Lessée for life die in the life of the Bishop or of the Baron this is a Discontinuance It is otherwise if the Lessée for life survive the Bishop or Baron A thing execuâ—ed unalterable 21 H. recovers 75 l. in B. R. and assignes it by Déed inrolled to Queen El. in satisfaction of a due Debt as Collector of the Fifteens Co. l. 5. p. 2. 9â— Hoes Case provided if the Lord Treasurer and Barons of the Exchequer or any two of them dis-allow the assignment c. and revoke it by writing under their hands that then the assignment shall he void after the Defendant brings Errour and the judgment is affirmed and 5 l. Costs given after by Writ of Prerogative the Land of the Defendant was extended and Goods seised to the value of the Debt And afterwards three Barons revoke the assignment after the death of the Plaintiffe because the Plaintiffe had satisfied the Debt and his executor sues a Scire facias for the 75 l. and 5 l. Costs But it was adjudged that after execution had by the Queen which was the effect of the assignment the Revoâ—ation came too late for he that hath power of Revocation cannot revoke a thing lawfully executed So a Letter of Attorney cannot be revoked after it is executed Vide 7 H. 6. 42. and 7 H. 4. 2. The Debtée is out-lawed the Debtor payes to the King the Out-lawry is reversed In this case the Debtor shall recover against the Debtée So if the Goods of an out-lawed person be sold c. he shall have restitution of the Goods Co. l. 8. 96. b 4. in Mannings Case but upon a Fieri facias c. onely the value Vide 3. E. 3. 51. Recompence in value once lawfully executed shall not be devested albeit the title of the Demandant be afterwards dis-affirmed and evicted Remainder executed 22 If a remainder be once executed Co l. 8. 88 a. 1. in Buckmeres Case in a Writ of Formedon in the Descender he shall never speak of that remainder but the general Writ of Formedon in the Descender shall serve in that case and he shall count of an immediate Gift for a Formedon in remainder he cannot have after the remainder is once executed But if a Lease for life be made the remainder in tail to A. the remainder in tail to B. if A. die without issue in the life of the Tenant for life and B. put to his Formedon in the remainder in his Formedon he ought to make mention of the remainder to A. albeit it was determined and spent for the Demandant in the Formedon in remainder ought to make mention of all the precedent remainders in tail because in that case the remainder was never executed by way of descent 〈◊〉 London suit â—opt before â—â—dgment 23 The Mayor of London may alter the course of Iustice in a cause hanging before the Sheriffes viz. to send for the parties Co. l. 8. 1â—6 a 3 in the Case of the City of London and to stop the suit also if he find the Plaintiffe already satisfied but so he cannot do after judgment and this he may do by a custome there Judgment exâ—cuted irrevocable 24 There is a diversity betwixt a thing Collateral executory Co. l. 8 142. a. 1 Doctor Druries Case and executed for when an erronious judgment is given and after the judgment is reversed by Writ of Error Collateral acts executory are barred thereby as if a man hath judgment in a Quare impedit and hath a Writ to the Bishop and the Bishop refuse here the Plaintiffe upon this Collateral matter of refusal may have a Quare non admisit but if the Defendant reverse the judgment in a Writ of Error and after the Plaintiff in the Quare impedit brings a Quare non admisit the Defendant may plead no such Record Vide 26 E. 3. 75. per Willy and Hill So if A. in execution at the suit of B. upon erronious judgment and after escapes and after the judgment is reversed by Error the action upon the escape is gone for he may plead no such Record because without a Record the action is not maintainable but in that case if the Plaintiffe bring an action of Debt against the Sheriffe or Gaoler upon the escape and hath judgment and execution and after the first judgment is reversed yet this judgment upon that Collateral matter being executed shall remaine in force 7 H. 6. 42. a. Notwithstanding such reversal of the first judgment The Conusée of a Statute Staple in Detinue thereof upon Garnishment recovers by erronious judgment against the Garnishée and hath the Statute delivered unto him 4 H. 7. 11. the Garnishée brings a Writ of Error and the Conusée sues execution upon the Statute and hath it Here albeit the Garnishée reverse the judgment yet this execution shall not be avoided thereby because the Statute is already executed Likewise if a man recover by erronious judgment and present to a Benefice or enter into the perquisite of a Villain and after the judgment is reversed by Error yet because these Collateral acts are executed they shall not be afterwards devested Co. l. 11. 40. a. 3 in Metcalfes Cases 25 Vpon an interloqutory award of a Court Error lieth not till after judgment which is not definitive a Writ of Error lyeth not such as are these quod computer that the shall take an Assise in Waste to inquire of the Wasts in trespasse to inquire of damages In partitione facienda quod partitio fiat In admeasurement quod admensuratio fiet that a man shall be ousted of aide and the like upon which the Defendant shall not bring a Writ of Error but after judgment in
case if the Lord avow upon the Feoffée before tender of the arrerages he shall lose them as it is agréed in 7 E. 3. and 7. H. 4 c. And therefore in as much as in such Case the Common Law forces the Lord to avow upon the Feoffor for that reason at the Common Law such Seisin by the Feoffor necessitas causa was good 〈◊〉 Quare Imâ—â—â— against â—e King or 〈◊〉 19 Regularly Co. l. 7 26. b. 3. Halls Case a Quare Impedit brought against the Bishop and Incumbent without naming the Patron abates yet if the King presents to a Benefice and his Clerk is admitted instituted c. In this case a Quare Impedit may be brought for necessity against the Bishop or Incumbent for it lies not against the King So it was also of the Pope if he had usurped 12 H. 8. 12. 4 H. 7. 15 c. â—n Vicar geâ—â—â—al shall not â—â—â—fie but in 〈◊〉 of necesâ—â— 20 Albeit Co. l. 8. 69. a. 1 Trollops Case regularly the Vicar general cannot certifie excommunication yet he shall certifie it when the Bishop is in remotis aagendis viz. beyond Sea in the Kings Service but the Court must be acquainted therewith by matter of Record viz. by Writ out of the Chancery to direct them and not by the surmise of the party and then for necessity which is alwayes the Law of time for necessitas est lex temporis the Certificate of the Vicar General shall be allowed because no other can then do it for he onely ought to certificate to whom the Court may write to absolve the party as the Bishop or the Chancellor of the Vniversities Fee-simple â—â—th out of 〈◊〉 â—ing by â—â—â—essary withâ—â— Office c. 21 Reversion in the Queen upon an estate taile she grants it to T. in taile upon Condition that if be pay 20 s. Co. l. 8. 1. 6. b. 2. The Lord Staffords case at the receit of the Exchequer he shall have the said Reversion in Fée the Condition is performed the tenant in taile levies a Fine and his issue is barred And in this case the principal point was whether by the Condition performed the Reversion passed to T. And it was held that presently upon payment of the 20 s. by operation of Law the Fée was davested out of the Queen and vested in T. And this by necessity for if it should not vest at the time of the Condition performed it would never vest And therefore if in this Case either Office Petition Monstrance de droit or other thing should be requisite that would make the Quéens Grant void and would dis-able the Quéen to make such a Grant And with this agrées the Lord Lovels Case in the Commentaries for there it is said when the Condition is performed the Fée-simple shall be immediately out of the King without Petition Monstrance de droit or other circumstance for if he must tarry such circumstances then can it not vest presently and by consequent shall never vest because if the estate be not enlarged at the time of the enlargement appointed then shall it never be enlarged And therefore in such Cases for necessity the Fée-simple passeth out of the Quéen without any such circumstances with this also agrées Isabel Goodcheaps Case 49 E. 3. who being seised in Fée of an House in London holden of the King deviseth it to Richard Goodcheap and the heires of his body and for want of such issue to be sold by her Executors and she makes W. D. W. W. and I. de T. her Executors and dies without heir Rich. Goodch dies without issue whereby the House escheates to the King and after one of the Executors dies W. W. refuseth and W. D. sels the House and here the question was whether or no the Sale by one Executor was good but it was agréed by all that if the Sale were good it shall devest the House out of the King and the cause thereof is by necessity of Law for if the Sale did not devest the House at the time of such sale then could there be no Sale at all and the Executors who had but a power could not have any petition Monstrance de droit or other remedy Co. l. 8. 143. a. 2. Doctor Druries Case 22 There is a diversity betwixt mean acts done in Execution of Iustice which are compulsive and acts which are voluntary A diversity betwixt acts compulsive and volunâ—â—â— acts And therefore if erronious judgment be given in Debt and the Sheriff by force of a Fieri facias sell the Defendants term and after the judgment is reversed by a Writ of Error yet the term shall not be restored but onely the summe c. But if a Capias utlagatum be awarded whereby the Sheriff is commanded to take the body ut bona catalla quae per inquisitionem invenerit in manus nostras capias de vero valore c. And by force of this Writ the Sheriff by inquisition takes the Goods and Chattels of the out-lawed person and sels them and after the Out-lawry is reversed in this case the party shall be restored to his Goods and Chattels because the Sheriff was not commanded nor compelled by the Kings Writ to sell them Co. l. 9. 49. a. 4. The Earl of Shrewsburies Case 23 King James grants to the Earl of Shrewsbury the Stewardship of the Mannors of M. and B. An Earl may make a Depâ—ty but in the Patent power of making a Deputy was omitted neverthelesse it was adjudged that hee might make one for if such an Office descend to an Infant Ideot or man of non sane memoriae they by necessity ought to exercise it by Deputy So an Earl for the necessity that the Law intends of his attendance upon the King and the Common-wealth this Stewardship of a base Court shall be exercised by Deputy Co. l. 9. 66. a. 1. Mackallies ca. 24 An arrest in the night is lawful An arrest in the night laâ—ful as well at the suit of a Subject as of the King for the Officer ought to arrest him when he can find him otherwise he may perhaps never arrest him for Qui malè agit odit lucem and if the Officer do not then do it the Plaintiff may have an Action upon the Case against him and recover his losse in damages Therefore by necessity an arrest in the night is lawfull Co. ib. 66. b. 2. 25 The Lords day is not Dies juridicus An arrest the 〈◊〉 Sabbath and therefore judicial acts ought not to be done upon that day but Ministerial acts may in some Cases be lawfully executed upon that day as an arrest for otherwise perhaps they might never be executed and Christ permits Works of Necessity to be done upon that day bonum est benefacere in Sabbato Executors may sell lands in their owne names 26 If Attorneys have power by writing to make Leases by
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
carelesse and reserved none Co. ib. 253. a. 4 4 Remedies for rights are alwayes favourably extended Rights favoâ—rably extended and therefore the grantée of a Rent-charge and Rent-secke may demand them after they are behind at any time whether the Tenant be present or no and it is not necessary that the grantée should demand them at the very time when they become due It is otherwise of a Rent upon a Condition because that is penal and overthroweth the whole Estate and therefore the time of demand in that Case must be certain to the end the Lessée Donée or Feoffee may be there to pay the Rent for the redemption of the Estate Litt. §. 307. Co. ib. 194. b. 3 Litt. §. 308. 5 If a man be disseised Release to one joint-tenant and the Disseisor make feofment to two men in Fée and the Disseisée releaseth by his déed to one of the feoffées in this Case it shall enure to both the Feoffees because they have a Rightfull Estate by Law and come not in by wrong done to any So likewise if the Disseisor make a lease to one for life the remainder to another in Fée and the Disseisée release to the Tenant for life this shall enure to him in remainder and the Estate of the Disseisée is thereby quite extinct causa qua suprà Co. ib. 125. b. 3 6 The Statutes of 3 4 E. 6. cap. 4. and 13 El. cap. 6. Constat iâ—speximus which ordain Constats and Inspeximus of letters Patents are to be favourably construed for advancement of the â—emedy and right of the subject â—â—gment acâ—â—ding to 〈◊〉 7 Estopels Co. ib. 227. a. 4 which bind the Interest of the Land as the taking of a lease of a mans owne land by déed indented and the like being specially found by the Iury the Court ought to judge according to the special matter for albeit Estoples regularly must be pleaded and relied upon by an apt conclusion and the Iury is sworne ad veritatem dicendam yet when they find veritatem facti they pursue well their oath and the Court ought to judge according to Law and right So also may the Iury find a warranty being given in evidence though it be not pleaded because it bindeth the right except it be in a writ of Right when the Mise is joyned upon the méere right â— 33 H. 8. 〈◊〉 8 Albeit the Statute of 32 H. 8. 33. Co. ib. 238. a. 3 which gives entry to the Disseisée or his heires if the Disseisor were not in peaceable possession five yeares before the discent cast be a penal Statute yet it is taken favourably for the advancement of the ancient right For whether the disseisin be with force or without force it is within the Statute and albeit the Statute speaketh of him that at the time of the discent had title of Entry c. or his heires yet the Successors of bodies Politique or Corporal so you hold your selfe to a disseisin are within the remedy of this Statute but an Abator Intrudor or the Feoffée or Disseisor are not within the Statute nor he in reversion or remainder that had not right of Entry at the time of the discent cast â—ery discent â—â—i not toll â—â—y 9 Albeit the Law giveth much favour to descents Litt. §. 394. Co. ib. 241. b. 2 yet when the title of a discent commenceth by wrong for the advancement of the ancient right the Law tieth a discent to strict termes and therefore when a discent is cast if immediately after there be not a person capable of it which may take it such discent cannot toll the entry of him that right hath but his Entry is congeable As if a Feme be seised of land in Fée wherein I have title of Entry and the Feme takes Baron and they have issue and after the Feme dies seised and after the Baron dies and the issue enters c. In this Case I may enter upon the possession of the issue because the issue comes not to the tenement immediately by discent after the death of his mother but by the death of his father For here was but a discent of a reversion at the time of the dying seised so as the Fée and franktenement together did not immediately after the decease of the Feme discend to the heire and if a dying seised taketh not away the Entry of him that right hath at the time of the discent it shall not do it by any matter ex post facto So if a Disseisor die without heire his Wife priviment enseint with an issue and after the issue is borne who entreth into the land In this Case he hath the land by discent and yet thereby the Entry of the Disseisée shall not be taken away because as Littleton saith the issue cometh not to the lands immediately by discent after the decease of his father Likewise if a Disseisor make a gift in taile the remainder in Fée and the Donée dieth without issue leaving his Wife priviment enseint with a sonne and he in the remainder enter and after the sonne is borne who entreth into land this discent shall not take away the entry of the Disseisée causa qua suprà â—cent tols 〈◊〉 tâ—try 10 B. Tenant in taile enfeoffeth A. in Fée Co. Inst p. 1. 246. a. 2. A. hath issue within age and dieth B. abateth and dieth seised the issue of A. being still within age this discent shall bind the infant for the issue in taile is remitted And the Law doth more respect an ancient right in this Case then the priviledge of an Infant that had but a defeasible Estate â—cent upon â—ession no 〈◊〉 11 No glorious pretext of an Act who though it be of Religion shall work a wrong to a stranger that hath right Co. ib. 248. b. 3 to barre him of his entry but it must be done by the Act of God viz. by death and therefore if the Disseisor have issue and enter into Religion such a descent shall not barre by the disseisée of his entry but he may well enter notwithstanding any such profession or pretext of Religion Litt. §. 417. Co. ib. 252. a. 4 12 If a man hath cause of entry into divers lands in several Townes in the same County if he enter in any parcel thereof in the name of all Entry how be done by such entry he shall obtaine a good possession and seisin of all The like also may be said of Livery of seisin and this is in favour of right and Iustice Litt. §. 472. Co. ib. 275. b. 4 13 If a man diseised by two and he releaseth to one of them he Release to Disseisors to whom the release is made shall hold out his Companion and by such release shall gaine the sole possession and Estate in the land but if a Disseisor enfeoffe two in Fée and the Disseisée
it out of her and so to revive the discontinuance and revest the wrongful Estate in the discontinuée because Remitters tending to the advancement of ancient rights are very much favoured in Law so likewise if lands be given to a man and the heires females of his body and he maketh a feofment in Fée and taketh back an Estate to him and his heires and dieth having issue a Daughter and leaving his wife Grossement enseint with a Sonne in this Case also the Daughter is remitted and albeit the Sonne be afterwards borne he shall not revest the Remitter Litt. §. 678. Co. ib. 357. a. 3 20 If the Baron discontinue the land of the Feme The like and the discontinuée is disseised and after the disseisor demiseth the land to the Baron Feme for term of their lives this is a Remitter to the Feme for Remitters that restore ancient right are so much favoured in Law that the Estate made by the disseisor who cometh to the land by wrong and upon whom the entry of the discontinuée is lawful doth remit the wife and devesteth all out of the discontinue albeit he hath a warranty of the land Litt. §. 693. Co. ib. 363. b. 1 21 When the entry of a man of full age is congeable Right of entry if he take an Estate of the land for life in taile or in fée he is thereby remitted unlesse it be by Indenture matter of record or otherwise whereby he may be concluded or estopt It is otherwise where he hath but right of action for in that Case by taking such an Estate she shall not be remitted and so observe a diversity betwixt right of action and right of entry when his entry is lawful Co. l. 3. 86. a. 4. in the cases of Fines Iustice Windams Ca. 22 Where alienation was made in mortmaine 17 E. 3. 7. El. 20. Tenant not compellable to attorne A fine is levied of land holden in ancient demesne 31 E. 3. Tit. Ancient demesne 16. an infant levied a fine 36 H. 6. 24. Pl. 19. A fine levied of the reversion of land holden in Capite without licence 45 E. 3. 6. or where Tenant in taile of a reversion or remainder before the Statutes of fines 4 H. 7. 32 H. 8. had levied a fine thereof in all these cases and the like the Tenant was not compellable to attorn because the Estate that passed by the fine was not lawful but either prohibited by the Common Law or by some Statute and for the most part were voidable Co. l. 4. 26. a. 4. in the Copihold cases in Melwiches Case 23 The Lessée of a Copi-holder An Ejectione firmae gâ—anted to a Copiholder for a yeare may maintaine an Ejectione firmae for in as much as his term is warranted by the Law by force of the general Custome of the Realme it is reason that if he be ejected he should have an Ejectione firmae for that it is a spéedy course for a Copi-holder to gaine the possession of the land against a stranger being no more then what right requires to be yielded unto him for the recovery of his Estate Co. l. 5. 28. a. in the cases of Executors in Middletons Case 24 An Executor before probat may release an Action Release by Executor before probat good albeit before probat he cannot bring an Action because of the right of Action that is in him at the Common Law it is otherwise of an Administrator for if A. release and after take administration this shall not barre him for the right of Action was not in him at the time of the release made Vide 18 H. 6. 43. b. Greysbrockes Case Plowd 277 278. 21 E. 4. 24. To Executors prove the will and the third refuseth yet he may afterwards release for the ancient right that remaines in him Litt. fol. 117. If one be bound to pay a summe at the day to come before the day he cannot bring an Action of debt yet a release of all actions before the day barres him because of the present right and duty that he then had in him Co. l. 6. 1. b. in Bruertons ca. 25 If a man hold land by the service of ayding the Sheriffe Tenure for Justice not extinct or to be High-Constable of England which are for the advancement of Iustice for the determination of divers cases belong to the Court of the Constable and Marshal and the Sheriffe is a Minister of Iustice or if the tenure be ad custodiendum Recorda Domini Regis as the Abbot of St. Barthelm in Smithfield held as appeares in the Records of the Tower in 7 R. 2. membr 15. in Dorss in these and the like cases if the Lord purchase parcel of the tenancy yet the whole service remaines quia ista concernunt administrationem Justitiae Co. l. 6. 62. a. 3. in Catesbies Case 26 In Catesbies Case in the 5 Rep. the single point in question was A yeare for laps whether the six moneths of laps to give the Bishop power to collate should be accounted by 28 dayes for each moneth or by the halfe yeare and one of the reasons there alleadged for the account by the halfe yeare was this when a computation in such case is ambiguous it is always requisite to determine it for the reliefe remedy of him that right hath viz. of the Patron and for the preservation of his right to allow him the longest time of the two to the end he may not lose his right 〈◊〉 â—5 H. 8. 6 27 Vpon the Stat. of 35 H. 8. 6. to return a Tales Co. l. 10. 103. b. 2 in Alfrid Denbawds ca. albeit the title thereof is usually decem Tales yet the Sheriffe although there be but one Iuror appeare or all be challenged but one may at first return 11 to that one because it is for the spéeding of trials and that Statute being ordained for the furtherance and advancement of expedition in Iustice shall have a benigne and favourable interpretation â—â—ssisee 〈◊〉 28 If a man be disseised of a Mannor F.N.B. 33. q. to which an Advowson is appendant and the Advowson happen to be void the disseisée may present and have a Quare Impedit albeit he hath not entred into the Mannor by reason of the ancient right that is in him â—â—ers â—â—owson 29 If a man traverse an Office found of a Mannor F.N.B. 34. p. to which an Advowson is appendant and upon the traverse the King demiseth the Mannor to him without making any mention of the Advowson and after the Church is void here he that tenders the traverse shall have the presentment if the traverse be found for him â—â—â—ntment de Bishop 30 If a man recover an Advowson and the six moneths are past F.N.B. 38. f yet if the Church be void the Patron may pray a writ to the Bishop and shall have it and if the
may aver him to be tenant of the land as the writ supposeth for the benefit of his damages which otherwise he should lose or otherwise he may pray judgement and enter at his election but where no damages are to be recovered as in a Formedon in descender and the like there he cannot averr him tenant but pray his judgement and enter for thereby he hath the effect of his fute and Frustra fit per plura c. And therefore if tenant in tail discontinue Littl. §. 691. and his issue bring a Formedon against the discontinuée and the discontinuée pleads that he is not tenant but utterly disclaims in the tenancy of the land In this case the judgement shall be that the tenant shall go without day and after such judgement the issue may enter into the land notwithstanding the discontinuance One patent better than two 2 When the King was to grant a reversion Co. l. 8. 167. a. 1. in the Earl of Cumberlands case the antient form was to recite the first grant and then to grant the reversion and besides by another patent to grant the lands in possession by which way a good estate passed to the patentee Howbeit to pass these several grants in one and the same patent is as good and effectual in Law as to pass them in several patents and frustra fit per plura c. Seisure Office 3 If the Office of the Marshalsie be forfeit Co. l. 9. 95. b. 3. in Sir Geo. Reynolds case the King shall be in possession thereof by seisure without office so it is also of the Temporalties of a Bishop or of a Prior Alien because the certainty of these appear in the Exchequer frustra fit c. In some cases also the King shall be in possession by office without seisure as of lands tenements offices c. which are local and whereof continual profit may be taken as where it is found by office that a condition is broken or that one attainted of felony is seised of land c. or in case of the ward of land c. In all these cases the King is in possession by office without any seisure 2 H. 6. 1. b. Finch fol. 54. 4 One that is in Court ready to joyn with the defendant may do it without process Vouchee as the vouchee the lessor of the plaintif being prayed in aid of when the defendant in a replevin avows upon him Or the Mesne when the Lord paramount avows upon him but joynder in aid cannot be by Attorney without process Co. l. 5. 21. Sir Anthony Maines case 5 M. leases for 21 years unto S. and covenants to make a new lease to S. upon the surrender of the old Covenant to surrender M. leases to another by fine for 8. years and hereupon S. without surrender of the old lease brings an action of Covenant against M. In this case the covenant is broken albeit S. do not surrender which ought to be the first act because it were in vain for him to do it in regard M. hath disabled himself to take the surrender or to make a new lease 4 E. 3. 170. 6 The demandant may waive issue upon Counterplea of voucher Waiver of issue and grant the voucher for if the Enquest pass the tenant cannot have more 1 H. 6. 4. b. 7 One that is a debtor to the King of Record in the Exchequer Kings debtor if he be seen in Court may be brought in to answer without process Dyer 59. ◠14. 36 H. 8. 8 In Replevin the defendant hath return awarded upon Nonsute of the plaintif Replevin and upon Returno habendo the Sherif returns averia elongata per Querentem and thereupon Withernam is awarded and the defendant hath delivered unto him as many of the plaintifs goods whereupon the Plaintif is to sue a second deliverance In this case he shall sue the second deliverance for the first distress and not for the Cattel delivered upon the Withernam for the Cattel of the first distress being the cause of the Withernam being delivered the other upon the Withernam will be also discharged Dyer 19◠24. 2 3. El. 9 The Sherif of Midd. had an attachment of privilege against one Kemp Cap. satisfac an attachment and likewise a Capias ad satisfaciendum against him at the same plaintifs sute both returnable the same term into the C. B. but the attachment was returnable first upon which he brings his body into Court and said he would return the Ca. sa at the day of return thereof Howbeit upon motion of one of the Protonotaries the Iustices sent the defendant to the Fleet and discharged the Sherif of him and would not stay untill the return of the Ca. Sa. there being a former judgement against him upon Record Vide Dyer 214. 47. Dyer 204. 1. 2. Eliz. Vpon nihil dicit in waste a writ issueth Waste that the Sherif in propria persona accedat ad locum vastatum to enquire of the damages and it was held good and not to enquire of the waste for that was confest by the Nihil dicit neither is it in such case necessary that he should then go in person according to West 2. cap. 25. for that is only in vasto inquirendo where the Defendant makes default to the distress 178 Expedit Reipublicae ut sit finis Litium 1 Regularly an Abbot Prior Bishop Abbot Annuity or other sole Corporation cannot disclaim Co Inst p rs 1. 103. a. 1. or do any act to the prejudice of their house or benefice but what may be avoided by the successor yet if an Abbot Bishop c. acknowledge the action in a writ of Annuity this shall bind the successor because he cannot falsifie it in an higher action and Expedit reipublicae ut sit finis Litium Vide supra Max. 1. case 4. 93 10. So it is likewise in an action of debt upon an Obligation Statute or Recognisance for there must be an end of sutes and Res judicata pro veritate accipitur Challenge 2 If the plaintif allege a cause of challenge against the Sherif Co. ibid. 158 a. 3. 18 E. 4. 8. the process shall be directed to the Coroners and if any cause against any of the Coroners process shall be awarded to the rest if against all of them then the Court shall appoint certain Elisors or Esliors so nanamed of the French word eslire to choose because they are named by the Court against whose return no challenge shall be taken to the array Howbeit challenge may be yet made to the Polles but that shall be also presently examined and setled in Court For Expedit reipublicae c. Partition 3 A partition of intailed lands betwéen parceners Co. ibid. 173. b. 1. being equal at the time of the partition shall bind the issues in tail for ever albeit
action upon his case as well as the Lord and so there might be infinite actions for one default neither yet are they in such case without remedy for they may and ought to sue in the Court Christian and there shall have it redressed Co. l. 5. 104. b. in Boulstones case 6 A man cannot have an action upon the case for damage by the Pigeons of a Dove-house Dove-house because then every man might have the like And therefore it hath béen held that if any man except the Lord of a Manor erect a Dove-house Prat and Sternes case it is presentable in the Leet Sed quaere de hac for it hath been since otherwise adjudged See the E. of Northumberlands case Poph. Rep. 141. Trin. 16. Jac. Co. l. 6. 8. b. 4. in Ferrers case 7 If the plaintif be barred by judgement upon demurrer Vexatious sutes confession or verdict in personal actions he is barred for ever and in real actions he must have recourse to his action of an higher nature and at last shall be finally barred in his writ of right if the Grand Assise find against him So likewise before the Statute of Marlbridge when the degrees were past and before the Statute of Westm 2. upon loss by default there was no remedy but by writ of right And the reason of the Common Law in these and the like cases was to avoid Multiplicity and Infiniteness of sutes trials recoveries and judgements in one and the same case And therefore in the judgement of the Law it was thought more profitable for the Commonwealth and more for the honour of the Law in some cases rather to leave some without remedy and to put others to their writ of right without any respect of Coverture Infancy or the like than that there should not be a convenient time for the ending of actions and sutes See the judgement in redisseisin and post diss F. N. B. 188 190. and the punishment inflicted by the Law in such case See also the Register 206. 208. And indeed without such a strict course there may be much oppression committed under colour and pretence of Law for so a rich and malitious man may by actions and sutes infinitely vex him that hath right and in the end for the avoiding of charge and vexation Compell him to forsake his right all which was remedied by the Rule and Reason of the antient Common Law the neglect whereof by introducing trials of rights and titles of Inheritance and franktenement in personal actions in which there is no end or limit of sutes hath brought with it four main Inconveniences 1. Infiniteness of verdicts recoveries and judgements in one and the same cause 2. Sometimes contrarieties of verdicts and judgements one against another 3. Continuance of sutes by 20 30 and 40 years to the utter impoverishing of the parties 4. All this tends to the dishonor of the Common Law which utterly abhorrs Infiniteness and protraction of sutes And herein the excellency of the Common Law is to observed viz. That the receding from the true institution thereof introduceth many Inconveniences and the observation of it is alwayes accompanied with peace and quiet the end and center of all human laws See the Epistle to the 4. Report fol. 1. b. 8 Vide Max. 180. ca. 3. 186 25. 183 The Law construeth things with Equity and Moderation Convenient time 1 In 18 E. 4. 22. Co. l. 3. 27. a 1. A man is bound to make an obligation immediately yet he shall have convenient time to do it In Butler and Bakers case Escape 2 For as much as Escapes are very penal to Sherifs Co. l. 3. 44. a. 4. in Baytons case Bailifs of Liberties and Keepers of Prisons the Iudges have alwayes made such favourable construction as the Law will permit in favour of them being Officers and Ministers of Iustice and will never adjudge one to make an escape upon any strict construction for albeit the Sherif or other officer that keeps prisoners ought not to suffer one in execution to goe at large by Bail or Baston but ought to keep them in salva arcta custodia and according to the Statute of Westm 2. cap. 11. which ordains quod carceri mancipentur in ferris to the end they may the sooner pay their Creditors yet if one be arrested upon a Capias ad satisfac and the Bailifs upon a habeas Corpus bring him to Westm and at his request carry him to Lambeth in Surrey and at the day of return deliver him to the Kings Bench This shall be adjudged no escape neither shall the prisoner thereupon have an Audita querela against the Creditors So it is likewise if the prisoner had of his own accord gone to Lambeth so as he had returned in time to be delivered into Court at the return of the writ as it was adjudged in Charnicks case Sheriff of the County of Bed in 31 Eliz. So if one be Sherif of two Counties hath several prisoners in execution in each County upon two habeas Corpora against two of them he may bring the one prisoner out of the one County into the other and then carry both the prisoners up according to the several writs to him directed and this shall not be adjudged any escape in the Sherif Also If a prisoner in execution escape and flie into another County and the Gaoler make fresh sute after him and taking him puts him into the Gaol again this shall be adjudged no escape for that upon fresh sute the Gaoler took him again and put him in prison before any action brought against him And in the cases above produced upon habeas Corpus the Sherif is not strictly bound to keep the direct way to West in recta linea so as he have him at the return of the writ and then deliver him into Court for if the effect of the writ be pursued it sufficeth Copihold Fines 3 Where fines in a Copyhold Manor are uncertain Co. l. 4. 27. b. 3. in Hubbert Hamonds case the Lord ought not to demand or exact excessive or unreasonable fines and if he do the Copyholder may deny to pay it without danger of forfeiture and it shall be determined by the opinion of the Iustices before whom the matter depends upon a demurrer or at the trial whether the fine demanded were reasonable or no for if Lords might assess fines excessively at their pleasure all the estates of Copiholders which are a great part of the Realm and have continued time out of mind would be at the will of the Lords to defeat and destroy which would be inconvenient And thus it was adjudged in the Common place in Hoddesdons case Sewers 4 Notwithstanding that the words of the Commission of Sewers give authority to the Commissioners to do according to their discretions Co. l. 5. 100. a. 3. in Rooks case yet their proccedings ought to be limited
therefore it is not reason that one particular person should bring the action for by the same reason that one person may have an action for it by the like reason every one may likewise have an action for it and so by that means the party may be punished 100. times for one and the same cause which were both unjust and unreasonable Co. l. 8. 61. a. 4 in Beecheâ—s case 7 In all causes real or personal Amerciaâ—ent when there is but one demandant or plaintif and divers tenants or defendants the demandant or plaintif may be divers times amerced but where there is but one tenant or defendant he shall not be twice amerced Co. l. 11. 43. b. 4. in Râ— Godfreyes case 8 If a man be convicted in the County Court before the Sherif in a Writ of Recaption he shall be only amerced Amerciament because it is not a Court of Record but if he be convicted in a Writ of Recaption before the Iustices viz. in a Court of Record he shall be fined and imprisoned but then he shall not be amerced for that were to punish him twice for one and the same offence Co. l. 11. 51. b. 1. in Lifords case 9 If my disseisor be disseised and after I re-enter Disseisin I cannot have an action of trespass against the second disseisor because then he would be doubly charged for one and the same offence viz. by me and the first disseisor And therefore by a fiction in Law I shall recover all the mesne profits against the first disseisor his servants and others who have committed trespasse by his Command and in his right F. N. B. 39. d. 10 If a man hath a Quare Impedit against one Damages and the defendant hath also an Assise of Darrein presentment against the plaintif and recovers in the Darrein presentment and the plaintif is non-sute in the Quare Impedit In this case the defendant shall have two judgements against the plaintif viz. to have a writ to the Bishop in both Actions and two writs shall be awarded to enquire of damages Howbeit he shall not pay damages twice for one and the same disturbance F.N.B. 43. g. 11 Where one is sued in the Common Bench and in the Court Christian for the same thing a prohibition lyeth Prohibition 12 Vide Hob. 2. Incerti temporis nominis Debt A debt shall not be twice satisfied Hob. 128. Pa Coke 13 Two Informations exhibited the same day against the same man for the same offence shall be both quashed Information 186 It flyeth and preventeth all occasions of Evill Co. Inst pars 1. 88. b. 1. Littl. §. 123. 1 The heir of lands in Soccage under the age of 14. shall not be committed to the custody of any person Heir in soccage unto whom the Inheritance by any possibility may or can descend lest by undirect practice he may gain the Inheritance to himself And therefore if a man hath issue two sons by several venters and having lands holden in soccage of the nature of Borough English dyeth the younger brother within the age of 14 years the elder brother of the half bloud shall not have the custody of the land because by possibility the elder brother may inherit the land for if the youngest die without issue and the land descâ—nd to the uncle the elder brother of the half bloud may be heir unto him And therefore the Rule in Lib. Rubr. cap. 70. is Nullus haeredipetae suo propinquo vel extraneo periculosa sarè custodia committatur And herewith also agrée our antient Authors as Bracton l. 2. fol. 87. Brit. fol. 163. Fleta l. 1. cap. 10. Fortesc cap. 40. Howbeit it is otherwise in the Civil Law Vide Fort. ibidem Co. ibid. 100. a. 3. 2 To prevent sutes and troubles Writs of Prevention there are six writs in Law that may â—e maintained Quia timet before any molestation distress or impleading As 1. A writ of Mesne before he be distrained 2. A Warrantia cartae before he be impleaded 3. A Monstraverunt before any distress or vexation 4. An Audita querela before any execution sued 5. A Curia Claudenda before any default of inclosure 6. A Ne injuste vexes before any distress or molestation And these are called brevia anticipantia writs of Prevention To prevent false verdicts 3 To prevent false verdicts Co. ibid. 228 a. 1. if the Iury after their evidence given unto them at Barr do at their own charges eat or drink either before or after they be agréed on their verdict it is finable but it shall not avoid the verdict Howbeit if before they be agréed on their verdict they eat or drink at the charge of the plaintif if the verdict be given for him it shall avoid the verdict but if it be given for the defendant it shall not avoid it Et sic e converso Howbeit if after they are agréed on the verdict they eat and drink at the charge of him for whom they do pass it shall not avoid the verdict The like 4 If the plaintif after evidence given Co. ibid. a. 2 and the Iury departed from the barr or any for him do deliver any letter from the plaintif to any of the Iury concerning the matter in issue or any evidence or any escrowl touching the matter in issue which was not given in evidence it shall avoid the verdict if it be found for the plaintif but not if it be found for the defendant sic e converso But if the Iury carry away any writing unsealed which was given in evidence in open Court this shall not avoid the verdict albeit they should not have carried it with them The like 5 By the Law of England a Iury after their evidence given upon the issue ought to be kept together in some convenient place Co. ibid. without meat or drink fire or candle which some Books call an Imprisonment and without Spéech with any unless it be the Bailiff and with him only if they be agréed After they be agréed they may in causes betwéen party and party give a verdict and if the Court be risen give a privy verdict before any of the Iudges of the Court and then they may eat and drink and the next morning in open Court they may either affirm or alter their privy verdict and that which is given in Court shall stand But in criminal causes of life and member the Iury can give no privy verdict but they must give it openly in Court Law-wager 6 In no case where a contempt trespass Co. ibid. 295. a. 2. deceit or injury is supposed in the defendant he shall wage his Law because the Law will not trust him with an Oath to discharge himself in those cases Only in some other cases as debt detinue and accompt the defendant is allowed by Law to wage his
such protections must be therein expressed to the end it may appear to the Court that they are granted pro negotiis regni et pro bono publico And these protections are not allowable only for men of full age but for men within age and for women as necessary attendants upon the Camp and that in thrée cases Quia Lotrix seu Nutrix seu Obstetrix Co. ibid. 131. b. 2. 12 Treasure is one of the chiefest supports of a Commonwealth Protection And therefore the King who is the Head of the Commonwealth is regularly by his prerogative to be preferred in payment of his duty or debt by his debtor before any subject albeit the Kings debt or duty be the later upon which ground it is that the King may grant his debtor a protection cum clausula volumus to protect him from the sutes and actions of other Creditors And the reason hereof is for that Thesaurus Regis est fundamentum belli firmamentum pacis But this Law is somewhat altered by the Statute of 25 E. 3. cap. 19. quod vide Co. ibid. 132. b. 3. If a Monk be a farmer of the King yielding a rent Monk he shall have an action concerning that farm because the Kings revenue is also the revenue of the Commonwealth Co. ibid. 133. a. 4. 13 By the Common Law the wife of the King of England is an exempt person from the King Queen and is capable of lands or tenements of the gift of the King as no other feme covert is and is of ability and capacity without the King to grant and to take to sue and be sued as a feme sole at the Common Law for the wisdom of the Law would not have the King whose continual care and study is for the publique circa ardua regni to be troubled and disquieted with such private and petty causes Co. ibid. 149. a. 2. Co. ibid. 149. b. 2. 14 If the tenant holdeth by fealty and a bushel of wheat Service Tenant or a pound of Cumin or pepper or the like and the Lord purchaseth part of the land there shall be an apportionment as well as if the rent were in money yet if the rent were by one grain of wheat one séed of Cumin one pepper Corn a horse or any other intire service by purchase of part the whole should be extinct Howbeit if such an intire service be pro bono publico as Knight service Castle-guard Cornage c. for the defence of the Realm or to repair a bridge or way to keep a Beacon or to keep the Kings Records or for avancement of Iustice and peace as to aid the Sheriff or to be Constable of England albeit the Lord purchaseth part yet the intire service remains See Bruertons case Co. l. 6. 1. b. 4. Jo. Talbots l. 8. 105. b. 4. Authority 15 If a man make a Letter of Attorney to two to do any act Co. ibid. 181 b. 3. if one of them die the survivor shall not do it but if a Venire facias be awarded to four Coroners to impannel and return a Iury and one of them die yet the other shall execute and return the same because it is for the execution of Iustice and by consequent pro bono publico so if a charter of feoffment be made and a Letter of Attorney to four or thrée joyntly and severally to deliver seisin two of them cannot make livery because it is neither by them four or three joyntly nor by any of them severally But if the Sheriff upon a Capias directed to him make a warrant to four or thrée joyntly or severally to arrest the defendant two of them may arrest him for the reason aforesaid and for the same reason such an act shall be more favourably expounded than a private one for Iura publica ex privato promiscua decidi non debent Tenants in Common and Joyntenants 16 If there be two tenants in Common of a Manor Co. ibid. 200. a. 3. c. to which waif and stray doth belong a stray happens they are tenants in Common thereof And yet if one of them take the stray the other hath no remedy by action but to take it again unless they have a prescription to take strayes by turns Howbeit if there be two tenants in Common of a Dove-house and the one wholly destroyes the flight or of a folding and one disturbs the other to erect hurdles In these cases an action of trespass lyeth against the other because they are offences committed in prejudice of the Commonwealth If two several owners of houses have a River in common betwéen them and the one corrupts the River the other shall have an action upon his case against his companion So if there be two tenants in Common or Iointenants of an house or Mill and it fall into decay and the one is willing to repair it and the other will not he that is willing shall have a writ de reparatione facienda and the writ saith Ad reparationem et sustentationem ejusdem domus teneantur whereby it appeareth that owners are in such case bound pro bono publico to maintain houses and mills which are for the habitation and use of men Offices 17 Non-user of it self without some special damage is no forfeiture of Private offices as the Kéepership of Park or the like Co. ibid. 233. a. 4. But Non-user of Publique offices which concern the administration of Iustice or the Commonwealth is of it self a cause of forfeiture Repair by the lessee 18 In many cases a tenant for life or years may fell down timber to make reparations albeit he be not compellable thereunto Co. ibid. 54. b. 2. and shall not be punished for the same in any action of waste As if an house be ruinous at the time of the lease made if the lessée suffer the house to fall down he is not punishable for he is not bound by Law to repair the house in that case and yet if he cut down timber upon the ground so letten and repair it he may well justifie it And the reason is for that the Law doth favour the supportation and maintenance of houses which were ordained for the habitation of Mankind and are by consequent beneficial to the Commonwealth And therefore if the lessor by his Covenant undertake to repair the house yet the lessee if the lessor doth it not may with the timber growing upon the ground repair it though he be not compellable thereunto In like manner if a man make a lease of an house and land without impeachment of waste for the house yet may the lessée with the timber upon the ground repair the house though he may utterly waste it if he will and so it is in many other cases for the reason above alleged Co. l. 4. 14 b. 1. Cutle◠and Dixons case 19 If a man exhibit articles to Iustices of
men to serve the King that might tend much to the disturbance of the publique quiet thereof Vide supra 198 35. infra 16. Max. 78. 27. Dyer 128. pl. 61. Co. ibid. 246. a. 1. 4 Regularly Infant no lachess shall be adjudged in an Infant within the age of 21 years yet the Publique Repose of the Realm concerning mens freeholds and inheritances shall be preferred before the privilege of Infancy in case of a fine when the five years begin in the time of the Ancestor Vide Pl. Co. 372. Co. ibid. 328. a. 3. 5 The disseisee Release Feofment or any other that hath a right only by his release or confirmation cannot make any discontinuance because nothing can pass thereby but that which may lawfully pass But otherwise it is of a feoffment in respect of the livery of seisin for that it is the most solemn and common assurance in the Country and to be maintained for the Common quiet and repose of the Commonwealth Co. ibid. 361. b 3. Co. l. 1. 106. a. 4. in Shelley case 6 If a judgement be given against a tenant in tail upon a faint or false action and tenant in tail die before execution Common recovery no execution can be sued against the issue in tail But if in a Common Recovery judgement be had against tenant in tail where he voucheth hath judgment to recover over in value albeit the tenant in tail dieth before execution yet the Recoveror shall execute the judgement against the issue in tail not only in respect of the intended recompence but likewise for that it being the Common assurance of the Realm is much favoured in Law for the publique quiet and repose of the Commonwealth Co. ibid. 161. a. 3. 7 Incloser is adjudged in Law a disseisin of the rent Incloser because the Lord cannot justifie to break open the gates or break down the Inclosures to take a distress for that would be in disturbance of the publique peace and quiet of the Commonwealth Exchequer Seal 8 The Iudges in general cases have great respect and consideration Co l. 2. 17. a. 1. Lanes case that their judgement may not impeach or prejudice a multitude of people against antient and common approbation and therefore in Lanes case in the 2 Rep. a lease under the Exchequer seal was adjudged good albeit by the Common law no grant of any land by the King is available or pleadable but under the Great Seal yet the antient usage of that Court makes such leases to be good and available in in Law For if such leases should not be good great mischief would ensue thereupon because an infinite number of leases and grants under the Exchequer Seal would be said to be void and as great a number of grants of reversions expectant upon such leases would be void also for if the King grant a reversion where he hath a possession his grant is void And therefore lest their judgement in that case might disturb the publique repose of the Commonwealth leases under the Exchequer Seal were adjudged good and available in Law as aforesaid c. Common assurances 9 In Common Recoveries Co. l. 2. 75. a. 3. in the Lo. Cromwels case and other common assurances it would be a thing too perilous to make any construction against the general allowance thereof for thereupon would arise infinite contentions quarrels and sutes which would be inconvenient and stirr up trouble and disquiet in the Commonwealth whereas the end of the Law is to settle and establish repose and tranquillity betwixt man and man concerning their possessions Imprisonment 10 The body of the defendant was not liable to the execution for debt at the Common Law Vide 13 H. 4. 1. Co. l. 3. 12. a. 3. in Sir William Harberts case But the Common Law which is the preserver of the Common peace of the land abhors all force as the Capital enemy thereof And therefore against such as commit any force the Common Law subjects their bodies to Imprisonment which is the highest execution and whereby he loseth his liberty untill he hath agreed with the party and made fine to the King False News 11 The Statutes of Westm 1. cap. 33. and of 2 R. 2. cap. 5. which prohibit false and scandalous news Co. l. 4. 13. Actions of Slander whereby debate might arise between the Lords and Commons in disturbance of the peace and quiet of the Commonwealth seem to be but declarations of the Common Law for doubtless that offence was punishable at the Common Law before the making of those Statutes because it was prejudicial to the peace and repose of the Commonwealth and might be a cause to raise Sedition in the Realm As the Poets describes it Ac veluti magno in populo cum saepe coorta est Seditio saevitque animis ignobile vulgus Jamque faces saxa volant furor arma ministrat In which tumults another Poet saith Non novit medium rustica progenies Murder Constable 12 If upon an Affray made Co. l. 4. 40. b. 4. in Yongs case Co. l. 9 66. a. 4. 68. a. 4. in Mackallyes case the Constable and others in his assistance come to suppress the Affray and to keep the peace and in doing their office the Constable or any of his assistants are slain this is murder in Law albeit the Murderer did not know the party that was slain and although the affray was sudden because the Constable and his assistants come by authority of Law to keep the peace and to prevent the danger that might ensue by the breach thereof and therefore the Law adjudgeth it Murder and that the Murderer had malice prepense because he opposed himself against the justice and publique reposâ— of the Commonwealth So if a Sheriff or any of his Bailiffs or other Officers be slain in the execution of a process of Law Co. l. 5. 71. b. in Saint-Iohns case or in doing their office it is Murder Guns There is the same Law also of a Watchman that is slain in doing his office Vpon the same reason it is that the generalty of the Statute of the 33 H. 8. 6. prohibits not Sheriffs and their officers to carry about them in execution of Iustice and in order to the peace and quiet of the Realm the weapons therein forbidden Co. l. 5. 91. b. 1 in Swaynes case 13 In order to the general peace and quiet of the Commonwealth every mans house is to him as his Castle and Fortress A mans house his Castle as well for defence against injury and violence as for his repose And albeit the life of a man is a precious thing and much favoured in the eye of the Law so as albeit one man kill another in his own defence or per infortuniam without any intent yet the Law adjudgeth that felony and thereby he shall forfeit all his
goods and chattels for the great regard that the Law hath to the life of a man Howbeit if Thieves assault a mans house to robb or murther him and the owner or his servants kill any of the Thieves in defence of himself and his house this is not felony neither shall he lose any thing thereby And with this agrées 3 E. 3. Tit. Corone 303. 305. 26 Ass pl. 23. So likewise it is held in 21 H. 7. 39. that a man may justifie to assemble his friends and neighbours to defend his house against violence but not to go with him to the Market or elsewhere to guard himself from violence And all this to establish quiet and tranquillity in the Commonwealth Co. l. 5. 125. a. 2. in the cases of Libels 14 Every Libell which is called famosus Libellus Libels seu infamatoria scriptura is made either against a privat man or against a Magistrate or publique person if it be made against a privat person it deserves a severe punishment for albeit the Libel be only made against one yet it invites all of the same family kinred or society to revenge and so tends by consequence to quarrels and disturbance of the peace and quiet of the Commonwealth and may be the cause of effusion of bloud and of great inconvenience If it be against a Magistrate or other publique person that is yet a greater offence for this concerns not only the breach of the peace but the scandal of Government because what greater scandal can there be to Government than to have corrupt and wicked Magistrates to be substituted by the King to govern his Subjects under him Neither can there be greater imputation to the State than to permit such corrupt men to sit in the sacred seat of Iustice and to have any medling in or concerning the administration of Iustice which conceit being fixt in the minds of the people may be a cause of tumults and sedition to the great disturbance of the quiet and repose of the Commonwealth F N.B. 81. d. 15 Albeit Iustices of Peace have not express authority given them by their Commission to take recognizance for the keeping of the peace yet the Law gives them thereby that power ex congruo in order to the publique quiet of the Commonwealth for that they are thereby Constituted to be Conservatores Pacis and impowred to cause men to kéep the peace and to hear and determin offences committed against the peace and quiet of the Realm The Common Law giveth also power to the Sheriff either upon a writ of Supplicavit or without such a writ to take a Recognizance for the kéeping of the peace because he also is Conservator Pacis and to that end and purpose hath the guard and custody of the County committed to him for the time that he continues Sheriff as appears by the words of his Commission and Patent Rex c. Commissimus vobis Custodiam c. And what the Iustices or he do in that behalf is matter of Record and so ought to be déemed for that it concerns the Publique peace and tranquillity of the Commonwealth A man may go beyond sea 16 By the Common Law any man may go out of the Realm to imploy himself as a Merchant or to undertake a pilgrimage F.N.B. 85. a. or for any other cause at his pleasure without demanding license of the King neither shall he incurr any punishment for so doing Howbeit because every man in right is bound to defend the King and his realm and to preserve the publique repose and tranquillity of the Common-wealth from forein invasions from abroad and intestine sedition and insurrection at home the King may at his pleasure command by his writ De securitate invenienda quod se non divertat ad partes exteras sine licentia Regis under the Great Seal Privy Seal or Signet that he shall not go beyond sea without the Kings license And if he do he shall be fined for disobeying the Kings command Vide 3. Uses 17 In case of a Feoffment or other conveyance Co. Inst pars 1. 237. a. 2. whereby the feoffée or grantée c. is in by the Common Law a Proviso for a power of Revocation is meerly repugnant and void but in a voluntary conveyance which passeth by raising of Vses being executed by the Statute of 27 H. 8. 10. and now become very frequent by such a Proviso it is lawfull for the Covenantor at any time during his life to revoke any of the said Vses c. And these revocations are alwaies favourably interpreted bâ—cause now to interrupt that Course would disturb the Publique quiet of the Realm many mens Inheritances depending thereupon Warranty collateral 18 In 50 E. 3. Rot. Parl. 77. it was attempted in Parliament to have a Statute made Co. ibid. 373. b. 1. that no man should be barred by a warranty collateral but where Assets descend from the same Ancestor but it could never take effect because it would weaken common assurances and by consequence disturb the peace and quiet of the Commonwealth Remainders 19 For as much as in coveyances Co. Inst pars 1. 299. a. 2. limitations of Remainders are usual and common assurances it is dangerous by conceipts and nice distinctions to bring them in question as hath of late time been attempted lest thereby the quiet repose of the Commonwealth may be interrupted Descent to toll Entry 20 The Statute of the 32 Hen. 8. 33. concerning descents to toll entries shall be understood of a descent upon any disseisin Dyer 219. 7. 5. Eliz. albeit the words are of entries with strength And this large interpretation of the words is given for the better preservation of the peaâ—e and quiet of the Country By the Opinion of all the Justices Descent of the Royal line 21 In the Starre-Chamber the Countesse of Shrewsbury was fined 1000 l. and committed to the Tower Hob. 235. for that being called to the Council Table and Interrogated what she knew or had heard or thought of a supposed child which was rumored that the Lady Arrabella should have had she refused obstinately to make any answer because it was judged that this was a question of State and proper for the Council Table to take cognizance of for there is not one thing that doth more concern the peace and quiet of a kingdom than the certainty of the Royal line c. 201 Conventio seu beneficium privatorum non potest publico juri derogare Vide supra 198 29. Co. Inst pars 1. 166. a. 4. Littl. §. 244 1 No privat contract or agreement Partition which varies from the ordinary course of Law and sounds in prejudice of the Commonwealth or Common right shall be deemed good in Law as if a Castle that is used for the necessary defence of the Realm descend to two or more Coparceners and they by agreement choose
by making of him Knight he is out of the ward and custodie of the Lord because after he is Knight he ought to be sui juris and to imploy himselfe in feats of armes to defend the Kingdome c. And none shall pay the forfeiture of mariage but he that after refusal marrieth himselfe during the time that he is in wardship Howbeit the Lord shall immediately after his Knighthood have a writ de valoremaritagii such as in like case is used to be had after the heires full age of 21 years No protection for Wales 40 Since the Statute of 12 E. 1. Calvins case Co. l. 7. 21. b. 3. which incorporateth Wales into England and makes it parcel of England in possession no protection Quia moratur in Wallia will now lye because Wales is now within the Realm of England No wardship after attainder 41 Sir Everard Digby by act executed in his life conveyed his lands to the use of himselfe for life with divers remainders over Digbies case Co. l. 8. 165. b. 4. Co. l. 10. 85. a. 11. and then was attainted and executed for the Power-Treason The question was whether ward of the body or of the third part of the lands should accrue to the King by force of the Statutes of the 32 and 34 H. 8. And it was resolved that their could be neither wardship nor primer seisin in that case because there could be no heire for although there may be wardship and primer seisin where there is no descent as in case when a man grants all his lands holden by déed executed in his life yet there can be no wardship or primer seisin but where there is an heire by reason of whom alone those rights accrue to the King No dower by Guardian 42 During the minority of the heire a writ of Dower lyeth against the Guardian or he may endow the feme without suit if he please Co. l. 9. 16. b. 4. in Anne â—edingfields case but after full age although he hold the land over for the value of the mariage yet no writ of Dower lyeth against him neither can he endow her because after the full age of the heir he is no longer guardian Nusance removed 43 In Assise de nusans or Quod Permittat prosternere Co. l. â— 55 a. 1. in Baltens Case Co. l. 10. 84. b. 4. in Lovers Case c. it is a good plea that the Plaintiff himselfe either before the writ purchased or hanging the writ hath abated the nusance All Soccage Land devised 44 If there be tenant in tail to him and the heires males of his body the remainder in fée to another of land holden by Knight-service in Capite and that is also seised of other lands in soccage in fée and by his will in writing he deviseth all his soccage lands and dies without issue male in this case the devise is good for all the soccage land for the estate of the land holden determines by his death so that there was not any cause of ward at the Common Law so it is likewise 13 El. Dyer 3. if the estate of the land holden be defeated for a condition broken after the death of the tenant Wood or trees excepted 45 If I. grant the Mannor of D. except the wood Co. l. 11. 49. b. 3. Liffords case by this the soil it selfe is excepted but if I. except all my trées growing upon land or pasture out of any wood there by the exception of the trées the soil it selfe is not excepted But sufficient nutriment is reserved out of the land to sustaine the vegetative life of the trées for without that the trées which are excepted cannot subsist But if the Lessor cut them and by the licence of the Lessée root them up in this case the Lessee shall have the soil for cessante causa cessat effectus After pardon no conspiracy 46 If a man be falsely indicted of felonie Fitz. 115. g. and after by Act of Parliament a general pardon is granted of felonies c. Here the party shall not have a writ of conspiracie although he will plead to the indictment and is acquit and will not plead the Act c. because his life was never put in jeopardie which indéed ought to be the cause and ground of the action of conspiracie the felonie being pardoned by the Act. No attaint 47 If a man recover outragious damages by verdict Fitz. 107. b. and release parcel of the damages before Iudgement and hath onely Iudgement of the residue the defendant shall not have attaint for those damages which are so released Goods bailed 48 If a man have goods delivered unto him to deliver over to another and afterwards a writ of detinue is brought against him by him Fitz. 138. m. that hath right to have the goods c. here if the defendant hanging the action deliver the goods over to him unto whom they were given to be delivered this is a good barre of that action Fitz. 139. a. Mich. 34. E. 1. 49 After a divorce made betwixt Baron and feme Divorce the feme shall have a writ of detinue for the goods given with her in mariage not spent Dyer 13. 62. 28 H. 8. Fitz. 152. â— 50 The heire shall be charged by a writ of annuity upon grant of his father if he have assets by descent Annuity but an Annuity shall not be maintainable against the heire by prescription because it cannot be known whether he had any thing by descent from the same ancestor by whom the annuity began c. Plowd 37. a. The Sheriff of Londons case 51 If a prisoner in execution in Ludgate be suffered to go over the Bridge into Surrey though he have a kéeper with him Escape yet that is an escape for being in Surrey which is another County he was without gard and so consequently out of prison c. Plowd ibid. per Chomley 52 If a woman be Warden of the Fleet Prisoners enlarged by mariage or descent and one imprisoned there marieth the woman which is Warden this shall be judged an escape in the woman and the law adjudgeth the prisoner to be at large because he cannot be lawfully imprisoned but under a Warden and he cannot be properly conceived under the ward of his wife And therefore in that case the law adjudgeth him to be at large So if the Warden of the Fleet who hath his office in fée die seised his sonne and heire being then prisoner there and the office descends upon him being in prison here the law will adjudge him out of prison although he hath fetters upon his legs he being then without gard it being impossible that he should kéep himselfe in prison P. 13. E. 4. 8. Plowd ibid. 53 If a Iustice of Peace of one County pursue one into another County for felony comitted in the