accession of the estate for life Co. l. 8. 142. b. 1. in Doctor Druries case 47 If a man hath judgement in a Quare Imepedit Quare Iâ—â—dit Errour and hath a Writ to the Bishop and the Bishop refuseth to admit his Clerk Here the Plaintiff upon this collateral matter of refusall may have a Writ of Quare non admisit but if the Defendant reverse the Iudgement by a Writ of Error and after the Plaintiff in the Quare Impedit brings his Quare non admisit the Defendant may plead no such record and so bar the Plaintiff of bringing that Writ Vide 26 E. 3. fol. 75. per Wilby and Hill In like manner Execution Errour Escape if A. be taken by the Sheriffe in execution at the suit of B. upon an erroneous Iudgement and after make an escape and after the judgement is reversed by a Writ of Error the action upon the escape is lost c. Ibid. the principall case 48 If the return of an Exigent be erroneous Exigent â—â—neous the Outlawry which is grounded thereupon is erroneous also because the Writ of Exigent is the warrant by which they proceed to the Outlawry Vide Proctors case 5 Eliz. Dyer 223. Ibid. 143. b. 2. 38 H. 6. 4. 12. 49 One that had cause of priviledge in Banco is arrested in London Priviledge Supersedeâ— and delivers a Supersedias notwithstanding which the Recorder gives judgement and he is taken in execution and is thereupon removed in Banco by a Corpus cum causa And here because after the Supersedeas delivered there was a Nullity in the proceeding and judgement the Court without Writ of Error awarded that he should be discharged of the Execution c. Ibid. 143. a. 1. 50 If two Iudgements are given Two judgements The first dâ—feated and the last depends meerly upon the first as upon his foundation there if the first fundamental judgement be reversed by Writ of Error or Attaint the last which appears in the Record to depend upon it shall be reversed also as in Assise and Redisseisin so of a judgement upon the original and another judgment in a Scire facias so also of a judgement against the Tenant and another against a Vouchee and the like c. Conusee of a Statute 51 The Conusee of a Statute Staple in a writ of Detinue of the same Statute upon garnishment recovers by erroneous Iudgement against the Garnisee and hath the Statute delivered unto him Ibid. 142. b. 7 H. 6. 4â— a. the Garnisée brings a writ of Error Garnishment and the Conusee sues execution upon the Statute and hath it Here albeit the Garnisee reverse the judgement yet inasmuch as the Statute was executed that execution shall not be avoided by the reversall of the judgement because the judgement was onely to have the Statute delivered Judgement Execution and the Execution upon the Statute is a thing executed not at all depending upon the judgement And yet in this case by the opinion of Coke Chiefe Iustice the Garnisee shall have remedy upon the reversal of the judgement by an Audita quaerela Audita Quaerela because the cause and ground of the Collateral Action is disproved and annulled by the reversall of the first judgement and the first Plaintiff restored to his first action upon which he may have his first and due remedie Executors have execution The Will annulled 52 Executors have judgement in account Ibid. 143. b. 4. per Coke chief Justice and for the arrerages have the Defendant in execution and afterwards the Testament was annulled because the Testator was an Idiot and the Record spirituall was removed into the Chancery by Writ and then sent into the Kings Bench where the Action was brought And hereupon the Defendant brought an Audita quaerela Audita Quaerela for that the Testament was disproved and it was resolved in the Exchequer Chamber an 35 H. 8. that the Audita quaerela would well lie A Melius Inquirend erroneous 53 It was found by Mandamus 2 Jac. that P. S. held the Mannor of O. in Soccage of Qu Co. l. 8. 168. a. Paris Slaughters case Eliz. as of her Mannor of N. In 7 Jac. a Melius Inquirendum was awarded reciting the former office to enquire whether the Mannor of O. at the time of the death of P. S. was holden of the King in Capite c. whereupon an office was found that at the time of the death of P. S. the said Mannor of O. was holden of Qu Eliz. by Knight service as of her Mannor of N. and that at the taking of the inquisition it was holden of the King c. In this case the Melius was repugnant in it selfe because it was impossible for the Iury to finde the Mannor holden of King James at the death of P. S. which was in the fourth year of Qu Eliz. for then it must needs be holden of the Queen King James being then King of Scotland c. Now therefore albeit the Iury by the Inquisition had rightly found the tenure of the Mannor and that their finding thereof in that respect was good and according to the truth of the case yet because it was not warranted by the Melius which was the ground of their Inquisition all was adjudged insufficient and void and a new Melius inquirendum was awarded An Idiot examined in Chancery 54 A man that is found an Idiot from his nativity by office Co. l. 9. 31. b. 4 in the case of the Abbot of Strata Mercella may come into the Chancery and pray to be examined or by his friends he may pray to be brought thither and if it be found upon examination that he is no Idiot the office thereof found and all the examination which was by force of the Writ or Commission are utterly void without any traverse monstrance de Droit or any other suit Assumpsit deâ—eaâ—â—d 55 An Executrix in consideration Co. lib. 9. 94. a. 4. Will. Banes case that the Plaintiff will forbeare till Michaelmas to sue for a debt due by the Testator to the Plaintiff upon lone promiseth to pay it at Michaelmas and in an Action upon the case brought against her upon that promise pleads non assumpsit here the consideration of forbearance is good because although it be no benefit to the promiser yet is it damage to the Plaintiff And yet in this case if in rei veritate the debt were not due debt Per Coke chief Justice or the Executrix had not assets at the time of the promise she may give that in evidence and shall be thereupon ayded for then in truth there was not any consideration upon which the assumpsit might be grounded because to forbeare a debt which was not due or wherewith she was not chargeable could be neither benefit to the Defendant nor damage to the Plaintiff Co. l. 9. 139. a. 3.
granted in the time of Quéen Eliz. Quaere whether or no the Extent was returned without warrant Errour 78 In debt the Iudgment was reversed Dyer 130. 58. 6 Eliz. because there was no warrant of Attorny entred and this albeit the Writ of Error was brought the same terme the record remaining still in the breasts of the Iustices and the Plaintiff had prayed entry thereof Note that both the first Action and the Writ of Errour were brought in Banco Regis Lease void 79 The Provost of Wels being Parson imparsonee of the Parsonage of Winsam leaseth the tithes for fifty years rendring rent Dyer 239. 40. 7 Eliz. which was also confirmed by the Deane and Chapter but not by the Patron and Ordinary the Provostship was by Parliament united to the Deanary cum primo vacare contigerit The Provost dies the Deane accepts the rent yet the lease is not affirmed by such acceptance for the Provosts lease was void by his death as it is of a Parson or Prebend It was otherwise of a Bishop Deane Abbot c. which were elective and before the Statute of 1 Eliz. not printed might make discontinuance but if the lease above had béen for life it had not been void before entry Also the acceptance above was to no purpose for the reversion was determined and the name of succession altered As if Tenant in Dower or other particular Tenant make a lease and die and he in reversion or remainder accept the rent this is no affirmation because the reversion is altered 80 Hob. 10 Doctor Leyfield against Tisdale 41 Things incident are adhaerent to their Superiours or Principals Deeds c. in whose custody to remain 1 A man seised of Lands in fee hath divers Charters Deeds Co. inst pars 1. 6. a. 2. The Lord Buckhursts case Co. l. 1. 1 2. and Evidences and maketh a feoffment in fee either without warranty or with warranty onely against him and his heirs In this case the Purchaser shall have all the Charters Deeds and Evidences as incident to the lands ratione terrae to the end he may the better defend the land himself having no warranty to recover in value for the evidences are as it were the sinews of the land and the Feoffor being not bound to warranty hath no use of them But if the Feoffor be bound to warranty so that he is bound to render in value then is the defence of the title at his peril and therefore the Feoffee in that case shall have no deeds that comprehend warranty whereof the Feoffor may take advantage Also he shall have such Charters as may serve him to deraign the warranty paramount Likewise he shall have all Deeds and Evidences which are material for the maintenance of the title of the land but other evidences which concern the possession and not the title of the land as Court Rolls c. the Feoffee shall have them as concomitantia incidentia to the possession Land on the part of the mother 2 If a man seised ol Lands as heire of the part of his Mother Co. Inst pars 1. 12. b. 4. maketh a feoffment in fee reserving a rent to him and to his heirs this rent shall go to the heirs of the part of the Father vide N.B. 40. 70. but if he had made a gift in falle or a lease for life reserving a rent the heire of the part of the Mother shall have the reversion and the rent also as incident thereunto shall passe with it but the heire of the part of the Mother shall not take advantage of a condition annexed to the same because it is not incident to the reversion nor can passe therewith The like for service 3 If a man had been seised of a Mannor Co. ibid. as heire on the part of his Mother and before the Statute of Quia emptores terrarum had made a feoffment in fee of parcell to hold of him by rent and service albeit they be newly created yet for that they are parcell of the Mannor they shall with the rest of the Mannor descend to the heirs of the part of the Mother quia multa transeunt cum universitate quae per se non transeunt Co. ibid. 4 If a man hath a Rent-seck of the part of his Mother The like for distresse and the Tenant of the land granteth a Distresse to him and his heires and the Grantee dieth the Distresse shall go with the rent to the heir of the part of the Mother as incident or appurtenant to the rent for now is the Rent-seck become a Rent-charge Co. ibid. 19. b. 3. 5 By the Statute of Westm 2. The land incident to the tenant in tail the land is as it were appropriated or incident to the Tenant in tail to the heirs of his body and therefore if an estate be made either before or since the Statute of 27 H. 8. cap. 10. to a man and the heirs of his body either to the use of another and his heirs or to the use of himselfe and his heirs this limitation of use is utterly void for before the said Statute of 27 H. 8. he could not have executed the estate to the use P. 14 Jac. in B. R. And so it was adjudged in an Ejectione firmae between Cooper Plaintiff and Franklin c. Defendant Co. ibid. 22. b. 3. 6 The possibility of having heirs to inherit is so inherent and incident to a man as long as he lives A remainder to a mans right heirs is a limitation to himselfe that it cannot by any act of his be severed from him during his life except when his blood is corrupt by attainder T. 23 Eliz. Fenwick and Mitfords case c. And therefore at this day since the Statute of 27 H. 8. cap. 10. If a man seised of lands in fee make a feoffment in fee and depart with his whole estate and limit the use to his daughter for life and after her decease to the use of his sonne in taile and after to the right heirs of the Feoffor In this case although he departed with the whole Fee-simple by the feoffment and limited no use to himselfe yet hath he a reversion for whensoever the Ancestor takes an estate for life and after a limitation is made to his right heirs the right heirs shall not be purchasers And here in this case when the limitation is to his right heirs and right heire he cannot have during his life for non est haeres viventis the Law doth create an use in him during his life untill the future use cometh in esse and consequently the right heirs cannot be purchasers And there is no diversity when the Law creates the estate for life and when the party And if the limitation had béen to the use of himselfe for life and after to the use of another in taile and after to the use
of Lancaster was holden of the King in Capite but when they remained in one and the same person the ancient tenures of the Crown did sléep perpetuo somno because the King could not hold of himself F. N. B. 21. i. 24 In the Common Pleas upon Error in Processe Errour in 〈◊〉 not reversâ— in the same Court or in default of the Clerks the Iustices there may reverse their owne judgement so it be done the same terme without suing any Writ of Error And if it be deferred till another terme yet may it be reversed by the said Iudges upon a Writ of Error But if it be Error in Law which is the default of the Iustices themselves that Court cannot reverse such a judgment no not by a Writ of Error For that Error is to be redressed in another Court before other Iustices by Writ of Error because the Iustices of the Common Pleas are not competent Iudges of their owne error Conspiracy 25 A writ of Conspiracy cannot properly lye against one single person because one person cannot be said to conspire with himself F. N. B. 116. l. None can be a prisoner to himself 26 If the Warden of the Fléet who hath his office in fée Pl. Co. 37 a. 3. The Sheriffs of Londons case die seised his Son and Heire being then in prison and the office descends unto him being so in prison In this case the Law will adjudge him out of prison albeit the Fetters be upon his legs for that he cannot kéep himself in prison and therefore shall be adjudged at large No donor to himself Stat. 27 H. 8. 27 If A. seised of lands in fée before the Statute of uses made Anno Pl. Co. 59. a. 4. Wimbish and Talbois case 27 H. 8. had granted the same lands to Feoffees in trust to the use of himselfe and his wife in tail and afterwards the Statute is made Here by force of that Statute the possession being conveyed to the use the Feoffors are Donors and not A. For it seemeth improper and repugnant that A. should be Donor to himself Feoffees of lands charged with a recognisance 28 If the Conisor of a Recognizance according to the Statute of 23 H. 8. cap. 6. enfeoff the Conisee of parcel of the land Pl. Co. 72. b 3. Rosse Vens Sir Tho. Pope in Audita quaerela F. N. B. 104 n. 105. c. Vide Dyer 193. 30. 2 3 Eliz. and a stranger of another parcel and reserve parcel in his own hands Here the Conisee shall not have execution against the stranger For if one Feoffee of the Conisor where his land onely is put in execution may have an Audita quaerela against all the other Feoffees to make their lands also to be put in execution and to be contributary to the intire charge By the same reason if the Conisee himself be one of the Feoffees the lands in the hands of the other Feoffees shall not be chargeable with the execution for that the Conisee himself cannot be contributary with them for his part towards the satisfying of the charge because he cannot contribute to himself neither can he be contributary for a personal thing due to himself Neither yet shall the Charge be apportioned but all shall be extinct as against the other Feoffees Howbeit against the Conisor himself the Conisee shall have execution for the parcel still remaining in his hand c. Lands to be sold by Executors 29 At the Common Law Co. Inst pars 1. 113. a. 3. if lands had béen willed to be sold by Executors or had béen devised to Executors to be sold if any of them had refused the rest could not have sold them but now that is holpen by the Statute of 21 H. 8. cap. 4. viz. the first by the expresse words of that Statute and the other by the equity of the same Howbeit in neither of those cases when the one refuseth can the other make sale to him that so refuseth because he is party and privy to the last will and remaineth Executor still The younger â—rother chargeth the land â—f the elder 30 The younger brother disseiseth the elder Dyer 5. 1. 25 H. 8. who is barred in an Assise by a false oath the younger chargeth the land and dies without issue and the land descends to the elder brother In this case the elder brother is without remedy because there is none but himself against whom he may bring the attaint and therefore he shall still hold the land charged â—ythes 31 If the Parson of a Church purchase a Mannor within his Parish Dyer 43. 21. 30 H. 8. Here by this purchase and unity of possession the Mannor which was tytheable before is now made non decimabilis because he cannot pay tythes to himself â—itnesse 32 It was resolved in the Common Bench Co. Inst pars 1 6. b. 4. Pasch 10 Jac. that a wife cannot be produced as a witnesse either against or for her husband because they are one person in Law Duae animae in carne una and he cannot be a witnesse to or for himself in his own cause Dyer 220. 14. 5 Eliz. 33 A recognizance was acknowledged to Sir Nicholas Bacon and two others before Sir Nicholas himself being then Lord Kéeper Recognisance and it was adjudged void as to him and good for the others Dyer 279. 10 11 Eliz. 34 The Citizens of Yorke were incorporate by R. 2. Yorke Citie by the name of Major Sheriffs and Citizens and claim to be so before by prescription and to have a custom to seise goods forraign bought forraign sold Now in a suit against them for seising such goods the Venire facias issued to the Sheriffe of the County De vicinetu Castri Eborum because it was next adjacent to the Citie for it was not thought fit to direct it to the Sheriffs or Coroners of Yorke because they were Citizens and parties Dyer 304. 54. 14 Eliz. 35 The next avoydance is granted to thrée Quare Impedit Habendum iis uni eorum conjunctim divisim the first presents the third who is admitted instituted and inducted and adjudged good Howbeit if the Bishop had refused to admit him alone his Quare Impedit peradventure would have failed he having a joynt Interest in the avoydance and the Habendum being void in Law as it séems Hob. 10. Fryer and Gildridg 36 The Obligée made the wife of one of the Obligors his Executrix Debt extâ—â— and died the woman Executrix administred then her husband being one of the Obligors made her his Executrix and died leaving assets to pay the debt then she died and a stranger took administration of the goods of the Obligée unadministred and brought his action against the surviving Obligor but it was adjudged per Curiam that the action would not lie because when one of the Obligors made
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
the one being as ancient as the other as if a man hath a way over the Land of A. to his Franck-Tenement by Prescription time out of minde c. A. cannot alledge Prescription or Custome to stop the sayd way Co. l. 9. 109. b. 3. Meriel Treshams case 39. In Debt against an Administratrix she pleads in Bar Bar repugnant Quod ipsa plene administravit omina bona c. quae fuerunt c. quod illa nulla habet bona c. quae fuerunt c. nec habuit die impetrationis brevis c. praeter bona catalla ad valentiam of the Kings debt and of severall Recognizances by which plea she confesseth that she had sufficient in her hands to satisfie the sayd Debt and Recognizances And then she pleads further Quod ipsa nulla alia sive plura habet bona c. quae fuerunt c. Praeterquam bona catalla quae non sufficiunt ad satisfaciendum Praed seperalia debita Which is clearly and Ex diametro repugnant to what she had confest before and thereupon the sayd Bar was adjudged insufficient Co. l. 11. 80. b. 2. Lewes Bowles case 40. A Feme brings a Cui in vita quod clamat tenere ad vitam Cui in vita Contrariety and maintaines it in her Count by a gift in speciall Tail to her and her Husband and that her Husband is dead without Issue and the Writ abated for the contrariety of the Title for in the Writ she named her selfe but a bare Tenant for life whereas in her Count it appeared that she had such an Estate for life which had greater Priviledges incident unto it then a bare Estate for life hath Vide 18 E. 3. 37. Assignment of Errors Contrariety F. N. B. 21. b. 41. In a Writ of Error upon a Iudgement given in the Common Bench the Plaintiff cannot assigne for Error that the Iustices of the Common Bench did not give the Iudgement but that the Clarkes of their own heads did it Neither can he assigne for Error that the Iurors gave Verdict for the Defendant and that the Iustices entred it for the Plaintiff and gave Iudgement for him because such assignment is contrary to that which the Court doth as Iudges Remainder limited upon a contrariety 42. A Remainder limited upon a contrariety cannot be good Pl. Com. 29. b. 3. Colthrist and Bevisham as in the case of Rickill in Littleton S. 720. for when he had once made a Feoffment and vested the estate in one he could not make that estate cease as to him and cause it to remaine to another So if Land be given to a man and his heires so long as I. S. shall have heirs of his body and if I. S. die without heire of his body that then it shall remaine to another in fee this Remainder is void for the contrariety because the first estate was Fee-simple determinable upon which a Remainder cannot depend The like 43. If a Lease for life be made upon Condition Pl. Com. ibid. 32. a. 4. 34. b. 4. that if a stranger pay to the Lessor twenty pounds that then after the death of the Tenant for life it shall remaine to the stranger this is a good Remainder so if a Lease for life be made to Baron and Feme and it is appointed by the said Lease that if A. their eldest Son dye living the Baron and Feme that then it shall remaine to B. their second Son for life this is also a good Remainder for in these cases there is no contrariety because in the first the stranger shall have it expressely after the death of Tenant for life and in the other it is intendable that B. shall have the Remainder after the death of Baron and Feme But if a Lease for life be made upon Condition that if a stranger pay to the Lessor twenty pounds that then immediatly the Land shall remaine to the same stranger this Remainder is void for the contrariety because the Tenant for life ought to have it during his life during which time the stranger cannot have it Proviso repugâ—â—nt 44. C. makes B. and a Feme his Executors 19 H. 8. Dyer 4. Pl. 10. provided that B. shall not administer his Goods this Proviso is void for the repugnancy for when C. had made them once his Executors the severall powers limited to them afterwards are void because when the intent of a man who makes a Testament agrees not with the Law his intent shall be taken as void as if a man devise to H. in fee and if he dye without heire that M. shall have the Land this devise is void for the repugnancy as to M. for one Fee-simple cannot depend upon another Fee-simple by the Law Condition â—â—id 45. The Custome of London is Dyer 33. 12. 28 29 H. 8. that a man may devise his Purchase-Land in Mortmaine and a Purchasor devised by his Will that the Prior and Covent of Saint Bartholm and their Successors should have the Land Ita quod reddant annuatim Decano Capitulo Sancti Pauli 16. Marc. And if they failed of payment that their estate should cease and that then the said Deane and Chapter should have it and for the Condition broken those of Pauls entred and it seemed clear to Baldwin and Fitzh that the Condition was void for no estate could remaine after the Fee-simple given away because the Feoffor had determined his Interest and Right and then a stranger could not enter for the Condition broken but the heire ought to do it â—â—ape 46. In debt against the Sheriffs of London Dyer 66. a. 11. 3 E. 6. for an escape of a Prisoner out of Ludgate they plead that three years before Jerveis and Curteis their Predecessors suffered the same Prisoner to escape to Lambeth in Surrey he being then in their Guard in Ludgate Goale London which is impossible for the former Sheriffs could not let them go at large when he was imprisoned and in their custody at the time of the escape and then the escape ought to have been supposed in London where the Prison was for which repugnancy and other errors the Plea was adjudged void Dyer 68. b. 28. 5 E. 6. 47. An Indictment of Murder was adjudged insufficient Indictment for that the place of the assault was set down and not the place of the Murder nor these words adhuc Ibidem inserted in the Indictment in case the Assault and Murder were acted at one and the same place And this was for the uncertainty because the Assault and the Murder are of differing natures and might be done at severall places Dyer 209. 21. 3 4 Eliz. 48. A Lease is made for years upon Condition Condition repugnant that if the Lessor grant the Reversion the Lessee shall have fee the Lessor levies a Fine the Conusee brings a Quid juris
awarded he comes too late after for non constat Curiae Alien that he is an Alien Spinolaes case 174 Vigilantibus non Dormientibus Leges subveniunt Co. Inst pars 1. 139. b. 1. 1 At the Common Law upon every continuance or day given over before judgement the plaintif might have been nonsuted Non-sute and therefore before the Statute of 2 H. 4. cap. 7. after verdict given if the Court gave a day to be advised at that day the plaintif was demandable and might have been Nonsuted for vigilantibus non dormientibus c. Co. l. 4. 82. b. 3. in Sir Andrew Corbets case 2 A. deviseth land to B. till 800 l. be raised for the preferment of his daughters dies C. the heir of A conceals the will enters dieth Devise Notice In this case B. shall have alloâ—ance for the time that the will was concealed but albeit B. had not notice of the will yet if a stranger had occupied the land the devisee ought to take notice of the devise at his peril for vigilantibus non dormientibus c. And in such case none is bound to give him notice Co. l. 5. 76. a. The Earl of Pembrooks case 3 Where the defendant shewes a deed to the Court Deed entred the plaintif may pray the same Term that it may be entred in haec verba And so he may demurr or take issue at his pleasure But if he neglect to pray it that term he shall never have it so entred afterwards Co. l. 7. 27. b. Sir Hugh Portmans case 4 In a Quare impedit if the plaintif be nonsute after appearance Quare Impedit or discontinue the sute that is peremptory and the defendant becomes Actor and shall immediately have a writ to the Bishop c. Co. l 6. 8. b. 1 in Ferrers case 5 At the Common Law before the Statute of Westm 2. cap. 4. Recovery by default If any had suffered a Recovery in any real action by default if he were lawfully summoned and there were no error in the proceeding he could not have the case of an Infant only excepted any remedy but by writ of right And therefore the writ of Quod ei deforceat was by that Statute given to tenant in tayl by the Curtesie in Dower and for life after recovery had against them by default F.N.B. 20 g. 6 In a writ of Error when the record is come into the Court Error if the plaintif all that Term do not assign his errors and albeit he then assign the errors yet if he do not then also sue out a Scire facias ad audiendum errores against the defendant returnable the same term or the next term following all the matter is discontinued Dyer 232. 9. 7 Eliz. 7 An Infant at full age brings an Audita querela in Chancery to avoid a recognisance in the nature of a Statute staple by him made within age Infant but because his age was to be tried by the inspection of the Court it was adjudged that it did not lie so also it had béen if he had died within age for in such case he should have brought the Audita querela before his full age Dyer 241. 48 7 Eliz. 8 A Quare Impedit issued against the Archbishop of Canterbury Quare Imp. the Bishop of Lincoln and the Incumbent who made default to the great distress whereupon the plaintif made title that he might have a writ to the Bishop and a writ was awarded to enquire de damnis de plenitudine ad cujus praesentationem quantum temporis elabitur a vacatione et quantum Ecclesia valet per annum all which points were returned by inquisition and accordingly Iudgement was given that the plaintif should recover the presentment and should have a writ to the Bishop of Lincoln and damages to the value of the Church by half a year and the defendants in misericordia Error 9 If a writ of Error be delivered to the Chief Iustice of the C. B. or the Clerk of the Treasorie there this is a Supersedeas in Law Dyer 244. 63. 8 Eliz. and a stop to award execution Howbeit if the plaintif do not crave the removal of the record before the return of the writ of Error the Iustices may then award execution Vide 6 H. 7. 16. 175 It favoureth speeding of mens Causes And therefore Protections 1 In antient time Co. Inst pars 1. 130. b. 4. when Noblemen and others purchased by Letters Patents from the King protections either Profecturae or Moraturae to go or remain beyond the Grecian sea or elsewhere they were also by other Letters Patents to purchase licence to make their general Attorneys in all Courts so as no actions or sutes should be thereby delayed which Britton commends to be bien et sagement fait fol. 282. Protection 2 In an Assise of Novel disseisin a Protection is not allowable Co. ibid. 131. a. 1. Co. l. 8. 50. a. 2 in Jehu Webbs case nor yet in a Certificate upon an Assise because an Assise is festinum remedium to restore the disseisee to his freehold whereof he is wrongfully and without Iudgement disseised And therefore in this action the defendant shall not be essoined nor pray in aid but only of the King nor vouch a stranger nor any party to the writ unless he will immediately enter into the warranty there is the same Law also of receipt neither shall the Paroll stay for the non-age either of the plaintif or defendant and in many other respects an Assise is remedium maximè festinum Dower Appeal Assise 3 In Dower Co. l. 9. 30. b. 3. in the case of the Abbot of Strata Mercella or in appeal brought by the feme of the death of her husband or in an Assise brought by a feme which was the wife of B. if the tenant or defendant plead that the baron is in full life the tryal thereof shall not be by the Iury but by the Iustices upon examination made before them and that course is taken for the greater expedition Nonage inspected 4 If the tenant in a real action vouch A. as heir within age Co. l. 9. 30. b. 4. The same case or if the tenant for life be impleaded and pray in aid of A in reversion within age and pray also that the Paroll may demurr c. In both these cases if the demandant reply that he is in full age this shall not be tried by the Country for the great delay of the demandant but a writ of Venire facias shall issue to the Sherif to bring A. before the Iustices to be inspected by them whether he be of age or no. Assise 5 Of all actions an Assise is most favoured in Law Pl. Co. 75. b. 4. Wimbish and the Lord Willoughby because it gives the most speedy remedy And therefore the Statute
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
and the six moneths passe and after the Kings tenant dies before the Bishop presents by laps and leaves his heir within age and in ward to the King In this case the Bishop shall not present by laps but the King shall have the presentment by reason of the ward c. F. N. B. 35. p. 75 In a Quare Impedit for the King Not stopt albeit the Defendant hath a writ to the Bishop against the King yet the King may sue a new Quare Impedit against the party of the same avoidance and make another title F. N. B. 37. f. 76 The King may sue a Ne admittas after the six moneths past Ne admittas where he hath a Quare Impedit or an Assise de Darrein presentment depending because Nullum tempus occurrit Regiâ— It is otherwise in the Case of a common person because the Bishop may then present by laps the title of presentment being devolved to him c. F. N. B. 38. e. 77 In a Quare Impedit betwéen two strangers The Kings title if the title appears to the Court for the King they award a writ to the Bishop for the King accordingly F. N. B. 60. i. 78 Vpon grant of a Reversion Wast Attornment although it be by fine the Grantée cannot bring an Action of wast against the tenant before Attornment but if the King grant a Reversion by his Letters Patents the Grantée may have an Action of waste before Attornment F. N. B. 85. a. 79 At the Common Law every man may go out of the Realm for Merchandizing Peregrination Ne exeâ—s regâ— absque lier 〈◊〉 Regis or other Cause whatsoever pleased him without the Kings licence and he was not to be punished for it Howbeit because every man is by Law bound to defend the King and his Realm therefore the King at his pleasure may by his Writ de securitate invenienda quòd se non divertat ad partes exteras sine licentia Regis command that he shall not go out of the Realm without his licence c. And if he doth it he may be punished for dis-obeying the Kings Command And it séems that this Commandement may be made by the Kings Writ under the Great Seal Privy Seal or Privy Signet For in this Case the Subject is bound to take notice of every Seal the King hath as well as of the Great Seal F. N. B. ibid. c. The King may do the like by his Proclamation in Case he cannot be found to have the Writ served upon him which if he obey not it is a contempt for which he shall make fine to the King Note that by the Statute of 5 R. 2. cap. 2. it was ordained that none should go out of the Realm without the Kings licence which continued in force until 4 Jac. and then by the Statute of 4 Jac. cap. 1. that Clause of that Statute was repealed So that at this day it séems that the Subject hath the same liberty that he had at the Common Law Dier 296. 19. yet by the words in the beginning of the writ which are these Rex A. de B salut c. Quia datum est nobis intelligi quod tu versus partes exteras absque licentia nostra clà m destinas te divertere It séems he cannot go out of the Realm unlicensed by the King c. As Dyer observes 165. p. 6. Ideo quaere de hoc Protection 80 If after the King hath granted to one his protection F. N. B. 92. b. c. any man takes his Goods or enters into his Lands c. or beats his Servants c. the partie grieved shall have a special writ directed to the Seriffe to inquire of them and to certifie it before the King c. And it séemes that the King shall make processe against them by venire facias as upon an Indictment and that they shall make fine hereupon Sea-banks Sâ—wers 81 The King ought of Right to have and defend his Realme as well against the brâ—akings in of the Sea F. N. B. 133. a. as against enemies that it be not drowned or wasted and to provide remedy for it And also to provide that his subjects have their passages throughout the Realme by Bridges and safe Wayes And therefore if the Sea-bankes be broken or Sewers and Gutters be not scoured that the fresh waters may have their direct Course the King may and ought to make a Commission to inquire thereof c. And to hear and determine those defaults But now matters that concerne Sewers are regulated by direct late Statute viz. 23 H. 8. 5. 13 El. 9. c. Priority Wardship 82 If a Man hold of the King by Posteriority F. N. B. 142. f. and of another man by priority and after the King grants to the Quéen the Seigniory for terme of life and after the Tenant dies his heire within age In this Case the Quéen shall have the wardship of the body having no regard to the Posteriority Because the Reversion of the Seigniory remaines still in the King It had béen otherwise if the King had granted it in remainder to another in Fée for then it seemes they should not have had the priority c. Annuity 83 If the King grant an Annuity to one for terme of life or yeares F. N. B. 152. k. it ought to be expressed in the grant by whose hands he shall receive that Annuity as to say by the hands of the Sheriffe of S. or by our Baylife of the Mannor of S. and then the Sheriffe or Baylife shall have allowance upon that Patent shewing if he pay it And if there be not such words in the grant of the Annuity then the grant is void For he cannot sue to the King for it and no person is bound to pay it unto him if he be not named and expressed in the Patent c. â—yde â—â—ayer Procedendo 84 If a Man pray in Ayde of the King F. N. B. 253. e. f. and the Ayde is granted then shall it be awarded that he shall sue to the King in the Chancery And the Iustices of the Common Pleas shall cease until a Writ De procedendo in loquela come unto them c. And then they may procéed in the Plea until it go on so farre that Iudgement ought to be given c. For the Plaintiffe And then also the Iudges ought not to procéed to Iudgement until another Writ De procedendo ad judicium be brought unto them And if the King certifie the Iustices by his writ that the Lands are seised into the Kings hands then also shall they surcease until a writ De procedendo loquela be sent into them c. And if it appeare to the Iustices upon Record that the Tenements are seised into the Kings hands or if it appeare to the Court by the pleading and shewing of the Parties that the
350. if he may enter he must enter and when he cannot enter he must make a claime for that a Freehold and Inheritance shall not cease without entry or claime And yet if Land be granted to a man for terme of five yeares upon condition that if he pay the Grantor within the first two yeares fourty pounds that then he shall have fee or otherwise but for the terme of five yeares and livery of seisin is made unto him by force of the Grant In this case if the Grantee pay not unto the Grantor fourty pounds within the first two yeares then immediately after the first two yeares the Fee and Frank-tenement shall be adjudged in the Grantor without entry because the Grantor cannot presently after the two yeares enter upon the Grantee Co. ibid. 21 a. 4. for that the Grantee hath yet a terme of three yeares in the Land and in as much as hee cannot enter hee shall not be driven to make any claime to the Reversion For seeing by construction of Law the Freehold and Inheritance if the Condition had beene performed was to passe Maintenant out of the Lessor by the like construction the Freehold and Inheritance by the default of the Lessee shall be revested in the Lessor without entry or claime There is the same Law of a Grant by Devise Lease and Release Bargaine and Sale by Deed indented and inrolled c. or whether it be of an Advowson Reversion Remainder Rent Condition or any other thing that lyes in Grant Feme recovered without Baron 53. The Husband is the Wives head Co. ibid. 352. b. 4. Litt. S. 668. and regularly shee can do nothing without him and yet in an action of Waste if the Baron make default to the great Distresse the Feme upon prayer shall be received and shall shew the whole matter and how shee is in her Remitter and shall barre the Lessor of his Action And albeit this priviledge be given the Feme by Westm 2. cap. 3. yet ancient Authors who wrote before that Statute do speake of such a kinde of receipt at the Common Law for otherwise the Feme would be without remedy Judgement upon a dead â—an 54. It seemes irregular Co. ibid. 390. b. 4. that Iudgement should be given upon a man already dead And yet in 8 Ed. 3. Judgement 225. the Defendant in an appeale of death did wage Battell and was slaine in the Feild yet Iudgement was afterwards given that he should be hanged and the Iustices sayd such Iudgement was necessary because otherwise the Lord could not have a Writ of Escheate and so would be without remedy Co ibid. 393. a. 4. 55. Regularly Two Recoveries upon one warranty there cannot be two recoveries in value upon one warranty and yet in some speciall cases rather then a man shall be without remedy there shall be two such recoveries for if a disseisor give lands to the Husband and Wife and to the heires of the Husband the Husband alieneth in fee with warranty and dyeth the Wife bringeth a Cui in vita the Tenant voucheth and recovereth in value if after the death of the Wife the Disseisee bring a Precipe against the Alienee he shall vouch and recover in value againe Co. l. 8. 61. a. 3. in Beechers case 56. In all actions reall and personall No amerciament against the Plaintiff if part be found for the Demandant or Plaintiff and part against him or all or part against the one Tenant or Defendant and nothing or but part against the other the demandant or Plaintiff shall be amerced Howbeit in Trespasse of Battery against Baron and Feme supposing the battery to be done by them both and the Feme is onely found guilty c. and the Baron acquit yet in this case the Plaintiff shall not be amerced because the Plaintiff in such case can have no other Writ and therefore he shall be excused Vide Max. 149. 41. 57. Vide 143. 15. Dyer 8. a. 28. H. 8. Pl. 11. 16. 58. In a Writ of Ward the Writ supposeth that B. held the land c. Variance inter writ and count no error and the Count declareth that B. was but Cestuy que use so as the Feoffees held the land and not B. Here this variance is no Error because the Statute of 4 H. 7. which gives the wardship of Cestuy que use appoints no speciall Writ for it and therefore the generall Writ and speciall Count suffiseth for otherwise the Lord should be without remedy which the Law will not permit So in a Warrantia Cartae the words of the Writ are Unde cartam habet and yet the Count may be upon warranty for Homage Ancestrel Dyer 56. 17. 35 H. 8. 59. A Writ of Right Quia Dominus remisit Curia Feme Covert c. was brought by Baron and Feme the Feme being under age the Feme appeares by Procheine amie who was admitted by the Court and upon the Tenants voucher and default of the Vouchee shee had judgement finall c. without her Husbands appearing in the action Vide supra 10. Dyer 206. 11. 3 4. Eliz. 60. A man makes a Lease for yeares to begin at a day to come Waste and before the day the reversion is granted over divers times afterwards the Termor enters and makes waste and the fourth Assignee bring waste and counts of the assignment and tenure of each of them to whom the Land came after the Lease albeit there was no tenure before the commencement of the Lease and it was held good and so it is also in the Regester Hob. 3. Pincombes case 61. Albeit regularly a warranty ought onely to be annexed to a freehold and not to any lower estate Warranty is a covenant yet when the breach or impeaching is not of a Freehold but of a chattell Viz. of a Lease for yeares for which there can neither be Voucher Rebutter nor Warrantia Cartae an action of Covenant may be grounded upon such a Warranty As if A. demiseth the Monnor of D. to B. for one and thirty yeares and afterwards grants it to C. in possession for life with warranty against him and his Ancestors C. may bring an action of Covenant upon that Warranty and shall recover damages thereupon See the Book at large Hob. 48. Coxes case 62. Lands in Ancient demesne where the possession is stirred Ancient demesne cannot be recovered but within their owne Franchise or Iurisdiction and this is regularly true yet actions at the Common Law upon which no remedy can be had in ancient demesne do lye in the Kings Court though they stir the possession as in a Quare impedit 7 H. 6. 35. because they cannot write to the Bishop And the reason is because the Common Law being as ancient as their priviledge is will not endure that by pretence of Priviledges there should be a Failer of Originall Right as that
before it should be landed and weighed and that uncertainty being caused by no folly in the Defendant Fogassa there was great reason he should be excused and not made lyable to forfeit the Woad albeit he had not observed the strict words of the Statute in that case Rent-charge pro consilio impendendo 50. If a man hath a Rent-charge granted him Pro consilio impendendo Dyer 2. 2. 6 H. 8. and afterwards he is attainted of Treason and cast into Prison so as the Grantor cannot have accesse to him for his counsell yet he shall have the Rent during his Imprisonment for he may give counsell as well in Prison as at large and there is no fault in him that the Grantor came not at him A Sheep-biter 51. If a man hath a Dog that kills Sheep Dyer 25. b. 163. 28 H. 8. the Master of the Dog being ignorant of the Dogs condition he shall not be punished for it It is otherwise if he had notice of the Dogs condition and quality for then it may be imputed to his own folly and neglect See also Dyer 29. 195. 28 H. 8. Repaire of River-bankes 52. A Lease was made of a Meadow bordering upon the River of Exe in Devon by Deed indented Dyer 33 10. 22 29 H. 8. and the Lessee covenanted to sustaine and repaire the Banks of the River in paine of ten pounds and afterwards by reason of a sudden floud upon subversion of certaine Weares in Devon the Banks were decayed and perished c. and by the opinion of Fitz. and Shelley the Lessee shall be excused from the Penalty as if it had been of an House that had been burnt by lightning or thrown down by tempest which are the act of God and cannot be resisted Howbeit in this case he ought to repaire the Banks in convenient time Act of God 53. A man makes a Lease for years of Land and a stock of Sheep Dyer 56. 15. 35 H. 8. rendring rent and all the Sheep dye In this case the rent shall be apportioned because it was the act of God and no default or neglect of the Lessee Bond eaten with Mice 54. In debt upon an Obligation Dyer 59. a. 12. 36. H 8. if after non est factum pleaded and entred the Labels by the negligence of the Clerke are eaten off with Mice it seems this shall not prejudice the Obligee because it did not happen by his default Descent a totall Entry 55. A man being beyond Sea out of the Realme is disseised Dyer 143. 57. 3 4. P. M. and after he returnes into the Realme and then departs out againe during which time there is a Descent cast In this case if it cannot be proved that he had notice of the Disseisin when he was in the Realme it seemes this Entry is not taken away for by intendment of Law he could not have notice of the Disseisin at the time when it was done So if an Infant be disseised and at his full age he goes beyond Sea or takes Baron or is imprisoned during which time there is a Descent his Entry shall be taken away for this Laches after his full age but if he were within age when he did such an act it shall be otherwise Dyer 241 50 8 El. 56. Undue practise A Capias ad satisfaciendum returnable Tres Trin. being not served the Solicitor of the Plaintiff takes it againe of the Sheriff and one of the Prothonotaries Clerks makes the Tres Trin. Tres Mich. and then the Solicitor re-delivers it to the Sheriff unsealed viz. to the Sheriff of London who makes Warrant thereupon to a Serjeant who arrests the Defendant and afterwards the Writ is sealed And in this case albeit the offenders for this undue practise were committed to the Fleet yet afterwards it appearing upon examination that the Plaintiff was ignorant of the practise the Writ was received and the Defendant committâ—d also to the Fleet in execution Dyer 260. 24. 9 Eliz. 57. Partition against two the one confesses the Partition Partition and the other pleads to Issue and in the Record of Nisi prius the name of the Defendant was omitted by the negligence of the Clerk being written praedictus similiter without more Also the Iury was betwixt the Plaintiff and both the Defendants whereas one of them was not party to the Issue which errors being apparent were amended by the dirâ—ction of the Iustices of Nisi prius quod nota and so the Iury taken Dyer 318. 10. 15. El. 58. The Earle of Kent being reputed but an Esquire The Earle of Kent brings a Writ of Entry by the name of Esquire and the Pannell was returned now by the Heralds he was then newly declared Earle and thereupon he challenged the Array because there was no Knight in the Pannell but it was not allowed for that there was no default in the Sheriff he being commonly reputed an Esquire 150. Nemo debet rem suam sine facto vel defâ—ctu suo amittere Litt. S. 442. Co. Inst pars 1. 262. b. 1. If a man be disseised and he arraigne an Assize against the Disseisor and the Recognitors of the Assize chaunt for the Plaintiff An Assize and the Iustices of Assize will be advised of their Iudgement untill the next Assize c. and in the Interim the Disseisor dyes seised In this case this dying seised shall not toll the Entry of the Disseisee because the bringing of the Assize amounted to a continuall claime and Nemo debet rem suam sine facto vel defectu suo amittere Note that this is a Quaere in Littleton but is since adjudged for good Law Vide supra M. 149. Ex. 17. Litt. S. 443. Co. ibid 263. b. 1. c. 2. If an Abbot dye and during the vacation Descent tolls not Entry a man tortiously enters into part of the Land belonging to the Monastery and dyes thereof seised and afterwards a new Abbot is elected this Descent shall not toll the Entry of the new elected Abbot because this Entry and Descent was not occasioned by any act or default of or in the new Abbot the Land being during the vacation in abayance and custody of the Law and for that by the death of the former Abbot which is the act of God there was no person able to make continuall claime This is also a Quaere in Litt. It is so likewise of Dean and Chapter Mayor and Comonalty Master and Fellowes of a Colledge or any other Corporation aggregate of many where such a Descent happens when they want their head viz. Dean Mayor Mastor c. for then they are not in a capacity to make claime Also if an Vsurpation to a Church be had in time of Vacation this shall not prejudice the Successor to put him out of Possession but that at the next avoydance he shall present Litt. S.
lessee that he shall not be impeached of waste the lessee may plead this in barr of the action of waste without bringing his action of Covenant Finch ibid. 5 Vpon the grant of a ward with warranty the defendant in a writ of right of ward may rebut the plaintif by that warranty and shall not be driven to bring an action of Covenant upon the grant to avoid circuit of action Finch fo 14. Fr. Edi. 6 One that hath rent issuing out of land disseiseth the terre-tenant Recouper in an Assise by the disseisee the disseisor shall recoup the rent in the damages and the reason is for avoiding circuit of action for otherwise when the disseisee re-enters the action for the arrerages of rent shall be received but Circuitus est evitandus boni Iudicis est lites dirimere ne lis ex lite oriatur Vide Co. l. 5. 31. a. 2. in Coulters case 180 Matter of Vexation And therefore Co. Inst part 1. 127. a. 1. 1 If the demandant or plaintif be non sute Plaintif amerced or judgement given against him he shall be amerced pro falso clamore for vexing and troubling the tenant or defendant without just cause Co. l. 5. 73. b. The case of Orphans 2 If any Orphan of London Oâ—phans which by the custom of that City is under the government of the Maior and Aldermen there sue in the Ecclesiastical Court or in the Court of Requests c. for any goods money or chattels due unto them either by the custom of London or by any devise or legacy in the will of their Ancestor or to have accompt c. In such case a prohibition lyeth because the government of the Orphans of London belongs to the Maior and Aldermen of that City and they have Iurisdiction of them And per Popham if the Lord of a Manor hath probate of testaments within his Manor if any will prove such a will in the Ecclesiastical Court a prohibition lies because the jurisdiction thereof belongs to another And the reason of this is for that otherwise the party might have double vexation and trouble Iudgement drowns a â—oâ—d 3 Where a man hath judgement upon an Obligation Co. l. 6 45. a. 3. Higgens case he shall not afterwards bring an action of debt upon the same obligation against the same party not only because the judgement hath drowned the bond by changing it into a matter of record but likewise for that if he that so recovers might have another new action and another new judgment he might also by consequent have infinite actions and infinite judgements to the perpetual vexation and charge of the defendant and infinitum in lege reprobatur Co. ibid. 46. a. 2. And therefore if a man brings an action of debt upon an Obligation and is barred by the judgement as he so long as that judgement stands in force cannot have a new action Pari ratione when he hath judgement in an action upon the same Obligation so long as that judgement stands in force he shall not have a new action Sure in two Courâ—s 4 If any use the Countenance of Law which was instituted to prevent Co. l. 8. 60. a. 3. in Beechers case and make an end of controversies and vexation for double vexation he shall be fined As if a man sue in the Common pleas and afterwards for the same cause sue the defendant in London or any other Court the plaintif shall be fined for this unjust vexation 9 H. 6. 55. 14 H. 7. 7. And in a Recaption the plaintif shall recover damages and the defendant shall be fined and imprisoned for his double vexation Vide F. N. B. 71. f. m. infra 181. 7. 5 In good discretion no melius inquirendum shall be awarded after office found against the King without view of some Record Co. l. 8. 169. a. 4. in Paris Stroughters case or some other pregnant matter for the King to avoid further vexation of the subject And therefore where upon a Diem clausit extremum it was found that the land was held of the Quéen Dyer 292. pl. 71. 12 Eliz. sed per quae servitia Iuratores ignorant and thereupon a melius inquirendum awarded whereby the tenure was found of a subject and all other points certainly found In this case the first office was adjudged void by the sence of 2 3 E. 6. and the rather because it should give no further occasion of vexing the subject for that the usual course was upon a double Ignoramus to adjudge a tenure for the King in Capite 181 Pendente Lite nihil innovetur Quarâ— Impedâ—t 1 At the Common Law Co. Inst part 1. 344. b. 3. if hanging a Quare Impedit against the Ordinary for refusing the Patrons Clerk and before the Church were full the Patron had brought a Quare Impedit against the Bishop and hanging the sute the Bishop had admitted and instituted a Clerk at the presentation of another In this case if judgement were given for the Patron against the Bishop the Patron might have had a writ to the Bishop and removed the Incumbent that came in pendente lite by usurpation for pendente lite nihil innovetur And therefore at the Common Law it was good policy to bring the Quare Impedit against the Bishop as spéedily as might be Co. l. 115. b. Foliambs case F.N.B. 60 a. 2 In Real actions depending as Formedon dum fuit infra aetatem Estrepment writ of right or the like the demandant shall have a writ of Estrepment to inhibit the tenant from committing waste or estrepment hanging the sute the like writ also may be had after judgement and before execution Vide the Statute of Glocester 6 E. 1. cap. 13. It lyeth also in an action of waste and the words of the writ are Tibi praecipimus quod ad messuagium praed personaliter accedens totaliter ordinari facias quod vastum seu estrepamentum de eodem messuagio contra formam Statuti praedict non fait pendente placito praed indiscusso Co. l. 6. 29. b. 3. 3 In Dyer 339. 17 Eliz. A presentation obtained of the Queen Presentation hanging a Quare Impedit in deceit of the Queen was adjudged void In Greens case F. N. B. 20. c. 4 In a writ of Error after errors assigned and scire facias awarded against the defendant upon such assignment Error the plaintif shall not assign any error in fact as to allege that the plaintif in the other action was dead at the time of the judgement or before the judgement or the like And when the plaintif may assign errors in fact he shall assign but one error of that kind but he may assign as many errors as appear in the record because this shall be tried by the Iustices in Court but that by a Iury which innovation will much delay and prejudice
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
right of Inheritance or Frank-tenement which is supposed originally to commence by Livery shall not be transferred or be extinct without some Ceremony as first by re-entry upon the Disseisor and then by giving Livery or by that which doth tant amount viz. by release or confirmation to him 13 H. 7. 13. 20. c. And therefore it is commonly said in our Books that accord with satisfaction is a good Plea in personal Actions where Damages onely are to be recovered but not in Real Actions Co. l. 4. 55. b. 56. a. In the Case of the Sadlers in London 29 Ass 31. Pierce Partifields case 12 In Pierce Partifields case cited in the case of the Sadlers of London in the 4 Report fol. 55. An office found for the King cannot be quasht but by petition matter of record of as high nature b. it was found by office by force of a Diem clausit extremum after the death of one that held houses of the King in London that the Tenant died without heir whereupon the King grants them to Pierce P. for life who sueth a writ to the Major to put him into possession the Major returnes that the Tenant made his Will and gave them to his wife for her life who was yet in life and seised of the said houses together with one Jo. Digle her then husband P. P. outs Digle and his wife who thereupon bring a Scire facias against P. P. who demands Iudgement of the Writ because in as much as he was but Tenant for life and the reversion was in the King they ought to sue the King which they could not do but by petition And it was adjudged by all the Justices assembled in the Chancery that the Writ should abate and that Digle and his wife should sue by petition because for as much as the Kings Title was found by inquest of office upon oath the Title of the Subject ought also to appear by Record of as high nature viz. by like inquest of office upon oath and not by return of the Major onely for albeit that return be matter of Record yet is it not of so high and great regard in the Common Law as an office found by oath Co. l. 4. 55. a The Case of the Sadlers in London 13 At the Common Law The like when the King was seised of any estate of Inheritance or Frank-tenement by any matter of Record were his Title by matter of Record judicial as attainder c. or ministerial as office or by conveyance of Record by assent as fine Déed inrolled c. or by matter in fact and found by office of Record upon oath as alienation in Mortmaine purchase by Alienée the Kings villein escheat by death without heire c. he that had right could not have any traverse whereupon he might also have an Amoveas manum but was alwayes put to his petition of right to be restored to his Frank-tenement and Inheritance Howbeit he might have his Monstrance de droit and was not forced to his petition when the King was intitled by matter in fact as Villein Mortmaine Escheat Alien c. found by office and by the same office the Title of the party did also appeare as if a Disseisor did alien in Mortmain or to an Alienée or to the Kings Villeine or did die without heire in all these cases the party grieved might have his Monstrance de droit at the Common Law And so are the Books to be understood in 9 E. 3. 51. 13 E. 4. 8. a. 4 E. 4. 21. 33 E. 3. title Travers 36. Co. ibid. 14 It was found by office that T. by the Kings Licence married the Kings Niefe The like and that certaine Lands descended to the same Niefe which the Baron had aliened without the Kings leave his wife being the Kings Niefe to another and for that cause the land was seised whereupon the Alienée comes into the Chancery and sheweth all the case as it was found by office And therefore because all the truth of the case viz. the Niefe maried by his Licence the descent to the Niefe after the Coverture c. did appeare in the Office it was awarded that the Baron for that cause should hold by the Curtesie and that the Feme by his alienation should be put to her Action and thereupon by award the Alienée had restitution The like 15 It was found by Office that I. held of the King 30 Ass Pl. 28. Co. ibid. 56. a. and that M. his daughter and heire was of full age and had Livery and by another Office it was also found that the same I. had another daughter K. which was yet within age whereupon a Scire facias went out against M. and her husband c. who said that the land was given to I. and to his first wife the Mother of M. in taile and that K. was his issue of another wife and so M. sole heire but by award of all the Iudges all the land was seised into the Kings hand because the entaile was not found by any Office but onely that M. was general heire A Noble woman by marriage made ignoble 16 If a Woman be noble as Dutchesse Countesse Baronesse Co. l. 4. 118. b 4 Acton case Co. l. 6. 53. b. 2. The Countess of Rutlands Case c. by descent although she marie under the degrée of Nobility yet her birthright remaines For that is annexed to her bloud and is Character inde lebilis But if a Woman attaine Nobility by mariage viz. of a Duke Earle Baron c. and after the death of her first husband take another under the degrée of Nobility by this last mariage with one that is ignoble she hath lost the dignity unto which she attained by her first marying one of the Nobility for eodem modo quo quicquid constituitur dissolvitur And Quando mulier nobilis nupserit ignobili desinit esse nobilis Ecclesiastical Law founded by the Common Law 17 If it be demanded what Canons Constitutions Co. l. 5. Part 1. 32. b. The case of the Kings Ecclesiastical Law Ordinances and Synodals provincial are still in force within this Realme the answer is that it is resolved and enacted by authority of Parliament That such of them as have béen allowed by general consent and custome within the Realme and are not contrariant or repugnant to the Lawes Statutes and Customes of the Realme nor to the damage or hurt of the Kings Prerogative Royal are still in force within this Realme as the Kings Ecclesiasticall Lawes of the fame Now therefore as consent and custome hath allowed those Canons c. So no doubt by the general consent of the whole Realme any of the same may be corrected inlarged explained or abrogated Writing annulled by writing 18 Although Indentures being made for the declaring of the uses of a subsequent Fine Co. l. 5. 26. a. The Earle of Rutlands
Retraxit cannot be acknowledged by an Attorney Co. lib. 9. 75. b. 4. Combes case 10 There is a diversity betwixt a general and absolute power and authority as owner of the land Surrender by Attorney and a particular power and authority by him which hath but a particular interest as a Copiholder being owner of the land according to the custome may surrender his Copihold land by Attorney but if A. be Tenant for life the remainder in taile c. And A. hath power to make leases for 21 yeares rendring the ancient rent c. he cannot make a lease by letter of Attorney by force of his power because he hath but a particular power which is annexed to his person And so it was resolved in the Lady Greshams case at the Assises in Suffolk 24 Eliz. by Wray and Anderson Chiefe Iustices and Iustices of Assise there Co. lib. 9. 76. a. 1. Combes case 11 Some things are so inseparably annexed to the person of a man Villein that he cannot do them by another as the making of Homage and Fealty So it is holden in the 33 E. 3. tit Trespass 253. that the Lord may beate his Villein for cause or without cause and the Villein shall have no remedy but if the Lord command another to beate his Villein the Villein shall have an action of Battery against him that so beats him Co. Ibid. 12 If the Lord distrain the Cattle of his Tenant Wrongful â—â—â—stresse when nothing is behind the Tenant for the respect and reverence which belongs to the Lord shall not have an Action of Trespass vi armis against the Lord but if the Lord in that case command his Bailiff or Servant to distrain him when nothing is arrear the Tenant shall have an Action of Trespasse vi armis against the Bailiffe or Servant c. 2 H. 4. 4. 11 H. 4. 78. 1 H. 6. 6. 9 H. 7. 14. Fitz. N.B. 25. c. 13 It séems that before the Statutes No Attorney allowed by the common Law which grant that a man may make an Attorney c. the Iustices would not suffer either Plaintiffe or Defendant Demandant or Tenant to make attorney in any suit or in any Court c. because the words of the Writ command the Defendant to appear which ought alwayes to be understood in proper person and at this day also a mans reall suit at a Leet or Sheriffs turne cannot be done by Attorny but ought always to be in proper person c. Howbeit before those Statutes the King by his Prerogative might have granted to a man to make an Attorney in every action or suit as well to the Tenant or Defendant as to the Demandant or Plaintiff and might have directed his writs or letters to the Iustices for that purpose c. F.N.B. 25. d. 14 If the Tenant for terme of life be impleaded in a praecipe quod reddat No receipt by attorney he in reversion may pray to be received to defend his right in default of the Tenant or upon his faint pleading but in this case he cannot pray by his Attorney to be received without a Writ out of the Chancery directed to the Iustices for that purpose upon some cause alleadged in the said Writ c. 22 E. 4. 34. Finch 16. 15 A man cannot excuse himselfe of a contempt as of not serving the Kings processe Answer of a contempt peâ—sonal of rescuing a Prisoner from the Sheriffe or other Officer or the like by Attorney but he ought to appeare thereupon in proper person c. Co. l. 9. 96. b. 4. Sir George Reynels case 16 The office of Marshal of the Marshalsie cannot be granted for years because it is an office of great trust annexed to the person The office oâ— the Marshâ—â— personal concerns the administration of Iustice and the life of the Law which is to kéep such as are in execution in salva arcta custodia to the end they may the sooner pay their debts And this trust is individual and personal and therefore cannot be transferred to Executors or Administrators For the Law will not confide in persons unknown for the ordering of Matters which concern the administration of Iustice c. 45. 6. â—ersonal serâ—â—ce not apâ—ortioned or â—ultiplyed 17 If a man hold land by the personal service of being Sewer Co. l. 8. 105. b. 4. in John Talbots case Carver Butler c. to his Lord or when the Tenant is bound by his tenure Ad convivandum Dominum suum familiam suam semel in anno or ad aequitandum cum Domino suo in Com. N. sumptibus suis propriis vide 10 E. 3. 23. in John de Bromptons case by alienation of parcel of the land the service shall not be apportioned or multiplyed because such services are personal and are to be personally performed by one man only Howbeit purchase of parcel by the Lord shall extinguish them â—ilizers office â—ersonal 18 The office of Filizer cannot be extended upon a Statute Dyer 7. b. 28 H. 8. 10. or Elegit albeit it is a Franktenement for which an Assise lyeth because it is an office of trust and personal â—everal torts â—everal actions 19 An action upon the Case was brought by two Dyer 19. 112. 28 H. 8. for that the Defendant called them two false Knaves and Thieves Here the action was not well brought joyntly for that the wrong done to the one was not the wrong done to the other and therefore they ought to have severed in actions as in case of false imprisonment A thing in action cannot â—e transferred 20 The reason why a thing in action cannot be transfered or granted over to another is because it is so annexed to the person Dyer 26. a 16â— 28 H. 8. 282. 28. 11 Eliz. 300. 36. 13 Eliz. that it cannot be severed from him nor by any meanes prosecuted but in his name as an Obligation Statute Recognizance or the like So if a man hath an Advowson and when it is void the Patron grants proximam nominationem Presentationem Institutionem cùm primò proximè vacuerint In this case the Grantée shall not have that Presentation because it is a thing in action which the Patron could not transfer but the next to it he shall have which was the first that could be granted 45 They cannot be granted or transferred over as matters of pleasure ease trust and authority To hunt way â—o dyet c. 1 A licence to hunt in my Parke to go to Church over my ground 12 H. 7. 25. 7 H. 4. 36. to come into my house to eat and drinke with me cannot be granted over So of a way granted for life over my ground Finch 17. Personal offices of trust 2 The Patentée for life of an office of trust 11 E. 4. 1. as to be a Chamberlain of the
formal attornment because the Baron cannot attorn to himselfe and his wife in his wives right yet his acceptance of the déed is a good attornment in Law to vest the services in the Feme and her heirs but during the coverture they are suspended c. Grant of the Seigniory to tenant for â—ife of the tenant 11 If there be Lord and Tenant Littl. §. 562. Co. ib. 314. a. 1 and the Tenant make a lease to a man for terme of his life saving the reversion to himselfe Here if the Lord grant the Seigniory to the Tenant for life in fée albeit as to all things concerning the right the Seigniory hath his being as if the Tenant die without heire the tenancy shâ—ll escheat to the Grantée c. yet as to the possession during the particular estate the Grantée shall take no benefit of the Seigniory and therefore during that time he shall have no Rent Service Wardship Reliefe Heriot or the like because these duties belong to the possession and he cannot do or pay them to himselfe Remitter 12 The principal cause Littl. Sect. 661. Co. ib. 349. a. 4. Littl. 665. Littl. 680. 682 683 684 c. why a Tenant in taile in many cases is remitted is because as Littleton saith there is no person against whom he may sue his Writ of Formedon for none is Tenant of the Franktenement but himself and against himself he cannot sue c. There is the same reason also of other Remittâ—rs Finch 19. Co. l. 33. a. 3. in the Marq. of Winchesters case Voucher asâ—ignee 13 If a man make a feoffment in fee to A. his Heirs and Assignes Co. ib. 385. b. 2. A. enfeoffeth B. in fée who re-enfeoffeth A. he or his Assignes shall never vouch because he cannot be his own Assignée but if B. had enfeoffed the heire of A. he might vouch as Assignée for the heire of A. may be Assignée to A. inasmuch as he claimeth not as heire Warranty 14 If Tenant in taile make feoffment to his Vncle Co. ib. 389. b. 3. 390. a. 1. Littl. Sect. 743. and after the Vncle make a feoffment in fée with warranty c. take again an estate to him in fee and then enfeoff a stranger without warranty and die without issue and the Tenant in taile die Here the issue in taile shall not be barred by the warranty made to the first Feoffee because that warranty by the Vncles resuming an estate in fee of the land is utterly defeated For if the warranty should have stood in force then should the Vncle have warranted it to himselfe which could not be c. â— selfe act â—â—id 15 A man cannot present himselfe to a Benefite Finch 19. 8 H. 6. 29. 3 El. Dyer 188 make himselfe an Officer sue himselfe or summon himselfe and therefore if a Sheriffe suffer a common recovery it is Error because he cannot summon himselfe Finch 19. 16 A man cannot be judge and party in a Suit No Judge of two Beâ—châ— at once And therefore if a Iustice of the Common Place be made a Iustice of the Kings Bench though it be but hac vice it determineth his Patent for the Common Place for if he should be Iudge of both Benches together he should control his owne judgments because if the Common Pleas erre that error shall be reformed in the Kings Bench. Co. l. 1. 174. a. 3. Diggs case 17 If a man by Indenture covenant to stand seised to the use of himselfe for life the remainder to others in tail The Feoffâ—â— in without 〈◊〉 try or claâ—â— c. and also reserve unto himselfe power of revocation and doth revoke the uses accordingly immediately upon such revocation the uses so limited are determined without entry or claim because he himselfe was Tenant for life of the land and he cannot enter or make claim upon or against himselfe c. And therefore it is agreed in the 20 E. 4. 18 19. that if a Feoffment be made upon collateral condition and before condition performed the Feoffée demiseth the land to the Feoffor if after the Feoffor perform the condition the land shall be immediately in the Feoffor without entry or claim because he himselfe is already in possession thereof So likewise if a Villain purchaseth rent issuing out of the Lords land that rent shall be in the Lord without entry or claime causa qua suprà Co. l. 2. 51. b. 4. Sir Hugh Cholmleys case 18 It is holden in 7 E. 3. that if the Advowson of the Church of Dale be granted to the Parson of Dale and to his Successors None can present hiâ— self this is void as to the Successor because the Successor can never take any benefit thereof by way of presentation for he cannot present himself c. Co. l. 4. 55. a. 1. The Sadlers case 19 In all cases at the Common Law No traâ—â—â— or action against the King when the King was seised of any estate of Inheritance or Franktenement by any matter of record he that right had could not by the Common Law have any travers or real action upon which he might have an Amoveas manum for that the King by his Writ could not command himselfe but he was put to his Petition of right in the nature of his real action to be restored to his Franktenement and Inheritance 4 H. 6. 12. 24 E. 3. 23. 1 H. 7. 3. 4 E. 4. 21. 9 E. 4. 52. Co l. 8. 68. b. 3. John Trollops case 20 If a Bishop himselfe be sued Bishop Eâ—communiâ—â—on and he pleads in disability of the party Plaintiff excommangement by himself or his Commissary who is as his Deputy albeit it be for another cause than that in question yet that shall not disable the Plaintiff because in this case the Bishop himselfe is party and with this agrées 16 E. 3. Excom 5. 5 E. 2. Excom 27. 5 E. 3. 8. 8 E. 3. 69. 18 E. 3. 58. 9 H. 7. 21. b. 10 H. 7. 9. Co. l. 8. 118. a. 1. Doctor Bonhams case 21 The President and five elect of the Colledg of Physitians in London ought not to be Iudges to give Sentence or Iudgement Judge and party Ministers to make summons and parties to have the moity of the forfeiture albeit they have an Act of Parliament to protect them viz. 14 H. 8. cap. 5. For Nemo debet esse judex in propria causa imò iniquum est aliquem suae rei esse judicem Co. ib. 118. b. 3. 22 If an Act of Parliament grant to any to hold or have Conusance of all manner of Pleas arising before him within his Mannor of Dale The like yet he shall hold no plea wherein himselfe is party For Iniquum est c. Co. 9. 123. b. 4. Anthony Lowes case 23 The Duchie of Lancaster before it was united to the Crown Duchy
is attainted of Felony the bloud on his part being corrupted the sonne as it séems to him hath but halfe the inheritable blood in him without corruption viz. the bloud of the mother and therefore he holds that such a sonne shall not be inheritable no not to his mother And with this agrées Bracton lib. 3. cap. 13. Non valebit felonis generatio nec ad hereditatem paternam vel maternam Si autem ante feloniam generationem fecerit talis generatio succedit in haereditatem patris vel matris a quò non fuerit felonia perpetrata because at the time of his birth he had two lawful blouds commixed in him which could not be corrupted by the attainder subsequent but onely as to him that offended See more of this matter Co. Inst pars 1. 8. a. Co. l. 11. 39. a. 4. in Metcalfs case 2 In an action of Accompt upon the judgement quod Computet No writ â—â—or befoâ— whole â—ment câ—â—pleated before the final judgement given for the arrerages and damages a writ of Error lyeth not for in that writ these words Si judicium inde redditum sit c. are meant not onely de principali judicio but also de integro judicio viz. When all the matter within the original is determined as in 34 H. 6. 18. in Humphrey Bohuns case in a Quare Impedit brought against two the one pleads to issue and the other confesseth the action upon which confession judgement is given and he against whom the judgment was given sues his waie of Error to remove the record into the Kings Bench but Prisot and the whole Court denied it because the writ of Error was to rehearse all those which were parties to the original writ and then the writ saith Et si judicium inde redditum sit tunc Recordarium illud habeatis c. By which it appears that the record shall not be removed by writ of Error before the whole matter be determined 〈◊〉 like 3 A writ of Trespasse is brought against two Co. ibid. b. 1. and the one appears and pleads so that he is attainted of the trespasse and judgement is given against him In this case the Defendant shall not have a writ of Error before the matter be likewise determined against the other c. The Lord Cromwels case against Cawary and others per Prisot tempore H. 6. 〈◊〉 like 4 In trespasse by the Lord of S. against one for his Cattle taken Co. ibib b. 2. 32 H. 6. 5 6. b. as to parcel the Defendant pleads not guilty and as to the rest he pleads another plea whereupon the Plaintiff demurs and after the issue was found for the Plaintiff upon which he had judgement In this case the Defendant shall not have a wait of Error until the whole matter be determined c. 〈◊〉 like 5 A man cast in a writ of Error upon a Iudgement given Co. ibid. b. 3. 39 H. 6. Error 11. where the judgement was given of the Principal and damages but not of the Costs Howbeit the writ was rejected because the writ is conditional Si judicium inde redditum sit c. 〈◊〉 like 6 In Formedon brought by Fitz-williams against Copley Co. ibid. b. 3. 12 Eliz. Dyer 291. the Demandant hath judgement of part c. And after the Tenant brings a general writ of Error before the discussion of the residue earnestly desired that the record might be removed into the Kings Bench but the Court would not grant it before the whole matter in demand should be determined for the Iustices of the Kings Bench should procéed without warrant if they should procéed upon a matter which is not determined and whereupon no judgement is given and the whole record ought to be either in the Common Pleas or in the Kings Bench also the original is intiâ—â— and cannot be here and there too c. 〈◊〉 Impe. 7 The next Advowson is granted to two Dyer 279. 8. 11 Eliâ— who joyn in a Quâ—â—e Impedit the one dies this shall cause the writ to abate 〈◊〉 not inheâ—blâ— 8 Baron and Feme being Donées in special tail Dyer 332. 27. 16 Eliz. the Baron is attainted of treason and executed having issue the Feme dies the issue shall not have the land for he ought to make his conveyance by both per Curiam â—ard 9 If an award be made for the performance of divers things on one side and nothing to be performed on the other it is a lame award Hob. 49. Nichol's case and void according to the book of 7 H 6. 10 A. brings an action of trespasse against B. C. and D. B. pleads not guilty whereupon issue was joyned C. and D. make a justification â—ob 70. Parkers case and thereupon after a replication a demurrer was joyned Hanging this demurrer the issue was tried against B. and damages given and judgement against him after which judgement the Plaintiff entred a Nolle prosequi against the Defendant C. and D. whereupon Error was brought by all the Defendants against the Plaintiff and the Error assigned was for that the Nolle prosequi had discharged all the Defendants but it was held that the Nolle prosequi against C. and D. had not discharged B. and so no error neither yet should C. and D. have joyned in this writ of Error because there was no judgement against them nor they grieved and the writ of Error is Ad grave daâ—â—um c. 68 Ex tota materia emergat Resolutio Co. l. 3. 59. b. 1. in Lincoln Colledg case 1 It is the office of a good Expositor of an act of Parliament to make construction of all the parts together Discontinâ—ance by the husband of 〈◊〉 wives land and not of one part alone by it selfe Nemo enim aliquam partem rectè intelligere possit antequà m totum iterum atque iterum perlegerit For example albeit the first branch of the Stat. of 11 H. 7. c. 20. makes the discontinuance alienation warranty and recovery made by the wife of the Inheritance of her deceased husband to be utterly void and of none effect Yet the clause following being joyned to the first with this conjunctive And that it shall be lawful for any person c. to whom the said Inheritance c. shall appertain to enter c. doth cléerly expound the generality of the words of the precedent branch And therefore the sense of both together is that they shall be void and of none effect by the entry of him unto whom the interest title or inheritance after the decease of the Feme doth appertain Howbeit they shall not be void but stand in force betwéen the parties themselves and against all others save onely against such as have title c. and they onely have power to make them void and of none effect by their entry as aforesaid For estates of Franktenement or Inheritance
before the more remote though great estate in fée c. And with this accords 24. E. 3. 32. in Pierce Grimsteads case Co. l. 11 99 a. 4 in James Baggs case 5 If a Major and Aldermen of a Town corporate Upon a faâ— return the Court caâ—â—â— proceed which have power by Charter or presciption to dis-infranchise do dis-infranchise one of their members and upon motion in the Kings Bench the Iudges there do award a writ unto them to restore him or otherwise to signiffe the cause c. and they certifie sufficient cause to remove him but it is false In this case the Court cannot thereupon award another writ to restore him neither yet can any issue be taken thereupon because the parties are strangers and have no day in Court Howbeit the party grieves may well have an Action upon the special matter against those that made the certificate and aver that it is false And if it be found for him and he obtain judgment against them so that if may appear to the Iustices that the causes of the return are false then shall they award a writ of restitution and not before and this is proved by the reason of the Book in 9. H. 6. fol. 44. where it is holden that upon a Corpus cum causa if the cause returned be sufficient but indéed false the Court ought to remand the prisoner and he is thereby put to no mischief for if they had no authority to imprison him or that the cause certified be false he may have a Writ of false Imprisonment against them c. Vide Fitz. Tit. corpus cum causa p. 2. the case of 9. H. 6. well abridged F. N. B. 19. i. 6 In a Writ of false Judgment upon a Writ of right patent No errour bâ—fore all câ—â—fied c. or a Writ of right close the plaintiffe shall not assign his errors before all the Record be certified viz. not onely the original but likewise all the residue of the Record F. N. B. 20 e. 22 f. 7 In a Writ of Error when the Record is removed When erroâ— are to be â—signed the Plaintiffe shall assign his Errors before he shall have a Scire facias against the Defendant ad audiendum errores c. Howbeit he shall have a Scire facias before the Record shall be entred for it shall not be entred before the parties have day by the Scire facias c. F. N. B. 38. o. 8 Vpon a Quare Impedit if the Sheriff return tardè and the Defendant appears and the Plaintiff is demanded and comes not in Upon a 〈◊〉 return no 〈◊〉 to the Bishâ—p in this case the Defendant shall not have a Writ to the Bishop c. because no Writ was served against him for he ought to have the Writ served against him before he can have that priviledge c. F. N. B. 39. e. 9 When a man sues a Quare Impedit against another A Certificâ— of an accâ— before 〈◊〉 admittaâ— and after they hanging the suit he sues a ne admittas to the Bishop c. and after they accord in the Co. Pl. to present by turn to that advowson in this case a special Writ shall issue out of the Chancery to the Bishop to admit the Clerk of him who ought by that accord and composition to present to the first turne but first the King ought to send a Certiorare to the Iustices of the Com. Pl. to certifie him in his Chancery of the accord there and upon that Certificate the King shall send his Writ to the Bishop as aforesaid c. A Writ de secunda super oâ—eratione 10 In a Writ de admensuratione pasturae F. N. B. 126. 1. all the Commoners shall be admeasured viz. as well those that were not parties to the writ as those that were but yet if any of them which where not parties c. surcharge the Common after admeasurement they shall not forfeit their cattel nor yet the value of them which were in the pasture above the due number because they were not parties to the first writ neither shall the party that complains recover dammages against them in that writ for such surcharge for a writ de secunda super oneratione lieth not save onely against him against whom the first Writ was sued c. 11 In an Assise of Fresh-force in London against Jekef Foxley and Agnes his wife Matter of fact first to be found and then that in Law to be resolved and eleven other whereof ten appeared by Baily Pl. Co. 91. a. 1. in the Case of the Fresh-force in London against Foxley and others and plead No such Agnes the wife of Foxley in rerum natura and demand judgment of the plaint quod inquiratur per Assisam si c. Nul tort nul diss c. and the others plead the same plea by Attorney And the Plaintiffes as to the plea in abatement of the Plaint demur in law and as to the other plea they pray the Assise And whether the writ should abate or not was argued at Guild-hall by the Councel of both parts before the Assise was taken but afterwards the Councel of the Plaintiffs perceiving that the matter was argued before time for the Assise ought first to have inquired all the matter and if they had found the exception and had also found a disseisor and tenant then would it have been time to have disputed what the Law have determined in that case and not before they therefore prayed the Court when the Assise was sworn that they might first inquire of the matter pleaded in abatement of the Plaint which was done accordingly c. for the course formerly run was preposterous and not suitable to such orderly procéeding as the Law requires And so it was found that there was no such Agnes c. and yet the writ did not abate for the rest c. 75 A digniori fieri debet Denominatio Resolutio Quod ei deâ—rceat for teâ—ant in Dowâ—r and by the â—ourtesie 1 It hath been a question in our Books Co. Inst p. 1. 353. a. 4. whether upon a Recovery had by default in an Action of Wast against tenant in dower or by the Courtesie a Quod ei deforceat lyeth by the Statute of West in cap. 4. For some have holden that in an Action of Waste although it be brought against a tenant in Dower or by the Courtesie that have a Frée-hold yet the damages are the principal because they were recoverable against the tenant in Dower and by the Courtesie by the common Law and the Statute of Glocester gave the place wasted but for a penalty so as the nature of the Action say they remaineth still to be personal for that the dammages are the principal c But the best opinion is conceived to be that albeit in that Action the dammages may be the more
shall as King sue execution Queen Conusance 50 The Act of the 35 H. 8. Co. ibidem which concerns the Capacity of the Quéen was such an Act whereof the Iudges ought to take Conusance because it concerned the Kings Wife as it was resolved in the Lord Barkleys Case Pl. Co. 231. â—dges â—rciaments 51 There are some persons which shall not be amerced Co. l. 8. 61. b. 4. in Beechers Case and therefore by consequence shall finde no pledges as the King and also the Quéen who as to that participates of the Kings Prerogative F. N. B. 31. f. 47. c. 101. a. 18 E. 3. 2. Br. amerciament 53. â—endment â—f a writ 52 An Original writ by the Common Law was not amendable in the case of a common person for which sée 13 E. 3. Tit. Amendment 63. Co. l. 8. 156. b. 2. in Blackamores Case which was before any Statute made concerning Amendment c. And 16 E. 3. tit Variance 59. and 29 E. 3. Amendment 68. But in the Kings Case in a Quare Impedit where the Quare Impedit was praesentere for praesentare and after exception taken to it and before answer by the advice of the Chancellor out of which Court that writ issued and of the Iustices of the Kings Bench the writ was amended in the Chancery and the defendant was made to answer thereunto by award Vide 4 H. 6. 16. 40. Ass Pl. 26. â—e Kings â—arter shall 〈◊〉 interpreted 〈◊〉 fulfil the â—gs intent 53 When the Kings Charter may be taken to two several intents Co. l. 8. 167 a. 4. in the Earl of Cumberlands Case and both intents are of effect and good in many Cases it shall be taken to such an intent as shall be most beneficial for the King but if it may be taken to one intent of effect and good and to another intent void and of no effect it shall then be taken and construed to such an intent as that the Kings Grant may take effect and that in judgment of law shall be understood to stand with the Kings intent for it was not his intent to make a void Grant And with this agrées the Book in 21 E. 4. 44. In the Abbot of Walthams Case and the resolution in the Earl of Cumberlands Case in the 8 Report 167. where the Case was that E. 2. granted the Castle of Skipton to Robert de Clifford in tail and H. 6. grants to Thomas Lord Clifford Cosin and Heir of the body of Robert the reversion of the said Castle necnon Castrum c. Here the Kings intent appeared to be that Thomas Lord Clifford should have all his Estate in the Castle And therefore whether it be taken to be a grant of the Reversion in case the former grant in tail was good or of the possession in case that former grant was void it is not material in regard it appears clearly by the expresse words of the Charter that the King intended he should have it in possession either the one way or the other So if the King grant Totum illud Manerium sive firmam de D. or totam illam Rectoriam sive Advocationem de D. In this Case also whether the King hath a Mannor or else a Farm and no Mannor or a Rectory Impropriate or else an Advowson and no Rectory that which the King hath passeth for the effect of the Grant is that be it Mannor or Farm Rectory Impropriate or Advowson that which the King in truth hath passeth by the Grant Co. l. 9. 38. b. 3. in Hensloes Case 54 Of ancient time before the Statute of 31 H. 3. cap. 11. Goods of an Intestate when a man died intestate and did make no disposition of his goods nor committed his trust to any in that behalf In that Case the King who as Parens Patriae hath the supream care to provide for all his Subjects to the end every one may injoy that which he ought to have did use by his Ministers to seise the goods of the Intestate to the intent that they might be preserved and bestowed for the burial of the dead for the payment of his debts for the advancement of his wife and issues if he had any and if not then of those of his blood And this appears in Rotulis Clausis de 7 H. 3. M. 16. Bona Intestatorum capi solebant in manus Regis Ordinaries c. And afterwards this care and trust was committed to Ordinaries for there could be found none more fit to have such care charge of the Intestates transitory goods after his death then the Ordinary who all his life had or at least ought to have had the care and charge of his immortal soul as it is said in Pl. Co. 280. in Greisbrooks Case And therefore the Ordinary was in that respect appointed in loco parentis And this appears also by the construction of John Stratford Arch Bishop of Canterbury at a Synod in London Anno Domini 1380. where he confessed that the Administration of the goods of an Intestate was granted to the Ordinaries Consensu Regis Magnatum Regni c. Co. l. 9. 49. a. 1 in the Earl of Shrewsbury's Case 55 If the King grant the Office of Stewardship of the Mannors of D. and S. to an Earl without power to make Deputies Stewardship neverthelesse in respect of the meannesse of the Office in a base Court and of the dignity of his Person being an Earl it is implied in law for conveniency that he may in that Case make a Deputy for whom he ought to answer so that no prejudice may happen to the King And his Deputy shall execute Officium laboris as to hold a Court Baron and to enter Pleas Surrenders c. And néed requires in Cases of difficulty or which concern the Kings profit the Earl shall execute Officium fiduciae Bracton lib. 1. cap. 8. scientiae ingenii For Comites dicuntur à comitando quia comitantur Regem Comites à comitatu sive à societate nomen sumpserant qui etiam dici possunt Consules Reges enim tales sibi associant ad consuetudinem And that was the greatest title of Honour that was from the Conquest until the 11 of E. 3. when the Black Prince was created Duke of Cornwal and those which of ancient time were created Earls were of the bloud royall And even unto this day the King in all his appellations stiles them Per nomen charissimi consangninei nostri for which causes the Law giveth unto them high and great priviledges And therfore their bodies shall not be arrested for debt trespasse c. because the Law intends that they assist the King with their Counsel pro bono publico and kéep the Realm in safety by their prowesse and valour And for the same reason it is that they shall not be put upon Iuries albeit that be for the service of the County
Crown that in the Kings Case they shall go with the Crown to the successor and not to executors as in case of common persons as appears in 7 H. 4. 43. and 44 E. 3. 42. Neither yet doth every warrant serve for the issuing of the Kings treasure for it cannot be done by Parol or by the privy Signet but ought to be done under the Great Seal or Privy Seal It was also further resolved in this Case that albeit Sir VValter had thus received the Quéens treasure to his own use yet inasmuch as he received it without lawful warrant he knowing that it was the Quéens treasure the Law makes privity in the Quéens Case and therefore she might charge him as an Accomptant And so it was also adjudged in the Exchequer in Jurdens Case P. 31. Eliz. Rot. 150. Neither yet is it of necessity that the Kings money or goods should come into the hands of the Testator for if he were onely a mean or Instrument whereby the King was put to loss or damage he shall be charged with so much as he hath so endamaged the King and shall be compelled at the Kings Suit reddere rationem thereof which is in nature of an Accompt for which there is a notable president in M. 30. E. 3. Rot. 6. Porters Case which sée in Co. l. 11. 92. b. in the Earl of Devonshires Case And therefore it was also resolved in Sir VValter Mildmayes Case that the Quéen might either charge the executors of Sir VValter or those that made such unlawful warrant at her election And if they were dead their executors c. for in as much as they were in their life-time chargeable by the Law in that Case if they die before judgement against them without question their executors shall be charged because where the Testator is by the Law chargeable to satisfie the King for losse or dammage done unto him his death shall not dispence therewith but that his Executors shall be also chargeable to the King c. F. N. B. 5. l. 65 In a Praecipe in Capite the Tenant shall not plead Protestaâ—â— that the Tenements are not holden of the King albeit the writ supposeth as much but he ought to take it by protestation and to plead other matter in barre if he have any matter to plead â—ender Di. â—ark 66 In a writ of Right F. N. B. 5. m. the Demandant ought to count of his own seisin or the seisin of his Ancestor c. yet the seisin is not traversable but the tenant may tender a Di. mark to enquire of that seisin c. and if it be found with the tenant that the Ancestor was not seised the Demandant shall be barred Howbeit if the King be party Demandant the Tenant shall not tender a Demy Mark to enquire of the seisin but he ought to plead in bar and there the tenant shall not imparâ— without the assent of the Kings servants The King may â—â—cuse appeaâ—â—nce 67 The King by a writ de warrantia diei may command the Iustices to excuse the Defendant of appearing at the day F. N. B. 17. b. whereunto he was adjourned to appear in proper person And whether the Cause alledged in the writ be true or false it is not material when the King certifies that he is in his service for it séems by the words of the writ that the King by his Prerogative may warrant that default for a day And so also it séemes that if the tenant in a Praecipe quod reddat at the great Cape or petit Cape returned make default that before judgment upon that default the King may command such a writ to the Iustices rehearsing that the tenant was in his service c. and commanding them that his default should not turn to his prejudice And it stands with reason that the King may do it because every one is bound to serve the King in his affairs c. â—â—nipresence 〈◊〉 his Courts 68 If false Iudgment be given for the King in any Action or Suit F. N. B. 21. b. 107. q. Finch 81. the party grieved shall have a writ of Error and assign Errours without suing any Scire facias against the King ad audiend errores because the King is alwayes present in Court and that is the cause that the form of Entry in all Suits for the King is Edvardus Herbert Miles Attornatus Domini Regis generalis qui pro domino Rege sequitur venit hic in Curia c. And doth not say Dominus Rex per Edvardum Herbert Attornatum suum c. And therefore it is also that the King cannot be Non-suit that all Acts of Parliaments that concern him are general and the Court must take notice of them without pleading them for he is in all and all have their part in him c. â—ake Attorâ—ys 69 It séems that before the Statutes which ordain F. N. B. 25. c. e. â— 26. a. that a man may make Attorneys c. the Iustices neither would nor could suffer the Plaintiffe or Defendant Demandant or tenant to make Attorneys in any Action or Court whatsoever yet the King by his Prerogative even before those Statutes might grant to a man power to make Attorneys and by his Writs or Letters might command the Iudges to admit and receive them c. and that without any cause shewed in the writ c. â—â—e King canâ—â—t be Jointâ—ant 70 In the Register there is the form of a writ F. N. B. 32. g. wherein a common person is joyned with the King in a Quare Impedit which runs thus Rex vice comiti c. praecipe R. de C. quod justè c. permittat nos P. de T. praesentare c. But Fitz. saith in his N. B. that the common opinion in his time was that the King should have the whole presentment sole and should have a sole Action c. although he séems to hold the contrary himself Ideò quaere â—sent again 71 If the King recover by a Quare Impedit F. N. B. 34. f. and after ratifie the Estate of the Incumbent yet at the next avoidance the King shall present because the Recovery and Iudgement for him were not executed â—â—â—sent by 〈◊〉 72 In a Frée Chappel of the Kings F. N. B. 34. â— where the Dean ought to give the Prebends if he make not collation within six moneths unto them then shall the King present unto them by Laps as Ordinary F. N. B. 34. k. 73 If the Bishop make collation and die before induction Not inducted or instalment and the King seise the temporalties he shall have that presentment because the Church is not full against the King until the Parson or Prebend be inducted or installed F. N. B. 35. a. 74 If the Kings tenant hath title to present to an Advowson Advowson Ward Present which is void
King hath an Interest in the Land or shall lose Rent c. or services then the Court ought to cease until they shall receive a procedendo in loquela from the King c. F. N. B. 154. d. e. 85 If the King by his writ certifie the Iustices Justices to surcease upon the Kings Certificat that the Lands are in his custodie by reason of the nonage of some heire taken by Inquisition and returned into the Chancery commanding them that they shall not procéed Rege Inconsulto In that Case it séemes that the Iustices ought to cease for the present albeit there be no such Office found nor returned for they are bound to give credit to the Kings certificate albeit that it be not true c. And in Assise de Novel disseisin if the King send his writ to the Iustices that the Defendant holds the Land put in view of the Kings gift for term of life by the Kings Charter commanding them not to procéed Rege Inconsulto here although the Tenant will not plead this yet it séemes that the Iustices ought to cease by that writ So if the King rehearse in the writ that the Tenant is in his service in warre beyond Sea or in Scotland and that he holds by Charter of the Kings grant for term of life commanding that they shall not procéed Rege Inconsulto but to continue the Assise untill a certain day there also it séems they shall surcease Because the Tenant cannot plead it for if the Escheator will say that he seised the Land into the Kings hand in an Assise brought by any person the Court shall surcease for that saying and by force of the Kings Certificate c. F. N. B. 106. c. 86 Men and Women of Religion are to be excused from appearing at the Sheriffs turne or at Leets unlesse it be for some great cause Men of Religion And if they be distrained to come unto them they may have a writ De exoneratione sectae c. out of the Chancery to discharge themselves of such service c. F. N. B. 159. c. 87 If Land descend to Coperceners Suit of Copeceners for which onely one suit ought to be done In this Case if the Land be holden of the King then all the Coperceners ought to make a suit as well after the partition as before But if the Land be holden of another Lord then the eldest Sister or her Feoffée shall onely make the suit c. And if the Lord do distraine the other Coperceners for that suit they shall have a writ De exoneratione sectae c. to discharge themselves of it c. Pl. Co. 76. b. in The Lord Willoughbies Case 88 If the King direct his writ Coronatoribus in Com. L. this is to be understood in the Kings Case Coronatoribus de Com. L. for the Kings writs in such Cases The Kings Writ will admit a favourable construction for the fulfilling of the Kings full intent c. Finch 81. 89 For the Kings prerogate see Finch 81. c. and elswhere throughout his whole Book under the several heads when there is any difference betwéen this Case an that of a subject Finch 83. 90 The King never dieth Demise Le Roy. but in Law it is said the demise of the King and a gift unto the King without more trencheth to his Successors 91 The particular prerogatives due to the King by the Common Law may be for that most part referred to one of the eight heads hereafter following notified in the outward margent by their several and respective letters as followeth 1 Divine perfection A 2 Infinitenesse B 3 Majesty C 4 Soveraignity power D 5 Perpetuity F 6 Justice G 7 Truth H 8 Omniscience I Ideot 92 Because every subject is by Law in the protection of the King Co. l. 4. 126. a. 2. in Beverleys Case who therefore is of right bound to defend his subjects persons and Estates and for as much as an Ideot is not able to governe himselfe or order his Estate The Law of England hath provided the King to be his Tutor to Govern and order both his person and Estate For the Statute of Praerogativa Regis made in the 17 of E. 2. cap. 9. was nothing else but a declaration of the Common Law c. Rent reserved 93 It is a Maxime in Law that the Rent must be reserved to him Co. Inst p. 1. 143. b. 4. from home the State of the Land moveth and not to a stranger but some do hold that it is otherwise in the Kings Case Upon a joint purchase tenement in common 94 If Lands be given to A. de B. Bishop of N. and to a secular man Co. ibid. 190. a. 4. to have and to hold to them two and to their heires In this Case they are joyntenants For each of them take the Lands in their natural capacity But if Lands be given to the King and to a subject to have and to hold to them and to their heires yet they are Tenants in Common and not Ioyntenants For the King is not seised in his natural capacity but in his Royal and Politique capacity in Jure Coronae which in respect of the Majesty of his Kings Person cannot stand in jointure with the seisin of a subject in his natural capacity And therefore if there be two joytenants and the Crowne descend to one of them the joynture is thereby severed and they are become Tenant in Common c. Grant in Mortâ—aine 95 It appeareth by Littleton § 140. Co. ibid. 99. a. 3 which my Lord Coke saith is a secret in Law that in the Kings licence to grant land to a Corporation there needs not any non obstante of the Statutes of Mortmaine for the King shall not be intended to be mis-conusant of the Law and when he licenseth expressely to alien to an Abbot c. which is in Mortmaine he needs not make any non obstante of the Statutes of Mortmaine for it is apparent to be granted in Mortmaine and the King is the head of the Law and therefore praesumitur Regem habere omnia Jura in scrinio pectoris sui for the maintenance of his grant to be good according to the Law Descent of â—etrage to Feâ—ales 96 When an Earldome or Baronie descends to one Daughter or other heire Female she shall solely enjoy both the Dignity and Lands Co. ibid. 165. a. 3. but where it descends to more heirs Females then one the Lands shall be divided as amongst other Coperceners Howbeit in that Case the dignity cannot be divided neither shall the Eldest have it as to be a Countesse Baronesse c. But in such case the King who is the Soveraigne of Honor and Dignity may for the uncertainty conferre it upon which of the Daughters he please this is to be intended when the Ancestor dies seised of Peerage in Fée-simple
Bedfords case 29 When a Subject is Guardian in Chivalry Voidable Leases he in the right of the heir within age and in his Guard shall avoid voidable Leases for so long time as he hath interest in the Lands by reason of the Wardship but this shall not prejudice the Heir of his election to make the Leases good by acceptance of the Rent c. when he shall attain his full age For Custos statum haeredis in custodia sua existentis meliorem non deteriorem facere potest The Law is also the same when the King is Guardian c. Co. l. 861. b. 4. in Beechers ca. 30 Infants shall not be amercied Amerc Pledges and consequently shall not finde pledges by reason of the weaknesse of their age And therefore in that Case the entry is Ideo in miserecordia sed perdonatur quia Infans Vide 43 Ass Pl. 45. 44 E. 3. tit Amerc 10. 3 E. 3 Enfant 14. 14 Ass Pl. 17. 41 Ass Pl. 14. 17 E. 3. 75. Bracton fol. 254. F. N. B. 195 h. Co. l. 8. 99. b. 4. in Sir Richard Letchfords cas 31 A Custome that the Lord shall seise Copiholds after thrée Proclamations at thrée Courts and non-claim by the heir Copiholds Proclamation Non-claim c. shall not binde the Heir that is beyond Sea extra Maria at the time of the Proclamations made so it is also of an Infant non compos mentis or one in prison because in judgment of Law they are not bound to make claim neither yet by intendment can they have notice thereof for if these four persons were excused by the Common Law though they made not claim within a year and a day after a Fine levied or a Recovery in a writ of Right being matters of record and of extraordinary high esteem in the Law so that they were not barred of their right notwithstanding their non-claim A Fortiori shall not Proclamations made in a base Court and in a private corner be any bar unto them c. Vide 5 E. 3. 222. and 7 E. 3. 335. Also if in a real Action a Recovery by default be had against a man in prison it shall not binde him but he may reverse it by writ of Errour as appears 5 E. 3. 50. b. 4 E. 2. Disceit 51. Littleton 102. b. Co. l. 9. 76. b. 4. in Combes case 32 Where the custome is Custome Feofment Age 15. that an Infant at the age of 15. may make a feofment he cannot do it by Attorney because the Custome that inables any person disabled by the Law ought to be pursued and an Infant cannot make any thing to passe out of him by Attorney Vide 11 H. 4. 33. Co. l. 9. 85. a. â— in Connys case 33 Albeit the tenant of a Mannor that is within age may be distrained for rent arrear and neither in that Case Distrain per quae serviâ— nor in a per quae servitia brought against him when the tenancy descends shall have his age because at first the Lord departed with the land in consideration that the tenant should hold of him pay his rent do his services c. And although upon grant of the Mannor by Fine he may be compelled to Attorn in such a writ and if he Attorn upon grant thereof in pais the Attornment is good yet in a writ of Customes and Services which is a writ of Right in his nature A writ of Custom Serv. Age. and in which Iudgement final shall be given against an Infant that is in by descent he shall have his age although it be upon his own Cesser because he knoweth not what arrerages to tender before judgement and that is a writ of right in his nature and if he make not true tender he shall lose the land And so it was adjudged in 28 E. 3. 99. Vide 9 E. 3. 50. 14 E. 3. Age 88. 31 E. 3. Age 54. 2 E. 2. Age 132. And albeit such an Infant do attorn in a Per quae servitia Attornment that can be no mischief unto him for notwithstanding his Attornment within age he may at his full age disclaim to hold of him or may say that he holds not of him or may acknowledge he holds of him but by lesse or other services And with this seems to accord 26 E. 3. 63. 32 E. 3. Per quae servitia 9. and Age 33. Vide 2 E. 2. Age 77 78. 37 H. 8. Attornment Br. Quid Juris clamat 34 In a Quid Juris clamat brought by an Infant the tenant saith 43. E. 3. sol 5. 32. E. 3. cited per Coke Ch. Justice l. 9 85 b. 2. in Connys Case that he holds the land for term of life of a Lease of the Infants Ancestor who granted that he should not be impeached of waste by déed which he shewed forth to the Court Waste And in this Case because the Plaintiff was within age and so could not acknowledge the déed during his non-age it was adjudged that he should stay untill his full age Neverthelesse in this Case if when the Infant attains his full age the Defendant attorns by judgement of Court Parol Demur No prejudice this shall not any way trench to the Infants prejudice For albeit the Attornment were after his full age yet in as much as there was no Laches in the Infant but that he brought his writ de quid juris clamat to force the tenant to attorn the delay which was till his full age which the Law provided for his benefit shall not turn to his prejudice And therefore by judgement of law which doth wrong to none he shall have as much advantage as well for the arrerages of rent as for waste done as if the Tenant had Attorned at the time of the Plea pleaded Devise Tail Conclusion 35 There was a Clause annexed to an Estate tail devised by will to a Feme sole Co. l. 10. 42. b. 4. in Mary Portingtons Case per Coke Ch. Justice that if she should apparently and willingly conclude and agree to dis-continue the Estate c. that then the land should from thenceforth remain to another c. the Feme takes husband and they two conclude and agrée with J. S. to suffer a recovery of the Land with intention to make void the Estate and thereupon a common recovery was suffered accordingly c. And in this Case Coke Chief Iustice was of opinion Feme covert â—an passe noâ—hing without â—xamination 〈◊〉 writ that such conclusion of a Feme covert was of no force neither yet could be any cause of forfeiture for no Feme covert shall be barred by her confession of her inheritance or frank-tenement but when she is examined by due course of Law 15 E. 4. 8. 44 E. 3. 28. Vide 14 E. 4 5. And none hath power to examine a Feme covert without writ Vide 21 E. 3. 43. John de
Quare vi armis and since that by sundry Statutes in divers other Actions viz. in Accompt debt detinue annuity Covenant Action upon the Statute of 5 R. 2. Action upon the Case c. Co. ibid. 201. b. 2 4 Villenage is such an exception in any plea brought by the Villein against the Lord that it shall make the writ abate Dis-ability persons so that he shall not have a resummons or Re-attachment as in Case of the Excommunication c. Co. ibid. 158. a. 1. 5 If a man be out-lawed in Trespass debt No Juror or any other Action he is thereby disabled to serve of a Iury for that is a principal Challenge to the Poll viz. propter delictum because he is Exlex and therefore is not legalis homo Co. ibid. 132. b. 4. 6 A man exiled or banished beyond Sea viz. by authority of Parliament Exiled Abjured Dead The Feme may sue or in Case of abjuration upon an Ordinary procéeding of Law is in the nature of a dead man in Law And therefore in such Case his Wife may sue or be sued without him as in Case when a man enters in Religion and is profest a Monk c. Thus it was in the Case of the Wife of Sir Robert Belknap 2 H. 4. 7. a. one of the Iustices of the Court of Common Pleas for during his banishment being yet alive she brought a writ in her owne name whereupon one said Ecce modò mirum quòd foemina fert breve Regis Non nominando virum conjunctim robore Legis So likewise E. 3. 10 E. 3. 53. 1 H. 4. 1. b. Pl. in Parl. 19 E. 1. brought a Quare Impedit against the Lady Maltravers and after that H. 4. brought a writ of Ward against Sibill B. during the exile of her Husband The like was also adjudged at the Parliament holden in Crastinum Epiphanum Ann. 19 E. 1. in the Case of Margery de Mose Wife of Th. of Weyland being the yeare before abjured the Realme for felony c. Howbeit if the Husband by Act of Parliament have judgement to be exiled but for a time which some call a Relegation that is no civil death but abjuration in 8 E. 2. Coron 425. is called a divorce betwéen the Husband and the Wife And therefore in that Case the Wife may sue and be sued c. Co. ib. 2. a. 4. Co. l. 7. 17. a. 2. in Calvins Case 25. a. 4. Calv. Case 7 If an Alien Christian or Infidel purchases houses lands Aliens purchase is the Kings tenements or hereditaments to him and his heires albeit he can have no heires yet he is of capacity to take a fée-simple but not to hold for upon an Office found the King shall have them by his prerogative of whomsoever the land is holden and in that Case the Lord shall lose his Seigniory So it is also if he purchase land and die for in that likewise the Law casteth the fréehold and inheritance upon the King If an Alien purchase any Estate of frée-hold in lands c. upon Office found the King shall have them If an Alien be made denizen and purchase lands and die without issue the Lord of the fée shall have the escheate and not the King If an Alien purchase a lease for yeares upon Office found the King shall have it unlesse it be of an house for habitation to the end he may use Merchandize and Commerce Howbeit such an house also if he return home and leave or die the King shall have it and not his Executors c. â—ne born out 〈◊〉 the Kings â—geance 8 A man seised of land in fée hath issue an Alien Co. ib. 8. a. 1. that is borne out of the Kings Ligeance he cannot be heire propter defectum subjectionis albeit he is borne within lawfull marriage And if he be made Denizen by the Kings letters patents yet cannot he inherit to his father or any other But it is otherwise if he be naturalized by Act of Parliament for he is not then accounted in law Alienigena but Indigena â—ue not inâ—â—ritable 9 When an Alien is made Denizen the issue Co. ib. Co. l. 7. 7. a. 4. in Calvins Casâ— 36 H. 8. dâ—nizen Br. 9 that he hath afterwards shall be heire to him but no issue that he had before So likewise if an Alien commeth into England and hath issue two Sonnes these two Sonnes are Indigenae subjects borne because they are borne within the Realme and yet if one of them purchase lands in Fée and dieth without issue his Brother shall not be his heire for there was never any Inheritable bloud betwéen the Father and them and where the Sonnes by no possibility can be heires to the Father the one of them shall not be heire to another Co. ibid. 129. a. 3. It is otherwise of naturalization by Act of Parliament for if the Father he naturalized by Parliament the Issue had before c. shall Inherit So if an Issue of an English-man be borne beyond Sea and the Issue be naturalized by Parliament he shall Inherit his Fathers Land but so he shall not although made Denizen because no Alien naturalized by Act of Parliament is to all intents and purposes as a naturall borne subject but so is not a Denizen Dower â—enant by Courtesie 10 If a man be seised af an Estate of frée-hold and inheritance in lands c. and take an Alien to Wife and dieth Co. ib. 31. b. 4. Co. l. 7. 25. a. 4. Calv. Case she shall not be endowed neither shall the Baron be Tenant by the courtesie Howbeit it is otherwise in the Kings Case c. And Edmond the Brother of E. 1. married the Quéen of Navarre and died And it was resolved by all the Iudges that she should be endowed of the third part of all the lands whereof her husband was seised fée â—is-ability of â—ing 11 It is a good plea in dis-ability of the person Litt. §. 189. Co. ib. 129. b. 1. Co. l. 7. 16. a. 4. in Calv. Case Co. ib. 17. a. 3. Calv. Case that the Demandant or Plaintiffe is an Alien vee and this exception holds good in all Actions both reall and personal against an Alien enemy but not absolutely against other Aliens for the Law doth distinguish betwéen an Alien that is a subject to one who is an enemy to the King and one that is subject to one who is in league with the King And true it is that an Alien Enemy shall maintaine neither Reall nor Personal Action Donec terrae fuerint communes viz. till both Nations be in peace But an Alien that is in league shall maintain personal Actions For such an Alien may trade and traficke buy and sell And then of necessity he must be of ability to have personal Actions but he cannot maintaine either reall or mixt actions So also an
of Conduits and Water-pipes or the like So if a man have an ancient Window in his Hall and after covert the Hall to a Parler or any other use yet shall it not be Lawfull for the Neighbour at his pleasure to stop it For he may prescribe to hâ—ve a light in such a part of his House c. â—porâ—tions â—â—red yet the â—dy remaines 22 If a Corporation hath Franchises and Priviledges Co. ibid. b. 1. by grant or prescription and after they are incorporate by another name as whereas they were Bailiffs and Burgesses before now they are Mayor and Community Or Prior and Covent before and after translated to Deane and Chapter In these Cases albeit the qualities and name of their corporation is altered and charged and principally in the Case of Prior and Covent for of Regulâ—â— who are dead persons in Law they are made Secular yet the new body shall enjoy all the Franchises Priviledges and Hereditaments which the old Corporation or body Politique had either by grant or by prescription because albeit the name c. is changed yet the body which is the substance doth still remain c. 〈◊〉 of form â—dable by â— Clâ—râ—e 23 If a Count be insufficient in point of forme onely Co. l. 35. b. 1. in Playters Case which the Clerk is able to amend without the information of the Plaintiffe that error may be rectified by the Clerke by force of the Statute of 28 Eliz. cap. 14. It is otherwise if it be deficient in matter of substance As in Trespass if the Plaintiffe declare Quare clausum suum fregit pisces suos cepit c. without shewing the number or nature of the fish In this Case that omission is matter of substance and not of forme to be remedied by that Statute c. â—â—ke of the 〈◊〉 in some 〈◊〉 matter of â—nce 24 In a Writ of Error upon a recovery in wait Co. l. 5. 45. a Freemans Ca for that in reciting the Statute of Glocester the writ had destrictionem for destructionem it was adjudged that that mistake of the Clerke was matter of substance because destrictio was a Latin word which quite altered the sence of the Statute and therefore could not be helped by any Statute it had béen otherwise if it had béen matter of forme onely For at this day if the original writ want forme onely or containes false Latin or varies from the Register in matter of forme In such Case after verdict no judgement shall be stayed or reversed but if it want substance as in the Case aâ—ove said although it be onely the mistake of the Clerk yet it shall not be remedied by any Statute And therefore in a writ of partition the Iustices of the Common Pleas inserted this word oftensurus which was omitted and in a writ of Ayell they amended this word Ave and made it Avie 〈◊〉 arreare 〈◊〉 Kings 〈◊〉 25 Where the King hath right of entry for default of payment of a quarters Rent and by the office more rent is found arreare Co. l. 5. 56. b. 1 Knights Case then what the quarters rent amounts unto yet that is sufficient for the King when the Office hath matter and substance for the sole and substantial point which proves the breach of the Condition is the non-payment of the Rent or any part thereof and it is not material when the Rent was arreare for if any part thereof be arreare it suffiseth c. Co. l. 6. 47. b. 2 in Dowdales Case 26 In debt against an Executor the Iury finds assets in Regno Hyberniae and the verdict was adjudged good Assets found in any plaâ— albeit the Assets were found not onely in a Forraigne Country but in a forraigne Kingdome for the finding of assets is the substance and the place where is but sur-plussage and circumstance And therefore if an Executor have goods of the Testator in any part of the world as if the Testator were a Marchant or the like that had goods beyond Sea he shall be charged with them as Assets For the place is but circumstance c. Co. l. 8. 49. a in John Webbes Case Vid. Stat. W. 2. c 24 in 13 E. 1. 27 In ancient time Writs origiâ— used though the Case â—aâ— in circumstance when the Masters and Clarks of the Chancery were grave wise men well versed in the Lawes of the Land the first sort of them making writs in difficult Cases onely which were called Brevia Magistralia and they by reason of their profound learning called Masters of the Chancery the other making Brevia de causa and therefore called Cursitoriâ— writs were by them exactly formed without fault or error But now when such learned Clerks faile the Iudges in many Cases give allowance to ancient formes of writ and puts the partie to make a special Count and in such Case when the writ warrants the Count in substance they adjudge it sufficient although there be variance in circumstance Co. ibid 48. a. 4 For example the Original writ of Assisa ultimae praesenâ—ationis is formed in these words quis advocatus tempore pacis praesentavit ultimam personam quae mortua est This forme shall hâ—d and not be changed albeit the incumbent resigned as appeares in 18 E. 2. Tit. Assise de darreine praesentm 20. c. F. N. B. 53. h. Also the writ of Warr. Cartae is formed in these words Quòd justè c. warrantized B. unum mesuagium in D. c. unde cartam habet c. yet if he be bound to warranty by force of an exchange or by homage ancestrel the form of the writ shall not be altered Vide 9. E. 4. 49. 21 H. 6. 8. c. F. N. B. 134. Co. l. 8. 76. b. 2. in the Lord Staffords Case 28 The Law never requires circumstance Circumstaâ— not requireâ— when it 〈◊〉 subvert the substance when thereby the substance may be subverted As if the King grant Land to I. S. for life with Condition that if I. S. pay at the Exchequer such a day xx s. to the Kings use that then he shall have fée and I. S. payes the xx s. accordingly Although it be regularly true that the King by reason of the Majesty of his person cannot take or depart with any thing but by matter of Record yet in this Case I. S. shall have fée in the Land and the fée-simple shall be out of the King immediately upon the payment of the xx s. without petition monstrance de droit or any other such circumstances for if the Estate shall not vest before such circumstance then it cannot vest presently and if it vests not presently it shall never vest because if the Estate be not enlarged and therefore in such Case the fée-simple for necessities sake shall passe out of the King without any such circumstance for as is said before the Law never requires circumstance when it may
being heir in appearance and he is not bound to dis-able himselfe â—â—ministratiâ—â—â—oid and â—â—able 6 If an Ordinary of a Diocesse commits Administration of Goods Co. l. 5. 29. b. 4. in Princes Case Were and Jefferies Case when they are bona notabilia such Administration is méerly void but Administration committed by the Metropolitan when the defunct had not bona notabilia is onely voidable because he hath Iurisdiction in all the Diocesses within the Province and therefore hath sufficient colour to do it Co. l. 6. 65. a. 3. in Sir Moile Finches Case 7 In 41 E. 3. 19. Rich. Tompson had Issue by Joan before mariage one Agnes and after he marries Joan and makes feofment in fée A Bastard takes by yâ— chase and retakes the Estate to himselfe for life remanere inde Agnetae filiae praedict Rich. Johanne and it was agréed that this was a good remainder without any averment that she was known to be their Daughter for albeit by the Common Law she was not their Daughter yet in as much as she had colour by the Ecclesiastical law which saith subsequens matrimonium tollit peccatum procedens this colour is sufficient in Case of a conveyance to make the remainder good and so note the diversity betwixt descent and purchase c. Co. l. 8. 101. per tout in Sir R. Lechfords Case The better opinion per Coke 8 If there be Bastard eigne and Mulier puisne Mulier beyonâ— sea c. and the Father die seised the Mulier being beyond Sea within age in Prison or of non sanae memoriae and the Bastard enter and continue in peacable possession of the Lands and hath Issue and dies and the lands descend to his Issue here the right of the Mulier is for ever bound because he hath colour of legitimation by the Law of Holy Church and the Common Law respects legitimation before the above-said Imperfections Vide plus ibid. Co. l. 10. 76. b. in the Case of the Marshalsea 9 If a Sheriffe holding his Torne after Michaelmas moneth takes there an Indictment of Robbery it is utterly void Things done by warrant contra being coram non judice But if the Court of the Common Bench in a plea of Debt award a Capias against a Duke Earle or c. which by the Law lyeth not against them and that appeares in the writ it selfe here if the Sheriffe arrest them upon the Capias albeit the writ be against Law yet because that Court hath jurisdiction of the cause the Sheriffe hath colour to do it and shall be excused and herewith accords Dier 60. b. 38 H. 8. So also if a Iustice of Peace make a warrant to arrest one for Felony who is not indicted albeit the Iustice erre in granting the warrant yet he that makes the arrest by force of that warrant shall not be panished by writ of false imprisonment because the Iustice is Iudge of the Cause Plow 83. b. 1. in Strange and Crokers Case 10 In 9 H. 6. it is said that if I grant to B. Maintenance that if my Tenant for life die during my life that then B. shall have the Land for 10 yeares Here if my Tenant be impleaded B. may lawfully maintaine in respect of the Colour of title he hath to the Land Co. Inst p. 1. 148. b. 4. 11 Entry into Religion and profession of a Disseisor shall not cause a descent to toll the entry of the Disseisée Bastard Mulier because it is the Disseisors owne Act and not the Act of God as death is yet if there be Bastard eigne and Mulier puisne and the Bastard before claime enter into Religion it is said such a discent shall toll the entry of the Mulier by reason of the colour of title that the Bastard had to the land and such an heire shall also have his age 114 It prizeth the Acts of God and of the Law more then those that are done by the party Co. Inst p. 1. 18. a. 4. 1 Fée-simple being as Littleton saith the largest Estate of inheritance that is Two Fee-simples one Fée-simple cannot depend upon another by the grant of the party as if Lands be given to A. so long as B. hath heires of his body the Remainder over in Fée here the Remainder is void yet in several persons by Act in Law a reversion may be in Fée-simple in one and a Fée-simple determinable in another by matter ex post facto as if a Gift in taile be made to a Villein and the Lord enter the Lord hath a Fée-simple qualified and the Donor a reversion in Fée but if the Lord enfeoffe the Donor now both Fée-simples are united and he hath but one Fée-simple in him â—â—ires female â—ill not take 2 When a man giveth lands to another man and the heirs female of his body dieth having issue a son a daughte◠〈◊〉 daughter shall inherit for the will of the donor the Stat. working 〈◊〉 it Co. ib. 24. b. 3 25. b. 3. 26. b. 4. which is upon the matter an act in law shall be observed but in case of a purchase it is otherwise for if A. have issue a son a daughter a lease for life is made the remainder to the heirs females of the body of A. A. dieth the heire female can take nothing because she is not heire for she must be both heire heire female which she is not because the brother is heire and therefore the will of the giver cannot be observed because here is no gift and therefore the Statute cannot work thereupon so it is if a man hath a son and a daughter and dieth lands are given to the daughter and the heirs female of the body of her father the daughter shall take nothing but an Estate for life because there is no such person she being not heire but where a gift is made to a man and to the heirs female of his body there the Donée being the first taker is capable by purchase and the heire female by discent secundam formam doni â—â—tes may 〈◊〉 altered 3 Regularly Estates cannot be altered from one to another Litt. §. 33. Co. ib. 28. a. unlesse all that have interest joine in the alteration thereof but by the Act of God estates may be changed without any act done by the parties that are interessed as if lands be given to a man and the heirs that he shall engender of the body of his wife here the wife hath nothing and the man is Tenant in special taile therefore in this Case if the Feme die without issue on her body begotten by the Baron the estate in special tail is by the act of God charged into tenancy in tail after possibility of issue extinct â—â—ging of â—â—tes 4 If a feofment in fee be made to the use of a man and his wife for the term
Condition that he shall kill J. S. the bond is void So if a man make a feofment upon Condition that the Feoffée shall kill I. S. the Estate is absolute and the Condition void so as he who intends any unlawful Act is still by the Law crost in the designe or purpose he aimes at Dier 28. a 16. 31 H. 8. 7 Vice is so odious in the eie of the Law Bloud corrupt that it will not suffer any to inherit who derives his title through bloud tainted with any Capital offence As if a man hath issue two Sonnes and the eldest in the life of the Father is attainted for felony and dies living the Father and after the Father dies seised of the land in Fée this land shall discend to the younger Sonne as heire to his Father if the eldest Sonne hath no issue living but if he hath issue in life who by the Law should inherit the Land if it were not for the Attainder and albeit he hath committed no offence yet the land shall not discend to him nor yet to the younger Brother but shall escheate to the Lord of the Fée 140 Interest Reipublicae ne maleficia remaneant impunita â—â—feit inâ—â— no good 〈◊〉 1 Where an Indictment is found insufficient Co. l. 4. 45. a. 1 in Vaux his Case the offender may be indicted again for in such Case Autre fois acquite or convict is no good plea because that plea is allowed upon that Maxime of the Common Law viz. that the life of a man shall not be put in jeopardy twice for one and the same offence Howbeit this is intended upon a lawfull acquital or Condition for otherwise his life was never put in jeopardy but when the Indictment or other procéeding against him are insufficient he may be re-indicted For the Law doth abhorre that great offences should passe un-punished according to these ancient Maximes of the Law and State Maleficia non debent remanere impunita impunitus continuum affectum tribuit delinquendo minatur innocentes qui parcit nocentibus Howbeit if upon an insufficient Indictment of felony a man hath had judgment quod suspendatur collum and so is attainted which is the judgment and end that the Law hath appointed for felony in this Case he shall not be again indicted and arraigned until that judgment be reversed by Error 〈◊〉 it goods 〈◊〉 2 The Reason why bona waviata viz. Co l. 5. 109. a. 4 in Fauxleys Case such shelme goods as a felon in flying waives or leaves behind him are forfeit to the King and that the owner shall in such Case lose his property in them is because of the negligence and default in the owner for that he made not fresh suit to apprehend the felon for Interest Reipublicae ne maleficia remaneant impunita impunitas semper ad deteriora invitat And therefore the Law hath imposed this penalty upon the owner that if the felon by his industry and fresh suit be not taken by such default he shall lose all his goods which the felon so leaves behind him â—â—â—es taken intendâ—â— 3 In many Cases Penal Statutes shall be taken by intendment Co. l. 11. 44. b. in Alexander Pollers Case and not according to the expresse words thereof especially when it is to remedy a mischiefe in advancement of Iustice and for the suppressim of Crimes and heinous offences of which sée many examples in the book at large quoted in the margent â—ption 4 In a writ of Reception F. N. B. 72. h. where after Replevin the party distraines again for that same thing the Sheriffe is comanded to apprehend the party so offending and so to chastise him by amerciament quod castigatio illa in casu consimili timorem aliis praebeat delinquendi 〈◊〉 breaâ—â— 5 A man was put into the Stockes upon suspition of Felony Dier 99. a. 60. 1 Max. and another comes who lets him go at large this is felony at the Common Law de frangend prison albeit the party that escaped be not indicted for felony â—â—lt â—â—â—der 6 In Banco Reg. in the Case of one Tripcony the Iury to the Nisi prius gave the Plaintiffe but 40 l. damages for the cutting of his right hand Dier 105. a 4. 1 2 P.M. and they were increased by the Iustices to 100 l. because this was matter apparent to the Court and the offence and trespass therein was caried about with the person howbeit in the Case of Sir John Bonham against the Lo. Sturton for slander where the damages were 500 Marks the Iustices said they could not lessen them Dyer 211. 33. 4 Eliz. 7 By the better opinion albeit the Statutes of 27 H. 8. 4. 28. H. 8. 15. Admiral be penal and ordaine that Commissions to heare and determine piracies shall be awarded to the Admiral and others to be named by the Chancellor yet the Lord Keeper being no Chancellor may grant such Commissions and that for the necessity to punish such offences 141 It favoureth Justice and right Co. Inst p. 1. 33. a. 1. 1 In a writ of Dower brought against the heire tout temps prist is a good plea before demand to barre the woman of the meane values and damages because the heire holdeth by title Plea in dowâ— and doth no wrong till a demand be made It is otherwise in a writ of Ayd Cosinage c. where the land and damages are to be recovered for there such a plea is not good because in that Case the Tenant of the land hath no title but holdeth the land by wrong Co. ib. 103. a. 4 b. 1. 2 If there be Lord and Tenant by Homage Ancestrel Homage ancestrel contiâ—nued and the Tenant alien the land in Fée although it be but upon a Condition which is performed at the day yet is the tenure gone for ever because the privity and Estate being once discontinued it is for ever after extinct But if the land be recovered against the Tenant upon a faint title and the Tenant recover the same again in an Action of an higher nature there the Homage Ancestrel remaines for the right which is favoureth in Law was a sufficient meane for the continuance thereof so it is also if he had reversed it in a writ of Error Co. Inst p. 1. 143. a. 4. 3 Before the Statute of quia emptores terrarum if a man had made a feofment in Fée rendring Rent he might have distrained for the Rent arreare of Common Right and in Case he had made no reservation of Rent or service yet the Feoffée should then have held of the Feoffor by such services as the feoffor held over of the Lord paramount So as albeit the Feoffor were negligent and made no provision or reservation of Rent or service yet the Law it selfe so much regarded Equity and Iustice that it created a tenure where the party was
Church be void when the writ comes to the Bishop the Bishop is bound to admit his Clerk and it séemes also reason if the Patron after the six moneths present to the Bishop the Church being then void that the Bishop ought to present his Clerk in respect of the right that is in the Patron 31 If the King write to the Iustices to prorogue the Assise F.N.B. 153. h. because the defendant is in his service c. yet the Iustices ought to procéed and not to cease for that writ because it is for the advancement of Iustice and to do right â—â—e Judges 〈◊〉 to give â—â—â—eous â—â—ment 32 In Dive and Manninghams Case in the Commentaries Pl. Co. 66. b. 3. Dive and Manninghams Case 84. b. 4 in Partridges Case albeit the Defendant had pleaded Judgment si action whereas he ought to have pleaded non est factum Dive the Sheriffe having taken a bond of a man in execution to secure himselfe which was void by the expresse words of the Statute of 23 H. 6. 10. notwithstanding such default in right pleading the Iudges finding the Sheriffe to have no iust cause of action because that Statute made the bond cléerely void gave judgment against Dive the Plaintiffe So H. 7. E. 4. 31. Fitz. Title judgment 50. where an action of trespass was brought against Tâ—lly and Woddy for five boxes with writings taken c. Tilly pleads not guilty and Woddy makes title to him by a gift and the Plaintiffe traverseth the gift and upon these matters they were at issue and Tilly was found guilty and the issue was found for Woddy and against the Plaintiffe And here albeit the Issue was found against Tilly yet by the cléere opinion of the Court the Plaintiffe shall not have judgment against him for it was found betwixt the Plaintiffe and Woddy that the Plaintiffe had no title and therefore the Iudges ex officio ought to give judgment against him vide plus ibid. â—â—â—ter to 〈◊〉 and 〈◊〉 33 If land be given to Baron and Feme in special taile Co. Inst p. 1. 354. a. 3. and after the husband alien the land in fée and take backe an Estate to him and his wife for their lives in this Case the husband against his owne alienation if he had taken the estate to himselfe alone could not have béen remitted but when the estate is made to the husband and wife albeit they be but one person in law and no moities betwéen them yet for that the wife cannot be remitted in this case unlesse the husband be remitted also and for that remitters are much favoured in law because thereby the more ancient and better rights are restored again therefore in this case in judgment of law both husband and wife are remitted Co. ib. 194. a. 3 34 A release by the disseisée to one of the disseisors shall enable him to hold out his companion because they are in méerely by wrong A release to usurpation howbeit if two men do usurpe by a wrongfull presentation to a Church and their Clerk is admitted instituted and inducted and the rightful Patron release to one of them this shall enure to them both for that the usurpers came not in méerely by wrong but their Clerk is in by admission and institution which are Iudicial Acts and usurpation shall work a Remitter to one that hath a former right Co. ib. 297. a. 2 35 There is a diversity betwixt a bare assent without any right or interest and an assent coupled with a right or interest Attornment Confirmation and therefore an Attornment cannot be made for a time or upon Condition because that is a bare assent but if a Parson make a lease for 100 years the Patron and Ordinary may confirme 50 of those years for they have an interest and may charge in time of vacation so if a disseisor make a lease for 100 yeares the disseisor may confirm parcel of those years but then it must be by apt words for he must not confirme the lease or demise or the Estate of the Lessée because then the addition for parcel of the term would be repugnant when the whole was confirmed before but the confirmation must be of the land for part of the term c. Co. ib. 277. b. 4 36 If A. disseiseth B. to the use of C. and B. releaseth to A. this shall take away the agréement of C. to the disseisin because otherwise it should make him a wrong-doer so if the disseisor be disseised and the disseisée releaseth to the second disseisor this taketh away the right of the first disseisor had against the second for a relation of an Estate gained by wrong shall never defeat an Estate subsequent gained by right against a single opinion in 14 H. 8. 18. never seconded by any other since Hob. 13. Sir Daniel Nortons Case 37 If the Vnder-Sheriffe Covenant with the High Sheriffe Skeriffes that he will not serve executions of above 20 l. without his special warrant this Covenant is void because it is against Law and Iustice 142 That which is not tortious in it selfe cannot be tortious to any Co. lib. 11. 98. b. 1. in Edw. Seymers Case 1 If there be Tenant in taile Remainder in taile Remainder not devested the Reversion in in Fée to the Tenant in taile the Tenant in taile bargaines and sels the land and levies a Fine to the bargainée who enfeoffes I. S. in this Case by the feofment of the bargainée to I. S. the Remainder in tail is not displaced or put to a right for the bargainée had an Estate in Fée-simple determinable upon the death of the Tenant in taile without issue and when he made the feofment his determinable Fée-simple in possession and his absolute Fée-simple expectant upon the Estate taile in remainder did pass and did not devest the remainder for the feofment which is not tortious in it selfe cannot be tortious to another 143. Interest Reipublicae ne Curia Domini Regis deficeret in Justicia exhibenda A Letter of Attorney a Pâ—nnell 1. If a man make a Letter of Attorney to two to do any act Co. Inst pars 1. 181. b. 3. if one of them dye 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 dye yet the other shall execute and returne the same because this last is for the execution of justice Tenants is common shall joyne in Assize 2. If there be two Tenants in Common of 20 s. Rent Co. ibid. 197. a. b. a pound of Pepper or such like thing as will admit severance if they be arreare they shall bring several Assises for them because of their severall titles but if the Rent be an intire thing which cannot be severed or divided as an Hawke Horse or the like in such case they shall joyne in the
Assise for otherwise they should be without remedy and thus they must do Ne Curia Dom. regis c. And Lex non debet deficere conquerentibus in justicia exhibenda besides if they should not joyne they should have damnum injuriam and yet should have no remedy by Law which would be inconvenient for the Law will that in every case where a man is wronged and endamaged that he shall have remedy Aliquid conceditur ne injuria remanent impunita quod alias non concederetur Vide plus ibidem A Villaine 3. A man cannot be properly said to be dispossest of a Villain Co. ibid. 307. a. 1. either in grosse or regardant unlesse he be dispossest of the M. too for otherwise the Law would have given a remedy against the wrong doer as the Law doth in case of a Ward because the Lord may seise his Villain whersoever he finds him Tâ—e Lessee of a Copy-holder â—â—y have an Ejectment 4. The Lessee of a Copiholder for a year may maintaine an Ejectione firme for in as much as hiâ— terme is warranted by the Law Co. l. 4. 26. a. 4. in Melwitches case by force of the generall custome of the Realme it is reason that if he be ejected he should have an Ejectione firme for otherwise he should be without remedy And Interest reipublicae ne Curia c. 〈◊〉 West 2. â— 28. 5. The Statute of Westm 2. ca. 28 provides Quod quotiescunque de cetero exercerit in Cancelleria Co. l. 7. 4. a. 2. in Bulwers case quod in uno casu reperitur breve in consimili casu cadente sub eodem jure simili indigente remedio non reperitur concordent Clerici in Cancelleria in brevi faciendo c. vel ad proprium Parliamentum de consensu Jurisperitorum fiat breve And then concludes with this Maxime in Law Quod Curia Domini Regis non debet deficere conquerentibus in justicia perquirenda Vpon which Statute and ground divers things are admitted in consimili casu Vide plus ibidem No error beâ—â—re full Judgment 6. The Defendant in account after judgment to account Co. l. 11. 36. a. 4. Medcalfes case and before judgment finall brings Error but it was not allowed so in an action brought against two one pleads to the issue and the other confesseth it and thereupon judgment passeth against him yet he shall not have Error till the plea be determined against the other Vide plus ibidem And the reason of these and the like cases is because if the Record should be removed before the whole matter be determined there would be a Failer of Right for the Iudges of the Kings Bench cannot proceed upon a matter which is not yet determined â—eturne of the â—â—eriff 7. If a Sheriff returne upon a Replevin alias or pluries that he hath sent to the Bailiff of the Franchise who hath made him no return F. N. B. 68. f. g. or that he will not make deliverance of the Cattle in such case a Non omittas shall issue forth alias pluries to cause the Sheriff to enter the Liberty and to make returne or if the Bailiff make no return or will not make deliverance it seemes that by the Statute of West 1. ca. 27. upon such returnes the Sheriff may without Writ enter the Liberty and make deliverance of the Cattell in like manner as the Sheriff may do by the Statute of Marlebridge ca. 21. where a plea De vetit Nav. is in the County by plaint before the Sheriff and the Sheriff sends to the Bailiff of the Liberty to make deliverance and he doth nothing in this case also the Sheriff may without Writ enter the Liberty and do it Likewise if the Sheriff upon a Pluries returne that the Defendant hath conveyed the Cattell into another County or that he hath commanded the Bailiff of the Franchise who returnes that the Cattell are eloined into divers Liberties so that he cannot have the view of the cattell to make deliverance or that the Defendant hath eloyned the Cattell into divers places unknown or that the Defendant hath imparked them in the Rectory of the Church of O. that hee cannot make deliverance c. Vpon these returnes of the Sheriff the Plaintiff shall have a Writ of Withernam to take so many of the Defendants Cattell and detaine them in Pound untill the Defendant produce the Plaintiffes And all this is Ne Curia Domini Regis c. Pl. Co. 36. a. 3. in Plats case 8. The Statute of 1 R 2. 12. The Extent oâ— 1. R. 2. c. 12 which gives an action of debt against the Warden of the Fleet for suffering a Prisoner being in upon Iudgement to go at large without Writ is extended by equity to all other Keepers of Prisons although it be a penall Stâ—tute and that is for the better execution of justice and that the Creditors debts may be the sooner discharged Co. Inst pars 1. 294. 4. 9. If there be not foure Knights in the County for the electing of the twelve chosen for the tryall of the meere right in a Writ of Right when the Mise is joyned upon the meere Right Writ of right the next to them in the County shall be taken Ne Curia Regis c. Co. l 7. 4. a. 4 in Bulwers case 10. If there be Lord and Tenant Two Writs one Count. and the Tenancy extends into two Counties in this case if the rents and services are arreare the Lord shall have severall Writs of the Customes and Services for each County a Writ and shall have them returneable at one day in the Bench but he shall have but one Count upon them as his case is Quia aliter Curia Domini Regis deficeret conquirentibus in justitia proquirenda F. N. B. 26. h. 11. Vpon a Rescous returned by the Sheriff Rescous and thereupon an Attachment awarded against the party in this case he shall not appear by Attorney but in person and shall immediately upon his appearance be committed to the Fleet Nam expedit reipublice c. Litt. S. 438. Co. Inst pars 1. 260. a. 3. 12. Alb it the Law in divers respects favoureth a Prisoner Pâ—ocâ—edings against a Prisoner so as a Recovery then had against him by default shall be reversed by Error a descent then cast against him shall not annoy him yet it will not priviledge him from suits or Outlawries for if the Tenant or Defendant be in Prison hee shall upon motion by order of the Court be brought to the Barr and either answer according to Law or else the same being recorded the Law shall proceed against him and he shall take no advantage of his imprisonment Dyer 1. 5. c. p. 4 H. 8. 13. A Writ of error was brought by the feoffee of the Conusor of a Statute Error brought by a stranger because
and was also capable at the time of the gift whereas when the gift was made shee tooke nothing but in expectancy when shee should become heire per forman doni And yet the law permits her to have a Writ in forme aforesaid least otherwise she should have been without remedy Co. ibid. 47. b. 3. 2. The Lord shall not have an action of debt for reliefe or for escuage due unto him because he hath other remedy to recover the same viz. Remedy for releife c. by distresse Howbeit his Executors or Administrators shall have an action of debt for them because they are now become as showers falne from the stock and they have no other remedy Litt. S. 67. Co. ibid. 52. b. 4. 3. If tenements are let to a man for the terme of halfe a yeare or a quarter of a yeare c. in this case if the lessee make waste For waste the lessor shall have against him a Writ of waste and the Writ shall say Quod tenet ad terminum annorum but he shall have a speciall Declaration upon the truth of the matter and the Count shall not abate the Writ and the reason is because he can have no other Writ whereby the wrong done him may be remedied And therefore albeit the Statute of Glocester ca. Co. ibid. 54. b 4. 5. which giveth the action of waste against the lessee for life or yeares which lay not against them at the common Law speaketh of one that holdeth for terme of years in the Plurall number neverthelesse although it be a penall Law whereby treble damages and the place wasted shall be recovered yet a tenant for halfe a yeare being within the same mischiefe shall be within the same remedy though it be without the letter of the Law causa qua supra Co. Inst pars 1. 56. a. 1. 4. If Lessee for yeares be disturbed of his way An action for a publick nusance for remedy thereof he shall have his speciall action upon the case but if it be a common way to avoyd multiplicity of suits it ought to be presented and reformed in the Leet or Turne and no particular person shall bring any action for it unlesse he suffer particular damage by the nusance as if he and his Horse fall into a ditch so made in the common way or the like which happeneth not to others Howbeit in the Kings Bench in a case betwixt Westbury and Powell it was adjudged that where the Inhabitants of Southwarke had by custome a watering place for their Cattell which was stopped up by Powell in that case any Inhabitant there might have an action because otherwise they should be without remedy for that such a nusance is not presentable in the Leet or Turne Co. ibid. 111. a. 4. 5. In Cities and Burrows where Tenements were devisable Ex gravi querela granted to Devisees of Lands if the heire of the devisor had entred and had held out the devisee albeit the devisee might have entred as Lit. saith S. 167. Yet besides the Law ordained a Writ for him called Ex gravi querela and this Writ without any particular usage was incident to the custome to devise because otherwise if a discent had been cast before the devisee had entred the devisee had been without remedy there being no other way provided for him to recover his land Litt. S. 179. Co. ibid. 119. a. 3. 6. If a Villain purchase a Signiory rent or other profit out of land Claime of a Reversion c. by the Lord of a Villain or a reversion after an estate for yeares life in taile by Statute Merchant Statute Staple or Elegit and attornement is made unto him according to the grant in such cases the Lord may come upon the land and claime the reversion and in so doing shall not be adjudged a trespasser for he hath no other means to come by the reversion because if he should stay untill the reversion should fall the Villain might alien it to another before his entry and so prevent him of his just title thereunto Also upon grant of an Advowson to a Villain claime must be made immediately at the Church though it be then full of an Incumbent Lit S. 180. for if he stay till an avoydance he may be prevented as aforesaid Vide infr 35. Outlawry no plea in Error to reverse it 7. Regularly an outlawed person cannot sue and if hee do Co ib. 128. a. 4. it is a good plea in disability of his person to say that he is outlawed yet in a Writ of Error to reverse an Outlawry Outlawry in that suit or at any strangers suit shall not disable the Plaintiff because if he in that action should be disabled and were outlawed at severall mens suits he should never reverse any of them Aliens may have actions personall 8. Albeit Aliens though in annuity are excluded from many priviledges that Subjects borne enjoy Co. ib. 129. b. 1. yet such a Alien may maintaine personall actions for an Alien may trade and trafficke buy and sell and therefore of necessity he must be of ability to have personall actions and an Alien that is condemned in an Information shall have a Writ of Error to relieve himselfe Et sic de similibus for otherwise they should be without remedy A Monk canâ— sue c. 9. If a Monk or other spiritual person profest were beaten wounded Co ib. 132. b. 3. or imprisoned he is prohibited to sue as Lit. saith S. 200. because he is a dead person in Law but here the Law gives a remedy for in that case the Abbot and Monke shall joyne in an Action against the wrong doer and if the Writ be Ad damnum ipsius Priores the Writ is good or if it be Ad damnum ipsorum it is good also yet in this case the Abbot or Pryor in his person was not wronged Also if a Monk were by Conspiracy falsely and maliciously indicted of Felony and Robbery and afterwards was lawfully acquitted his Soveraign and he should have joyned in a Writ of Conspiracy and the like There is the same Law also of a Nunne Sanctimonialis mutatis mutandis And if the Law did not provide such a course they might have been injured and left without remedy â— Feme Coâ—â—â— may sue â— be sued 10. A Feme Covert is disabled to sue without her Husband Co ib. 132. b 4. 2 H 4. s 7. a. and yet we read that in somâ— cases a Wife hath had ability to sue and to be sued without her Husband for the Wife of Sir Rob. Belknap one of the Iustices of the Court of Common Pleas who was banished beyond Sea did sue a Writ in her own name without her Husband he being alive whereof one said Ecce modo mirum quod foemine fert breve Regis Non nominando virum conjunctim robore Legis Also E. 3. brought a
and part against him or all or part against one of the Tenants or Defendants and nothing or but part against the other the Demandant or Plaintiff shall be amercied except no default be found in the Demandant or Plaintiff And therefore in Trespasse of Battery against Baron and Feme supposing the Battery to be done by both and the Feme is onely found guilty c. and the Baron acquit yet the Plaintiff shall not be amercied for the Plaintiff cannot have any other Writ in such case and therefore because no default was found in him he shall not be amercied in this case The Kings ward dyes before homage 42. The Kings Tenant in Capite under age is to remaine in Ward Co. l. 8. 172. a. Hales case Prerogativa Reg. cap. 3. and the King is to receive the profits of his land untill he do his homage and that cannot be untill he have sued out his Livery And if at his full age he tender his Livery he is to have three moneths to perfect it Howbeit if after such tender by the Act of God viz. death he is prevented to perfect it the King shall not receive the profits after such tender but the next heire shall have them and after such tender he might in that case sell the Land or any part thereof and the sale shall be good notwithstanding the Kings hands upon it Co. l. 9. 87. a. 4. in Pinchons case 43. It is a Rule in Law Where wager of Law in the Testator Executors not chargeable that where the Testator might have waged his Law his Executors shall not be charged with that duty contra because that advantage is lost by the act of God viz. by death and therefore shall not be imputed to any default of his So debt lyeth not against Executors for the dyet of their Testator because he might in that case have waged his Law and so have freed himselfe thereof which advantage being lost by his death and no fault of his his Executors who represent his person shall not be prejudiced thereby Howbeit if a Prisoner in the Tower for treason receive his diet of the Lievtenant and dye the Lievtenant shall have an Action of debt against his Executors for such diet of the Testator and the reason is because in that case the Testator could not in his life time have waged his Law as it is adjudged in 27 H. 6. 4. b. in Thomas Bodulgats case And the reason why no wager of Law lyeth in such case is because every Goaler ought to keep his Prisoner in salva arcta custodiae and so must of necessity finde him victualls c. Vide pl. ibid. Co. ibid. 87. b. 4. 44. In 14 H. 6. 19. b. R. G. brings a Writ of debt of ten marks against T.T. and others Executors of W. W. and counted The like that the Testator had retained the Plaintiff to be with him for a yeare in the art of limming of Books paying him ten marks per annum and there Martin held that the Action of the Executors was not maintainable And he took a difference betwixt this case of a Limmer and that of a common Labourer for a Labourer shall be compelled to labour and his salary is put in certaine by the Statute and therefore there is no reason that the Servant should lose by the death of his Master being bound by the Law to serve which shall not be said to be his default but the Act of God and the Law Howbeit in the case of a Limmer he was not compelled by the Law to serve And so when he made the Covenant it was his owne act and folly and no act in Law and he might have taken a Specialty And this is good Law but the true reason of that difference is because in the Case of a common Labourer the Testator could not wage his Law but in that of a Limmer he might c. Vide pl. ibid. Co l. 10. 76 b. 2. in the case of the Marshalsey 45. If the Court of Common Bench in Plea of debt award a Writ of Capias against a Duke Earle Erroneous arrests c. which by the Law lyes not against them and this appeares in the Writ it selfe yet if the Sheriff arrest them by force of the Capias albeit the Writ is against Law neverthelesse the Court having Iurisdiction of the cause the Sheriff shall be excused because there is no default in him but in the Court and with this accords 38 H. 8. Dyer 60. b. So it is likewise if a Iustice of Peace makes a warrant to arrest one for Felony who is not indicted albeit the Iustice ers in the Warrant yet he that makes the arrest by force of that Warrant shall not be punished by a Writ of False Imprisonment because is is not his fault but the Iustices who is Iudge of the cause and with this agrees 14 H. 4 16. Co. l. 11. 27. a 3 in Henry Pigots case 46. If the Obligee himselfe alter the Obligation in any point materiall or not materiall by interlining addition racing or the like An Obligation void or not void by rasure c. that shall make the Obligation void but if a stranger do it without the Obligees privity in a point not materiall that shall not avoid the Deed as if an Obligation be to be made to the Sheriff for apparance c. and in the Obligation after the sealing and delivery thereof these words Vicecom Comit. Oxon are interlined by a stranger without the privity of the Sheriff yet the Obligation remaines good notwithstanding such interlining by a stranger without the Obligees privity in regard it was not conceived to be a point materiall Benedicto Winchcombe his name and sirname being there inserted before and being done by a stranger it shall not in that case prejudice the Obligee Refusall of Clerk 47. Where the Bishop refuseth the Clerke of the Patron for non-ability or crime he shall not present by Laps F. N. B. 35. i. unlesse he have first given notice to the Patron of the insufficiency of his Clerk the Patron neglect to present within the six moneths for in such case after the six months past the Patron shall have a Writ to the Bishop if the Church be void and the Bishop have not in the meane time collated 48. If one sell another a peice of Cloath and warrant it to be of a certaine length in this case if the peice be not of that length F. N. B. 98. k. a Writ of Disceit lyeth against the Vendor albeit the Warranty be but by Parol Custome of Woad uncertaine by tempest 49. In Fogassaes case in the Coment Pl. Com. â— b. 1. in Fogassaes case the storme at Sea being a thing that could by no possible meanes be prevented and that causing the uncertainty of the quantity of the Woad and there being no meanes of knowing the certainty thereof
sold Tamen Quaere if there be no difference for the Issue is Quod nullum Denarium inde debet So in Detinue of a chain of three ounces where it weighed but two ounces the Law lay 22 E. 4 Dyer 299. 34. 13. Eliz. 19. Issue was joyned that T. West Issue Miles dominus de la Warre non demisit and in truth he was then Dominus but at the time of the demise he was but Knight yet it seemed to three Justices that the dignity was parcell of the Issue so it could not be found with him that pleaded his Lease Dyer 338. 14. 18. Eliz. 20. In an appeal of the death of a Brother against I. S. of M. c. Appeal as principall and one F. as accessory whereas the name of the principall was T.S. The accessory appears and pleads Nul tiel in rerum natura as I.S. the day of the Writ purchased nor at any time since In this case the two Cheif Justices held That albeit there were another I.S. in another County if it were not in the same County where the Town of M. is or if he were dead before the Writ purchased the Plea sufficeth and there also it was held that in Favorem vitae a man might traverse the Sheriffs Return Hob. 38. 21. In Wast Wast if more Townes be mentioned in the Declaration then in the Writ where the Wast is supposed to be done the Writ shall abate The Earl of Cumberlands case Hob. 118. the Bishop of Yorks case 22. In a Quare Impedit for the Vicaridge of Leeds Amendment the word Vaccariam was inserted instead of Vicariam and exception being taken thereunto it was amended by the Cursitor in open Court Vide 40. 53. 167. Contrariety and Repugnancy And therefore Libera Eleemosina Co. Inst 1. 97. a. 1. If Lands were given to hold In libera Eleemosina reddendo a Rent the Reservation of the Rent seemeth to be void because it is repugnant and contrary to the former grant In libera Eleemosina Co. ibid. 142. a. 3. 2. A man upon his Feoffment or Conveyance cannot reserve to himselfe parcell of the annuall profits themselves Profits cannot be reserved as to reserve the Vesture or Herbage of the Land or the like for that would be repugnant to the Grant Non debet enim esse reservatio de profieiris ipsis quia ea conceduntur sed de redditu novo extra proficia Lit. S. 220. Co. ib. 146. a. 2. 3. When in a generall grant the Law doth give two remedies Proviso repugnant the Grantor may provide that the Grantee shall not use one of them and may leave him to take the other as upon the Grant of an annuity the Grantor may provide that the Grantee shall not charge his person but where the Grantee hath but one Remedy there that Remedy cannot be barred by any Proviso for such a Proviso would be repugnant to the Grant Co. ib. â— 3 4. The like If a man by his Deed granteth a Rent charge out of the Mannor of D. wherein the Grantor hath nothing with a Proviso that it shall not charge his person Here albeit the Repugnancy doth not appear in the Deed yet the Proviso taketh away the whole effect of the Grant and therefore is in Iudgement of Law repugnant for upon the matter it is but a Grant of an Annuity provided that it shall not charge his person The like 5. If a man by his Deed grant a Rent-charge out of Land Co. ib. a. 4. provided that it shall not charge the Land Here albeit the Grantee hath a double Remedy as above is sayd exam 3. yet the Proviso is repugnant because the Land is expressely charged with the Rent but the Writ of unity is but implyed in the Grant and therefore that may be restrained without any repugnancy and sufficient Remedy besides left for the Grantee Condition repugnant 6. If a man give Lands to another Co. ib. 164 a. 2. and to the Heires males of his body upon Condition that if he dye without heire female of his body that then the Donor shall re-enter this Condition is utterly void for he cannot have an heir Female so long as he hath an heir male The like 7. If a man make a Feoffment in Fee upon Condition that he shall not alien this Condition is repugnant and against Law Co. ib. 206. b. 3. 222. b. 4. Litt. S. 360. and the Estate of the Feoffee is absolute But if the Feoffee be bound in a Bond that the Feoffee and his Heirs shall not alien this is good for he may notwithstanding alien if he will forfeit his bond that he himself hath made So it is also if a man make a Feoffment in Fee upon Condition that the Feoffee shall not take the profits of the Land this Condition is repugnant and against Law and the Estate conveyed is absolute But a Bond with a condition that the Feoffee shall not take the profits of the Land is good If a man be bound with Condition to enfeoff his wife the Condition is void and against Law because it is against a Maxime of Law yet such a Bond is good so if he be bound to pay his wife money that is good also Et sic de similibus whereof there be plentifull Authorityes in our Bookes Devise Release c. 8. If a man devise Land upon Condition Co. ibid. 223. a. 1. that the Devisee shall not alien the Condition is void And so it is of a Grant Release Confirmation or any other Conveyance whereby a Fee-simple doth passe for it is absurd and repugnant to reason that he who hath no possibility to have the Land revert to him should restraine the Feoffee Devisee or Grantee in Fee-simple of all his power to alien Chattells 9. If a man be possest of a Lease for yeares or of an House Co. ibidem or of any other Chattell reall or personall and give or sell his whole Interest or Property therein upon Condition that the Donee or Vendee shall not alien the same this is a void Condition because his whole Interest and Property is out of him so as he hath no possibility of a Reverter and it is also against Trade and Traffick and bargaining and contracting betwixt man and man Iniquum est ingenius hominibus non esse liberam rerum suarum alienationem Again Rerum suarum quilibet est moderator arbiter Take also this Rule Regulariter non valet pactum de re mea non alienanda Seigniory in Rent c. 10. If a man be seised of a Seigniory Rent Advowson Common Co. ib. a. 3. or any other Inheritance that lyeth in Grant and by his Deed granteth the same to a man and to his Heires upon Condition that he shall not alien this Condition is also void for the repugnancy Howbeit some have sayd
of Westm 2. cap. 25. saith of it quia non est aliquod breve in Cancellaria per quod querentes habent tam festinum remedium sicut per breve novae disseisinae c. And as the Law favours an Assise so likewise it favors all such things as may speed and expedite it and abhors any thing Pl. ibid. 89. b. assise of Fresh force in London that may hinder or retard it And therefore upon a bare surmise that the Sherif is allyed fo either party the writ shall be at first directed to the Coroners and this shall be no exception to abate the writ and many other exceptions which abate other writs shall not abate an Assise because it is much favoured in Law by reason of the expedition and dispatch which accompanies it and wherein the Law takes much delight and satisfaction Vide Dyer 84. b. 83. Co Inst pars 1. 155. a. 2. 6 Albeit the writ of Assise command the Sherif Assise Quod faceret duodecim liberos et lega les homines de vicineto c. videre tenementum c. yet by antient Course the Sherif must return 24 and this is for expedition of Iustice for if twelve should only be returned no man should ever have a full Iury appear or be sworn in respect of Challenges without a Tales which would be a great delay of trials 176 Hateth Delayes Co. Inst pars 1. 32. b. 4 1 Some say that the demandant in a writ of Dower Dower who procureth or suffereth delays in that sute shall not recover damages Co. ibid. 126. b. 4. 2 The cause of an Amerciament in a plea real Amerciament personal or mixt where the King is to have a fine is for that the tenant or defendant ought to render the demand as he is commanded by the Kings writ the first day which if do he shall not be amerced so as for the delay which the tenant or defendant doth use he shall be amerced Co. ibid. 128. a. 4. 3 If the defendant plead in disability of the person an Outlawry of the same Court he shall not need to shew it forth presently Outlawry or if he plead an outlawry in barr and it be denied then he shall have a day to bring it in But if he plead an Outlawry and offer withall to shew it to the Court he must shew forth the record of the Outlawry maintenant sub pede sigilli because the plea is but dilatory Co. ibid. 158. a. 2. 4 After challenge to the Array and trial duly returned Challenge if the same party take a challenge to the Polls he must shew cause presently so if a Iuror be formerly sworn if he be then châ—llenged the party challenging must shew cause presently and that cause must rise since he was sworn likewise when the King is party or in an appeal of felony the defendant that challengeth for cause must shew his cause presently Co. ibid. 161. a. 3. 5 To Counterplead the plaintif in an Assise Counterplea by which he is delayed maketh him that pleadeth it a disseisor Otherwise it is if he had pleaded Nul tort c. Co. ibid. 260. b. 3. 6 If a man be out of the Realm Recovery and a recovery be had against him in a Praecipe by default In this case he shall not avoid such recovery because by such means a man might be infinitely delayed of his freehold and Inheritance whereof the Law hath so great regard and few or none go over but of their own freewill neither is he in such case without his ordinary remedy either by his writ of an higher nature or by a Quod ei deforceat Howbeit it is otherwise of outlawry in a personal action for de minimis non curat lex Outlawry Imprisonment and he should otherwise be without remedy Also as to a recovery there is a difference betwixt being beyond sea and imprisonment c. Co. ibid. 390. b. 3. 7 If a man be convicted of felony by verdict Voucher and delivered to the Ordinary to make purgation he cannot be vouched for that the time of his purgation if any should be is uncertain and the demandant cannot be delayed upon such an incertainty besides the tenant is not without remedy for he may have his warrantia cartae Co. l. 4 35. b. 1. in Bozouns case 8 If the King grant a protection in a Quare Impedit Protection or an Assise with a non obstante of any Law to the contrary that grant is void for by the Common Law a Protection lieth not in either of these cases for the damage that may happen to the plaintif by such great delay and a non obstante cannot avail when by the Common Law the King cannot grant the thing it self Stat. 36 E. 3. â— 9 The Statute of 36 E. 3. Stat. 1. cap. 13. Co. l. 4. 58. a. 2. in the Sadlers case which gives traverses to offices of lands seised into the Kings hands shall be taken generally according to the letter and intention of the said Act because it is for the advancement and execution of Iustice against grievous and tedious delays Ad admittend 〈◊〉 10 In a Quare Impedit if the defendant do not come in at the distress returned against him F.N.B. 38. n. the plaintif shall have a writ ad admittendum clericum directed to the Bishop without making any farther title â—â—cedendo 11 If the Iudges of any Court as well of record as other do delay the party plaintif or defendant F.N.B. 153. b c d. and will not give judgement for him when they ought to do it In this case the party grieved may have a writ de procedendo ad judicium directed to such Iudges or Iustices and thereupon an alias and pluries if they will not procéed to give Iudgement and after that an attachment if they please directed to the Coroners and returnable into the Kings Bench or Common Pleas. Assise 12 The Law favours all things Pl. Co. 75. b. 4. Wimbish the Lo. Will. which have spéed and expedition in them and abhorrs all delayes which retard or delay Iustice and therefore an Assise which by the Statute of Westm 2. cap. 25. is said to be festinum remedium is much favoured in Law so as a writ of Assise upon a bare surmise shall be at first directed to the Coroners without first directing it to the Sherif and then upon a challenge to the Array to have it afterwards directed to the Coroners which is the ordinary course for other writs 177 Unnecessary Circumstances And therefore Frustrafit per plura quod fieri potest per Pauciora The entry of the issue conâ—eable after discontinuaâ—ce 1 In a praecipe where the demandant is to recover damages Co. Inst part 1. 362. b. a. if the tenant plead non-tenancy or disclaim there the demandant
the writ should by the non-return of the writ be tortious then the Sherif will never find buyers to whom he may sell any defendants goods by force of any writ of execution which would be inconvenient and great delay of executions which are the fruit and life of every sute 30 If a rent be granted out of the Manor of Dale Rent charge and the grantor grant over Co. l. 7. 24. a. 3. Buts case that if the rent be behind the grantee shall distrain for the same in the Manor of Sale this is no grant of the rent but only a penalty in the Manor of Sale for if the grantée should bring a writ of Annuity that would only extend to the Manor of D. for upon the grant of the distress in the Manor of Sale no writ of Annuity lyeth because the Manor of S. is only charged and not the person of the grantor as to that And therefore the bringing of the writ of Annuity cannot discharge the Manor of S. of any rent And so the Law by construction against the words and intention of the parties shall doe an injury to the grantor to charge him twice which were inconvenient Co. l. 9. 85. a. 4. in Connys case 31 In a writ of Mesne the Paroll shall not demurr for the nonage of the plaintif because it is not reason Parol demur nonage that the Infant should be distrained for the services of the Mesne during his nonage and yet he to have no remedy until his full age but in regard his nonage shall not privilege him from the payment of the rent during his nonage the Law will also give him remedy during that time Writ of Error 32 These two Rules in Law are regularly true Co. l. 11. 41. a. 1. in Metcalfs case 1. That a writ of Error lyeth not upon an award until the principal judgement be given 2. That it lyeth not until the whole matter in the original be determined yet each of these have exceptions For as to the first in Trin. 18 H. 7. in B. R. Rot. 3. E. was indicted for the death of M. before Iustices of Peace in the County of Lincoln whereupon a Capias was awarded and thereupon also an Exigent after which E. dies before any Attainder upon which award of the Exigent his executors bring a writ of Error and it was adjudged that the writ of Error did well lie because by the award of the Exigent his goods and chattels were forfeit and of such awards which tend ad grave damnum of the party a writ of Error lyeth sic de similibus As to the second you shall find in 36 H. 6. Fieri fac 3. That in debt against divers by several praecipes if there be error in the Iudgements against one of them he shall have a writ of Error for in Originals wherein there are several Counts and Error is against one he shall have a writ of Error and the record of his Count and the pleading c. shall be severed from the original and removed into the Kings Bench and yet the Original shall still remain in the Common Place for it would be inconvenient and prejudicial in that case to stay until judgement be given upon the whole original Howbeit where there is one original and one Count he cannot have a writ of Error untill all be determined for the record cannot be in the Kings Bench and the Com. Pl. all at one time Collusion 33 It is provided by the Statute of Marlebridge cap. 6. that the Lord by Knight service shall not lose his custody by feoffment made by Collusion Co. l. 11. 77. b. 3. in Magdalen Colleges case veruntamen non licet eis hujusmodi feoffatos sine Iudicio disseisire fed brevia habeant de hujusmodi custodia sibi reddenda yet if the tenant enfeoff the Villein of the Lord upon collusion the Lord may enter and expell him and shall not be put to his action as it is held in 33 H. 6. 16. for the general words of the Act shall not enable the Villein who is disabled against his Lord by the Common Law and if the Lord should bring an action against him according to the letter of the Act he shall be thereby enfranchised which would be a prejudice to the Lord and was never intended by the Makers of that Act. Intent of the Law performed no breach 34 In every Law there are some things which when they happen Pl. Co. 18. a. 4. in Fogassaes case 19 b. 1. a man may break the words of the Law and yet not break the Law it self and such things are exempt out of the penalty of the Law albeit they are done against the letter of the Law for the breaking of the words of the Law is not the breaking of the Law so as the intent of the Law is not broken and when the words of the Law are broken for the avoiding of greater inconveniences For example it is against the Law for any man to assault bind or beat another yet in the 22. Book of Assises pl. 56. If a man be mad and out of his wits whereby he doth or is likely to do great hurt other men may assault bind and beat him too and justifie it by Law to prevent the hurt and mischief which he may do in that condition So the Statute of Marlebridge cap. 4. prohibits generally that none shall convey a distress out of one County into another yet it is adjudged in 1 H. 6. Tit. Distress 1. that if one hold land of a Manor in another County the Lord may distrain and bring the distress from the land holden of the Manor into the County where the Manor is and this is for the avoiding of a mischief inconvenience for it would be great damage to the Lord if he might not bring the distress to his Manor for the avoidance whereof the Law is not offended albeit the letter of the Law is not observed In like manner there was a Law amongst the Romans that whosoever scaled the walls in the night should be condemned to die yet in the time of warr one scaled the walls in the night to discover the approach of the Enemy and he was by the Senate not only discharged of death but besides was well rewarded for that his service to the Commonwealth for although he thereby infringed the words of the Law yet the grave Senators expounded it to be no breach of the intent of the Law because that Law was made to prevent hurt and danger and not to inhibit benefit and safety to the City So likewise in Fogassaes case the incertainty of the word being caused for the avoiding of a great inconvenience viz. the loss of many mens lives shall excuse the incertainty of the agreement with the Collector Pl. Co. 100 b. in matters of the Crown 35 In an appeal of murder against five Trial. if one Venire
the defendant in the writ of error F.N.B. 37. f. g. 5 In a Quare impedit or darrein presentment if the plaintif suspect Ne admittas that the Bishop hanging the plea will admit the defendants Clerk the Law gives the plaintif a writ of Ne admittas within the six moneths to inhibit the Bishop so to innovate to his prejudice hanging the plea The words of the writ are these Prohibemus vobis ne admittatis personam ad ecclesiam de B. quae vacat ut dicitur de cujus advocatione contentio mota est in Curia nostra inter A. B. donec discussum fuerit in eadem Curia ad quem eorum pertineat ejusdem ecclesiae Advocatio F. N. B. 43. 1. 6 If a man sue a Quare Impedit and deliver it upon record Prohibition as he may and after the defendant or his clerk sues a Citation against the presentee of the plaintif In this case the plaintif in the Quare Impedit shall have a prohibition in the Common Place before the return of the Quare Impedit because it appears upon record that such a Quare Impedit is depending F.N.B. 48. o. 7 If a man hath a Quare impedit Quare incumbravit and he sue a Ne admittas to the Bishop and after the Bishop encumbers the Church within the six moneths with his own Chaplein or with the Chaplein of the defendant here the plaintif shall have a writ of Quare incumbravit to prevent such disturbance hanging the sute in the Quare Impedit F. N. B. 71. e. f. m. 8 If a man distrain for rent or service Recaption and after hanging the plea distrains again for the same rent or service In such case he that is so distrained shall have a writ of Recaption and shall recover his damages for the second distress so taken and he that distrained shall make fine for the wrong he hath done albeit the first distress was lawfully made and the rent is still in arrear 182 Infiniteness and multiplicity of sutes Co. Inst part 1. 56. a. 2. Co. l. 5. 73. a. 3. in Williams case 1 There is a diversity between a private way Publique nusance which serves for a private mans use or occasion and a publique way which is a Common passage for if a man be interrupted in a private way he shall have an action upon his case and recover damages according to his prejudice But if the way be a Common way and any man be disturbed to go that way or if a ditch be made overthwart the way so as a man cannot pass yet he shall not have an action upon his case and this the Law hath provided for avoiding multiplicity of sutes for if any one man might have an action all men might have the like But the Law for this common nusance hath provided an apt remedy and that is by presentment in the Léet or in the Turn unless any man have a particular damage as if he and his horse fall into the ditch whereby he receiveth hurt and loss there for this special damage which is not common to others he shall have an action upon the case And all this was resolved in the Kings Bench 27 H. 8. 27. And in that case it was said that it had béen adjudged in that Court betwéen Westbury and Powell that where the Inhabitants of Southwark had by custom a watering place for their cattel which was stopped by Powell that in that case any Inhabitant of Southwark might have an action for otherwise they should be without remedy because such a nusance is not presentable in the Leet or Turn Plea 2 In an action against two if one of them plead to the writ Co. Inst pars 1. 125. b. 3. and the other to the action the plea to the writ shall be first tried for if that be found all the whole writ shall abate and make an end of the business So likewise in a Personal action against two defendants if one defendant pleads that which extendeth only to himself and the other plead a plea which goeth to the whole this last plea shall be first tried and if that be found for the defendant that pleaded it that shall discharge both and the particular plea of the other defendant shall not be tried for example if one of the defendants in trespass plead a release to himself which in Law extends to both and the other pleads not guilty which extends but to him that pleads the plea which goeth to the whole and dischargeth both shall be first tried for if that be found it maketh an end of the sute and the plea of the other defendant shall not be tried Howbeit the Law is otherwise in Real action for which vide ubi supra Descent a full entry 3 If a recovery be had by A. against B. and before execution B. die seised this descent shall not take away the entry of the Recoveror Co. ibid. 237. b. 4. and so it is also in case of a fine for if that were admitted there would be no end of sute but a new one would be occasioned So likewise if a recovery be had against tenant for life where the remainder is over in fee tenant for life dieth he in the remainder entreth before execution and dieth seised here also the entry of the Recoveror is lawfull not only because he in the remainder is privy in estate but likewise for that otherwise it would occasion a new sute Howbeit the Law is otherwise of an Advowson because at the Common Law every presentation to a Church did put the rightfull Patron out of possession and did put him to his writ of right whether the presentation were by title or without Things in action 4 The Common Law for avoiding of Maintenance Co. ibid. 214. a. 3. suppression of right and stirring of sutes at Law hath provided that nothing in action entry or re-entry shall be granted over because under colour thereof pretended titles might be granted to great men whereby right might be trodden down and the weak oppressed which the Common Law abhorrs as also that men should grant any thing before they be in possession thereof which might occasion sutes and troubles Divine service 5 A man that by prescription hath had Divine service celebrated Co. l. 5. 73. Williams case the Sacraments administred upon every Sunday and Holiday at his Chapel within the Manor of D. for his own family upon failer thereof may have an action upon the case against the Chaplein that neglects to perform it because such a prescription will be intended to commence by some grant But when the Chapel is not a private Chapel for him and his family only but publique and common to all his tenants of the said Manor which may be many In such case no action of the case lyeth for the Lord for then every tenant may also have an