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the Bishop might deliver him to the Sheriffe to be burnt and that without the Kings writ but that Statute was repealed by 25 H. 8.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
in the Mannor As if A. gives the Mannor of B. to B. in taile and after the Donor is attainted of treason whereby the King is seised of the reversion and after by his Letters patents grants Manerium de D. to another and his heirs In this case albeit the King grants the Mannor of D. is in possession yet the reversion shall passe for the King hath an estate viz. the reversion in fée grantable in him the estate taile of the common person néed not be recited c. The King not deceived 31 If the King be Tenant pur auter vie Co. l. 7. 12. a. 4. in Englefeilds case and makes a lease for forty years Here albeit the King having but an estate pur auter vie cannot absolutely contract for a lease of forty years yet without any recital or mention of the estate for life the lease is good for the lease for years is in judgment of Law lesse than a lease pur auter vie and the King doth no wrong or prejudice to any by such a demise neither yet is he deceived in his grant because in judgement of Law that is a lease for forty years if Cestuy que vie shall so long live c. Fine in a court Leet 32 If for an amerciament upon an offence committed out of a Court Léet and found by the Iury whereof the Iury onely have conisance and for which they onely are to impose the amerciament the Lord of the Léet hath power to distrain Co. l. 8. 41. a. 4. in Greisleys case c. Much more for a fine imposed by the Steward in Court for some contempt c. committed in the Court it self and whereof the Steward only hath conisance shall the Lord c. distrain the goods of the party offending and impound them c. or else make sale thereof at his election c. A lease for years lesse than an estate for life 33 If a man upon a grant reserve unto himselfe power to make leases so that they shall not excéed 21 years or thrée lives In that case Co. l. 8 70 b. in Whitlocks case he may make leases of 99 years if any three shall so long live because such a lease excéeds not thrée lives but is in truth lesse for an estate for years which is but a Chattel is lesse in estimation of Law than an estate for life which is a Franktenement An Officer may make a Deputy 34 When an Officer hath power to make assignes he hath power Co. l. 9. 48. b. 4. in the Earl of Shrewsburies case implicite to make Deputies For Cui licet quod majus est non debet quod minus est non licere And therefore when an office of Stewardship or the like is granted to one and his heirs he may thereby make an Assignée and by consequent also a Deputy c. An arrest within the liberties of London 35 In Mackallyes case in the 9 Rep. exception was taken to the Indictment viz. that the precept was to arrest the Defendant Co. l. 9. 67. a. 1. in Mackallyes case Si inventus foret infra libertates Civitatis praedicti viz. London And the Indictment was Quid in parochia Sancti Martini Bowyer Rowe in Warda de Farringdon infra Londinum praedict the Serjeant arrested him and so he pursued not the precept for the precept was infra libertates London But notwithstanding that exception the Indictment was resolved to be good because the said Parish and Ward in London shall be intended to be within the liberties of London For these words liberties of London have a larger extent than the word London and do include in them the Citie of London it self c. Justices of the Kings Bench are Justices of Gaol delivery Oyer and Terminer 36 The Justices of the K. Bench are taken to be within the words of the stat of 2 E. 6. cap. 24. which ordains Co. l. 9. 118. b 2. in the Lord Sanchiers case that for the tryal of accessaries in another County than where the principal was indicted Certificat of the Indictment of the principal shall be made to the Iustices of Gaole delivery or of Oyer and Terminer before whom the accessary is to be tryed c. for that the Iustices of the K. Bench are the sovereign Iustices of Gaol delivery of Oyer Terminer and therefore they are included within the same words And upon the same ground it is holden in 7 E. 4. 18. 4 H. 7. 18. that if an indictment of forcible entry be removed into the Kings Bench the Iustices of that Bench shall award restitution and yet the Sâ—at of 8 H. 6. cap. 9. speaks onely of Iustices of Peace but the reason is because the Iustices of the Kings Bench have sovereign and supream authority in such cases And therefore in the Lord Sanchiers case in the 9 Rep. the Iustices of the Kings Bench wrote according to the said Act of 2 E. 6. to the Iustices of Gaole delivery in London before whom the Principal was tryed c. who thereupon certified the record accordingly c. Co. l. 11. 60. a. 3 Doctor Fosters case 37 The Statute of 23 Eliz. cap. 1. which ordains Attaint moâ—â— than conviâ—â— that every person c. being lawfully convicted of not going to Church c. shall forfeit xx l. per mensem c. séems to intend onely conviction by verdict because that being a penal Law shall not be understood by equity Yet in that case he against whom any judgement is given either upon a Nihil dicit or upon an insufficient plea pleaded and demurrer thereupon is convict within the purview of the same Stat. For albeit this will not follow Such a man is convict therefore he is also attaint and judgement is given against him Yet this is a good consequence Such a man is attainted or adjudged ergò he is convict For he that is attainted or against whom judgement is given is convict and more c. 22. F. N. B. 56. 1. 38 In a writ of Waste if the premisses thereof rehearse Quare Waste cum de Communi Concilio regni nostri Angliae provisum sit quod non liceat alicui facere vastum c. in terris domibus boscis gardinis And in the end of the same Writ it is alleaged quod defendens vastum fecit in terris onely or in boscis onely or in houses onely yet is the Writ good For omne majus continet in se minus c. F. N. B. 136. f. 39 If the Tenant holds by the services Tenure by which the Mesne holds over and also by some other this is good equality to have acquital because it is such and more c. F. N. B. 150. p. 40 Glanvile saith that ad ostium ecclesiae Dower ad â—â—um man cannot assigne for dower more than a third part and if he doth the
Longeville Madame de Chevreuse c. 61 A matter of higher nature determineth a matter of lower nature contrà Co. Inst pars 1. 83. a. 4. 1 If a Tenant by Castle-guard do serve the King in his warre Castle-guaâ—â— he shall be discharged against the Lord according to the quantity of the time that he was in the Kings host Co. ib. 115. a. 3 2 If there be any sufficient proof of record or writing against a prescription A record or writing quaâ—eth a â—rescrâ—ption albeit such a record or writing excéed the memory or proper knowledge of any man yet are they within memory of man and shall quash the prescription for a matter in writing shall determine a matter in fait and a record or sufficient matter in writing are good memorials and therefore it is said litera scripta manet and when we will by any record or writing commit the memory of any thing to posterity the phrase is tradere memoriae c. 21 H. 7. 5. 3 A man hath liberties by prescription The like and after taketh a grant of those liberties by Letters Patents from the King this determineth the prescription for a matter in writing determineth a matter in fait Finch 22. Co. l. 6. 45. a. 4. Higgens case Vide ib. parl auth 33 H. 8. Dyer 50. Pl. 4. 4 If an offence which is murther at the Common Law Murder dâ—â—ned by treason be made treason no appeal shall lie of it because the offence of murther is drowned and it is punishable as treason onely whereof no appeale lyeth c. Finch 2â— Co. ib. 41. b. 4. 5 If A. be Tenant for life the remainder or reversion to B. for life Tenant for life may sâ—â—render to the reversioner 〈◊〉 life in this case A. may surrender to B. For the estate of B. for term of his own life is higher than an estate for another mans life and therefore if Tenant for life enfeoff him in the remainder for life this is a surrender and no forfeiture And generally from this ground it is that estates of lower nature are drowned in others of higher nature when they méet together in one and the same person Hereupon also ariseth extinguishment betwéen Lord and Tenant c. Co. l. 541. a. 2. in Sparrows case 6 If a man bring an action of Debt by bill in London or Norwich Suit in a lower Court abates not 〈◊〉 in an highâ— or in any other inferiour Court and after bring a writ of Debt in the Common Pleas that suit in the higher Court which is purchased hanging the suit in an inferiour Court shall not abate as appears in 7 H. 4 8. 3 H. 6. 15. Vide 43 E. 3. 22. 7 H. 4. 44. Briminghams case Co. l. 6. 45. a. 2. in Higgins case 7 After judgement upon an obligation for Debt A Iudgmenâ— destroys a bond so long as that judgment remains in force the Plaintiff cannot have a new action upon thâ—t obligation For as when a man hath a debt by simple contract if he take an obligation for the same debt or for any part thereof that taking of the obligation determines the former contract 3 H. 4. 17. 11 H. 4. 9. 9 E. 3. 50 51. So when a man hath a debt upon an obligation and by the ordinary course of Law hath judgement thereupon the contract by specialty which is of a lower nature is by the judgement of the Law changed into a matter of record which is of an higher nature Vide 56. 4. Co. l. 6. 45. a. 4. ibid. 8 If a man hath an annuity by déed or prescription The like and bring a writ of Annuity and hath judgement So long as this judgement remains in force he shall never have a writ of Annuity more albeit the Annuity be of inheritance but shall in that case have a Scire facias upon that judgment because the matter of specialty or prescription is altered by the judgement into a thing of an higher nature Vide 37 H. 6. 13. Iudgment in an action of forging a false déed is a good barre in another action upon the same forger But if recovery be in debt upon an obligation per Justicies there notwithstanding such judgement the Plaintiff may have an action of debt upon the same obligation in a Court of Record For the County Court being not a Court of Record the obligation is not by a judgement in that Court changed into any other thing of an higher nature but so long as such judgement remains in force the Plaintiff shall not have any other action upon the same obligation by Justicies in the same Court M. 2. Jac. Rol. 3172. in Com. Banco 11 H. 4. Br. Faits 19. Howbeit if a man be indebted upon an obligation and afterwards acknowledg a Statute Staple for the same debt and in full satisfaction of the said obligation in that case the Creditor may sue which of them he pleaseth for a Statute Staple or obligation in nature thereof is but an obligation recorded and an obligation be it of record or not of record cannot drown another Also a bare obligation and an obligation in nature of a Statute Staple are two distinct bonds made by assent of the parties without processe of Law whereof the one hath no dependance upon the other but in an action brought upon an obligation the suit is grounded upon the obligation as the edifice upon a foundation and the Plaintiff hath judgement to recover the debt due by the same obligation so that by a judicial procéeding and act in Law the debt due by the obligation is transformed and metamorphosed into a matter of record And a judgement in a Court of Record is a higher matter than a Statute Staple Statute Merchant or any recognisance acknowledged by assent of parties without judicial procéeding No Oyer and Termin where the K. Bench sâ—ts 9 In the Lord Sanchiers case in the 9 Rep. it was moved Co. l. 9 118. b. 3. in the Lord Sanchiers case in the case of the Marshalsie Co. li. 10. 73. b. 4. whether the said Lord Sanchier might not in the Term-time be indicted arraigned and convicted at Newgate before Commissioners of Oyer and Terminer for the County of Middlesex and it was resolved that he could not For the Kings Bench is more than an Eire and therefore in the Term-time no Commissioners of Oyer and Terminer or of Gaole delivery by the Common Law may sit in the same County where the Kings Bench sits because in praesentia majoris cessat potestas minoris And with this accords the 27 Assises Pl. 1. But Carlisle and Inweng the two Confederates of the Lord Sanchier were indicted and attainted in London where the murther was committed before Iustices of Oyer and Terminer in the Term-time because it was in another County than where the Kings Bench sate No Marshalsie wher 's the
Kings licence â—â—shops Court 〈◊〉 Rec. certif 13 A Bishop being an Ecclesiastical Iudge Co. ibib 134. b. 2. and sometimes a Lord of Parliament by reason of the Barony annexed to his Bishopricke the Law giveth much Honor and Reverence unto him And therefore none but the Kings Courts of Record as the Court of Common Pleas the Kings Bench Iustices of Goale-delivery and the like can write to the Bishop to certifie Bastardy Mulierty Loyaltie of Matrimony and the like Ecclesiastical matter For it is a Rule in Law that none but the King can write to the Bishop to certifie And therefore no Inferiour Court â—â—feriour â—ourt as London Norwich Yorke or and other Incorporation can write to the Bishop but in those Cases the Plea must be removed into the Court of Common Pleas and that Court must write to the Bishop â—â—are Impeâ—â— Wales and then remand the Record again and this is the reason why a Quare Impedit did lie of a Church in Wales in the County next adjoyning for that the Lordships Marchers could not write to the Bishop Neither shall Conusance be granted in a Quare Impedit because the Inferior Court cannot write to the Bishop And herewith agréeth Antiquity Bract. l. 3. 106. Fleta l. 5. c. 24. Britton 248. b. Nullus alius praeâ—er Regem potest Episcopo demandare Inquisitionem faciendam And another speaking of Loyalty of Mariage Nec alius quà m Rex super hoc demandaret Episcopo quod inde inquireâ—et Episcopus alterius mandatum quà m Regis non debet obtemperare And herewith also agréeth Britton Co. ibid. 137. b. 3. F. N. B. 79. a. If a Villain remaine in the Ancient Demean of the King a year and a day without clayme or seisure of the Lord Villein Ancient Demesne no 〈◊〉 the Lord cannot have a writ of Nativo habendo or seise him so long as he remains and continues there And the reason of this was in respect of the service he did to the King in Plowing and tillage of the Demeanes and other labours of Husbandry for the Kings benefit Glanv l. 5. c. 5. Fleta l. a. c. 44. Britton fol. 79. Mirr cap. 2. And herewith agrée old books which say that his Immunity was sometimes granted by common consent to the King for his profit and for the helpe and ease of his Villains So likewise Priest Chappel if a Villain be a Priest of the Kings Chappel the Lord cannot seise him in the presence of the King for the Kings presence is a priviledge and protection for him 27 Ass Pl. 49. Co. ibidem 15 If a Villain be professed a Monke or a Wife a Nun Villein the Lord cannot seise them c. Co. ibid. 156. a. 3. 16 If a Peere of the Realme or Lord of Parliament be demandant or Plaintiffe Tenant or Defendant Lord Knight Jury there must a Knight be returned of his Iury or else the Array may be quashed but if he be returned albeit he appeare not yet the Iury may be taken of the residue And if others be joyned with the Lord of Parliament yet if there be no Knight retured the Array shall be quashed against all So also in the like case in Attaint there ought to be a Knight returned of the Iury Note That this present Parliament which commenced Anno 16. Can. Bishops were by Act of Parliament excluded the house of Lords Bishops and therefore Quere whether at this day this Law holds in their Case or no Howbeit it seemes still to hold because they still retaine their Baronies in respect whereof they enjoyed Places and had votes in that house and doublesse shall still retaine divers other Priviledges which of right belong to Temporall Peeres that have Baronies Tamen quaere Co. ibid. 156. l. 6. b. 3. 17 At the Common Law Challenge peremptory any subject under the degrée of a Peere of the Realme upon an Indictment or Appeale of Treason or Felonie against him might in favorem vitae challenge peremptorily viz. 35. or any other number under thrée Iuries But a Lord of Parliament that being a Peere of the Realme is to be tryed by his Peeres shall challenge none of them because they are not sworne as other Iurors be Peere 〈◊〉 Challenge but find the partie guilty or not guilty upon their faith or allegiance to the King and they are Iudges of the fact and every of them doth separately give his Iudgement beginning at the lowest c. How the Common Law hath been altered concerning peremptorie Challenges see Co. ubi in margine Co. ibidem 18 A Péere of the Realme or a Lord of Parliament as a Baron Peere no â—â—ror Viscount Earle Marquesse and Duke propter honoris respectum in respect of honor and Nobility are not to be sworne on Iuries and if neither party will challenge him he may challenge himselfe For by magna Carta it is provided Quòd nec super eam ibimus Lords Commoâ— nec super eam mittemus nisi per legale judicium parium suorum aut per legem terrae Now the Common Law hath divided all the subjects into Lords of Parliament and into the Commons of the Realme Trial per pares The Péeres of the Realme are divided into Barons Viscounts Earles Marquesses and Dukes The Commons are divided into Knights Esquires Gentlemen Citizens Yeomen and Burgesses and in judgement of Law any of the said degrées of Nobility are Péeres to another as if an Earle Marquesse or Duke be to be tryed for treason or felonie a Baron or any other degrée of Nobility is his Péere In like manner a Knight Esquire c. shall be tryed per pares and that is by any of the Commons as Gentlemen Citizens Yeomen or Burgesses So as when any of the Commons is to have a triall either at the Kings suit or betwéen partie and partie a Péere of the Realme shall not be impanesseâ— in any Case Words of conâ—â—son bind in â—he Kings case â—nd of a wil. 19 If a man maketh a Feoffment in Fée ad faciendum or faciendum Co. ibid. 204. b. 4. or ea intentione or ad effectum or ad propositum that the Feoffée shall do or not do such an Act none of these words make the State in the Land conditional For in judgement of Law they are no words of Condition and so was it resolved Hill 18 E. in Co. Banco But this is to be understood in the Case of a common person for in the Kings case these or the like words do create a Condition and so it is also in the Case of the will of a Common person c. Condition not â—estroyed in â—â—e Kings case 20 A Common person being grantée of part of a reversion of Land Co. ibid. 21â— a. 3. shall not take advantage of a Condition by force of the Statute of 32 H. 8. cap. 34. As if
the Act And M. 25 26 Eliz. in Boswells Case in Curiam Wardorum it was resolved that when an Act makes any conveyance good against the King or any other person or persons in certaine this shall not take away the right of any other albeit there be no saving in the act to preserve his right c. Co. l. 8. 145. b. 2. in Davenports Case 28 The Earle of Huntington being possest for 15 yeares of a Rectory unto which a Vicarage was appendant Procheine Avoidance infra 〈◊〉 grants the prochiene avoydance thereof and dies his Administrator surrenders the Vicarage becomes void within the terme And in this Case it was resolved that the term notwithstanding extinct by the surrender yet as to the grantée who was a person had continuance c. Co. l. 9. 135. b. 2. in Astoughs Case 29 It is regularly true Coperceners Disseisor that a Seigniory cannot be suspended in part and in esse for part as it is holden in 32 H. 8. Extinguishment Br. 48. neverthelesse habet haec regula plures fallentias as if there be two Coperceners of a Seigniory and one of them dissieseth the Terre-tenant or comes to the Land by defensible title the other may distraine her for her moity of the Signiory for the practise of her Copercener against the Terre-tenant cannot prejudice her in that Case Co. l. 9. 141. a. 2. in Beaumonts Case 30 If a disseisor make a gift in taile Tenant in 〈◊〉 Fine no baâ— the Donée makes a feofment to A. and after levies a fine with proclamations to B. who had nothing c. This fine with proclamations shall barre the issues in taile because the issues in taile being privy shall not plead quòd partes finis nihil habuerant But it shall not barre by the disseisée because the fine as to him was void So that in this Case as to the heires in taile the fine shall bind but not as to the disseisée who is a stranger So likewise in Beaumonts Case in the 9 Rep. fol. 141. the fine levied by the Baron as to the Issues in taile was a barre but not as to the Feme who was a stranger unto it And therefore if there be Baron and Feme tenants in special taile the Reversion to the Donor they have issue the Baron levies a fine with proclamations to a stranger and dies the Feme enters In this Case the Feme hath devested the whole Estate out of the Conusee and revested the Estate taile in herselfe the immediate reversion to the Donor and hath left nothing but a possibility in the Conusée for the practise between the Baron and the Conusée shall not barre the Feme of her right who is a third person Term not extinct by purchase of the fee. 31 A. possest of an house in London for 31 years deviseth Co. l. 10. 52. a. 3. in Lampets Case that Isabel his wife shall enjoy the profits thereof durante Viduitate and that then the residue of the term should remain to B. and dies Isabel by licence of the executor enters into the house and purchaseth the fée and then marries C. whereupon B. enters And it was resolved that he might so do for albeit the whole term was in Isabel quousque c. so that by the purchase of the Fée-simple the interest of Isabel was extinct yet that shall not defeat the executory Interest of B. but that after the marriage of Isabel and not before he may well enter c. Hammington and Rudyars Case Tr. 28. Eliz. rot 1674. cite per Co. Ch. Just ubi in margine In an Act of Parl. the subject concerned 32 Whereas the Act of 32 H. 8. cap. 46. ordains Co. l. 11. 3. b. 4. in Auditor Curles Case that the King shall appoint two to be Auditors of the Court of Wards who shall be accounted as one Officer In this Case the King cannot appoint onely one to execute that Office for that would be a wrong to the subject who by force of that Act are concerned in the appointment of that Officer according to the same Act c. In a popular Action the interest of the Informer not barred 33 After a popular Action commenced Co. l. 11. 65. b. 4. in Doctor Fosters Case albeit the Kings Attorney will enter Ulterius non vult prosequi or if the Defendant plead a special plea wherein the Attorney-General useth to reply alone albeit the Attorney will not reply or prosecute for the King yet the Informer may prosecute for his part because the Informer by commencing that Sult hath made that Action which was popular to become his private Action which neither the King nor any other can release as to the Interest of the Informer Tr. 31 Eliz. Stretton and Taylers Case cite ubi in margine A Praecipe in Câ—â—ite of lands â—ot holden â—tayed 34 If the tenant will sue a Praecipe in Capite in the Kings Court for such Lands as are holden of another Lord the Law will not suffer it F.N.B. 3. d. but that Lord shall in that Case have a writ out of the Chancery directed to the Iustices of the Common Pleas commanding them that if it do not appear unto them that the Lands are holden of the King but of another Lord that then they shall not procéed farther c. in that Plea c. â—ssise de Darâ—in presentâ—ent 35 If tenant for term of years life in Dower or by the Courtesie F. N.B 31. g. suffer an usurpation to the Church c. and the term determines or the tenant dies he in the reversion who is heir to the Ancestor that last presented shall have an Assise de darrein presentment if he be disturbed It is otherwise if his own tenant to whom he himself was Lessor suffer an Vsurpation for then he shall not have such an Assise c. because as it séems it will be then imputed to the Lessors folly that he would not restrain the tenent from so doing by the Covenant c. â—arrein preâ—ntment 36 In Darrein presentment betwéen two strangers F.N.B. 39. c. the Assise finds title for another stranger that was not party to the writ In this Case that third party shall have a writ to the Bishop awarded him albeit he was not party for the writ is Quis advocatus ultimò praesentavit c. F. N. B. 61. b. 37 In a real Action if the tenant make feoffment Estrepement vers tenant feoffee hanging the Plea and the Demandant is in doubt that waste will be committed c. the Demandant may have a writ of Estrepement both against the tenant and also against his feoffée c. And it séems by the same reason that he may likewise have a writ of Estrepement against the tenant and also against those that are his servants naming them by their names c. Albeit they have nothing in the
261. b. 29 In an action upon the case upon Assumpsit the Plaintiff counts Trial of a fact done in France that the defendant at London did assume that such a Ship should sail from Melcomb Reg. unto Abiville in France safely without violence c. and that the Ship sayling thitherwards was arrested by the King of France upon the River of Somme within the Kingdome of France c. And issue was joyned whither the ship was so arrested or not and before Wray Chief Justice in London it was found for the Plaintiff and in arrest of judgement it was moved that this issue arising méerly from a place which was out of the Realme could not be tried and that if it might be tried in England the trial should be by a Iury taken out of Melcomo because by common intendment they might be best acquainted with the arrest But it was resolved that although it be true that where the contract and the performance thereof are both of them done or to be done beyond sea there will want trial in our Law yet in this case the Assumpsit which is the ground and original cause of the action being made at London the trial thereof must of necessity be there also The like case was adjudged in P. 28. El. betwixt Hugh Gynue Plaintiff and Evangelist Constantine Defenaâ—t Co. 7. 6. a 4. Calvins case 30 It is neither Coelum nor Solum but Ligeantia and Obedientia One may be born in England and yet not within the Kings allegiance that make the subject borne for if enemies should come into the Realm and possesse a town or fort and have issue there that issue is no subject to the King of England although he be born upon his soile and under his meridian because he was not borne under the ligeance of a subject nor under the protection of the King c. And therefore when Stâ—phano Ferrara de Gama and Emanuel Lewes Tinoco two Portugals born comming into England under Qu. El. safe conduct and living here under her protection joyned with Doctor Lopez in treason within this Realme against her Majestie In that case two points were resolved 1 That their indictment ought to begin that they intended treason contra Dominam Reginam c. omitting these words naturalem Dominam suam and ought to conclude contra ligeantiae suae debitum But if an alien enemy come to invade this Realm and be taken in warre he cannot be indicted of treason for the indictment cannot conclude contra ligentiae suae debitum because he never was in the Kings Protection nor never owed any manner of ligeance unto him but malice and enmity And therefore such an alien enemy shall be put to death by Martial Law As it was in the case of Perkin Warbeck Anno 15 H. 7. who by the opinion of the Iudges was to be executed by Martial Law which was done accordingly Co. l. 7. 15. a. 3. Calvins case 31 Albeit since K. James tooke upon him the Crown of England A Postnatus cannot be noble in England without creation a Postnatus in Scotland or any of his posterity be the heir of a Nobleman of Scotland and by his birth is legitimated in England so that he may inherit Lande as well as a natural borne subject yet he is none of the Péers or Nobility of England For his natural ligeance and obedience due by the Law of nature maketh him a subject and no alien within England But that subjection maketh him not noble within England because Nobility had his first original by the Kings Creation and not of nature Co. l. 7. 2. a. 4. Bulwers case 32 Vide 3 E. 3. Tit. Assize 446. In debt if a man count of a lease Lease made of Land in another countrey for years in one County of land in another County he ought to bring his action in the County where the Lease was made and not where the land lies for the contract made by the Lease is the ground and cause of the action The action to be laid where the cause began 33 The Plaintiff counteth Co. ibid. 1. Bulwers case that H. H. recovered against him 20 l. in Banco and died before execution and that the Defendant deceptivè outlawed him after Iudgement in the name of H. H. and thereupon impâ—isoned him in Norfolke laying his action in that County where he was imprisoned whereupon the Defendant making objection that the action ought to have béen layd where the wrong did begin by the purchase of the cap. ad satisfact exigit cap. utlag viz. in London It was resolved that the action was well layd in Norfolke where the Imprisonment the most visible wrong was being indéed the chiefe ground and cause of the action Waste and a writ of right of ward to be brought in where the land lies 34 If a Lease be made in one County Co. ibid. 2. b. Bulwers case 14 E. 3. 3. and the land lies in another the action of wast shall be brought where the land lies and not where the Lease was made although the terme be past for the land and damages or damages onely for the wast which is local shall be recovered and are the ground and cause of the suit So also in all actions real if any issue arise upon the land 29 E 3. 3. 38 H. 6. 14. 22 R. 2. Breve 937. or in any action in which the possession of the land or a thing local or that which ariseth upon the land by reason thereof is to be recovered all these shall be brought in the County where the land lies As in a writ of right of ward of land or a writ of intrusion of ward they shall be brought in the County where the land lieth although the refusal or the Seigniory be in another County Likewise in a writ of right of ward of the body onely that shall be brought in the County where the land lies for it is in the right and sawours of the land 21 E. 3. 42. 30 E. 3. 25. 9 E. 3. 12 13. 10 E. 3. 7. But the writ of Ravishment of ward shall be brought where the Ravishment was and not where the land is or where the bodie is carried for that action is founded upon the Ravishment c. 36 H. 6. 14. 22 R. 2. Bre. 937. 12 Eliz. Dyer 289. Condition of Viciâ—age 35 If the Commons of the Town of A. and of the Town of B. are adjacent Co. l. 7. 5. b. 3. Sir Miles Corbets case and ought to have Common promiscuè the one with the other because of vicinage and within the Town of A. there are fifty arcres of Common and in the Town of B. 100 acres of Common In this case the Inhabitants of the Town of A. cannot put more cattle into their Common of 50 acres than it will well kéep without any respect at all to the Common within the Town of B.
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
and his heirs and the Lord admit A. accordingly Tenendum per antiqua servitia inde prius debita de jure consueta or to the like effect and A. commits forfeiture in Black acre he shall forfeit onely that and neither of the other For the said Tenendum reddendo singula singulis continues the severall tenures In like manner if divers several Copiholds escheat to the Lord and he re-grant them to another Tenendum per antiqua servitia c. they shall be severally holden as they were before the Escheat c. Several times for several copies 39 If a man hath severall Copihold lands holden by several services Co. l. 4. 28. a. 1. Hubbert and Hamonds case the Lord ought to assesse and demand fines severally for each parcell so severally holden For the Tenant may refuse to pay the fine for one parcell and forfeit it and may pay the fines for the other because every severall tenure hath a severall condition in Law as an incident tacitè annexed unto it And therefore the Lord ought for every severall tenure to assesse and demand a severall fine The office of Shire-clerk incident to the Sheriffs office 40 Quéen Eliz. grants to one Mitton the office of Clerk of the County Court or the Shire-Clerk of the County of Somerset with all fées Co. l. 4. 33. a. 3. Mittons case c. for terme of his life and after the Quéen makes Arthur Hopton High Sheriffe of the same County who interrupts Mitton claiming that which was granted to him as a thing incident to his office of Sheriffe c. And it was adjudged that the County Court and the entring of all the proceedings in it are so incident to the office of Sheriffe that they cannot by Letters Patents be divided from it and albeit the said grant was made to Mitton when the office of Sheriffe was void yet when the Queen makes a new Sheriffe he shall avoid it c. Exigenter incident to the chief Justice 41 Tempore vacationis Co. ibid. 2 El. Dyâ—r 175. of the office of Chiefe Iustice of the Common Banke Queen Mary grants the office of the Exigenter of London to one Scrogges and it was holden void because it was incident to the office of Chiefe Iustice of the County which the Queen could not have And therefore the next Chiefe Iustice shall avoid it c. Gaoles incident to Sheriffs 42 Grants made by the King of the custody of the Gaoles of Counties are void Co. l. 4. 34. a. 1. in Mittons case per touts les justices because the custody of Gaoles of Counties of right do belong are by the Law annexed incident to the office of Sheriff as doth very well appeare by the judgement in Parliament Anno 14 E. 3. cap. 10. by which it is ordained that all Gaoles of Counties shall be rejoyned to the Sheriffs and that the Sheriffs shall again have the custody of the same Gaols as in times past was used and that they should put in such Gaolers for which they would answer c. Where a covenant binds and where not betwixt Lessor and Lessee 43 In a demise of Land when a covenant extends to a thing in esse Co. l. 5. 16. a. 4. Spencers case parcell of the Demise the thing to be done by force of the Covenant is quodam-modo incident and appurtenant to the thing demised and shall runne with the land and shall also binde the Assignée although he be not bound by expresse words But when the Covenant extends to a thing which hath not essence at the time of the Demise made that which hath not essence cannot be said to be incident or annexed to the thing demised and therefore in that case the Assignée shall not be hound to it unlesse specially named As if the Lessée covenant to repaire the houses c. this is parcell of the contract and extends to the supportation of the thing demised and therefore is quodam-modo incident and annexed to the houses and shall binde the Assignée although he be not expresly bound by the covenant But if the covenant be to build a brick-wall upon parcell of the land demised or the like which was not in esse at the time of the demise made but was to be done afterwards this covenant may binde the Covenantor himselfe and his Executors or Administrators but shall never binde the Assignâ—e because the Law will never annex a covenant to a thing which hath not essence c. It is otherwise Co. ibid. b. 3. if the Covenantor for himselfe and his Assignes covenant to do it for then the Assignes are specially named c. Co. 5. 24. a. 4. The Deane and Chapter of Windsor's case Co. ibid. 17. a. 4. 44 If a man demise or grant land to a Feme for years The like and the Lessor covenants with the Lessee to repaire the houses during the terme the Feme takes Baron and dies the Baron shall have an action of Covenant as well upon the covenant in Law by force of these words Demise and grant as also upon the expresse covenant because such a covenant runs with the land and is incident unto it There is the same Law of a Tenant by Statute Merchant or Statute Staple Elegit or of a terme sold by force of an Execution for in that case also the Vendée of the terme shall have an action of Covenant as a thing incident to the land albeit all these come to the terme by act in Law c. So likewise if a man grant to his Lessee for years that he shall have so many Estovers as shall serve to repaire his house or to burn within his house or the like during the term this covenant is as an incident and appertinent that runs with the land in whose hands soever it falls Co. l. 5. 47. a. 2. Franklins case 45 In a general pardon when an offence is excepted all the incidents and dependants thereupon are also excepted whether they be corporall or pecuniary c. Co. lib. 6. 7. a. 1. Wheelers case 46 If the King grant lands in fée Tenendum de nobis Fealty incident thougâ— not named c. per servitiuÌ„ unius rosae rubae annuatim c. solummodo pro omnibus omnimodis aliis servitiis c. This tenure is soccage in chief and in as much as fealty is incident to every Rent-service the Law annexeth fealty unto the said rent and then these words pro omnibus aliis servitiis are to be understood of other services which the Law doth not imply or add unto the rent so that then the tenure shall be by a Rose and fealty c. Co. l. 6 70. a. 3 Sir Moyle Finches case 47 If there be Lord and Tenant by Fealty and Rent Seigniory eâ—tinct and the Lord disseises the Tenant of the land and makes feoffment in fée by this the Seignory is
was enfeoffed to the end he may have the advantage of the warranty c. Co. l. 7. 9. b. 1. Calvins case 63 Ligeance and obedience on the Subjects part to his Prince Ligeance inseparably incident in all places to the subject is an inseparable incident to that power and protection whereby the Prince may command and ought to defend his Subject And this ligeance and obedience which that power and protection thus draweth after them cannot be locall or confined to any certain place or Kingdom but follows the Subject whethersoever he goeth And therefore it is truly said Qui abjurat regnum amittit regnum sed non Regem amittit patriam sed non patrem patriae c. for notwithstanding the abjuration he still oweth the King his ligeance and still remaineth within his protection because the King if he please may pardon and restore him to his Countrey again c. Littl. §. 366. Co. Inst pars 1. 227. b. 4. 64 If a man seised of lands in fee lets them for life without deed A condition incident to as estate for life rendring rent with clause of re-entry upon non-payment of the rent whereupon if the Lessor enter and the Lessée bring an Assize of Novel Disseisin the Iurors may finde the matter at large and the Iustices ought to adjudge it for the Tenant albeit regularly a condition is not valid without deed shewed in Court and that the Lessor shew no deed for they that have conusance of a thing are to have conusance also of all incidents and dependance thereupon and in this case the condition is an incident necessarily depending upon the estate for life which was perfected by livery Vide supra 28. Dyer 2. 1 2. 6 H. 8. 65 Emson avows for Rent-charge granted to him by a stranger Rent land incident to the person who was seised of the land where c. pro consilio impendendo the Plaintiffe pleads in barre that the Defendant was attainted of Treason and committed to the Tower yet the Grantor had néed of Counsel and could not have accesse c. and upon demurrer the Iudgment was that the Avowant should have return because the rent being incident to the person of Emson could not be granted over or forfeited So likewise land given by the King to a Duke to support his dignity cannot be granted over See Max. 45. Dyer 45. 35. 36. 30 H. 8. 66 The King can by no way grant or sever the tenure and seigniory in Chiefe from the Crown Tenure in Capite for no Subject can take it of his grant with such a prerogative And therefore if the King make a release to his Tenant in Capite to hold by a penny and not in Capite this is a void release for that tenure is méerly incident to the person and Crown of the King and hath such a prerogative that it cannot be held of any Subject as the Tenant in Frankalmoigne cannot hold of any other than of the Donor and of his person because it is a speciall tenure Also if the King at this day make a gift in taile to hold of him in Capite and after he grant the reversion of that land to another in fée neither the tenure nor service passe to the Grantée but remain in the King because they are not incident to the reversion but to the person of the King Dyer 175. 25. 132 Eliz. 67 The office of Exigenter of London being void Exigenter of London and Coke Chief Iustice of the C. B. being then also dead Quéen Mary during the vacation of the said places conferred by her Letters Patents the Exigenters office upon Colshil and then made Brown Chiefe Iustice of that Court But Brown refuseth Colshil and admits Scrogges thereunto And in this case it was resolved by all the Iudges and others save the Iustices of the Common Bench that the said office did not appertain to the Qu. to grant but onely in the dispose of the Chiefe Iustice for the time being as an inseparable incident to his person and place and that by reason of common usage and prescription â—ase of Deâ—esnes 68 A Prior makes a lease of the Demesnes of a Mannor rendring rent Dyer 233. 10. 7 Eliz. the King after the dissolution makes a lease for years of the Mannor And it was adjudged that by the name of the Mannor the rent and reversion of the Demesnes passed â—hattel vestâ—â— 69 A wardship fell to the Bishop of Durham by a tenure of him in Capite who dies before seisure yet his Executors shall have it Dyer 277. 57. 10 Eliz. and not the King or Successor for it was incident to his person and a chattel vested in him before his death 42 Quod tacitè intelligitur deesse non videtur V. 64. 11. â—opiholds 1 When custome hath once created Copiholds of Inheritance Co. l. 4. 22. a. 3. in Brownes case and that the land shall be descendable then the Law doth also direct the descent according to the Maximes and rules of the Common Law as incidents to every estate descendable So 5 E. 4. 7. when uses have gained the eeputation of Inheritances descendable the Common Law shall direct the descent of them and that there shall be Possessio fratris of an use as well as of other Inheritances at the Common Law â—ontract imâ—orts an Asâ—umpsit 2 Every contract executory imports in it selfe an Assumpsit Co. l. 4. 94. a. 4. Slades case For when one agrées to pay money or to deliver any thing he doth thereby assume and promise to pay or deliver it and therefore when one sells any goods to another and agrées to deliver them at a day to come and the other in consideration thereof agrées to pay so much money at such a day In this case both the parties may have an action of Debt or an action upon the case upon Assumpsit For the mutual executory agreement of both the parties imports in it selfe as well a reciprocal action upon the case as an action of debt And with this agrées the Iudgment in Reade and Northwoods case Pl. Co. fol. 128. â—xchange imâ—orts warranâ—â— and a conâ—ition 3 In every exchange rightly made Co. l. 4. 121 a. 4. Bastards case this word Excambium imports in it selfe tacitè a condition and also a warranty the one to give re-entry the other Voucher and recompence and all in respect of the reciprocal consideration the one land being given in exchange for the other but that is onely a special warranty for upon Voucher by force thereof he shall not recover any other land in value but that only which was so given in exchange c. And as it is in case of warranty so is it also in case of the condition which the Law implies upon the exchange for if the exchange be betwixt A. and B. and A. aliens his exchanged land to
of lands of the custome of Burrough English Gavelkind c. Fitz. N. B. 1. 156. b. 48 If Tenant by Receipt upon default of Tenant for life appeare Tenant by â—â—ceipt and to received and pleads and after loseth by action tried c. Yet the Tenant for life may have a Quod ei deforceat upon the Statute of West 2. cap. 4. for the judgement is given against him for his default Dyer 2. 1 2. 6 H. 8. 49 If a Rent-charge be granted out of land pro consilio impendendo Rent chargâ— Prison in 〈◊〉 and the Grantée is afterwards attainted and committed to prison yet he shall not lose the rent for he may give counsel as well in prison as at large Dyer 30. 20â— 28 H. 8. 50 The Feoffées to an use made a lease for life rendring rent Cesty que â—sâ— before the Statute of Vses in this case Cestuy que use who now hath the reversion in possession shall distraine and make Avowry for the rent without attornment So it is if they had granted a rent upon condition the Grantée after the Statute should have holden by the condition in such plight as he did before Law-day Warren 51 There are thrée Coparceners of a Mannor Dyer 30. 203. and the King grants them a Law-day and they afterwards make feoffment of the Mannor yet shall they still retain the Law-day So if a man hath a Mannor and the King grants him frée Warren within his Mannor if he afterwards enfeoff the King of his Mannor without the appurtenances he shall still retain the Warren For a man may have Warren or a Law-day in anothers land per tot Cur. Action upon the case 52 In an action upon the Case the Plaintiff was non sâ—it Dyer 32. 5. 28 29 H. 8. whereupon the Defendant by the Statute of 23 H. 8. 15. had judgement to recover his costs and after the record was removed by Errour in B. R. by the Plaintiff and hanging that suit the Defendant brings an action of Debt in C. B. upon a new original and counts upon the record of an action upon the Case Errour And this matter was pleaded by the Defendant in this action c. And the better opinion of the Court was that the action was maintainable notwithstanding the writ of Errour because it was brought upon a new original Frankalmoign 53 Albeit the Lyturgie or book of Common Prayer was altered by the Statutes of 2 3 Edw. 6. cap. 1. 5 6 Edw. 6. cap. 1. Co. Inst pars 1. 95. b. 2. and 1 Eliz. cap. 2. yet the tenure in Frankalmoign remains the same and such Prayers and Divine Service shall be said and celebrated as in all times shall be authorized by Parliament Câ—mmon Prayer yea although the tenure be as Littleton hath it Sect. 137. A chanter un Messe c. ou a chanter un placebo dirige yet if the Tenant say Prayers in such a form as is lawfully authorized it sufficeth And as Littleton saith Sect. 119. in case of soccage the changing of one kind of temporal services into other temporal services altereth neither the name nor the effect of the tenure so the changing of Spiritual services into other Spiritual services neither altereth the name or effect of the tenure in Frankalmoign For albeit the tenure in Frankalmoigne was reduced by the said Statutes to a certainty contained in the book of Common Prayer and now since to an uncertainty again by extemporary Prayers Yet séeing the original tenure was in Frankalmoigne and the change was and is by general consent in Parliament whereunto as is presumed every man is party the tenure remains as it was at first Tenements devisable 54 Tenements in London divisable by custome come into H. 8. Dyer 155. 21. 4 5 P. M. hands by the dissolution of Abbies and after the King grants them to hold in chiefe by Knights service In this case a Devise of the whole is still good against the heir but quaere whether it be so against the King for wardship or primer seisin by reason of the saving in the Statute of 32 H. 8. cap. 1. Verdicts returned 55 The Clerk of the Assise may Dyer 163. 54. notwithstanding the death of both the Iustices of Nisi prius deliâ—er in Court the Records of the Verdicts taken before the same Iustices in the Circuit c. Death of a Defendant 56 In a Replegiare or an Assise against two Dyer 175. 24. judgement shall not be arrested by the death of one of the Defendants after the last continuance but shall be entred against the Survivor Partition 57 Ioyntenants and Tenants in Common cannot since the Statute of 31 H. 8. 1. make partition by Parol Co. lib. 6. 12. Morrices case no more than they could before for albeit by that Statute they are compellable to make partition yet it alters not the Common Law in that case Assets 58 In debt upon an obligation against the heire it is no plea to say Dyer 179. 43. Dyer 204. 2. that the Executors have assets Vide Dyer 207. 15. Dyer 217. 61. 4 Eliz. 59 A Veniâ—e facias with Proviso was returned served Venire faciaâ— and puâ— upon the file and two hours after a Pluries venire facias which was afterwards pursued by the Plaintiff was also returned and filed each party also pursue their Habeas Corpora which are likewise returâ—ed Howbeit the Plaintiff failed of his Jurat continuand yet this was adjudged no discontinuance because the continuance by the Defendant sufficed Discontinuance and there is no diversity by the entry of the oâ—e or of the other Dyer 229. 49. 6 Eliz. 60 A Feme dies before Livery sued Tenant by courtesie Partition yet in this case the Baron shall be Tenant by the Courtesie and shall sue livery Dyer 243. 55. 8 Eliz. 61 If there be thrée Coparceners and one of them aliens her part another of them brings a writ of Partition against the Alienée and the third Coparcener upon the Statute per Curiam it shall abate because in this case a writ of Partition lyeth at the Common Law as it did before the Statute Dyer 326. 3. 16 Eliz. 62 The Qu. was seised of Whaddon Chase in Com. Bucks De malefactoribus in paâ—â—â— and the Lord Gray was Lievtenant there in fée and he and his Ancestors and their Kéepers had by prescription used to hunt stray Déere in the Demesnes of the Mannor of Salden adjoyning as in Purlewes the Mannor of S. comes into the Quéens hands who grants it to Fortescue in fée wiâ—h frée Warren within the Demesnes thereof Ita quòd nullus intret in warrennam illam ad fugandum fine licentia F. And it was held that the unity of possession in the Quéen of the Chase and the Mannor of S. did not extinguish the
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
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
K. Bench sits 10 At the Common Law the Court of Marshalsie had jurisdiction of Pleas of the Crown and had a general authority in effect Co. l. 10. 71. a. 73. b. in the case of the Marshalsie as Iustices in Eire had for they were in part the Vicegerents of the Chiefe Justice of England within the Vierge Howbeit after that by the Statute of 28 E. 1. cap. 5. the Iustices of the Kings Bench were enjoyned to follow the Court the general authority of that Court as to those purposes vanished because they being onely the Vicegerents of the Chief Justice in his presence their authority ought to cease for in presentia majoris cessat potestas minoris c An entaile extinct in a Fee-simple 11 Sir Thomas Wyat being seised of divers Mannors in taile Dyer 115. 65 66. 1 2 P. M. the remainder in H. 8. in fee in the beginning of Quéen Maries reign forfeits them for treason whereby they escheat to the Quéen In this case the estate tail was utterly extinct and the Quéen is in of her ancient Fée-simple executed for she cannot be in of the Fée-simple determinable upon the entaile because then there would be two Fee-simples in the Qu which is absurd And therefore rather than so the entaile shall be merged in the Quéens ancient Fée-simple Errour 12 An Exigent is returnable by the roll Octabis Mich. but the writ of Exigent was returnable Mense Dyer 211. 32. 4 Eliz. and the Defendant was out-lawed betwixt Octabis and Mense and this was adjudged error because the roll is of more credit than the writ and determines it 62 The more worthy thing draweth unto it things of lesse worthinesse Finch 23. 1 The body of a man is more worthy than land The bodie more worthy than land therefore land shall follow the nature of the person as a Villein shall make frée land to be Villein-land but Villein-land shall not make a frée man to be a Villein So likewise the Kings land which he hath in his natural capacity Co. Inst pars 1. 15. b. 3. shall be demeaned according to the priviledge and prerogatives of his body royal As if the King hath issue a sonne and a daughter by one Venter and a son by another Venter and purchaseth lands and dieth and the eldest son enters and dies without issue the daughter shall not inherit those lands nor any other Fée-simple lands of the Crown but the younger brother shall have them Where note that neither possessio fratris doth hold of lands which are the possessions belonging to the Crown neither yet doth Half-bloud make any impediment to the descent of lands of the Crown as it fell out in experience after the decease of E. 6. to Quéen Mary and from Quéen Mary to Quéen Eliz. both which were of the halfe blood and yet inherited not onely the lands which King Edward and Quéen Mary purchased but also the ancient lands parcel of the Crown A man that is King by descent on the part of his mother purchaseth lands to him and his heirs and dies without issue this land shall descend to the heir of the part of the mother whereas in the case of a Subject the heire of the part of the father shall have them So King Henry the eighth purchased lands to him and his heirs having issue two daughters Quéen Mary and Quéen Eliz. and after the decease of E. 6. the eldest daughter Quéen Mary did inherit onely all the lands in Fée-simple for the eldest daughter or sister of a King shall inherit all his Fée-simple lands So it is also if the King purchaseth lands of the custome of Gavelkind and die having issue divers sons the eldest son shall onely inherit those lands And the reason of all these cases is as afore is said for that the quality of the person doth in these and many other like cases alter the descent so as all the lands and possessions whereof the King is seised in jure Coronae shall secundum jus Coronae attend upon and follow the Crown And therefore to whomsoever the Crown descends those lands and possessions shall descend also For the Crown and the lands whereof the King is seised in jure Coronae are Concomitantia And the lands and possessions belonging to the Crown do follow and attend upon the Crown as upon the more worthy c. Co. ib. 43. a. 4. 2 When the Royal body politique of the King doth méet with the natural capacity in one person The King no minor the whole body shall have the quality of the Royal politique which is the greater and more worthy For Omne majus trahit ad se quod minus est And therefore in judgement of Law the King Co. ib. 16. a. 1. as King cannot be said to be a Minor because in the Royal body politique there can be no minority So likewise if the right heire of the Crown be attainted of Treason yet shall the Crown descend to him and eo instante without any other reversal the attainder is utterly avoided as it fell out in the case of H. 7. c. Co. ib. 87. b. 3. 3 If a man be seised of a Rent-charge Rent-seck Things in grant follow land Common of pâ—sture or such like inheritance which do not lie in tenure and dieth his heire being within the age of 24 years In this case the heire may choose his Guardian but if he hold lands in soccage together with such like inheritances Then shall the Guardian in soccage not onely take into his hand the lands holden in soccage but such inheritances also because he hath the custodie of the heir c. Co. ib. 114. b. 2. 4 Albeit a man cannot prescribe to have bona catalla proditorum Of felons goods no perscription faelonum c. yet may they or the like priviledges be had obliquely or by a meane by prescription For a County Palatine may be claimed by prescription and by reason thereof to have bona catalla Proditorum felonum c. â—he grant of a â—annor pasâ—eth services 〈◊〉 5 Whatsoever passeth by livery of seisin either in déed or in Law Co. ib. 121. b. 2 may passe without déed and not onely the rents and services parcel of the Mannor shall with the demesnes as the more principal and worthy passe by livery without déed but likewise all other things regardant appendant and appertinent to the Mannor as incidents and adjuncts to the same shall together with the Mannor passe without déed and all these shall so passe without saying cum appertinentiis Priviledges â—â—nct 6 If A. be seised of a Mannor Co. ib. 121. b. 4. whereunto the franchise of waife and stray and the like are appendant and the King purchaseth the Mannor with the appurtenances Now are these Royal franchises remitted to the Crown and not any longer appendant to the Mannor c. Common
he recovered the Mannor whereunto the Advowson was appendant And so it is also of all other Inheritances regardant appendant or appurtenant a man shall never be remitted to any of them before he recontinueth the Mannor c. whereunto they are regardant appendant or belonging according to that of Britton Nul ne poit clamar droit en les appurtenances ne en les accessories que nul droit ad en le principal And also that of Bracton Item excipi potest c. quà mvis jus habeat in tenemento pertinentiis primò recuperare debet tenementum ad quod pertinet advocatio tunc postea presentet non ante c. Et de haec materia in Rotulo Sancti Mich 3. H. 3. in com Norf. de Tho. Bardolf c. But on the other side if a man be remitted to the principal he shall also be remitted to the appendant or accessory albeit it were severed by the Discontinuée or other wrong-doer And therefore if there be Tenant in taile of a Mannor whereunto an Advowson is appendant and he enfeoffeth A. of the Mannor with the appurtenances A. re-enfeoffeth the Tenant in taile saving to himself the Advowson Tenant in taile dieth his issue being remitted to the Mannor is consequently remitted to the Advowson although at that time it was severed from the Mannor Co. ib. 363. b. 3. So it is in the same case if Tenant in taile be disseised and the Disseisor suffer an usurpation For here also if the Disseisor enter into the Mannor he is likewise remitted to the Advowson 15. Co. ib. 355. b. 4. 13 In any action for the recovery of the principal Judgement 〈◊〉 the principal draweth the accessories together with the accessory a man shall never release the principal have judgment of the accessory In an action of waste if the Defendant confesse the action the Plaintiff may have judgement for the place wasted and release the damages but he cannot have judgement for the damages and release the place wasted because the place wasted being in the realty is the principal and the damages being in the personalty are but as accessories for without judgement for the principal the Plaintiff can have no title to the accessory but having judgement for the principal he is thereby also entitled to the accessories and therefore may release them c. Co. ib. 378. a. 4. 14 A man letteth lands for life upon condition to have fée Warranty â—creaseth according to tâ—â— estate and warranteth the land in forma praedicta afterwards the Lessée performeth the condition whereby the Lessée hath fée Here the warranty shall extend and encrease according to the estate And so it is likewise albeit the Lessor had died before the performance of the condition for then also the warranty shall rise and increase according to the state and yet the Lessor himself was never bound to the warranty howbeit it hath relation from the first livery c. Co. ib. 363. b. 3. 15 If Tenant in tail be of a Mannor whereunto an Advowson is appendant the Tenant in taile discontinueth in fée the Discontinuée granteth away the Advowson in fée and dieth the issue in taile re-continueth the Mannor by recovery he is thereby remitted to the Advowson and shall present when the Church becometh void c. 12. Co. ib. 384. b. 4. 42 E. 3. 6. per Finchden 16 It hath béen adjudged Acquital follows the 〈◊〉 that where two Coparceners made partition of land and the one made a covenant with the other to acquit her and her heirs of a suit that issued out of the land the Covenantée aliened In this case the Assignée shall have an action of Covenant and yet he was a stranger to the Covenant because the acquital as accessory did run with the land which was the principal Co. ib. 385. a. 2. 17 If a man make a feoffment in fée of two acres to one Warranty follows the fee. with warranty to him his heirs and assignes if he make a feoffment of one acre that Feoffée shall vouch as Assignée for the warranty as accessory follows the land as principal And therefore there is a diversity betwéen the whole estate in part and part of the estate in the whole or in any part As if a man hath a warranty to him his heires and assignes and he make a lease for life or a gift in taile the Lessée or Donée shall not vouch as Assignée because he hath not the estate in Fée-simple whereunto the warranty was annexed but the Lessée for life may pray in aide or the Lessée or Donée may vouch the Lessor or Donor and by this meanes they shall take advantage of the warranty But if a lease for life or a gift in taile be made the remainder over in fée such a Lessée or Donée shall vouch as Assignée because the whole estate being out of the Lessor the warranty by consequent doth follow it and the rather because the particular estate and the remainder doe in judgement of Law as to this purpose make but one estate c. Grant of the Mannor passeth all liberties and incidents 18 If the King grant to one and his heires Bona Catalla felonum Co. l. 3. 32. b 3. in Butler and Bakers case Per Anderson Periam sur conference ewe ove divers auters Iustices 25 Eliz. in Bakers case fugitivorum or utlagorum fines amerciamenta c. within such a Town or Mannor In this case he cannot devise them to another nor leave them to descend for a third part according to the Statutes of 32 and 34 H. 8. of Wills because they are of no yearly value For the first branch of the 34 H. 8. ordains that the hereditaments devisable by those Statutes should be of a clear yearly value c. And therefore those Statutes extend not to such kind of hereditaments Neverthelesse if a man be seised of a Mannor unto which a Léet or Waife and Stray or any other hereditament which is not of any yearly value is appendant or appurtenant Here by the devise of the Mannor with the appurtenances they shall passe as incidents to the Mannor For in as much as those Statutes by expresse words enable him to devise the Mannor by consequent they enable him to devise the Mannor with all incidents and appendants unto it And it was never the intention and meaning of the makers of those Statutes that when the Devisor hath power to devise the principal he shall not have power to devise that which is incident and appendant unto it but that the Mannor c. shall be dismembred and fractions made of things which by lawful prescription have béen united and annexed together c. Principal and accessorie 19 If there be principal and accessory Co. l. 4. 43. b. 2. in Syers case Co. ib. 44. a. 1. in Bibiths case and the principal is pardoned or
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
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
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
because there is not Quid pro quo which ought to be in every contract 46 The servant of A. was arrested in London upon Trespass Assumpsit and two Dier 272. 31. 10 El. who knew his Master bailed him afterwards A. promised them for their friendship to save them harmlesse from the damages and costs c. In this Case if they be afterwards charged an Action upon the Case lyeth not because there was no consideration for the bailing was on their own heads and was executed before the Assumpsit But if the Master had requested it before and assumed after ut supra it séemes to be otherwise As in considerarion that you have married my Daughter at my request I will give you c. This is a good consideration because the marriage ensued my request Hob. 6. 4. 18. 88. 47 Vide Hob. 4. Lané Malorie in Assumpsit Assumpsâ—â— the consideration was the delivery of two Statutes Staple to the Defendant Also Hob. 18. Woolastons Case in Assumpsit the consideration was a longer day And 88 Nichols Raynored the consideration was a promisse for promisse which must be at the same time otherwise they are nuda pacta Likewise 88 Brinsley and Partridge the consideration a former debt promised upon accompt Hob. 118. Shelton 48 Every Rate or modus decimand Tithe by prescription is a discharge of the natural title 109 De minimis non curat Lex Co. l. 5. 56. b. 3. Knights Case 1 In Office by commission under the Exchequer seale is enough to entitle the King to a Chattle Chequer seale Co. l. 6. 42. a. 2 S. Anth. Mildmays Case 2 The Law favours Estates taile in possession but gives no regard to Remainders or Reversions expectant upon an Estate in taile Rev. or Râ— upon an thâ— taile not â—luable for it is adjudged in Caples Case in the 1 Report that if Tenant in taile suffer a Common Recovery that shall not onely barre the Estate taile and the Remainder or Reversion but also a Rent which he in Remainder or Reversion hath granted So likewise was it adjudged in 12 El. betwixt Terling and Trafford in the Kings Bench that a Reversion or Remainder expectant upon an Estate taile shall not be assets to the heire in debt upon an obligation made by his Father Also Hil. 14 El. it was resolved by all the Iustices of C. Pl. in Copwoods Case that if there be tenant in taile the remainder to the right heirs of I.S. and Tenant in taile suffer a common recovery I.S. being then in life this shall barre the remainder albeit it were in abeyance and consideration of Law which the Law usually favours but de minimis non curat lex â—â—se for years â—â—eeble â—â—te 3 If Lessée for yeares pay a Rent seck Co. l. 6. 57. a. 4 Bredimans Ca. it is not seisin required in an Assise against the Tenant of the Frank-tenement in respect of the meanesse and imbecilitie of his Estate For at the Common Law he could prejudice nor draw into question the Estate of the Frank-tenement nor before the Statute of Glocester could be received albeit a recovery were had against the Tenant of the Frank-tenement by agréement neither could he falsifie a recovery before the Statute of 21 H. 8. and all this by reason of the Féeblenesse of his Estate 〈◊〉 attaint 4 In Trespas the Defendant pleads Villenage in the Plaintiffe and he was found frée and had 2 s. damages given him F. N. B. 107. l In this Case the Defendant shall not have an attaint for the finding of the Plaintiffe Frée because the damages are so small â—dition in 〈◊〉 broken 〈◊〉 5 There is a condition in Law annexed to the keep-ship of a Park Litt. §. 378. Co. Inst p. 1. 233. a. 4. viz. that if he do not well and lawfully kéep the Park it shall be lawfull for the Grantor and his heires to enter But this must be understood with a distinction For if the kéeper doth not attend on the Park one two or c. dayes this is no forfeiture of his Office but if in his default any Déere be killed whereby a damage comes to the Lord that is a forfeiture For non-user of it selfe without some special damages is no forfeiture of private Offices but non-user of publike offices which concern the administration of Iustice or the Common Wealth is of it selfe a cause of forfeiture â—â—covery not â—lable by 〈◊〉 outâ—â—y otherâ—â— 6 If a Recovery be had against a man in a praecipe by default when he is out of the Realme Co. ib. 260. b. 3 he shall not as it séemes avoid it by writ of Error for so a man might be infinitely delayed of his Frée-hold and Inheritance whereof the Law hath so great regard But out-lawry in a personal Action shall be avoided in that Case quia de minimis non curat Lex and otherwise he should be without remedy whereas in the other Case the Tenant may resort to his writ of higher nature or a quod ei deforceat for his remedy â—â—â—sion upâ—â— Estate 〈◊〉 of no vaâ—â—â— Law 7 If Lands be given to a man in taile Co. ib. 172. b. 3 who hath as much Land in Fée-simple and he die leading Issue two Daughters who make partition so as the Land in Fée-simple happens to the youngest Daughter Here if the youngest Daughter Alien the Fée-simple Land and die her heire shall enter for a pur part upon the entailed Lands And so it is also if the youngest Daughter had granted her part to another in taile For the Reversion expectant upon an Estate taile is of no account in Law because it may be cut off by tenant in tail â—â—covery 〈◊〉 or deâ—ging of â—â—â—aâ—y 8 If a man be seised of Lands in Fée and hath Issue two Daughters and make a Gift in taile to one of them and die seised of the Reversion in Fée which descends to both Sisters Co. Inst p. 1. 174. b. 1. and the Donée or her Issue is impleaded she shall not pray in ayde of the other Copercener either to recover per rata or to deraigne the Warranty paramount for that the Reversion is not of any estéeme in Law and the other Sister is a Stranger to the Estate Taile whereof partition neither was nor could be made Hob. 214. 9 The Earle of Somerset had obtained a grant of the licence of wines for yeares and tooke it in the name of Sir John Daccombe Wine Licence in trust for him Now the Question was whether or no by the Earles attainder of felony the lease was forfeited And by the opinion of all the Iudges it was forfeited and afterwards it was so resolved also in the Exchequer viz. in Cases of Chattels real and personal and things in Action of that sort 110 In Actions the Law yeeldeth favour when for the doing of them there is
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
and the title of the Tenant at will is of little or no consideration in Law and also vanisheth because derived from A. who had no interest because granted in futuro and therefore void yet both of them are estopt to say Quod partes finis nihil habuerunt And of such estoppels which are by matter of Record and trench to the wrong and disherision of those in Remainder or Reversion they shall take advantage albeit they are not parties thereunto as of an Ayde prier of a stranger or by acceptance of a Fine Sur conusans de droit come ceo c. albeit the Reversioner or Remainder be not partie to the Record yet he is privy in estate to take advantage of a Forfeiture by any matter of Record done to his disherison Co. l. 5. 13. b. in the Countess of Shrewsburies case Dyer 122. b. 15. Tenant at will is not chargeable with permissive waste Tenant at will chargeable with voluntary waste as negligently suffering the house to be burnt or the like but if Tenant at will commit voluntary waste viz. in distroying the houses felling the wood or the like in such case a generall Action of Trespasse lyeth against him Vide Litt. fol. 15. for when Tenant at will takes upon him to do unlawfull Acts and such as none may do but the owner of the Land they amount to a determination of the will and of his possession and the Lessor in such case shall have a generall Action of Trespasse without any Entry 15. E. 4. 26. So if the Bailee of goods as a horse c. kill them the Bailor shall have a generall Action of Trespass for by the killing the privity is determined And in some cases when confidence is put in the party if any wrong be done an Action upon the Case may also lye for negligence albeit the Defendant come to the Possession by the Act of the Plaintiff as where a man delivers a Horse to another to be safely kept 12 E. 4. 13. and the Defendant equum illum tam negligenter custodirit quid ob defectum bonae custodiae Interijt here an Action upon the case will lye So it is also against a Shepheard that keepes any Sheep so negligently that some of them are thereby drowned or otherwise destroyed Co. l. 5. 14. b. 2. in the cases of Ecclesiasticall persons 16. Regularly the King shall not be bound by an Act of Parliament Statutes to present fraud bind the King unlesse he be therein particularly named and yet all Statutes which are made to suppress wrong and to take away fraud shall bind the King albeit he be not named in them by express words for Religion Justice and Truth are the sure supporters of the Diadems of Kings And therefore it is agreed in 35 H. 6. 60. that the King shall be bound by the Statute of West 2. cap. 5. which makes provision against tortious usurpations although the King be not named in the Act So in the Lord Barkleys case reported by Master Plowden if a gift in tail be made to the King he shall not alien to defraud him in the Reversion or his Issues but is bound by the Statute of West 2. de donis conditionalibus Co. l. 5. 27. b. 2. in Russels case 17. An Infant Executor brings an Action of Trover and Conversion for a Chest with divers summes of money and Iuels in it A release of an Infant Executor the Defendant pleads a release of the Plaintiff In this case albeit a release by him upon payment of money or delivery of a Legacy and all Acts in pursuance of his office of Executor are strong and good yet a release in this case is adjudged not valid to bind him because first it would amount to a devastavit and then the infant should be chargeable to answer it of his own goods and secondly it would be a wrong which an infant by his release can never do Restraint by condition if there be a tort 18. If a man make a gift in tail Co. l. 6. 41. b. 1. in Sir Anthony Mildmays cases Co. Inst pars 1. 223. b. 4. upon condition that he shall not alien this condition to some intent is good and to other some void for if he make a Feoffment in fee or any other estate whereby the Reversion is discontinued tortiously the Donor shall enter for the condition broken for every act that is prohibited by Law or maketh a tort a man may prohibit by condition Vide 10 H. 7. 11. Howbeit if in such case the Donee suffer a common Recovery the condition cannot by the Law extend to it because that is lawfull whereas the other is tortious and against Law So if Feoffment be made to Baron and Feme in fee upon condition that they shall not alien in this case they are not thereby restrained to alien by levying a Fine both of them together because that is lawfull and incident to their estate but they cannot alien by Deed because that is tortious and against Law likewise if a man enfeoff an Infant in fee upon condition that he shall not alien this shall not restraine him to alien at his full age for that were repugnant to the liberty that the Law gives in case of Fee-simple according to Litt. fo 84. a. Howbeit such a condition shall restraine him from aliening during his non-age for that is tortious and against Law and thereupon the Feoffor shall enter c. Co. l 6. 70. a. 1. in Sir Moyle Finches case Right cannot incorporate with wrong 19. There is such an extreame enmity betwixt an estate gained by wrong and the ancient right that the right cannot possibly incorporate it selfe with an estate gained by wrong but it will rather suffer extinguishment then passe with it And therefore if the Donee be disseised and the Donor disseise the Disseisor and make Feoffment in fee and the Donee make regresse the Donor shall not have the Reversion but the Disseisor for there is a diversity betwixt an estate and a right as where the Reversioner disseiseth the Donee or Lessee for life and then makes Feoffment in fee upon regresse of the Donee or Lessee the Reversion is left in the Feoffee and this is by force of the Feoffment but where the Donee or Lessee is disseised here the Reversioner hath but a right which he cannot transfer to another and therefore when he disseiseth the Disseisor and makes Feoffment this passeth the estate which he gained by Disseisin and extinguisheth his ancient right which he could not transfer to another and then the first Disseisor hath the first possession and a better right then the Feoffee of the Reversioner because he comes in under him who disseised the first Disseisor and hereby the ancient right is extinct for the Reversioner cannot have it because that would be repugnant to his own grant neither can the Feoffee have it because a right cannot be
Copyhold-lands are within the Statute of 32 H. 8. 9. for the Statute saith If any bargaine buy or sell c. Pretenced titles of Copiholds any right or title in or to any Lands or Tenements c. and Copyholds are Lands in and to which right or title may be had and made and they are included in that act to avoid Suites Maintenance and Champerty and by consequent fraud and deceit per Wray And note that in Partridge and Crokers case in Pl. Co. 76. A Lease for years is adjudged within that Act. Co. l. 5. 14. b. 2. 20. By all Statutes made to prevent and suppresse fraud Fraud The king bound the King is bound albeit he be not especially named because Truth Iustice and Religion are the Supporters of his Crowne and Diadem In the case of Ecclesiasticall persons Co. l. 5. 60 a Gooches case 21. In Debt upon an Obligation against the heire Fraudulent conveyance void the Defendant pleads riens per descent the plaintiff maintaines assets in Com. S. the Defendant saith that before the action commenced he had enfeoffed A. of those lands against which the Plaintiff alleadged and proved that the feoffment was by fraud unto which it was urged that the fraud ought to have been specially pleaded and could not be brought in evidence but it was adjudged per totam Curiam that it might be given in evidence and needed not to be specially pleaded 1. because the Statute of 13. Eliz. 5. provides generally that the estate as to the creditor shall be void and Acts of Parliament made for prevention and Suppression of fraud ought to have a benigne interpretation 2. If that matter ought to be pleaded it would prove mischievous to Creditors and would tend much to the mainteinance and increase of fraud and covin for fraud and covin because they are odious are so privily hatched in an hollow tree in arbore cava opaca and so artificially contrived and concealed that the partie grieved hath no meanes to find or know them and then to force the Plaintiff who is a stranger to it to plead the feoffment whereof he hath no notice and that it was done by fraud c. would be mischievous and against Law and reason and thereupon Iudgment was given for the Plaintiff Co. ibid b. 22. A. seised of land in fee makes a fraudulent conveyance to the intent to deceive and defraud purchasers contrarie to the stat of 27. The like Eliz. 4. continues in possession and is reputed as owner B. enters into communication with A. for the purchase thereof and by accident B. hath notice and intelligence of the fraudulent conveyance and notwithstanding that concludes with A. and takes his assuranre from him In this case B. shall avoyde the said fraudulent conveyance by the said Act notwithstanding such notice for the Act hath by expresse words made the fraudulent conveyance void as to the purchasor and in as much as it is within the expresse purview of that Statute it ought to be so taken and expounded in suppression of fraud per Wray but see the like case agreed and resolved per totam Curiam P. 3. Jac. in the case of one Standen Co. l. 5. 69 b. 4. in Burtons case 23. If A. lend 100 l. to B. upon the first of July 1653 and B. Usury grants to A. 20 l. per annum out of the Mannor of D. to begin to be paid at Christmas twelve Moneths after upon Condition if B. pay 100. pounds to A. the first of July 1654. that then the Annuity shall ceâ—se This is not within the Statute of usury but if it had been agreed betwixt them that notwithstanding such power of redemption the 100 l. should not be paid the first of July 1654. and the clause of redemption was inserted on purpose to evade the Statute that had been an usuriâ—us bargain and contract within the Statute Usury 24. A. lends B. 100 l. to pay 20 l. for the Loan of it for one yeare Co. ibid. per Popham if the Son of A. shall be then living this is Vsury within the Statute for if this shall be out of the Statute by reason of the uncertainty of the life the Statute will be of little effect because by the same reason that hee may add one life he may adde more and so he may evade the statute at pleasure that Liberty being like a Mathematicall line viz. Divisibilias in indivisibilia False deed 25. If a Deed be pleaded and shewed in Court and denyed Co. ib. 74. b. 4. in Wymarkes case then it shall alwaies remaine in Court to the end that if it be found not his Deed it should be damned for the falsity thereof Fraudulent conveyances 26. The statute of 11 H. 8. 5. Co. ibid. 77. a. 4. in Boothes case being made to suppresse Fraud and Deceit shall be taken and interpreted beneficially And therefore whereas the words of that Act are that where Tenant for life or yeares have demised or granted to the intent that those in Reversion viz. their Lessors their Heires or Assignes should not know their names and afterwards the first Tenants continually occupy the Lands c. and make Wast c. It is ordained c. that he in Reversion in such case shall maintain a Writ of Wast against the said Tenants for life or yeares yet every Assignee of the first Lessee mediate or immediate is within the sayd Act albeit not therein mentioned Also he in Remainder is within the Act as well as he in Reversion albeit both in the Preamble and Body of the Act there is only mention made of him in Reversion Profits 27. In Formedon the Tenant pleads non-tenure Co. ibid. b. 2. the Demandant saith that he hath made a Feoffment to persons unknown with purpose to defraud him of his Tenancy and still takes the profits In this case the pernancy of the profits and not the Feoffment is traversable 4 H. 7. 9. Warranty 28. The Father Tenant for life Remainder to the Son Co. l. 5. 80. b. 2 leases for yeares to A. with a designe to bar the Son A. enfeoffs B. to whom the Father releaseth with Warranty and dies In this case the Son is not barred by this Warranty being a Warranty that begins by disseisin for albeit it is said in our bookes and true it is that Warranty is much favoured in Law because it extends to establish him that is the Ter-tenant in possession yet when Warranties are mixt with Covin which is so odious and so much abhorred in Law they loose not only their favour but force also for Covin is like poyson that infects every good thing with which it is mixt c. Feigned arrest 29. The entring of feigned Actions in the Counter Co. l. 6. 54. b. 2. in the Countesse of Rutlands case upon pretence afterwards when the Serjeants have the Prisoner in
their Custody to charge him with a Capias ad satisfaciendum to prevent an escape upon the Capias was condemned by all the Court of Starre-Chamber in the Countesse of Rutlands case because by the colour of Law and Iustice they by such feigned meanes do contrary to Law and Iustice and so cause Law and Iustice to be the Author of wrong and Injustice Seisin of rent 30. If A. having a Rent-seck issuing out of the Mannor of D. Co. l. 6. 58. a. 1. in Bredimans case granted unto him but no seisin thereof plots with B. to disseise the Ter-tenant to the end that after such disseisin B. may give him seisin of the Rent this seisin shall not bind the disseisee or he that right hath for the Covin makes it unlawfull Fraudulent Leases 31. The Father leases by Fraud and dyes Co. l. 5. 72. b. in Burrells case the Son knowing of it or not sels the Land in this case the Vendee shall avoid those Leases by the statute of 27 Eliz 4. so it is also where the Father leases to the Son who assignes fraudulently and then sells the Land c. False Deed. 32. If a man deny the Deed of his Ancestor Co. l. 8 60. a. 1. in Beechers case or plead a Deed made to his Ancestor and it is found against him yet he shall not be fined but onely amercied quia de alieno delicto c. But if the Tenant or Defendant plead a false Deed made to him or deny his own Deed and it is found against him or if he relicta verificatione cognoscit actionem he shall be fined for his falsity quia certi debemus esse de proprio facto Co. l. 8. 127. a. 1. in the City of Londons case 33. Where the custome is Inward shop that no Forraigner shall sell in any open Shop in paine to be fined he is a greater offender that trades there in an inward Shop or Chamber for such places are more dangerous and offensive then outward Shops because they may there use deceit and are not subject to search Qui male agit odit lucem omnia delicta in aperto leviora sunt See there likewise the case of the Prior of Dunstable to the like purpose Co. l. 8. 134. Mary Shipleys case 34. If an Executor plead pleni administravit Executor assets and assets be found by the Iury in his hands they shall pay the debt as far as they will answer but if they come short he shall answer the damages of his own goods for his false Plea Co. l. 9. 17. b. 1. in Ann Bedingfeilds case Co. ibid. 19. a. 3. 35. If a Feme having title of Dower do deceitfully detaine the Charters which concerne the Lands Rebutter in Dower out of which she is to have Dower assigned that is a good rebutter of the Action in a Writ of Dower brought by her against the Heire So if she deceitfully conceale and detaine the heire the Guardian in Chivalry may plead it against her in bar of her Dower but he cannot plead detainer of Charters which concerne the heire because they shall not be delivered to him Co. l. 9. 20. b. 4. in the case of Avowry 34. The Law will never suffer falsehood to suppresse truth Avowry and therefore if there be Lord and Tenant by Fealty and Rent and the Tenant make a Lease for years and the Lord distraines when there is no Rent or Services behind the Cattell of the Tenant and avowes upon a meere stranger as his true Tenant with purpose to charge the Plaintiff unjustly In this case the Lessee upon shewing the whole matter in speciall may pray in aid of the Lessor and shall thereby compell the Lord to avow upon the Lessor as his true Tenant and the false Avowry of the Lord upon the stranger who is not Tenant shall not annoy the Lessee against the truth of his case quia veritas nihil veretur nisi abscondi Co. l. 10. 110. a. 2. in Arthor Legats case 35. A false suggestion in the Kings Grant being the words of the Patentee makes the Patent void Void Patents upon false suggestion As where the King grants fifteen Acres of Land as concealed whereas they being parcell of a Mannor the profits thereof are duely answered to the King though occupyed by an Intrudor yet because they are onely detained and not concealed but suggested onely to be concealed the Patent is void So in 19 E. 3. tit grant 58. The King by his Letters Patents gives licence to appropriate the Advowson of D. to the Prior of C. Quae quidem advocatio non tenetur de nobis c. and in truth the Advowson was held of the King and the licence was held void for the Book saith that the suggestion was false And in 21 E. 4. 48. if the King grant the Mannor of D. c. Quod quidem manerium ad manus nostras devenit ratione eschaet c. and in truth the Mannor did not come to the King by escheat in this case also the Grant was void and the reason that Hussey cheife Iustice there gives is for that the falsehood comes of the surmise of the party Co. l. 11. 73. b. 4. 74. a. 4. in Magdalen Colledge case 36. A Grant to the Queen by the Master and Fellowes of Magdelen Colledge in Cambridge The like of an House in London rendring 15 l. per annum Rent upon Condition that she should re-grant it to Benedict Spinola Merchant Dâ—nizen and his heires was adjudged void because they made use of the Queens Prerogative to alien the Lands of the Colledge which they were prohibited to do by the Statute of 13 Eliz. within which Statute the Queen is included So if one intending to sell his Land had by Fraud conveyed it by Deed inrolled to the Queene with purpose to deceive the Purchasor and after he sels the Land for a valuable consideration and makes conveyance accordingly in this case the Purchasor shall enjoy the Land against the Queen by the Statute of 27 Eliz. 4. for albeit the Queen is not excepted yet the act being generall and made for suppressing of fraud shall bind the Queen c. vide pl. ibid. Covin in Feoffment Recovery Remitter 37. In Trin. 19 H. 8. fo 12. Br. Remitter 1. Pl. Co. 51. a. in Wimbish and Talboies case ibid. 54. b. 4. If one disseise the Discontinuee in tail by covin to the intent to enfeoff the Issue in tail within age who had no knowledge of the covin he enfeoffs him accordingly in this case by the better opinion the Issue in tail shall not be remitted notwithstanding his good title and the onely cause hereof is the covinous intent for covin may alter the matter where the title is good so if my Ancestor disseise me to the intent to make Feoffment with warranty to bar me here albeit the Warranty be
transitory causes of Action the Plaintiff might alledge the same in what place or County he would should be subverted which ought not to be suffered and therefore the Iudges of both Courts allowed a Traverse upon a Traverse in that case And the wisdome of the Iudges and Sages of the Law have alwayes suppressed new and oblique inventions in derogation of the common Law whereupon it is said by the Iudges in one Book 38 E. 3. 1. we will not change the Law which hath been alwayes used and another saith 2 H. 4. 18. it is better that it be turned to a default then the Law should be changed or any innovation made Warranty that begins by Disseisin by an oblique grant 3. The Father Tenant for life Co. l. 5. 80. a. 1. Fitzherberts case the Remainder to the Son and Heire apparent in tail Leases to A. for years with purpose that A. should enfeoff B. unto whom the Father should release with Warranty all which is done accordingly this is a Warranty that begins by Disseisin for albeit the Warranty be not made at the time of the Disseisin which was upon the Feoffment to B. yet by construction of Law it shall be adjudged to be Warranty that begins by Disseisin this Warranty binds not because of the covin An oblique Grant of Colledge Lands void 4. The Master and Fellowes of Magdalen Colledge in Cambridge Co. l. 11. 73. b. 1. in Magdalen Colledge case grant an House in London to Queen Eliz. upon Condition that she within three moneths should convey it to Benedict Spinola and his Heirs who doth so accordingly this Grant of the Colledge is void by the Statute of the 13 Eliz. 10. and was not helped by the Statute of Confirmation of the 18 Eliz. 2. for it appeared that the intent of the Master and Fellowes was that they should convey the said House to Benedict Spinola and his heires and therefore that which they could not do de directo they attempt to do ex obliquo to grant it to the Queen and her Successors but upon Condition contained in the same Grant that the Queen within three moneths should grant the House to B. Sp. and his Heires so as it was by this device endeavoured that the Queen who was the Fountaine of Iustice should be made an Instrument of injury and wrong and of the violation of a pious and excellent Law which she her selfe had made for the maintenance of Religion advancement of learning and sustenance of poore people The like In 17 E. 3. fo 59. Co. ibid. b. 4. The Fryers Carmelites who had not then any place of habitation obtaine of one John Merite who was seised of ten Acres of Meadow holden of the Bishop of Winchester to have the said ten Acres of Meadow for a place of habitation for them and because John Merite could not grant unto them the ten Acres by reason of the Statute of Mortmaine by covin contrived betwixt Merite and the Fryers to oust the Bishop of his Seigniory Merite to evade the Statute of Mortmaine grants the ten Acres to the King his Heirs and Successors whereby the Bishops Seigniory might be extinct to the end that the King should grant them over to the Fryers which he did accordingly Howbeit because here there was a practice betwixt Merite and the Fryers to take away the Bishops Seigniory it was adjudged that the Charter should be repealed and that the Carmelites should be distrained to deliver it to be cancelled Lands purchased with the Kings money 6. In Term. Trin 24. E. 3. Rot. 4. in the Exchequer Co. l. 11. 92. b. 4. in the Earle of Devonshires case one Walter Chirton the Kings Customer had purchased certaine Lands with the Kings money and by covin had caused the Vendor to enfeoff his freinds in fee to defraud the King and yet neverthelesse took the Issues and profits of the Land to his own use and those Lands were by inquisition returned with the values into the Exchequer and there by Iudgement were seised into the Kings hands untill c. for albeit the estate of the Land was never in Chirton yet the taking of the estate in the name of others and he in the meane time receiving the profits thereof was all one as if he had taken the estate in his own name especially in the Kings case and the lands being bought with the Kings money Fraudulent Indictment 7. One Verney in the 34 H. 6. Dyer 245. 65. 8. Eliz. being in execution in the Fleet for divers debts as also for Fines to the King returned into the Exchequer caused himselfe to be indicted of Felony with an intent to confesse it and to have his Clergy and so to be out of the temporall Law and then to have his purgation and all this with purpose to defraud his Creditors c. And upon a Corpus cum causa all was removed into the Kings Bench Howbeit the King having notice of the Fraud by a privy Seale commands the Iustices to stay the Araignment c. 160. Rectum est index sui Obliqui Co. l. 10. 24. b. 2. 1. In the Case of Suttons Hospitall Sir Edward Coke excuseth himselfe from answering the Objections in that case at large being Excuse to answer objections as he saith for the most part of no great moment by producing manifest and fallible proofs of the validity of that Incorporation alleadging this Maxime for the ground thereof Rectum index sui obliqui Dyer 234. 16. 7. El. 2. In a Formedon in Descender Formedon a Fine with Proclamations levied in 30 H. 8. was pleaded in Bar and the issue being upon Nul tiel Record at the day the Tenant had the Record but in the Proclamations viz. 5 6 7 8. made in Trin. Terme the yeare of the King was omitted Howbeit because in Easter Terme before and Michaelmas Terme after 30 H. 8. was exprest of necessity it did follow that the said foure Proclamations were also made in the same yeare for they being right by consequence the others were right also And thereupon it was held that he had not failed of the Record 161. It disfavoureth Improbabilities Co. Inst p. 1. 25. b. 4. Co. l. 10. 50. b. 1. in Lampets case 1. If Lands be given to a man and a woman being not his wife Lands intailed and to the Heires males of their two bodies they have an Estate Taile albeit they be not married at that time so it is also where Lands are given to a man which hath a wife and to a woman which hath a husband and the Heires of their two Bodies they also have presently an Estate Taile for the possibility that they may marry But if Lands be given to two Husbands and their Wives and to the Heires of their Bodies begotten they shall have a joynt Estate for life and severall Inheritances viz The one Husband and Wife the one Moiety
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
use and profit of the lessor for albeit a thing may sometimes sound for the profit of a man and not for his damage yet it is not lawful for a man to do a wrong As if a man see his neighbours beasts in another mans soil Damage feasant Damage feasant it is not lawfull for him to chase them and if he so do the owner shall have an action of trespass against him yet in so doing he doth a good work and saves the owner from the damages for depasturing his cattel Trespass 4 In 21 H. 7. A Parson brings an action of trespass for his Grain carried away the defendant saith Dyer ibid. pl. 39. that the Grain was severed from the 9. parts and in danger to be spoiled with Cattel whereupon the defendant carried them to the plaintifs own barn and there lodged them And yet this was adjudged no good plea because the carrying of them away was a tort So if a Commoner make a trench in the soil where he hath Common whereby the soil is made better yet he is a trespassor and subject to an action for it 5 Hob. 12. Holder against Tayler and 220. Wrenhams case who was censured in the Star chamber 1000 l. for publishing a scandalous book against a decrée of the Lo. Ch. Bacons 197 The Law favoureth things for the Common-wealth Incapable Officers 1 If an Office either of the grant of the King or Subject Co. Inst pars 1. 3. b. 2. which concerns the administration proceeding or execution of Iustice or the Kings revenue or the Commonwealth or the interest benefit or safety of the Subject or the like If these or any of them be granted to a man that is unexpert and hath no skill or science to exercise or execute the same the grant is meerly void and the party disabled by Law and incapable to take the same pro commodo Regis populi for only men of skill knowledge and ability to exercise the same are capable thereof to serve the King and his people So an Infant or Minor is not capable of an office of Stewardship of the Court of a Manor either in possession or reversion Neither yet is a man though never so skilfull and expert capable of a judicial office in reversion but must expect until it fall in possession Likewise bargaining or giving of money or any manner of reward c. for offices shall make such a purchasor incapable thereof because it is to be presumed he will by bribery extortion and other undue means make his stake good again to the prejudice of the Commonwealth which learning is worthy to be known but more worthy to be put in due execution Dower Câ—stles 2 Of a Castle that is only maintained for the private use and habitation of the owner a woman shall be endowed But of a Castle Co. ibid. 31. b. 3. that is maintained for the necessary defence of the Realm a woman shall not be endowed And so it was adjudged in the Court of Common Pleas where in a writ of Dower the demand was De tertia parte Castri de Hilderker in Comitatu Northumb. And the Statute of Magna Charta cap. 7. whereby it is provided Nisi domus illa sit Castrum is to be understood of a Castle for the necessary and publique defence of the Realm And this agreeth also with antient Records the effect whereof is Non debent mulieribus assignari in dotem Castra quae fuerunt virorum suorum et quae in Guerra existunt vel etiam homagia servitia aliquorum in Guerra existentia And so are the old books to be intended as it was resolved Trin. 17 Eliz. in the Court of Common Pleas. Vide infra 35. Co. ibid. 39. a. 4. Littl. §. 48. 5 If a man seised of 40 acres of land 20 holde by Knight service Dower de la plus beale and the other 20 in Socage die thereof seised his heir being under the age of 14 years his feme shall be endowed de la plus beale out of the Socage land and not out of the Knight service land for the Common Law giveth this privilege to the land holden by Knight service that it shall not be dismembred but in such case the whole dower shall be taken out of the Land holden in Socage And the reason is for that Knight service land is for the defence of the Realm which is pro bono publico and therefore to be favoured Co. ibid. 47. a. 4. 4 Things shall not be distrained for rent Distress which are for the benefit and maintenance of trades and by consequent of the Common-wealth and are there by authority of Law as a horse in a Smiths shop shall not be distrained for rent issuing out of the shop nor the horse c. in the Hostry nor the materials in a Weavers shop for making of cloth nor cloth or garments in a Taylors shop nor Sacks of Corn or meal in a Mill or Market nor any thing distrained before for damage fesant for it is in the custody of the Law and the like Co. ibid. 55. a. 4. 5 If Tenant at will sow the ground with grain hemp flax Tenant at will shall reap his câ—op or the like or set roots or sow or set any other thing which will yield an annual profit and after the same is so planted the lessor will out him or if the lessee dieth yet he or his executors shall have that years crop And the reason is for that the estate of the lessor is uncertain and therefore lest the ground should be unmanured which would be hurtfull to the Commonwealth he shall reap the Crop which he hath sowed in peace albeit the lessor doth determine his will before it be ripe There is the same reason also for every other particular estate that is uncertain And therefore if tenant for life sow the ground and dieth his executors shall have the Corn for that his estate was uncertain and determined by the act of God And there is the same Law of a lessee for years of the tenant for life So likewise if a man be seised of land in right of his wife and soweth the ground and dieth his executors shall have the Corn and if his wife die before him he himself shall have it If tenant pur terme dauter vie sow the land and Cestuy que use dieth the lessee shall have the corn If tenant by Statute merchant soweth the ground and then a sudden and casual profit falleth by which he is satisfied he shall have the embleaments If a man seised in fee hath issue a daughter and dieth his wife being enseint with a Son and the daughter soweth the land and then the son is born yet the daughter shall have the Corn because her estate was lawful and defeated by the act of God and it is good for the Commonweaith that the ground be sown But if husband and wife he
such protections must be therein expressed to the end it may appear to the Court that they are granted pro negotiis regni et pro bono publico And these protections are not allowable only for men of full age but for men within age and for women as necessary attendants upon the Camp and that in thrée cases Quia Lotrix seu Nutrix seu Obstetrix Co. ibid. 131. b. 2. 12 Treasure is one of the chiefest supports of a Commonwealth Protection And therefore the King who is the Head of the Commonwealth is regularly by his prerogative to be preferred in payment of his duty or debt by his debtor before any subject albeit the Kings debt or duty be the later upon which ground it is that the King may grant his debtor a protection cum clausula volumus to protect him from the sutes and actions of other Creditors And the reason hereof is for that Thesaurus Regis est fundamentum belli firmamentum pacis But this Law is somewhat altered by the Statute of 25 E. 3. cap. 19. quod vide Co. ibid. 132. b. 3. If a Monk be a farmer of the King yielding a rent Monk he shall have an action concerning that farm because the Kings revenue is also the revenue of the Commonwealth Co. ibid. 133. a. 4. 13 By the Common Law the wife of the King of England is an exempt person from the King Queen and is capable of lands or tenements of the gift of the King as no other feme covert is and is of ability and capacity without the King to grant and to take to sue and be sued as a feme sole at the Common Law for the wisdom of the Law would not have the King whose continual care and study is for the publique circa ardua regni to be troubled and disquieted with such private and petty causes Co. ibid. 149. a. 2. Co. ibid. 149. b. 2. 14 If the tenant holdeth by fealty and a bushel of wheat Service Tenant or a pound of Cumin or pepper or the like and the Lord purchaseth part of the land there shall be an apportionment as well as if the rent were in money yet if the rent were by one grain of wheat one séed of Cumin one pepper Corn a horse or any other intire service by purchase of part the whole should be extinct Howbeit if such an intire service be pro bono publico as Knight service Castle-guard Cornage c. for the defence of the Realm or to repair a bridge or way to keep a Beacon or to keep the Kings Records or for avancement of Iustice and peace as to aid the Sheriff or to be Constable of England albeit the Lord purchaseth part yet the intire service remains See Bruertons case Co. l. 6. 1. b. 4. Jo. Talbots l. 8. 105. b. 4. Authority 15 If a man make a Letter of Attorney to two to do any act Co. ibid. 181 b. 3. if one of them die the survivor shall not do it but if a Venire facias be awarded to four Coroners to impannel and return a Iury and one of them die yet the other shall execute and return the same because it is for the execution of Iustice and by consequent pro bono publico so if a charter of feoffment be made and a Letter of Attorney to four or thrée joyntly and severally to deliver seisin two of them cannot make livery because it is neither by them four or three joyntly nor by any of them severally But if the Sheriff upon a Capias directed to him make a warrant to four or thrée joyntly or severally to arrest the defendant two of them may arrest him for the reason aforesaid and for the same reason such an act shall be more favourably expounded than a private one for Iura publica ex privato promiscua decidi non debent Tenants in Common and Joyntenants 16 If there be two tenants in Common of a Manor Co. ibid. 200. a. 3. c. to which waif and stray doth belong a stray happens they are tenants in Common thereof And yet if one of them take the stray the other hath no remedy by action but to take it again unless they have a prescription to take strayes by turns Howbeit if there be two tenants in Common of a Dove-house and the one wholly destroyes the flight or of a folding and one disturbs the other to erect hurdles In these cases an action of trespass lyeth against the other because they are offences committed in prejudice of the Commonwealth If two several owners of houses have a River in common betwéen them and the one corrupts the River the other shall have an action upon his case against his companion So if there be two tenants in Common or Iointenants of an house or Mill and it fall into decay and the one is willing to repair it and the other will not he that is willing shall have a writ de reparatione facienda and the writ saith Ad reparationem et sustentationem ejusdem domus teneantur whereby it appeareth that owners are in such case bound pro bono publico to maintain houses and mills which are for the habitation and use of men Offices 17 Non-user of it self without some special damage is no forfeiture of Private offices as the Kéepership of Park or the like Co. ibid. 233. a. 4. But Non-user of Publique offices which concern the administration of Iustice or the Commonwealth is of it self a cause of forfeiture Repair by the lessee 18 In many cases a tenant for life or years may fell down timber to make reparations albeit he be not compellable thereunto Co. ibid. 54. b. 2. and shall not be punished for the same in any action of waste As if an house be ruinous at the time of the lease made if the lessée suffer the house to fall down he is not punishable for he is not bound by Law to repair the house in that case and yet if he cut down timber upon the ground so letten and repair it he may well justifie it And the reason is for that the Law doth favour the supportation and maintenance of houses which were ordained for the habitation of Mankind and are by consequent beneficial to the Commonwealth And therefore if the lessor by his Covenant undertake to repair the house yet the lessee if the lessor doth it not may with the timber growing upon the ground repair it though he be not compellable thereunto In like manner if a man make a lease of an house and land without impeachment of waste for the house yet may the lessée with the timber upon the ground repair the house though he may utterly waste it if he will and so it is in many other cases for the reason above alleged Co. l. 4. 14 b. 1. Cutle◠and Dixons case 19 If a man exhibit articles to Iustices of
Peace against another Slander containing divers great abuses and misdemeanors to the intent to have him bound to the good behaviour In this case the party accused shall not have for any matter contained in such Articles any action upon the case because he hath pursued the ordinary course of Iustice in such case provided And if actions shall be permitted in such cases they who have just cause to complain would not dare to make such complaint Co. ibid. Siâ— R ch Buckleys case for fear of infinite vexation So if a man had exhibited a Bill in the Star-chamber against another containing divers scandalous accusations albeit they were false yet no action upon the case would lie for them if they were examinable in that Court because the procéeding was in a Course of Iustice whereunto the Law giveth favour because it tends to the good of the Commonwealth See Dyer 11 Eliz. 285. pl. 37. Co. l. 4. 37. a. 2. in Tirringhams case 20 In antient time when a Lord enfeoffed another of arable land Tillage to hold of him in Socage viz. per servitium Socae the feoffée ad manutenendum servitium Socae had Common in the wasts of the Lord for his necessary Cattel that gained and compossed the land not only because that liberty was tacite implyed in the feoffment for he could not plow and compass the land without cattel and they could not live without pasture to sustain them but such Common appendant was principally given him for the maintenance advancement of tillage which is much regarded and favoured in Law because it is one of the chiefest supports of the Commonwealth so as such Common appendant is of Common right and began by operation of Law and in favour of tillage and therefore needs not prescription as it was held in 4 H. 6. 22 H. 6. which it ought to have if it were against common right Howbeit it is only appendant to the antient arable Hyde and Gaine and only for horses and oxen to plow the land and for Cows and Sheep to manure it And all this for the melioration and advancement of tillage as aforesaid And with this agrees 37 H. 6. 34. per tot Cur. and 29 H. 8. 4. Co. l. 4. 124 b. 2 in Bâ—verleys case 21 No felony or murder can be committed without a felonious intent and purpose Nam ideo dicta est felonia Non compos mentis quia fieri debet felleo animo And therefore a Mad man cannot commit felony because he cannot have a felonious intent so likewise if a feme Non compos mentis kill her husband it cannot be Petty treason Howbeit in some cases Non compos mentis may commit high treason as if he kill or offer to kill the King that is high Treason For the King est Caput et salus Reipublicae a capite bona valetudo transit in omnes and for that cause their persons are so sacred that no man ought to offer them violence and if he do he is Reus criminis Laesae Majestatis Co. l 5. 63. a 2. in the Chamberlâ—â—n of Londons case 23 The Inhabitants of a Town without any custom may make Ordinances or By-laws for the repair of the Church By-Lawes or of an High-way or any other such thing which is generally for the good of the Commonwealth and in such case the greater part shall bind all without any custom Vide 44 E. 3. 19. Also Corporations may make Ordinances or Constitutions without custom or the Kings charter for things which concern the Commonwealth as reparations of the Church common High-ways or the like Vide 8. E. 2. Assise 413. 21 E. 4. 54. 11 H. 7. 13. 21 H. 7. 20 40. Co. l. 5. 63. â— 4. 23 The Act of the Common Councel of London for bringing of Cloth to Blackwell-Hall to be searched Constitutions and the imposition of a penny for tallage upon every Cloth were adjudged lawfull constitutions because they were beneficial to the Commonwealth and not for any privat profit Constitutions 24 In 37 Eliz. 1695. The Term being appointed to be kept at St. Albons Co. l. 5. 64. a. Clerks case a Constitution was made there for the assessing of a sum of money for the preparing of Courts and other necessaries for the Term and every Inhabitant was enjoyned to pay his respective assesment on pain of imprisonment Clerk an Alderman who also consented to the assessment refused to pay his proportion and thereupon being imprisoned by the Mayor did bring an Action of false Imprisonment against the Mayor and had judgement to recover because the Constitution was against Magna Charta cap. 29. Nullus liber homo imprisonetur c. Howbeit if the Constitution had béen upon a pein of a reasonable sum of money and distress or action of debt for the recovery thereof the Mayor might have justified the distress or action because it was pro bono publico that the Town should make provision for the Term and the rather for that E. 6. who did incorporate them had granted them power to make Ordinances Albeit Corporations within time c. cannot have that privilege but by Parliament when it is pro commodo privato See Co. l. 8. 127. b. Penalties of Statutes not transferrable 25 When a Statute is made by Parliament for the publique good of the Realm Co. l. 7. 36. b. 3. in the cases of Penal Statutes the King cannot give the penalty or benefit thereof to any subject or give him power to dispence with it or to make a warrant to the Great Seal for licenses in such case to be made for when a Statute is made pro bono publico and the King as the head of the Commonwealth and the Fountain of Iustice and Mercy is by all the Realm trusted with it this confidence and trust is so inseparably annexed to the Royal person of the King in so high a point of Soveraignty that he cannot transferr it to the disposition or power of any private person or to any private use because it is committed to the King by all his Subjects for the Common good and if he might grant the penalty of one Act he may also grant the penalty of two and so in infinitum Dangerous to have London too populous 26 The Custom in London that a Foreiner shall not sell by retail Co. l. 8. 127. b. 2. in the case of the City of London was adjudged good because it was beneficial not only for the Citizens but likewise for the whole Commonwealth for that it would prevent the confluence of people from all parts of the realm to London which confluence might produce 3. great inconveniences 1. Impoverishment of all the good Towns in England 2. Depopulation of Towns in every Country 3. Destruction in the end of all trades and tradesmen in every part of the Realm Besides it might be a means to increase
goods and chattels for the great regard that the Law hath to the life of a man Howbeit if Thieves assault a mans house to robb or murther him and the owner or his servants kill any of the Thieves in defence of himself and his house this is not felony neither shall he lose any thing thereby And with this agrées 3 E. 3. Tit. Corone 303. 305. 26 Ass pl. 23. So likewise it is held in 21 H. 7. 39. that a man may justifie to assemble his friends and neighbours to defend his house against violence but not to go with him to the Market or elsewhere to guard himself from violence And all this to establish quiet and tranquillity in the Commonwealth Co. l. 5. 125. a. 2. in the cases of Libels 14 Every Libell which is called famosus Libellus Libels seu infamatoria scriptura is made either against a privat man or against a Magistrate or publique person if it be made against a privat person it deserves a severe punishment for albeit the Libel be only made against one yet it invites all of the same family kinred or society to revenge and so tends by consequence to quarrels and disturbance of the peace and quiet of the Commonwealth and may be the cause of effusion of bloud and of great inconvenience If it be against a Magistrate or other publique person that is yet a greater offence for this concerns not only the breach of the peace but the scandal of Government because what greater scandal can there be to Government than to have corrupt and wicked Magistrates to be substituted by the King to govern his Subjects under him Neither can there be greater imputation to the State than to permit such corrupt men to sit in the sacred seat of Iustice and to have any medling in or concerning the administration of Iustice which conceit being fixt in the minds of the people may be a cause of tumults and sedition to the great disturbance of the quiet and repose of the Commonwealth F N.B. 81. d. 15 Albeit Iustices of Peace have not express authority given them by their Commission to take recognizance for the keeping of the peace yet the Law gives them thereby that power ex congruo in order to the publique quiet of the Commonwealth for that they are thereby Constituted to be Conservatores Pacis and impowred to cause men to kéep the peace and to hear and determin offences committed against the peace and quiet of the Realm The Common Law giveth also power to the Sheriff either upon a writ of Supplicavit or without such a writ to take a Recognizance for the kéeping of the peace because he also is Conservator Pacis and to that end and purpose hath the guard and custody of the County committed to him for the time that he continues Sheriff as appears by the words of his Commission and Patent Rex c. Commissimus vobis Custodiam c. And what the Iustices or he do in that behalf is matter of Record and so ought to be déemed for that it concerns the Publique peace and tranquillity of the Commonwealth A man may go beyond sea 16 By the Common Law any man may go out of the Realm to imploy himself as a Merchant or to undertake a pilgrimage F.N.B. 85. a. or for any other cause at his pleasure without demanding license of the King neither shall he incurr any punishment for so doing Howbeit because every man in right is bound to defend the King and his realm and to preserve the publique repose and tranquillity of the Common-wealth from forein invasions from abroad and intestine sedition and insurrection at home the King may at his pleasure command by his writ De securitate invenienda quod se non divertat ad partes exteras sine licentia Regis under the Great Seal Privy Seal or Signet that he shall not go beyond sea without the Kings license And if he do he shall be fined for disobeying the Kings command Vide 3. Uses 17 In case of a Feoffment or other conveyance Co. Inst pars 1. 237. a. 2. whereby the feoffée or grantée c. is in by the Common Law a Proviso for a power of Revocation is meerly repugnant and void but in a voluntary conveyance which passeth by raising of Vses being executed by the Statute of 27 H. 8. 10. and now become very frequent by such a Proviso it is lawfull for the Covenantor at any time during his life to revoke any of the said Vses c. And these revocations are alwaies favourably interpreted bâ—cause now to interrupt that Course would disturb the Publique quiet of the Realm many mens Inheritances depending thereupon Warranty collateral 18 In 50 E. 3. Rot. Parl. 77. it was attempted in Parliament to have a Statute made Co. ibid. 373. b. 1. that no man should be barred by a warranty collateral but where Assets descend from the same Ancestor but it could never take effect because it would weaken common assurances and by consequence disturb the peace and quiet of the Commonwealth Remainders 19 For as much as in coveyances Co. Inst pars 1. 299. a. 2. limitations of Remainders are usual and common assurances it is dangerous by conceipts and nice distinctions to bring them in question as hath of late time been attempted lest thereby the quiet repose of the Commonwealth may be interrupted Descent to toll Entry 20 The Statute of the 32 Hen. 8. 33. concerning descents to toll entries shall be understood of a descent upon any disseisin Dyer 219. 7. 5. Eliz. albeit the words are of entries with strength And this large interpretation of the words is given for the better preservation of the peaâ—e and quiet of the Country By the Opinion of all the Justices Descent of the Royal line 21 In the Starre-Chamber the Countesse of Shrewsbury was fined 1000 l. and committed to the Tower Hob. 235. for that being called to the Council Table and Interrogated what she knew or had heard or thought of a supposed child which was rumored that the Lady Arrabella should have had she refused obstinately to make any answer because it was judged that this was a question of State and proper for the Council Table to take cognizance of for there is not one thing that doth more concern the peace and quiet of a kingdom than the certainty of the Royal line c. 201 Conventio seu beneficium privatorum non potest publico juri derogare Vide supra 198 29. Co. Inst pars 1. 166. a. 4. Littl. §. 244 1 No privat contract or agreement Partition which varies from the ordinary course of Law and sounds in prejudice of the Commonwealth or Common right shall be deemed good in Law as if a Castle that is used for the necessary defence of the Realm descend to two or more Coparceners and they by agreement choose