tenant shall recover against the heire of the seisin of his mother viz. out of the residue of his mothers lands so much as the assets afterwards descended shall amount unto Here albeit at the making of the said Act being in 6 E. 1. there were no entailed lands for all Inheritance was then viz. before Westm 2. being 13 E. 1. fée simple absolute or conditional yet entailed lands are since taken to be within the equitie of the said Act of Glocester but not to retaine or recover as in case of fée simple lands the lands entailed but onely the lands which should so descend because otherwise there would be occasion of new suits and contention which would be inconvenient for if the tenant after assets descended might retaine or recover the lands entailed then if the assets were aliened the issues inheritable to the estate taile might by writ of Formedon in Descender recover the entailed lands againe which would beget a new suit and no way answer the intention of the said Act being indeed a good provision for fée simple lands but not for lands entailed without such a Construction by equity as aforesaid And therefore in case of entailed lands so aliened with warrantie the tenant shall have a Scire facias out of the rolles of the Iustices before whom the suit depends to recover the lands descended according to the provision of the said Act of Glocester which prevents the aforesaid inconvenience and in just and proportionable equity agrées with the case of Fée simple lands and the Intention of the same Act. Vide infrà 178. 22. and 38. 5. Interpretation of statutes 10 For the sure and true interpretation of all statutes in general be they penal or beneficial Co. l. 3. 7. b. 3. in Heydons case restrictive or inlarging of the Common Law four things are to be considered 1 What the Common Law was before the making of the Statute 2 What was the mischief and defect for which the Common Law did not provide 3 What remedie the Parliament hath resolved and appointed to cure that disease of the Common-wealth 4 The true reason of the remedie And then it is alwayes the office of the Iudges to make such construction as may represse the mischief and advance the remedie and also to suppresse such subtile inventions and evasions as may continue the mischief pro privato commodo and to adde force and life to the cure and remedie according to the true intention of the makers of the Act pro bono publico And upon this ground in Heydons case in the 3 Report the statute of 31 H. 8. Co. l. 3. 8. a. 3. cap. 13. of Monasteries was by all the Barons of the Exchequer adjudged by the general words thereof to extend to Copihold or Customarie estates and by them this Rule was then also agréed That when an Act of Parliament alters the service tenure interest of the land or other thing in prejudice of the Lord or of the Custome of the Mannor or in prejudice of the tenant there the general words of such an Act shall not extend to Copiholds but when the Act is generally made for the common good and no prejudice may accrue by reason of the alteration of any interest service tenure or custome of the Mannor In such case many times Copihold and Customarie estates are within the general purview of such Acts. 16 Quoties in verbis nulla est ambiguitas ibi nulla expositio contra verba expressa fienda est Co. Inst 1. 147 a. Co. l. 7. 24. a. Buts case 1 If a rent be granted out of the Mannor of Dale Rent and the grantor grant over that if the rent be behind the grantée shall distraine for the same in the Mannor of Sale this is no grant of rent only but a penaltie in the Mannor of Sale one reason thereof is because the Law néeds not to make construction that this shall amount to a grant of a rent for here the rent is expresly granted to be issuing out of the Mannor of Dale and the parties have expresly limited out of what land the rent shall issue and upon what land the distresse shall be taken and the Law will not make an exposition against the expresse words and intention of the parties when this way stands with the Rule of Law Co. l. 2 55. a. Bucklers c. se 2 A grants land to B. Habendum tenementa praedicta from Christmas next for life Here this grant is void Grant in futuro for an estate of franktenement cannot commence in futuro and the Law will make construction upon the whole grant And therefore albeit the habendum be void and so in effect is no habendum and thereupon the estate should passe by the premisses as in case of repugnancie or the like yet here no estate shall passe by implication of Law against the expresse limitation of the partie although his limitation be void Co. l. 5. 118. Edriches case 3 A seised of Land in fée Rent grants a rent out of it with clause of distresse to B. for the life of C. and dies the heire lets the land thus charged to D. for life the remainder to E. in fée the rent is behind for divers yeares in the life of D. who dies and also C. B. distrains him in the remainder for all the arrearages incurred in the life of D. In this case he in the remainder shall be charged with them by the last branch of the Statute of 32 H. 8. 37. by which an action of debt is given to the tenant pur auter vie after the death of Cesluy que vie against the tenant in demesne who ought to have paid the rent when it was first due and against his executors and administrators and also that he shall distraine for the same arrearages upon such lands c. out of which the said rents c. are issuing in such manner and forme as he ought or might have done if Cesty que vie had been alive Here I say the latter part of this branch doth expresly charge him in the remainder with the payment of the arrearages And the Iudges in that case said that they ought not to make any interpretation against the expresse letter of the Statute for nothing can so well expresse the intent of the makers of an Act as the direct words themselves for index animi sermo and it will be dangerous to give libertie to make construction in any case again the the expresse words when the intent of the makers appeares not to the contrarie and when no inconvenience may happen upon it And therefore in such cases A verbis legis non est recedendum Devise 4 Land was devised to A. for life Co. l. 6. 6. b. Wildes case the remainder to B. and the heires of his bodie the remainder to C. and his wife and after their discease to their children C. and his wife having
County where he is Iustice Power lost and he takes him in the other County In this case he is his prisoner in the County where he takes him and ought there to be imprisoned and he cannot send or convey him to the Gaol of the County where he committed the felony for he is not his prisoner there and being out of his proper County his authority ceaseth as to that other County So if the Marshal hold plea of a thing done out of the verge or the Admiral of a thing done in the body of the County it shall be void for their authority extends to a certaine place and within a certain precinct and not elsewhere and if he which takes Sanctuary goes out any man may take him because he hath lost his priviledge Plowd 72. b. Sir Thomas Popes case 54 If the Conisée of a Recognisance according to the Statute of 23 H. 8. cap. 6 sell several parts of his lands to several feoffées No discharge by the Conusees purchase of part reserving also part thereof to himselfe if execution be sued against his part in an Audita quaerela he shall not compel any of the feoffées to contribute And therefore by the same reason the purchase of part by the Conisée shall not discharge the execution for the execution of the Conisée shall be discharged in consideration that he shall be contributory if he were Feoffée and not Conisée and then in as much as he shall not be contributory if he were Feoffée and not Conisee his purchase of part shall not discharge the execution being Conisée quià cessante causa c. Co. Inst pars 1 70. b. 3. 55 If the King had given lands to an Abbot and his successors to hold by Knight-service this had béen good Lands held by Corporations in Knights Service and the Abbot should have done homage and found a man c. or have paid escuage But there was no wardship or reliefe or other incident belonging thereunto yet if the Abbot with the assent of his covent had conveyed the land to a natural man and his heirs now wardship and reliefe and other incidents belonged of common right to the tenure And so it is if the King give lands to a Major and Communalty and their successors to be holden by Knight-service In this case the Patentées shall do no homage neither shall there be any wardship or reliefe onely they shall find a man c. or pay escuage But if they convey over their lands to any natural man and his heires now homage ward mariage reliefe and other incidents belong thereunto quià cessante ratione legis cessat ipsa lex Lord and Villain 56 If villanage be pleaded by the Lord in an action Real Co. ibid. 127. b. 4. 18 E. 4. 6. 7. personal or mixt and it is found that he is no villaine the bringing of a writ of errour is no enfranchisement because thereby he is to defeat the former judgement and if in the mean time the plaintiffe or demandant bring an action against the Lord he néed make no protestation so long as the record remaines in force for at that time he is frée but the Lord shall be restored to all by the writ of errour Waste 57 If lands be given to two and to the heires of one of them Co. ibid 247. b. 3. he that hath the fée simple shall not have an action of wast upon the Statute of Glocester against the Ioyntenant for life but his heir shall maintaine an action of waste against him upon that Statute So that in this case the heir shall maintaine that action which the Ancestor could not Dower 58 If the husband alien his land Co. Inst pars 1 33. a. 4. and then the wife is attainted of felony now is she disabled but if she be pardoned before the death of the husband she shall be endowed Also if the sonne endow his wife at her age of 7 yeares ex assensu patris if she before the death of her husband attaine to the age of nine yeares the dower is good Office and Rent 59 The King granteth to one an office at will Finch 8. Co. ibid. 42. a. 4 3 E. 4. 8. and ten pounds yearly rent during life pro officio illo here if the King put him out of his office the rent shall cease 21. 4. Guardian in Soccage 60 The executor or husband after the death of the wife guardian in Soccage shall not retain the wardship 7 El. 293. b. Finch 9. Co. Inst pars 1 89. a. 1. for the guardian hath it not to his owne use but for the benefit of the heire and the executor or husband by common intendment beare not such affection to the Infant as the testator or his wife did which was the cause that the law gave them the wardship A Pardon 61 If a stroke be given the first day of May 13 El. 401. Finch 9. and the King pardon him the second day of May all felonies and misdemeanors the party smitten dieth the third day of May so as this is no felony till after the pardon yet is the felony pardoned for the misdemeanors being pardoned all things pursuing it are also pardoned Livery 62 The King hath a Ward pur cause de gard 13 E. 4 10. b. Finch 9. and after maketh Livery to the first Ward the second Ward shall not sue Livery Coparceners 63 If two coparceners make a lease reserving a rent Finch 9. they shall have this rent in common as they have the reversion But if afterwards they grant the reversion excepting the rent they shall be from thenceforth Ioyntenants of the rent Challenge 64 It is no principal Challenge to a juror 14 H. 7. 2. Finch 9. that he hath married the parties mother if she be dead without issue for the cause of favour is removed Entry 65 If an Infant tenant in taile make a feofment in fée and die Co. Inst pars 1 337. a. 2. his issue may enter but if after the feofment made he be attainted of felony and dieth the entry of the issue is taken away for his entry is not lawful in respect of his estate onely but of his bloud also which is corrupted Formedon and therefore in that case he is driven to his Formedon Villain 66 Si mulier serva copulata fit libero c. partus habebit haereditatem Bract. lib. 4. fol. 298. b. Idem l. 1. c. 6. mater nullam dotem quià mortuo viro suo libero redit in pristinum statum servitutis nisi haeres ei dotem fecerit de gratia Co. Inst Pl. 1. 123. a. 2. Co. Inst pars 1 174. a. 4. 67 If one coparcener maketh feoffment in fée Coparceners and after her feoffée is impleaded and voucheth the feoffor she may have aide of her Coparcener to deraign a warranty
that the Lessée shall have sufficient Hedge-boot c. by the assignement of the Lessors Bailiffe Here it was said by Baldwin and Fitzherbert that the Lessée might take such boots by the Common Law and therefore that he might take them without assignement because it is no more than what the Law gives the Lessée priviledge to do but Shelley contrà because it being in the Lessors power to grant the lease upon what termes he pleased the Lessée shall be bound by it albeit the covenant be in the Affirmative and onely on the Lessors part and not in the Negative by way of Covenant or Proviso on the Lessées part For Modus coventio vincunt legem and the Lessée accepted of the Lease upon those termes Quere Dyer 136. Pl. 17. 3 4 P.M. 7 The uses of a fine or recovery may be declared by Indenture or otherwise as well after as before such fine or recovery Uses of a Recovery for so in Arthur Bassets case 3 4. P. M. the uses of a Recovery were by the Indentures declared four yeares after the Recovery and held good enough for Cujus est dare c. 23 Ultra posse non est esse Vice Versa Co. l. 6 58. a. 4. in Bredimaus Case 1 A Right without any estate in Possession A right or remainder after an entall no assets Reversion or Remainder for which good remedie by actionis given is not to be estéemed Assets before it be recovered and reduced into possession So likewise an estate as in rent-seck which descends and for which the heir hath no remedie is not Assets untill he hath gained seisin for want of right want of remedie are in the same equipage and therefore a man shall not be remitted to a Right that is remedilesse as appeares in the Marquesse of Winchesters case in the third Report And in M. 12. and 13. El. betwixt Terling and Trafford it was adjudged that the Reversion expectant upon an estate taile was not Assets because it lay in the Will of the Tenant in Taile to docke and barre it at his pleasure and the Reversioner had no power to prevent it Co. l. 7 8. a. 3. The Earle of Bedfords case 2 In the Earle of Bedfords case in the 7 Report Voidable Leases made good by acceptance it is otherwise of void things ab initio when voydable Leases being void for a time shall be alwayes avoided and when not this diversity was taken and resolved by the Court viz. when the interest of him that makes the avoidance is but for part of the terme So that it appeares there remaines yet a residue and when he that makes the avoidance avoides all the interest so that it appeares no residue can remaine As in the principal case there which was to this effect Tenant in Tail of lands in Capite makes Leases not warranted by the Statute of 32 H. 8. 28. and dies his heire under age Here the King in right of the heir may avoid those Leases during his time onely for after the interest is determined the heire may make them good againe by acceptance of the rent So it is also of a Subject that is Guardian in Chivalry Also if a Bishop since the Statute of 13 El. let voidable Leases and die 2 E. 3. 8. the King during the vacancy may avoid them but the Successor may make them good againe by acceptance of the rent But if the Patron of the Church of D. grant the next avoidance to another and after and before the Statute of 13 El. the Parson Patron and Ordinary make a Lease for yeares rendring rent and the Parson dies the Grantée presents his Clerk who is admitted instituted and inducted and dies this lease was absolutely avoided and could not stand good against the second successor c. Co l. 5. 12. b. 2. Sanders case 3 If a man having land in which there is a Cole mine not open lets the same to another for terme of life or yeares An exception of great timber Mines c. void if the Lessée grant unto another all his interest in the land cum omnibus profic c. except semper reservat sibi haeredibus suis toto benefic profic Miner Angl. Cole mines praedict parcel terrae ac omnibus arboribus Maerearii c. This exception is void for by the exception of the profits of the Mine or of the Mine it selfe the land is not excepted and then by consequent he hath excepted that which he cannot have or take As if a man assigne over his terme except the Timber-trées growing upon the land or the marle or the clay within the ground this is void for he cannot except a thing which doth not by Law belong unto him Where no interest no entry 4 If the Baron within age make feofment in fée of his Wives land and dies his heire shall not enter to avoide this feofment Co. l. 8. 43. b. 1. Whittinghams Case because nothing descended unto him from the Baron for the Law doth not respect what estate the Ancestor granted but what estate he had before the grant and what right or title the Ancestor left to descend to the heire And therefore if an infant being tenant in taile make feofment in fée and die without issue his collateral heire cannot enter to avoide that feoffment for although by his feoffment he granted Fée simple yet when he died without issue nothing descended to the heire in respect of which he might enter So also if lands be given to one and the heires female of his body and he hath issue a sonne and makes feofment in fée and dies within age without issue female the sonne shall not enter for the said infancy because no right in that case descended unto him So likewise if an infant be tenant pur auter vie and make feofment in fée Cestuy quae vie die neither the infant nor his heire shall ever enter upon the feoffée but he in the reversion or remainder c. Discontinuance 5 An estate taile cannot be discontinued but where he Co. Inst pars 1 338. b. 4. that made the discontinuance was once seised by force of the taile except it be by reason of warranty c. according to the Rule in Philosophy Omnis privatio presupponit habitum for he cannot discontinue that which he never had Neither can a person discontinue the Fée simple of his Parsonage because the intire fée and right thereof was never in him Vide M. 52. Ex. 8. Remainder of rent void 6 If I grant a rent out of my land the remainder in fée Pl. Com. 35. 2. this remainder is voide because the rent was newly created by the grant and not in esse before In Colth and Bivishams case Rent not extinct 7 A man makes a Lease for terme of life Dyer 31. a. 210 and afterwards the Lessor makes a
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
presently after his death and before office thereof found cast upon the King for in such Case it ought to be in some person or other and if any person enter into the Land and take any of the profits an information of Intrusion by the King may be perferted against him before office or seisure because the King immediately after the Tenants death is in actual possession and hath not onely a frank-tenement in Law as a Common person in such Case hath And as to that this diversity is taken that when the Kings Tenant dies in possession without heire so as in that Case possessio est vacua and in none there the Law adjudgeth the King unto whom no laches can be attributed in actual possession presently but when another is in seisin and possession at the time of the escheat so that Possessio plena est non vacua In that Case the King shall not be adjudged in possession The Kings Teâ—ant â—lien â—illein Mortmaine until that seisin and possession be removed as if the Kings Tenant be disseised and die without heire or if an Alien nee or the Kings Villein or the Alienee in Mortmain be disseised and die without heire and all that found by Office in those Cases the King shall not be in possession untill the possession and seisin of the terre-tenant be removed But if Land descend to the King after the death of his Father or of any other Collateral Ancestor the King shall be immediately in actual possession before entry or seisure So likewise if the King make a Lease for life or a gift in taile and the Lessée dies or the donée dies without Issue In that Case the possession shall be actually in the King without any entry or seisure and with this accords 9 H. 7. 2. 6. where it is expressely said that when none is in possession it shall be adjudged in the King according to his title and so the doubt which Stamf. makes Praerogative 53. b. is well resolved Condition â—emand 35 If the King make a Lease for yeares rendring Rent with Condition to be void upon non-payment of the Rent Co. l. 4. 73. a. in Boroughs Case the King shall take advantage of that Condition without any demand it being a thing undecent and against the dignitie of the King to wait upon his subject or to demand any thing of him it is otherwise if the King grant over his reversion For his grantée shall not take advantage of the Condition without demand of the rent this is by reason of a personal prerogative in this Case annexed to the person of the King and not in respect of the nature and qualitie of the Rent for that remaines the same whether paid to the King or to a subject upon the ground or elswhere c. â—wo Houses â—mised 36 Two houses are let to one man by one demise Co. l. 5. 55. b. 3. 56. a. 1. Knights Case rendring for the one 4 l. per annum and for the other 20 s. per annum with proviso that if the said Rent of 5 l. be arreare in part or in all then the Lessor to re-enter The Inheritance of these Houses afterwards escheats to the King â—he fold â—ent â—eare â—ndition who after grants the reversion of that upon which 20 s. per an is reserved to I. S. the Rent thereof is arreare In this Case the Patentée cannot enter for the Condition broken because by the severance of any part of the reversion all the Condition as to a Common person is intirely destroyed It is otherwise in the Kings Case for the Condition remaines intirely in the King with the reversion of the other House and that is in respect of his prerogative c. â—gs grants â—ourably inâ—â—ted â—ein â—en â—vowson 37 The Law makes a difference betwéen the Kings grants who is alwayes presumed to intend Ardua regni pro bono publico omnium Co. ibid. 36. a Knights Case Co. l. 7. 14 a. in Englefeilds c. and the grants of subjects who have leasure to attend their private affaires for the grants of a subject are alwayes interpreted most strongly against him that makes them but the Kings grants are alwayes taken with a favourable and beneficial interpretation so that no prejudice may happen to him by construction or implication upon his grant otherwise then was truly intended by it And therefore if the King grant Land to I. S. and his heires when in truth I. S. is the Kings Villein this shall not enfranchise the Villein by Implication There is the same Law of an alien nee 17 E. 3. 39. An Advowson of a Prebendarie holden of the King was aliened to an Abbot and his successors and the King grants to the Abbot and his successors that they shall hold the Prebnedary in proper use neverthelesse he shall seise the Advowson for alienation in Mortmaine and shall destroy the Appropriation for he shall not be outed of his right to the Advowson by Implication Debt Release And in 2 R. 3. 4. 21 E. 4. 46. 34 H. 6. If two be undebted to the King the King release to one of them this shall not discharge the other in 6 H. 7. 15. 11 H 7. 10. If the King release all demands right Restr to alâ—â— of Inheritance shall not be there by released 21 H. 7. 7. The King grants Lands in Fée upon condition that the grantée shall not alien this is good Howbeit in all these cases the Law is otherwise in the case of a common person c. Co. ibid. a. 4. Knights Case 38 In many cases the King that claimes by a subject Rent-secke distraine shall be in better case in respect of the dignity and prerogative incident by the Law to the Royal person of the King then the subject himselfe by whom he claims As if the King had a rent secke by attainder of treason or by grant c. he shall distraine for it not onely in the land charged but likewise in all his other lands and yet the subject by whom the King claimes shall not distraine for it at all If a subject hath a recognisance or obligation Recognisanâ— Oblig and afterwards he is out-lawed or attainted in this case the King shall seise all the land of the Counsor or obligor whereas he himselfe could have but a moity if a subject demise land rendring rent and a re-entry upon default of payment thereof in this case the subject shall not take advantage of such a condition without demand of the rent c. but if the inheritance of that land come to the King by Act of Parl. attainder grant Seise all Condition Demand Priority c. he shall take advantage of the breach of such a condition without demand of the rent F. N. B. 142. c. if the King purchase a Seigniory of which land was holden by posterity the King shall
esse for the other part for if there be Lord and Tenant of 40 acres of Land by fealty and 20 s. Rent if the Tenant make a Gift in tail or a lease for life or years of partel thereof to the Lord in this Case the Rent shall not be appoâ—tioned for any part but the Rent shall be suspended for the whole So it is also if the Lessor enter upon the Lessée for life or yeares into part and thereof disseise or put out the Lessée here the Rent is suspended in the whole and shall not be apportioned for any part and where outs Books speake of an apportionment in Case where the Lessor enters upon the Lessée in part they are to be understood where the Lessor enters lawfully as upon a surrender forfeiture or the like where the Rent is lawfully extinct in part yet by act in Law a Rent-service may be suspended in part and in esse for part as when the Guardian in Chivalry entreth into the land of his ward within age now is the Seigniory suspended but in this Case if the wife of the Tenant be endowed of a third part of the tenancy she shall pay to the Lord a third part of the tent so it is also where the Tenant gives a part of the tenancy to the father of the Lord in tail the father dieth and this descends to the Lord in this Case also by Act in Law the Seigniory is suspended in part and in esse for part And the same Law is of a Rent-charge which also cannot be apportioned but by Act in Law for if a man hath a rent-charge to him and his heirs issuing out of lands and he purchase part thereof Litt. § 222 224. in this Case the whole rent is extinct but if a man hath a Rent-charge and his father purchase part of the land out of which it issues in fée and die and that parcel descends to the son that hath the rent-charge in that Case the rent-charge shall be apportioned according to the value of the land 〈◊〉 charge 〈◊〉 because the part of land purchased by the father comes not to the son by his own Act but by descent and course of Law Co. ib. 149. b. 4 So also if the Tenant give the father of the grantée part of the land in tail and this descends to the grantée the rent shall be apportioned and so by act in Law a rent-charge may be suspended for one part and in esse for another or vice versa if the father vs grantée of a rent and the son purchase part of the land charged and the father dieth after whose death the rent descends to the son here also the rent shall be apportioned causa quà suprà â—â—nt-charge â—pationed 15 If the father within age purchase part of the Land charged Co. ib. 150. a. 2 and alieneth within age and dieth the son recovereth in a writ of dum flrit infra aetatem or entreth in this Case the Act of Law is mixt with the Act of the party and yet the rent shall be apportioned for after the recovery or entry the son hath the land by descent so it is also where the son recovereth part of the land upon an alienation by his father dum non fuit compos mentis for the cause afore-said 〈◊〉 16 A man seised of lands in fée takes wife Co. ibid. and makes a feofment in fée the feoffée grants a rent-charge of 10 l. out of the Land to the Feoffor and his wife and to the heltes of the husband the husband dieth the wife recovereth the moity for her dower by the custome the Rent-charge shall be apportioned and she shall distraine for five pound which is the moity of the rent and here albeit her owne act doth concurre with the Art in Law yet shall the Rent be apportioned â—d 〈…〉 Tenant 17 If there be Lord Mesne and Tenant Litt. §. 231. Co. ib. 152. and the Tenant holds of the Mesne by 5 s. rent and Mesne holds over of the Lord by 12 d. rent here the Mesne hath 4 s. rent in surplussage Now in this Case if the Lord purchase the tenancy The Mesne shall have the 4 s. yearely as rent secke and yet he shall distraine for it Litt. §. 232. Co. ib. 153. a. 1 vide infrà 40. for séeing the fealty is extinct the Law reserves the distresse to the Rent and the distresse in such Case shall by act in Law vs preserved Quia quando let aliquid a licui concedit concedere videtur id sicut quo res ipsa esse non potest And therefore if a man make a lease for life reserving a rent and bind himselfe in a Statute whereupon the Rent is extended and delivered to the Conusée here the Conusée shall distraine for the Rent because he cometh to it by course of law but if a rent-service be made a rent-seck by the grant of the lord the grantée shall not distrain for it for that the distresse in that case remaines with the fealty So likewise if there be Lord Mesne and Tenant and the mesnalty is a Mannor having divers frée-holders and the Lord purchase one of the Tenancies and there is a Rent by surplussage this rent although it be changed into another nature is parcel of the Mannor yet by purchase of part of the land the whole Rent is extinct albeit the Law did preserve it Co. ib. 163. b. 4 18 There is a diversity betwéen a discent Discent and purchase which is an Act of the Law and a purchase which is an Act of the party for if a man be seised of lands in Fée having Issue two Daughters and one of the Daughters is attainted of felony the Father dieth both Daughters being alive the one moity shall discend to the one daughter and the other moity shall escheate But if a man make a Lease for life the remainder to the right heires of A. being dead who left issue two Daughters whereof the one is attainted of felony In this Case some have said that the remainder is not good for the moity but void for the whole because both the Daughters should have béen as Littleton saith but one heire Co. ib. 164. b. 3 19 A Rent-charge is intire and against Common right Rent-chargâ— dividable and yet it may be divided betwéen coperceners and by Act in law the Tenant of the land is subject to several distresses and in that Case also partition may be made before seisin of the Rent Co. ib. 165. a. 4 20 If there be two Coperceners of lands with warranty Coperceners and they make partition in this case the warranty shall remaine because they are compellable by law to make partition it is otherwise of join-tenants for they were not by the Common law compellable to make partition Co. Ib. 166. b. 3 21 When partition is made betwixt Coperceners Partition by
jointenants of the land and the husband soweth the ground and the land surviveth to the wife 8 Ass pl. 21. 8 E. 3. 54. Dyer 316. It is said that she shall have the Corn and not the executors and the Law seems to be so because they were as one person in Law and held by intietties Co. ibid. 75. b. 4. 6 The tenure by Knight service being at first ordained for the defence of the Commonwealth both against domestique insurrections and forein invasions a Militia being indeed the chief pillar that supports a Commonwealth the due observance thereof was strictly enjoyned by the Laws of Edward the Confessor Knight service where you shall find it thus provided Lamb. 135. Debent enim universi liberi homines c. secundum feodum suum secundum tenementa sua arma habere illa semper prompta conservare ad tuitionem regni servitium dominorum suorum juxta praeceptum Domini Regis explendum et peragendum And William the Conquerer confirmed that Law in these words Statuimus et firmiter praecipimus quod omnes Comites Barones Milites et Servientes universi liberi homines totius regni nostri praedicti habeant teneant se semper in armis et in equis ut decet et oportet et quod sint semper prompti parati ad servitium suum integrum nobis explendum peragendum cum semper opus adfuerit secundum quod nobis debent de feodis et tenementis suis de jure facere c. The like 7 The tenure by Knight service because it was instituted for the Guard and defence of the Commonwealth was so much favoured in Law Co. ibid. 76. b. 4. that betwixt the making of the Statutes of 4 H. 7. 17. and 27 H. 8. 10. of Uses there might lie two wardships for one and the same land as if Cestuy que use before the Statute of 27 H. 8. had died his heir within age the Lord should have had the wardship of his heir by force of the Statute of 4 H. 7. and if the feoffée had died his heir within age the Lord should have had the wardship of his heir also viz. by the course of the Common Law And at the Common Law before the making of those Statutes there might be two wardships in respect of the same land as if tenant by Knight service had made a gift in tail the remainder in fee and tenant in tail had made a feoffment in fee and died his heir within age the Lord should have had the wardship of him and if the feoffee had died his heir within age Co. ibid. 77. a. 1. the Lord should have also had the wardship of his heir and of the land so likewise if tenant by Knight service make a gift in tail and the donee maketh a feoffment in fee and the donee dieth his heir within age the donor shall have the wardship of him because he is his tenant in right but if the feoffee dieth his heir within age the Lord paramount shall have the wardship of his heir because en fait he is tenant to him c. And the Common Law did not remedy this inconvenience because that tenure was deemed serviceable for the Commonwealth Tillage 8 Agriculture or Tillage is much favoured and of great esteem Co. ibid. 85. b. 1. because it is very profitable for the Commonwealth concerning which the goodness of the habit is best known by the privation For by laying of lands used in tilth to pasture six main inconveniences doe daily encrease 1. Idleness Co. l. 4. 39. a. in Tirringhams case which is the beginning and ground of all mischiefs 2. Depopulation and decay of Towns 3. Husbandry which is one of the greatest Commodities of the Realm is decayed 4. Churches are destroyed and the service of God neglected by diminution of Church-livings as by decay of Tithes c. 5. Injury and wrong is done to Patrons and Gods Ministers And 6. The defence of the land against forein Enemies is enfeebled and impaired the bodies of Husbandmen being more strong and able and patient of cold heat and hunger than of any other from which Inconveniences necessarily follow these consequences 1. The displeasure of Almighty God 2. The subversion of the Policy and good government of the Realm And all this appeareth in our books And therefore the Common Law giveth arable land antiently called Hyde or Gaine the precedence before Meadows Pastures Woods Mines or any other ground whatsoever And averia carucae the beasts of the Plough have in some cases more privileges than other cattel c. This imployment was also of high estimation amongst the antient Romans Co. Inst part 1. 161. a. 1. in so much that the grave Senators themselves would put their hand to the plough c. If the Lord will distrain averia carucae where there is a sufficient distress besides the tenant may make rescous O Fortunatos nimium sua si bona norunt Agricolas quibus ipsa procul discordibus armis Fundit humo facilem victum justissima Tellus Virg. in Georg. Co. ibid. 99. a. 2. 9 An Abbot or Prior c. who holdeth lands by Knight service Abbot Prior. albeit he ought not in respect of his profession to serve in war in proper person yet must he find a sufficient man conveniently arrayed for the warr to supply his place And if he can find none then must he pay Escuage c. for his possession doth not privilege him but that the Kings service in his warr must be done which belongeth to his tenure and concerneth both the honor and safety of the Common-wealth Co. ibid. 127. a. 4. Bract. lib. 6. fo 6. 10 The life and members of every subject are under the safeguard and protection of the King Life and Member for as Bracton saith Vita et membra sunt in potestate Regis And herewith agréeth a notable Record Pasch 19 E. 1. coram Rege Rot. 36. Northt Vita membra sunt in manu Regis to the end that they may serve the King and the Commonwealth when occasion shall be offered And therefore if the Lord mayhem his Villein the King shall punish him for mayheming his subject Villein by fine ransom and imprisonment until the fine and ransom be paid because he hath thereby disabled him to do the King and Common-wealth service Co. ibid. 130. a. 4. 11 The Protections Quia Profecturus which concerns services of warr as the Kings souldier Protections c. and Quia Moraturus which concerns wisdom and counsel as the Kings Ambassador or Messenger pro negotiis regni being for the publique good of the Realm privat mens actions and sutes must be then suspended for a convenient time for Jura publica anteferenda privatis and again Jura publica ex privatis promiscue decidi non debent And the cause of granting
Livery where a Forfeiture 370 Copyholds and Copyholders 727. 760. 217. No Fine due upon surrender or discent bâ—fore Admittance 45. May lop Trees 47. Their estate confirmed by Custome 58. Surrenders by Attorney and good 68. In by the Surrender not by the Lord 83. Severed by Custome so continue 133. 328. Grantable by Executors 142. Dominus pro tempore 142. Grantable in fee may be granted for life 216. Their Fines must be reasonable 213. Surrenders before admittance good 327. In pleading may alledge an Admittance as a Grant Copy-hold Customes 759. Extinct 463 Conveniency things respected by reason of their conveniency 428 Cornage 162 Corodies 228 254 Corporations 390. 708. 719. Failing the Lands revert 29. Hold Lands by Knights service 36. Where granted is dissolved upon a Release 52. 53. Translated enjoy their old Priviledges 154. Single and aggregate 150. Altered yet the body remaines 354 Corruption of Blood 161 Coronors their Inquest 244 Costs 564 Covenants joynt and severall 89. What bind betwixt Lessor and Lessee 133. Incident to the Lands and came with it 135. Implyed and expressed 157. Have speciall relation 167 Covin apparent need not be shewed 603. Hinders a Remitter 612. Not presumed unlesse averred 725 Cui in vita 765 Custome Concealed 14. Of goods lost by Tempest not recoverable 591 Customes bindes strangers 145. Of Burrough English 148. 244 313. To have a Fine for marrying the Daughter 352 Cou t s made good by the Bar and Replication 249. Must containe certainty and verity 605. abated by mis-recitall 470 Courts Baron 135. By Commission cannot sit in Terme where the Kings Bench is 223. Remedy for spirituall things in temporall Courts 234 Of Record onely have power to imprison 367 D. DAyes in Court and pleadable 7 Damages severall amongst Parcenors 237. When they shall be layed in the Count 597. And increased e contr 502. Double Writs of Enquiry of them 696 Darriane Presentment 331. 341. 382. Demand of a Rent when to be made 489 490 491 492 493. 495. 474. Of the purchase of a Villaine 495 Deeds must be avoided by Deeds 71 72. In whose custody to remaine 127. In Cases of necessity may be proved without shewing them 425. Made void by rasure c. 590. Fraudulent void 613 614 615. 691. Not to be pleaded without shewing 706 Death Not traversable 603 Delivery Of Goods by the Banckrupt not good 207 Degrees Of worthinesse of the Lands 269 Demise of the King no change by it 145 Demise of goods 151 Debt for rent after a Surrender 144. Extinct 154. 172. Against Executors 157. 161. 288. Against the Heire 556 Denial 596 Deraignment purgeth Profession 73 Deprivation 289 Detinue by the heir of Deeds 691. For Charters 136. Of Charters where no Plea 195 Devise 715. 770. One equall part of Capite Land to discend 209. For Executors to sell 221. Of the third part 327. Of a Reversion sold by Executors 336. Shall make a Fee-simple by Construction in Law 709 Demand the forme of it in a Writ 17. Of rent must be upon the Land and when 52. 245. 460 490. Not to be by the King 295 Demurrer 296 Devastavit 754 756 Dignity forfeited for Treason 138. Restrained to an estate for life 156. Respected for conveniency 428 Discent 293. 311 312. When privity of blood faileth 32. Where shall take away Entry Et e contra 32 134 609. To Daughters and not Parcenors 51. In stirpes in capita 61. By Entry into Region 62. Where not good against the King 62. One out of the Realm not barred by a discent 216. Takes away Entry 577. 591. 683 716. Of the Bastard eigne where it shall bar the Mulier 493 Discontinuance 20 56 57 325 368 270 Removed the Issue may enter 33. Defeated upon a surrender 33. Of an Estate tail 44. 55. Once defeated all that depends upon it is gone 117. Where a Bar Et e contra 185. Of the Lands by the husband 218. By enfeoffing the Donor and a stranger 256. The reason of it 697 Discontinuance of Suit 557 Dispensations 160. To take two livings 22 101 Disseisin 696. Not of a Rent without Attornment 217. Not of a Rent-charge or Seck but at Election 462. In time of warr takes not away Entry 488 Disseisor and Disseisee 235. May be no Tenant of the Land 563 Disfranchisement 107 Disceit 147 596 Disclaimer 364. 368. Where it shall bind e contr 55. In the blood 459 Disability 343. 570. To make a Surrender 602 Distresse for Damage feasant most be upon the Land 31. Of the Lord out of his fee when 42. Of the Lord Paramount without attornement 82. No Distresse is irreplevisible 168. For owelty of Partition 237. In the night 418 Not for certainty in Leet 549. For more rent then is due where justifiable 468 469. In another County 418 Division of Lands in Hotch pot 205. Of the Testators goods 205 Divine service by Prescription 683 Divorce 593. Causa frigiditatis 714. Sentence in case of Divorce repeated after the death of the parties 498 Donative Charges donative may be made Presentative 462 Double Pleas 625 Dower where it lyeth against the Guardian e contr 35. Of a woman at nine yeares of age 37. Ex assensu Patris where not good 73. 622. Dos non de dote 79 According to the improved value 79. of Copyhold 91. 556. Where not of the Rent but of the Land 125 Of intire things 207. Ad ostium Ecclesiae 220. 622. Of Castles where e contr 729. Of the pluis beate parte 730. Of Rent to be delivered by the Sheriff 429 Dutchy of Cornewall 720 Drunkard 570 E. ECclesiasticall persons cannot prejudice their Church 4. Cannot disclaim 4. May resigne to the King 220. Ecclesiasticall Courts may take Recognizance of a debt 239. Where Temporall Courts are to take notice of their Jurisdiction 599. Ecclesiasticall Lawes What are in force 7. Founded by the Common Law 71. Ejectione firmae 141. 727. Of what it lyeth not 18. Not within the Statute of 32 H. 8. of Titles 92. By the Lessee of a Copy-holder 545 506 Estates Deseiable 122. Upon accruer 122 Particular and Remainder one Estate 187. Voidable evicted by Guardian and Bishop 192. In taile cannot drown 201 Two Estates made together of one Land 207. Once void remedilesse 395. Executed and Executory 396. Altered and charged 433 Election 159 473 474 475 477. Of a Writ of Annuity or Distresse 473. Lost by doing wrong 565. By Coparcenors 478. To Corporations 753. Of the Knights of the Parliament 550. Of the Heir and the Lord 475. Of things in grant 475. Of Entry and Actions 476 Enfranchisement 356 459. For a time 161 Enfant May attorne 48. Shall do his Services ibid. Where shall not have his Age 48. Cannot be Guardian 104 Where his plea shall demurr for Enfancy 315. Shall not account 319. Their Acts upon Record not voidable 369. Married before yeares of consent 402. Compellable to attorne 415 Entry congeable 40 44 Entry Taken
then issue a sonne and a daughter And after the divisor dies also A. dies and B. dies without issue C. also and his wife die and the sonne hath issue a daughter and dies Here the question was whether the daughter of the sonne should have the land or no And it was resolved that she should not because in this case at the Common Law C. and his wife had but an estate for life with remainder to their children for life and then the cause or reason why they by the will should have an estate taile is onely grounded upon the intent of the divisor Howbeit it was resolved that such an intent ought to be manifest and certaine and not obscure and doubtfull because it will not then admit of any strained construction farther than the words themselves do import by a proper and genuine interpretation according to the Rules of Law Devise 5 If I devise lands to my sonne Thomas to hold to him and the heires male of his bodie for the terme of 500 yeares Co. l. 10. 87. a. Leonard Loves Case Dyer 7. pl. 8. 28 H. 8. his heire shall not have them but his executors for this terme is but a chattel and cannot be intailed and such a devisée may alien the terme if he please And Cook Chief Justice held that such a devise is but an estate for years because it is so in expresse words devised and that in this case against expresse words no inference or interpretation shall be admitted Tales 6 Tales de circumstantibus shall not be granted in an Assize by the Statute of 35 H. 8. 6. Co. l. 10. 105. a. Denbawdes Case because by the expresse words of that Act they are onely grantable in every writ of Habeas corpora or distringas with Nisi prius and no exposition can in this case be made against expresse words for viperima est ista expositio quae corrodit ventrem textus 7 If feme tenant for life take husband who makes wast Co. l. 5. 75. b. Cliftons Case and the feme dies Here the husband is not punishable for that wast because the Statute of Glocest 6 E. 1. cap. 5. is thus recited in the writ of wast Wast Quare cum de communi c. provisum sit quòd non liceat alicui vastum c. facere de terris c. sibi demissis ad terminum vitae vel annorum c. So that the land being not demised to the husband but he holding it onely for her life and in her right he shall not be chargeable for wast after the death of the wife by the expresse words of the Act as it is recited in that writ Devise 8 A devise of land by will is good without Probat Dyer 53. b. 11. 34 H. 8. because the Statute of wills ordaines onely that it shall be in writing and enjoynes no Probat and therefore if it be in writing and proved by witnesses it is good without Probat Tail of the King 9 If tenant in tail of the gift of the King Co. Inst pars 1 373. 1. the reversion to the King expectant is disseised and the disseisor levie a fine and five yeares passe this shall barre the estat tail notwithstanding the Proviso in the Statute of the 32 H. 8. cap. 36. So likewise if a collateral ancestor of the Donée release with warrantie and the Donée suffer the warrantie to descend without entry made in the life of the ancestor this also shall bind the tenant in raile because the words of that Statute are had done or suffered by or against any such tenant in taile And in this case he is not partie or privie to any act either done or suffered by or against him 17 Maledicta est expositio quae corrumpit textum Co. l. 2. 24. a. Baldwins Case 1 The Earl of Cumberland demises land to Anne and to one Anthony Baldwin her sonne and to the heires of the said Anthony Demise Habendum to them from the date for 99 yeares Here albeit heires are mentioned in the premisses yet is not the Habendum repugnant unto them but they have a joynt estate for yeares for it cannot be repugnant as to Anthony and yet good to Anne Viperima est ista expositio quae corrodit ventrem textus Co. l. 11. 70. a. Magd. Colledge Case Grants to the King Stat. 13 El. 10. 2 Grants to the King are restrained by the general words of 13 El. 10. for the words are to any person or persons Grants to the King of Church Livings bodie politique or corporate and the King is a person as it is said in 10 H. 7. 18. and a bodie politique as appears in Plowd fol. 213 234. Now therefore if the King be cléerely included in the letter if he shall be excluded out of the Act it must be by construction of Law and in this case the Law will make no such construction for the Quéen Lords and Commons who made the Act have adjudged as in the preamble appears that long leases made by Colledges c. are unreasonable and against reason much more estates in fée simple And the Law which is the perfection of reason will never expound the words of that Act against reason for maledicta est expositio c. 18 Nimia subtilitas in lege reprobatur Co. l. 5. 121. a. Longs case 1 Exception was taken to an Indictment Indictment because it was said to be taken coram W. S. Coronatore Dominae Reginae infra libertatem dictae Dominae reginae villae suae de Cossam praedict super visum corporis c. and doth not alleadge to what places the said libertie doth extend or whether part or any of the towne of Cossam be within the libertie and so it did not appear that the Coroner had any Iurisdiction in the place where the inquisition was taken nor where the murder was committed nor where the dead bodie lay for all is alleadged by the indictment to be at Cossam Howbeit the indictment was adjudged sufficient notwithstanding this exception for although it be true by the Rule of Law that indictments ought to be certaine yet it is to be observed that there are three sorts of certainties 1 To a common intent 2 To a certain intent in general 3 To a certain intent to each particular The first sufficeth in barres which are to defend and excuse the partie the second is required in indictments counts replications c. because they are to excuse or charge the partie the third is rejected in Law as too nice and curious for Talis certitudo certitudinem confundit And in this present case the indictment is certaine enough in general viz. that Cossam is within the libertie of Cossam but to imagine that the libertie may extend out of the town and yet the town it self to be out of the libertie is a captious and strained intendment which the
alive he should have gone quit by the acquittal of A. because he could not be a Receiver of a felon when A. was no felon And remoto impedimento c. Vide plus ubi supra 21 Things are construed according to that which was the cause thereof Vide 31. 9. Tenant by courtesie 1 If the King give lands to a man and a woman and to the heires of their two bodies and the woman die without issue Co. Inst pars 1 21. b. 4. 9 H. 3. Dower 202. yet shall the man be tenant in taile after possibility c. But if the King give land with a woman of his kindred in frank-mariage and the woman die without issue the man in the Kings case shall not hold it for his life because the woman was the only cause of the gift but otherwise it is in the case of a common person Frankmariage 2 If lands be given to a man and a woman in special taile Co. ibid. 7 H. 4. 16. a. and they are divorced Causa praecontractus both shall hold the lands for their lives a 13 E. 3. Tit. Ass 19 E 3. Ass 83. 12. Ass 22. 19 Ass 2. But in case of frankmariage if they be so divorced the woman shall enjoy the whole land because she was the cause of the gift So if lands holden in c Plowd Carzibs case soccage be given in special tail and the Donées die the issue being within the age of 14 yeares e 17 H. 3. Gard. 146. 27 E. 3. 29. Co. ibid. 29. b. 3 Co. ibid. 42. a. 4 the next of kinne of the part of the father or of the part of the mother which can hap the custodie shall have it but in case of frank-mariage the heire of the part of the mother shall have it because she was the cause of the gift as aforesaid Co. ibidem 88. a. 4. Formedon 3 If a woman tenant in general tail maketh a feoffment in fée and taketh backe an estate in fée and take an husband and hath issue and dieth the issue may in a Formedon recover the land against the father because he is to recover by force of the estate taile as heire to his mother and is not in that case inheritable to his father the estate tail being the cause and ground of his title An Office 4 A man may have an estate for life determinable at will 3 E. 4. 8. b. as if the King doth grant an office to one at will and also grant a rent to him for the exercise of his office for terme of life this is determinable upon the determination of the office which occasioned the grant of the rent 19. 59. Co. ibid. 85. a. 2 5 If a man make a Lease for yeares of a villeine this cannot be done without déed neither can the Lessée assigne it over without déed Grant of a Villain by deed because it is derived out of a fréehold that lyeth in grant which indéed is the material cause of the grant but a wardship is an original chattel during the minority derived out of no fréehold and therefore as the Law createth without déed so may it also be assigned over without déed Co. ibi 102. a 4 9 E. 2. execut 249. 6 Vpon a judgement in debt Judgement execution the Plaintiffe shall not have execution but onely of that land which the defendant had at the time of the judgement because the action was brought in respect of the person and not in respect of the land But if an action of debt be brought against the heire and he alieneth hanging the writ yet shall the land which he had at the time of the Original purchased be charged for that the action was brought against the heire in respect of the land Co. bid 102. b. 1. 22 Ass Pl. 32. 7 If a man be nonsuit the land onely Amerciament Issues of Jurors which he had at the time of the amerciament assessed shall be charged and not that which he had at the finding of the pledges for the amerciament is not in respect of the land but for his want of prosecution which was a default in his person But the issues of a Iuror shall be levied upon the feoffee albeit they were not lost before the feoffment because he was returned and sworn in respect of the land 8 A tenure of the King in Capite Tenure in gross is said to be a tenure of the King a Bract. f. 87 as of his Crown that is as he is King c Co. ibid. 108 a. 4. ubi Vide praedict Author And therefâ—râ— if one holdeth land of a common person in grosse as of his person and not of any Mannor c. and this Seigniory escheateth to the King yea though it be by attainder of treason he holdeth of the pâ—rson of the King but not in Capite because the original tenure was not created by the King Vide infra M. 25. ca. 10. Co. ibid. 158. a. 3. 15 H. 7. 9. 14 H. 7. 31. 18 E. 4. 3. 9 If the cause of challenge alleaged by the Plaintiff against the Sheriff be pâ—rtiality to either party Challenge and processe be once awarded for such partiality though there be a new Sheriff yet processe shall never be awarded to him but to the Coroners and therefore in that case the entry is Ita quòd Vicecomes se non intromittat But if the cause of Challenge be for that the Sheriff was tenant to either party or the like in that case the processe shall be directed to the new Sheriff and not to the Coroners Co. ibid. 161. a. 2. 44 E. 3. 20. 6 R. 2. Refc 11 11 H. 7. 4. 21 H 7. 40. 34 H. 6. 18. 16 E. 4. 10. Co. l. 9. fol. 22. Case of Avowry Co. ibid. 169. b. 2. 15 H. 7. 14. 29 Ass 23. 29 E. 3. 9. b. 10 If the Lord come to distreine cattle Distress which he séeth then within his fée and the tenant or any other to prevent the Lord to distreine driâ—es the cattle out of the Lords fée into some other pâ—ace not within his fée yet may the Lord freshly follow and distreine the cattle and the tenant cannot make rescous But if the Lord comming to distreine had no view of the cattle within his fée though the â—enant drive them off purposely or if the câ—ttle of themselâ—es after the view goe out of the fée or if the tenant after the view remove them for any other cause then to prevent the Lord of his distresse then cannot the Lord distrein them out of his fée and if he doth the tenant may make rescous 11 If there be thrée Coparceners and they make partition Rent in Coparcenary and one of them grant 20 s. per annum out of her part to her two sisters and their heires for egaltie of partition the grantées are not joynt-tenants of this rent but
servant unto whom they bare no former malice yet was it adjudged Murder because of their murderous intention which was the cause of his death it is otherwise when one having no malicious intent joynes himselfe with others that commit a murder for that is but Man-slaughter in him that so suddenly joynes with them 44 E. 3. 14. b. 14 Ass Pl. 20. Finch 10. 52 A man makes me sweare to bring him money to such a place Terrour or else he will kill me I bring it accordingly this is felony So if he make me swear to surrender my estate unto him and I do so afterwards this is a disseisin to me 21 E. 4. 68. b. Finch 10. 53 One imprisoned till he be content to make an Obligation at another place and afterwards he doth so being at large The like yet he shall avoid it by dures of imprisonment 3 E. 3. 84. Finch 10. 54 Outlawry in trespass is no forfeiture of land Outlawry in trespass in forfeiture as Outlawry of felony is for although the not appearing be the cause of Outlawry in both yet the force of the Outlawry shall be estéemed according to the heinousness of the offence which is the principal cause and foundation of the processe Villenage 55 A man and a feme sole have a villein Finch 10. and afterwards enter-marry and the villeine purchaseth land they shall not have the land by entierties but by moities Ioyntly or in Common as they had the villein An action for goods bailed 56 If one deliver goods to another 22 H. 6. 1. Co. l. 10. 51. b. Lampets case and after the Bailor release to the Bailée all actions the Bailée dies in a writ of Detinue brought against his executors they shall not take advantage of that release for that determines by the death of the Bailée and the action given against the executors is a new action although of the same nature grounded upon their own deteiner Election of an Annuity or distress 57 If a rent charge be granted to A. and B. and their heires Co. Inst pars 1 146. a. 1. A. distreineth the Beasts of the Grantor who sueth a Replevin A. avoweth for himselfe and maketh Conusance for B. A. dieth and B. surviveth Here B. shall not afterwards have a writ of Annuity for the election and avowry for the rent of A. barreth B. of any election to make it an annuity albeit he assented not to be the avowry because in that case the act of one joyn-tenant barreth the other and the election takes his rise from several causes viz. the land or the person and therefore when the election once fixeth upon the land it cannot afterwards charge the person It is otherwise when a man may have election to have several remedies for a thing that is méerly personal or méerely real from the beginning 28 E. 3. 98 b. 27 E. 3. 89. b. As if a man may have an action of accompt or an action of debt at his pleasure and he bringeth in an action of accompt and appeares to it and after is non-suit yet may he have an action of debt afterwards because both actions charge the person The like Law is of an Assise or of a writ of Entry in the nature of an Assise and the like 15 E. 4. 16. 10 E. 4 5. Co. Inst pars 1 295. a. 3. Wager of law 58 In an action of accompt against a receivour upon a receipt of money by the hand of another person for accompt render unlesse it be by the hands of his Wife or Commoigne the defendant shall not wage his Law because the receipt is the ground of the action which lyeth not in privity betwixt the Plaintife and Defendant but in the notice of a third person and such a receipt is traversable a 33 H. 6. 24. 13 H. 7. 3. a. 22 H 6. 41. 1 H. 6. 1. b. 8 H. 6. 11 c. But in an action of debt upon an arbitrament and in an action of Detinue by the bailment of anothers hand the Defendant shall wage his Law because the Debet and the Detinet is the ground of those actions and the contract or bailment though it be by another hand is but the conveyance and not traversable Descent to Daughters yet no Coparâ—eners 59 Land is given to a man and his wife and the heires of their two bodies and they have issue a daughter the wife dies Littl. § 662 663. the husband takes another wife and hath issue another daughter and discontinues the taile and after disseiseth the discontinuée and so dies seised Here the land shall descend to both the daughters but yet they are not Coparceners because they are in by several Titles viz. the eldest is remitted by force of the intaile to the one moity and the other hath Fée simple by force of the descent from her father but in this case the eldest shall out the youngest by her action of Formedon Recovery in value 60 If the heir of the part of the mother of land Co. Inst pars 1 13. a. 1. Pl. Co. 292. 515 whereunto a warranty is annexed is impleaded and vouch over and judgement is given against him and for him to recover in value and dieth before execution the heir of the part of the mother shall sue execution to have in value against the vouchée for the effect ought to pursue the cause and the recompence shall ensue the losse Co. ibid. 201. b. 3. 61 He that will take advantage of a re-entry for non payment of rent must make demand of the same upon the land Demands upon the land because the land is the principal debtor for the rent issueth out of the land and in an Assise for the rent the land shall be put in view and if the land be evicted by a title paramount the rent is avoided and after such eviction the person of the Feoffée shall not be charged therewith for the person of the Feoffée was onely charged with the rent in respect of the grant out of the land c. Howbeit Homage or any other special corporal service must be done to the person of the Lord and the tenant ought by the Law of convenience to séek him Co. ibid. 210. a. 1. to whom the service is to be done in any place within England for that and the like services are due and issue out of the land in respect of the person c. F. N. Br. 150. d. 62 If a man recover in value against the baron by warranty of the ancestor yet the feme of the baron shall be endowed Dower because the recovery was had by force of the warranty made and not by reason of any eigne title to the land Dyer 13. 62. 28 H. 8. 19 E. 3. 63 If land be given in Frank-marriage Divorce and after the Donées are divorced the party by whom the
a man and a woman and their heires before mariage the husband and wife have moities betwéen them Lands given to Batre and feme but if it be after mariage each of them taketh the whole And therefore in this last case if the husband be attainted of Treason or selleth away the land after her husbands death she shall recover the whole as it fell out in the case of William Ocle who was attainted for murthering E. 2. Finch 41. Co. ibid. 209. b. 2. 18 E. 4 18. 19 H. 6. 54. 20 E. 3. account Pl. 70. 8 In a Mortgage the agréement precedent ought to guide the payment subsequent and therefore in case the feoffée die The conditio◠of a mortgage must be performed and it is agréed betwéen the feoffor and the executors of the feoffée that at the day and place the whole sum shall be paid and that afterwards some part thereof shall be restored this is no performance of the Condition for hereby the state shall not be devested out of the heire which is a third person without a true and effectual payment and not by a shadow and colour of payment Co. l. 5. 96. Goodales case Co. ibid. 248. b. 1. Littl. § 410. Pl. Co. Dame Hales case 6 E. 3. 41. c. 9 Littleton saith that a descent Descent by entry into Religion which happens upon the disseisors entring into Religion shall not take away the entry of the heire yet his entry into Religion is not the cause of the descent but his profession for albeit he enter into Religion yet before he be profest no descent can happen But in this case the Law doth respect the original act and that is his entry into Religion which was his own act and whereupon the profession followed by which profession the descent hapned for Cujusque rei potissima pars principium est And againe Origo rei inspici debet and therefore Littleton attributeth the cause of the discent rather to the deisseisors entring into Religion which was the first act to procure a descent than to his profession which followed thereupon Co. ibid. 372. b. 3. T. 23 El. in the Court of Wards 10 To prevent the barring of an estate taile An entail and the reversion in the King when the reversion is in the King according to the Stat. of 34 H. 8. 20. it is necessary that the estate tail should be created by a King and not by any Subject albeit the King be his heire to the reversion And therefore if the Duke of Lancaster had made a gift in taile and the reversion descended to the King yet was not that estate restreined by that Statute and so of the like Co. l. 5. 15 16. in Wisemans case Vide 21. 8. 33 Ass Pl. 7. 11 If a servant departed out of his Masters service kill his Master upon a malice that he bare him whilest he was his servant Malice prepence it is petty Treason Finch 10. 10 El. Dyer 266. b. 12 A erects a Shop upon the Kings Fréehold No possession against the King the King grants the land to B. in fée A. before entry or seisure of the Shop by the Kings Patentée continueth the possession and dieth seised This is no descent to toll the Patentées entry For by his first erecting of the Shop he could gaine nothing against the King Finch 11. Co. lib. 2. 93. a. 3. Binghams case 6. E. 3. 410. 13 It was said in Binghams case in the 2 Report The original act considerable that when divers accidents are requisite to the consummation of a thing the Law in many cases respects rather the beginning and original cause then any thing else As in 6 E. 3. 41. if a man present to another mans Church in the time of warre and thereupon the presentée is admitted instituted and inducted in time of peace Here the Law gives such regard to the original act viz. the presentation that all which followes thereupon although it be done in time of peace Co. l. 1. 106. Shelleyes case shall be avoided And upon the same reason was Shelleys case adjudged in the 1 Report fol. 106. Grant by baron without feme not good 14 If land be given to Baron and Feme Co. l. 3. 5. b. 3. Owen and Morgans case Co. l. 3. 34. b. 4. Butler and Bakers case and to the heires of their two bodies engendred and the Baron alone suffers a common recovery this shall not bind the estate taile And albeit in this case the Baron which suffers the recovery survives the Feme that is not material for the Law shall adjudge upon the case as it was at the time of the recovery Tenure according to limitation 15 If Land be given to a man and his heires to hold by Soccage during his life and after his decease to hold by Knight-service Littl. § 698 699 700. Here shall be no ward because the tenure by Knight-service begins in the sonne and the Father during his life holds by Soccage And è converso if lands be given to a man and his heires to hold by Knight-service during life and after his decease in Soccage Here likewise shall be no ward because immediately upon the death of the tenant the Knight-service determines and then also the tenure in Soccage begins in the sonne Warranty that begins by disseisor not good 16 If the sonne purchaseth land Co. l. 4 37. a. Tirringhams Case and letteth the same to his father for terme of yeares the father enfeoffes another in fée and binds himselfe and his heires to warranty the Father dies by which the warranty descends to the sonne this warranty shall not barre the sonne from his entry or recovery by assise c. because this warranty begins by disseisin In like manner is it if the father or any other Ancestor be tenant at will by Elegit by Stature Merchant or Statute Staple and make feofment with warranty as aforesaid c. Such warranty shall not barre because it begins by disseisin c. There is the same reason of Guardian in Knight-serice or in Soccage which make such feofment with warranty So also if the father and sonne be Ioyn-tenants in fée and the father make feofment with warranty c. and dies this shall not barre the sonne of his moity causa quae suprà Common appendant due of common right 17 The beginning of common appendant by the ancient Law was in this manner 37 H. 9 34. per totam curiam 29 H. 8. 4. when the Lord of a Mannor did enfeoffe a man of arable land to hold of him in Soccage viz. per servitiam Socae as every such tenure at the beginning as Littleton saith was the feoffée ad manutenendum servitium Socae was to have Common in the Lords wastes for such necessary beasts as were to plow and compasse his land and therefore such Common appendant is
value as it was in her husbands time So it is likewise if the heire improve the value by building the like Law is if the value be impaired in the time of the heire for then also she shall be endowed according to the value at the time of the assignement and not according to the value as it was in her husbands time And the reason of all this is because she claims paramount the improvement or impairing of it and hath Title to she quantity of the land viz. one just third part Co. Inst pars 1 46. a. 3. 3 If Tenant in taile make a Lease for yeares reserving xx s. rent Lease by tenant in tail good in dower and after take a wife and die without issue here as to him in the reversion the Lease is méerly void because he claimes paramount the Lease but if he endow the wife of Tenant in tail of the land as she may be though the estate taile be determined now is the Lease as to the Tenant in Dower who is in of the estate of her husband revived againe as against her for as to her the estate taile continueth and the Lease is paramount her Title Co. Inst pars 1. 113. a. 3. Littl. § 169. 4 If a man by the Custome devise that his executors shall sell his lands c. and dieth the lands in this case descend to his heire Feoffee in by devise and the executors have no estate in them but onely a bare and naked power neverthelesse a feofment from them shall amount to an alienation to vest the land in the Feoffée because the Feoffée by construction of Law shall be said to be in by the Divisor and not by the executors So it is likewise if a man by the custome devise a reversion or any other thing that lyeth in grant to be sold by his executors they may sell the same without Déed causa qua suprà Co. Inst pars 1. 117. a. 2. 5 If lands be given to a Villain and to the heirs of his bodie The Lords title Paramount an entail to a villain and so is the Kings to that of an Alien the Lord may enter and put out the villein and the heirs of his body for Quicquid acquiritur servo acquiritur domino And in this case the Lord gains a Fée simple determinable upon the dying of the Villain without issue of his bodie and the absolute Fée simple remaineth still in the Donor And if the Lord enter and after enfranchise the Donée and after the Donée hath issue yet that issue shall never have remedie either by Formedon or Entry to recover this land by force of the Statute de donis c. For the Lord is in paramount the entaile and that Statute giveth onely remedie to the issues of the Donée that hath capacity and power to take and retaine the gift And the Title of the Lord remaines as it did at the Common Law for the Statute restraineth acts done onely by the Tenant in taile So it is also if lands be given to an Alien and to the heires of his body upon office found the land is seised for the King afterwards the King makes the Alien a Denizen who hath issue and dieth the King shall detaine the land against the issue because the Kings Title is Paramount the entail viz. by his prerogative Vide infrà 32. Co. Inst pars 1 148. b. 3. 6 If a man grant a rent charge out of two acres A Title Paramount to rent and after the Grantée recovereth one of the acres against the Grantor by a Title paramount the whole rent shall issue out of the other acre Doct. Stud. l. 2. cap 17. Co. Inst pars 1 148. b. 3. 7 If a man enfeoffeth B. of one acre in fée upon Condition Title Paramount a grant and B. being seised of another acre in fée granteth a rent out of both the acres to the Feoffor who entreth into the one acre for the Condition broken the whole rent shall issue out of the other acre because his Title is paramount the grant Co. Inst pars 1. 184. b. Littl. § 286. 8 If two Ioyn-tenants be seised of an estate in Fée simple Jus accreseâ—dendi praefertur oneribus and the one grants a rent charge to another out of his part here the rent is good during his life but after his decease the Survivor shall avoid it because he commeth in by the first Feoffor and not under his companion So likewise if a man be possest of certaine lands for terme of yeares in the right of his wife and granteth a rent charge and dieth Co. Inst pars 1 185. a. 1. the wife shall avoid the charge And for the same reason it is that if a Ioyn-tenant charge the land with common of Pasture Turbary Estovers or with a Corodie or with a way over the land or the like this shall not bind the Survivour For jus accrescendâ— prefertur oneribus and Alienatio rei praefertur juri accrescendi Vide M. 15. Pl. 14. Co. Inst pars 1 185. a. 2. 9 One Ioyn-tenant in fée taketh a Lease for yeares of a stranger Simile by Déed indented and dieth the Survivour shall not be bound by the conclusion because he claimes above it and not under it Baron chargeth the Femes â—and 10 If there be two Ioyn-tenants in fée Co. Inst pars 1 185. a. 2. Finch 13. Dyer 187. and the one maketh a Lease for yeares reserving a rent and dieth the surviving Feoffée shall have the reversion but not the rent because he claimeth in by the first Feoffor which is paramount the rent So it is also of the wife where the husband being Lessée for yeares in her right maketh a Lease of part of the terme reserving a rent Inst part 1. 318. a. 3. Simile 11 If a husband wife Co. Inst pars 1 187. b. 4. and a third person purchase lands to them and their heires and the husband before the Statute of 32 H. 8. cap. 1. had aliened the whole land to a stranger in fée and died the wife and the other Ioyn-tenant were Ioyn-tenants of the right and if the wife had died the other Ioyn-tenant should have had the whole right by Survivour for that they might have joyned in a writ of right and in this case the discontinuance would not have barred the entry of the Survivour because he claimed not under the discontinuance but by Title paramount above the same by the first feofment A condition â—aramount a descent 12 If a man be seised of lands in Fée or Fee taile upon Condition to render certaine rent or any other Condition Co. Inst pars 1 240. a. b. Littl. § 391 392. albeit such a Tenant die seised yet if the Condition be broken in his life time or after his decease that descent shall not take away the entry of the Feoffor or Donor or of
agréed 22 Ass P. 72. But he that hath onely a later Right Title Interest Debt or Demand shall not at the Common Law avoid a precedent Grant or estate made by fraud The Copiholder is in by him that surrenders and not by the Lord. 22 When a Copiholder surrenders to the use of another Co. l. 4. 27. b. 2. Taverns case Co. l. 8. 63. Swains case Co. ibid. pars 4 28. b. 3. Westwicks case and the Lord admits him now he that is so admitted is in by him that made the surrender For in a Plaint in the nature of a writ of Entry in te per he shall be supposed in the per by him that made the surrender because the Lord is but an instrument to make the admittance and he that is admitted shall not be subject to the charges and incumbrances of the Lord for that the Lord hath but a customary power to make admittance secundum formam effectum sursum redditionis And therefore albeit the Lord grant the land over to another by copy that is done without warrant and the Lord may notwithstanding that make admittance according to the surrender and it shall be good causa qua supra So also if the Lord after such surrender grants the land to Cestuy quae use and to a stranger all shall enure to Cestuy quae use or if he admit Cestuy quae use upon condition the condition is void For after the admittance he is in by him that made the surrender and by the custome which is paramount the power of the Lord. Vide 21. 37. The like 23 If a man devise a terme to I. S. and the Executors agrée and assent that I. S. and I. D. shall have it Co. ibid. 28. b. 4. Westwicks case or that I. S. shall have it upon condition in these cases I. S. shall have the terme solely and absolutely for after the assent of the Executors he is in by the devise So likewise it was adjudged in the case of one Bunting Co. ibid. 29. a. 4 Buntings case that if a Copiholder surrender into the Lords hands to the use of another for life and the Lord admit him to hold to him and his heires yet he which is so admitted hath but an estate for life because he is in after admittance by the surrender Vide 21. 37. Issue in tail not barred 24 In Formedon in descender if the Demandant be barred by verdict or demurrer Co. l. 6 7. b. 3. Ferrers case yet the Issue in taile shall have a new Formedon in descender upon the construction of the Statute of West 4. cap. 2. So also if he be barred in a Writ of Error upon the release of his Ancestor his issue shall have a new Writ of Error For he claimes in not onely as heire but per formam doni and by the Statute which are paramount the verdict or demurrer and he shall not be barred by the faint or false pleading of his Ancestor so long as the right of the entaile remaines And with this agrées 10 H. 6. 5. 3 Eliz. Sir Ralfe Rowlets case Dyer 188. The like 25 If there be two Ioyn-tenants both within age Litt. § 634. Co l. 8. 43. a. 4. Whittinghams case and they joyn in a feofment in this case a joynt right remaines in them and therefore if one of them die the right will survive and the Survivour shall have the right of the land as from the first Feoffor A condition Paramount 26 If a man make a lease for yeares upon condition Co. l. 8. 76. a. 2. In the Lord Staffords case that if the Lessor out him within the terme that he shall have fée in this case if the Lessor do out him the interest of the terme is turned into a right and yet there the Lessée shall have fee and one reason thereof is because the Title of the Lessee is by force of the condition which is paramount the Ouster Title Paramount dscharges dower c. of debts c. 27 A Feme shall not be distrained for the Debts due to the King by the Baron in the lands which she held in Dower Fitz. N.B. 150. q. nor in the lands of the Inheritance of the Feme nor in the lands which she hath by purchase made by the Baron to him and the Feme and their heires because she claimes by Title paramount the Debts and if she be therefore distrained by the Sheriffe she shall have a Writ to discharge her which see Fitz. N. Br. 150 q. Paramount administration 28 An Executor recovereth and dieth intestate Finch 13. administration of the goods of the first testator is committed to I. S. Here I. S. shall not sue execution upon this recovery Finch ibid. 29 Dower cannot be assigned reserving a rent Dower a title paramount or with a remainder over for she is in from the husband and not from him that assigneth Dower Co. l. 4. 53. a. 3. in Rawlins case 30 If a man make a Lease for 21 yeares rendring rent with clause of re-entry A Lease Paramount and after the Lessee make a Lease to the Lessor for 6 years to beginne two yeares after and afterwards the rent being lawfully demanded is arreare here the Lessor may lawfully re-enter and take advantage of the condition notwithstanding the acceptance of the said future interest and by the re-entry shall defeat the future interest which vested in him Co. ibid. 31 If a man make Feofment in fee upon collateral condition A paramount feofment with condition and after the Feoffee redemise the land to the Feoffor and afterwards the condition is performed Here the re-demise of the land being no suspension of the condition is no impediment but that the Feoffor shall take advantage of the condition and shall thereby destroy the term that he himselfe had accepted as it is holden 20 E. 4. 19. 8 H. 7 8. 20. H. 7. 4. Fitz. â—6 c. 31 If the eldest sonne by the first venter present and die without issue and after the Church happens to be void A descent paramount the youngest sonne of the second venter shall not present nor have that Advowson so if there be two daughters of several venters and after partition one of them presents and dies the other shall not have it but if they make partition to present by turn and one of them die before any presentment is made in that case the other shall have the Advowson for she then claimes paramount the descent from her sister viz. immediatly from their Ancestor Dyer 54. 21. 34 H. 8. 32 Tenant in tail makes a feofment before the Statute of 27 H. 8. to the use of his wife for life Remitter the remainder to his sonne and heir in fee and after the Statute is made and the Feoffor dies and his wife also and the sonne enters In this case it seemes that
Tenant for life A feofment by two and he in the Remainder or Reversion in Fée joyn in a Feofment by Déed the Livery of the Fréehold shall move from the Lessée and the Inheritance from him in the Reversion or Remainder from each of them according to his estate Co. Inst pars 1 303. b. 2. 5 Every man shall plead such pleas Pleas proper as are pertinent for him Secundum subjectam materiam viz. according to the quality of his case Estate or Interest as Disseisors Tenants Incumbents Ordinaries and the like Co. Inst pars 1 200. b. 3. 6 One Tenant in Common may enfeoffe his Companion Feofment Releases but not release because the Fréehold is several Ioyn-tenants may release but not enfeoffe because the Frée-hold is joynt But Coparceners may both enfeoffe and release because their seisiin to some intents is joynt and to some several Co. l. 3. 50. b. 4. Sir George Browns case 7 The words of the Statute of 11 H. 7. cap. 20. Statute of 11 H. 7. 20. interpreted for discontinuances which prohibits a Feme to alien the lands of her deceased husband are these that she shall not discontinue alien release or confirm them with Warranty where Warranty seems to be referred to any Discontinuance or Alienation as well as to release and confirmation So that if a Feme Tenant in special taile after the decease of her husband make a Lease for three lives not warranted by the Statute of the 32 H. 8. cap. 28. without Warranty he in the Reversion or Remainder by force of the said Statute of 11 H. 7. shall not enter but it was adjudged in Sir Geo. Brownes case in the 3 Report that in that case he might enter and that these words with Warranty shall be onely referred to Releases and Confirmations which indéed do not make a discontinuance without Warranty for the intent of the said Act of 11 H. 7. was not onely to prohibit every barre but also every manner of discontinuance which might put the heire to his real action whereby he might perhaps be disinherited or at least greatly delayed And therefore in regard Releases and Confirmations do not make discontinuance without Warranty these words with Warranty are to be construed Secundum subjectam materiam and shall be referred to them onely to make them equivalent to such an estate which passeth by Livery and which of it selfe without Warranty makes a discontinuance Co. l. 4. 10. b. 4. Bevils case 8 The Statute of 32 H. 8. cap. 2. which provides 32 H. 8. 2. interpreted for rents that none shal have any Avowry or Conusance for any rent suit or service unlesse seisin were had within 40 years before the Avowry made extends not to any such Rent or Service which by common possibility cannot happen or become due within 60 yeares as if the Seigniory consists upon Homage and Fealty onely for the Tenant may live 60 yeares after he hath done them So also if the Service be to cover the Hall of the Lord or to go to Warre with him when the King maketh Warre against his enemies such casual Services which by common possibility cannot happen within 60 yeares are not within that Act c. Likewise writs of Escheat Cessavit or Rescous are not within those branches of the same Statute which limit the seisin of land because in those writs the seisin is not traversable but the tenure and in those writs of Escheat and Cessavit albeit they demand the land yet néed they not alleadge any seisin in the same lands c. as the said Statute requires because that Act onely extends to such a writ where the Demandant or his Ancestors may have seisin of the land in demand within the time of limitation prescribed by the Act and the Statute doth not force them to any impossibility c. Scandalum Magnatum 9 The Lord Cromwell brings an Action de scandalo magnatum upon the Statute of 2 R. 2. cap. 5. against Vicar Delmy Co The Lord Cromwels case for speaking these words unto him You like of those that maintaine sedition against the Queens proceedings unto which the Defendant pleades special justification that the Plaintife procured two to prea h in his Church which enveighed in their Sermons against the Book of Common Prayer and because the Defendant did prohibit them the Plaintife said to the Defendant Thou art a false varlet I like not of thee to whom the Defendant said It is no marvel though you like not of me for you like of those inuuendo the two that should have preached that maintaine sedition innuendo seditiosam illam doctrinam against the Queenes proceedings And this was adjudged a good justification For in case of slander for words the sence of the words are to be taken and the sence of them doth best appeare by the cause and occasion of speaking them according to the Rule Sensus verborum ex causa dicendi accipiendus est sermones semper accipiendi sunt secundum subjectam materiam And therefore in this case the Council of the Defendant was said to have done well in shewing the special matter whereby the sence of this word sedition might appeare upon the coherence of all the words taken together viz. that the Defendant meant the seditious doctrine against the Quéens proceedings in the Act of 1 Eliz. by which the Book of Common Prayer was established and that he did not intend any such publique or violent Sedition as was alleadged by the Plaintife and as ex vi termini per se the word it selfe would import c. And it was said Quae ad unum finem loquuta sunt non debent ad alium detorqueri c. Common 10 If Common be said to be appertaining to a Mease Land Co. l. 4. 37. a. 4. 38. a. 3. Tirringhams case Meadow and Pasture time out of mind that shall be adjudged Common Appurtenant and not Common Appendant for it is against the nature of Common Appendant to be Appendant to Meadow or Pasture And therefore in that case the subject matter and the circumstance of the case ought to direct the Court to give Iudgement whether the Common be Appendant or Appurtenant 11 In Appeal of Murder against A. as principal Co. l. 4. 43. b. 4. Bibithes case and against B. as accessory before the fact Accessary in manslaughter A. was found guilty of Man-slaughter but not of Murder in this case B. was acquit because there cannot be an Accessary before the fact in Manslaughter which allwayes happens upon a suddaine debate or effray for if it be premeditate it is Murder Joint warranties or words 11 Ioynt words of the parties shall by construction of Law be taken respectively severally according to the several interests of the Grantées as Warranty made to two of certain lands Co. l. 5. 7. b. 4. 16 H. 6. 63 64. shall enure as
contrà â—e shall be endowâ— 1 If a man be Tenant in fée taile generall Co. Inst pars 1 31. b. 4. F.N.B. 149. f. and makes a Feofment in fée and takes back an estate to him and his heires in fée and then takes wife and hath issue and dies his wife shall not be endowed for that her title of Dower is grounded upon the estate in fée which her Husband had during the coverture Now that Fée-simple vanished by the remitter of the heire in taile and therefore her title of Dower must néeds vanish also For her issue hath not the land by the descent of the Fée-simple but by force of the intaile There is the same law where the Tenant in taile disseiseth the discontinuee c. â—ery voyd 2 When a déed of Feoffment is void in it selfe Co. ibid. 48. b. 1. if livery be made according to the forme and effect of that déed the livery is also voyd As if A. by déed give land to B. to have and to hold after the death of A. to B. and his heirs this is a voyd déed because he cannot reserve to himselfe a particular estate and if livery be made according to that déed the livery is likewise voyd because the livery referreth to a deed that hath no effect in Law and therefore cannot worke Secundam formam effectum of that déed c. 〈◊〉 action of â—st gone 3 Regularly none shall have an action of Wast Co. ibid. 53. b. 3. unlesse he hath the immediate estate of inheritance and therefore if hanging an action of Wast an estate taile determines and the Plaintiff becomes Tenant in taile after possibility c. the action of Wast is gone â—cting of â—ses shall 〈◊〉 now forâ—the the land 4 In ancient time Co. ibid. 92. b. 4. amongst divers wayes that lands might escheat or be forfeited to the Lords of whom they were holden this was one if the Tenants did erect Crosses upon their Houses or Tenements in prejudice of the Lords to the end the Tenants might claim the priviledge of the Hospitalers and so defend themselves against their Lords by such erecting of Crosses they were subject to forfeit their tenancies but now since it hath pleased God by the light of the Gospel to banish out of our Church and Common-wealth all such superstitious reliques the danger of forfeiting Lands that way is also banished â—mage may â—epealed 5 Regularly it is true which Littleton saith Co. ibid. 103. b. 3. Littl. §. 148. that when a Tenant hath once done homage to his Lord he is excused for term of his life to make homage to any other Alienée or heirs of the Lord Howbeit it faileth in this case following A. holdeth of B. as of the Mannor of Dale whereof B. is seised in taile B. discontinueth the estate taile and taketh back an estate in Fée-simple A. doth homage to B. B. dieth seized and the Issue in taile entreth In this case A. shall do homage again to the heire in taile of B. because he is remitted to the estate tail and the estate in fée that his father had in respect whereof the homage was done is vanished and therefore the homage it selfe is also vanished for the heire in taile is in of a new estate in respect whereof A. ought to doe a a new homage So likewise it is when the Tenant hath done homage and the Mannor is afterwards recovered from the Lord in a Praecipe quod reddat c. by a Stranger In this case also the Tenant shall do homage againe to the Stranger because the estate of him that received the first homage is defeated by the recovery c. It is otherwise when the Mannor is aliened to a Stranger or descends to the heire without defeasance as aforesaid of the original estate Co. ibid. 128. b. 3. 6 When the ground or cause of an Action faileth Where tâ—â— ground oâ— action faâ— all is gooâ— there must néeds the Action it selfe also faile as if an out-lawed person brings an Action the ground and cause of which Action is forfeited by the Out-lawry as in an Action of Debt Detinue or the like there the Defendant may plead the Out-lawry it selfe in barre of that Action and shall thereby conclude the Plaintife It is otherwise in real or personal Actions where the damages are uncertaine as in trespasse of Battery of Goods of breaking his Close and the like and are not forfeited by the Out-lawry for there the Out-lawry must be pleaded in disability of the person Co ibid. 138. a. 4. 7 Tenant in Taile of a Mannor whereunto a Villain is regardant No maâ—sion by 〈◊〉 brought 〈◊〉 Lord. enfeoffeth the Villaine of the Mannor and dieth Here the issue after recovery of the Mannor in a Formedon against the Villaine may seise the Villaine and the bringing of that Writ in this case shall worke no manumission because at the time of the Writ brought he was no Villaine and the estate by reason whereof he might claime the priviledge of manumission being defeated the manumission it selfe is also defeated Co. ibid. 147. a. 4. 41 E. 3. 13. per Finchden 8 A man by Déed grants a rent of 40 s. to another out of the Mannor of D. to have and perceive to him and his heires Rent oâ— land erâ—â— and grants over by the same deed or by another that if the rent he behind the Grantée shall distraine in the Mannor of S. Here both the Mannors are charged the one with the rent the other with a distresse the one issuing out of the land the other to be taken upon the land And in this case if the Mannor of D. be evicted by an eigne Title all the rent is extinct and so by consequence both the Mannors discharged but if the Mannor of S. be onely evicted all the rent doth still remain c. Co. ibid. 158. a. 4. 9 If a Pannel upon a Venire facias be returned and also a Tales Challeâ— and the array of the Principal is challenged if the Triors quash the array of the Principal they shall not trie the array of the Tales for now it is as if there had been no apparance at all of the Principal Pannel but if the Triors affirme the array of the Principal then shall they also trie the array of the Tales c. Co. ibid. 223. b. 1. 224. a. 3. 10 If a Feofment be made upon Condition that the Feoffée shall not alien in Mortmaine this is good Good coâ—ons because the Condition is backed by a Statute Law for such Alienations are prohibited by the Statute of Mortmaine And regularly whatsoever is prohibited by Law may be prohibited also by Condition be it malum prohibitum or malum in se In ancient Déeds of Feofment in Fée there was most commonly a clause Quòd licitum sit donatorio rem datam dare vel vendere cui voluerit exceptis
and warranteth the land in Forma praedicta afterwards the Lessée performs the Condition whereby the Lessee hath fee In this case the warranty shall extend and increase according to the estate And so it is also albeit the Lessor had died before the performance of the Condition for then also the warranty shall rise and increase according to the estate and yet the Lessor himselfe was never bound to the warranty but it hath relation from the first Livery And the reason of this is because a warranty being a Covenant reall executory may extend to an estate in futuro having an estate whereupon it may worke in the beginning But if a man grant a Seigniory for years upon Condition to have fee with a warranty in forma praedicta and after the condition is performed this shall not extend to the fee because the first estate was but for years which was not capable of a warranty And so it is if a man make a lease for years the remainder in fee and warrant the land in forma praedicta he in the remainder cannot take benefit of the warranty because he is not party to the déed and immediately he cannot take if he were party to the deed because he is named after the Habendum and the estate for years is not capable of a warranty c. Remainder grants Rent charge voydable 34 A. is Tenant in taile the remainder to B. in taile Co. lib. 1. 62. b. 4. Caples case B. grants a rent charge issuing out of the land to C. and his heirs A. suffers a common recovery and dies without issue In this case C. shall not have the rent because the remainder of B. being defeated by the recovery the estate of his Grantee in the rent is also defeated A remainder must vest either during the particular estate or eo instante that it determines 35 A. seized of land holden in Socage deviseth it to D. for life and after to the next heire male of B. B. hath issue C. A. dies Co. lib. 1. 66. b. 4. Archers case per tot Curiam B. enfeoffs D. with warranty In this case by the feoffment of the Tenant for life the remainder is destroyed for every contingent remainder ought to rest either during the particular estate or at least eo instante that it determines because if the particular estate which should support the remainder be once determined in Deed or in Law before the contingency fall the remainder it selfe must needs be also determined and voyd Here therefore in as much as by the feoffment of B. his estate for life was determined by a condition in Law annexed unto it and cannot possibly be afterwards revived for this cause the contingent remainder is destroyed as aforesaid against the opinion of Gascoigne 7 H. 4. 23. b. Co. lib. 1. 135. a. 4. Chudleys case 36 A. grants land to B. to the use of B. for the life of C. the remainder to the heirs male of C. the remainder to the next heirs of A. B. makes a feoffment to C. and his heirs Here by that feoffment The like the estate for life is destroyed and by consequent the remainders which depend upon it are destroyed also for by the feoffment of the Tenant for life title of Entry was given for the forfeiture and at that time he in the next future remainder was not in esse to take it and therefore the remainders in futuro by this matter ex post facto were utterly destroyed made void So if Tenant for life be the remainder to the right heirs of I. S. If in this case Tenant for life make feoffment in fee during the life of I. S. the remainder is destroyed for otherwise there should be a remainder without a particular estate which cannot be Co. ibid. b. 3. 11 R. 2. Detinue 46. 37 A gift in taile was made to A. C. the remainder to the right heirs of A. S. the Donee makes feoffment to B. in fee and after A. S. dies The like the right heir of A. S. shall never have that remainder for the estate of the Land was by the feoffment of the Tenant in tail devested and discontinued and all the estates vested in the Feoffee neither was there any particular Estate either in esse or in right to support the remainder when it fell c. Co. l. 2. 52. a. 4. Sir Hugh Cholmleys case 38 If a man make a gift in taile the remainder in fée The like he in the remainder grants his remainder to another for life the remainder to the King in fée upon condition that if he pay or tender 10 l. at the Rolls c. that then the grant shall be void The tenant in taile suffers a recovery and thereby destroys not onely the estate taile it selfe but likewise the remainder in fée and the estate for life granted by him in the remainder and so by consequent the remainder to the King as also the condition which depend upon the estate for life c. Co. lib. 2. 55. Bucklers case 39 There is a diversity betwixt a grant made by the agréement of the parties which standeth not with the rules of Law Grant made upon a good ground contra Diversity can never by any subsequent as by livery or attornment be made good a grâ—â—t which is good at the beginning but is to have his consummation and perfection by some Ceremony subsequent As in case of a Charter of feoffment if the Feoffée enter before livery he is not a Disseisor for the Charter is good and the agréement of the parties is according to Law and that may be made good by livery of seisin subsequent But if lands in lease for years be granted to C. Habendum tenementa praedicta from Michaelmas next for life and after Michaelmas the Tenant attorns In this case the grant to C. is voyd and cannot afterwards be made good by attornment and therefore if he enter he is made a Disseisor for the Law will make construction upon the whole grant and an estate of Franktenement cannot commence in futuro And therefore observe well the difference betwixt a good beginning or foundation capable of a structure and an evill one which wants a foundation whereon the structure may stand and be built c. Co. lib. 4. 24. a. 1. Copihold cases Clarke and Penyfathers case 40 If a Disseisor or the feoffée of a Disseisor or any other Admittances of copihold that hath a forcious or feasible estate or interest subject to the action or entry of another holdeth Court and maketh any voluntary grant upon the escheat or forfeiture of a Copi-hold such voluntary grant shall not bind him that right hath for when after re-continuance of the Mannor by action or entry he shall have defeated the title of such Disseisor c. he shall also avoyd such voluntary grants But if such a Lord that is in
the land be ancient Demesn again for the estate whereupon the confirmation should enure is defeated Finch 14. Absque impetione vasti determined 67 The priviledg of Absque Impetitione vasti is annexed to the privity of the Estate 3 E. 3. 44. per Shard and Stove so that if the estate Co. l. 11. 83. b. 3 Bowles case unto which that priviledg is annexed be changed the advantage of that priviledge is lost 5 H. 5. 9. a. And therefore if a man make a lease for years without impeachment of wast and after confirms the land to him for life he shall be ever after chargeable with waste 28 H. 8. Dyer 10. b. If a lease be made to one pur auter vie without impeachment of wast the remainder to him for the term of his own life Now is he punishable of wast for the first estate unto which the advantage of Absque impetitione vasti was annexed is drowned and gone and therefore that priviledge is gone also So it is likewise of a Confirmation c. Priviledge of 〈◊〉 by the courâ—â—sie lost by aâ—â—nation 68 It was adjudged in the case of one Ewens M. 28. Co. ibid. 29 Eliz. that where the Tenant in taile after possibility of issue extinct granted over his estate the Grantée was forced in a Quid juris clamat to attorn because by the assignment that priviledge was lost And this judgement was affirmed in the Kins Bench in a Writ of Error and with it also agrees 27 H. 6. tit Aide in Statham No prohibition of wast by the alienee of the heire against tenant in dower 69 The heire at the Common Law shall have a prohibition of wast against Tenant in Dower but if the heire grant over the reversion Co. ibid. his Grantée shall not have it for it appears in the Register fol. 72. that such an Assignee in an action of Wast against Tenant in Dower shall recite the Statute of Glocester and then by consequent he shall not have prohibition of Wast at the Common Law for then he should not recite the Statute Vide F. N. B. 55. 14 H. 4. 3. 5 H. 7. 17. b. Co. Inst pars 1 12. b. 4. 70 If a man be seized of lands as heire of the part of his mother Priviledg 〈◊〉 by a purchaâ—â— of the land and maketh a feoffment in fee and taketh back an estate to him and his heirs this is a new purchase and if he die without issue the heirs of the part of the father shall first inherit because the estate unto which the property of descending to the heirs of the part of the mother being by the change of the same estate destroyed that property it selfe is also destroyed So likewise if a man so seized makâ—th a feoffment in fee reserving a rent to him and to his heirs this rent shall goe to the heirs of the part of the father c. Co. ibid. 83. a. 2. Co. l. 4. 88. in Luthrels case 71 If there be Lord and Tenant by Castle-guard Castle-guard gone by aâ—â— nation and the Lord granteth over his Seignory to another In this case the Castle-guard is gone because the Grantee hath not the Castle which is the ground of the service For the same reason it is that if one holdeth of me as of my Mannor of D. by fealty and suit of Court if I grant over the services of this Tenant the suit is gone because the Grantée hath not the Mannor But if the Castle be wholly ruinated Si castrum sit penitùs dirutum yet the tenure remaineth by Knight service and it goeth in benefit of the Tenant as to the guarding of the Castle untill it be re-eedified but ward and marriage belongeth unto the Lord in the meane time Co. Inst pars 1. 53. b. 4. 72 After Waste done Wast made dispunishable there is a special regard to be had to the continuance of the reversion in the same state that it was in at the time of the Waste done for if after the Wast committed the reversion granteth it over though he taketh back the whole estate again yet is the Wast dispunishable So likewise if he grant the reversion to the use of himselfe and his wife and to his heirs yet the Wast is dispunishable and so of the like because the estate of the reversion continueth not but is altered and consequently the Action of Wast for Wast done before which consists in privity is gone also Co. l. 5 28. a. 3. in Middletons case 73 An Executor before probat may release an action Executor may release befoâ—â— probat not the Administrator albeit before probat he cannot bring an action for the right of action is in him So also if two Executors prove the Will and the third refuse yet he may release It is otherwise of an Administrator for if A. release and after take administration that shall not barre him because the right of action was not in him at the time of the release made Co. Inst pars 1 76. b. 3. 74 If there be Lord and Tenant A conditional wardship devested and the Tenant maketh a feoffment in fée of Lands holden by Knight service to the use of the Feoffée and his heirs untill the Feoffor pay unto the Feoffée or his heirs 100 l. at a time and place limited the Feoffée dyeth his heire within age Here the Lord shall have the wardship of body and lands conditionally For if the Feoffor pay the money and enter into the land the wardship of both body and lands is divested Vide pro ibid. Dyer 155. Pl. 20 4 5. P. M. 75 A. by Indenture enrolled in Chancery in consideration of money Use upon an use bargains and sels to B. the Mannor of D. to have and to hold to B. and his heirs to the use of A. for life the remainder to the use of B. in taile Here because the first grant to B. is an use by the Statute of 27 H. 8. and one use cannot be engendred out of another the limitation of the two last uses was adjudged void Dyer 186. 1. 2 3 Eliz. 76 A man gives land to two habendum eis pro termino vitae eorum Cestuy que 〈◊〉 eorum alterius diutiùs viventis ad usum A. B. pro termino vitae suae without more and the two Lessées die In this case it seemed to the Court of Common Pleas that the estate was determined because the estate upon which the use was created and raised was gone c. But Quaere if such an estate had béen made before the Statute of 27 H. 8. of uses Dyer 205. 7. 3 4 Eliz. 77 A writ of extent was awarded in the time of Quéen Mary Extent returnable Quindena Martini and the Writ is executed in the life of the Qu but before the return she dies and yet it was returned and a liberate was thereupon
Parson in the same plight condition that he was in upon his first presentation notwithstanding the presentment of the other by the Defendant c. â—nferiour Courts 30 When a writ of right is directed to the Lord of a Mannor Co. l. 6. 11. a. Jentlemans case or his Bayliffs or a Iusticies or other Vicontiel Writs are directed to the Sheriffe c. that shall not change the nature or jurisdiction of those Courts as to make the Lord or Sheriffe to whom those Writs are directed to be Iudges of those Courts respectively which were not so before but the Sutors do still remaine Iudges thereof Neither yet shall the direction of those Writs to the Lord or Sheriffe as aforesaid albeit they are in themselves matter of Record constitute the Lord or Sheriffe to be Iudges of Record or a Court Baron Hundred Court or County Court to be Courts of Record For upon a Iudgment given in any of those Courts a writ of False judgement lies and not a writ of Errour c. No change by â—emise of the â—ing 31 When the King demises his Crown to the next Successor Co. lib. 7. 29. b. 4. Discontinuance of processe per mort de la Roygne upon the general resummons by the Kings writ which begins thus Mandamus vobis quod ad sectam nostram animumque ligeorum populi nostri c. the originall and issue if any be joyned is revived for that is a full record and ought to be entred it is otherwise of the processe before issue joyned voucher garnishment c. yet they shall be also revived upon a special writ reciting all the special procéeding And it appeares by the booke of Entries tit Reattachment 499. that if the Issue be joyned and the Iury returned and a day given for tryall before which day the King dies yet by special resummons all shall be revived for the Iury was returned of record and the record thereof was made full and perfect c. Co. lib. 11. 64. a. 2. Doctor Fosters case 32 It is ordained by the Statute of 1 Eliz. cap. 2. Statutes for going to Church That every person shall resort to their Parish Church or upon let thereof to some other every Sunday and Holiday c. And by the Statute of 23 Eliz. cap. 1. That every person not repairing to Church according to 1 Eliz. 2. being thereof lawfully convict shall forfeit twenty pound for every moneth they so make default and that of the forfeitures aforesaid the Queen c. shall have the two third parts viz. the one to her owne use the other for reliefe of the poore c. and the other third part the prosecutor shall and may recover by action of debt c. And by the Statute of the 29 Eliz. cap. 6. it is enacted That every such offender once convicted shall afterwards in Easter and Michaelmas Termes pay unto the Exchequer twenty pound for every moneths absence from Church c. and if default be thereof made c. the Queens Majestie c. shall and may by processe out of the Exchequer seize all the offenders goods and two parts of his lands c. And lastly by the Statute of 35 Eliz. cap. 1. It is ordained c. that for the more speedy recovering c. of the forfeitures c. payable to the Queen c. by vertue of this Act and of 23 Eliz. 1. all and every such forfeitures c. shall be recovered c. by action of debt c. in the Kings Bench the Common Pleas or Exchequer as other debts may be recovered c. Here albeit the Statutes of the 29 and 35. séems to alter the law of the 23. in respect of part of the penalty given to the prosecutor by the 23. and being all of it mentioned as given to the Quéen in the other two subsequent Acts Yet the Act of the 23. remains in full force according to the tenour of the same notwithstanding the said subsequent Acts because those two Acts do not give the penalty to any new person but to the same person to whom the Statute of the 23. giveth it viz. to the Quéen c. and they are but acts of addition especially that of the 35. to give a more speedy remedy than was given by that of the 23. c. As in a Writ of Mesne the processe at the Common Law was Distresse infinite and although the Statute of Westm 2. cap. 9. gives a more speedy processe and in the end a Forejudger yet the Plaintiff may take which processe he will either at the Common Law or upon the said Statute because both are in the affirmative Vide ibid. many authorities accordant c. Co. ibid. 4. 33 In many cases the designation of one person in a late Act of Parliament Grant of Ward shall not exclude another person which was authorized to do the same thing by an Act precedent It is provided by the Statute of the 8 H. 6. cap. 16. that after office found c. he which found himselfe grieved might within the moneth after traverse and to take the lands and tenements to farm and that then the Chancellour Treasurer and other Officer shall demise unto him to farme untill c. Vide 13 E. 4. 8. And now by the Statute of the 1 H. 8. cap. 16. he hath liberty by the space of three moneths And after the Statute of the 32 H. 8. cap. 40. gives authority to the Master of the Wards with the advice of one of the Council to make a lease of the Wards lands or of an Idiots during the time that they shall remain in the Kings hands Here albeit the last designes another person yet doth it not utterly take away the first For if before any lease made by the Master of the Wards the Chancellour and Treasurer make one according to the Statute of 8 H. 6. then cannot the said Master demise the lands So also if the Master grant them first to another the Chancellour Treasurer c. cannot demise them to the party grieved as Stanford holds Praer fol. 69. a. b. where he mentioneth the rule Leges posteriores prioâ—es contrarias abrogant In 43 Ass Pl. 9. the Statute of 13 E. 3. de Mercatoribus which gives assise to the Tenant by Statute Merchant taketh not away the Assize which the Tenant of the Franktenement had before but both may well stand together So in 33 H. 8. Dyer 50. if it should be enacted that the youngest son should have an appeale of the death of his father that would not exclude the eldest son of his fuit because there are no words of restraint c. â—ncient Deâ—esne 34 In a writ of right Close if the writ of the Demandant abate F.N.B. 19. d. and thereupon he brings a writ of false judgement in the Common Pleas and there the judgement being reâ—ersed the writ is awarded good then shall the Demandant hold
plea there and a judiciall writ shall issue out of that Court in nature of the protestation made in the first writ and if the protestation were in the nature of an assise of Mortdancester the Iustices shall direct a writ to the Sheriff to summon the Iurors to come out of the ancient Demesne to the Common Pl. and the whole matter shall be tryed and determined in that Court And albeit judgement be given of that land in the Common Pleas yet shall the land still remain ancient Demesne as it was before â—resentation â—y lapse 35 If a man present to an Advowson and after the Incumbent dies F.N.B. 31. â— and the Ordinary presents by lapse another Incumbent and after that Incumbent also dies now may the right Patron present again and if he be disturbed he shall have an assise De Darrein presentment notwithstanding those meane presentments Disturbance 〈◊〉 present 36 If a disturber presents to an Advowson F. N B. 32. â— and the Patron brings an assise of Darrein presentment and hanging the Writ the Incumbent dies if the disturber present again another Incumbent and dies yet the Patron shall have an assise of Darrein presentment upon the first disturbance by Journeys accompts against the heire of the disturber And so if the disturber present two or thrée times within the six moneths the true Patron shall have an assise de Darrein presentment upon the first disturbance Presentation â—y Coparceâ—ers 37 If two Coparceners make partition to present by turne F.N.B. 34. i. albeit the one Coparcener usurp upon the other and presents in her turne this presentment shall not put her out of possession but she shall have her turne when it falls again and shall have a Quare Impedit or Scire facias upon the Composition if it be upon record if she be disturbed to present Presentation â—y an Abbot 38 If in the time of the vacation of an Abbey or Priory F.N.B. 34. m. a Church happens to be void which is of the patronage of the Abbey or Priory and a stranger usurps and presents unto it this usurpation shall not prejudice the Successor but that at the next avoydance of the said Church he may present and have a Quare Impedit It is otherwise when the usurpation is made in the time of his Predecessour for that puts the succession out of possession if the six moneths be past â—ction of Deâ—eipt 39 If a man loose land by default in a Praecipe quod reddat and die F.N.B. 98. q. his heire shall have an action of Deceit as well as the father and shall have restitution The like 40 If a man have execution by default upon a recognizance in a Scire facias sued against one and the Defendant dies F.N.B. 98. r. his Executors shall have a Writ of Deceit and shall be restored 〈◊〉 warrantia â—artae 41 If a man hath a Warrantia cartae hanging F.N.B. 135. l. albeit the Plaintiff that hath the Action against him who brings the Writ De warrantia cartae be non-suited in his action that shall not abate the Writ De warrantia cartae For he may have that Writ although he had no action sued against him for the land c. â—ecogniâ—ance â—udita quaeâ—a 42 Rosse was bound in a Recognizance of 1000 Marks to Pope Pl. Co. 72. Rosse Popes case and Curson according to the Statute of the 23 H. 8. cap. 6. and after Rosse and his wife by fine give to the Conisées the fifth part of the Mannor of Burton Constable and other lands in the County of Yorke in fée And after Pope as Survivor sues execution of the said Recognizance in London against Rosse and his body was taken and the said Rosse supposing the said fine of those lands in the County of Yorke would have discharged him of the recognizance brought his Aâ—dita quaeâ—ela containing the whole matter upon which Writ and Declaration Pope demurred in Law And in this case it was adjudged that the Audita quaerela would not lie nor that the purchase by the Conusées of parcell of the land that Rosse had at the time of the recognizance acknowledged could discharge the recognizance because the person was properly charged with it and not the land but in respect of the person c. Finch 15. 43 The custome of Gavelkind is not changed Gavelkind Ancient Demesne though a fine and recovery be had of the same at the Common Law for this is a custome by reason of the land 6 E. 6. Dyer 72. Finch 16. and therefore runneth always with the land But otherwise it is of land in ancient Demesne partable amongst the Males for there the custome runneth not with the land simply but by reason of the ancient Demesne And therefore because the nature of the land is changed by the fine and recovery from ancient Demesne to land at the Common Law the custome of parting it amongst the Males is also gone F.N.B. 21. b. Finch ibid. 44 If an erroneous recovery he had of lands in Burrough English the youngest son shall have a Writ of Errour Burrough â—â—glish because the land it self goeth to him so shall all the sons of lands in Gavelkind 42 E. 3. 3. Finch ibid. 45 Two Coparceners make partition Parceners and one covenants with the other to acquit the land Now if the Covenantée aliens his part the Alienée shall have a writ of covenant Co. Inst pars 1 171. a. 2. 46 If the annual value of the land be equal at the time of the partition and after become unequal by any matter subsequent Partition as by surrendring ill husbandry or the like yet the partition remains good Judicis officium est ut res ita tempora rerum Quaerere quaesito tempore tutus eris Co. inst pars 1. 23. a. 11. 47 Whosoever is seised of land Feoffmentâ— his own 〈◊〉 the old 〈◊〉 maines hath not onely the estate of land in him but the right to take the profits which is in nature of the use and therefore when he makes a feoffment in fée without valuable consideration to divers particular uses so much of the use as he disposeth not is in him as his ancient use in point of Reverter As if a man be seised of two acres the one holden by Knight service in priority and the other by the same service in posteriority and maketh a feoffment in fée of both acres to the use of himselfe and his heirs the old use continued in him and the priority and posteriority remain So it is of lands of the part of the Mother for if one make a feoffment in fée of them to the use of himselfe and his heirs the use shall still goe to the heire of the part of the Mother which could not be if it were not the old use but a thing newly created The like law
Retraxit cannot be acknowledged by an Attorney Co. lib. 9. 75. b. 4. Combes case 10 There is a diversity betwixt a general and absolute power and authority as owner of the land Surrender by Attorney and a particular power and authority by him which hath but a particular interest as a Copiholder being owner of the land according to the custome may surrender his Copihold land by Attorney but if A. be Tenant for life the remainder in taile c. And A. hath power to make leases for 21 yeares rendring the ancient rent c. he cannot make a lease by letter of Attorney by force of his power because he hath but a particular power which is annexed to his person And so it was resolved in the Lady Greshams case at the Assises in Suffolk 24 Eliz. by Wray and Anderson Chiefe Iustices and Iustices of Assise there Co. lib. 9. 76. a. 1. Combes case 11 Some things are so inseparably annexed to the person of a man Villein that he cannot do them by another as the making of Homage and Fealty So it is holden in the 33 E. 3. tit Trespass 253. that the Lord may beate his Villein for cause or without cause and the Villein shall have no remedy but if the Lord command another to beate his Villein the Villein shall have an action of Battery against him that so beats him Co. Ibid. 12 If the Lord distrain the Cattle of his Tenant Wrongful â—â—â—stresse when nothing is behind the Tenant for the respect and reverence which belongs to the Lord shall not have an Action of Trespass vi armis against the Lord but if the Lord in that case command his Bailiff or Servant to distrain him when nothing is arrear the Tenant shall have an Action of Trespasse vi armis against the Bailiffe or Servant c. 2 H. 4. 4. 11 H. 4. 78. 1 H. 6. 6. 9 H. 7. 14. Fitz. N.B. 25. c. 13 It séems that before the Statutes No Attorney allowed by the common Law which grant that a man may make an Attorney c. the Iustices would not suffer either Plaintiffe or Defendant Demandant or Tenant to make attorney in any suit or in any Court c. because the words of the Writ command the Defendant to appear which ought alwayes to be understood in proper person and at this day also a mans reall suit at a Leet or Sheriffs turne cannot be done by Attorny but ought always to be in proper person c. Howbeit before those Statutes the King by his Prerogative might have granted to a man to make an Attorney in every action or suit as well to the Tenant or Defendant as to the Demandant or Plaintiff and might have directed his writs or letters to the Iustices for that purpose c. F.N.B. 25. d. 14 If the Tenant for terme of life be impleaded in a praecipe quod reddat No receipt by attorney he in reversion may pray to be received to defend his right in default of the Tenant or upon his faint pleading but in this case he cannot pray by his Attorney to be received without a Writ out of the Chancery directed to the Iustices for that purpose upon some cause alleadged in the said Writ c. 22 E. 4. 34. Finch 16. 15 A man cannot excuse himselfe of a contempt as of not serving the Kings processe Answer of a contempt peâ—sonal of rescuing a Prisoner from the Sheriffe or other Officer or the like by Attorney but he ought to appeare thereupon in proper person c. Co. l. 9. 96. b. 4. Sir George Reynels case 16 The office of Marshal of the Marshalsie cannot be granted for years because it is an office of great trust annexed to the person The office oâ— the Marshâ—â— personal concerns the administration of Iustice and the life of the Law which is to kéep such as are in execution in salva arcta custodia to the end they may the sooner pay their debts And this trust is individual and personal and therefore cannot be transferred to Executors or Administrators For the Law will not confide in persons unknown for the ordering of Matters which concern the administration of Iustice c. 45. 6. â—ersonal serâ—â—ce not apâ—ortioned or â—ultiplyed 17 If a man hold land by the personal service of being Sewer Co. l. 8. 105. b. 4. in John Talbots case Carver Butler c. to his Lord or when the Tenant is bound by his tenure Ad convivandum Dominum suum familiam suam semel in anno or ad aequitandum cum Domino suo in Com. N. sumptibus suis propriis vide 10 E. 3. 23. in John de Bromptons case by alienation of parcel of the land the service shall not be apportioned or multiplyed because such services are personal and are to be personally performed by one man only Howbeit purchase of parcel by the Lord shall extinguish them â—ilizers office â—ersonal 18 The office of Filizer cannot be extended upon a Statute Dyer 7. b. 28 H. 8. 10. or Elegit albeit it is a Franktenement for which an Assise lyeth because it is an office of trust and personal â—everal torts â—everal actions 19 An action upon the Case was brought by two Dyer 19. 112. 28 H. 8. for that the Defendant called them two false Knaves and Thieves Here the action was not well brought joyntly for that the wrong done to the one was not the wrong done to the other and therefore they ought to have severed in actions as in case of false imprisonment A thing in action cannot â—e transferred 20 The reason why a thing in action cannot be transfered or granted over to another is because it is so annexed to the person Dyer 26. a 16â— 28 H. 8. 282. 28. 11 Eliz. 300. 36. 13 Eliz. that it cannot be severed from him nor by any meanes prosecuted but in his name as an Obligation Statute Recognizance or the like So if a man hath an Advowson and when it is void the Patron grants proximam nominationem Presentationem Institutionem cùm primò proximè vacuerint In this case the Grantée shall not have that Presentation because it is a thing in action which the Patron could not transfer but the next to it he shall have which was the first that could be granted 45 They cannot be granted or transferred over as matters of pleasure ease trust and authority To hunt way â—o dyet c. 1 A licence to hunt in my Parke to go to Church over my ground 12 H. 7. 25. 7 H. 4. 36. to come into my house to eat and drinke with me cannot be granted over So of a way granted for life over my ground Finch 17. Personal offices of trust 2 The Patentée for life of an office of trust 11 E. 4. 1. as to be a Chamberlain of the
temporary and a disability absolute and perpetual As if a man be attainted of Treason or Felony this is absolute and perpetual disability by corruption of Blood and shall barre any of his posterity to claime any hereditament in Fée-simple as heire unto him or to any other Ancestor paramount him But when a man is onely disabled by Parliament without any attainder to claime any dignity for his life this is a personal disability for his life onely and his heire after his death may claim as heire to him or to any of his Ancestors above him c. And upon this diversity Thomas Lord De la ware Anno 39 Eliz. was restored to the place in Parliament originally belonging to his Family Wast by Baron 11 Where a lease is made to the Baron and Feme for terme of life or yeares the Feme shall not be punished for Waste F.N.B. 59. â— committed by the Baron after the Barons death M. 3. E. â— Battery 12 When a corporal hurt or damage is done to a man 12 H. 8. 12. as to beat him c. if he or the party beaten die the action is gone Finch 17. Covenant by Lessor 13 The Lessor covenants to pay quit-rents during the terme 1 2 P.M. 114. Finch 17. and dieth his Executors shall not pay them for it is a personal covenant which dieth with the person Debt against Executors 14 In debt against Executors who plead fully administred Dyer 32. 2 28 29 H. 8. and they gave in evidence to the Inquest that they had paid divers debts upon contracts made by the Testator whereas this suit was upon an obligation whereupon the Plaintiff demurres And it séemed to the Iustices that there was no cause to delay it because they were not compellable to pay such debts for that they die with the person and the Plaintiff had judgement de bonis testatoris Quit-rents 15 The Lessor covenants with the Lessée to pay and beare all quit-rents c. not naming his Executors or Assignes If the Lessor die Dyer 114. a. 60 1 2 P. M. his Executors are not bound according to the opinion of divers Iustices Tamen quaere Covenant implyed and expresse 16 If there be Tenant for life remainder in fée Dyer 257. 13. 9 Eliz. and Tenant for life demise for 15 yeares and die he in remainder enters and the termor brings covenant against the Executors of the Lessor upon the Demise onely which is but an implyed covenant and it was adjudged it would not lie albeit the lease were by Indenture unlesse it had béen broken in the life of the Testator it is otherwise also of an expresse covenant But an implyed covenant is personal and dies with him Vide Stat. 32 H. 8. 34. Note that if the heire out the termor of the father covenant lies against him upon the demise for the privity Vide Max. 55. Licence to retaile wines 17 Quéen Mary grants to one licence to sell Wines by retaile with a non obstante the Statute of 7 E. 6. 5. and doth not limit how long Dyer 270. 22. 10 Eliz. but there is a commandment in the Patent to the Officers to permit him to do it during his life And it was held by Dyer and Sanders that it was durante bene-placito onely and that the pleasure determined by the death of the Quéen the commandment ceased also by her death Warden of the Fleet. 18 Whitacres brings an action of Debt against the Executors of the Warden of the Fleet upon an escape in the life of the Testator Dyer 322. 25. 15 Eliz. and it was adjudged it would not lie because the offence was but trespasse which died with the person And by the Common Law debt did not lie against the Warden but an action upon the Case until the Statute of 1 R. 2. 12. which gives debt against the Warden but speaks neither of Heire or Executor It is otherwise where the recovery is in the life of the Warden 48 Things do enure diversly according to the diversity of the time Purchase by Inhabitants 1 The Parishioners or Inhabitants or probi homines de Dale Co. Inst pars 1. 3. a. 2. or the Church-wardens are not capable to purchase lands but goods they are unlesse it were in ancient time when grants were allowed to passe by such names Grant to commoners 2 An ancient grant by the Lords to the Commoners in such a waste Co. ibid. that a way leading to their Common should not be straitned was good but otherwise it is of such a grant at this day And so in ancient time a grant made to a Lord hominibus suis tà m liberis quà m nativis or the like was good but they are not of capacity to purchase by such a name at this day c. Co. l. 9 28. a. 3. in the case of the Abbot of strata Marcella 3 When an ancient grant is general obscure or ambiguous A charter interpreted as the Law was when it was made it shall not be now interpreted as a Charter made at this day but it shall be construed as the Law was taken at the time when such ancient Charter was made and according to the ancient allowance upon record Vide ibid. many authorities in the point Vide suprà 25. 22. Co. Inst pars 1. 21. b. 3. 4 If the Donor give lands in liberum maritagium reserving a rent Frankmarriage the fifth degree this reservation shall take no effect till the fourth degrée be past but after that time the rent shall be paid according to the reservation Littl. Sect. 19. Finch 18. Co. ib. 147. b. 1. 5 If a man grant a rent out of Black-acre to one and to his heires Rent-charge and seck and grant to him that he may distrain for this in the same acre for term of his life this is a rent charge for his life and a rent seck afterwards Diversis temporibus Co. l. 7. 24. b. 3. Buts case Co. ib. 171. a. 3. 6 Judicis officium est ut res ita tempora rerum Quaerere quaesito tempore tutus eris Co. ib. 178. a. 4. 7 A gift in Frankmarriage was before the Statute of Westm 2. Frankmarriage out of use a Fée-simple and since that Statute a Fée-taile So as it is true that the gifts do continue as Littleton saith Sect. 271. but not the estates for the estate is changed as appeares in the same Author Cap. Fee-taile And albeit Littleton saith Sect. 271. that such gifts have béen alwayes since used and continued yet now they are almost grown out of use and serve now principally for Moot-cases and questions in law that thereupon were wont to rise Co. l. 5. 119. b. 1. in Whelpdales case 8 When an obligation was once a deed Non est factâ—â— when a deed was and is no deed and after before
action brought becomes no deed either by rasure addition or other alteration or by breaking the seale c. In this case although it were once a déed yet the Defendant may safely plead Non est factum for without question at the time of the plea which is in the present tense it was not his déed 36 H. 8. Dyer 59. in an action of Debt upon an obligation against Hawood the Defendant pleads non est factum and before the day of apparance of the Inquest the Mice had eaten the Label unto which the seale was fixed by the negligence of the Clerke in whose custody it was Here the Iustices charged the Iurors that if they found the déed to be déed of the Defendant at the time of the plea pleaded they should then give a special verdict which they did accordingly Co. l. 6 15. a. 1. Trepors case 9 If A. Tenant for life and B. in remainder in fée Lease and confirmation joyne in a lease to C. Immediately after the delivery of the déed it is the lease of A. during his life and the confirmation of B. and after the death of A. it is the lease of B. and the confirmation of A. according to the opinion of Dyer and Brown Mich. 6 7 Eliz. fol. 234 235. Co. l. 6. 22. Ambrosia Gorges case 10 If a man marry an Inheritrix of lands holden of the King in Capite and hath issue by her a Daughter and afterwards the Feme die A daughter iâ— ward during the life of her father the Daughter shall not be in Ward because she is yet heire apparant to her Father But if the Father take another Wife and hath issue a Son then shall the Daughter be in ward to the King because the Son is now his heire apparent and not the Daughter And no heire apparent shall be in ward during the life of the Father Co. l. 7. 18. a. Calvins case 11 The time of the birth of a man or woman is chiefly to be considered to make them a Subject borne or not Ante-nati Post-nati and is as it were of the essence of a Subject born For a man cannot be a Subject to the King of England unlesse at the time of his birth he was under the ligeance and obedience of the King of England albeit the Kingdome of the King under whose ligeance he was borne do afterwards descend to the King of England And this is the reason that Ante-nati in Scotland for that at the time of their birth they were under the ligeance and obedience of another King are aliens borne in respect of the time of their birth c. â—â—ttle in â—und tender 〈◊〉 late 12 Tender of the rent upon the land before the Distresse Co. l. 8. 147. 2. 4. The 6 Carpenters case makes the Distresse tortious tender after the Distresse and before the imparkment makes the detainer but not the taking tortious tender after the imparkment makes neither the one nor the other tortious for then it comes too late in regard the cause is then put to the tryall of the Law to be there determined 13 Distinguenda sunt tempora concordabis leges Co. l. 9. 16. b. Anna Bedingfeilds case â—state to the â—st issue in â—ile 14 Thomas Bowles in consideration of marriage with Anne Hide Co. lib. 11. 80. a. 4. Lewes Bowles case covenants to stand seised of the Mannor of D. to the use of himselfe and Anne for their lives and after to their first issue male and the heires male of his body and after to the heirs male of the bodies of Thomas and Anne c. In this case before issue had Thomas and Anne were seised of an estate taile executed sub modo viz. untill issue and then by operation of Law the estates were divided viz. Thomas and Anne became Tenants for life the remainder in taile to the issue the remainder to the heirs male of Thomas and Anne c. â—landerous â—ords 15 A man brings an action upon the Case for these slanderous words Thou art an arrant Knave a Cosener a Traitor Co. l. 10. 131. a. 1. Ja. Osborns case being all spoken together at one and the same time and upon not guilty pleaded the Iurors finde for the Plaintiff and assesse damages generally for all the words herein they did well for all those words taken together make but one scandal and albeit no action lieth for these words Thou art an arrant Knave a Cosener spoken apart by themselves yet being spoken at one and the same time and coupled with the other words and a Traitor which are indéed actionable they aggravate them and make them worse Howbeit if at one time the Defendant calls the Plaintiff Traitor and at another time he calls him arrant Knave and Cosener and the Plaintiff brings an action upon the Case and alleadgeth the said several words spoken at several times as several causes of action theâ—e if upon not guilty pleaded the Iurors assesse damages intirely judgement shall be arrested for all for he grounds his action upon two several scandals whereas one of them is not actionable c. 〈◊〉 perquisite â—y the purâ—hase of a â—illein 16 If a man hath a Villein in right of his wife Co. Inst pars 124. b. 1. and the Villein purchase land he shall have that perquisite in her right but if the Villeine purchase it after issue had then the Baron shall have the perquisite to him and his heires because by the issue he is entitled to be Tenant by the Courtesie in his own right 49 Quod prius est tempore potius est jure Vide Max. 62. Pl. 10. 19. â—emitter 1 One of the reasons of a Remitter is Co. Inst pars 1 347. b. 3. because that title which is first and more ancient is alwayes more sure and worthy And therefore many books in stead of Remitter say that he is En son primer estate or en son melior droit or en son melior estate c. or the like For Quod prius est verius est quod prius est tempore potius est jure c. Confirmation â—st best 2 The Lessée for life made a lease for thirty years Co. ib. 296. a. 3. and after the Lessor and Lessée for life made a lease for 60 years to another which lease for sixty yeares the Lessor did first confirme and after the Lessor confirmed the lease for thirty years and after the Tenant for life died within the thirty yeares In this case the lease for thirty yeares was determined by the death of the Tenant for life and the Lessée for sixty yeares might enter for that albeit the lease for sixty yeares was the later in time yet was it of greater force in Law because the Lessor who had power to confirm which of them he would did first confirm the second lease Inter Unwel and Lodge
temps Eliz. Co. l. 4. 89. b. 4. Druries case 3 If a Countesse retain two Chaplains The first Diâ—pensations Wast void those two are onely capable of dispensation according to the Statute of 21 H. 8. cap. 13. And therefore if the Countesse retains a third that cannot devest the capacity of dispensation which was vested in the two first For albeit the Countesse may entertain as many Chaplains as she will at the Common Law yet can she not have more then two capable of Dispensations by force of the Statute and reason requires that he which hath longest served shall be first preferred For qui prior est tempore potior est jure F.N.B. 142. f. 4 If a man purchase divers lands by one feoffment Priority of wardship which are holden severally of divers Lords by Knight-service and after he dies his heire within age that Lord which shall first hap the Ward shall have him because there is no priority But if he purchase land which is holden by Knight-service of one Lord and after purchase other land holden of another Lord by the like service and after die his heire within age In this case that Lord shall have the Ward of the heire of whom the land which be first purchased is holden for that he held of him by a more ancient feoffment viz. by priority then he held of the other Lord of whom he held by posteriory c. Co. l. 4. 66. b. 3. Fulwoods case 5 If a man be bound in two Statutes A former â—â—â—tute first foâ—â— and the last Statute is first extended and put in execution Yet the first Conusée upon extent shall be first served and the last Conusée shall stay till the first be satisfied Dyer 32. 2. 28 29 H. 8. 6 In debt against Executors who plead fully administred Debt agaâ—â—â—â— Executors and it was given in evidence by the Defendants that they had paid divers debts upon contracts made by their Testator and shewed not that they were paid before the Plaintiffs writ purchased whereupon the Plaintiff demurres and that was the chiefe reason why Iudgement was given for the Plaintiff Dyer 133. a. 1. 3 4 P.M. 7 A man being Patron of a Benefice in right of his wife grants proximam advocationem to another Grant of the next avoydance after which grant the Incumbent makes a lease of the Benefice for 60 yeares reserving rent to him and his Successors under the value in the Kings books afterwards the Patron Grantor and his wife together with the Ordinary confirme the Lease and then the Incumbent is deprived for marriage and the Grantée presents his Clerk who enters upon the Lessée to avoid the lease In this case it séems his entry is congeable because the Grant preceded the lease Dyer 232. 5. 7 Eliz. 8 If debt be brought against the Ordinary for the debt of the intestate after notice he cannot dispose of any of the goods to others Ordinary before he hath satisfied that debt for which the action was brought against him Dyer 276. 52. 10 Eliz. 9 A Scire facias was brought by Basset against the Corporation of Torrington in Com. Devon to repeal their Patent of Faires and Markets But it was held Scire faciaâ— that a Puisne Patentée shall not have a Scire facias to repeal a more ancient Patent but è contrà 10 Vide Hob. 7. Spendlowes and Burket concerning the grant of an avoydance and a lease of a Prebendary in Lincoln 50 According to the diversity of the same person Co. Inst pars 1. 8. a. 1. in Calvins case Co. ib. 129. a. 3. 1 A man seised of lands in fée hath issue an Alien Alien not 〈◊〉 heritable viz. born out of the Kings ligeance that issue cannot be his heire propter defectum subjectionis albeit he be born within lawful marriage neither yet shall he inherit to his Father or any other although he be made Denizen by the Kings letters Patents Neverthelesse if the same man be naturalized by act of Parliament he shall not then be accounted in Law alienigena but indigena and shall be capable of inheriting c. â—uption of â—d for a 〈◊〉 2 The same man may have some children capable of inheriting his land after him and others incapable Co. ib. 8. a. 2. according to the several conditions in which he stood at the several times when he had those children Co. ib. 129. a. 3 As if an Alien be made Denizen the issue which he hath after the denization shall be his heire and not the issue which he had before So also if a man hath issue a sonne before his attainder and obtaineth his pardon and after the pardon hath issue another sonne here at the time of the attainder the bloud of the eldest was corrupted and therefore he cannot be heire but if he die living his father the younger sonne shall be heire for he was not in esse at the time of the Attainder and the pardon restored the bloud as to all issues begotten afterwards c. â—lain free 〈◊〉 a time 3 If Villenage be pleaded by the Lord in an action reall mixt Co. ib. 127. b. 4 or personal and it is found that he is no Villein the bringing of a Writ of Errour is no enfranchisement because thereby he is to defeat the former judgement and if in the mean time the Villain bring an action against the Lord the Lord néed make no protestation so long as the record remains in force for at that time he is frée c. â—â—â—is utrum â—â—rranty 4 If a Juris Utrum be brought by a Parson of a Church Co. ib. 370. a. 4 the collateral waranty of his Ancestor is no barre for that he demanded the land in the right of his Church in his politique capacity and the warranty descendeth on him in his natural capacity c. â—â—rranty â—fession 5 If a collateral Ancestor release with warranty Co. ib. 392. b. 3 and enter into religion now doth the warranty binde but if afterwards he be deraigned then is the warranty defeated â—nt extinâ—shed 6 One that hath a rent charge going out of the wives land 14 H. 8. 6. Finch 18. releaseth it to the husband and his heires Yet in this case the husband shall not have the rent but the release shall enure unto him by way of extinguishment onely as seised in right of his wife â—â—ant and â—firmation 7 The Parson of Weston in Com. Glocest An. 9 El. demised his Rectory to W. Hodges then Patron of the same Rectory for 50 years Co. l. 5. 15. a. 3 Mewcomes case Trin. 30 Eliz. in the Exchequer who Anno 14 Eliz. by his déed assigned it over to Sir John Throgmorton the Bishop confirms the lease Anno 17 Eliz. in the life of the Lessor And in this case it was resolved that the assignment of
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
party heir or assignée but in privity of estate yet any that is in of another estate be it by disseisin abatement intrusion usurpation or otherwise shall rebutt by force of the warranty as a thing annexed to the land which sometimes was doubted among the Sages of our Law Release of a writ of Errour 84 If a man be out-lawed in a personal action Co. Inst pars 1. 289. a. 2. c. and brings his writ of Error if he at whose suit he was out-lawed will plead against him a release of all actions personal this séems to be no plea because by the said action he shall recover nothing in the personalty but onely to reverse the Outlawry Howbeit in that case a release of the writ of Errour is a good plea For albeit the Plaintiff in the writ of Errour is to recover or be restored to nothing against the party Yet inasmuch as the Plaintiff in the former action is privy to the record a release of a writ of Errour to him is sufficient to barre the Plaintiff in the writ of Errour of the suit and vexation by the said writ of Errour Co. ib. 48. a. 4. 49. b. 3. Co. ib. 54. a. 1. 85 If there be divers Feoffées Livery to 〈◊〉 Joyntenant good to boâ—â— and the Feoffor makes livery onely to one of them according to the deed In this case the land passeth to them all in respect of the privity of their estate c. So likewise if there be two Ioyntenants of a Ward and one of them do waste both shall answer for it for the same reason Co. ib. 54. a. 1. 86 A Tenant by the Courtesie or in Dower Wast against tenant in dower and by the Courteâ—â— can hold of none but of the heire and his heirs by descent and therefore if they grant over their whole estate and the Grantee doth waste yet the heir shall have an action of waste against them and recover the land against the Assignee but if the heir either before the assignment had granted or after the assignment doth grant the reversion over the stranger shall have an action of waste against the Assignee because then in both cases the privity is destroyed Co. ibid. a. 2. c. Vide infrà 94. Also if waste be done by a stranger they shall answer for it c. Co. l. 2. 66. b. 4. Tookers case 87 There are two Iointenants for life Attornment 〈◊〉 one Joyntenant good 〈◊〉 both the reversioner grants over his estate in fee one of the Iointenants onely doth attorn this is a good attornment of both to settle the reversion in the Grantee in respect of the privity and intirenesse of their estate Co. ib. 67. a. 2. c. So if the Lessor disseise his two Lessees for life and enfeoff another and one of the Lessees re-enter this act of one of them is an attornment in Law for both If one Iointenant give seisin of rent that shall binde his companion as it is agreed in 39 H. 6. 2. If a lease be made to two and after the reversion is granted to one of them and he accepts the deed this is holden good attornment in Law for both Baldwin 28 H. 8. Dyer 12. b. Co. l. 3. 2. a. 4. The Marq. of Winchesters case 88 Albeit by the general words of the act of attainder of all rights Right of actâ—on not forfeâ—ed by attaâ—â—er c. and hereditaments c. made against the Lord Norris in the 28 H. 8. all his lands c. in demesne reversion or remainder and also all his right to lands and tenements into which his entry was congeable were given to the King yet neither a writ of Errour nor right of action to recover land were given to him by the general words of the same act although such a right is truly a right and also an hereditament because such a right for which the party hath no remedy but by action onely to recover the land is a thing which consists onely in privity and which cannot escheat or be forfeit at the Common Law Of this sort are the right of Formedon in descender the right of action upon a disseisin and a descent cast and the like Co. l. 7. 13. a. 4. in Englefeilds case Co. ib. 4. a. 3 4. 89 Vpon judgement given against Tenant for life A reversioner shall bring Errour c. or against Tenant in tail since the Statute de donis conditionalibus he in the reversion or remainder may have a writ of Errour albeit he was not party to the suit by aid prayer voucher or receipt But he could not in that case bring that writ till after the particular estate determined Howbeit if he was party and privy to the first record by aid prayer voucher or receipt then might he have a writ of Errour presently during the life of the Tenant in tail or for life for that he was in that case party and privy to the first record c. Co. l. 3. 6. a. Cuppledikes case 90 Baron and Feme are seised of lands to the use of them Upon fine and vouching tenant in tail the remainder is barred and the heirs male of the body of the Baron the remainder in fee to another the Baron acknowledgeth the fine of the land in fee and a stranger recovers the land against the Conusee who voucheth the Baron onely and he voucheth over the common Vouchee and judgement and seisin are given accordingly the Feme being still in life This recovery shall bind the remainder for here was a lawful Tenant to the precipe and albeit the Baron who had the estate tail was onely vouched and not the Feme who had a joynt estate with him Yet the Baron coming in as Vouchee he comes in privity of the estate tail and not of any other estate and then the recovery in value gives recompence both to the estate tail which the Baron hath and also to the remainder over because although by the fine the estate tail as also the estate of the Feme and the remainder were all devested or discontinued yet the Baron as Vouchee shall be in judgment of Law in of his estate tail And the case is the stronger inasmuch as the estate of the Feme was put to a right So that the Baron comes in now as sole Tenant in tail and cannot be joyntly seised with the Feme because she was not Vouchée Neither yet can the Baron be in of any other estate for that he once had an estate tail and now comes in as Vouchée and therefore in that case in respect of the privity shall be said in as of the estate tail and not otherwise But if the wives inheritance had béen joynt with her husbands it might be doubted 108. 28. The like 91 If A. be Tenant in tail the remainder to B. in tail Co. ibid. the remainder to C. in tail
c. â—laim within â—â—e years by â—â—urdance â—c 112 Vpon a fine acknowledged of lande according to the Statute of 4 H. 7. cap. 24. Co. lib. 9. 106. a. Margaret Podgers case The Guardian by nurture or in soccage may enter in the name of the infant who hath right to enter into the same lands and this shall vest the estate in the infant without any commandment or assent because there is privity betwéen them So likewise he in the reversion expectant upon an estate for life or years or the Lord of a Tenant by copy c. may well enter within that Act in the name of the Tenant for life Lessée for years or Tenant by Copy and also in their own right as well to save their own Franktenement and Inheritance as also the said particular interests for the Lessor or the Lord are not Strangers because they are privies in estate And as the entries of those particular Tenants shall availe the Lessor and the Lord in those cases in respect of the privity of their estates So the entry of the Lessor or the Lord in the like cases in the names of the particular Tenants shall availe the same Tenants in regard of the privity of their estates and for the salvation of their several rights without any request precedent or assent subsequent for in these cases the Lessor and the Lord pursue the title and claime which they have to the inheritance by lawfull entry within the five years according to the saying contained in the said Act Howbeit he that is a méer stranger and hath no right shall not by his entry within the 5 years in the name of him that right hath avoid such a fine unlesse he have some request or commandment precedent or assent subsequent to authorize him to do it because the said Act hath appropriated the pursuit thereof by way of action or lawfull entry unto him that right hath either by interest or privity or else by request or Commandment precedent or assent subsequent c. Co. l. 10. 43. b. 4. Jennings case 113 At the Common Law recovery against Tenant for life with Voucher upon true warranty and recovery in value shall bind him in remainder as the books are in 19 E. 3. Recovery in value 20. 23. E. 3. Recovery against Tâ—â— for life ibid. 13. 44. Ass pl. 35. 5 E. 4. 2. And the reason hereof is because the particular estate and the estate in remainder in respect of the privity make but one estate and one warranty may extend to both and therefore the recompence in value shall also enure to both Co. l. 10. 48. a. 3. in Lampets case 114 Albeit the wisedome and policy of the Sages of our Law hath provided that no possibility right title Right and title may be released 〈◊〉 not transfered or thing in action shall be granted or assigned to strangers to avoid multiplicity of suits oppression of the people principally of the Terre-tenants and the subversion of the due and equal execution of Iustice Neverthelesse all rights titles and actions by the prudence and policy of the Law may be released to the Terre-tenant for the same reason of his repose and quiet and for the avoidance of suits and contentions and to the end every one should live in his calling with peace and plenty And therefore a right or title to the Frank-tenement or Inheritance be it in presenti or futuro may be released in five manners 1 To the Tenant of the Frank-tenement in Déed or in Law without any privity 2 To him in remainder 3 To him seised of the reversion without any privity but an estate cannot be enlarged without privity 4 To him that hath right onely in respect of privity As if the Tenant be disseised the Lord may release his Services in respect of the privity and right without any estate 5 In respect of privity onely without right As if Tenant in tail make Feofment in fée the Donée after the Feofment hath not any right and yet in respect of the privity onely the Donor may release unto him the rent and all services saving the fealty So also the Demandant in a precipe may release to to the Vouchée or to the Tenant after feofment c. Vide suprà 44. Co. l. 10. 92. a. 4. 93. a. b. Doct. Leyfields case 115 It is a Maxime in the Law that when he Release 〈◊〉 not plead 〈◊〉 where theâ—â— is privity without â—â—â—ing it that is party or privy in estate or interest or he that justifies in the right of him who is party or privy is forced to plead a Déed albeit he that is privy claimes but parcel of the original estate yet in that case he ought to shew the original Déed to the Court As if the King demiseth land to B. for life B. demiseth the same land to C. for years here if C. be impleaded he ought to produce in Court the Letters patents of the demise granted to B. because B. and C. are privies in estate Vide William Poles assise 3 H. 6. 20 21 22. which was in effect this A. by indenture enfeoffes B. of the Mannor of Dale rendring unto A. and his heirs 5 marks rent per annum with clause of distresse A. grants to C. for life xxvi s. viii d. per annum parcel of the same rent who being first seised and then disseised brings an Assise of the said parcel granted to him and because in the same Assise the Plaintife produced not the original indenture of the reservation of the whole rent made to his Grantor Iudgement was given against him albeit he claimed but parcel of the said rent and the reason thereof was in regard William Pole the plaintife was privy in the estate of the rent and claimed by the first grant And in the case above put the reason holds against the stranger in regard the Lessée might have bound the Lessor by Covenant to have shewed forth the Déed when occasion should have required In 35 H. 6. it was agréed that Guardian in Chivalry shall not plead a release made to his Tenant without shewing it forth So in 14 H. 8. 4. It was agréed by all that he who is privy in estate as Feoffée Lessée for years c. or that justifies as servant to him that is privy ought to shew the Déed to the Court which they plead c. And in Debt against the heir he shall not plead a release made to the Executors without shewing it for there is privity betwixt them and with this agrées the 13 E. 2. Monstrans des faits 4â— Howbeit on the other side where a man is a stranger to the Déed and claimeth not the thing comprised in the grant nor any thing out of it nor doth any thing in right of the Grantée as Bailife or Servant there he shall plead the Patent or Déed without shewing it If the Tenant plead the grant of the Lord with
Inst pars 1 83. b. 3. All Earldoms and Baronies were derived from the Crown and were holden of the King in Capite and the King would not then suffer them to be divided or severed And such intire Earldoms and Baronies are within that Statute to pay relief according to the limitation thereof Howbeit at this day Earls and Barons are without such Earldoms and Baronies of the Kings gift in chief For at the creation of an Earl he hath sometimes an Annuity granted unto him and sometimes nothing at all but rather giveth somewhat for his Honour So as such Earls and Barons so created are cléerely out of the Statute of Magna Carta and are to pay such reliefs as other men that hold of the King in Capite For as the heir of a Knight shall not pay 100 s. relief unlesse he hath a Knights fée c. so neither the Earl nor Baron shall pay any relief by that Statute unlesse he hath an Earldom or Barony intended by the same Statute c. â—xecutors to â—ll lands 14 By the Statute of 21 H. 8. cap. 4. it is provided Co. ib. 113. a. 3. that where lands are willed to be sold by Executors though part of them refuse yet the residue may sell And here albeit the letter of the Law extendeth onely where Executors have a power to sell yet being a beneficial law it is by construction extended also where lands are devised to Executors to be sold Co. ib. 143. a. 4 Littl. Sect. 216. 15 The Law so regardeth equity and equality Tenure of land that it will in divers cases work according to them without any provision or reservation of the party And therefore if before the Statute of Quia emptores terrarum a man had made a feoffment in fée rendring rent to him and his heirs this was Rent-service for which he might distrain of common right And if he had made no reservation at all of any rent or service Yet the Feoffée should then have holden of the Feoffor by such service as the Feoffor held over of his Lord next paramount For the Law in this case did create a tenure Littl. Sect. 222. Co. ib. 148. b. 3. 16 If a man seised of divers lands of some in Fée-simple Rent-servâ—â— apportionable and of the rest in tail make a gift in tail or a lease for life or years of all reserving a rent and die Here if the issue in tail avoyd the gift or lease as to the entailed lands the rent shall be apportioned for seeing the rent is reserved out of and for the whole land it is reason that when part thereof is evicted by an elder title that the Donée or Lessée should not be charged with the whole rent but that it should be apportioned ratably according to the value of the land Co. ib. 154. a. 1. 17 By the Statute of 7 R. 2. cap. 10. it is enacted Equity upâ—â— 7 R. 2. â—â— that an Assise of rents issuing forth of lands in divers Counties shall be taken in Confinio comitatus which séems to be meant onely of Counties that border one upon another Neverthelesse albeit the Counties do not joyn but have twenty Counties lying between them yet the assise in Confinio comitatus doth lye and the Iustices shall sit between the said Counties And where the Statute seems to speak of two Counties onely the like Law is when the rent issueth out of lands lying in more Counties than two Co. ibid. a. 3. 18 The Statute of Merton cap. 2. made 20 H. 3. Equity upâ—â— Merton 20 H. 3. which gives the writ of Redisseisin is as followeth Item si quis fuerit disseisitus de libero tenemento coram justiciariis Itinerantibus seisinam suam recuperaverit per Assinam novae disseisinae vel per recognitionem eorum qui fecerint disseisinam ipse disseisitus per Vicecomitem seisinam suam habuerit fi iidem disseisitores posteà post iter justiciariorum vel infrà de eodem tenemento iterum eundem conquerentem disseisiverint inde convicti fuerint statim capiantur c. Here albeit this Statute seems to intend onely lands and tenements Littl. Sect. 233. yet Littleton § 233. Rent-sec◠〈◊〉 charge expounds it to extend also to a Rent-charge or a Rent-seck For although they are against common right yet a man may have a Free-hold in them And therefore if a man grant omnia tenementa sua a Rent-charge or a Rent-seck will also passe thereby Also by the same Statute the Assise seems to be limited to be taken onely coram justiciariis Itinerantibus Howbeit Littleton there speaketh generally and so is the Statute to be intended viz. before any other Iustices that have authority to take Assises and Justices Itinerant are onely set down there for an example And albeit that Statute saith Recuperavit per Assisam c. by the verdict of the Assise as Littleton in the same Chapter expoundeth it or per recognitionem c. by confession yet if the recovery be upon a demurrer or by pleading of a record and failer of it or by any other manner such recoveries are also within the equity of the same Statute And therefore Littleton in the abovesaid Section speaketh generally Et recovera le seisin del rent intimating that it ought to be understood of all manner of recoveries in an Assise of Novel disseisin Westm 2. â— by equity though peâ— And in that manner is the abovesaid Statute confirmed by Westm 2. cap. 26. And here it is worthy observation that this Statute is expounded by equity notwithstanding it is a penal Law for by the said Statute of Westminst 2. double damages is given upon the recovery Co. ib. 174. a. 3. Co. l. 4. 121. b. 4 Bastards case 19 There is a diversity between a recovery in value by force of a warranty upon an exchange and upon a partition Exchange Partition Recovery for upon an exchange he that loseth shall recover a full recompence for all that he so loseth But upon a partition the patcener that loseth shall onely recover the moity or half of that which is lost to the end that the losse may be equal 48. Equity of 32 H. 8. 32. 20 The Tenant by the Courtesie shall have a writ of Partition upon the Statute of 32 H. 8. cap. 32. Co. ib. 175. a. 4. as well as Ioyntenant or Tenant in common for life or years For albeit he is neither Ioyntenant nor Tenant in common because a praecipe lyeth against the Parcener or Tenant by the Courtesie yet forasmuch as he is in equal mischief as another Tenant for life he shall be intended within the equity of that Statute Division of lands Hotchpot 21 If a man seised of lands in fee hath issue two daughters Littl. Sect. 267. and gives part of them to one of his daughters in Frankmarriage and dies In this case albeit
all shall be equally charged 29 E. 3. 39. there is the like case Co. l. 3. 13. a. 3. Sir Wiliam Herberts case Co. l. 3. 13. a. 4. in Sir William Herberts case But it is Sir John Lanfords case 29 E. 3. 50 37 Four men were bound in a Recognisance of debt to A. and after one of the Conusors dies leaving his heir within age A Recognisance by 〈◊〉 and one diâ— the Conusee brings a Scire facias against the thrée Survivours to have execution who plead that the heir of the Conusor who was dead was within age and in as much as during his minority he could not be charged and the Survivours ought not to be charged onely they demand Iudgement c. And because A. could not gainesay it the Court awarded that the Paroll should stay and this Iudgement was afterwards confirmed in the Kings Bench by a writ of Error Co. ibid. b. 3. 38 If Iudgement be given against two Disseisors in an Assise for the land and damages and one of the Disseisors die Judgement â—gainst two Disseisors 〈◊〉 one dies the execution shall not be awarded against the surviving Disseisor that was party to the wrong but the heir as well as the Disseisor shall be equally charged 19 E. 3. tit execution 81. Co. ibid. b. 4. 39 Albeit at the Common Law no land was subject to an execution for the debt of a Common person Land not chargeable with debt but onely by force of certaine Statutes made for that purpose yet the Iudges and Sages of the Law have alwayes expounded general Statutes of that nature according to the Rule of the Common Law which is alwayes grounded upon the perfection of reason and not according to any private and sudden conceit and opinion And therefore in as much as the said Statutes have subjected a mans land to an execution for his debt the Iudges and Sages of the Law have considered the rule and reason of the Common Law in case of the heir of an Obligor in which case the land was subject to an execution for debt by the Common Law and accordingly do adjudge and resolve the cases which arise upon the said Statutes Co. ib. 1â— a. 1. 40 If two men alien land with warranty Land equâ— charged the land of the one shall not be onely rendred in value neither yet if one of them die the land of the Survivour shall be onely rendred in value but the charge shall be laid equally upon them For a Ioynt bond that binds the land shall not survive or lie onely upon the Survivour as in case of a joynt warranty where two for them and their heirs warrant the land to another and his heirs the Survivour shall not be solely vouched neither yet may the Sheriffe deliver the land to the one or the other at his pleasure for in executions which concerne the realty and charge the land the Sheriffe cannot make execution of the land to one onely So also if two are bound to warranty and both die both the heire ought to be vouched and both of them ought to be equally charged â—equality of third part â—cending â—ands in â—ite requiâ— in a devise 34 H. 8. 41 Willam Barnerds and his wife being seised of the Mannor of Hinton in tail being the wives joynture and holden in Capite Co. l. 3. 32. a. 4. Butler and Bakers case And W. B. being also seised of lands in Fobing both which amounted to the full third part of all his lands And W. B. being likewise seised of the Mannor of Thoby holden also in Capite which amounted to two third parts c. W. B. devised to his wife the Mannor of Th. upon condition that she should waive her former joynture c. W. B. dies the wife in pais refuseth her former joynture In this case W. B. could not by the Statutes of Wills 32 34 H. 8. devise the whole Mannor of Thoby because the Mannor of H. and the lands in F. were not a third part of the cleer yearly value of all his lands as they ought to be according to the provision of the said Statutes for that the cléer title and present possession of the Mannor of H. was but in possibility and depended méerly upon the will and pleasure of the wife and she could not by a bare refusal in pais devest her title to the joynture But in that case W. B. had onely power by those Statutes to devise two third parts of the Mannor of H. and also two third parts of the rest of his lands to the end that the King might have an equal and proportionable third part apparelled with like accidents and circumstances that the other two thirds parts were according to the true intent and meaning of the same Statutes â—fine for â—ars within â—e Statute of 1 H. 7. 20. 42 If a Feme Tenant in taile accept a fine Sur conisance de droit come ceo c. and thereby doth grant and render the land for 1000 years Co. l. 3. 51. b. 2. in Sir George Browns case pretending that this is not within the words of the Statute of 11 H. 7. cap. 20. which prohibits discontinuance alienation release c. Yet that is alienation within the intention of the same act because within the same mischiefe c. â—ses within â—e Stat. of H. 8. 10. â—ough not â—thin the letâ— of that â—at 43 If a man make a feofment to the use of himselfe for his life Co. l. 4. 2. a. 2. Vernons case and after to the use of his wife for her life for the joynture of the wife this estate in remainder is within the intent of the Statute of 27 H. 8. cap. 10. For albeit that Statute doth onely expresse these five forms viz. 1 To the Baron and Feme and to the heirs of the Baron 2 To the Baron and Feme and to the heirs of their two bodies 3 To the Baron and Feme and to the heirs of the bodie of one of them 4 To the Baron and Feme for their lives 5 To the Baron and Feme for the life of the Feme yet many other estates not there particularly exprest are within that act for the said particular forms are but put there for examples and not to exclude any other estate which is to the like effect and accords with the intent of the makers of the same Act So likewise an estate in Fée simple conveyed to the Feme for her joynture Co. ibid. 3. b. 1. per Dyer in Villiers and Beuamonts case 4 5. P. M. 146. and in satisfaction of her Dower is a joynture within the equity of the said Act for that is a competent livelyhood to the Feme of an estate of Frank-tenement to take effect presently after the death of the Baron for all the life of the Feme and more And so it is resolved in Sir Morrice Dennis case 8.
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
hath his Clergy the accessory cannot be arraigned For the Maxime of Law is Ubi factum nullum ibi forcia nulla ubi non est principalis non potest esse accessarius Then before there appears to be a principal one cannot be charged as accessory but none can be said to be principal before he be so proved and adjudged by Law and that ought to be by judgement upon verdict or confession or by outlawry for it sufficeth not that in truth there is a principal unlesse it appeare so by judgement of Law And this is the reason that when the principal is pardoned or takes his Clergy before judgement that then the accessory shall never be arraigned because it appeares not by judgement of Law that he was principal and the acceptance of the pardon or prayer of the Clergy may be an argument but can be no judgement in Law that he is guilty Howbeit if the principal after attainder be pardoned or hath his Clergy allowed there the accessory shall be arraigned because it then appears judicially that there was then a Principal 28 29. 34 35. Land tree severed 20 When a man makes a lease for life or years Co. l. 4. 64. b. 2. in Herlakendens case the Lessée hath but a special interest or property in the trées being great timber as accessories annexed to the land so long as they are annexed unto it But if the Lessée or any other sever them from the land the property and interest of the Lessée is thereby determined and the Lessor may take them as accessory things which were parcel of his Inheritance and in which the interest of the Lessée is determined c. The like 21 If I let my land for life and after grant the trées Co. ib. 62. b. 4. and after that the Lessée dies yet the Grantée cannot take them as it was holden per toram Curiam in 21 H. 6. 46. d. because at the time of the Grant the Lessée had a property in them as accessories annexed to the land c. Vide Max. 25. The like 22 If trées being great timber be blown down by the winde Co. ib. 63. b. 1. the Lessor shall have them for they were parcel of his Inheritance and not the Tenant for life or years But if they be dotards without any great timber in them the Tenant for life or years shall have them c. Superstitious uses draw good uses 23 When certain summes are limited to superstitious uses Co. l. 4. 115. a. 2. in Adams Lamberts case and one use is separated and divided from the other there the finding of one of them onely shall not give all the land to the King by the Stat. of 1 E. 6. cap. 14. but onely the sum appointed to the superstitious use which was employed within five years before the making of that Statute but if one of the uses depend upon the other there the finding of the principal or any part thereof shall give all the land to the King As if land be given to the intent that an Obit shall be found in such a Chappel and that upon the Obit 10 s. shall be distributed and employed to the Priest and 6 s. 8 d. to divers poor persons that shall be present at it and the residue of the profits to the reparations of the Chappel In this case if the Obit be maintained in any part within the five years although the 6 s. 8 d. be not employed to the poor men nor any thing at all upon the reparations of the Chappel within the five years Yet all the land shall be given to the King by the said Statute because all the uses depend upon the first 24 In suits in the Star Chamber before the repeal of that Court albeit the suit was for the King Co. lib. 5. 51. Halls case Upon censure or sentēce the King cannot pardon the damages or costs before censure or sentence contr◠and the offence such as the King might pardon yet when the censure was once given and damages given to the Plaintiff then the Plaintiff had particular interest in them by the censure which the King would not pardon But if the pardon had béene obtained before the censure there the pardon had discharged all for then the Court could not have procéeded to any censure of the Principal and by consequent neither of damages which are but accessories There is the same law of a pardon before sentence in suits depending betwixt party and party in the Court Christian for defamation casting violent hands upon a Clerk or the like for these being suits pro salute animae vel reformatione morum are in truth suits onely for the King although prosecuted by the party And therefore if in such a suit the Plaintiff hath expended any costs and the King before sentence pardons the Defendant in that case the costs are lost causa qua suprà It is otherwise if he be not pardoned till after sentence for then costs being thereby given to the Plaintiff he hath a particular interest in them which the Kings pardon cannot frustrate c. Co. l. 5. 96. b. 3. in Goodales case being adjudged in Randals case 23 24 Eliz. in the Court of Wards 25 A. seised in fée of certain lands A condition accessory to the estate by déed indented and enrolled according to the Statute covenants with B. That if B. pay unto A. his Heirs or Assignes 10 l. upon such a day at such a place that then A. and his heirs will stand seised of the said lands to the use of B. and his heirs A. having issue a son makes his Will in writing and makes C. his Executor and withal deviseth that C. shall have the land during the minority of his son and then dies his son within age In this case the question was to whom after the death of A. the Tenant ought to be paid and it was resolved that it ought to follow the estate of the land as an accessory unto it and shall not be paid unto C. either as Termor or Executor because C. could not be such an Assignée as is meant by the words of the Covenant having by the devise onely a particular interest in the land Neither yet if A. had granted the land for life or years could any such Lessee have béen Assignée in that case because notwithstanding such grant the reversion still remained in A. and the possibility of having the land again as in his former estate in case the condition were not performed and therefore the payment thereof ought to be made to his son and heir or unto the Assignée of the Covenantors whole estate as if the Covenantor had made an absolute feoffment in fée or else a gift in taile or lease for life with the remainder over in fée then the Feoffée Donée in tail or Lessée for life might be Assignées to whom the Condition ought to
cannot be defeated without entry and therefore by entry they ought to be made void Co. l. 7. 42. a. 3. in Beresfords case 2 Such an Exposition of a Déed must be made An entail good wiâ—â— menti 〈◊〉 the body â—â—gotten that all the parts thereof may well stand together and that withall it may stand with the rule of Law So if lands be given to the use of Aden and of the heirs male of the said Aden lawfully begotten and for default of such issue to the use of divers others in remainder c. Here albeit there wants the words of the bodie yet is this a good limitation of an estate taile For otherwise it would be against the intent of the Donor and all the remainders over would be void and if these words should be turned into Latine they ought to be rendred thus Et haeredum masculorum de praefato Adeno legitimè procreat and not haeredum masculorum praefati Adeni which is cléerly proved by the subsequent clause and for default of such issue c. For issue cannot be of Aden unlesse the words should be De dicto Adeno and so in this case the one clause is well expounded by the other c. Co. l. 8. 93. a. 1. in Frances case 3 In Replevin the Defendant avows for damage fesant The Plaiâ—â— plea in 〈◊〉 destroyed 〈◊〉 yet recoveâ— the Plaintiff pleads in Barre that the said lands were holden in soccage and that I. S. being thereof seised in fée by his last Will devised them unto him for sixty years if he should so long live c. Vnto which the Defendant pleads that it was true there was such a devise made but after the said devise I. S. enfeoffed certaine persons thereof to the use of the Plaintiff for sixty years if hee should so long live c. whereupon the Plaintiff demurs And in this case it was resolved that although it appeared that the title by which the Plaintiff claimed in his barre to the Avowry was utterly destroyed for the Plaintiff claims by the Will of I. S. which Will appears to be afterwards countermanded by the feoffment which the Avowant afterwards pleads and which the Plaintiff confesseth by his demurrer yet shall the Plaintiff have judgement because his Count is good and the Avowant in his replication to the barre of his Avowry hath done two things For first he hath destroyed the title which the Plaintiff made by the Will And again he hath given to the Plaintiff another title viz. to have the land for 60 years by force of the uses declared upon the feoffment And therefore in as much as upon the whole record according to which the Count ought to judge it plainly appears that the Plaintiff hath a lawful terme in the Lands and that the Defendant had taken his Cattel wrongfully for that cause judgement was given against the Avowant and for the Plaintiff albeit the title which the Plaintiff made for himself was destroyed c. â—etters Paâ—ents and Acts â—f Parliament â—est expoundâ—d by themâ—elves 4 The best Expositor of Letters Patents and Acts of Parliament Co. l. 8. 117. a. 4. in Doctor Bonhams case are the Letters Patents and the Acts of Parliament themselves by the construction and conference of all the parts together Optima statuti interpretatrix est omnibus particulis ejusdem inspectis ipsum statutum Et injustum est nisi tota lege inspecta una aliqua ejus particula proposita judicare vel respondere The count made good by the barre the barre by the replication c. 5 In Doctor Bonhams case in the eighth Report Co. l 8. 120. b. 1. in Doctor Bonhams case although it was admitted that the Plaintiffs replication was not material and the Defendants had demurred thereupon yet in as much as the Defendants had confessed in the barre that they had imprisoned the Plaintiff without cause the Plaintiff had judgement And this is the diversity there taken that when the Plaintiff replies and by his replication it appears that he hath no cause of action there he shall never have judgement but when the bar is insufficient in matter or amounts to a confession of the point in debate and the Plaintiff replies and shews the truth of his matter to enforce his case and in judgement of Law it is not material yet in that case shall the Plaintiff have judgement For 't is true that sometimes the Count shall be made good by the barre and sometimes the barre by the replication and sometimes the replication by the rejoynder c. Howbeit the diversity is that when the Count wants time place or other circumstance that may be made good by the barre so it is also of the bar replication c. as appears in 18 E. 4. 16. b. But when the Count wants substance no barre shall then make it good so likewise of a barre replication c. and with this agrées 6 E. 4. 2. Bone cas nota ibidem dictum Choke Vide 18 E. 3. 34. b. 44 E. 3. 7. a. 12 E. 4. 6. 6 H. 7. 10. 17 H. 7. 3. 11 H. 4. 24 c. But when the Plaintiff makes replication sur-rejoynder c. and thereby it appears that upon the whole record the Plaintiff had no cause of action he shall never have judgement albeit the barre rejoynder c. be insufficient in matter for the Court ought to make judgement upon the whole record and every one shall be intended to make the best of his own case Vide Riegeways case in the third Report 52. And these diversities were also resolved and adjudged between Kendal and Helier M. 25 26 Eliz. in B. R. and M. 29 30. in the same Court between Gallis and Burbry â—he like 6 Albeit the replication be insufficient Co. l. 8. 133. b. 1. in Turners case yet if the bar be also insufficient in matter upon the whole record the Plaintiff shall have judgement It is otherwise when by the replication it appears that the Plaintiff hath no cause of action for there the Plaintiff shall never have judgement although the barre be insufficient As in Debt upon an Obligation with condition to perform covenants in an Indenture the Defendant pleads performance of all the Covenants generally when it appears to the Court that divers of them are in the negative or disjunctive and so the plea in the general affirmative insufficient Yet if the Plaintiff reply and shew a breach of one of the Covenants which by his own shewing is no breach upon which the Defendant demurs judgement shall be given against the Plaintiff because upon the whole record it appears that the Plaintiff hath no cause of action For the Obligation is endorsed with condition to perform Covenants so that the Plaintiff hath no cause of action until there be a breach of Covenant and by the shewing of the Plaintiff himself there is not any breach sufficient in
Law to give him cause of action and it is alwayes intended that every one will shew the best of his case c. But when the barre of the Defendant is insufficient in substance and the Plaintiff replies and shews the truth of his case whereby he produceth no matter against himself but matter explanatory or peradventure not material there the Court shall judge upon the whole record and the Count being good for insufficiency of the Barre without any regard to the replication judgement shall be given for the Plaintiff As if a man plead a grant by Letters Patents in Barre which are not sufficient the Plaintiff by replication sheweth another clause in the said Letters Patents which clause is not material the Defendant demurers in Law In this case judgement shall be given against the Defendant sic in simililibus Co. l. 8. 163. a. 3. in Black-amors case 7 Among the misprisions remedilesse by the Statutes made for the amendment of records this is one Misprisions 〈◊〉 Clerks that albeit the verdict upon issue tryed be given for the Plaintiff yet if upon the whole record it appears to the Court that the Plaintiff hath no cause of Action he shall never have judgement and so it hath béen often adjudged Co. l. 9. 53. a. 2. in Hickmots case 8 In debt upon an Obligation A release pleaded wiâ—â— exception the Defendant pleads a release of the Plaintiff c. which was in this manner A. doth acknowledge himselfe satisfied and discharged of all bonds debts c. made by B. the Defendant and it is agreed that A. shall deliver all such bonds as he hath yet undelivered unto B. except one bond of 40 l. not yet due wherein B. and C. stand bound to A. c. The Plaintiff replies that the obligation excepted and the obligation in Curia prolata are one and the same whereupon the Defendant demurres And in this case it was resolved that the exception extended to all the premisses because all the words before make but one intire sentence and the one depends upon the other For it is reason that when Bonds are satisfied that they should be delivered and exceptio semper ultimò ponenda est It was also reason that this bond of 40 l. should be excepted because it was not due when the release was made c. Co. l. 10. 99. b. 3. in Beawfages case 9 M. 10. Jac. upon a motion at the Barre it was resolved Bond taken by the Sheâ—â—â—â— not within 〈◊〉 the Statute 〈◊〉 23 H. 6. that an obligation to the Sheriff upon a Fieri facias for the payment of the money in Court c. was not void by the Statute of 23 H. 6. cap. 10. For the first branch of that Statute is that he shall let to baile by Writ or Bill c. which he could not do before as appears 19 H. 6. 43. The second shews the form of the body c. The third contains a penalty that if the Sheriff take an obligation in any other form c. than is there prescribed that it shall be voyd so that upon consideration of all the branches together and upon their coherence and dependance one upon another it plainly appears that the said Statute doth extend onely to obligations of such as are within their guard and custody and not otherwise Co. l. 10. 138. b 1 in Chester Mills case 10 Always such construction ought to be made of an Act af Parliament that one part thereof may agrée with the rest Exposition an Act. and that all may stand well together c. Co. l. 11. 44. a. 4 in Richard Godfreys case 11 The Iustices shall assesse the Fines of Copiholders upon the due consideration of all circumstances Copihold Fines Quà m rationabilis debet esse finis non definitur sed omnibus circumstantiis inspectis pendet ex Justiciariorum discretione And so it was adjudged in Communi Banco Inter Stallon Plaintiff and Brady Defendant P. 9. Jac. 1845. Rot. Co. l. 5. 79. b. in Fitz-herberts case 12 Tenant for life Warranty that comâ—ceth by dâ—sin the remainder to his sonne and heire apparent in taile by covin and agréement betwixt him and A. and B. to the intent to barre his son of his remainder by a collateral warranty makes a lease for years to A. who makes feoffment in fée to B. to whom the father releaseth with warranty and all this is by covin and consent betwixt the parties to the intent aforesaid After this the father dies and the warranty descends upon the sonne being then of full age Resolved per totam curiam that this warranty shall not barre the sonne because the feoffment of the Lessée for years is disseisin and the father himselfe is particeps Criminis and agréeing thereunto then albeit the release with warranty is made after the disseisin yet in as much as the disseisin was to such an intent and purpose the Law will adjudge upon the whole Act as it is agréed in 19 H. 8. 12. If a man disseise another with intent to make feoffment with warranty albeit he make the feoffment twenty years after the disseisin yet the Law will adjudge upon the whole act and the disseisin and warranty shall be coupled together according to the intent of the parties and therefore in such case the law will adjuge the warranty to begin by disseisin albeit they are made at several timâ—s So if a man make a lease of lands in two several Counties reserving an intire rent abeit the livâ—ry be made at several times first in one County and then in another yet the rent is issuing out of the lands in both Counties So likewise if a man make a charter of feoffment of certain lands with warranty and deliver the déed and after make livery of the land secundum formam cartae Here also the Law will adjudge upon the whole act and albeit the déed be delivered at one time and the livery of the land at another time and although a warranty ought to enure upon an estate yet upon the whole matter the warranty is good Eldest childe 13 The use of a recovery was limited by a Latin déed to the use of H. viz. he against whom the recovery was had for life Dyer 337. 36. 16 Eliz. the remainder Seniori puero de corpore H. in taile c. Afterwards H. covenants by an English Indenture to levy a fine to the use aforesaid wherein the use was limited to the use of the eldest child of the bodie of H. c. H. hath issue two children whereof the elder was a daughter and the younger a sonne And in this case it was adjudged that the daughter should have the land for albeit the word puero be indifferent to each sex and then the Male for dignity should be preferred yet because the English indenture hath declared the construction to be the eldest child the daughter shall have
shall put the plea without day for all and therefore in former times the Plaintiff used to sue out several Venire facias in those cases for feare of a protection c. But in every action or plea real or mixt against two where a protection doth lie or in debt detinue or accompt a protection cast for the one doth put the plea without day for all for these actions are in their nature intire in respect of the joint privity and interest that atttend them c. The like 4 If a real action be brought by several Praecipes against two or more if the Demandant be non-suit against one Co. ib. 139. a. 4. he is non-suit against all For as to the Demandant it is but one intire writ under one Teste c. â—n Annuity â—â—de a Rent-â—harge 5 A man grants a Rent-charge to another and his heirs Co. ib. 144 b. 4. the Grantée dies and his wife recovers dower thereof against the heire In that case the heir cannot after such endowment bring a writ of Annuity for the other two parts for either the whole must be a Rent-charge or the whole must be an Annuity because otherwise it would not be according to the déed of the grant which is intire without fractions c. A rent-charge â—â—tinguished â—â—y purchase of â—art of the â—and 6 If a man which hath a Rent-service purchase parcel of the land Littl. § 222. Co. ib. 147. b. 4. out of which that rent is issuing that shall not extinguish the rent save onely for the parcel For Rent-service in that case is severable and may be apportioned according to the value of the land because it issueth out of the profits of the land and is due by common right But if a man hath a Rent-charge to him and his heirs issuing out of land and he purchaseth parcel of that land to him and his heirs the whole Rent-charge is extinct and the Annuity also because a Rent-charge is intire and issuing out of every part of the land against common right Co. ib. 149. a. 1. So likewise if one holds his land of his Lord by the service of rendring to his Lord yearly at such a Feast an Horse a Spur of gold a Clove-gilliflower or the like if in that case the Lord purchase parcel of the land such service is gone because such things are in their nature intire and cannot be severed or apportioned Vide Bruertons case Co. l. 6. 1. A rent-charge â—ecomes a â—ent-seck 7 It is said that if a man grant a rent out of thrée actes Co. ib. 147. b. 1. and Co. l. 7. 24. b. 2. Buts case and grant over that if the rent be behind the Grantée shall distrain for the rent in one of the acres this rent is intire and cannot be a Rent-seck out of two acres and a Rent-charge out of the third acre and therefore it is a Rent-seck for the whole and yet he shall distrain for it in the third acre So if a rent be granted to two and their heirs out of an acre of land and that it shall be lawful for one of them and his heirs to distrain for it in the same acre this is a Rent-seck For in as much as they stand jointly seised of one intire tent it cannot be as to one a Rent-seck and as of the other a Rent-charge And this distresse is as an appurtenant to the rent And therefore in that case the Survivor or their Grantée of the rent may distrain for it c. â—n intire rent-â—harge multiâ—lied 8 If the service of the Tenant be to render unto the Lord yearly at such a Feast an Horse a Red-rose or the like intire annual service Co. ib. 149. a. 1. and Co. l. 6. 1. Bruertons case which cannot be severed and the Tenant alien part of the land to a stranger In that case because the rent cannot be apportioned it shall be multiplyed and both the Feoffor and Feoffée shall pay each of them a Horse Red-rose c. And therefore if the Tenant which holds by such service enfeoffs the father of the Lord of part of the land and that land afterwards descends to the Lord Yet that shall not extinguish that annual intire service but the Feoffor shall still hold by a horse c. because the service was multiplied and each of them viz. the Feoffor and the Feoffée held by a horse c. Co. ib. 149. a. 2. 9 A. hath a Common of pasture certain as for ten beasts in forty acres of land and twenty of those acres descend unto him in that case Common 〈◊〉 certain shall remain 〈◊〉 descent of parcel the Common certain shall be apportioned It is otherwise if it be common of pasture sans number for that being intire and uncertain cannot be apportioned but shall still remain So it is also of common of Estovers Turbary Piscary c. Co. ib. Co. l. 6. 2. Bruertons case 10 If thrée Ioyntenants hold by an intire yearly rent as a horse Rent intire extinct by â—â—covery of part a grain of wheat or the like and the Tenants cesse by two years and the Lord recovers two parts of the land against two of them and the third saves his part by tendring of the rent c. and finding surety Albeit the Lord comes to the two parts by lawful recovery grounded upon the default and wrong of the two Ioyntenants yet shall the intire annual rent be extinct Vide infrà r. 114. c. 45. Co. ib. Co. l. 6. 1. Bruertons case 11 If the Tenant holdeth by fealty and a bushel of wheat Extinctly purchase of part or a pound of Pepper or of Comyn or such like and the Lord purchaseth part of the land there shall be an apportionment as well as if the rent were in money because such services will admit separation and division But if the rent were by one grain of wheat or one pepper-corn or one séed of comyn by the purchase of part the whole shall be extinct because these things are intire and will not admit division or severance Co. ib. 149. b. 1. 2. and Co. l. 6. 1. in Bruertons case 12 If there be Lord and Tenant by Fealty and Heriot service Heriot serviâ—â— and Heriot â—stome and the Lord purchase part of the land the Heriot-service is extinct because it is intire and also of such value that peradventure the land still remaining in the Tenants hand will not for the future be able to discharge it It is otherwise where the Tenant holds by Heriot-custome for there purchase of part shall not extinguish the service yet in that case also the Heriot is intire but Consuetudo vincit communem legem Littl. § 223. Co. ib. 149. a. 4. 13 If the Tenant holds of his Lord by Homage Fealty Escuage Fealty Homage remiâ— after purchase and Rent and the Lord purchase parcel of
properly called a Rent For saith he if it should be a Rent it ought to be either Rent-service Rent-charge or Rent-secke but it is not any of those For if the stranger be once seised of it and after be denyed it he shall not have an Assise for it because it is not issuing out of any Tenements c. So that if it be arreare the stranger hath no other remedie but that the Feoffor or his heirs may enter and yet if they do enter then is the Rent gone for ever And therefore he concludes that such a charge upon the Landis not a Rent but onely a paine layed upon the Tenant of the Land and his heires that in Case payment be not made according to the Indenture they shall lose the Land by the entry of the Feoffor and his heires c. An Estate during coverture 2 Another example hereof you shall find Sect. 380 381. Co. ibid. 235. b. 1. Where to prove that an Estate made to Baron and Feme during the Coverture is an Estate unto them for their two lives he useth this argument Every man saith he that hath an Estate of Frank-tenement in Lands or tenements hath an Estate in them either in Fée or Fée taile or for his owne life or pur auter vie But the Baron and Feme have not by such a Grant Fée nor Fée taile nor an Estate pur auter vie Ergo they have an Estate for the term of their lives Howbeit that is upon a Condition in Law viz. If one of them die or a divorce be sued betwixt them that then it shall be Lawfull for the Lessor or his heires to enter c. And in this Case if they make wast the Feoffor and his heires shall have a writ of wast against them supposing by his writ Quod tenet ad terminum vitae c. But in his Count he shall declare the special manner of the Lease Common ratione commorantiae void 3 In Trespass the Defendant justifies Co. lib. 6. 60. a. 2. in Gatewands Case that all Inhabitants in any ancient mesuage within the Towne of Dale have used to have Common in the place where c. in Sale ratione condonantiae c. And this Custome was adjudged to be against Law Because there are onely four kinds of Commons viz. Appendant appurtenant in grosse and for vicinage and Common Ratione commorantiae is none of them c. 80. 18. The Estate of the Duke of Cornwall 4 Edward 3. Co. lib. 8. 27. a. 2. in the Princes Case gave unto the Blacke Prince the Dukedome of Cornwall c. Habendum tenendum eidem Duci ipsius haeredum suorum Regum Angliae filiis primogenitis dicti loci Ducibus in Regno Angliae haereditariè successoris c. And it was resolved in 3 Jac. in the Princes Case that that the Prince had an estate of Fée-simple in that Dukedome because every Estate of Inheritance is either Fée-simple or Fee-taile but that Estate could not be Fée-taile for it is not limited or restrained either by expresse words or by words which do tout amount to the heires of the body of the Prince because he that is to inherit that Dukedome ought to be the first borne Sonne of the heires of the Blacke Prince be it heir Lineall or Collateral and such heire ought also to the King of England c. Vide infrà 192. 3. 72 The Generals must go before and the Specials must follow after â—enerals beâ—e Specials 1 In a write the General shall be put in demand and in Plaint before the special as Land before Pree Pasture Wood Iuncarie The Rule of the Register Marish c. Wood before Alders Willowes c. Finch 24. 73 The more worthy shall be set before the lesser worthy â—grees of â—hiness of â—d c. 1 An intire thing shall be demanded before the moitie part or parts Co. Inst p. 1. 4. a. 2. Co l. 11. 82. a. 4. Bowles Case the thing of greater dignitie before that which is of lesse as a mesnage before Land for albeit Land be of more esteeme then any of the other elements because it was principally made for man to rest on which he cannot do in any of the other elements yet Land builded upon is more worthy then any other Land because it is for the habitation of man and in that respect hath the precedencie to be demanded in the first place in a praecipe howbeit a Castle shall be demanded before a mesuage or Mannor because it is more worthy then they being ordinarily an habitable for a Noble personage c. Finch 24. and the Rule in the Register Finch 25. 2 In a Replevin if it be of two chattels one quicke Of Chattels and the other dead the living thing shall be first demanded Finch 25. and the Rule in the Register Finch ibidem 3 Where one hath the presentment to a Church two turnes Of present Action to a benefice and another the third turne he that had the third turne bringing a Quare Impedit shall not begin with his owne turne first but with the other two turnes Co. Inst part 18. a. 3. 4 My Lord Cooke well observes Fee-simple the most worthy Estate that Littleton did worthily begin his Booke with an Estate in Fée-simple because all other Estates being derived from that it must needs be the most worthy for saith he A principalioribus dignioribus est inchoandum Co. lib. 2. 46. b. 1. in the Arch Bishop of Canterb Case 5 By the Statute of 31 H. 8. cap. 13. It was enacted Words of inferior rank eâ—clude them of higher degree that all Monasteries c. Colledges c. which after that Act should happen to be dissolved renounced relinquished forfeited given up c. or by any other mean should come to the Kings highness c. should be vested deemed and judged by authoritie of Parliament in the very actual and real possession of the King c. And afterwards by the Act of 1 E. 6. cap. 14. The Colledge of Maid-stone in Kent was given to E. 6. Now the Question was whether by the General words of the Statute of 31 H. 8. That Colledge was not to be deemed in the Actual possession of E. 6. because the Edict of 1 E. 6. was a mean by which it came to the Kings hands and therefore fulfilled these words of that Statute by any other mean But it was resolved per totam Curiam that the Statute of 31 H. 8. could not be so understood For when the Statute speaks of dissolution renouncing relinquishing forfeiture giving up c. which are inferiour meanes by which such Religious houses came to the King then the said last words by any other mean cannot be intended of an Act of Parliament which is the highest manner of conveyance that may be And therefore the makers of that
Vide Dier 150. 84. Co. ib. 207. a. 4 24 If a man make a single bond Condition collateral or acknowledge a Statute or Recognisance and afterwards make a defeasance for the payment of a lesser sum at a day if the Obligor or Conusor tender the lesser sum at the day and the Obligée or Counsée refuseth it he shall never have any remedy at Law to recover it because it differeth in quality from the sum contained in the Obligation Statute or Recognisance because if is no parcel thereof but contained in the defeasance made at the time or perhaps after the Obligation Statute or Recognisance And in such Case in pleading of tender and refusal the party shall not be driven to plead Uncore prist neither hath the Obligée or Counsée any remedy by law to recover the sum contained in such defeasance so likewise it is if a man make an Obligation of 100 l. with condition for the delivery of corn or timber c. or for the performance of an Arbitrement or the doing of any Act c. This differing in nature from the sum contained in the Obligation and being no parcel thereof is collateral thereunto And therefore in such Case also a tender and refusal is a perpetual bar The like Law it is of tender and refusal of money upon a Mortgage of Land because the money is collateral and differeth in nature from the land Dier 5. b. 26. H. 8. 1 2. 25 A man seised of land devisable by the custome lets it for years Rent reservâ—â— a chattel rendering rent and deviseth the rent to a stranger and dies and the stranger is seised of the rent and dies also In this case the rent being in its nature but a chattel shall go to the executor of the Devisée and not to his Heir 26 In debt against Executors brought in the County of Middlesex Debt against Executors the Defendants plead fully administred Dier 30. b. 206 28. H. 8. The Plaintiffe saith that they have Assets in Essex and thereupon the Defendants demurred and judgment was given for the Plaintiff because Assets in their nature is a thing transitory and not local and if it had been in issue and trial of a Iury of Middlesex they might have found the Assets in any County of England Rent-service apportionable 27 Rent-service was apportionable at the Common Law before the Statute of Quia Emptores terrarum Co. Inst p. 1. because there are divers kinds of Rent-service which are not within that Statute and yet were apportionable by the Common Law as if a man maketh a lease for life or years reserving a rent and the Lessée surrender part of the land to the Lessor or if the Lessor recover part of the land in an Action of wast or entreth for a forfeiture or granteth part of the reversion to a stranger or if tenant by knight-service by his last will in writing deviseth two parts of his lands In all these cases the rent shall be apportioned yet they are not within the words of the said Statute but the reason séems to be for that rent-service is of the nature of the land and therefore partable as it is partable according to Max. 64. It is otherwise of a rent charge because it is not of the nature of the land being against common right and collateral to the land Livery out of ward 28 A livery to be out of ward being in nature of a restitution Co. ib. 77. a. 4. shall be taken and expounded favourably And therefore if livery be made of a Mannor cum pertinentiis the Heir shall thereby have the Advowson appendant It is otherwise of Grants by Letters Patents Confirmation 29 If a Lease for life be made to two Co. Inst p. 1. 299. b. 1. to have and to hold the one moity to the one for life and the other moity to the other for life and the Lessor confirm their estate in the land to have and to hold to them and their heirs In this Case they are tenants in common of the Inheritance for regularly the confirmation shall inure according to the quality and nature of the Estate which it doth inlarge and increase 30 There being thrée Coperceners of land in Gavelkind in reversion Dier 128. a. 58 2 3. P. M. depending upon an Estate for life Partition the youngest aliens his part by fine in fée the tenant for life dies and the eldest son enters into the whole and then the second brother and the alienée bring a joynt writ of partition upon the Statute of 31 H. 8. 1. against the eldest brother But it was adjudged that it was not maintainable because they were entituled to writs of partition of several natures viz. the one to a writ of Copercenarie at the Common Law and the other to a writ of Partition by the Statute and therefore could not joyn â—eprivation 31 The President of Magdalen Colledge in Oxford being deprived by the Bishop of Winchester their Visitor Dier 209. 20. 3 4. Eliz. could not have an Appeal to the Delegates because the deprivation was temporal and not spiritual and therefore out of the Statute of 25. H. 8. 19. And so he was put to his Assise â—â—sance 32 Tenant for life of an house brings an Action upon the Case against one who stopped the way in his land Dier 250. 88. 8 Eliz. which time out of mind had béen a passage betwixt the house and a Park and albeit the Park was the Lessors and not the tenants for life yet it was held by the Count that such an Action lay not for the tenant for life but an Assise of Nusance 〈◊〉 in grosse 〈◊〉 rent 33 The Lord Dacres lets certain land and stock to friends Dier 275. 49. 10 Eliz. who covenant to pay 100 l. per annum to him and his wife his heirs assignes during the term and also 2000 l. at a certain day for the marriage-portion of his daughter he dies his son within age suffers more then a third part of all his land to descend after the Feme dies And in this Case it was adjudged that the Quéen should not have the 100 l. per annum but the executors of the Feme because in nature and quality it is not a rent which goeth to the heir but a sum in grosse 81 In persons the Law looketh at the excellency of some and giveth them singular Priviledges and preheminences above others as to the King the Queen his Wife Noblemen and Peeres of the Realme also unto persons of holy Church Co. Inst pt 1. 21. b. 3. 1 If the King give Land to a man with a Woman of his kindred in Frank-marriage and the Woman dieth without Issue Frank-marriage the man in the Kings Case shall not hold it for his life because the Woman was the cause of the gift but it is otherwise
Also if issue be taken whether the Plaintiffe be an Earl or no it shall not be tried by the Countrey but the Kings writ Also the Defendant shall not have a day of grace against a Lord of the Parliament because he is conceived to attend the publique And all these and many other do appear in our Books 48 E. 3. 30. Regist 179. F. N. B. 247. 48. Ass Pl. c. 23. Ass Pl. 24. 32 H. 6. 27. 35 H. 6. 46. So that as when such an Office descends to an infant or to a man de non sanae memoriae they of necessity ought to exercise it by Deputy so likewise an Earl for the necessity of his attendence which the Law intends upon the King and the Common-wealth that Stewardship of a base Court shall be executed by Deputy Also if a Parkership be granted to an Earl without words to make a Deputy yet he may keep it by his servants And if a Duke have licence to hunt in a Park the Law will allow him attendance suitable to his condition c. Marshalsie Seisure Office Scire facias 56 It was found by Office in 9 Jac. that Sir George Reynel had forfeited the Office of Marshal of the Marshalsie Co. l. 9 95. b. 3. in Sir George Reynels Case by divers voluntary escapes and it was resolved that the King might seise that Office without suing out a Scire facias And in that Case it was observed 1 That the King in some cases shall be in possession by seisure without Office as in 21 H. 7. and Stamf. in case of temporalties of a Bishop and of Priors aliens because the certainty of them appears in the Exchequer 2 He shall sometimes be in possession by Office without seisure as of Lands Tenements Offices c. which are local oâ— whereof continual profit may be taken as upon condition attainder wardship c. Vide 2 H. 7. 8. Stamf. 55. Dowries case in Rep. 3. and the Sadlers Rep. 5. And the Office albeit false yet cannot be avoided without traverse for he cannot traverse the Kings title in the information Traverse Advowson c. 20 E. 4. 10. 3 The King shall be in possession by Office and seisure of an Advowson and thereof he is not in possession until presentment admission and institution And if the King upon refusal bring a Quare Impedit the owner may traverse the Kings title in that Action without traverse of the Office because it is not a manual but an incorporal hereditament also the right to present is casual and not continual 4 The King shall be in possession without office where his tenant died without heir 9 H. 7. 2. 5 When distinct matters amount to an office in that case there ought to be a Scire facias before the King can seise 6 When a common person is put to his Action In that Case the King upon office is put to his Scire facias c. â—o tenure reâ—erved Capite 57 When the King grants any land without reservation of any tenure or absque aliquo inde reddendo or the like Co. l. 9. 123. b. 3. in Anthony Lowes Case the Land by operation of Law shall be holden of the King in capite by knights-service according to the rate and proportion of Land holden by knights-service viz. more or lesse according to the quantity of the Land c. 58 When any thing is due to the King Co. l. 9. 132. a. in Holis Case he ought to have the full and compleat effect of the thing so due unto him As if there be Grandfather Father and Son of Lands whereof some are holden of the King in capite by Knight-service in capite and the residue of other Lords c. And the Grandfather conveys all the Lands holden of other Lords and part of the capite Lands to the Father for life the remainder to the Son in tail the remainder to the right heirs of the Grandfather And the residue of the capite Lands to four younger Sons successively for life the remainer to the right Heirs of the Grandfather the Grandfather dies the Father tenders his livery and dies before livery sued or office found the Son being of full age and all this is found by office and the Son continues the livery the four younger Sons being still in life In this Case albeit by the death of the father before livery sued the King hath lost the priviledge of having primer seisin after the death of the Grandfather as it was adjudged in Northcots case and in Hales case in the 8 Rep. c. for here the Son shall not sue livery nor pay primer seisin because they were due by the Father after the death of the Grandfather and the Son living the Father is not within the Statutes of 32 34 H. 8. for the Lands conveyed unto him Neverthelesse in the same Case the King shall have primer seisin for the Lands conveyed to the younger Sons because they are within the thrée Cases in which wardship and primer seisin are given unto the King by the said Acts viz. Advancement of his wife preferment of his children and payment of his debts And the reason hereof is because when the said Acts give unto the King primer seisin it is intended of an actual and effectual primer seisin and not of one which is onely Mathematical and Imaginary for as before is said the King ought alwayes to have a full and compleat effect of the thing which is due unto him So also if the King hath title to present by lapse hâc vice and he present and his Clerk is admitted and instituted but dies before induction In this Case the King shall present again for he had not the full and compleat effect of his presentation as it was resolved by Sir James Dyer rotam Curiam in Gyles his Case 18 Eliz. in Co. Ba. Likewise if the King marry a daughter Marriage again which he hath inward infra annos nubiles and before the age of consent the Baron dies the King shall have the marriage of the Heir again because the first marriage was not compleat as it was resolved in Ambrosia Gores case in the 6 Rep. fol. 22. King donor not barred And the King donor in tail before the Statute of West 2. de donis c. was not barred by the alienation of the Donée post prolem suscitatam without Assets albeit there were collateral warranty Howbeit in all these Cases a common person shall be barred c. Co. l. 10. 113. b 1. in Legats Case 59 When the King grants any thing upon a false insinuation Grant upon false suggestions void or suggestion such a grant of the Kings is void for in that Case there is a diversity betwéen the King a common person For a Subject that may intend his private affairs shall not in such Case avoid his Grant but the King who intends the Publique good shall avoid
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
Alien that is condemned in an information shall have a writ of Error to relieve himselfe Et sic de similibus â—â—eading 12 If an Alien that is no Alien Enemy Co. ibid. b. 2. in Calv. Case ubi suprà commence a suit the Tenant or Defendant may plead in dis-ability and ought at last to demand Iudgement Si il sera respondue But if an Alien Enemy bring a suit he shall conclude to the Action by saying Judgement si action Co. ib. 156. b. 4 and 129. a. 1. 13 It is a principal Challenge to the Poll Juror that the Iuror is an Alien born and that is propter defectum Patriae or rather ligeanciae as Littleton hath it or Subjectionis as Bracton Co. l. 7. 6. a. 4 in Calvins Case 14 It is to be observed that it is nec Coelum nec Solum Ligeance makes a Subject born neither the Climate nor the Soil but ligeantia obedientia that make a man to be a Subject born for if enemies should come into this Kingdome and possesse a Town or Fort and have issue there that issue is no Subject to the King of England though he be born upon his Soil and under his both Climate and Meridian because he was not born under the ligeance of a Subject nor under the protection of the King Co. ib. 15 If an Alien of a Countrey in league with the King come into this Kingdome and here commit Treason An Alien in league shall be indicted It is otherwise of an alien Enemy who shall be punished by Martial Law c. he shall be indicted for it and procéeded against according to the municipal Law of the land and the indictment shall begin and end as other indictments do viz. the beginning shall be contra Dominum Regem c. and it shall also end thus Contra ligeantiae suae debitum c. Onely in the middle these words shall be omitted naturalem Dominum suum c. as it was resolved in Hill 36. Eliz. in the Case of Stephano Ferrara de Gama and Emanuel Ludovico Tinoco two Portugals born who comming into England under the safe Conduct of Quéen Elizabeth and living here under her protection joyned with Doctor Lopez in treason against her Majesty But if an alien enemy come to invade this Land and be taken in war he cannot be indicted of treason for it because the indictment cannot conclude Contra ligeantiae suae debitum for he never was in the Kings protection nor ever ought any manner of ligeance unto him but malice and enmity and therefore in that Case such an Alien shall be put to death by Martial law And so it was in 15 H. 7. in the Case of Perkin VVarbeck who being an Alien born in Flanders feigned himself one of the sons of E. 4. and invaded this Kingdome with intent to take upon him the Royal Dignity but being taken in war it was resolved by the Iustices that he could not be punished by the Common Law but before the Constable and Marshal according to Martial Law and so he was according to that Law adjudged to be hanged drawn and quartered and was in that manner executed accordingly Co. ibid. 17. a. 16 Every Alien is either a friend that is in league An alien friend and enemy c. or an enemy that is in open war c. Every alien enemy is either so pro tempore a temporary enemy for a time or perpetuus perpetual or specialiter permissus permitted in a special manner An alien friend so long as he so continues to be may acquire by gift or purchase Lands c. but cannot hold them he may also have Leases and Goods for Trade and Commerce sake maintain personal actions c. as is above-said But if such an Alien become an Enemy as all Aliens friends may then is he utterly dis-abled to maintain any action or get any thing within this Realm but a perpetual enemy though there be no Wars by fire and sword between them cannot maintain any Action or get any thing within this Realm such as are all Infidels which are in law estéemed perpetui inimici because the Law presuming that they will not be converted that being remota potentia betwéen them as with Devils whose Subjects they are and the Christian there is perpetual hostility and can be no peace For as the Apostle saith 2 Cor. 6.15 Quae autem concordia Christo cum Beliali aut quae portio fideli cum infideli And the Law saith Judaeo Christianum nullum serviat mancipium Nefas enim est quem Christus redemit Blasphemum Christi in servitutis vinculis detinere Register 282. Infideles sunt Christi Christianorum inimici And herewith agréeth the Book in 12 H. 8. fol. 4. where it is holden that a Pagan cannot have or maintain any action at all And upon this ground there is a diversity betwéen the Conquest of a Kingdome of a Christian King and the Conquest of the Kingdome of an Infidel For if a King come to a Christian Kingdome by Conquest séeing that he hath vitae necis potestatem he may at his pleasure alter and change the Lawes of that Kingdome but untill he doth make an alteration of them the ancient Lawes thereof shall remain Howbeit if a Christian King should conquer a Kingdome of an Infidel and bring them under his subjection there ipso facto the Lawes of the Infidel are abrogated for that they be not onely against Christianity but against the Law of God and Nature contained in the Decalogue And in that Case until certain Lawes be established amongst them the King by himself or such Iudges as he shall appoint shall judge them and their Causes according to natural equity in such sort as Kings in ancient time did within their Kingdomes before any certain municipal Lawes were given But if a King hath a Kingdome by title of Descent there séeing by the Lawes of that Kingdome he doth inherit the Kingdome he cannot change these Lawes himself without consent of Parliament c. As for an Alien Enemy that is inimicus permissus he is an Enemy that comes into the Realme by the Kings Conduct c. Vide 7. 4. The Defendant pleaded an Alien 17 In an Action brought by a Subject against an Alien Co. ibid. 25. a. 4. in Calvins Case the Subject shall plead that the Defendant is an Alien born for the benefit of the King to the end that the King upon Office found may seise that whereof the Alien is seised or possest and also that the tenant may yield the same to the King and not to the Alien because the King hath best right thereunto Flea against an Alien 18 In an Action real against an Alien born Dier 2. 8. 6 H. 8. it is a good plea in dis-ability of the person to say that he is an Alien born otherwise in Actions personal but against an
Coverture shall make their law And also an Infant when he is of the age of twelve years shall take the Oath of Allegiance to the King in the Turn or Léet and this was as Bracton saith secundum leges sancti Edvardi But indéed such was the Law in the time of King Arthur c. Baron and Feme Infants 8 If husband and wife be both within age Co. ib. 337. a. 3 and they by déed indented joyn in a Feoffment reserving a rent the husband dieth the wife may enter or have a Dum fuit infra aetatem But if she were of full age she shall not have a Dum fuit infra aetatem for the non-age of her husband albeit they be but one person in law Infant execut 9 An Administration durante minore aetate at the age of seventéen years of the Infant Co. l. 5. 29. b. Princes case executor ceaseth before which age he cannot assent to a Legacy c. Howbeit if Feme be such an Executrix and she before seventeen take Baron of full age the Administration also in that Case ceaseth because then the Baron is able to administer as executor c. â—ge of the â—â—eir female 10 At the Common Law the full age of the heir female was fourtéen as appears in 35 H. 6. 52. and Litt. 22. Co. l. 6. 70. b. 4. in the Lord Darcies case and if she were of the age of fourtéen at the death of the Ancestor she could not be in ward and if within that age she was to have livery at that age c. but now by the Statute of VVest 1. cap. 22. if she were under 14 at the death of her Ancestor she shall be in ward till sixtéen for the Lord to tender marriage and upon refusal to have the benefit of those two years but not to have any forfeiture of Marriage c. Co. ib. l. 9. 72 b. 3. in Doctor Husseys case 11 The Statute of Merton cap. 6. Anno 20. H. 3. Merton cannot extend to the heir female because it saith 14 ultra and ultra terminum aetatis suae de 21 c. which words must be understood of the heir male and not of the heir female because twelve is the age limited for the heir female to give consent to marriage but fourtéen for the heir male and therefore that Statute gives a forfeiture in case of refusal of Marriage upon tender to the heir male c. Co. Inst p. 1. 78. b. 3. 12 By the Civil Law the full age of a man or woman to alien Age by the Civil Law demise let contract c. is five and twenty years for then the Romans accounted men to have plenam maturitatem and the Lombards at eightéen years 91 In things the Law respecteth every thing according to Worthinesse 1 Littleton saith § 2. If a man be seised of Lands in Fée-simple The most worthiest of blood shall inherit and die without issue Co. Inst p. 1. 10. b 2. Son prochein Cosein collateral del entire sanke c. his next Collateral Cosen of the whole Blood c. shall have it as heir unto him whereupon my Lord Cook puts this Case One hath issue two Sons A. and B. and dieth B. hath two Sons C. and D. and dieth A. purchaseth Lands in Fée-simple and dieth without issue In this Case D. is his next Cosen and yet shall not inherit but the issue of C. because albeit D. be his next Cosen jure propinquitatis yet the issue of C. shall inherit being the more worthy viz. his next Cosen Jure repraesentationis And Littleton there meaneth of the right of representation for legally in course of Descents he is the next of Blood inheritable because the most worthy In such sort that all that Line of C. be they never so remote shall inherit before D. or his Line And therefore Littleton saith well de quel pluis long degree que il soit c. And yet in the Case abovesaid if a Lease for life were made to A the remainder to his next of Blood in fée In that Case D. shall take the remainder because he is next of Blood and capable to take by purchase though he be not legally next to take as heir by Descent And D. takes the purchase by the special limitation of the party but the Law casts the Descent upon the issue of C. as the more worthy Finch p. 116. Litt. §. 4. 5. Co. ib. 14. a. 1 c. Vide Finch page 116. So likewise the Blood of the Fathers side is more worthy then that of the Mothers the male then the female the eldest Son then the younger c. And therefore those shall inherit before these and the female on the Fathers side before the male or female on the Mothers c. Quod priùs est dignius est qui prior est tempore potior est jure Si quis plures filios habuerit jus proprietatis primò descendit ad primogenitum eò quòd inventus est primò in rerum natura Co. ib. 53. a. 3. 2 If the Tenant cut down or destroy any Fruit-trées growing in the Garden or Orchard it is Waste Trees in Orchard waste but if such Trées grow upon any of the ground which the Tenant holdeth out of the Garden or Orchard it is no Waste Co. ib. 240 a. 2 3 A dying-seised and a descent A Descent Escheat and not a dying-seised and an Escheat doth take away the entry of the Disseisée because the descent is the worthier title c. 4 It is holden that if there be Bastard eygne and mulier puisat Co. ibid. 244. a. 3. and the Mulier be within age at the time of the dying seised of the Bastard Bastard Mulier Descent that neverthhlesse the Mulier shall be barred because the Issue of the Bastard is in judgement of Law become lawful heirs and the Law doth preferre legitimation before the priviledge of Infancy Laches in an Infant 5 It is regularly true that Laches shall not prejudice an Infant Co. ibid. 246. a. 1. neverthelesse Laches shall be adjudged in him if he present not to a Church within six moneths For the Law respecteth more the priviledge of the Church that the cure be served then the priviledge of Infancy Homage and Fealty the worthiest services 6 Amongst the services due to be performed by the Tenant to his Lord homage and fealty are of greatest estéeme in the Law Co. l. 4. 8. b. 2. in Bevils case viz. Homage as the most honorable and the most humble service of reverence as Littleton saith And Fealty the most sacred being performed by an oath And therefore the Law makes more accompt of them then of other inferiour services for the seisin of them is seisin of all other services whatsoever and no distresse for them of any goods or chattels of what
the money before the stealing and the other refused to deliver them then for this default in him he shall be charged for after such tender he kept them upon trust as Bailée and therefore was to look safely to them at his peril â—and devised 〈◊〉 be sold 6 If a man seised of Lands deviseth that his executors shall sell it Co. ib 112. b. 3. 113. a. 2. 181. b. 2 and he maketh two executors and dieth In this case if one of the executors before sale thereof die or refuse at the Common Law before the Statute of 21 H. 8. cap. 4. the land could not have béen sold by the surviving executor because the power given them by the will being but a bare authority it ought strictly to be observed Dier 177 32. 2 El. and they ought both to joyn in the sale but if a man deviseth lands to his executors to be sold and he maketh two executors and the one dieth yet the survivor may sell the land because they had not a bare trust onely but also a trust coupled with an interest and therefore as the state so also the trust shall survive c. â—der upon â—ortgage 7 Vpon a Mortgage if a stranger that hath no interest in the land Co. ib. 206. b. 4. Littl. § 334. will of his own head take authority to tender the moneys c. the Feoffée is not bound to receive them but if the Mortgager die his heir within the age of 14 yeares and the land being holden in soccage the next of the kinne to whom the Land cannot descend being his Guardian in soccage may tender in the name of the heir because he hath an interest as Guardian in soccage Also if the heir be within the age of 21 yeares and the land is holden by Knight service the Lord of whom the land is holden may make the tender for his interest which he shall have when the Condition is performed for these in respect of their interest are not accounted strangers c. â—ditions in 〈◊〉 upon trust 8 If an Office of Parkership be granted or descend Co. ib. 233. b 4 to an infant or Feme covert and the conditions in Law annexed to that Office which require skill and confidence be not observed and fulfilled the Office is lost for ever because as Littleton saith § 379. that implicite condition of skill c. is as strange as an expresse condition but if a lease for life be made to a feme covert or an infant and they by Charter of feofment alien in fée the breach of this condition in law that is without skill c. is no absolute forfeiture of that estate So it is likewise of a condition in law given by Statute which giveth an entry onely As if an Infant or feme covert with her husband aliens by Charter of feofment in Mortmain this is no bar to the Infant or feme covert because these conditions endeavour to defeat an Interest onely but the other an Interest mixed with a trust and confidence Co. ib. 258. a. 4. 9 If a man makes a letter of attorney to deliver seisin to I. S. upon condition and the Attorney delivereth it absolute this is void Livery of sâ—â—sin And so some hold if the warrant be absolute and he delivereth seisin upon condition the livery is void because he ought to pursue his Warrant c. Co. ib. 265. b. 1. 10 If a man by his last Will devise Power of Râ—vocation that his executors shall sell his land and dieth If the Executors release all their right and title in the land to the heir this is void for that they have neither right nor title to the land but onely a bare authority which is not within the case a release of a right And so it is if Cesty que use had devised that his feoffées should have sold his land Albeit they had made a feoffment over yet might they sell the use for their authority in that case is not given away by the livery because in these cases the power or authority extendeth onely to the use of a stranger and nothing for the benefit of him that makes such release or feoffment It is otherwise where the power or authority doth also respect the benefit of the releasor as in the case of the usual powers of revocation when the feoffor hath power to alter change determine or revoke the uses being intended for his benefit for in that case he may release and where the estates before were defeasible he may by his release make them absolute and seclude himself from any alteration or revocation as it was resolved in Albanies case in the 1 Rep. 112 113. Co. l. 1. 112 113. in Albanies Case Co. ib. 310. 2. 3. Littl. §. 552. 11 Attornment is a kind of power which the tenant c Attornmeâ—t hath to make perfect the grant of a reversion remainder rent c. And therefore it ought to be always strictly and exactly directed according to the grant As if the Lord first grant his services in fée to one and afterwards to another for life and the tenant first attorns to the last grantée In that case he cannot after attorn to the first grantée to make the fée-simple pass for that would not be according to the grant but in that case the Attornment to the first is countermanded And so it is if a reversion expectant upon an estate for life be granted to another in fée and after the Grantor before Attornment confirms the estate of the Lessée in tail the Attornment to the Grantée for the Fée-simple is void In the same manner if a Reversion upon an Estate for years be granted in fée and the Lessor confirm the estate of the Lessée for life he cannot afterwards attorn c. Co. ib. 365. b. 3. 12 Warranties are favoured in Law Warranty Estopples because they are matter of interest whereby a mans estate is the better assured It is otherwise of Estopels because they are matter of limitation whereby an Estate is barred Co. l. 9. 75. b. 3. in Combes Case 13 If man hath a naked authority coupled with a confidence Executors Cestuy quâ— as Executors have to sell land they cannot do it by Attorney but if a man hath authority as absolute Owner of the Land there he may do it by Attorney as Cesty que use might after the Statute of 1 R. 3. and before the Statute of 27 H. 8. For Cesty que use had absolute authority to dispose of the Land at his pleasure without any confidence reposed in him as appears in 11 Eliz. Dyer 283. and there also a Iudgement in 25 H. 8. is cited which agrées with it against the opinion of some Iustices in 9 H. 7. fol. 24. So likewise a Copiholder Copyholâ— Power to make Leâ— who hath not a bare authority onely to surrender but likewise a customary estate of
304. a. 4. the pleadings were nothing curious but plain and sensible ever having Chief respect to matter and substance and not to formes of words and were often holpen by a quaesitum est and then the questions moved by the Court and the answers by the parties were also entred into the rolle c. â—â—â—ding 17 Albeit a plea as to the forme be grosse and ignorant Co. l. 1. 42. a. 4. b. 3. 52. b. yet if good in substance it shall be adjudged sufficient In Alton woods Case â—ate of a â—eed 18 If a déed beare date after the delivery Co. l. 2. 4. b. Goddares ca. and after the decease of the party to whom it is delivered yet is it sufficient as if an obligation beare date the 4 of April 24 El. and the Obligor delivers it as his déed 30 July 23 El. and the Obligée dies before the date yet this obligation is good for albeit the Obligée in pleading cannot alleadge the delivery before the date as it is adjudged in 12 H. 6. 1. because he is stopt to take averment against any thing exprest in the déed yet the Iurors who are sworne ad veritatem diendam shall not be stopt in that Case And the reason hereof is because the date of a déed is not of the substance of the déed for if it want date or have an impossible date as the 30 day of February yet the déed is good there being onely three things of the essence and substance of a déed viz. the writing in paper or parchment sealing and delivery And if it have these thrée although it wants in cujus rei testimonium sigillum suum apposuit yet the déed is sufficient for the delivery is as necessary to the essence of the déed as the putting of the seale unto it and yet it is not necessary to expresse in the Déed that it was delivered c. And from hence it may be observed that if a man bring an Action of debt and count that the Defendant 4. Apr. 24. c. made an Obligation bearing date the same day and years and the defendant pleads non est factum and it is found that the déed was delivered at another day before or after the day that the Plaintiffe hath counted that yet the judgement shall be given for the Plaintiffe in as much as the date is not material and the Defendant cannot be twice charged c. Co. l. 2. 76. a. 4 in the Lord Cromwels Ca. Co. l. 5. p. 2. 26 b. 2. the E. of Rutlands case accords 19 If it be agréed by Indenture Variance in circumstance betwixt fine indenture tâ— prejudice that a fine shall be levied of certain Lands by the name of a certain number of Acres to divers persons and that they shall grant and render the Land again in Fée-simple which shall be to certain uses The fine is levied of the Land but there is some variance in the number of Acres comprised in the fine or the fine is levied to one of the parties onely who grants and renders the Land So that there is variance betwéen the Covenant and fine in number and person Neverthelesse in this Case the fine shall be averred to be to the use of the Indentures For the original bargain and agréement of the parties was declared by writing and albeit there be some little variance found in quantity person time or such other circumstances betwéen the fine and the Indenture yet the Law which in common conveyance hath great respect and regard to the Intent of the parties and to the substance and effect of their original bargaine and agréement will permit averment to agrée the fine and the indenture notwithstanding those little circumstances of number person time and the like when the party averres that there was not any new consideration or new agréement betwixt the partie but that the fine was levied according to the indenture and to the uses and intents contained in the same and indéed it is consonant to justice equity and principally in common assurances of lands betwixt party party that every litle variance in circumstance should not subvert all the substance of the agréement of the parties in their indenturs to the dis-herison of one of them therefore it was adiudged in Taverners case about the 42 of El. that if A. hath 10 acres in Dale B. hath as many in the same town and A. levie a fine to B. of 20 acres and B. grants and renders 20 acres to A. in fée yet A. shall not have the 10 acres of B. unlesse there was a special agréement betwéen them to that effect or otherwise the Conusée should be said to render more then he receives and the difference in the number of acres is but a circumstance c. Co. l. 4. 41. b. 3 in Heydons ca. 20 Exception was taken to an Indictment upon the death of a man because these words in pace Dei Domini Regis were omitted Inditement and albeit in Indictment those words are usually inserted yet the exception was not allowed because such words are not words of substance but onely inserted by way of Amplification to aggravate the heinousnes of the crime c. Co. l. 4. 87. a. 1. in Luttrels ca. 21 Where a man prescribes for a course of water to a Fulling-mill Prescription a water coâ—â— Estovers Roomes Window â— whereas indéed anciently it was a fulling-mill of late time was pulled down and a Grist-mill exected in stead thereof yet if that water course be turned by a stranger In an Action upon the Case c. he may well prescribe for the course of water to his fulling-mill so altered as afore said For the mill is the substance and the thing to be demanded and the addition of Grist or Fulling are but to shew the quality or nature of the mill And therefore in the Register and also in F.N.B. it appears that if a man will demand a Grift-mill Fulling-mill or any other mill the writ shall be general de uno molendino without any addition of Grist or Fulling and herewith agrées 21 Ass Pl. 23. of a Plaint in Assise So likewise if a man have estovers either by grant or by prescription to his house albeit he alter the roomes or chambers of the house as to make that the Hall which was the Parler or that the Parler which was the Hall or make the like alteration of the qualities and not of the house it selfe and without making new Chimneys whereby no prejudice may acrue to the owner of the wood this is no destruction of the prescription for then many prescriptions would be destroyed And although he build new Chimneys or make a new addition to the old house he shall not thereby lose his prescription Howbeit he must not imploy or spend any of the estovers in the new Chimneys or in the part newly added There is the same Law
quando c. damna quicquid quod ipse defendere deber c. judgement shall be given against him â—jâ—ration 2 Albeit in 8 E. 2. Abjuration indefinitely is called a divorce betwéen the Husband and Wife yet every abjuration is not so Co. ib. 133. 23 for such abjuration as amounts to a divorce ought to be either by authority of Parliament or upon ordinary procéeding in Law as in the Case of Tho. of Weyland in 19 E. 1. Neverthelesse in that Case procéeding in Parliament or at Law are but in the nature of circumstance c. Co. ib. 137. b. 3 3 By the wisdome of our Ancients a great deale of solemnity was used in the manumission of Villains Manumission of Villein to the end the memory thereof might take the déeper impression in the mindes of the Assistants for which this was the old Rule Qui servum suum liberat in Ecclesia vel Mercato vel Comitatu vel Hundredo coram testibus palam faciat liberas ei vias portas conscribat apertes Lanceam Gladium vel quae liberorum arma in manibus ei ponat c. Co. ib. 143. b. 1 229. a. 3. Co. l. 5. 20. b. Stiles Case 4 A déed cannot be a déed indented A deed Indented unlesse it be actually indented For albeit the words of the déed be Haec indentura c. yet if it be not indented indéed it is no indenture but if the déed be indented albeit the words of the déed be not Haec indentura c. yet it is an indenture c. Co. ib. 152. a. 4 Co. l. 5. 112. b. 1. in Mallories Case 5 If a Lease for life be made Attornment necessary reserving a Rent upon Condition c. And the Lessor levies a fine of the reversion to a stranger In this Case albeit the Conusée is Grantée or Assignée of the Reversion and so seemes to have power given him of taking advantage of the Condition by force of the Statute of 32 H. 8. cap. 34. Neverthelesse without Attornment he shall not take advantage of the Condition For the makers of that Statute intended to have all necessary Ceremonies and incidents observed otherwise it might be mischievous to the Lessée c. Co. ibid. 216. Litt. § 349. 6 If Land be Granted to a man for two yeares upon Condition Livery that if he pay to the Grantor within the said two yeares 40 marks that thou he shall have Fée But the Grantor gives him no Livery In this Case albeit he pay the 40 Marks within the two yeares yet he shall not have Fée Because there wanted the Ceremony of Livery It had béen otherwise if Livery had béen made unto him c. Co. ib. 218. a. 3 7 Regularly when any man will take advantage of a Condition if he may enter the must enter and when he cannot enter Free-hold â— inheritance â— cannot be â— vested withâ— entry or thiâ— he must make a claime And the reason is for that a frée-hold and inheritance shall not cease without entry or claime As if a man Grant an Advowson to a man and his heires upon Condition that if the Grantor c. pay 20 li. on such a day c. the State of the Grantée shall cease and be utterly void The Grantor payeth the money yet the State is not revested in the Grantor before a claime and that claime must be made at the Church And so it is likewise of a Reversion or remainder of a Rent Common or the like For there also must be a claime before the State be revested in the Grantor by force of the Condition and that claime must be made upon the Land A fortiori in Case of a feofment which passeth by Livery of seisin there must be a re-entry by force of the Condition before the State be void Co. ibid. 8 A man bargaineth and selleth Land by déed indented and enrolled with proviso that if the bargaine pay Idem c. that then the state shall cease and be void he payth the money the State is not revested in the Bargainer before re-entry And so it is if a bargaine and sale be made of a Reversion Remainder Advowson Rent Common c So it is likewise if Lands be devised to a man and to his heires upon Condition that if the devisée pay not 20 pounds at such a day that his Estate shall cease and be void the mony is not payd the State shall not be dested in the heire before an entry And so it is also of a Reversion Remainder Advowson Rent Common or the like 9 All Déeds and Writings ought to be made in Parchment Co. ib. 229. a. 3. or Paper Writings must â—e in parchment or paper For if a writing be made upon a peice of wood or upon a piece of a linnen or in the barke of a trée or on a stone or the like c. and the same be sealed and delivered yet it is no déed for a déed must be written in Parchment or Paper Because a writing upon such materials is least subject to alteration and corruption 〈◊〉 Sâ—â—t 32 〈…〉 10 It is agréed in 28 H. 8. fol. 28. that where the Statute of the 27 H. 8. c. 10. of Uses provides Co. lib. 5. 112. b. 3. in Mallories Case that the actual possession shall be adjudged according to the use c. yet all circumstances required by the Common Law are to observed viz. actual entry de facto â—o free-hold â—ithout liveâ—y or c. 11 Tenant in taile of an House entring into it saith thus Brother Co. lib. 6. 26 Sharpes Case I here demise unto you my house as long as I live paying 20 li. per annum to me you finding me bord horse c. this amounts not to a demise for life Because there wants livery or some Act which the Law adjudged livery or at least apt words which amount thereunto For delivery of a Charter is an Act but the Law doth not adjudge that livery because it hath another effect viz. to make the Charter his déed as it hath béen adjudged but delivery of a turfe twig or any thing else which comes from the land or of the ring of the doore is good livery So if he saith enter and enjoy it c. that is good although out of the land if within view for that is a delivery of the land it selfe 27 Ass 61. after delivery of the déed upon the land to say have and enjoy the land according to the deed this is good livery so 41 E. 3. 17. after delivery c. upon the land he saith enter God give you joy this is good 37 H. 8. Feofments Br. â—o new lease â—exe entry 12 Vpon a lease for years by Indenture the Lessée covenants and grants Dier 6. 28 H. 8. 1. c. that if he his
frée-hâ—lds and inheritances incorporeal which lie in grant as advowsons and to Rents Commons Estovers and the like which Issue out of Lands or Tenements And not onely to such inheritances in esse but also to Rents Commons Estovers c. newly created As a man some say may grant a Rent c. out of the land for life in taile or in fée with Warranty for albeit there can be no title precedent to the Rent yet there may be a title precedent to the Land out of which it issueth before the grant of the Rent which Rent may be avoyded by the recovery of the Land in which Case the grantée may help himselfe by a warrantia cartae upon the special matter and so a Warranty in Law may extend to a Rent c. newly created as in Case of a Rent granted upon exchange or for owelty of Partition â—arranty â—es bind the â—eg 17 King H. 3. gave a mannor to Edmond Earle of Corne-wal Ibid. â—70 b. 1 Pl. 134. and 553 554. and to the heires of his body saving the possibility of Reverter and died The earle before the Statute of W. 2. de donis c. by déed gave the said Mannor to another in fée with Warranty in exchange for another Mannor and after the said Statute in the 28 of E. 1. dieth without Issue leaving assets in fée-simple which warranty and assets descended upon E. 1. as Cosin and heire of the said Earle viz. Son heire of H. 3. brother of Rich. E. of Cornewal father of the E. Edmund And it was adjudged that the King as heire to the Earle Edmund was by the Warranty and assets barred of the possibility of Reverter which he had expectant upon the said gift albeit the Warranty and assets descended upon the natural body of E. 1. as heire to a subject and E. 1. claimed the said Mannor as in his Reverter in Jure Coronae in the capacity of his body Politique in which right he was seised before the Gift Ibid. 372. b. 4 Co. lib. 2. 16. Wisemans Ca. 18 If Prince Henry Son of H. 7. had made a Gift in tail An intaile â—â—mainder in the King cannot be barredâ— the Remainder to H. 7. in Fée which Remainder by the death of H. 7. had descended to H. 8. so as he had the Remainder by descent yet might Tenant in tail barre the Estate tail by a common Recovery notwithstanding the Statute of 34 H. 8. 20. But if H. 7. in consideration of money or of assurance of Land or for other consideration by way of Provision had procured Prince H. by déed indented and enrolled to have made a Gift in tail to one of his Servants and subjects for recompence of service or other consideration the Remainder to H. 7. in Fée and all this appear upon Record This is a good provision within the said Statute and the Tenant in tail cannot by a common recovery barre the Estate tail Ibid. 384. b. 2 19 In a formedon in descender it is a good plea to say Warranty 〈◊〉 assets a good plea against the Issue in tail that the Ancestor of the demandant exchanged the land with the Tenant for other lands taken in exchange which descended to the demandant whereunto he hath entred and agréed or if the demandant hath not so entred and agréed then may the Tenant plead the Warranty in law and other assets descended for in such Cases there ought to be quid pro quo Ibid. 390. a. 4. 20 Tenant in tail maketh a feofment in Fée with warranty Remitter suspended by warranty anâ— assets and disseiseth the discontinuée and dieth seised leaving assets to his Issue some hold that in respect of this suspended warranty and assets the issue in tail shall not be remitted but that the discontinuée shall recover against the Issue in tail and he take advantage of his Warranty if any he hath And after in a Formedon brought by the Issue the discontinuée shall barre him in respect of the Warranty and Assets and so by such mutual recompence every mans right is saved Ibid. 23. 2. 21 If one make a feofment in Fée without valuable consideration to divers particular uses Use remaiâ—â— in the Feoffor so much of the use as he disposeth not is in him as his ancient use in point of Reverter It is otherwise if he make such a feofment for money or other valuable consideration Co. l. 1. 24. 2. 3 Porters Case 22 If a feofment be made to superstitious and unlawful uses A consideration makes thâ— feoffees seiseâ— to their own use the Statute of 23 H. 8. 10. makes the uses void but the feofment remaines good and the feoffées shall stand seised to the use of the feoffor and his heires but if in that Case the Feoffor shall reserve 1 d. Rent or receive from the Feoffées 1 d. consideration upon the feofment the Feoffées shall be seised to the use of themselves and their heires Co. ib. 106. a 4. 23 In Shelleys Case albeit the Recoverée died before execution Recovery iâ— value yet the judgment being to recover in value the Issue is thereby barred because he is thereby to have recompence Cited in the Rector of Chedingtons Case Co. l. 1. 154. a. 2 24 The Lord Paget An use must have good consideration being seised of the Mannor of A. B. c. covenants with I. S. and others that in consideration of the discharge of his funerals and payment of his debts and legacies out of the profits of his land and for the advancement of his Sonne and others of his bloud he and his heires would stand seised of the said Mannors to the use of the said I. S. c. for the life of the said Lord Paget and after his death to the use of Ch. P. and others for the term of 24 yeares and after the expiration or end of that term then to the use of Sir William Paget his Son in taile with divers remainders over and after the Lord Paget was attainted of treason In this Case it was adjudged that the term to Ch. P. c. was void because there wanted good consideration in as much as Ch. P. c. were strangers to the consideration aforesaid But if he had made them executors so that they might have béen chargable towards the payment of his debts and so made privy to the consideration then had such consideration béen good and the Estate made to them had also béen good â— general â—â—sideration 〈◊〉 good 25 An use cannot be raised by any covenant or Proviso C. l. 1. 176. a. 1. Mildmays Case or by bargaine and sale upon a general consideration and therefore if a man by déed intended and inrolled according to the Statute for divers good considerations bargaine and sell his land to another and his heires nihil inde operatur for no use shall be raised upon such general consideration
1 Necessity Co. Inst p. 1. 48. b. 3. 1 If a man maketh a Charter of feofment Livery in view and delivers seisin within the view the feoffée dares not enter for feare of death but claimes the same this shall vest the frée-hold and inheritance in him Albeit by the livery no Estate passed to him neither in déed nor in Law and this is by reason of the necessity So as such a claim shall sorve as well to vest a new Estate and right in the feoffée as in the Common Case to revest an ancient Estate and right in the disseisée c. And so note that for necessities sake a livery in Law shall be perfected and executed by an entry in Law Lit. § 179 Co. ib. 119. a. 3 2 If a man let land to another for life saving the Reversion A reversion vested by claim onely As also an â—vowson and a Villein purchase the Reversion of the Lessor In this Case the Lord of the Villain may presently come to the land and claim it at the Lord of the Villein and by this claime the Reversion is forthwith in him for he cannot enter upon the Tenant for life and if he stay till after his dâ—ath then he may perhaps come too late for the Villain may have granted â—t to another So it is also where a Villain purchaseth an Advowson for if the Lord claim it at the Church it shall be thereby vested in him Litt. §. 180. Co. ib. b. because if he should stay until the incumbent die and then present his Clerk the Villain might grant it away before and so the Lord should be outed of his presentment Co. ib. 13. a. 1. 3 In a writ of right of Dower brought in the Court of the heire Protections not alowablâ— a protection is allowable because the procéedings there may be spéedy the Court being kept every thrée wéeks but in a writ of Dower unde nihil habet no protection is allowable because the Demandant hath nothing to live on So also in a Quare Impedit or assise of darreine presentment a protection lyeth not for the eminent danger of the laps nor yet in a Quare non admisit because it is grounded upon the Quare Impedit Co. ib. 42 a. 3 Co. l. 7. 7. a. in 1 Milbornes Case also 12 E. 3 dist 170. 11 H. 7. 5. 4 For a Rent or service the Lord cannot distraine in the night Distresse in the night but in the day time onely and so it is also of a Rent-charge but for dammage fesant one may distraine in the night otherwise it may be the beasts will be gone before he can take them And with this accords 10 E. 3. 21. See Mackallies Case Co. l. 9. 66. a. 2. Vide infra R. 128. E. 2. Co. Inst p. 1. 172. a. 2 5 The full age of an Infant to make all his Acts good is 21 yeares An infant bound in 〈◊〉 Cases yet an Infant may bind himselfe to pay for his necessary meate drink appâ—â—â— necessary physicke and such other necessaries and likewise for his good teaching and instruction whereby he may profit himselfe afterwards but if he bind himselfe in an Obligation or other writing with a penalty of the payment of any of these that Obligation shall not bind him Also other things of necessity shall bind him as a presentation to a benefice for otherwise the last would incur against him â—â—ne upon â—â—ndition reâ—â—sted but not as it was at the time of the granâ— 6 Regularly it is true that he who entreth for a Condition broken shall be seised in his first Estate or of that Estate Co. ib. 202. a. 4 which he had at the time of the Estate made upon Condition yet if Cestuy que use after the Statute of R. 3. and before the Statute of 27 H. 8. had made a feofment in fée upon condition and after had entred for the condition broken In this Case he had but an use when the feofment was made but now he shall be seised of the whole Estate of the land And this is for necessity because by the feofment in fée of Cestuy que use the whole Estate and right was devestes out of the feoffées and therefore of necessity the feoffor must gaine the whole Estate by his entry for the condition broken Claime may be made where entry is not lawful 7 In some Cases for necessities sake a continual claime may be made by him that hath right and yet cannot enter Co. ib. 150. b. 2 As if Tenant for yeares Tenant by Statute Staple Marchant or Elegit be outed and he in the Reversion disseised the Lessor or he in the Reversion may enter to the intent to make his claime and yet his entry as to take any profits is not lawful during the term And in the same manner the Lessor or he in the Reversion in that Case may enter to avoid a collateral warranty or the Lessor in that Case may recover in an Assise and so as some have holden may the Lessor enter to avoid a discent or a warranty Claim may be where entry not lawful or perilâ—â—s 8 If the Disseisée make continual claime Co. ib. b. 3. and the Disseisor die seised within the yeare his heire within age and by office the King is entitled to the wardship albeit that entry of the Disseisée be not lawful yet for necessities sake he may make continual claim to avoid a discent So also where entry is lawful Litt. §. 419. but for feare the Disseisée dare not enter in this Case claime as néere to the house and lands as he dare go amounts to an entry and shall vest the possession and seisin of the tenements in him as wel as if he had entred indéed Litt. §. 434. So it doth also if in such Case it be done onely by his servant or Bailiff in Case the disseisée himselfe le languisant or a Release so that he cannot claime the tenements himselfe Where wager of Law 9 In an Action of debt by a Gaoler against the prisoner for his victuals the defendant shall not wage his Law Co. ib. 295. a. 4 for he cannot refuse the prisoner and ought not to suffer him to die for default of sustenance otherwise it is for taking a man at large Where wager of Law 10 In an Action of debt brought by an Attorney for his fees Co. ibidem the Defendant shall not wage his Law because he is compellable to be his Attorney And so if a servant be retained according to the Statute of Labourers in an Action of debt for his salarie his Master shall not wage his Law because he was compellable to serve otherwise it is if he be not retained according to the Statute A rent in two Counties inâ—â—e 11 If a man be seised of two Acres of land in two several Counties Co. ib. 153.
Indenture for yeares c. Co. l. 9. 77. a. 2 in Combes Ca. They cannot make Indentures in their owne Names but in the Name of him that gives them warrant But if a man by his will in writing devise that his Executors shall sell his Land and die in that Case the Executors in their owne Names may sell the Land for necessity because he that gave them authority by his will which tooke no effect until after his death is dead And yet in such Case the Devisée is by the Divisor Graine bonum â—eriturum 27 If a man enter into bond conditioned to pay the lesser summe at a day to come if he tender it at the day Co. l. 9. 79. a. 4 Peystets Case he may after plead that tender and shall say uncore prist But if a man be bound by Obligation in 100 quarters of Graine to pay 50 quarters here if the Obligor tender them at the day and the other refuse he shall plead it without saying uncore prist because the Graine is bonum periturum which cannot be kept any time and would be chargeable for the Obligée to kéepe Grant â—f an â—â—â—ce by a â—â—hop good â—â—d not withâ— the stat of 〈◊〉 28 The Bishops grant of an Ancient and necessary Office is by construction exempted out of the general restraint of the Statute of 1 El. for as Bracton saith fol. 247. Illud quod alià s licitum non est Co. l. 19. 61. a. 3 The Bishop of Sarmas Case necessitas facit licitum necessitas inducit privilegium quod Jure privatur And if Bishops should not have power to grant such Offices of service and necessitie for the life of the Grantées but that their Estates should depend upon uncertainties as upon Death Translation c. of the Bishop then persons of best abilities would never serve them in such Offices or at least would not discharge them with alacrity â—â—eed not â—â—â—ed proâ—â—d by witâ—â—es 29 Regularly déeds pleaded in Court shall be produced in Court Co. l. 10. 92. b. 3 Doctor Leyfeilds Case for it were dangerous to suffer them to be proved by Witnesses or by a Copy because the razings enterlivings and other imperfections cannot thereby appeare to the Court nor upon what Condition limitation or power of revocation they were made whereby Truth Iustice and the true reason of the Law might be subverted Neverthelesse in great and notorious extremities as by casualty of fire where all the evidences in his house have béen burnt if that appeare to the Iudges they may in favour of him that hath received such great losse by the sire suffer him upon the general Issue to prove the déed in evidence to the Iury by witnesses least affliction should be added to affliction and if the Iury find it although it were not shewed in evidence this is good enough as appears in 28 Ass P. 3. 〈◊〉 repaire Bankes reâ—â—ed against â—â—al flouds 30 If a man by proscription is bound to repaire a Banke or Wall against water-flouds either salt or fresh and by his default the water breakes in he shall repaire it at his owne charge Co. l. 10 139. a. 3. Knightleys Case and the rest of the parties interessed therein may recover their damages against him in an Action upon the Case But if in such Case he maintaine the Wall or Banke at the usual height in good repaire and by a suddaine an un-usual increase of waters the Wals or Bankes are thrown down or the waters over-flowes the Bankes In such Case the Commissioners of Sewers by the Statute of 23 H. 8. 5. are to tax all persons that have there any Lands Common of Pasture or profit of fishing or may other that may suffer any losse or dis-advantage thereby according to the several quantities of their Lands c. â—int fine â— good exâ—â— in some â—ses 31 A joint fine imposed upon two Capital priviledges in a Léet Co. l. 11. 43. b. 3 Godfreys Ca. because they refused to present with certainty they had payd the Léet was adjudged void because it was jointly and not severally set yet in some Cases a Fine or Amerciament shall be imposed upon divers persons Ioyntly sometimes upon a Towne as for the escape of a Murderer other-wayes upon an Hundred as for a Robbery and sometimes upon a whole County c. and this for necessity by reason of the uncertaine knowledge of the persons offending and the infinity of the number Pl. 9. b. Fogassaes Case ib. 13. b. 2. 32 Effusion of Bloud and the killing of men are prohibited by the Common Law yet every man in his owne defence A tempest excuseth on uncertain agreement with the Custome and as a Champion in trial in a Writ of weigh and the like may kill others and here the one is for the salvation of his life in his defence and the other for the necessity of trial So likewise by the Common Custome of the Realme Inholders are chargeable with the goods of their Guestes being lost or imbeziled out of their houses yet if their houses be broken by the Kings Enemies and so the goods taken from them they shall not be chargeable therewith For in reason such violence cannot be resisted and therefore it shall infringe the violence of the Custome Pl. ibid. 19. b. So in Fogassaes Case in the Commentaries when by reason of the tempest part of the Woad was cast into the Sea and thereby the quantity remaining could by no meanes be discovered before it was landed and weighed the un-certaine agréement made with the Customer before the landing thereof was adjudged good 1 E. 6. cap. 13. and so the rigor of the tempest did excuse the rigor of the Statute Pl. 13. b. 3. in Fogassaes Ca. 33 If a Felon breake Prison Breaking of Prison and â—â—â—verance of Jâ—rors lawfull by necessity it is Felony by the Statute of De frangentibus prisonam yet if the Prison be fired and they that are within breake the Prison to save their lives this shall be excused by the necessity of the change So in 14 H. 7. fol. 29. Bract. Verdict 19. Stamford cap. 7. fol. 15. The Iurors who were sworne upon an Issue for feare of a great tempest forsake the house where they were and dispersed themselves and it was there held that they should not be amercied for it but their Verdict afterwards was held good for the necessity of the occasion whereas otherwise they should have béen â—rievouâ—â—y amercied Pl. 18. b. 2. in Fogassaes Ca. 34 In 22 Booke of Ass Pl. 56. Lawfull to beat a mad man where a man was enraged and of non â—â—nâ—e memoriae and did great hurt whereupon a man together with his parents tooke him bound him and beat him with scourges and it was there holden that they might justifie for the avoidance of the great hâ—rt that he might do being of non sanae
hominis and it is as true Fortior aequior est dispositio Legis quà m hominis â—nt-tenants â—enants in Common Coperceners â—resentation â—dvowson 19 A joint-tenant or Tenant in common shall not have a Quare Impedit for the advowson which they have in jointure or in common F.N. B. 34. v. in Case one of them present alone against his companion that so presents but if two Coperceners cannot agrée in presenting the eldest sister shall have the first presentation and so shall also he have that hath her Estate and if either of them be disturbed by the other Copercener either of them shall have a Quare Impedit against the other sister And Coperceners and those who have their Estates shall present as Coperceners ought to do viz. the eldest first and then the second after her the third and so the rest in order according to their ages and the diversity betwéen joint-tenants or tenants in common and Coperceners ariseth from this ground because they are in by grant which is the act of the party but these are originally in by act in law 20 If an Abbot make waste in the Lands which he hath in ward F.N.B. 60. m. and dies the Successor shall not be charged therewith because his death is the Act of God it is otherwise if he be deposed for then the Successor shall be chargable with it because that is the Act of the party â—â—d Mesne 〈◊〉 Tenant â—rnment 21 If there be Lord Mesne and Tenant Co. Inst p. 1. 221. b. 4. Litt. §. 583. and the Lord grant by fine the services of his Tenant to another in fée here if the services of the Mesne be arreare the grantée shall not distraine the Tenant before attornment Howbeit if the grantée die without heire whereby the mesnalty escheats to the Lord Paramount in that Case if the services of the Mesnalty be arreare the Lord Paramount may distraine the Tenant without attornment because the grantée came to the mesnalty by the act of the party but the Lord Paramount comes to it by Act in Law 〈◊〉 entry in 〈◊〉 more adâ—tageous 〈◊〉 an entry 〈◊〉 Deed. 22 An actual entry into land is meerely the Act of the party Co. ib. 253. b. 4 and therefore is called an entry in déed and albeit a claime be also an Act of the party yet it is also mixt with force of Law and therefore it is called an Entry in Law and is not onely as forcible as an Entry in Déed but because it is as well an Act of Law as of the party it giveth the party a greater priviledge then an Entry in Déed doth for a continual claime of the Disseisée being an Entry in Law shall vest the possession and seisin in him for his advantage but never for his disadvantage and therefore if the Disseisée bring an Assise and hanging the Assise he make continual claime this shall not abate the Assise but he shall recover damages from the beginning but it is otherwise of an Entry in Déed â—â—nce in 〈◊〉 23 Vpon a Lease for yeares by indenture Dier 6. 28 H. 8. 1. c. the Lessée covenants and grants that if he his Executors or Assignes alien it shall be lawfull for the Lessor to re-enter and after he makes his Wife Executrix and dies the Feme takes a new husband who aliens In this Case some hold there is no breach of the Condition because the Baron is in by the Law and not Assignée of the Lessee as it is of Tenant by the Courtesie or Lord of a Villein but others hold the contrary ideo quaere Dier 45. 3. 31 H. 8. 24 A lease is made for term of yeares Devise of a Lease upon Condition that if the Lessée during his life assigne the term to any other without the Assent of the Lessor that then the Lessor may re-enter and the Lessée devised his term by his will to another without Assent c. And by Brooke and Hales this is a forfeiture because the Devisée shall be said to be in by the assignement that the Divisor made during his life but if the Executors had enjoyed the term that had béen no forfeiture because in that Case the Law makes the assignement Tamen quaere Co. Inst p. 1. 310. b. 3. 25 If a reversion of land be granted to an Alien by déed Attornment and before attornment the Alien is made denizen and then the attornment is made In this Case the King upon office found shall have the land for as to the Estate betwéen the parties it passeth by déed ab initio it is otherwise where land is granted to a mâ—n and a woman and they intermarie and then attornment is had for which Vide suprà Pl. 1. Dier 60. 22 23 36 H. 8. 26 There is a diversity Seisure of a villein where the body of a man in execution is set at liberty by authority of Law and when without authority as by the voluntary escape in a Sheriffe or the like For the Law saves all rights as in Case of a Villein to whom the Kings presence is a Sanctuary where the Lord cannot seise him howbeit afterwards out of his presence he may because the Law gives the Villain that priviledge pro tempore but if the Lord himselfe enfranchise him by manumission in déed or in Law for one hower he is frée for ever in favorem libertatis because that is the Act of the Lord himselfe So if a man be taken in execution and be suffered to escape by the Sheriffe this is an absolute discharge of the debt and the Plaintiffe is to have his remedy against the Sheriffe by action of debt Arrest of a Member of Parliament But if a Member of Parliament be arrested by a Sheriffe upon an execution and be afterwards fréed by the priviledge which the law gives him that is no discharge of the debt but that when he ceaseth to be a Member he may be arrested again upon the same judgement c. Dier 68. 24. in Kidwelleys Case 4 5 E. 6. 27 Where demand of Rent is to be made by the law as when no place is assigned for the payment thereof Demand of Rent the law it selfe is the place there it is not sufficient for the party to come to the land ad petendum redditum but he ought to bring witnesses with him and in their presence ought to make an expresse demand of the Rent upon the land as to say here I am and do demand such a Rent or the like albeit none be there present to pay the Rent But when the Rent is by the agréement of the parties payable out of the land the Lessor is not bound to demand it but the lessée is to tender it at his peril Dier 140. Pl. 39. 3 4 P. M. 28 A thing or action personal being once suspended though it be but for an hower is
surrendred and so by consequent if afterwards the Lessée commit waste he is subject to an Action for it â—â—gation 42 If a man be bound to make another before such a time such a release as the Iudge of the Prerogative Court shall devise and appoint Co. l. 52. b. 3. Lambs Case In this Case if the Obligor do not onely the first Act but likewise procure the Iudge to devise and direct the release before the time limited the bond is forfeit for in as much as the Iudge is a stranger to the Condition and the Condition is for the benefit of the Obligor and the performance thereof shall have his obligation he hath undertaken to performe it at his peril â—â—tion 43 If a man be bound to make to another a sufficient and lawful Estate in certain Land by the advise of I. D. Co. ibidem If he make an Estate to him according to the advise of I. D. be it sufficient or not or lawful or not lawful yet he saves the Obligation for if it be in sufficient or unlawful the Obligée may thanke himselfe to make choice of such a man as could give no better direction Fuit dit Co. l. 5. 33. b. 4. in Reades ca. 44 If after the death of a man Execution 〈◊〉 his owne wrong none takes upon him to be his Executor or if he died intestate none takes out letters of administration In such Case if a stranger use the goods of the dead or takes them into his possession which is the office of an Executor or Administrator such stranger may be charged as Executor of his own wrong For the Creditors of the dead person have not in such Case any other Co. ibid. 34. a. against whom they may bring their actions for the recovery of their debts or albeit there be an Executor that Administers yet if the stranger take the goods and claiming to be Executor payes debts and receives debts or pays Legacies and inter-medle as Executor in such Case also by such expresse Administration as Executor he may be charged as Executor of his own wrong Vide Dier 166. 10. 1. El. Co. l. 5. ii5 a. 3 in Wades Ca. 45 If the Lessor demands Rent of his Lessee according to the Condition of re-entry and the Lessée pay the Rent to the Lessor Acceptance counterfeit money and he receives it and put in his purse or pocket and after upon reviewing thereof at the same time he finds amongst the money that he had received some counterfeit pieces and thereupon refuseth to carie away the money but re-enters for the Condition broken In such Case it is said it was adjudged betwixt one Vane and Studley that the entry was not lawful for when the Lessor had once received the money it was at his peril and after such allowance he shall not take exception to it Co. lib. 5. 116. â— 3. Olands Case 46 A Feme Copi-holder of certain land durante viduitate sua Graine sowâ— Durante viduitate according to the Custome of the Mannor sowes the Land and before the severance of the graine takes Baron In this Case the Lord shall have the graine For albeit at the time of sowing the graine the Estate of his wife was uncertain and although her Estate determined by limitation and not by condition either in déed as in Case of re-entry or in Law as by forfeiture yet because it determined by the Act of the Lessée her selfe the Lord shall have the graine and not the Baron So if a Feme seised of land durante viduitate sua make a lease for years and the Lessée sow the land and after the Feme that made the lease takes Baron here the Lessée shall not have the graine for albeit his Estate is determined by the Act of a stranger yet he shall not be as to the Lessor in a better Case then his lessor was and the law imputes it to his folly to depend upon so fickle a thing as the will of a woman especially in point of marriage Co. ib. a. 4. 47 If Tenant at will sow the land Tenant at will sowes graine and after the will is determinned the Lessée shall have the graine but if the lessée himselfe determine the will before the severance of the graine he shall not have them because he hath determined his Interest by his own Act So if Lessor at will be out-lawed whereby the will is determined In this Case the King shall have the profits and the Lessée shall enjoy the graine but if Lessée at will be out-lawed whereby the will is determined in such Case the King shall have the graine Vide 9 H. 6. 20 21. Dier 173. 15. Co. ib. b. 1. 48 If a lease be made to Baron and Feme during the coverture Graine sowâ— divorce and the Baron sow the land and after they are divorced causa praecontractus the Baron shall have the graine and not the Lessor for albeit the suite is the Act of the party yet the sentence which dissolves the marriage is the judgement of law Et judicium redditur in invitum but if a lease be made to one until he make waste and he sow the grain Waste and after make waste he shall not have the graine Vide Max. 30. 34. â—â—faction of â—â—bt by deed 49 In Debt upon an Obligation of 10 l. the Plaintiffe pleades Co. l. 5 117. b. 2 Pinnels Case that one F. was bound by the same Déed with him and each of them in the whole and that the Plaintiffe made an acquittance to F. bearing date before the obligation but delivered after by which acquittance he acknowledged himselfe to be paid 20 s. in full satisfaction of the 10 l. and this was adjudged a good barre for if a man will acknowledge himselfe to be satisfied by Déed this is a good barre without receiving any thing Vide 36 H. 6. Barre 17. 12 R. 2. Barre 243. 10 H. 7. Yet payment of a lesse sum in satisfaction of a greater is not good satisfaction because a lesser sum can by no possibility be satisfaction for a greater â—â—re service â—â—tiplied â—â—â—ct 50 If one hold his land of his Lord by an intire annual service Co. l. 6. 1. b. 3. in Bruertons Case as a Spurre Horse or the like and after sels parcel thereof to another in this Case the alienée shall hold by the same intire service because such intire service cannot be apportioned and the land is severed by his owne Act So also if in such Case the Lord purchase parcel of the tenancy such intire services are gone in like manner as if the Lord had released his Seigniory in part of the tenancy because he hath discharged part of the land by his own Act. â—â—rneys acâ—â—nts 51 When a writ abates by default of the Clerke Co. l. 6. 10. a. 2 in Spencers Case as for false
he may have an Action of Trespass against the Lord or Bailiff F.N.B. 9. g. 10 Vide sup Max. 118. R. 24. Parceners where parceners or heires in Gavel-kind may have a writ de rationabili parte or a Nuper obiit being ousted by one of their Coparceners Sée also suprà Maxime 118. Rot. 25. F.N.B. 21. c. 11 If a man be vouched and enter into Warranty and loseth Vouchee and Tenant by receit may havâ— a writ of Error he may have a writ of Error and assigne the Errors which have hapned betwixt the Demandant and the Tenant or betwixt the Demandant and the Vouchée So likewise he in reversion who prayes to be received for default of the Tenant for life or for his faint pleading here albeit he be received and plead and lose yet may he have a writ of Error and assigne the Errors that have hapned betwéen the Demandant and Tenant and the Demandant and him that so prayed to be received F.N.B. 99. b. 12 In a praecipe quod reddat against Baron and Feme Baron and Feme may have error at the Grand Cape the Baron appeares in proper person and the Feme by an Attorney who hath not sufficient warrant and thereupon judgment was given upon the default of the Feme against Baron and Feme c. yet if they were not duely summoned they may bring their writ of Error to reverse that judgment F.N.B. 135. d. 13 A man may have a Warrantia Cartae Recovery in value albeit he may vouch in the Action that is brought against him and if he recover in the Warrantia Cartae and afterwards lose in the Action brought against him in which he hath vouched him against whom he hath recovered the warranty then shall he have a writ of habere facias ad valentiam c. maintainable within a yeare after the recovery to recover in value according to his losse Plow 96. a. 1. 14 For Heriot-service the Lord may either distraine or seise Heriot-service and so he hath two several means to come by it 121 Consensus tollit Errorem When by consent no challenge 1 When in a writ of right the Iury that are to trie the méere right Litt. §. 514. Co. Inst p. 1. 294 a. 2. are once impanelled by the four Knights with the consent of both parties none of the 12 so chosen can be challenged because it is by consent of parties â—â—ebe may be â—â—rged 2 If the Parson of a Church charge the Glebe of his Church by his Déed Litt. §. 528. Co. ib. 300. a. Litt. § 648 Co. 34 3. a. Co. 301. a. 4. and the Patron having fée-simple in the Advowson and the Ordinary confirme that grant such grant shall stand in force according to the purport thereof Because done by the joynt consent of all the parties that can claime any interest in the Advowson So likewise may the Patron and Incumbent of a Chantery donative charge the land upon the same reason because the whole interest resides in them and the Ordinary is not to medle therewith Attornment 3 To avoid many inconveniencies Co. ib. 309. a. 3 Attornment was appointed by the Law which is nothing else but the consent of the particular Tenant to the reversioners grant And therefore it is said in the old Books Si Dominus attornare possit servitiam tenentis contra voluntatem tenentis tale sequeretur inconveniens quod possit eum subjugare Capitali inimico suo per quod teneretur sacramentum fidelitatis facere ei qui eum damnificare intenderet For such consent of the Tenant is conclusive and binds the Tenant to pay the purchaser the Rent and to performe all other services due for or in respect of the land 〈◊〉 facias 〈◊〉 â—â—nsent 4 In a Ejectione firmae upon the issue joyned the Plaintiffe makes suggestion to the Court that he the Sheriffe Co. l. 5. 36. b 4. in Baynehams Case Vide Dier 367 Pl. 40. 21 22 Eliz. and one of the Coroners were of the liveries of the Earle of Worcester and therefore that he had caused the Venire facias to be directed to the other Coroner and the Defendant also confessing the suggestion the venire facias was allowed accordingly and upon the trial the Verdict passed for the Plaintiffe Howbeit afterwards the Court was moved to arrest judgment because the suggestion did not containe principal challenge sed non allocatur because the venire facias was awarded ex assensu partium â—y things â—nsent 〈◊〉 5 A Common Recovery differs from the judgment and procéeding in other real actions Co. l. 5. 40. b 2 in Dormers Case for this reason amongst others because it is had by the mutual consent of the parties 39 E. 3. 1. The Demandant and Tenant consent that two of the four in a writ of right shall be Esquires albeit by the Law they ought to be all Knights and well because by consent 44 E. 3. 3. Trial of Villanage altered from natural trial by consent 7 H. 6. 7. Pleader of feofment in fée upon Condition without Déed and re-entry is good if the other part confesse the Condition 34 E. 3. Title Office de Court 12. If 12 be sworne and one departs another of the Panel by consent may be sworne and with the 11 give the Verdict 11 H. 6. 13. The Court in a Quare Impedit may by consent give longer day then is limited by the Statute of Marlebridge H. 4. The Statutes of 2 E. 3. 20 E. 3. provide that neither for the great Seal nor little Seal Iustice shall be delayed yet when the matter concernes the King onely if he command it it may be stayd F. N. Br. 21. b. 27 H. 8. A Tenure may be created at this day by consent of all notwithstanding the Statute of quia emptores terrarum 6 E. 6. Dier 78. By special consent of the Parties re-entry may be for default of payment of Rent without demand thereof 〈◊〉 by conâ— none 6 In a writ of Error to reverse a fine Co. l. 5. 45. b. Gages Case the Error assigned was for that the writ of Covenant bare Teste the 24 of April returnable 15 Paschal which in truth was 15 of April and so returne before the Teste And it was resolved that per totam Curiam that it should be amended because fines and common recoveries are but common assurances had by the mutual consent of the parties and therefore such mis-prisions may be amended Howbeit in other actions no amendment shall be in such Case So in 18 El. inter Norreys and Braybrooke A writ of Error was brought to reverse a recovery in 19 H. 8. and the Teste was a day after the return neverthelesse because it appeared to be but a mistake of the Clerke and was in the Case of a Common recovery which passeth by consent it was amended Co. l. 6.
and was also capable at the time of the gift whereas when the gift was made shee tooke nothing but in expectancy when shee should become heire per forman doni And yet the law permits her to have a Writ in forme aforesaid least otherwise she should have been without remedy Co. ibid. 47. b. 3. 2. The Lord shall not have an action of debt for reliefe or for escuage due unto him because he hath other remedy to recover the same viz. Remedy for releife c. by distresse Howbeit his Executors or Administrators shall have an action of debt for them because they are now become as showers falne from the stock and they have no other remedy Litt. S. 67. Co. ibid. 52. b. 4. 3. If tenements are let to a man for the terme of halfe a yeare or a quarter of a yeare c. in this case if the lessee make waste For waste the lessor shall have against him a Writ of waste and the Writ shall say Quod tenet ad terminum annorum but he shall have a speciall Declaration upon the truth of the matter and the Count shall not abate the Writ and the reason is because he can have no other Writ whereby the wrong done him may be remedied And therefore albeit the Statute of Glocester ca. Co. ibid. 54. b 4. 5. which giveth the action of waste against the lessee for life or yeares which lay not against them at the common Law speaketh of one that holdeth for terme of years in the Plurall number neverthelesse although it be a penall Law whereby treble damages and the place wasted shall be recovered yet a tenant for halfe a yeare being within the same mischiefe shall be within the same remedy though it be without the letter of the Law causa qua supra Co. Inst pars 1. 56. a. 1. 4. If Lessee for yeares be disturbed of his way An action for a publick nusance for remedy thereof he shall have his speciall action upon the case but if it be a common way to avoyd multiplicity of suits it ought to be presented and reformed in the Leet or Turne and no particular person shall bring any action for it unlesse he suffer particular damage by the nusance as if he and his Horse fall into a ditch so made in the common way or the like which happeneth not to others Howbeit in the Kings Bench in a case betwixt Westbury and Powell it was adjudged that where the Inhabitants of Southwarke had by custome a watering place for their Cattell which was stopped up by Powell in that case any Inhabitant there might have an action because otherwise they should be without remedy for that such a nusance is not presentable in the Leet or Turne Co. ibid. 111. a. 4. 5. In Cities and Burrows where Tenements were devisable Ex gravi querela granted to Devisees of Lands if the heire of the devisor had entred and had held out the devisee albeit the devisee might have entred as Lit. saith S. 167. Yet besides the Law ordained a Writ for him called Ex gravi querela and this Writ without any particular usage was incident to the custome to devise because otherwise if a discent had been cast before the devisee had entred the devisee had been without remedy there being no other way provided for him to recover his land Litt. S. 179. Co. ibid. 119. a. 3. 6. If a Villain purchase a Signiory rent or other profit out of land Claime of a Reversion c. by the Lord of a Villain or a reversion after an estate for yeares life in taile by Statute Merchant Statute Staple or Elegit and attornement is made unto him according to the grant in such cases the Lord may come upon the land and claime the reversion and in so doing shall not be adjudged a trespasser for he hath no other means to come by the reversion because if he should stay untill the reversion should fall the Villain might alien it to another before his entry and so prevent him of his just title thereunto Also upon grant of an Advowson to a Villain claime must be made immediately at the Church though it be then full of an Incumbent Lit S. 180. for if he stay till an avoydance he may be prevented as aforesaid Vide infr 35. Outlawry no plea in Error to reverse it 7. Regularly an outlawed person cannot sue and if hee do Co ib. 128. a. 4. it is a good plea in disability of his person to say that he is outlawed yet in a Writ of Error to reverse an Outlawry Outlawry in that suit or at any strangers suit shall not disable the Plaintiff because if he in that action should be disabled and were outlawed at severall mens suits he should never reverse any of them Aliens may have actions personall 8. Albeit Aliens though in annuity are excluded from many priviledges that Subjects borne enjoy Co. ib. 129. b. 1. yet such a Alien may maintaine personall actions for an Alien may trade and trafficke buy and sell and therefore of necessity he must be of ability to have personall actions and an Alien that is condemned in an Information shall have a Writ of Error to relieve himselfe Et sic de similibus for otherwise they should be without remedy A Monk canâ— sue c. 9. If a Monk or other spiritual person profest were beaten wounded Co ib. 132. b. 3. or imprisoned he is prohibited to sue as Lit. saith S. 200. because he is a dead person in Law but here the Law gives a remedy for in that case the Abbot and Monke shall joyne in an Action against the wrong doer and if the Writ be Ad damnum ipsius Priores the Writ is good or if it be Ad damnum ipsorum it is good also yet in this case the Abbot or Pryor in his person was not wronged Also if a Monk were by Conspiracy falsely and maliciously indicted of Felony and Robbery and afterwards was lawfully acquitted his Soveraign and he should have joyned in a Writ of Conspiracy and the like There is the same Law also of a Nunne Sanctimonialis mutatis mutandis And if the Law did not provide such a course they might have been injured and left without remedy â— Feme Coâ—â—â— may sue â— be sued 10. A Feme Covert is disabled to sue without her Husband Co ib. 132. b 4. 2 H 4. s 7. a. and yet we read that in somâ— cases a Wife hath had ability to sue and to be sued without her Husband for the Wife of Sir Rob. Belknap one of the Iustices of the Court of Common Pleas who was banished beyond Sea did sue a Writ in her own name without her Husband he being alive whereof one said Ecce modo mirum quod foemine fert breve Regis Non nominando virum conjunctim robore Legis Also E. 3. brought a
transferred and the Law will not in this case suffer the Disseisor to have it because right and wrong cannot cohabit together and therefore it shall rather extinguish So likewise if the Disseisee disseise the heire of the Disseisor here he gaines the estate by wrong viz. by Disseisin having the ancient right in this case if he make Feoffment in fee to another he thereby passeth away the estate which he gained by Disseisin and extinguisheth his ancient right so that the heire when he re-enters shall retaine the Land as well against the Feoffor as against the Feoffee A Disseisor â—â—e onely â—â—ong-doer 20. If a Disseisor make Feoffment in fee Co. l. 11. 51. a. 4. in Rich. Lifords case and the Feoffee cuts down Trees Grasse grain growing upon the ground c. if the Disseisee re-enter he shall not have an Action of trespass vi armis against the Feoffee that came in by title so it is also if he had made a gift in tail or a lease for life or years of the Land because they come in by title but in such case the Disseisee shall recover all the meane profits against the Disseisor as the Disseisee in such cases should have recovered damages against the Disseisor in an Assise at the common Law before the Statute of Glocester cap. 1. There is the same Law also if the Disseisor be disseised an Action of Trespasse doth not lye against the second Disseisor for he may come in by title and if he should be charged he might then be doubly charged viz. both by the Disseisee and also by the first Disseisor and this fiction of Law that the Frank-tenement hath alwayes continued in the Disseisee which ought to be the ground of the Action of Trespass shall not have relation to make him that comes in by title or upon a second Disseisin to be a wrong-doer against whom an Action of Trespass may be brought Howbeit if one disseise me and during the Disseisin he cuts down the Trees Grass graine c. and after I re-enter in this case I shall have an Action of Trespass vi armis against him for the Trees Grass Graine c. for after my regress the Law by fiction as to the Disseisor and his Servants supposeth that the Frank-tenement hath alwayes continued in me and he onely by construction of Law shall be adjudged the wrong-doer which fiction cannot extend to him that comes in by title or upon a second Disseisin c. Co. l. 11. 72. b. 4. in Magdalen Colledge case 21. The Statute of West 2. cap. 5. The King bound The law preserves right Quod quotiescunque aliquis jus non habens tempore hujusmodi custodiarum c. presentaverit c. which was made to suppress wrong shall bind the King And therefore it is well said in 24 E. 3. 41. That the Law is reason and equity to doe right to all and to preserve men from wrong and mischeif for the Law will never make construction against Law Equity and Right Pl. Co. 64. b. 3. â—in Dive and Maninghams case 22. Albeit the Statute of 23 H. 6. 10. Obligation made to defend one for a wrong void which prohibits Sheriffs to take security of persons taken in execution to the end to let them goe at large had not been made yet a Bond had been void at the Common Law For such a Prisoner by the Common Law is not main parnable and then the letting of him goe at large by Mainprise is a wrong and a thing done against the Law and by consequent the Obligation is made to ayde the Sheriff for a wrong done by him in which case even by the order and course of the Common Law the Obligation is void So if an Obligation be made to save one harmless for killing such a man or to commit such a Trespass c. in such cases the Obligation is void by the Common Law And therefore if the Plaintiff in a Replegiare hath a Withernam out of the Common Pleas by force whereof one of the Sheriffs Bayliffs takes foure beasts in the name of Withernam and after delivers them againe to the Defendant and the Defendant is bound to save the Bayliff harmless for the fource beasts who afterwards being damnified brings his Action of debt upon the Obligation In this case as it held by the better opinion in M. 2. H. 4. fol. 9. Fitz. Obligation 13. and Br. 20. the Obligation is void for the Writ of Withernam is Capias in Withernam c. et ea detineas quousque c. so as the Sheriff ought to have kept the Cattell and not to have delivered them to the party for that was a wrong and therefore the Obligation made to defend him for that wrong is void 147. So as none shall take benefit or advantage of their own wrong Litt. S. 19. Co. Inst pars 1. 23. a. 3. 1. Vpon a gift in tail the Rule of Law is Tenure by Knight-service that the Donees and their issues shall do to the Donor and his heires such services as the Donor doth to his Lord Paramont And yet if a man seised in right of his wife of Land holden by Knight-service in tail that Land generally the Donee shall not hold of him by Knight service because his wife held the land and he had nothing but in her right and in that case the Baron having gained a new Reversion by wrong shall not take advantage of his owne wrong but such a Donee shall only hold by Fealty which is incident to all tenures Rent-charge apportioned 2. Regularly a whole Rent-charge is extinct by the purchase Co. ibid. 148. b. 4. or otherwise gaining of the Possession of part of the Land out of which it is issuing And yet in some cases a Rent-charge shall not be wholely extinct where the Grantee claimeth from and under the Grantor As if B. maketh a Lease for life of one Acre to A. and A. is seised of another Acre in fee A. granteth a Rent-charge to B. out of both the Acres and doth waste in the Acre which he holdeth for life B. recovereth in waste In this case the whole Rent is not extinct but shall be apportioned and yet B. claimeth the one Acre under A. and the reason hereof is for that no man shall take advantage of his own wrong Nullus commodum capere potest de injuria sua propria for seeing the waste was committed by the act and wrong of the Lessee he shall not take advantage thereof to extinguish the whole Rent And the whole Rent cannot issue onely out of the other Acre because the Lessor hath the one Acre under the estate of the Lessee and therefore in such case it shall be apportioned So it is also if A. had made a Feoffment in fee and B. had entred for the Forfeiture in that case also the Rent shall be apportioned and not wholely extinct causa qua
Action Also after the escape if the Capias ad satisfaciendum be not returned and filed it may be renued against the Prisoner Co. l. 3. 64. a. 4. Pennants case 22. A man leases his Land Acceptance of rent no confirmation upon condition that the Lessee shall not assigne any part thereof the condition is broken and the Lessor before notice of the assignment accepts the rent due after such assignment In this case the condition being collaterall the breaking thereof may be so secretly contrived that it is not possible for the Lessor to come to the knowledge thereof and therefore notice in this case is materiall and issuable for otherwise the Lessee should take advantage of his owne fraud It is otherwise if a Lease be made with condition of re-entry upon non-payment of the rent for in such case both parties may take notice thereof by the Indenture and therefore by acceptance of the rent afterwards the Lessor dispenseth with the Condition and confirmes the Lease Co. l 3. 76. b. 2. Fermors case 23. A. possessed of divers parcells of Land within the Mannor of S. for years at will and by copy and also of others there in fee Fine no barâ— to the Lord. demiseth the whole to B. for life and thereupon levies a Fine to B. c. of so many acres as amount to the whole Land continues possession and payes the rents to the Lord In this case albeit five yeares passe yet the Lord is not barred for it is unreasonable to give the Lessee benefit in this case of the Lessors non-claime when the tort and covin of the Lessee is the cause of his non-claime for a man shall not take advantage of his owne covin or wrong Co. l. 4. 82. a. 4. Sir Anthony Corbeâ—s case 24. A. deviseth his Land to B. till eight hundred pounds be raised for the preferment of his Daughters and dyes Devise to raise money C. his heire conceales the Will enters and dyes In this case B. shall have allowance for the time that the Will was concealed and shall hold the Land so much the longer according to the time that the Will was so concealed untill the eight hundred pounds may be raised for it is against reason that the heire should enter upon the Land so much the sooner because his concealment of the will was a wrong and then he should take advantage of his own wrong Waste in a Colemine 25. A. demiseth a Close to B. wherein there is a Colemine un-opened Co. l. 5. 12. b. 3. in Sanders case B. opens the Mine and assignes his terme to C. except all Mines C. digs Coles out of the Mine and A. brings an Action of waste against C. in this A. shall recover locum vastarum and the exception shall not excuse it for the opening of the Mine by B. was a tort and that being committed if B. should excuse or avoid it by the exception he should thereby take advantage of his own wrong 26. If A. grants to B. one hundred cords of wood to be cut downe and taken by the assignment of A. If A. in convenient time after request by B. do not assigne them B. may take them himselfe without any assignment Co. l. 24. b. 4. in Sir Thomas Palmers case for the Grantor in such case by his own act or default shall not derogate from his grant nor take advantage by such his neglect of non-assignment there is the same Law of Estovers c. to be assigned by the Bayliff of a Mannor c. Executor de son tort 27. An Executor of his own wrong shall not retaine goods in his own hands to satisfie his proper debt Co. l. 5. 30. b. 3. in Coulters case for then he should take advantage of his own wrong which the Law will not permit Age not allowed 28. Regularly in all reall actions at the Common Law Co. l. 6. 4. b. 3. in Markals case if the Tenant be within age and in by descent he shall have his age Howbeit if the Action be founded upon his owne wrong as in Cessavit upon his cesser in such case he shall not have his age For then he should take advantage of his own wrong After Judgement the bond not valid 29. A. hath Iudgement in an Action of debt upon an Obligation Co. l. 6 45. b. 2. in Higgens case the Defendant brings a Writ of Error and hanging the Writ of Error the Plaintiff brings a new Action of debt upon the same Obligation but it was adjudged he could not for untill the Iudgment be reversed by Error the Obligation remaines quasht and if there be Error in the proceeding that is the Plaintiffs fault and he shall not take advantage of his own tort or default Release to a Joynt-tenant 30. A. and B. are Ioynt-tenants for life Co. l. 6. 78. b. The Lord of Abergavenies case and Iudgement is had against A. in debt who releaseth to B. and B. dyes In this case albeit the terme is expired so as the Reversioner may enter yet the Land shall stand charged with the Iudgement during the life of A. for otherwise A. should take advantage of his own Act and thereby avoid the debt and Iudgment of the Creditor who is a stranger to the release Action upon the case 31. A. recovers against B. in the Common Pleas and dyes Co. l. 7. 4. b. 2. in Bulwers case C. upon the Iudgment in the name of H. outlawes B. in the Hustings of London die lunae proximum post festum Simonis Judae and thereupon P. is taken by a Capias Utlagatum in Norfolke and there imprisoned whereupon B. brings an Action upon the case against C. Quia maliciose deceptive machinatus est c. And in this case it was objected that the Capias Utlagatum was erronious because the Outlawry was therein recited to be proximum ante festum c. but that exception was not allowed because the error in the Writ which the Defendant C. had tortiously pursued shall give no advantage to himselfe but in as much as B. the Plaintiff was imprisoned and molested thereby he had thereupon good cause of Action The heire not estopt 32. Where Lands were conveyed to Baron and Feme Co. l. 8. 53. b. 3. in Sims his case 18. E. 3. fo 9. and to the heires of the Baron and the Baron gives them in tail the Baron dyes the Feme recovers the Land against the Donee by a writ of Cui in vita supposing that she had the Land to her and her heires in fee the Feme after the Recovery enfeoffs another and dyes the Donee in tail dyes without issue the issue of Baron and Feme brings a Formedon in Reverter against the Feoffee of the Feme And in this case albeit the issue was heire to the Feme and thereby estopt by the Recovery in the Cui in
vita to say that the Feme had a lesse estate then Fee-simple yet the issue who claimed the Reversion of the Land as heire to the Baron shall not be bound by that Estoppel made by the Feme although he was heire to her also for then the Feme who had but an estate for life might by her own act have barred the heire that right had and claimed as heire to his Father C. l. 8. 76. a. 2. in the Lord Staffords case 33. If a man make a Lease for years upon Condition Outer by Lessor that if the Lessor out him within the Terme that he shall have fee and the Lessor doth out him accordingly in this case albeit the interest of the terme is by such ouster turned to a right yet the Lessee in such case shall have fee for that such ouster is the act and tort of the Lessor himselfe whereof he shall take no advantage Co. l. 8. 133. a. 4. Turners case 34. In debt against an Executor Executor de layes c. he pleads a Recovery against him in such a Court which amounts to the whole in his hands the Plaintiff replies that the recoverer hath accepted composition and that the Defendant delayes to accept a release with purpose to defraud the Plaintiff In this case the deferring to accept the release is a tort and against the duty of an Executor and therefore cannot helpe him for if any prejudice happen to him thereby it is by his own tort and default and therefore he shall not take any benefit thereby Co. l. 9. 68. b. 4. in Mackallies case 35. Vpon an arrest Resistance by Prisoner if the party arrested submit himselfe peaceably thereunto and gives the Serjeants or Bayliffs convenient leasure to acquaint him with their business they oughtupon demand to shew him their warrant and to let him know the occasion thereof as it was adjudged in the Countess of Rutlands case in the 6. Rep. fo 55. But if he make resistance and obey not their warrant they are not bound to shew it nor c. and if then any of them be killed it is murder for the Prisoner shall not in such case take advantage of his own wrong Co. l. 10. 134. b. 2. in Read and Redmans case 36. In reall Writs originall Summons and severance if he that is summoned and severed dyes which is the act of God the Writ shall abate but taking of Baron or entring into the Land by him that is summoned and severed or where there is no summons and severance shall not abate the Writ but onely make it abateable because these are the parties own acts whereof they shall not take advantage Co. l. 11. 81. b. 1 in Lewes Bowles case 37. If a Tenant for life or years fell Timber Trees Waste or pull down the Houses the Lessor shall have the Timber for the Lessee cannot have them by his demise but as things annexed to the soile And therefore it is absurd in reason that when by his own act and wrong he hath severed them from the Land he should gaine a greater property in them then he had by the demise F. N. B. 59. k. 37. The Tenant may fell Trees to repaire the Houses Waste but if the Houses be fallen into decay by his default if then he fell Trees to repaire them it is waste for he shall not usurp the power of felling Trees to amend the Houses when the cause why they wanted repairing was by his own neglect Pl. Co. 16. b. 4. in Fogassaes case 38. In Fogassaes case in the Commentaries Not weying Woad the not weying of the Woad is referred to the Collector And therefore the Collector shall not by his neglect take advantage in the Kings behalfe of the not weying thereof and by that meanes cause Fogassa to forfeit the same Dyer 30. 205. 28 H. 8. Dyer 42. 9. c. 30 H. 8. 39. The Condition of an Obligation was this Obligation to enjoy peaceably That the Obligor should surrender certaine Copyhold-land and also that he should suffer the Obligee and his heires peaceably to enjoy the Land without the interruption of any The Defendant pleads performance and also that the Plaintiff did peaceably continue the Possession thereof according to the condition for a certaine time and that afterwards the Lord for rent arreare in the Plaintiffs time entred according to the custome for the forfeiture Judgement fâ—action and this was held a good Plea because the reason why the Plaintiff did not enjoy the Land was caused by his own act which in this case shall not worke to his advantage So if the Obligee had been Tenant at the Common Law and had ceased the Obligation had been saved for that it was the act of the Plaintiff himselfe 148. And therefore the Law of it self prejudiceth none Distresse 1. Any goods may be distrained for damage-feasant Co. Inst parâ— 1. 47. a. 4 by reason of the necessity See Max. 110. Ex. 4. and such Distresse may also be made in the night time for the same reason Vide M. 128. E. 2. Howbeit for rent nothing can be distrained in the night time or which cannot be rendred in as good plight as it was in at the time of the Distresse taken as sheaves or shocks of Corne or the like cannot be distrained for rent because when a Distresse is made for rent it is in the custody of the Law and repliviable and during the time it so remains the Law will not suffer the owner thereof to suffer prejudice by the detainer and in such case there is no such necessity but that the Distresse may be made in a seasonable time and of convenient goods Howbeit Wagons or Carts loaden with graine Horses and all may be distrained for rent because they may be restored in the same condition they were in when they were taken And yet Beasts belonging to the Plough averria carucae shall not be distrained nor any Vtensils or Instruments of a mans Trade or Profession as the Axe of the Carpenter the Books of a Scholler c. while other Beasts or Goods which Bracton calls animalia or catalla otiosa may be distrained for that were un-charitable and an injury to the publique whereof the Law if possibly it may be otherwise will not be guilty Vide plus ubi supra Waste against Guardian 2. If the Guardian doth waste Co. ibid. 54. a. 2. and the heire within age brings an Action of waste the Guardian shall lose the Wardship but if the heire bring an Action of waste at his full age he shall then recover treble damages for when the Law at his age of one and twenty years takes away from him his advantage of having the Forfeiture of the Wardship in liew thereof it gives him treble damages because otherwise the Guardian might do him an injury and make him no recompence for it for then
tail enfeoff his Son and another of Land in tail by his Deed in fee Litt. S. 684. Co. ibid 359. a. 4. and Livery of Seisin is made to the other according to the Deed and the Son knowing nothing thereof agrees not to the Feoffment and after he that takes the Livery of Seisin dyes and the Son doth not occupy the Land nor take the profits thereof during the life of the Father and then the Father dyes Here this is a Remitter to the Son because the Frank-tenement is cast upon him by the Survivor and no default was in him for that he never agreed to the Feoffment No damages against the Tenant 21. If a man be disseised Litt. S. 685. Co. ibid. 359. b. 2. and the Disseisor makes Feoffment to A. B. and C. and Livery is made to A. and B. but C. was not at the Livery nor agrees to the Feoffment nor takes any profit of the Land and after A. and B. dyes and C. survives them and the Disseisee brings his Writ Sur disseisin in the per against C. who shewes all the matter how he never agreed to the Feoffment and so he shall be discharged of the damages albeit he was Tenant of the Frank tenement of the Land and that the Statute of Glocester will that the Disseisee shall recover damages in a Writ of Entry grounded Sur disseisin against him that is found Tenant yet here because C. was in no default the Disseisee shall not recover damages against him Release of â—arranty 22. If two make a Feoffment in fee Co. ibid. 393. a. 1. and warrant the Land to the Feoffee and his heires and the Feoffee release to one of the Feoffors the warranty yet he shall vouch the other for the moyety So likewise if one enfeoff two with warranty and the one release the warranty yet the other shall vouch for his moyety causa patet Condition Acceptance Confirmation 23. If a Lease be made rendring rent at a certaine day Co. l. 4. 64. a. 4. Pennants case with clause of Re-entry upon non-payment thereof and the rent is behind two years in this case if the Lessor accept the last halfe years rent all the arrearages are discharged and by such acceptance the Lease is confirmed but if the Condition be that if he alien any part of the Land without the Lessors licence then it shall be lawfull for him to re-enter In this case if the Condition be broken and the Lessor do afterwards accept the rent this is no confirmation of the Lease because such assignment may be done so secretly that the Lessor cannot possibly discover it for in the first case the Lessor may know the time when the Condition ought to be performed but not in the other See the like case adjudged in Com. Banco Mich. 39 40 El. which Plea begins Term. Hill 38 El. Rot. 1302. in Trespasse inter March Curteis Escape 24. The Sheriffs of London at the end of their office Co. l. 3. 71. b. 4. Westbies case delivered by Indenture B. in execution to the new Sheriffs and whereas he was in execution at the Suit of C. and D D. was onely named in the Indenture B. after such Delivery makes an escape C. brings an Action of debt against the old Sheriffs upon this escape and recovers because here the default was in the old Sheriffs for that they did omit the execucution of C. in their Indenture and therefore albeit B. was within the Walls of the Prison after such Delivery over by Indenture yet was he not Prisoner to the new Sheriffs but it was an escape from such Delivery Neverthelesse there was no reason that C. should be without remedy in this case for that no default or negligence could be imputed to him in that mis-carryage Co l. 3. 78. b. 4. in Fermers case 25. Fine levyed by Covin A. possessed of divers parcels of Land within the Mannor of S. for years at will and by copy and of others in fee there demiseth the whole to B. for life and then levies a Fine to him and his heirs of so many Acres as amount to the whole Land continues Possession and payes the rents to the Lord as if no such thing had been done In this case albeit five years passed yet the Lord was not barred and yet in the Statute of 4 H. 7. the saving is of such right as first shall grow remaine c. And there the right first accrued to the Lessor after the Fine in the Forfeiture Neverthelesse the Lord in this case shall not be barred because A. having Lands within the same Mannor and still continuing the Possession and paying the Rents the Lord could not possibly take notice of the Covin So if Lessee for life having Lands in the same Towne levy a Fine the Statute shall be construed against the words and the Lessor shall be allowed five years after the death of the Lessee for life and in that case Non-claime shall not prejudice him because he was forced to it by the Lessee whose Conveyance was so close that he could have no notice that any Fine was levied of his Land Co. l. 4. 10. b. 4. in Bevils case 26. Rents and Services Statute 32 H 8. 2. Limitation The Statute of 32 H. 8. c. 2. for limitation of Rent or Service to have actuall Seisin thereof within forty years c. extends not to such a Rent or Service as by common possibility cannot happen or become due within sixty years as if a Seigniory consists of Homage and Fealty onely for the Tenant may live above sixty years after they are made So if the Service be to cover the Lords Hall or to go with him when there shall be a Warre betwixt the King and any of his Enemies such casuall Services as by common possibility cannot happen within sixty years are not within that Statute neither is the Lord bound by it because it is not his default or neglect that he cannot prove himself seised of the Services within forty years according to the limitation of that Statute There is the same Law of a Formedon in descender for the Tenant in tail may live sixty years after the Discontinuance So likewise if the Lord release to the Tenant so long as I. S. hath heire of his body and sixty years passe and I. S. dye without heire of his body in this case also albeit the sixty years passe yet the Lord may distraine for them when he pleaseth because they are not within the purview of the Statute causa qua supra Co. l. 4 27. a. 2. in Chifton and Molineux case 27. Where a Feme Tenant for life of a Copy-hold takes Baron Waste by Baron Copy-hold and the Baron commits Waste against the custome of the Mannor and dyes the estate of the Feme is in this case forfeited by the act of the Baron because it was her folly to take
such a Husband as would commit Waste But if a stranger commit the Waste without the consent of the Baron that is no Forfeiture because it cannot be then imputed to her folly Co. l. 4. 50. a. 4. in Andrew Ognels case 28. When a thing is due in right and truth Exposition of that and becomes remedilesse by no default in the party to whom it is so due but by the Act of God as by the death of the party or the like In such cases Acts of Parliament which are made to give remedy in such cases ought to have a favourable construction which may extend to advance the remedy proportionably to the mischeif and defect in Law Arrearages recoverable by Executors according to the meaning of the makers thereof And therefore if a man grants a Rent-charge out of his Land and after aliens the Land to a stranger who lets it at will to another the rent is arreare and the Grantee dyes In this case the Executors of the Grantee may distrain for the arrearages by the Statute of 32 H. 8. c. 37. And that the words of that Statute are That it shall be lawfull for the Executor c. to distrain for the arrearages c. upon the Lands so long onely as they remain in the Seisin or Possession of the Tenant in Demesne who ought immediatly to have paid the Rent or of any other claiming by and from him c. Here by the words of this Statute the Executors may onely distrain the Grantor or his immediate Grantee by and from being in the Conjunctive Yet in the case above they may distraine the Tenant at will and the word and shall be taken for or to the end the Lessee at will may be understood to derive his estate from him and so to be comprehended within the purview of that Statute for the reason above alleadged Clergy Appeale 29. By the Statute of 3 H. 7. c. 1. Holcrofts case alleadged in Wrote and Wigges case Co. l. 4. 46. b. An Appeale cannot be brought against the Felon after Clergy had but by consequence before Clergy it may And yet if a Felon be indicted and upon his tryall confesses the fact and prayes Clergy and the Iudges take time and will be further advised and then an Appeale is brought In this case the act of the Court to be advised as to the allowance of the Clergy shall not prejudice the party especially in case of life there being no default in him why he had not his Clergy when he prayed it Benefice Laps 30. If a Clerke be presented admitted and instituted Co. l. 4 79. b. 3. in Digbies case to a benefice with cure above the value of 8 l. and after and before induction to the first he accepts another benefice with cure and is thereunto inducted In this case the first is void by the Statute of 21 H. 8. for the words of the Statute are If any parson having one benefice with cure c. accept and take one other c. and he that is instituted to a benefice is sayd in Law to accept and have a benefice Howbeit although by such institution to the second benefice the first is void by the ecclesiasticall Law without any deprivation or sentence declaratory yet no laps shall in this case incur against the Patron without giving notice to him F. N. B. 35. h. no more then if the Church had become void by resignation or deprivation and yet the Patron may take notice thereof if he please and may present according to the said constitution but he is not bound to take notice thereof at his perill It is otherwise if he had been inducted for then he is to take notice at his perill because the avoydance after induction is declared by act of Parliament whereunto every one is party per Popham totam Curiam Co. l. 5. 13. b. The Countess of Salops case Waste Tenant at will 31. Tenant at will shall not be charged for permissive waste for it is not in his default but in the Lessors he having an uncertaine terme Emblements sowne 32. Tenant for life Remainder in fee Co. l. 5. 85. a. In Henry Knivets case the Tenant for life lets for years the Lessee for years is ousted and the Tenant for life disseised the Disseisor lets for years and his Lessee sowes the Land the Tenant for life dyes the Remainder in fee enters the Lessee of the Disseisor carries away the graine and the Remainder in fee brings an action of Trespasse And in this case it was adjudged that because the Lessee of Tenant for life could not know the end of his terme he had right to the Land and by consequence to the graine as things annexed to the Land and albeit by the death of the Tenant for life his Interest to the Land determined yet the Land being sowen before the death of the Tenant for life his right to the emblements remaines Execution of the body not valuable 33. Vpon a Iudgement in debt Co. l. 5. 86. b. 4. c. in â—lunfeilds case after the Plaintiff hath pursued an Elegit he cannot have a Capias ad satisfaciendum against the body because he hath made his election which he cannot waive so long as the Defendant lives neither yet can he have an Elegit after the party is taken upon a Capias ad satisfaciendum returned serv'd or after the Defendant is in Prison thereupon Howbeit if in such case the party dye in Prison which is the Act of God and can do no wrong the Plaintiff may have recourse to his Elegit or take some other course untill he be satisfied for his death is not the Plaintiffs fault So if there be two bound in an Obligation joyntly and severally and the Plaintiff hath Iudgement against them both and casts them both into Prison out of which one of them escapes and so the debt as to him is discharged and the Plaintiff is to have his remedy against the Sheriff Here albeit the debt seemes to be discharged against the other also because they were joyntly bound and it was but one intire debt yet the other remaining in Prison shall not have his Audita querela but shall there continue untill the whole debt and damages be fully satisfied because corporall Imprisonment is not valuable satisfaction of the debt and it was not in the Plaintiffs default that he did escape Co. l. 5. 10. a in Spencers case 34. Vpon a Writ brought by Journeys accounts A Writ by Journeys accounts Diversity if the first Writ abated by the default of the Demandant himselfe as by his mis-information of the name of the Tenant or of the Towne c. in such case the Demandant shall not have a Writ by Journeys accounts as the Books are in 48 E. 3. 21. 14 H. 4. 23. 22 H. 6. 62. 13 H. 4. Executors 118. But if the Writ abate by the default
uncertainty Bract. fo 5. fo 400. Fleta l. 6. cap. 35. whereof Bracton and Fleta speak notably Sicut Actor una actione debet expediri saltem illa durante sic oportet tenentem una exceptione dum tamen peremptoria quod in dilatorijs non est tenendum quia si liceret pluribus uti exceptionibus peremptorijs simul semel sicut fieri poterit in dilatorijs sic sequetur quod si in probatione unius defecerit ad aliam probandam possit habere recursum quod non est permissibile non magis quam aliquem se defendere duobus bacalis in duello cum unus tantum sufficiat Vide pl. ibid. per totam paginam for departure double Pleas c. Attornement 22. If the Lord first grant the Services of his Tenant to one Co. ibid. 310. b. 1. and afterwards by another Deed of a later date grants the same services to another In this case if the Tenant attorne to the last Grantee it makes his Grant good and albeit he afterwards attorne to the other Grantee yet cannot that make the first Grant good because the Attornement took effect in perfecting the last Grant Howbeit in the same case if the Tenant attorn to them both the Attornment is void to both for the uncertainty so if a Reversion be granted for life and after it is granted to the same Grantee for years and the Tenant attorneth to both the Grants this is also void for the uncertainty A Fortiori if the Lord by one Deed grant his Seigniory to I. Bishop of London and to his heirs and by another Deed to I Bishop of London and to his Successors and the Tenant attorne to both Grants this Attornment is void for both Grants for albeit the Grantee be but one person yet he having severall capacities and the Grants being severall the Attornment is not according to either of the Grants and by consequent void for the uncertainty An uncertaine Deed. 23. If Land be given by Deed to two to have and to hold to them Co. l. 1. 85. a. 1. in Corbets case heredibus it is void for the insensibility and incertainty And although it hath a clause of Warranty to them and their heires this shall not make the first words which are incertaine and insensible to be of force and effect in Law albeit his intent appeare but his intent ought to be declared by words certaine and consonant to Law 24. In an Indenture of bargaine and sale for twenty pounds Dyer 6. 26 H. 8. 3. there are divers Covenants An uncertain Plea and in the end there are these words Ad quas conventiones perimplendas obligo me in 40 l. c. Here in debt brought for the 40 l. payment of the 20 l. is no Plea without an Acquittance albeit proofe may be made of the payment of the 20 l. yet without an Acquittance it remaines uncertaine whether the Covenants were performed and what other agreements there were betwixt the parties by Spilman Fitzherbert and Shelley and 28 H. 8. 25. accords Tamen Quaere for Dyer seemes to be of another opinion Dyer 14. 71. 28 H. 8. 25. If a Feoffment be made to four by Deed Livery without Deed. Livery to one is good for all It is otherwise if it be without Deed for the uncertainty Dyer 17. 95. 28 H. 8. 26. A negative pregnant is disfavoured in Law for the uncertainty A negative pregnant as in a Writ of Entry in consimili casu supposing the alienation to be in fee the Tenant saith that the Tenant for life did not alien in fee which implies that he did alien though not in fee for notwithstanding that Plea the Tenant for life might alien for another life or in tail and therefore no good Plea for the uncertainty Dyer 22. b. 138. 28 H. 8. 27. If a man buy twenty quarters of Graine No Detinue for graine of mony and is to have them delivered at such a place upon such a day and the contract is not performed by the Vendor In this case the Vendee cannot have an Action of Detinue for the Graine for the uncertainty because one quarter of Graine cannot be known from another quarter of the same Graine there is the like Law of Coine Dyer 25. 156. 28 H. 8. 28. An Inquest remained pro defectu hundredorum Defect of Jurors and the Plaintiffs Councell made suggestion to the Court that there were no Freeholders in the Hundred but all Copy-holders and Tenants in ancient Demesne and thereupon prayed Processe de proxim hundred adjacente non potuit habere for the Court are not to beleive the Councels suggestion for the uncertainty thereof but ought to have it ascertained by the returne of the Sheriff who is a sworn Officer Co. l. 1. 84. b. 4. in Corbets case 29. If Land be given to A. in tail the Remainder to B. in tail A perpetuity not good with other Remainders over upon Condition that if any of these shall offer to bar the said estate his estate shall cease as if he were naturally dead and then it shall be to the next in Remainder This is a void Proviso for the uncertainty for Iudges ought to know the intention of the parties by certaine and sensible words which are agreeable and consonant to the rules of Law Co. l. 1. 155. a. 3. in the Rector of Chedingtons case 30. A man possest of certaine Land for sixty yeares in consideration of a marryage to be had betwixt his Son and the Daughter of another Leases void for the uncertainty demiseth the Land to his Son for seventy years to begin after his death and after the Lessor dyes in the case the Lease is good because when the Land is demised Habendum after the death of the Lessor for seventy years there was sufficient certainty and no apparent uncertainty in the Deed as it was agreed in Locrofts case M. 34. 35 Eliz. But if a man possest ef a Lease for forty years grants to B. so many of the yeares as shall be behind tempore mortis suae this is void for the uncertainty as it is agreed in 7 E. 6. Br. Grants 154. and in Pl. Com. 520. b. So if a man have a Lease for life by Deed indented with Proviso that if the Lessee dye within sixty yeares that the Executors of the Lessee shall have it for so many years as shall be behind at the time of his death this is but a Covenant and not a Lease for the uncertainty Vide 3 4 P. M. Gravenors case Dyer 150. a. 22. Ass Pl. 37. Co. I. 2. 3. Mansers case 31. In debt by P. against M. the Defendant pleads the Bond was upon Condition that P. should enjoy the Land An uncertaine Plea which he held by Feoffment from M. discharged and indemnified and that M. and his Son should performe such Acts for further
assurance as by P. should be devised and then he pleads further that he had kept P. discharged and indemnified and sealed a release devised by P. And this Plea was held insufficient for the uncertainty 1. because it should have shewed how the Defendant had kept the Plaintiff indemnified being in the affirmative but if he had pleaded in the Negative not damnified it had been well enough 2. because the Defendant did not shew that the Release concerned the Land An uncertaine covenant to stand seised 32. If I covenant with you Co. l. 1. 176 a. 1. in Milmayes case that in consideration of Fatherly affection and for the advancement of my bloud I will stand seised to the use of such of my Sons or such of my Cousins as you will name upon nomination made the use shall be raised for here the consideration is particular and certaine and the person by matter ex post facto may be made certaine but if I for divers considerations covenant with you that I will stand seised to the use of such an one as you shall name here albeit you name my Son or Cousin yet no use shall hereby be raysed because for the generalty and uncertainty this was void ab initio and no Averment shall make it good or reduce it to any certainty for the intent of the Covenantor was as generall and uncertaine as his words were Neither can the Covenantor in such case reserve power to make Leases for the same reason Uncertaine Grant 33. The King or a common person grants omnia illa messuagia in tenura Johannis Browne scituate in Wells Co. l. 2. 33. a. 3. Doddingtons case whereas in truth they lye in D. in this case the Grant is void for the uncertainty Error 34. In Error Co. l. 3. 2. a. The Marquesse of Winchesters case the Record of a Recovery was of the Mannor of Merleston cum pertin and the Writ of Error was to remove a Recovery of the Mannor of Merleston in Merleston cum pertin this is no good removall of the Record for the uncertainty because the true Record was not removed Tamen quaere Remainder in contingency 35. If A. make a Feoffment to the use of B. untill C. shall returne from Rome into England Co. l. 3. 2. a. 4. in Bonastons case and after such returne from Rome into England to remaine over in fee this Remainder is void for the contingency and uncertainty it being altogether uncertaine whether or no C. will ever returne from Rome into England for when a Remainder is limited to take effect upon the doing of an Act which Act shall be the determination of the particular estate here if the Act depend upon a casualty or a meere uncertainty whether it will ever happen or no in such case the Remainder depends upon an uncertainty and in contingency and therefore shall not vest presently Casualties not devisable 36. If the King grant to one and his heires Co. l. 3. 32. b. 3. Butler and Bakers case bona Catalla felonum 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. 34 H. 8. of Wills because the yearly value of such Hereditaments is altogether uncertaine and therefore they are usually called casualties Dower 37. If Lands be conveyed to a Feme before marriage for part of her joynture Co. l. 4. 3. a. 3. in Vernous case and after marriage more Land is conveyed unto her for her full joynture and in satisfaction of all her Dower and after the Baron dyes in this case if the Son waive the Land conveyed unto her after marriage she shall have the Land conveyed unto her before the coverture and her Dower also in the residue for Land conveyed to a Feme for part of her joynture or in satisfaction of part of her Dower is no bar of any part of her Dower for the uncertainty So if a Debtor give to the Creditor an Horse or any other thing in satisfaction of part of his debt this shall be a bar for no part thereof for the uncertainty Sander 38. In slander Co. l. 4. 17. b. 1. Iames and Ruâ—lech case both the person and scandalous words ought to be certaine and apparent and not to want an innuendo to make them out as when two are talking together of I. S. and one of them saith he is a notorious theife in this case I. S in his count may shew that there was speech of him betwixt them and that the one said of him He innuendo pred I.S. is a notorious Theif for the Office of an Innuendo is to design the same person which was named in certaine before and in effect standeth in the place of a Predict But an Innuendo cannot make that person certain which was uncertaine before as if one say without any precedent Communication that one of the Servants of I.S. he having divers is a notorious Felon or Traitor c. here for the uncertainty of the Person no Action lies and an Innuendo cannot make it certaine so if one say generally I know one neer about I.S. who is a notorious Theife and the like And as an Innuendo cannot make the person certain which was uncertain before so an Innuendo cannot alter the matter or sense of the words themselves as if one speaking of I.S. saith He is full of the Pocks here the Plaintiff cannot say Innuendo the French Pocks for thereby he strives to extend the generall words The Pocks to the French pocks by imagination of an Intent which was not apparent by any precedent words which the Law will not suffer for the uncertainty for it would be inconvenient that Actions should be maintained upon a meer imagination of an intent which appears not by the words upon which the Action is grounded but is altogether uncertaine and subject to a loose conjecture Co. l. 4. 35. a 4. in Bozomes case 39. The Queen grants Totam illam portionem decimorum Grant of tithes c. in D. nunc vel nuper in tenura Io. Corbet and Corbet never had Tithes there this Grant is void for the uncertainty in the case of a common person A fortiori in the Queens Co. l. 4. 40. b. 3. in Yonges case 40. In an Indictment there was this expression Indictment insufficient Unam plagam mortalem circiter pectus and it was adjudged insufficient for the uncertainty for it might be in the neck in the arme or in the belly and an Indictment ought to expresse in certaine as well in what part the mortall wound is as the depth and breadth of it to the end it may appeare to the Court to be mortall and because it was said that he dyed De vulueribus plagis praedict and one of them
defendant pleads Judgement barr to the bond That the plaintif hath recovered upon the same bond and that the judgement thereupon is removed by Error into the Kings Bench and was not yet reversed And this was adjudged a good plea because the judgement takes away the strength of the bond and if after judgement he might sue the same party upon the same bond he might do it infinitely and consequently the defendant might be infinitely amerced for upon every Iudgement the defendant shall be amerced and if he be a Peer of the Realm the amerciament is 100 s. and so the defendant might be infinitely amerced upon one and the same obligation which would be mischievous Et interest Reipublicae ut sit finis litium Co. l. 7. 43. Kenns case 17 A bill of reviver upon a bill of reviver shall not be suffered for the infiniteness Bill of reviver no more than a writ by Iourneys accompts upon a former writ of the same nature for so they might be had infinitely Barrettry 18 A Barrettor is in judgement of Law accounted one of the most dangerous and pernicious vermin in the Commonwealth Co. l. 8. 37. in the case of Barretry because whereas the Law endeavoureth to settle peace and amity and to suppress discord and contention he is seminator litium oppressor vicinorum suorum either by force and open Maintenance of possessions or the like or by fraud and malice under colour of Law as by multiplicity of unjust and feigned sutes Informations or the like to the end he may by that means enforce poor people ad redimendum vexationem to give him money or otherwise to compound with him c. A bitrement 19 Vpon an award albeit the parties do not discover all their differences to the Arbitrators so as they determine some C. l. 8. 98. a. 4. in Baspoles case and leave the rest undetermined yet the award is good because otherwise many Arbitrements might be avoided for the one or the other of the parties may conceal a trespass done to him or some other secret cause of action and so avoid the Arbitrement which were inconvenient for Expedit reipublicae c. Accord 20 Accords are much favoured in Law Co. l. 9. 79. b. 4. in Peytoes case because they prevent and compose sutes and controversies amongst neighbours Et concordiâ parvae res crescunt discordiâ maximae dilabuntur And therefore it was adjudged P. 3 sac rot 1033. that an Accord with satisfaction was a good plea in barr in Eden and Blakes case Fines 21 The general Statute of 32 H. 8. 36. Co. l. 11. 75. a. 1. of Fines shall bind the King though he be not named because it was ordained for the setling and quieting of estates and the prevention of debates and controversies in the Commonwealth in Magdalen College case Assets descended a barr 21 The Statute of Glocester in 6 E. 1. cap. 3. ordains Co. l. 52. b. 4. in Syms case Pl. Co. 110. Fulmerstons case that where tenant by the curtesie aliens his wives inheritance with warranty if assets descend from the heir he shall be barred for the value of the inheritance so descended and if lands after descend that then the tenant shall recover against the heir of the seisin of his mother viz. out of the residu of his mothers lands so much as the assets afterwads descended shall amount unto Here albeit at the making of this Act being in 6 E. 1. there were no intailed lands for all Inheritance was then viz. before Westm ◠being 13 E. 1. feesimple absolute or conditional yet intailed lands are since taken to be within the equity of the said Act of Gloc. but not to retain or recover the lands intailed but only the lands which should so descend because otherwise there would be occasion of new sutes and contention which the Law hates and abhorrs for if the tenant after assets descended might retain or recover the lands intailed then if the assets were aliened the issues inheritable to the estate tail might by writ of Formedon in descender recover the intailed lands again which would beget a new sute and no way answer the Intention of the said Act being indéed a good provision for féesimple lands but not for lands entailed without such a construction by equity as aforesaid And therefore in case of entailed lands so aliened with warranty the tenant shall have a Scire facias out of the Rolls of the Iustices before whom the sute depends to recover the lands descended according to the provision of the said Act of Glocester which in just and proportionable equity agrées with the case of the feesimple lands and the Intention of the same Act. Vide supra 15. 9. infra 186. 8. 179 Circuit of Action Co. Inst part 1. 265. a. 3. 1 Littleton saith § 446. If the father be disseised Rebutter and the son having only a possibility release to the disseisor without warranty such release is void Howbeit if there be a warranty annexed to the release then the son shall be barred for albeit the release cannot barr the right because the son had no right in the land in the life of the father yet the warranty may rebut and barr him and his heirs of a future right which was not in him at that time And the reason which in all cases is to be sought out wherefore a warranty being a covenant real shall barr a future right is for avoiding of circuit of action which is not favoured in Law viz. That he who made the warranty should recover the the land against Terre-tenant and then the Terre-tenant by force of the warranty should have as much land in value against the warrantor which course would occasion Circuit of action and more trouble than needs Mauxels case 7. b. Finch 2 Where the father enfeoffeth his son and heir apparent with warranty and dieth Voucher the son in a praecipe brought against him may immediately vouch his fathers feoffor for the Law will not suffer him to vouch himself according to Max. 54. and so when he comes in as vouchee he may darraign the first warranty to avoid Circuit of Action Finch fol. 14. Fr. Edit F. N. B. 18. f. 3 In false Iudgement against an Abbot the plaintif was non-sute False Judgement and the Abot had a Scire facias against the plaintif to shew cause why he should not have execution returnable quindena Paschae at which day the plaintif appears and assigns his errors and tenders security to sue cum effectu and prays a Scire facias against the Abbot ad audiendum errores and the opinion of the Court was that he might assign his errors against the Abbot without suing out any Scire facias against him Finch pag. 55. 4 In an action of waste upon a lease for years by déed Waste wherein the lessor granteth to the
Copyholders holding of a Manor parcel of the Rectory the Court granted a Prohibition to prevent further waste Hâ—b 62. Paâ—row Lâ—wâ—llyn 33 The privat delivery of defamatory Letters was criminal and censurable in the Starr-chamber and now as it seems Star-chamber inditable in the Upper Bench because such quarrellous Letters tend to the breach of the peace and to the stirring of Challenges and quarrels and therefore the means of such evils as well as the end are to be prevented 187 It moderateth the strictness of the Law it self Co. I st part 1 13. â— 1. 1 A Protection Moraturae or Profecturae have these clauses in them Protection Praesentibus minimè valituris si contingat ipsum c. a custodia Castri praedicti recedere Or si contingat iter illud non accipere vel infra illum terminum a partibus transmarinis redire according to the provision of the Statute of 13 R. 2. 16. nevertheless if he return into England and came over to provide Munition Habiliments of warr victuals or other necessaries it is no breach of the said conditional clauses nor against the said Act for that in judgement of Law coming for such things as are of necessity for the maintenance of the warre Moratur he doth stay according to the intention of the Protection and Statute aforesaid Annuity 2 If A. be seised of lands Co. ibid. 144. b. 2. and he and B. grant a rent charge to one in fée this prima facie seems to be the grant of A. and the confirmation of B. but yet the grantee may have a writ of annuity against both Howbeit if two men grant an annuity of 20 l. per annum to another although the persons be several yet he shall have but one annuity but if the grant be Obligamus nos et utrumque vestrum the grantee may have a writ of annuity against either of them but he shall have but one satisfaction Iudgement 3 An action of trespass was brought against Tilly and Woody for five boxes with charters taken c. Tilly pleads not guilty H. 7. E. 4. fol. 31. Title Judgement 50 Pl. Co. 66. b. 3. Dyve and Maningham and Woody makes title to him by a gift and the plaintif traverseth the gift and thereupon they were at issue and Tilly was found guilty and the issue was found for Woody against the plaintif In this case albeit the issue was found against Tilly yet the plaintif had not judgement against him for it was found betwixt the plaintif and Woody that the plaintif had not title and then in as much as it appeared to the Iudges by the Record that the plaintif had not title they ex officio ought to give judgement against the plaintif The like 4 An action of trespass was brought by lessee for years of Cattel taken the defendant saith P. 10 E. 4. fol. 7. Title Office del Court 7. Br. 29. Pl. Co. ibid. that the Lessor held of him by divers services c. and for so much arrear he took the Cattel the plaintif saith there is nothing arrear c. and hereupon they were at issue and it was found for the plaintif And yet per totam Curiam the plaintif shall not have judgement for albeit the defendant admitted the writ good yet the Court did abate it because it appeared unto them that the defendant was Lord against whom an action of trespass lyeth not Marbr 3. for the Statute saith Non ideo puniatur dominus c. Appeal 5 In an appeal by a feme of the death of her father Pl. Co. ibid. albeit the defendant affirm the writ yet the Court ex officio ought to abate it for it appears to the Court that no feme may have an appeal of the death of any save of her husband by the Statute of Magna Carta cap. 34. which was in affirmance of the Common Law Non est fâ—ctuÌ„ 6 In debt upon an obligation Pl. Co. 66. b. 4. if the defendant conclude his plea with Iudgement si action whereas his plea should have been non est factum yet if the Iustices find that it was not his deed so as the plaintif had no cause of action they ought ex officio to give judgement against the Plaintif Vide 11. 9. Attaint 7 The Statute of 23 H. 8. 3. Dyer 201. 65. 3 El. â— of Attaints lyeth as well against executors as the party himself albeit the party that recovers upon the false verdict be only named in that Statute for that Statute being made in mitigation of the rigor of the Common Law shall be taken by equity and the words against the party that hath judgement are superfluous for it lyes against any that enjoyeth the thing lost 188 Verba semper accipienda sunt in mitiori sensu Slander 1 If one say to another that he is perjured Co. l. 4. 15. b. 1. in Stâ—nhop Blithes case or that he hath forsworn himself in such a Court by these words an action may be maintained for by these words it appears that he hath forsworn himself in a judicial proceeding but to charge another generally that he hath forsworn himself is not actionable because he may be forsworn in usual communication And benignior sententia in verbis generalibus seu dubiis est praeferenda Vide 178 11. Co. l. 4. 15. b. 3. in Yeamans case 2 Yeamans charged Hext being then a Iustice of Peace in these words For my ground in Allerton Hext seeks my life Slander These words being taken in mitiori sensu were not actionable 1. because he may seek his life lawfully upon just cause and his land may be holden of him 2. seeking of his life is too General and for seeking only no punishment can be inflicted by the Law Co. l 4. 17. b. 4. in Iames Rutleches case 3 In an action upon the case for words Slander as an Innuendo cannot make the person certain which was uncertain before so neither can an Innuendo alter the matter or sense of the words themselves as to say that such an one was full of the Pox innuendo the French Pox this Innuendo doth not perform his proper office for it strives to extend the general words the Pox to the French pox by Imagination of an Intent which is not apparent by any precedent words unto which the Innuendo may referr And the words themselves shall be taken in mitiori sensu Co. l. 4. 20. a. 1. in Barhams case 4 Barham brings an action upon the case against Nethershall Slander the words were these Mr. Barham did burn my barn innuendo a barn with corn with his own hands and none but he And it was adjudged that they were not actionable for it is not felony to burn a barn unles it be parcel of a Mansion-house or full of Corn And in this and the like
cases agitur civiliter and not criminaliter and verba accipienda sunt in mitiori sensu Also the Innuendo will not serve when the words themselves are not slanderous Co. l. 6. 6. a. Sir Iohn Molyns case 5 E. 3. is Lord the Abbot of Westm Mesne Tenure and C. tenant of the Manor of D. the tenant is attainted of treason and office thereof found E. 3. grants the Manor to Sir Iohn Molyns and his heirs Tenendum de nobis haeredibus successoribus nostris et aliis capitalibus dominis feodi illius per servitia inde debita de Iure consueta In this case the question was of whom and how this Manor was holden And here albeit it was objected that the Tenendum being by the services inde thence due at which time nothing was due to the Mesne the Mesnalty continued still extinct and therefore that it was holden immediately of the King yet it was adjudged that by those words of the Patent the Mesnalty was revived for when those words may be interpreted two manner of wayes viz. either immediately of the King or mediately by the Mesne reason requires that the words should be understood in the milder sence especially when that appears to be the Kings intention and tends more to his honour and it is not reasonable that the Mesne who offended not should lose his tenure Co. l 6. 6. b. Wheelers case 6 H. 8 grants land Tenure Tenendum de nobis et haeredibus nostris per servitium unius Rosae Rubeae Annuatim ad festum Nativitatis Sancti Iohannis Baptistae solummodo pro omnibus omnimodis aliis servitiis And this was adjudged tenure in soccage in Chief and not tenure in Capite by Knightservice for albeit it was objected that the patentée could not hold onely by the Rose because homage or at least fealty was incident to every tenure and therefore that the King was deceived in his grant yet it was resolved that for as much as fealty is incident to every rent service the Law annexeth fealty to the rent and these words viz. Pro omnibus aliis servitiis are to be understood of other services which the Law doth not imply or add to it so as the tenure shall be by a Rose and fealty and this is the benign construction of Law as near the Kings intention as may be by which construction the said words pro omnibus aliis servitiis have some effect and shall not be rejected as vain and of no force Co. l. 6. 66. b. Sir Moyle Finches case 7 When a Manor hath once had the reputation of a name Name in reputation by which it hath been commonly known albeit the demesnes be afterwards severed from it so as it ceaseth to be a Manor yet in grants fines or other amicable conveyances it may pass still by the name of a Manor but not in Adversary writs c. so if I have a Park by the license and grant of the King and by the name of a Park it is commonly known and after I surrender my patent to the King by which in Law it remains no longer a Park yet it having once obtained the name of a Park in truth it is a good ground for the reputation and continuance of the name of a Park afterwards and by that name may pass in conveyances And all this by a favourable construction of Law c. Remainder vests 8 If land be granted to A. for life the remainder to B. for life Pl. Co. 32. a. 2. in Colthrist Beinshâ—ns case and if B. die living A. that then it shall remain to C for life In this case this word then shall not be intended presently during the life of A. as these words prima facie do seem to import but they shall have a beneficial construction viz. that then it shall remain as a remainder ought to doe that is to say to vest then and to be executed after the death of A. So if a gift in tail be made upon condition that if he doe such an act that then the land shall remain to his right heirs this word then is not so to be understood as if it should avoid the estate tail and to be executed presently upon the act performed but it is to be intended that upon the act performed the remainder shall vest and after the estate ended shall be executed and not before 189. Construeth things according to Common possibility or intendment And therefore Judges 1 Regularly Iudges ought to adjudge according to common intendment of Law Co. Inst part 1. 78. b. 1. Parson 2 By intendment of Law every Parson or Rector of a Church is supposed to be resident on his benefice unlesse the contrary be proved Vide 2 3. Manor 3 By common intendment one part of a Manor shall not be of another nature than the rest A Will. 4 By common intendment a Will shall not be supposed to be made by collusion BonuÌ„ Vicinus Possibilia 5 In facto quod se habet ad bonum malum magis de bono quam de malo lex intendit Lex intendit vicinum vicini facta scire Nulla impossibilia aut inhonesta sunt praesumenda vera autem et honesta et possibilia Guardian Ward 6 Lex semper intendit quod convenit rationi As in this case the Guardian shall have the custody of the land until the heir come to his full age of one and twenty years because by intendment of Law the heir is not able to do Knight service before that age which is grounded upon apparent reason Iurors 7 By the Common Law in a plea real mixt or personal Co. ibid. 157. a. 1. 158. b. 2. there ought to be 4. of the Hundred where the cause of action ariseth returned for their better notice of the cause for vicini vicinorum facta praesumuntur scire Howbeit by the Statute of 27 Eliz. 6. In a plea personal if two Hundreders appear it suffiseth And in an Attaint albeit the Iury is double yet the Hundreders are not double Fee-simple 8 When a man is said to be seised in fee without more Co. ibid. 189. a. 2. Littl. §. 293. it shall be intended in fee simple and it shall not be intended by this word in fee that a man is seised in fee tail unless this addition be put to it fee tail for fée shall be taken secundum excellentiam for the highest and best fee and that is fee simple Verdict 9 If a verdict find that a man hath duas partes Manerii Co. ibid. 190. b. 3. c. in tres partes divisas this shall not be intended to be in common but if the verdict be in tres partes dividendas then it séems that they are tenants in Common by the Intendment of the verdict Co. ibid. 226. a. 1. 10 The Lord by escheat albeit his
c. hereupon C. brings a writ of Error c. and for one of the Errors assigns that albeit Ludlow be a Court of Record yet it is not such a Court as is intended by the Statute for causes of that nature for that the antient usage in all such popular actions or informations hath been that albeit the Informer tam pro domina Regina quam pro ipso exhibits the Information yet if the defendant pleads a special plea the Quéens Attorney shall reply alone and it was intended by the makers of the said Act that the sute should be in such a Court where the Kings Attorney may attend for the benefit which the King may have by such a sute and that is in the four Courts at Westminster And thereupon the Iudgement was reversed Vide Dyer 236. 24. Admission and Institution 32 He that comes in by Admission and institution Co. l. 6. 49. b. 1. in Boswels case comes in by a judicial act and the Law presumes that the Bishop who hath the cure of the Souls of all within his diocess for which he shall answer at his fearfull and final account in respect whereof he ought to defend them from all Schismatiques Heretiques and other Instruments of the devil will not do or assent to any wrong to be done to any Parsonage within his diocess but if the Church be litigious will inform himself of the truth de Iure Patronatus and so do right Peer agâ— 33 The person of a Peer of the Realm or a Countess Baroness Co. l. 6. 52. b. 3. in the Countess of Rutlands case c. by marriage or descent ought not to be arrested for debt or trespass because the Law presumes that they have sufficient in lands and tenements whereby they may be distrained and therefore in such cases issues only shall go out against their lands And albeit a Countess Baroness c. in respect of her sex cannot sit in Parliament yet she is a Peer of the Realm and shall be tried by her Peers as appears by the Statute of 20 H. 6. cap. 9. which is but a declaration of the Common Law Vide plus ibidem Cestuy que use 34 If Cestuy que use had granted his use by his will Co. l. 6. 76. a. 3. in Sir Geo. Cursons case no collusion could have been averred upon such a will to obtain the wardship of his heir for Nemo praeâ—umitur esse immemor suae aeternae salutis et maxime in articulo mortis et omne testamentum morte consummatum est And therefore the Statute of 4 H. 7. 10. which gives the wardship of Cestuy que use makes exception when any will is by him declared Vide 27 H. 8. 14. Divorce 35 Ch. and Eliz. were divorced in the Court of Audience ratione aetatis minoâ—is et impubertatis Eliz. after they had lived ten years together and had issue a daughter Co. l. 7. 43. b. Kennes case and afterwards Ch. marrying another woman by another Sentence in the Ecclesiastical Court the first marriage was declared void the second good and liberty given them ad exequenda conjugalia obsequia The second wife dies and Ch. marries a third wife and hath issue another daughter The last daughter is found heir by office the first traverseth the office by bill in the Court of Wards And in this case it was resolved that albeit the first was in truth a lawfull marriage yet the Sentence of divorce being in force no averment could be admitted against it because the Spiritual Iudge having jurisdiction thereof before the Sentence were repealed it was intended by Law to be Iust and our Law gave credence thereunto for Res Judicata pro veritate accipitur See Dyer 13. pl. 62. Co. l 9. 52. b. 4 in Hickmols case 36 If the Obligee confess himself to be discharged of all bonds betwixt him and the Obligor Release of bonds this by intendment of Law is a release or discharge of all bonds betwixt them for albeit the word discharge is not properly said of the part of the Obligee but of the Obligor for the Obligor is to be discharged yet in judgement of Law such an acknowledgement amounts to a discharge of the Obligor of all such duties Co. l. 9. 109. Meriel Treshams case 37 In debt against an executor he cannot plead quod ipse non habet c. aliqua bona c. praeter bona Plea of Executor c. quae non sufficiunt ad satisfacienda debita praedicta but he ought to plead quod non habet c. bona c. praeterquam bona catalla ad valentiam of a certain summ non ultra quae eisdem debitis obligata onerabilia existunt for the first plea is insufficient for the uncertainty vide Max. 162. pl. 61. and the other he ought to plead because he being privy and representing the person of the testator hath by intendment of Law notice of the certainty and certain value of the goods and therefore in such case ought to plead certainly as aforesaid The like Law is of an administrator for the goods of the Intestate Co. l. 11 13. a. 1. in Priddle and Nappâ—rs case 38 Of Impropriations formerly given to Monasteries Appropriations not only those which were truly Impropriate but likewise such as had been and were so in reputation were given to H. 8. by the intendment of the Statutes of Dissolution for albeit in those Statutes there is a saving of rights yet the Founders Donors c. are excepted out of that Saving so as they are bound by the body of the Act. Co l. 11. 16. a 4. in Doct. G anâ—s case 39 A Prescription Tites that every Inhabitant in the parish is to pay 2 s. in the pound according to the value of their houses yearly instead of Tithes is a good prescription because by intendment of Law the commencement thereof might be lawfull for it might be so by composition for the land before the houses were built 40 It is a Principle in Law that a barr is good if it be certain Plea in barr to a common intent good to a common intent Pl. Co. 28. a. 4. Colchrist Bernshin Vide ibid. 31. a. 33 a. 4. â—6 a. 3. as if a Messuage be demised to A. for life the remainder to B. for life si ipse B. vellet inhabitare in messuagio praedicto c. Here in an Action brought by the lessor for the recovery of the Messuage c. upon the condition broken it is a good barr for B. to say that after the death of A. he entred without averring the time of his entry viz. immediately after the death of A. because by intendment of Law it will be presumed he did so enter So if one plead in barr that A. died seised and that B. entred as son and heir to A. this is a good barr
Lease for life or a gift in tail by déed reserving a rent this shall enure to the tenant for life only during his life and after to him in the reversion for each of them grants that which he may lawfully grant and if at the Common Law they had made a feoffment in fee generally the feoffee should have holden of the tenant for life during his life and after of him in reversion And so it was holden Mich. 36 37 Eliz. in B. R. Release 5 If a man make a lease to A. for term of the life of B. and after release to A. all his right in the land Co. Inst part 1. 273. b. 1. ◠by this A. hath an estate for the term of his own life for a lease for term of his own life is higher and better in judgement of Law than an estate for the term of another mans life So if a release be made to tenant by Statute Merchant or Staple or tenant by Elegit or to Guardian in Chivalry who holdeth in for the value of the marriage by him in reversion of all his right in the land by this a fréehold passeth for the life of him to whom the release is made for that is the best and greatest estate that can pass without apt words of Inheritance viz. heirs Accruer 6 Queen Eliz. being seised of a Reversion in fee upon an estate tail in the Lord Stafford grants it to Tindal in tail Co. l. 8 77. a. 2. in the Lo. Staffords case upon condition to have praedictam reversionem in fee Here these words praedictam reversionem shall not be construed to extend to the estate tail granted before to Tindal but to the reversion in fee. Feoffments 7 The heir of the disseisor being in by descent Co. Inst part 1. 302. b. 1. Littl. §. 534. the disseisee and he jointly enfeoff another in fee by deed and livery of seisin is had thereupon In this case as to the heir the land passeth and the deed enures by way of feoffment and as to the disseisee by way of Confirmation for by construction of Law the land shall ever pass from him that hath the estate of the land in him as if Cestuy que use and his feoffees after the statute of 1 R. 3. 1. and before the Stat. of 27 H. 8. 10. had joyned in a feoffment it had been the feoffment of the feoffees because the estate of the land was in them So it is likewise if the tenant for life and he in the remainder or reversion in fee joyn in a feoffment by deed the livery of the freehold shall move from the lessee the inheritance from him in the reversion or remainder from each of them according to his estate for it cannot be adjudged by Law that the feofment of tenant for life doth draw the reversion or remainder out of the lessor or him in remainder or doth work a wrong because they joyned together So if there be tenant for life the remainder in tail the remainder in tail c. and tenant for life and he in the first remainder in tail levy a fine this is no discontinuance or devesting of any estate in remainder but each of them pass that which they have power and Authority to pass The like 8 If the disseisor and disseisee joyn in a charter of feoffment Co. ibid. 302. b. 4. and enter into the land and make livery it shall be accounted the feoffment of the disseisee and the confirmation of the disseisor because the entry of the disseisee was then lawfull It is otherwise when the heir of the disseisor and the disseisee join as in Littletons case supra 7. for in such case the disseisees entry is not congeable But if he in the reversion in fee and tenant for life ioin in a feoffment by parol this shall be as some hold first a surrender of the estate of tenant for life and then the feoffment of him in the reversion for otherwise if the whole should pass from the lessee then he in the reversion might enter for the forfeiture and every mans act ut res magis valeat c. shall be construed most strongly against himself 9 Words are alwaies taken best for the Speaker Hob. 77. Adrian Coote so as there is one Rule for deeds or pleading and another for words 194 Every Act to be lawfull when it standeth indifferent whether it should be lawfull or not Co. Inst part 1. 42. a. 4. 1 A. tenant in fee simple makes a lease of lands to B. to have and to hold to B for term of life Estates for life without mentioning for whose life it shall be This shall be deemed for term of the life of the lessee because in this case it shall be taken most strongly against the lessor an estate for a mans own life being as to him better and higher than for the life of another But if tenant in tail make such a lease without expressing for whose life this shall be taken but for the life of the lessor for two reasons First when the construction of any act is left to the Law the Law which abhorreth injury and wrong will never so construe it that it may work a wrong And in this case if by construction it should be for the life of the lessee then should the estate tail be discontinued and a new reversion gained by wrong but if it construed for the life of the tenant in tail then no wrong is wrought And it is a general Rule that whensoever the words of a deed or of the parties without deed may have a double intendment and the one standeth with Law and right and the other is wrongfull and against Law the intendment that standeth with Law shall be taken 2. The Law respecteth more a lesser estate by right than a larger estate by wrong as if tenant for life in remainder disseise the tenant for life in possession in this case the disseisor hath a fee-simple but if tenant for life in possession die now is the disseisors wrongful estate in fee by Iudgement of Law changed to a rightfull estate for life So if tenant in tail make a lease to another for term of life generally and after releaseth to the lessee and his heirs Here albeit between the tenant in tail and the releasee a fee-simple passed yet after the death of the lessee the entry of the issue in tail is lawfull which could not be if it were a lease for the life of the lessee for then by the release it had been a discontinuance executed In like manner if I retain a servant generally without expressing any time the Law shall construe it to be for one year because that retainer is according to Law Vide Stat. 5 Eliz. cap. 4. Co. Inst part 1. 55. b. 3. 2 If lessor at will without the consent of the lessee enter into the land and cut
it enures as it may by Law to a grant of the reversion c. Attornment 23 Albeit an Infant be not compellable to attorn unless the grant be by fine in a per quae servitia Co. l 9. 85 b. 3 Conys case yet upon the grant of a seigniory without fine if he attorn that shall bind him and he shall not have his age so likewise attornment by him upon the grant of a reversion is good albeit he cannot be forced therevnto Vide supra 17. Covin 24 Covin shall never be intended or presumed in Law except it be expresly averred quia odiosa inhonesta non sunt in lege praesumenda Co. l. 10. 56. a. 3. in the Chan. of Oxf. case in facto quod se habet ad bonum malum magis de bono quam de malo praesumendum est And so it was adjudged in the case of Meriel Littleton Trin. 10 â—ac in B. R. Quod vide ubi supra Co. l. 10. 67. b. 3. in the Churchwardens case 25 When two Constructions may be made of the Kings grant The Kings Charter and by force of the one the grant may according to the Rule of Law be adjudged good and by the other it may be also taken by the Law to be void In such case for the honor of the King and the benefit of the Subject such construction shall be made that the Kings Charter may take effect as it was resolved in the case of the Churchwardens of Saint Saviours in Southwark Co. l. 10. 67. b. 3. and in Sir John Molins case Co. l 6. 5. See also Priddle and Nappers case Co. l. 11. 11. a 4 The E. of Rutlands case supra 22. The L. Staffords case Co. l. 8. 77. The Lord Chandos case Co. l. 6. 55. The E. of Cumberlands case Co. l. 8. 166. 12 E. 4. 44. F. N. B. 148. f. 26 If the heir within age endow the feme of more land than she ought to have assigned in Dower Dower assigned or if the Guardian endow the feme of more than a third part of the land the heir at his full age shall have a writ of Admeasurement of Dower against the feme Howbeit in such case she shall retain so much of the land so assigned as amounts to her Dower because it was a lawfull act Plea in barr only the surplusage shall be taken from her what she had above such third part assigned unto her Pl. Co. 28. b. 1. in Calthr and Bevish case 27 In an Assise if the tenant plead in barr descent to the plaintif and two others and that he hath the estate of one of them In this case the plea is good and yet it may be that he had his estate by disseisin in which case he is also a disseisor to the plaintif for he cannot be a disseisor to one and not to the other or he may gain his estate lawfully and so a doubt ariseth whether the tenant is in lawfully or by wrong Howbeit in this case it shall be taken that he had his estate lawfully and not tortiously or by wrong and therefore such plea in barr is good Vid 189. 40. Pl. Co. 93. a. 4. The Assise of Fresh force in London 28 In the Assise of Fresh force by Pannel against Moore and the Corporation of Mercers in London Assise of Fresh force Moores invitation of the plaintif to dine with him and to see the Cellar c. was adjudged no entry by the plaintif after the last continuance because it was rather to be esteemed a lawfull than a tortious act being by the consent of Moore one of the defendants Vide supra 9. 29 Cestuy que use for term of life the remainder over in tail Cestuy que use for life after the Statute of 1 R. 3. 1. makes a lease for the term of the life of the lessee Dyer 57. b. 1. 35 H. 8. and dies and the lessee continues his estate In this case the lessée is but tenant by sufferance for the lease makes no discontinuance of the Remainder because he had authority by the said Statute to make a lease grant or feoffment and that ought to be understood of such an estate as he may lawfully make Dyer 150. b. 86. 3 4. P.M. 30 By the Statute of 32 H. 8. 1. that giveth power to devise two parts of a mans land holden in Knight service Devise of lands a devise of the whole had been good for two parts albeit the Statute of explanations 34 35 H 8. 5. had not béen made Dyer 286. 43 11 Elâ—z 31 In an Ejectione firmae the plaintif declares of a lease made unto him the 8. day of May Ejectione firmae to have and hold for 21 years extunc proxime sequent Virtute cujus postea viz. eodem 8 day of May he entred This seems to be good and that he entred not as a disseisor before the lease commenced for extunc is immediately after the delivery and shall not be intended the morrow after the date and the word postea declares that he entred not before the lease was made Tamen Quaere for the practice is otherwise at this day making the term to commence at some feast or day before the day of delivery to prevent the said exception Dyer 359 3. 2. E. 34 A. Tenant of Prince Arthur as Earl of Chester Wardship in Knight service in Capite dies and B. his eldest son is in ward B. dies without issue and upon a Devenerunt C. was found brother and heir to B. and within age C. at full age pursues livery by writ to the Escheator per nomâ—n B. filius haeres A. And now the question was whether or no the possession still continued in Qu. Eliz. And it was adjudged that it did not but that it was a good livery for if he had not been named heir to any it had béen good because constat de persona Tenants in Common 35 If a tenant in Common enter into the land generally Hob. 120. Smales and Dale without expressing whether it be for himself alone or both for himself and his companion yet it shall be taken according to right as under construction of Law and therefore construed lawfull and not that he intended to oust his companion of his part by tort 195 Non praestat impedimentum quod de Jure non sortitur effectum Vide 195 13. Bastard eigne Mulier Puisne 1 If the Bastard eigne after the decease of the father enter Co. Inst part 1. 245. b. 1. and the King seiseth the land for some contempt supposed to be committed by the Bastard for which no freehold or inheritance is lost but only the profits of the land by way of seisure and the Bastard die and his issue is upon his petition restored to the possession In this case for that the seisure was without
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
certain of their friends to make partition between them who make partition of the Rooms and Chambers of the Castle assigning some to one and some to another c. this Partition is void because a Castle which is to be kept intire pro bono publico and for the safeguard of the Commonwealth will not admit of any such division albeit such a partition of other lands that are partable had been good in Law and binding to the Coparceners after election of their several Parts Co. ibid. 31. b. 3. Dower Neither shall such a Castle be assigned for Dower albeit the parties consent thereunto because the publique shall be preferred before the privat Co. l. 7. 23. a. 3. Buts case 2 A. seised of black acre in fee Rent out of a lease for years and also possessed of white acre for years grants a rent charge out of both to B. for his life with Clause of Distress c. In this case the estate of the rent being a Franktenement according to the purport of the deed cannot issue out of the term for years but out of the land only which the grantor had in fee-simple because the Franktenement of the rent cannot issue out of a Chattel and the intire rent cannot be Franktenement out of black acre and a chattel out of white acre and to make two rents when one only is granted would be injurious Neither yet can the contract and mutual agreement of the parties charge such a thing with a rent which is not chargeable by Law as out of an Hundred or Advowson 30 Ass Pl. 5. or out of a Fair 14 E. 3. Scire facias 122. The Earl of Kents case Neither can a rent be granted or reserved of any estate of Franktenement out of any other Franktenement which is not mainourable either in possession reversion or by possibility but is only haereditamentum incorporeum for Pacta privata non derogant juri communi And in an Assise they cannot be put in view neither can any distress be taken in them And in the case above albeit white acre be haereditamentum corporeum and mainourable yet in respect of the exility and incapacity of the interest which the grantor hath in it that rent of Franktenement cannot issue out of it but out of the land in fee simple And in that case also in an Assise brought for the rent the land in fee shall be only put in view And if the Grantee should accept a lease or grant of white acre that will not suspend his rent Co. l. 9. 128. a. 4. in Sondayes case 3. Term. Hill 8. Iac. it was resolved by the two Chief Iustices Recovery Title the Chief Baron and the Court of Wards that no condition or limitation be it by act execute or limitation and use or by devise in a last will can barr tenant in tail to alien by a Common recovery for the causes and reasons reported at large in Sir Anthony Mildmayes case in the 6. Report Co. l. 9. 141. b 3. in Beaumonts case 4 If there be Lord and tenant of a Carue of land Confirmation and the tenant hath issue and is attainted of felony and the King pardons him and after the Lord confirms the estate of the tenant and the tenant dies In this case the Lord shall have the land against his own confirmation for the confirmation cannot add to the estate of the tenant a descendible quality to him who was disabled to take the land by descent For Pacta privata juri publico derogare non possunt The like 5 Baron and feme being tenants in special tail Co. ibid. 138. b. 141. b 4. the remainder to the heirs of the Baron the Baron levies a fine to E. 6. who grants to the Earl of Hunt in fee the Baron dies and the Feme enters and the E. of H. confirms her estate Habendum to her and the heirs of the body of the Baron then the Feme dies having issue a son In this case the confirmation is void for it cannot add a descendible quality to the issue in tail who was disabled by the fine to take by descent Again if that confirmation should add to the estate of the feme a descendible quality it would in effect as to that point repeal no less than two Acts of Parliament viz. 4 H. 7. 24. and 32 H. 8. 36. by which the estate in tail is barred as to the issues and the issues are disabled to claim the Land by force of the said estate tail Sed Pacta privata c. Common Recovery 6 Tenant in tail cannot be prohibited by any condition or limitation to barr the issues in tail as also the reversions or remainders Co. l. 10. 38. b. 1. 4. Mary Portingtons case by suffering a Common Recovery much less can he be prohibited to prevent by any such condition or limitation a going about conclusion or agréement to suffer such a recovery for to suffer such a recovery to the purposes aforesaid is an incident so inseparably annexed to an estate tail that it cannot possibly be prohibited by any such condition limitation or other agréement whatsover between the Parties Conventio privatorum non potest c. So likewise Dower or tenancy by the Curtesie cannot be restrained by condition because they are annexed to the estate tail by Law no more than a tenant by the Curtesie or tenant in tail after possibility can be by condition made punishable for waste Also things ordained by Statute cannot be restrained by condition c. as that the tenant in tail shall make no leases according to the Statute of 32 H. 8. 28. or levy a fine according to the Statutes of 4 H. 7. 24. 32 H. 8. 36. to barr the issues for none of these which are incident to his estate by Act of Parliament can be restrained by condition or limitation Auditors of the Wards 7 The King himself cannot do any thing against an Act of Parliament when the subject hath also an interest in it Co. l. 11. 3. b. 4 in Auditor Curles case And therefore albeit the words of the grant to the two persons ordained by the Statute of 32 H. 8. 46. to be Auditors of the Court of Wards be conjunctim divisim et alterius eorum diutius viventis yet that being an office of trust there shall be no survivor thereof for that it being enacted by that Statute that there should be two persons c. which should have a judicial voice the King cannot constitute one only for the Subject by the Act hath interest therein Et securius expediuntur negotia commissa pluribus Howbeit the King may constitute one at one time by one patent and another at another time by another patent And albeit he may so do yet he who is first constituted hath not any judicial voice until the other be constituted also for it is provided by the Statute
pars 1. 112. a. 4. 5 To cover in English is tegere in Latin and is so called Contract for that the wife is sub potestate viri and therefore is disabled to contract with any without the consent of her husband who is her head 213 All that she hath is her Husbands Vide Ho. 216. Co. Inst pars 1. 112. a. 4. 1 Omnia quae sunt uxoris sunt ipsius viri non habet uxor potestatem sui sed vir Bracton lib. 2. cap. 15. And again Nothing the wives Res licet sit propria uxoris vir tamen ejus Custos cum sit caput Mulieris Bract. lib. 5. cap. 25. Co. ibid. 326. a. 4. 2 The husband is tenant in tail the remainder to the wife in tail Discontinuance the husband makes a feoffment in fee In this case the husband by the Common Law did not only discontinue his own estate tail but his wives remainder also because at the time of the feoffment he was seised of his wifes remainder in her right Howbeit after the death of the husband without issue the wife may enter by the Statute of 32 H. 8. 28. Co. ibid. 351. a. 1. 3 If a man taketh to wife a woman seised in fee Inheritance he gaineth by the intermarriage an estate of freehold in her right which estate is sufficient to work a remitter and yet the estate which the husband so gaineth dependeth upon uncertainty and consisteth in privity for if the wife be attainted of felony the Lord by escheat shall enter and put out the husband otherwise it is if the felony be committed after issue had Also if the husband be attainted of felony albeit the King thereby gaineth no freehold for that remaineth still in the wife yet the King shall have a pernary of the profits during the Coverture Co. ibid. a. 3. 4 If a man marry a woman possessed of a term for years Chattel real In this case the baron is also possessed thereof in her right and hath power to dispose thereof by grant or demise he may also forfeit it by Outlawry or Attainder because they are gifts in Law Co. ibid. 5 Vpon an Execution against the husband for his own debt The like the Sheriff may sell the term Howbeit the husband cannot dispose thereof by will Also if he make no disposition or forfeiture of it in his life survive the wife he shall have it by gift in Law but in such case if the wife survive him she shall have it again There is the same Law likewise of estates by Statute Merchant Statute Staple Elegit wardships and other chattels real in possession Vide Hob. 3. Yong and Radford The like 6 Chattels real en auter droit Co. ibid. or consisting meerly in action or use the husband shall not have by the intermarriage but Chattels real being of a mixt nature viz. partly in possession and partly in action which happen during the Coverture the husband shall have by the intermarriage if he survive his wife albeit he reduceth them not into possession in her life-time but if the wife survive him she shall have them As if the husband be seised of a rent-service charge or seck in the right of his wife and the rent becomes due during the coverture the wife dieth the husband shall have the arrerages but if the wife survive him she shall have them and not the executors of the husband So it is of an Advowson if the Church become void during the Coverture he may have a Quare Impedit in his own name as some hold Vide 50 E. 3. 13. 28 H. 6. 9. 7 H. 7. 2. But the wife shall have it if she survive him and the husband if he survive her Et sic de similibus But if the arrerages had become due or the Church had fallen void before the marriage In such case they were meerly in action before the marriage Co. ibid. b. 1. And therefore the husband should not have them by the Common Law although he survived her And so it is likewise of Reliefs mutatis mutandis But now by the Statute of 32 H. 8. 37. if the husband survive the wife he shall have the arrerages as well incurred before the mariage as after Chattels personal 7 Things in Action as debts by obligation contract or otherwise Co. ibid. the husband shall not have unless he and his wife recover them But the marriage is an absolute gift of all Chattels personal in possession in her own right whether the husband survive the wife or no so if an Estray happen within the Manor of the wife and the husband die before seisure the wife shall have it But after seisure by the husband the property vesteth immediatly in him and if he die his executors shall have it Howbeit as to personal goods there is a diversity betwéen a property in personal goods as is aforesaid and a bare possession for if personal goods be bailed to a feme or if she find goods or if goods come to her hand as Executrix to a Bailiff and then she take a husband this bare possession is not given to the husband yet in such case the Action of detinue must be brought against husband and wife as regularly in all other actions against the wife it ought to be Coâ—fi mation 8 If a man let land to two men to hold the one moity to the one for life and the other moity to the other for his life Co. Inst pars 1. 299. b 1. and the lessor confirm the estate to them both in the land to hold to them and to their heirs they are tenants in common of the Inheritance for regularly the confirmation shall enure according to the quality and nature of the estate which it doth enlarge and increase But if such a lease for life be made to husband and wife by several moities and the lessor confirm their estate in the land to hold to them and their heirs this confirmation as to the moity of the husband enureth only to the husband and his heirs for the wife had nothing in that moity but as to the moity of the wife they are Iointenants for the husband hath such an estate in his wifes moity in her right as is capable of a Confirmation Feme Executor 9 A feme covert cannot make an executor without the assent of her husband Co. l. 4. 51. b. 2. Andrew Ognell and the administration of her goods of right appertains to her husband Replevin 10 If the beasts of a feme sole be taken and after she takes a Baron F. N. B. 69. k the Baron alone may sue a Replevin Trin. 33 E. 3. Obligation 11 If a feme sole be bound in an obligation and take baron F. N. B. 121. c. and after dies the baron shall not be charged therewith if recovery thereof were not had against him