the Law 27 Eliz. Co. l. 3. 13. Sir Will. Herberts case 11 H. 7. 12. b. 2 Vpon a recognizance acknowledged by the Ancestor Equal interests require â—qual contriâ—â—tions or a judgement in an action of Debt given against him If he die seised of two acres whereof one is holden in Borough English or having issue two daughters which make partition or if he die without issue whereby part of his land descendeth to the heir of his fathers part and part to the heire on the part of his mother In all these cases if one onely be charged he shall have contribution against the other for they are in aequali jure Finch 20. Co. l. 2. 25. b. 4. The case of Banker 26 Ass Pl. 37. 3 If two four or more men being severally seised of lands Equal extenâ— joyn in a recognizance all their land must be equally extended Finch 20. Finch ibid. 4 This Rule doth chiefly shine and shew forth it self in the exposition of Statutes Exposition of Statutes by extending things there provided to mischiefs in the like degrées c. Finch ibid. 5 This Rule is also of great use for guiding the grounds and maximes of things which newly start up Grounds of Law according to the rule of the Common Law 23 H. 8. Fitz. 6 Vses at the Common Law were nothing Uses regardâ—â— as estates yet in time gaining greater regard to be imputed amongst Inheritances are now demeaned as other Inheritances at the Common Law so as possessio fratris shall be of them of lands in Borough English the use shall descend to the youngest son And now also these uses being turned into estates shall be demeaned in all respects as estates in possession Finch 20. 7 When custome createth Inheritance in Copy-hold lands Copihold 〈◊〉 Freehold and maketh the lands descendable Co. l. 4. 22. then shall the Law direct the descents according to the Maximes and rules of the Common Law to have a possessio fratris and the like But not to collateral things as tenancy by the Courtesie Dower descent to toll an entry Finch 20. Co. Inst pars 1 24. b. 1. 8 Equitie is a construction made by the Iudges Equity a coâ—struction mâ—â—â— by the Judges that cases out of the letter of a Statute yet being within the same mischief or cause of making the same shall be within the same remedie that the Statute provideth And the reason hereof is for that the Law-maker could not possibly set down all cases in expresse terms Aequitas est convenientia rerum quae cuncta coaequiparat quae in paribus rationibus paria jura desiderat And again Aequitas est perfecta quaedam ratio quae jus scriptum interpretatur emendat nulla scriptura comprehensa sed solum in vera ratione consistens Aequitas est quasi aequalitas Bonus judex secundum aequum bonum judicat Co. ib. 24. a. 4. aequitatem stricto juri praefert Et jus respicit aequitatem And therefore the cases set down in the Statute of Westm 2. are there put onely for examples of estates taile general and special and not to exclude other estates taile For Exempla illustrant non restringunt legem And this appears by the words of the same Stat. Auxi sont divers autres estates en le taile c. And herewith also agreed Littleton § 21. Carbonels case 33 Ed. 3. Taile 5. 3. E. â— 32. 18 Ass Pl. 5. 18 E. 3. 46. 1 Ma. Dy. 46. The Lord Barkleys case Pl. Co. 251. Co. ib. 53. b. 3. 9 Albeit the Statute of Glocester Wast and â—â—struction coâ—vertible which provideth remedy against wast speaketh not of the exile of Villeins yet that also is comprehended under the general word of waste so that exile or destruction of Villeins or Tenants at will or making them poor where they were rich when the tenant came in whereby they depart from their tenures is to be adjudged waste for waste and destruction in their larger sense are words convertible c. â—ivery of â—nds in ward 10 A livery of lands out of the Kings hands is in the nature of a restitution which is to be taken favourably Co. ib. 77. a. 4 For if livery be made of a Mannor cum pertinentiis the heir shall thereby have an Advowson appendant Howbeit it is otherwise in grants by Letters Patents 11 By the Statute of 2 E. 6. cap. 8. it is enacted Co. ib. 77. b. 2. That such persons as hold for term of years â—tatute Merâ—hant Staple â—legit c. â—ithin 2 E. 6. 8. or by copie of Court-roll or have any rent common or profit apprender out of any lands found in any office whereby the King is entitled to the wardship of the same lands or to the forfeiture of lands upon attainder of treason felony praemunire or any other offence may have hold enjoy and perceive their several estates interests and profits although they be not found in the office Here albeit those two estates onely are saved by the letter of the said Act yet it being a beneficial Law the estate of Tenant by Statute Staple Merchant Elegit and of Executors that hold lands for payment of debts c. are taken to be within the benefit of that clause which was doubted in 14 El. Dyer 319. â—ncertain teâ—ure found â— E. 6. 8. 12 Where an office is found by these words or the like quod de quo Co. ib. 77. b. 3. vel de quibus tenementa praedicta tenentur juratores praedicti ignorant or that the lands are holden of the King sed per quae servitia juratores ignorant neither of these shall be taken for an immediate tenure of the King in chief but in such cases a melius inquirendum shall be awarded as hath béen accustomed of old time And this provision is made by the Statute of 2 E. 6. cap. 8. And here albeit that Statute saith no more yet by the equity of the same Statute if the first office find a tenure for the King per quae servitia c. and upon the Melius the tenure is found for a Subject In that case the first office hath lost his force and need not to be traversed and the Melius is in the nature of a Diem clausit extremum or a Mandamus c. And this was but a declaration of the ancient Common Law as by these words of the same Statute as hath been accustomed of old c. it appeareth but if upon the Melius it be found again as uncertainly as before is said then it is in judgement of Law a tenure in Capite Howbeit if upon the Melius a tenure be found for the King Ut de manerio c. sed per quae servitia c. it shall be taken for Knight-service â—arons and Knights fees 13 At or before the Statute of Magna carta cap. 2. Co.
Law and Franchise 7 When a matter alleaged extendeth into a place at the Common Law and likewise into a place within a Franchise Co. ib. 125. b. 3. it shall be tried at the Common Law An Assise in Confiâ—io Comiâ—tus at the Common law 8 Before the Statute of 7 R. 2. cap. 10. Co. ib. 154. a. 1. no Assise in confinia Comitatus lay at the Common Law for the recovery of rent issuing out of lands that lay in several Counties but for a Common of Pasture Turbary Piscary Estovers and the like in one County appendant or appurtenant to land in another County an Assise in confinio Comitatus did lie at the Common Law because the land as the more worthy drew them to it But land could not be appendant or appurtenant to land And so it is of a Nusance done in one County to lands lying in another County For in that case also the like Assise did lie at the Common Law c. â—elease of one â—ynter shall â—â—e prejudice â—â—e other 9 If thrée Ioyntenants be disseised and they arraign an Assise Co. ib. 285. a. 4. Co. l. 2. 68. a. 4. in Tookers case 30 H. 6. Barr. 59. 45 E. 3. 10. and one of them release to the Disseisor all actions personal this shall barre that Ioyntenant but it shall not barre the other two Plaintiffs For having regard to them the realty shall be preferred and Omne majus trahit ad se minus dignum And in a writ of Ward brought by two the release of the one shall not grieve the other but shall enure to his benefit For he shall recover the whole Ward and hold his Companion out c. 10 In Law there are thrée kinds of rights Jus proprietatis Co. ib. 266. a. 2. Jus possessionis and Jus proprietatis possessionis and this last is anciently called Jus duplicatum or Droit Droit For example if a man be disseised of an acre of land the Disseisée hath Jus proprietatis the Disseisor Jus possessionis and if the Disseisée release to the Disseisor he then hath Jus proprietatis possessionis And regularly it holdeth true that when a naked right to land is released to one possessionis 〈◊〉 draw jus â—â—â—rietatis that hath Jus possessionis and another by a mean title recover the land from him the right of possession shall draw the naked right with it shall not leave a right in him to whom the release is made For example if the heir of the Disseisor be in by descent and A. doth disseise him and the Disseisée releaseth to A. Now hath A. the méer right to the land but if the heir of the Disseisor enter into the land and regain the possession that shall draw with it the méer right to the land and shall not regain the possession onely and leave the meer right in A. but by the recontinuance of the possession the méer right is therewith vested in the heire of the Disseisor So likewise if the Disseisée enter upon the heire of the Disseisor and enfeoff A. in fée and the heire of the Disseisor recover the whole estate that shall also draw with it the meer right and leave nothing in the Feoffée c. 19. â—â—y must be 〈◊〉 of the â—â—ge 11 The Lessor for years of a Mease a Close Co. l. 2. 31 b. in Bettisworths case and other certain lands in Dale makes a feoffment of all and gives livery in the Close in name of all the Lessée being at the same instant residing in the Mease And it was adjudged that this livery was void as well for the Close as for the Mease and other lands so demised For when the Messuage with the land is intirely demised the Messuage is the principal because that serves for the habitation of man and in a Praecipe shall be first demanded before land as the more worthy and the demand for rent arrear shall be made at the Messuage as at the more principal and notorious place within the Demise So that the Messuage being the more worthy and the Principal and the land but as accessory without question the possession of the Mease by the Lessée for years at the time of the livery made is good possession of the land demised with it c. Co. l. 2. 68. a. 4. in Tookers case 12 In an action of Waste brought by two Waste is 〈◊〉 in the personalty release of all actions personal by one shall barre the other for in Waste the personalty is the principal 9 H. 5. 15. per Cur. Vide suprà 9. Co. l. 11. 48. a. 2. in Lifords case 13 If a man by déed indented bargain and sell Land more worthy thaâ— trees give and grant his Mannor of Dale and all his trées growing thereupon to another and the déed is not enrolled according to the Statute in as much as the Mannor passeth not to the Bargainée neither shall the trées passe albeit they are granted by expresse words and may passe without enrolment and that a mans owne grant shall be taken most strongly against himselfe c. Co. l. 11. 51. b. 4 in Lifords case 14 If after a man hath disseised me The like I regain the possession of the land after my regresse into it the Law shall adjudge that the Franktenement still continued in me ab initio And therefore if the Disseisor or his Feoffor or his Disseisor cut down any trées or grasse or sow any grain and sever them or sell them to another yet after my regresse I may take them wheresoever I shall finde them because the re-continuance of the land as the principal shall regaine my property in them as accessories albeit they be carried from off the land for the carrying of them thence cannot alter my property in them c. Co. Inst pars 1. 8. a. 4. 15 If a man buy divers fishes as Carps Bremes Tenches Fish Doâ—â— c. incidenâ— the free 〈◊〉 c. and put them in his pond and dieth In this case the heire shall have them and not the Executors for they shall goe with the Inheritance and the rather for that they were at liberty and could not be gotten without industry as by Nets and other Ingines Otherwise it is if they were in a trunke or the like Likewise Déer in a Park Conies in a Warren and Doves in a Dove-house young and old shall goe to the heire 11 H. 4. 31. 16 An Adulterer takes away another mans wife Wife withâ—â— clothes and puts her in new clothes the Husband may take the Wife with her clothes Finch 22. 10 El. 323. b. 17 A box insealed with Charters shall go to the heire with the Charters and not to the Executors Finch 22. A box with chaâ—ters Finch 23. 18 A base Myne where there is Ore shall be the Kings A Myne 〈◊〉 the Ore for the
of good pleading must be observed Co. Inst pars 1. 303. a. 2. which being inverted great prejudice may grow to the party tending to the subversion of Law Ordine placitandi servato servatur jus c. And therefore first in good order of Pleading a man must plead to the jurisdiction of the Court Secondly to the person and therein first to the person of the Plaintiffe and then to the person of the Defendant Thirdly to the Court Fourthly to the Writ Fifthly to the Action c. which order and form of Pleading you shall read in the ancient Authors agréeable to the Law at this day and if the Defendant misorder any of these he loseth the benefit of the former Again the Count must be agréeable and conform to the Writ the Bar to the Count c. and the Iudgment to the Count for none of them must be narrower or broader then the other c. 4 If the King make a Lease for years rendring Rent Co. l. 4. 13. a. 3. in Burroughs Case with condition to be void upon non-payment of the Rent Re-entry giâ—en to the King without demand the King shall take advantage of that condition without any demand For so long as the Reversion and Rent continue in the King the Law dispenseth with the demand as a thing un-decent it being against the dignity of the King to wait upon his subject or to demand any thing of him It is otherwise if the King grant over the Reversion for his grantée shall not take advantage of the Condition without demand of the Rent But in the other Case the Law which alwayes requireth that decorum and conveniencie be observed appoints the subject to attend upon his Soveraign and in that Case to perform the first Act although it be in the case of a Condition which trencheth to the destruction of his Estate Howbeit this is onely a personal Prerogative annexed to the person of the King for order and decencies sake and not in respect of the nature and quality of the Rent c. â—o demand 〈◊〉 the value of â—arriage 5 One Of the reasons which the Lord Cook addes in the Lord Darcies Case Co. lib. 6. 71. b. 2. in the Lord Darcies Case why the fingle value of the marriage of a Ward in Knight-service should be due to the Lord without demand is this If the Common Law saith he would have inforced the Lord to have made tender to his word c. it would also have appointed all necessary circumstances for the performance of such a tender as a certain place c. where it should be done and would not have left the Lord which is the superiour to finde out the Ward which is the inferiour and who may if he will take advantage of his own shifts when there can be no laches at all in the Lord c. 6 Amongst other reasons produced to prove None but of the houshold shall sue in the Marshalâ—â— that in Suits prosecuted in the Marshalsie Co. l. 10. 73. b. 2. in the Case of the Marshalsie one of the parties at least ought to be of the Kings houshold this is one because saith the Book it would not be comely that a Car-man or other Mechanical person should at his pleasure sue another in that Court and upon that occasion take liberty to appear in Aula Regis where that Court was originally kept absque vestimentis aulicis for those that appear in Court use to wear garments suitable to that place And therefore it is recorded by Luke the Evangelist cap. 7. vers 25. Coepit de Johanne dicere ad turbam c. Quid existis visuri hominem mollibus vestibus amictum Ecce qui vestitu magnifico utuntur c. sunt in Palatiis Regis c. And the Common Law regards conveniency and altogether dis-allowes indecorum and every thing done contra bonos more 's 77 Negatio Conclusionis est error in Lege Co. l. 10. a. 4. in Priddle and Nappers Case 1 In Attachment upon a Prohibition the Plaintiffe counts against A. proprietary of Tithes Lands in the Priors handâ— not tithable that heretofore the Prior of Montecute was seised of twenty Acres of Land c. before and at the time of the dissolution and held those Acres and also the Rectory simul semel c. Ratione cujus the Prior held the said Lands discharged of Tithes The Defendant conveys title to the Land c Absque hoc that the Prior held them discharged of Tithes c. Here the plea of the Defendant pro consultatione habenda for he is in a manner an Actor was insufficient because he traverseth a thing not traversable For the prescription of the unity ought to have béen traversed and not the Conclusion viz. Ratione cujus because as in Logick the conclusion of a Syllogisme cannot be denied but either the major or minor Proposition so neither in Law which is the perfection of Reason c. Co. ibid. 2 In a Praecipe Ancient Demesne one that pleads that the Mannor of Dale is ancient Demesne and that the Land in demand is parcel of the Mannor and so ancient Demesne there the Demandant cannot say that the Land in demand is not ancient Demesne because that is the Conclusion upon the two first preceding Propositions viz. 1. That the Mannor is ancient Demesne 2. That the Land in demand is parcel of the Mannor for sequitur conclusio ex praemissis and therefore it cannot be denied and with this agrées 41. E. 3. 22. 48. E. 3. 11. and many other Books 78 The Law respecteth the Bonds of Nature Co. Inst p. 1. 78. a. 2. 1 If before the Statutes of 32 34 H. 8. Wardship the father had infeoffed any of his younger sons or others for the making of his wife a Ioynture or for the advancement of his daughters or for the payment of his debts Co. l. 6. 76. a. 3. in Sir George Cursors Case and after had enfeoffed and conveyed the Land to his heir and had died his heir within age his heir should not have béen in ward neither was it Collusion upon the Statute of Marlbr cap. 6 c. because he was bound by the law of Nature and Nations to provide for them but now by force of those Statutes he shall be in ward for his body and for a third part of the Land c. No wardship â—uring the faâ—hers life 2 A. hath issue B. a daughter and his heir apparent who being married to C. hath issue by him D a son B. dies Litt. §. 114. Co. Inst ibid. a. 3 c. and A. that holds Land by Knights-service dies seised and the Land descends to D as heir unto A. and within age In this Case the Lord shall have the wardship of the Land but not the wardship of the hody of the heir for none shall be in ward for his body to
hinders a Remittâ—r and the Discontinuee is disseissed and after the Disseisor lets the Land to the Baron and Feme for life this is a Remitter to the Feme but if the Baron and Feme were of covin and consent that the Disseisin should be made then is it no Remitter to the Feme because she is then a Disseiseresse and particeps criminis Howbeit if the Baron were onely of covin and consent to the Disseisin and not the Feme in that case the Feme shall be remitted So as here covin and consent of Baron and Feme doth hinder the Remitter of the Feme Co. ibid. 357. a. 4. and so covin doth in many cases choake a meer Right and the ill manner doth many times make a good matter unlawfull Co. ibid. b. 1. Co. l. 3. 78. a. in Farmers case 11. If a Disseisor Intrudor or Abator do endow a woman that hath lawfull title of Dower this is good and shall bind him that right hath but if a woman be lawfully entitled to have Dower and she is of covin and consent that one shall disseise the Tenant of the Land against whom she may recover her lawfull Dower all which is done accordingly In this case the Tenant may lawfully enter upon her and avoid the Recovery in respect of the covin Co. ibid. b. 2. 12. In all cases The like where a man hath a rightfull and just cause of Action yet if he of covin and consent do raise up a Tenant by wrong against whom he may recover the Covin doth suffocate the right that the Recovery though upon good title shall not bind or restore the Demandant to his right So if Tenent in tail and his Issue disseise the Discontinuee to the use of the Father and the Father dyeth and the Land descendeth to the Issue in this case the Issue is not remitted against the Discontinuee in respect he was privy and party to the wrong but in respect of all others he is remitted and shall deraigne the first Warranty And so note a man may be remitted against one and not against another The like 13. A. and B. Ioint-tenants are intitled to a reall Action against the Heire of the Disseisor A. causeth the Heire to be disseised Co. ibid. against whom A. and B. recover and sue execution In this case B. is remitted for that he was not party to the Covin and shall hold in common with A. but A. is not remitted causa qua supra False Plea 14. He that will have the benefit of the Statute of Glocester Co. ibid. 366. a. 3. Co. l. 8. 53. a. 3. in Sims case cap. 3. 6 E. 1. must plead the truth of his case viz. the Warranty acknowledge the title of the Demandant and pray that the advantage of the Statute may be saved to him and then if afterwards assets descend the Tenant upon this Record shall have a Scire facias c. But if the Tenant plead the Warranty and plead further that assets descended c. and the Demandant taketh Issue that assets descended not c. which Issue is found for the Demandant whereupon he recovereth In this case the Tenant albeit assets do afterwards descend shall never have a Scire facias upon the said Iudgment for that by his false Plea he hath lost the benefit of the Statute Outlawry by 〈◊〉 15. Imprisonment is a good cause to reverse an Outlawry Co. Inst pars 1. 259. b. 2. if it be by Processe of Law in invitum but if it be by consent and covin such Imprisonment shall not avoid an Outlawry because upon the matter it is his own act Attornment 16. Where the Tenant hath notice Co. l. 2. 68. a. 2. in Tookers case that the Seigniory was granted but to one or that the Reversion was granted but of one Acre or that the Reversion was granted for fewer years or that the Reversion was granted for life onely with no Remainder over whereas it was in any of the cases otherwise in such case generall Attornement without true notice of the Grant is void for the usuall pleading which intent is the oracle of the Law is to which Grant he attorned and therefore if he hath not notice of the Grant or which is all one true notice thereof the assent which he gives to it which in truth is but part of the Grant the Law which abhors falsehood will not construe to be Attornment to the true Grant Fine by covin to bar 17. A man possessed of divers parcells of Land within the Mannor of D. whereof some he held for years others at will others by copy Co. l. 3. 77. b. 2. in Farmers case in Margaret Podgers case Co. l. 9. 105. b. 1. and some also in fee demiseth the whole to another for life and then levies a Fine to the Tenant for life and his Heires of so many Acres as amount to the whole Land continues Possession and payes the rents to the Lord five years passe yet in this case the Lord is not barred by the Statute of 4 H. 7. cap. 24. For the makers of that Statute did never intend that such a Fine levyed by fraud and practice of Tenant for years at will or by copy which pretend no title to the Inheritance but intend the disherison of their Lessors or Lords should bar them of their Inheritance and this appeares by the preamble of the said Act where it is said that Fines ought to be of greatest strength to avoid strifes and debates but when Tenant for years at will or by copy make Feoffment by assent and covin that a Fine should be levyed this is not to avoid strife and debate but by assent and covin to begin and stir them up And therefore that Statute did not intend to establish any such estate made and created by such fraud and practice which being fraudulent is upon the matter no estate at all c. vide pl. ibid. A fraudulent â—â—e of goods 18. The grant of goods albeit it be made upon good consideration Co. l. 3. 80. b. 4. in Twines case yet if it be not bona fide but hath trust in it or other badges of fraud as if the Grantor keep them still in his own Possession useth them as his own in disposing of them or otherwise or if they be Sheep and the Grantor brand them with his own mark or when he grants all his Goods and doth not except so much as his wearing apparrell or the like such a Grant is within the Statute of 13 Eliz. 5. and upon a Fieri facias at anothers Suit the Sheriff may seise them as if no Grant at all had been made thereof Vide pl. in that case to the like purpose Queritur ut crescunt tot magna volumina Legis In promtu causa est crescit in orbe dolus Co. l. 4. 26. a. 1. in Kite and Quientons case 19. Pretenced titles of
their Custody to charge him with a Capias ad satisfaciendum to prevent an escape upon the Capias was condemned by all the Court of Starre-Chamber in the Countesse of Rutlands case because by the colour of Law and Iustice they by such feigned meanes do contrary to Law and Iustice and so cause Law and Iustice to be the Author of wrong and Injustice Seisin of rent 30. If A. having a Rent-seck issuing out of the Mannor of D. Co. l. 6. 58. a. 1. in Bredimans case granted unto him but no seisin thereof plots with B. to disseise the Ter-tenant to the end that after such disseisin B. may give him seisin of the Rent this seisin shall not bind the disseisee or he that right hath for the Covin makes it unlawfull Fraudulent Leases 31. The Father leases by Fraud and dyes Co. l. 5. 72. b. in Burrells case the Son knowing of it or not sels the Land in this case the Vendee shall avoid those Leases by the statute of 27 Eliz 4. so it is also where the Father leases to the Son who assignes fraudulently and then sells the Land c. False Deed. 32. If a man deny the Deed of his Ancestor Co. l. 8 60. a. 1. in Beechers case or plead a Deed made to his Ancestor and it is found against him yet he shall not be fined but onely amercied quia de alieno delicto c. But if the Tenant or Defendant plead a false Deed made to him or deny his own Deed and it is found against him or if he relicta verificatione cognoscit actionem he shall be fined for his falsity quia certi debemus esse de proprio facto Co. l. 8. 127. a. 1. in the City of Londons case 33. Where the custome is Inward shop that no Forraigner shall sell in any open Shop in paine to be fined he is a greater offender that trades there in an inward Shop or Chamber for such places are more dangerous and offensive then outward Shops because they may there use deceit and are not subject to search Qui male agit odit lucem omnia delicta in aperto leviora sunt See there likewise the case of the Prior of Dunstable to the like purpose Co. l. 8. 134. Mary Shipleys case 34. If an Executor plead pleni administravit Executor assets and assets be found by the Iury in his hands they shall pay the debt as far as they will answer but if they come short he shall answer the damages of his own goods for his false Plea Co. l. 9. 17. b. 1. in Ann Bedingfeilds case Co. ibid. 19. a. 3. 35. If a Feme having title of Dower do deceitfully detaine the Charters which concerne the Lands Rebutter in Dower out of which she is to have Dower assigned that is a good rebutter of the Action in a Writ of Dower brought by her against the Heire So if she deceitfully conceale and detaine the heire the Guardian in Chivalry may plead it against her in bar of her Dower but he cannot plead detainer of Charters which concerne the heire because they shall not be delivered to him Co. l. 9. 20. b. 4. in the case of Avowry 34. The Law will never suffer falsehood to suppresse truth Avowry and therefore if there be Lord and Tenant by Fealty and Rent and the Tenant make a Lease for years and the Lord distraines when there is no Rent or Services behind the Cattell of the Tenant and avowes upon a meere stranger as his true Tenant with purpose to charge the Plaintiff unjustly In this case the Lessee upon shewing the whole matter in speciall may pray in aid of the Lessor and shall thereby compell the Lord to avow upon the Lessor as his true Tenant and the false Avowry of the Lord upon the stranger who is not Tenant shall not annoy the Lessee against the truth of his case quia veritas nihil veretur nisi abscondi Co. l. 10. 110. a. 2. in Arthor Legats case 35. A false suggestion in the Kings Grant being the words of the Patentee makes the Patent void Void Patents upon false suggestion As where the King grants fifteen Acres of Land as concealed whereas they being parcell of a Mannor the profits thereof are duely answered to the King though occupyed by an Intrudor yet because they are onely detained and not concealed but suggested onely to be concealed the Patent is void So in 19 E. 3. tit grant 58. The King by his Letters Patents gives licence to appropriate the Advowson of D. to the Prior of C. Quae quidem advocatio non tenetur de nobis c. and in truth the Advowson was held of the King and the licence was held void for the Book saith that the suggestion was false And in 21 E. 4. 48. if the King grant the Mannor of D. c. Quod quidem manerium ad manus nostras devenit ratione eschaet c. and in truth the Mannor did not come to the King by escheat in this case also the Grant was void and the reason that Hussey cheife Iustice there gives is for that the falsehood comes of the surmise of the party Co. l. 11. 73. b. 4. 74. a. 4. in Magdalen Colledge case 36. A Grant to the Queen by the Master and Fellowes of Magdelen Colledge in Cambridge The like of an House in London rendring 15 l. per annum Rent upon Condition that she should re-grant it to Benedict Spinola Merchant Dâ—nizen and his heires was adjudged void because they made use of the Queens Prerogative to alien the Lands of the Colledge which they were prohibited to do by the Statute of 13 Eliz. within which Statute the Queen is included So if one intending to sell his Land had by Fraud conveyed it by Deed inrolled to the Queene with purpose to deceive the Purchasor and after he sels the Land for a valuable consideration and makes conveyance accordingly in this case the Purchasor shall enjoy the Land against the Queen by the Statute of 27 Eliz. 4. for albeit the Queen is not excepted yet the act being generall and made for suppressing of fraud shall bind the Queen c. vide pl. ibid. Covin in Feoffment Recovery Remitter 37. In Trin. 19 H. 8. fo 12. Br. Remitter 1. Pl. Co. 51. a. in Wimbish and Talboies case ibid. 54. b. 4. If one disseise the Discontinuee in tail by covin to the intent to enfeoff the Issue in tail within age who had no knowledge of the covin he enfeoffs him accordingly in this case by the better opinion the Issue in tail shall not be remitted notwithstanding his good title and the onely cause hereof is the covinous intent for covin may alter the matter where the title is good so if my Ancestor disseise me to the intent to make Feoffment with warranty to bar me here albeit the Warranty be
by making of him Knight he is out of the ward and custodie of the Lord because after he is Knight he ought to be sui juris and to imploy himselfe in feats of armes to defend the Kingdome c. And none shall pay the forfeiture of mariage but he that after refusal marrieth himselfe during the time that he is in wardship Howbeit the Lord shall immediately after his Knighthood have a writ de valoremaritagii such as in like case is used to be had after the heires full age of 21 years No protection for Wales 40 Since the Statute of 12 E. 1. Calvins case Co. l. 7. 21. b. 3. which incorporateth Wales into England and makes it parcel of England in possession no protection Quia moratur in Wallia will now lye because Wales is now within the Realm of England No wardship after attainder 41 Sir Everard Digby by act executed in his life conveyed his lands to the use of himselfe for life with divers remainders over Digbies case Co. l. 8. 165. b. 4. Co. l. 10. 85. a. 11. and then was attainted and executed for the Power-Treason The question was whether ward of the body or of the third part of the lands should accrue to the King by force of the Statutes of the 32 and 34 H. 8. And it was resolved that their could be neither wardship nor primer seisin in that case because there could be no heire for although there may be wardship and primer seisin where there is no descent as in case when a man grants all his lands holden by déed executed in his life yet there can be no wardship or primer seisin but where there is an heire by reason of whom alone those rights accrue to the King No dower by Guardian 42 During the minority of the heire a writ of Dower lyeth against the Guardian or he may endow the feme without suit if he please Co. l. 9. 16. b. 4. in Anne â—edingfields case but after full age although he hold the land over for the value of the mariage yet no writ of Dower lyeth against him neither can he endow her because after the full age of the heir he is no longer guardian Nusance removed 43 In Assise de nusans or Quod Permittat prosternere Co. l. â— 55 a. 1. in Baltens Case Co. l. 10. 84. b. 4. in Lovers Case c. it is a good plea that the Plaintiff himselfe either before the writ purchased or hanging the writ hath abated the nusance All Soccage Land devised 44 If there be tenant in tail to him and the heires males of his body the remainder in fée to another of land holden by Knight-service in Capite and that is also seised of other lands in soccage in fée and by his will in writing he deviseth all his soccage lands and dies without issue male in this case the devise is good for all the soccage land for the estate of the land holden determines by his death so that there was not any cause of ward at the Common Law so it is likewise 13 El. Dyer 3. if the estate of the land holden be defeated for a condition broken after the death of the tenant Wood or trees excepted 45 If I. grant the Mannor of D. except the wood Co. l. 11. 49. b. 3. Liffords case by this the soil it selfe is excepted but if I. except all my trées growing upon land or pasture out of any wood there by the exception of the trées the soil it selfe is not excepted But sufficient nutriment is reserved out of the land to sustaine the vegetative life of the trées for without that the trées which are excepted cannot subsist But if the Lessor cut them and by the licence of the Lessée root them up in this case the Lessee shall have the soil for cessante causa cessat effectus After pardon no conspiracy 46 If a man be falsely indicted of felonie Fitz. 115. g. and after by Act of Parliament a general pardon is granted of felonies c. Here the party shall not have a writ of conspiracie although he will plead to the indictment and is acquit and will not plead the Act c. because his life was never put in jeopardie which indéed ought to be the cause and ground of the action of conspiracie the felonie being pardoned by the Act. No attaint 47 If a man recover outragious damages by verdict Fitz. 107. b. and release parcel of the damages before Iudgement and hath onely Iudgement of the residue the defendant shall not have attaint for those damages which are so released Goods bailed 48 If a man have goods delivered unto him to deliver over to another and afterwards a writ of detinue is brought against him by him Fitz. 138. m. that hath right to have the goods c. here if the defendant hanging the action deliver the goods over to him unto whom they were given to be delivered this is a good barre of that action Fitz. 139. a. Mich. 34. E. 1. 49 After a divorce made betwixt Baron and feme Divorce the feme shall have a writ of detinue for the goods given with her in mariage not spent Dyer 13. 62. 28 H. 8. Fitz. 152. â— 50 The heire shall be charged by a writ of annuity upon grant of his father if he have assets by descent Annuity but an Annuity shall not be maintainable against the heire by prescription because it cannot be known whether he had any thing by descent from the same ancestor by whom the annuity began c. Plowd 37. a. The Sheriff of Londons case 51 If a prisoner in execution in Ludgate be suffered to go over the Bridge into Surrey though he have a kéeper with him Escape yet that is an escape for being in Surrey which is another County he was without gard and so consequently out of prison c. Plowd ibid. per Chomley 52 If a woman be Warden of the Fleet Prisoners enlarged by mariage or descent and one imprisoned there marieth the woman which is Warden this shall be judged an escape in the woman and the law adjudgeth the prisoner to be at large because he cannot be lawfully imprisoned but under a Warden and he cannot be properly conceived under the ward of his wife And therefore in that case the law adjudgeth him to be at large So if the Warden of the Fleet who hath his office in fée die seised his sonne and heire being then prisoner there and the office descends upon him being in prison here the law will adjudge him out of prison although he hath fetters upon his legs he being then without gard it being impossible that he should kéep himselfe in prison P. 13. E. 4. 8. Plowd ibid. 53 If a Iustice of Peace of one County pursue one into another County for felony comitted in the
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
of Attorney to the Lessor to make Livery and the Lessor maketh Livery accordingly notwithstanding the Lessor shall enter for the forfeiture because the Lessor for life had a Frank-tenement in him whereupon the Livery might work but if Lessée for yeares make a feoffment in fée and a Letter of Attorney to the Lessor to make Livery and he make Livery accordingly this Livery shall bind the Lessor and shall not be avoided by him for the Lessor cannot in this case make Livery as Attorney to the Lessée because the Lessée had no Freehold whereof to make Livery but all the Fréehold was in the Lessor Dyer 5. b. 1. 26 H. 8. 27 A man seised of devisable land before the Statute of Uses Rent devisable makes a Lease for yeares rendring rent and deviseth that rent to a stranger and dies and the stranger is seised of the rent and dies In this case the executors and not the heire of the devisée shall have the rent because the rent was but a Chattel in the devisée Dyer 90. b. 8. 1 Mar. 28 If there be Lessor and Lessée Trees sold by the Lessor and the Lessor sells all his trées growing in such a close Here nothing passeth to the Vendée for albeit the Lessor hath a general property in them yet the special property thereof is in the Lessée because the wood and trees are parcel of the Lease who shall by force of his Lease have the shade and fruit thereof as also the branches and loppings for fuel and mending of fences And therefore if the Lessor fell trees without the licence or will of the Lessee a good action of trespasse lyeth for the Lessée against him So likewise in 5 H. 4. 59. the heire in Chivalry being in ward fells trées in the land in ward and the Guardian brings trespasse against him and he pleads the special matter in barre Sed non allocatnr per curiam c. 25 Things are construed according to that which was the beginning of them Vide Max. 63. 21. Priviledge of tenant by the courtesie 1 Tenants after possibility of issue extinct Co. Inst pars 1 28. a. 2. although upon the matter he be but a Tenant for life yet hath he 8 priviledges incident to his estate which the Law alloweth not to a bare Tenant for life in respect of the inheritance which was once in him which priviledges you may see Co. In. part 1. 28. a. 2. The like 2 If a woman Tenant in taile general taketh an husband and hath issue which issue dieth and the wife dieth also without any other issue Co. ibid. 30. a. 1 there albeit the estate in tail be determined yet shall the hushand be Tenant by the Curtesie because he was intitled to be Tenant per Legem Angliae at first upon having the issue before the estate in taile was spent And although in this case the estate be not consummate untill the death of the wife yet it hath such a beginning after issue had in the life of the wife as is respected in Law for divers purposes for 1 After issue had he shall do homage alone and is become Tenant to the Lord and the Avowry shall be made onely upon the husband in the life of the wife 2 If after issue a 34 E. 2. Cui in vita 13. 2 E. 2. Cui in vita 26. 10 E. 3. 12. Dyer 21. El. 3â—3 29 E. 3. 27. the husband maketh a feofment in fée and the wife dieth the feoffée shall hold it during the life of the husband and the heire of the wife shall not during his life recover it in a sur cui in vita for it could not be a forfeiture because the estate at the time of the feofment was an estate of tenancy by the Curtesie initiate and not consummate And it is adjudged in 29 E. 3. that the Tenant by the Curtesie cannot claime by a Devise and waive the estate of his tenancy by the Curtesie because saith the Book the Fréehold commenced in him before the Devise for terme of his life A Voyage Royal. 3 When the King makes Voyage Royal into Scotland to subdue the Scots Co. ibid. 71. a. 4. Littl. § 96. Co. ibid. 70. a. 1 Co. ibid. 108. a. 4. Vide infrà 10. c. M. 43. 12. Co. ibid. 164. a. 4. c Bracton l. 1. 66. Britt cap. 71. Fleta l. 5. c. 9. 6. c. 47. the Law accompteth the beginning of the forty dayes to be after the King entreth into the forreigne Nation for then the Warre beginneth and till he come there he and his host are said to go towards the Warre and no military service is to be done till the King and his host come thither Tenure in Capite 4 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 person of the King but not in Capite because the original tenure was not created by the King 3 E. 3. B. tenures 94. 30 H. 8. 43. 28 H. 8. B. livery 57 c. Descent in Capita stirpes 5 In case of Coparceners sometimes the descent is in Stirpes viz. to Stocks and Roots and sometimes in Capita to Heads As if a man hath issue two daughters and dieth this descent is in Capita viz. that each daughter shall inherit alike as Littleton saith Sect. 241. But if a man hath issue two daughters and the eldest daughter hath issue thrée daughters and the youngest but one daughter All those four shall inherit but the daughter of the youngest shall have as much as the thrée daughters of the eldest Ratione Stirpium in respect of their mothers estate from which theirs took beginning and not Ratione Capitum for in judgement of Law every daughter hath a seveaal Stock or Root So if a man hath issue two daughters and the eldest hath issue divers sonnes and divers daughters and the youngest hath issue divers daughters the eldest sonne of the eldest daughter shall onely inherit and all the daughters of the youngest for this also is not in Capita but in Stirpes and in this case the eldest sonne is Coparcener with the daughters of the youngest and shall have one moity viz. his mothers part So that men descending of daughters may be Coparceners as well as women and shall joyntly implead and be impleaded c. Vide 26. 2. Littl. § 2â—2 Co. ibid. 178. b. 2. 6 The Lands in Frank-mariage to be put into Hotchpot Frankmariage Hotchpot and the Lands in Fée simple which descend ought to move from one and the same person for if they moved from several Ancestors they cannot be put into Hotchpot c. Co. ibid. 187. a. 4. 39 H. 6. 45. 21 R. 2. judg 63. M. 33. E. 3. 7 If Lands be given to
Déed but other things notwithstanding the said confirmation the tenant shall yield to the Lord as reliefe aide pur file marier and aide pur faire fitz Chivalier because these are incidents to the tenure which do still remaine and shall not be discharged without special words by the general words of all actions services and demands The like 31 If a man hold of me by Knight-service Rent-suit Co. ibid. c. and I release to him all my right in the Seigniory excepting the Tenure by Knight-service or confirme his estate to hold of me by Knight-service onely for all manner of services exactions and demands yet shall the Lord have Ward Mariage Reliefe Ayde pur file marier pur faire fitz Chivalier for these be incident to the Tenure which doth still remaine â—he rent pasâ—th with the â—version but â—t è converso 32 Where a Lease for terme of yeares or life Co. ib. 317. a. 1. Littl. § 572. or a gift in taile is made to a man reserving rent c. if the Lessor or the Donor grant the reversion to another and the Tenant attornes the rent passeth to the Grantée albeit the Deed of the grant of the reversion make no mention of the rent because the rent is incident to the reversion but not è converso for if a man in this case will grant the rent saving the reversion albeit the Tenant attorne yet that rent is but a rent-secke c. Co. ibid. 319. a. 3. 9 H. 6. 16. The Deane of Pauls case 20 Eliz. 33 If the Lessor disseise Tenant for life A rent incident or not incident to a reversion Diversity or ouste Tenant for yeares and maketh a Feofment in fée by this the rent is reserved upon the Lease for life or yeares is not extinguished but by the regresse of the Lessée the rent is revived because it is incident to the reversion And so it hath béen adjudged But if a man be seised of a rent in fée and disseise the Tenant of the land and make a Feofment in Fée the Tenant re-entreth this rent is not revived And to note a diversity betwéen a rent incident and a rent not incident to a reversion c. Littl. §. 590 591. Co. ibid. 324. 34 If I be seised of a Mannor parcel in demesne and parcel in service and I give certaine acres of land Rent incident to the reversâ—on A Donor cannot be ousted of it parcel of the demesnes to another in taile rendring rent in this case if I be disseised of the Mannor and all the Tenants attorne and pay their rents to the Disseisor and the Tenant in taile also pay to him the rent by me reserved and after the Disseisor dies and his heir is in by descent yet in this case I may well distraine the Tenant in taile and his heires for the rent so by me reserved because the rent reserved is incident to the reversion and the reversion of the land given in taile is still in me notwithstanding the disseisin and descent for as long as the Donée in tail is in possession he preserves the reversion in the Donor and so long as reversion continues in the Donor so long do the rents and services as incident thereunto belong to the Donor neither can the Donor be put out of his reversion unlesse the Donée be put out of his possession and if the Donee be put out of his possession consequently is the Donor put out of his reversion But if the Donee make a regresse and regaine his estate and possession thereby doth he ipso facto revest the reversion in the Donor c. There is the same reason of a Lease for life or yeares rendring rent c. 35 He that hath a remainder expectant upon an estate taile Error may bâ— brought by 〈◊〉 Reversionâ—â— or remâ—indâ—â— shall have a writ of Error upon a Iudgment given against the Tenant in taile Co. l. 3. 3. b. 4. The Marquess of Winchesters case albeit there was no such remainder at the Common Law For when the Statute de donis conditionalibus enabled the Donor to limit a remainder upon an estate taile all actions which the Common Law gave to privies in estate are by the same act as Incidents implicitely given also according to the rule of the Common Law And therefore as those in reversion or remainder expectant upon an estate for life shall have a writ of Error by the Common Law of a judgement given against Tenant for life although they were not made parties by aide prayer voucher or receipt So also since the Statute de donis conditionalibus shall he have that hath a reversion or remainder expectant upon an estate taile Co. l. 4. 8. b. 3. Bevils case 36 The seisin of a superiour service is seisin of all inferior services Superiour sâ—â—vice seisin oâ— inferiour incident unto it as seisin of Escuage is seisin of Homage and Fealty and seisin of Homage is seisin of Fealty and seisin of Rent is seisin of Fealty where the Seigniory is by Fealty and Rent Co. l. 4. 23. a. 1. Deal Rigdens case 37 Where by the custome of a Copihold Mannor plaints have béen made in the Court of the Mannor in the nature of reall actions Plaints in 〈◊〉 copihold 〈◊〉 to bar the 〈◊〉 in taile if a recovery in such a plaint be had against Tenant in taile admitting that Copihold land may be intailed that recovery shall work a discontinuance and shall take away the entry of the issue in taile for in as much as plaints in the nature of reall actions are warranted by the custome this is an Incident which the Law annexeth to the said custome viz. that such a recovery shall make a discontinuance which agrees with the reason of the principall point in Browns case Co. l. 4. 21. a. And the like judgement was given in B.R.M. 36 37 Eliz. betwixt Clun and Peale Rot. 1417. Copihold seâ—ered by cuâ—ome contiâ—ue severed â—lbeit surrenâ—red together â—n one copy 38 If a Copiholder is seised by force of several Copies Co. l. 4. 27. a. 4. Taverners case per Cur. Co. ibid. 28. a. 2. viz. of Black acre by 4d rent of White acre by vj d. and of Gréen acre by xij d. rent and he makes waste in part of Black acre or makes feoffment of it or denies the rent of it whereupon Black acre is forfeited This is no forfeiture of White acre or Gréen acre for although they are all in one and the same hand yet every of them is severally holden and to every acre there is a severall condition as an incident implicitely annexed unto it so that the forfeiture of one cannot be the forfeiture of any of the other because the severall conditions in Law do insue the severall tenures So likewise if the Copiholder of the said thrée acres surrender them altogether in one surrender to the use of A.
and his heirs and the Lord admit A. accordingly Tenendum per antiqua servitia inde prius debita de jure consueta or to the like effect and A. commits forfeiture in Black acre he shall forfeit onely that and neither of the other For the said Tenendum reddendo singula singulis continues the severall tenures In like manner if divers several Copiholds escheat to the Lord and he re-grant them to another Tenendum per antiqua servitia c. they shall be severally holden as they were before the Escheat c. Several times for several copies 39 If a man hath severall Copihold lands holden by several services Co. l. 4. 28. a. 1. Hubbert and Hamonds case the Lord ought to assesse and demand fines severally for each parcell so severally holden For the Tenant may refuse to pay the fine for one parcell and forfeit it and may pay the fines for the other because every severall tenure hath a severall condition in Law as an incident tacitè annexed unto it And therefore the Lord ought for every severall tenure to assesse and demand a severall fine The office of Shire-clerk incident to the Sheriffs office 40 Quéen Eliz. grants to one Mitton the office of Clerk of the County Court or the Shire-Clerk of the County of Somerset with all fées Co. l. 4. 33. a. 3. Mittons case c. for terme of his life and after the Quéen makes Arthur Hopton High Sheriffe of the same County who interrupts Mitton claiming that which was granted to him as a thing incident to his office of Sheriffe c. And it was adjudged that the County Court and the entring of all the proceedings in it are so incident to the office of Sheriffe that they cannot by Letters Patents be divided from it and albeit the said grant was made to Mitton when the office of Sheriffe was void yet when the Queen makes a new Sheriffe he shall avoid it c. Exigenter incident to the chief Justice 41 Tempore vacationis Co. ibid. 2 El. Dyâ—r 175. of the office of Chiefe Iustice of the Common Banke Queen Mary grants the office of the Exigenter of London to one Scrogges and it was holden void because it was incident to the office of Chiefe Iustice of the County which the Queen could not have And therefore the next Chiefe Iustice shall avoid it c. Gaoles incident to Sheriffs 42 Grants made by the King of the custody of the Gaoles of Counties are void Co. l. 4. 34. a. 1. in Mittons case per touts les justices because the custody of Gaoles of Counties of right do belong are by the Law annexed incident to the office of Sheriff as doth very well appeare by the judgement in Parliament Anno 14 E. 3. cap. 10. by which it is ordained that all Gaoles of Counties shall be rejoyned to the Sheriffs and that the Sheriffs shall again have the custody of the same Gaols as in times past was used and that they should put in such Gaolers for which they would answer c. Where a covenant binds and where not betwixt Lessor and Lessee 43 In a demise of Land when a covenant extends to a thing in esse Co. l. 5. 16. a. 4. Spencers case parcell of the Demise the thing to be done by force of the Covenant is quodam-modo incident and appurtenant to the thing demised and shall runne with the land and shall also binde the Assignée although he be not bound by expresse words But when the Covenant extends to a thing which hath not essence at the time of the Demise made that which hath not essence cannot be said to be incident or annexed to the thing demised and therefore in that case the Assignée shall not be hound to it unlesse specially named As if the Lessée covenant to repaire the houses c. this is parcell of the contract and extends to the supportation of the thing demised and therefore is quodam-modo incident and annexed to the houses and shall binde the Assignée although he be not expresly bound by the covenant But if the covenant be to build a brick-wall upon parcell of the land demised or the like which was not in esse at the time of the demise made but was to be done afterwards this covenant may binde the Covenantor himselfe and his Executors or Administrators but shall never binde the Assignâ—e because the Law will never annex a covenant to a thing which hath not essence c. It is otherwise Co. ibid. b. 3. if the Covenantor for himselfe and his Assignes covenant to do it for then the Assignes are specially named c. Co. 5. 24. a. 4. The Deane and Chapter of Windsor's case Co. ibid. 17. a. 4. 44 If a man demise or grant land to a Feme for years The like and the Lessor covenants with the Lessee to repaire the houses during the terme the Feme takes Baron and dies the Baron shall have an action of Covenant as well upon the covenant in Law by force of these words Demise and grant as also upon the expresse covenant because such a covenant runs with the land and is incident unto it There is the same Law of a Tenant by Statute Merchant or Statute Staple Elegit or of a terme sold by force of an Execution for in that case also the Vendée of the terme shall have an action of Covenant as a thing incident to the land albeit all these come to the terme by act in Law c. So likewise if a man grant to his Lessee for years that he shall have so many Estovers as shall serve to repaire his house or to burn within his house or the like during the term this covenant is as an incident and appertinent that runs with the land in whose hands soever it falls Co. l. 5. 47. a. 2. Franklins case 45 In a general pardon when an offence is excepted all the incidents and dependants thereupon are also excepted whether they be corporall or pecuniary c. Co. lib. 6. 7. a. 1. Wheelers case 46 If the King grant lands in fée Tenendum de nobis Fealty incident thougâ— not named c. per servitiuÌ„ unius rosae rubae annuatim c. solummodo pro omnibus omnimodis aliis servitiis c. This tenure is soccage in chief and in as much as fealty is incident to every Rent-service the Law annexeth fealty unto the said rent and then these words pro omnibus aliis servitiis are to be understood of other services which the Law doth not imply or add unto the rent so that then the tenure shall be by a Rose and fealty c. Co. l. 6 70. a. 3 Sir Moyle Finches case 47 If there be Lord and Tenant by Fealty and Rent Seigniory eâ—tinct and the Lord disseises the Tenant of the land and makes feoffment in fée by this the Seignory is
Will is determined though the Lord cometh in above the lease for life or for years the custodie or any other particular interest or tenancy at will yet shall he be compelled to make admittance according to the surrender And so it was holden in the Earl of Arundels case in 17 Eliz. See more of this Co. l. 4. in the Copihold cases Tâ—in 1. Jac. Inter Shepland and Ridler in Repl. in Co. Ba. the case of Guardian in soccage adjudged Co. ib. 76. b. 1. 10 In many cases the heire shall be in ward The Lord that have Wardship though not dying seised albeit the Tenant died not seised c. nor in the Homage of the Lord As if the Tenant maketh a feoffment in fee upon condition and the Feoffor dieth after his death the condition is broken the heire within age entreth for the condition broken In this case the heire shall be in ward and yet the Feoffor had no estate or right in the land at the time of his death but onely a condition and which was broken after his decease but because the condition restoreth the Tenant to the land in nature of a descent for he shall be in by descent by the same reason shall it restore the Lord to the wardship c. Co. ib. 89. b. 4. 11 If a stranger entreth into the lands of the Infant within age of 14 years taketh the profits of the same A stranger Guardian is soccage accountable the Infant may charge him as Guardian in Soccage And this doth well agrée with the writ of accompt against a Guardian in soccage for the words be Idem B. praefato A. rationabilem compotum suum de exitibus pervenientibus de terris tenementis suis in N. quae tenentur in soccagio quorum custodiam Idem B. habuit dum praedicta A. infra aetatem fuit dicitur and true it is that in judgement of Law he had the custodie of the lands and is called Tutor alienus whereas the right Guardian in Soccage is called Tutor proprius Neither is it any plea for him to deny that he is prochein amy but he must answer to the taking of the profits as Littleton saith Sect. 124. Co. ibid. 108. a. 4. 12 If one holdeth land of a common person in grosse as of his person and not of any Mannor Tenure in Capite c. and this Seignory escheateth to the King yea though it be by attainder of Treason he holdeth of the person son of the King as he held before of the person of the Subject and not of the King in Capite because the originall tenure was not created by the King And therefore it is directly said that a tenure of the King in Capite is when the land is not holden of the King as of any Honour Castle Mannor c. But when the land is holden of the King as of his Crown Vide Dyer 44. 28. c. 30 H. 8. Mag. Car. cap. 31. 25. 4. Advowson appendant 13 An Advowson is appendant to the Mannor of Dale Co. ib. 122 a. 1. of which Mannor the Mannor of Sale is holden the Mannor of Sale is made parcel of the Mannor of Dale by way of Escheat In this case the Advowson is still onely appendant to the Mannor of Dale Common appendant 14 If Common appendant be claimed to a Mannor Co. ib. 122. a. 4. yet in rei veritate it is appendant to the Demesnes and not to the services and therefore if a tenancy escheat the Lord shâ—ll not increase his Common by reason of that An Assise for â—ent after disâ—eisin 15 If the Tenant rescue the Distresse Co. Inst pars 1. 160. b. 3. and after is disseised of the tenancy yet an assise lyeth against him for the Disseisin done of the rent by the Rescous c. Coparcenary â—n other â—ands 16 If one of the Parceners take Baron and die Co. ib. 174. b. 4. c. the Baron being Tenant by the Courtesie is compellable by a writ de partitione facienda to make partition and shall be joyntly impleaded with the other Coparcener for he doth continue the state of Coparcenary as the other Parcener doth c. So likewise if there be two Coparceners and one of them doth alien in fée the Alienée and the other Coparcener are Tenants in common and several writs of Praecipe shall be brought against them and yet the Parcener may have a writ of partition against the Alienée at the Common Law which is a stronger case than the case put of Tenant by the Courtesie The heire in Hotchpot 17 If the Donées in Frankmarriage die before the lands be put into Hotchpot with the other Coparcener Littl. §. 270. Co. ib. 178. a. the heire of the Donées may well do it Descent shall not take away entry 18 If a Dissesor make a lease to a man and to his heirs during the life of I. S. and the Lessée dieth Co. ib. 239. a. 3. living I. S. this shall not take away the entry of the Disseisée because he that died seised had but a Frée-hold and heirs in that case were added to prevent an occupant For an heire in that case shall not have his age c. as it was adjudged in Lambs case P. 16 Eliz. in Co. Ba. Right left after recovery 19 If the Disseisée disseise the heire of the Disseisor Co. ib. 266. a. 4. albeit the heire recover the land against the Disseisée yet shall he leave the proceeding right in the Disseisée So if a woman that hath right of Dower disseise the heire and he recover the land against her yet shall he leave the right of Dower in her Attornment 20 If either the Grantor or the Grantée of a Seigniory rent reversion Co. ib. 315. a. 4. remainder c. die before attornment the attornment is thereby countermanded But albeit the Tenant of the land die or grant over his estate to another yet may he that hath his estate either by descent or grant attorn at any time Wast mainâ—einable 21 Regularly when the reversion is devested Co. ib. 356. a. 4. the Lessor cannot have an action of Waste yet in some special cases an action of Waste shall lie albeit the Lessor had nothing in the reversion at the time of the Waste done As if Tenant for life make a feoffment in fée upon condition and Waste is done and after the Lessée re-enter for the condition broken In this case the Lessor shall have an action of Waste So likewise if Lessee for life be disseised and Waste is done the Lessée re-enters Here also an action of Waste shall be maintained against the Lessee c. 5. Co. ibid. 366. b. 3. 22 A warranty that commenceth by disseisin is properly Warranty that begins by disseisin when the disseisin is done immediately to the heire that
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
in the Law in two significations Damages 〈◊〉 the Wronâ— relata the one properly and generally the other relative and strick properly as when costs of suit are also included in it c. But when the Plaintiff sheweth the wrong done unto him to the damage of such a sum this is to be taken relative for the wrong which is past before the Writ brought and they are then to be assessed occasionis transgressionis praedictae and cannot extend to Costs of suit which are future and of another nature viz. to expences in Law whereof no certainty can then be known Co. Inst pars 1. 338. b. 4. 8 An Estate-tail cannot be discontinued but where he Discontiâ—â—ance Vidâ— M. 23. 5. that made the discontinuance was not once seised by force of the Tail except it be by reason of Warranty c. according to the Rule in Philosophie Omnis privatio praesupponit habitum Co. ibid. 341. b. 3. for he cannot discontinue that estate which he never had Neither yet can a Parson discontinue the Fee-simple of his parsonage Co. ibid. 359. 24. because the intire and Fee-right thereof was never in him 9 If a Feofment be made to two Livery to 〈◊〉 enures to both and livery is made onely to one of them but yet according to the deed In this case the livery shall enure to both because the deed whereunto the livery referreth is made to both Verba relata hoc maximè operantur per referentiam ut in eis inesse videntur Pl. Co. 70. b. 2. in Kedwellies case against Brand. 10 Where Rent is reserved to be paid out of the Land at Dale upon Michaelmas day if it be behind 40 dayes after Place of pâ—â—ment of Râ—â— that then it shal be lawfull for the Lessor to re-enter In this case it ought to be tendred at Dale a convenient time before Sun-set upon the last of the 40 dayes for albeit it be not by expresse words that if the Rent be behind and unpaid at Dale by the space of 40 dayes c. yet it shall have Relation to the place first named and so the Law saith that the Rent shall be paid at Dale the last of the 40 dayes although it be not so expressed by plain words Vide 131. 5. Dyer 14. 69. 28 H. 8. per Shelley and Fitz-herbert 11 The Termor-covenants by Indenture to build an House without words of Executors the Term expires and he dies In this case Executors chargeable without naming theâ— the Executors shall be charged for they are co-relatives with him and represent his person it is otherwise of the heir unlesse he be named It is so likewise of an Obligation because it is a present duty See also Dyer 22. b. 139. 28 H. 8. Per curiam 12 Two have a Term as Executors Executors intirely possest and one of them grants all that he hath in the Land Dyer 23. b. 146. 28 H. 8. In this case the whole Lease passeth because each Executor representing the person of the Testator hath an Intire authority Howbeit the Law is otherwise of other Iointenants 13 A. by Indenture inrolled demiseth the Mannor of D. to B. and his Heires in fee farm rendring Rent with clause of distresse Dyer 157. Pl. 28. 4 5. P. M. Rent not â—tinct by a Fine and upon non-payment a re-entry by the same Indenture Covenants to make such assurance c. according to the true intent purport and meaning expressed in the same Indenture and by another Indenture bearing date the same day A. covenants to levie a Fine of the said Mannor c. before such a feast c. which Fine should be to the onely use intents effects and conditions expressed in the former Indenture and to none other and livery of Seisin was made upon the same Indenture accordingly and after the Fine was also levied viz. come â—eo quae B. habuit ex dono A. with release and warranty according to the course of Fines c. In this case the Rent was not extinct or touched by the Fine because the Fine had relation to the former Indenture Challenge 14 If a Iuror be but a suitor to the Leet of the Plaintiff or Defendant this is a principal Challenge Dyer 176. 27. 2 Eliz. in respect of that relation betwixt them which may procure favour Covenant 15 A Feme hath the third part of the Land of a Termor delivered unto her by the Sheriffe in Dower the Termor gives grants Dyer 240. 43. 7 Eliz. and assignes all the Land comprised in his Lease to A. and covenants that he had not done any act but that the Assignée may enjoy it against every one and he was also bound by Obligation to perform the Covenants In this case the Obligation is not forfeited for the words but that have Relation to the words of the Lessee viz. that he hath not done any Act and are not absolute words as if the Assignee should enjoy it against all men 53 Verba posteriora propter certituâ—inem addita ad priora quae certitudine indigent sunt referenda 1 Sir Adam de Clydrow Knight 6 E. 3. 12. Co. l. 8. 119. a 1. in Dr. Bonhams case brings a praecipe quod reddat against John de Clydrow Reference of words and the Writ was quod justè c. reddat manerium de Wicombe duas crucat terrae cum pertinentiis in Clydrow In this case the Town of Clydrow shal not relate to the Mannor quia non indiget for the Mannor may be demanded without making mention that it lyeth within any Town but cum pertinentiis although it cometh after the Town yet doth it relate to the Mannor quia indiget c. Vide 3 E. 4. 10. The like 2 If a man grant Rent in manerio de praecipiend in C. Acres of Land parcel of the same Mannor with clanse of distresse in the C. Acres Co. l. 8. 154. b. 2. Sir Edw. Althams case In this case the Rent shall onely issue out of the C. Acres and the general words shall be construed according to the special words according to the Rule in Margery Mortimers case 7 E. 3. fol. 10. a. Quando carta continet generalem clausulam posteaque descendit ad verba specialia quae clausulae generali sunt consentanea interpretanda est carta secundum verba specialia Rent 3 If a man grant Rent and go no farther Co. ibid. these words shall create an estate for life but if the habendum he for yeares that shall qualifie the general words â—ail 4 If a man give Lands to one and his Heires Co. ibid. habendum to him and the Heires of his body he shall have but an Estate-fall and no Fée expectant for the habenâ—um qualifies the general words Precedent 5 A Feme hath title of Dower in Lands in Wethersfield Gosfield Co. l. 8. 154.
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
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.
every one hath a part of the Mannor without saying any thing of the Advowson appendant the Advowson remains in coparcenary and yet in every of their turns it is appendant to that part which they have and so it is also if they make composition to present against common right yet it remains appendant Co. ib. 131. b. 2. 4 The King by his Prerogative regularly is to be preferred in payment of his duty or debt by his debtor before any subject The Kings debt first pâ—â— except in sâ—â— where a fine 〈◊〉 due to the 〈◊〉 and damages to the party although the Kings debt or duty be the latter and the reason hereof is for that Thesaurus Regis est fundamentum belli firmamentum pacis And thereupon the Law gave the King remedy by the writ of Protection Cum clausula volumus to protect his Debtor that he shall not be sued or attached until he had paid the Kings debt but hereof grew some inconvenience because many times to delay other men of their suits the Kings debts were the more slowly paid For remedy whereof it was enacted by the Stat. of 25 E. 3. cap. 19. That the other Creditors might have their actions against the Kings Debtor and also procéed to judgement but not to execution unlesse that Creditor will take upon him to pay the Kings debt and then he shall have execution for both the debts Howbeit in some cases the Subject shall be satisfied before the King for regularly whensoever the King is entitled to any fine or duty by the suit of the party the party shall be first satisfied as in a Decies tantum against a Iuror or an Embraceor for there the ten-fold damages shall be first satisfied and then the Kings fine because this is as accessary to that So likewise if in an action of Debt the Defendant deny his déed and it is found against him in that case he shall pay a fine to the King but the Plaintiff shall be first satisfied And so it is in all other like cases The like course was also taken in Bils preferred by Subjects in the Starre Chamber For if costs and damages were there recovered by the party they were answered before the Kings fine c. Vide 189. 41. Co. ib. 138. a 4. 5 If Tenant in tail of a Mannor whereunto a Villein is regardant A Mannor drawes the Villein enfeoff the Villein of the Mannor and dieth the issue shall have a Formedon against the Villein and after the recovery of the Mannor he shall seise the Villein Howbeit before the recovery of the Mannor he cannot seise the Villein for that the Mannor was principal c. Littl. § 229 Co. ib. 152. a. 3. 6 If the Donor or Lessor of land grant his reversion to another Rent and â—vice incidenâ— to the reversion c. and the Tenant attorns the rent and service passe by this word reversion because they are incident unto it but by the grant of the rent the reversion shall not passe because the Incident shall passe by the grant of the Principal but not the Principal by the grant of the Incident Accessarium non dâ—cit sed sequitur suum principale Scire facias â—llows the â—cord 7 Where the Statute of 32 H. 8. cap. 5. Co. ib. 290. a. 2. concerning executions of lands c. in case the said lands be evicted giveth a Scire facias out of the same Court from whence the former execution did procéed c. to have execution of other lands c. If the record be removed by writ of Errour into another Court and there affirmed the Tenant by execution that is evicted shall have a Scire facias by the equity of that Statute out of the Court into which the writ of Errour was brought because the Scire facias must be grounded upon the record and Accessarium sequitur principale c. â—illein and â—dvowson apâ—endant to a Mannor 8 Albeit a man cannot at all be put out of possession of his Villein in grosse nor directly of his Villein regardant yet may he per obliquum Co. ib. 306. b. 4. c. and by a mean be put out of possession of his villein regardant to a Mannor For by putting him out of possession of the Mannor which is the Principal he may likewise be put out of possession of the Villein regardant which is but accessory And so it is also of an Advowson appendant to a Mannor And therefore by the grant of a Mannor without saying cum pertinentiis the Villein regardant Advowson appendant and the like do passe For if the Disseisor shall gain them as Incidents to the Mannor whose estate is tortious A multo fortiori the Feoffée who cometh to his estate by lawful conveyance shall have them as Incidents And where the entry of the Disseisée is lawful he may seise the Villein regardant or present to the Advowson c. before he enter into the Mannor But it is otherwise where his entry is not lawful And so are our ancient Authors to be intended and a point much controverted in our books to be resolved Vide Dyer 5 6. 9 If the reversion of Lessée for life be granted Co. ib. 316. a. 3. Littl. § 568. and Lessée for life assigns over his estate Attornment â—ollows the â—and the Lessée cannot attorn but the Assignée for the attornment follows the land So likewise if Lessée for life assigneth over his estate upon condition the Assignée shall attorn because he is Tenant of the land c. The demesns c. follows the Mannor 10 Attornment of the Tenant of a Mannor to a Disseisor of the Demesnes shall dispossesse the Lord of the rents and services Co. Inst pars 1. 323. a. 1. parcel of the Mannor because both Demesns rents and services make but one intire Mannor and the Demesnes are the principal c. A charge follows the land 11 If there be 80 acres of Meadow Co. ib. 343. b. 3. which use to be divided yearly amongst divers persons by lot or otherwise viz. thirtéen acres thereof to A. 10 acres to B c. So as sometime the 13 acres lie in one place and sometime in another and so of the rest In this case if A. being seised of these 13 acres in fée grant a Rent-charge out of those 13 acres generally lying in the Meadow of 80 without mentioning where they lye particularly There as the estate of the land removes the charge shall remove also Advowson â—ollows the Mannor 12 Tenant in tail of a Mannor whereunto an Advowson is appendant maketh a discontinuance Co. ib. 349. b. 2. 5 H. 7. 35. Co. l. 3. 3. a. 4. in the Marq. of Winchesters case the Discontinuée granteth the Advowson to Tenant in tail and his heirs Tenant in tail dieth the issue is not remitted to the Advowson because the issue had no action to recover the Advowson before
be performed because in those cases the Covenantor departed with the whole estate unto which the Condition was annexed c. â—he estate â—ile not barâ—d the reverâ—oÌ„ or remainâ—r not barred â—lso 26 Whereas by the Statute of 34 H. 8. cap. 20. It is provided Co. l. 8. 77. b. 4. in the Lord Staffords case that no common recovery had against Tenant in taile who is party to the recovery shall barre his issues when the King hath the reversion c. by this Inclusivè the act preserves the reversions and remainders in tail of the Kings grant for they cannot be barred but when the estate tail upon which they depend is barred And this is the reason that when Tenant in taile is in of another estate and suffers a common recovery as Tenant this shall not bar any reversion or remainder because it barreth not the estate of the Tenant in taile being party to the recovery and upon whose estate such reversion or remainder depends For quod non valet in principali in accessoria seu consequenti non valebit quod non valet in magis propinquo non valebit in magis remoto Ordinary subâ—ect to an aâ—tion 27 If before the Statute of Westm 2. cap. 19. Co. l. 9. 39. b. 2. Hensloes case an action lay at the Common Law against the Deputies or Committées of the Ordinary by the name of Executors as appears by 38 E. 3. 26. 42 E. 3. 2. A multo fortiori an action shall lie by the Common Law against the Ordinary himself who is the Principal and from whom the Administrators do now derive their power â—rincipal and Accessary 28 Albeit the Principal be attainted erroneously Co. l. 9. 119. a. 4. in the Lord Sanchiers case either for errour in processe or because the Principal being out of the realm c. was out-lawed or because he was in prison at the time of the Out-lawry c. yet shall the accessary be attainted for the attainder of the Principal stands good until it be reversed and with this agrées the resolution of all the Iustices in the Kings Bench 2 R. 3. 12. And in the 18 E. 4. 9. the Principal was erroneously out-lawed for felony and the Accessory was taken indicted arraigned convicted attainted and hanged and afterwards the Principal reversed the Out-lawry and was indicted and arraigned and found not guilty and thereupon was acquit And in this case forasmuch as there can be no accessary but where there is a principal and here there was no principal the heire of the accessary shall be restored to the lands which his Father had forfeited by that unjust attainder either by entry or action at his election For now upon the matter by act in Law the attainder against his Father is without any writ of Error utterly annulled because by reversing the attainder against the Principal the attainder against the Accessary which depended upon the attainder of the principal is ipso facto utterly defeated and annulled And this doth notably appeare in an ancient book de tempore E. 1. tit Mortdancester 46. where the case was this A. was indicted of felony and B. of of the receipt of A. A. eloigns himselfe and is out-lawed B. was taken and put himselfe upon inquest and was found guilty and was thereupon attainted and hanged and the Lord entred as in his escheat After which time A. came in and reversed the Out-lawry and pleaded to the felony and was found not guilty wherey he was acquit Hereupon the heire of B. brings a Mortdancester against the Lord by escheat and therein sheweth all this matter and so upon a Demurrer it was awarded that the heire should recover seisin of the land For if B. had béen living he should have gone quit by the acquital of A. because B. could not be a receiver of a Felon when A. was no Felon 19. 29. 34 35. â—rincipal and â—ccessary 29 The makers of the Statute of 4 5 P. M. cap. 4. Co. l. 11. 35. a. 1. in Alexander Powlters case observing that by the Statute of 25 H. 8. cap. 3. Clergy was taken from the principal offender in the case of house-burning c. and not from any accessary have provided that the accessary before the fact in that and other cases there provided for shall be also outed of his Clergy which was taken to be a good interpretation made by that Parliament of all the Acts which concerned that matter For if the Principal shall have his Clergy it would be absurd to take away Clergy from the accessary because if the Principal hath his Clergy before judgement the accessary shall not be arraigned Vide suprà 19. F. N. B. 32. a. primer 30 If Baron and Feme present to an Advowson in right of the Feme which is appendant to the Mannor of the Feme Advowson appendant to an acre of land and after the Baron alien an acre parcel of the Mannor together with the Advowson in fée to a stranger and dies and after the stranger presents and then aliens the acre to another in fée saving the Advowson to himselfe and after the Church becomes void Here the Feme shall present and if she be disturbed she shall have an Assise of Darrein presentment because the Advowson was severed from the acre but if the Advowson were appendant to the acre then ought the Feme to recover the acre before she can present to the Advowson F. N. B. 47. d. 31 If a man recover in a Quare Impedit in the Common Pleas Quare non admisit out of the Kings Bench. and the record is removed by a writ of Errour into the Kings Bench and there affirmed In that case he shall have a writ to the Bishop there and ought to sue a Quare non admisit against the Bishop there upon that record c. F. N. B. 107. m. 32 An Attaint may be sued in the Common Pleas The like for an attaint if the record be there which is the principal or it may be sued in the Kings Bench upon false verdict given in the Common Pleas if the record be removed into the Kings Bench c. Ibid. 33 A recovery was had in an Assise brought in the Kings Bench The like and afterwards the record was sent into the Common Pleas and the party sued an Attaint upon that record in the Common Pleas For the record is the principal and the Attaint thereupon is accessary which see in tit Assise 8 E. 2. Itinere Canc. F. N. B. 115. f. 34 If the Principal die before verdict given upon the acquital Principal and Accessory or hath a charter of pardon and plead it c. In that case the Accessory shall not have a writ of Conspiracy because he is discharged by the death of the Principal or by the charter of pardon made unto the Principal c. 19. 28 29. Pl. Co.
reserving a rent to one of them the rent shall enure to them both because the reversion whereunto the rent is incident remains still in jointure unlesse the reservation be by déed indented and then he onely to whom it is reserved shall have it c. Vide Dyer 308. 75. Winters case Damages shal be several amongst Copâ—rceners 16 If thrée Coparceners recover land and damages in an Assise of Mortdancester albeit the judgement be joint Co. ib. 198. a. 4. viz. that they shall recover the land and damages yet the damages being accessory though personal do in judgement of Law depend upon the Frée-hold being the principal which is several And although the words of the judgement be joint yet shall it be taken for distributive And therefore in that case it two of them die the entire damages do not survive but the third shall have execution according to her portion c. A right may be forfeited 17 The right of a particular estate which is as accessory may be forfeited as well as the particular estate it selfe which is the principal and he that hath but a right of a Remainder or reversion Co. ib. 252. a. 2. shall take benefit of such a forfeiture As if Tenant for life be disseised and levy a fine to the Disseisor he in the reversion or remainder shall presently enter upon the Disseisor for the forfeiture So it is also if the Lessée after the disseisin had levied a fine to a stranger For albeit to some respects Partes finis nihil habuerunt yet is it a forfeiture of his right Co. ib. 252. b. 1. 18 The entry of a man to re-continue his inheritance or frée-hold Several disseisin must have several entries and actions must insue his action for recovery of the same As if thrée men disseise me severally of thrée several acres of land being all in one County and I enter in one acre in the name of all the thrée acres this is good for no more but for that acre which I entred into because each Disseisor is a several Tenant of the frée-hold as I must have several actions against them for the recovery of the land so mine entry must be several And so it is if one man disseise me of thrée acres of ground and letteth the same severally to thrée persons for their lives c. There the entry upon one Lessée in the name of the whole is good for no more than that acre which he hath in his possession But if the Disseisor had letten severally the said thrée acres to thrée persons for years there the entry upon one of the Lessées in the name of all the thrée acres shall re-continue and revest all the thrée acres in the Disseisée for that the Disseisée might have had one Assise against the Disseisor because he remained Tenant of the Frée-hold for all the thrée acres and therefore in that case one entry shall serve for the whole So if one disseise me of one acre at one time and after disseise me of another acre in the same County at another time in this case my entry into one of them in the name of both is good for that one Assise might be brought against him for both the Disseisins But if I enfeoff one of one acre of ground upon condition and at another time I enfeoff the same man of another acre in the same County upon condition also and why the conditions are broken and entry into one acre in name of both is not sufficient for that I have no right to the land nor action to recover the same but a bare title and therefore several entries must be made into the same in respect of the several conditions But an entry into one part of the land in the name of all the land subject to one condition is good although the parcels be several and in several Towns And so note a diversity betwéen several rights of entry and several titles of entry by force of a condition Co. ib. 387. a. 4. 19 If Tenant in Fée-simple that hath a warranty for life Warranty either by an expresse warranty or by Dedi be impleaded and vouch he shall recover a Fée-simple in value albeit his warranty were but for term of life because the warranty extended in that case to the whole estate of the Feoffee in Fée-simple But if Tenant in taile make a lease for life the remainder in fée c. And a collateral Ancestor confirms the estate of the Tenant for life with warranty for term of life of the Tenant for life and dies In this case if the Tenant for life be impleaded and vouch he shall recover in value but an estate for life because the warranty doth extend to that estate onely Co. Inst pars 1. 392. b. 4. 20 If a man make a gift in taile with warranty All accessaries to an estate taile are intailed as well as the estate it selfe this warranty is also entaileâ— And therefore a release made by Tenant in taile of the warranty shall not barre the issue no more than his release shall barre the issue to bring an attaint upon a false verdict or a writ of Errour upon an erroneous judgement given against the father Neither yet can his gift barre the issue of the déed that created the estate taile nor of any other déed necessary for defence of the title For these are accessaries to the estate taile and are as firmly entailed as the estate it self c. Co. l. 8. 79. b. 4. Wiat Weilds case 21 A man is seised of a Messuage and forty acres of land Common apportionable unto which he can prescribe to have Common in 200 acres of waste belonging to the Mannor of Dale for all the cattle levant and couchant upon the said Messuage and 40 acres In this case if he sell five acres parcel of the forty whether the Common were appendant or appurtenant the Alienée shall enjoy a proportionable part of the Common as belonging to the said five acres For albeit at the beginning there was but one Common attending upon one tenancy yet in as much as it is attendant upon a tenancy that is severable and upon every part thereof the Common shall be severable as well as the tenancy so that the Alienée of part of the tenancy shall enjoy also a part of the Common answerable to that part of the tenancy c. So likewise if he that hath such a Common appertaining to his land as aforesaid demise parcel of the land to another the Lessée shall have common for his beasts levant and couchant c. Joynt coveâ—ants relate â—o joynt inteâ—ests 22 S. and his wife bring an action of Covenant against B. upon Covenant made by Indenture tripartite Co. l. 5. 18. b. 4. Slingsbies case in which B. covenants with the Plaintiffs and also with I. S. and his wife Et assignatis suis cum quolibet
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
apportioned or divided c. The like case was adjudged p. 27 El. Rot. 185. inter Brightman and Somerford Co. lib. 4. 94. b. 2. in Slades Case 48 A and B. Bargaine together Annual payment of wheaâ— that A. for a certaine consideration shall deliver unto B. yearly 20 quarters of Barley during the life of B. in this case if A. faile of any one yeares payment B. cannot have an action of Debt for it untill all the yeares be incurred because an Action of Debt is intire and cannot be sued above once How beit he may in that case have an Action upon the case for it c. as it was adjudged in the case between Redman and Pecke 2. 3. P. M. Dier 113. 〈◊〉 condition intire 49 A Condition annexed to an Estate is so intire Co. l. 4. 119. b. 4. in Damports Case that it will not admit any seperance from the Estate unto which it is annexed without the distruction of it and being annull as to some persons or for part it is annulled for all As if A. demise Land to B. and his Assignes with condition that neither B. nor his Assignes shall alien without the Licence of A. If A. give B. Licence to alien the Land to whom he pleaseth and he Assignes the Lease to C neither C. nor any after-assignée is bound by that condition but the Condition is thereby absolutely determined so that no alienation which may be made afterwards shall be a breach of the Condition or give cause of entry to the Lessor for the Lessor cannot dispence with an alienation for one time and yet the same Estate remaine still subject to the condition afterwards And albeit the proviso be that neither the Lessor nor his Assignes shall alien yet when the Lessor licenceth the Lessée to alien he shall never defeate by force of that proviso the term which is absolutely aliened by his Licence for the Assignée and so by consequent every subsequent Assignée afterwards shall retaine it in the same plight that it was in when the Lessee granted it then it was absolute and severed from any condition c. And as the dispensation to one is a dispensation to all other subsequent Assignées so it is also as to persons for in case of Iointure where the Estate is in more then one a Licence of Aliening granted to one shall enure to all as it was adjudged in Crompton and Leeds case T. 28. E. Rot. 256. in the Co. Pl. Likewise if the Lessor Licence the Lessée to alien part of the Land he may alien the rest or any part thereof without Licence because a Condition cannot be divided or apportioned by the Act of the Parties as it was holden by Popham Cl. Instit against the opinion in Dier 16 E. 334. The like 50 A Lease was made by Indenture for 21 yeares of 3 Mannors A. B. and C. rendring per annum for A. 6. l. for B. 5 l. and for C. 10 l. to be paid at a place out of the Land Co. lib. 4. 120. a 4. in Dumports Case with a condition of Re-entry into all the three Mannors for Default of payment of the said Rents or any of them and after the Lessor by deed indented and inrolled bargaines and sels the Reversion of an house and 40 acres of Land parcell of the said Mannor of A. to one and his heirs and afterwards by another deed indented and inrolled bargaines and sels all the residue to another and his heires and whether the second barginee might enter for the Condition broken or not was the Question And it was adjudged P. 14 E. Rot. 1015 that he could not enter for the condition broken because the Condition being intire cannot be apportioned by the Act of the Parties but by the severance of part of the reversion was utterly destroyed c. â—n Exchange â—â—tire being a â—ondition in â—aw 51 If A. give in exchange 3 acres to B. for other three acres Co. l. 4. 121. 4. b. 2. in Bustares Case and after one acre is evicted from B in this case all the exchange is defeated and B. may enter into all his Land for albeit the exchange had been good if A. had given but two acres or one Acre or lesse yet in as much as all the three acres were given in exchange for the other and the Condition which was implyed in the exchange was intire upon the eviction of that one acre the condition in Law is broken and thereupon entry given into all for it is the propertie of a Condition to defeat all and not a part onely except the Condition be restrained onely to a part as it is not in this case And therefore there is no diversitie between an intire thing as a Mannor and a thing that is severable in point of exchange c. There is the same Law also of a Partition as it is agreed in 13 E. 4. 3. f. 42. Ass pl. 22. in the Earle of Pembrooks Case Co. l. 4. 121. a 122. b. Bustards Case 52 Baron seised ef the Mannor of Dale to the use of himselfe and his Feme and of the heirs of the body of the Baron The like levies a fine to A. who enfeoffes B. who enfeoffes C. C. exchanges the said Mannor of Dale with B. for the Mannor of Sale the Baron dies the Feme enters into the Mannor of Dale In this case B. may re-enter into the Mannor of Sale for as when the whole Estate in part is evicted all the exchange is defeâ—ted so here when the Estate of the Frank-tenant for the life of the Feme which is but parcell of the Estate is evicted in all the Land or in part the whole exchange is thereby defeated by reason of the condition in Law annexed unto it for albeit a reversion expectant upon an Estate for life may be given in exchange for Land in possession yet when C. was seised of the Mannor of Dale in his Demesne as of Fée and gives that in possession unto B. in exchange as afore-said after that the Feme enters and evicts the Estate for life c. B. may re-enter into the whole Mannor of Sale which was so given in exchange because the Condition in Law annexed to the exchange being broken for part of the Estate is defeated for all c. So likewise if he in the reversion in Fée disseiseth his Lessée for life and then gives that Land in exchange to another for other Land and after the Lessée for life enters In that case also the other may re-enter into his Land again and hereby defeat the whole exchange because the implied Condition is in his nature un-severable and intire 53 A Lets to B. the Manor of Dale for 30 yeares A surrender intire except all wood and under-wood growing and being upon the Mannor Co. lib. 5. 11. Jves Case after A. le ts to B. all the wood underwood c. for
Bedfords case 29 When a Subject is Guardian in Chivalry Voidable Leases he in the right of the heir within age and in his Guard shall avoid voidable Leases for so long time as he hath interest in the Lands by reason of the Wardship but this shall not prejudice the Heir of his election to make the Leases good by acceptance of the Rent c. when he shall attain his full age For Custos statum haeredis in custodia sua existentis meliorem non deteriorem facere potest The Law is also the same when the King is Guardian c. Co. l. 861. b. 4. in Beechers ca. 30 Infants shall not be amercied Amerc Pledges and consequently shall not finde pledges by reason of the weaknesse of their age And therefore in that Case the entry is Ideo in miserecordia sed perdonatur quia Infans Vide 43 Ass Pl. 45. 44 E. 3. tit Amerc 10. 3 E. 3 Enfant 14. 14 Ass Pl. 17. 41 Ass Pl. 14. 17 E. 3. 75. Bracton fol. 254. F. N. B. 195 h. Co. l. 8. 99. b. 4. in Sir Richard Letchfords cas 31 A Custome that the Lord shall seise Copiholds after thrée Proclamations at thrée Courts and non-claim by the heir Copiholds Proclamation Non-claim c. shall not binde the Heir that is beyond Sea extra Maria at the time of the Proclamations made so it is also of an Infant non compos mentis or one in prison because in judgment of Law they are not bound to make claim neither yet by intendment can they have notice thereof for if these four persons were excused by the Common Law though they made not claim within a year and a day after a Fine levied or a Recovery in a writ of Right being matters of record and of extraordinary high esteem in the Law so that they were not barred of their right notwithstanding their non-claim A Fortiori shall not Proclamations made in a base Court and in a private corner be any bar unto them c. Vide 5 E. 3. 222. and 7 E. 3. 335. Also if in a real Action a Recovery by default be had against a man in prison it shall not binde him but he may reverse it by writ of Errour as appears 5 E. 3. 50. b. 4 E. 2. Disceit 51. Littleton 102. b. Co. l. 9. 76. b. 4. in Combes case 32 Where the custome is Custome Feofment Age 15. that an Infant at the age of 15. may make a feofment he cannot do it by Attorney because the Custome that inables any person disabled by the Law ought to be pursued and an Infant cannot make any thing to passe out of him by Attorney Vide 11 H. 4. 33. Co. l. 9. 85. a. â— in Connys case 33 Albeit the tenant of a Mannor that is within age may be distrained for rent arrear and neither in that Case Distrain per quae serviâ— nor in a per quae servitia brought against him when the tenancy descends shall have his age because at first the Lord departed with the land in consideration that the tenant should hold of him pay his rent do his services c. And although upon grant of the Mannor by Fine he may be compelled to Attorn in such a writ and if he Attorn upon grant thereof in pais the Attornment is good yet in a writ of Customes and Services which is a writ of Right in his nature A writ of Custom Serv. Age. and in which Iudgement final shall be given against an Infant that is in by descent he shall have his age although it be upon his own Cesser because he knoweth not what arrerages to tender before judgement and that is a writ of right in his nature and if he make not true tender he shall lose the land And so it was adjudged in 28 E. 3. 99. Vide 9 E. 3. 50. 14 E. 3. Age 88. 31 E. 3. Age 54. 2 E. 2. Age 132. And albeit such an Infant do attorn in a Per quae servitia Attornment that can be no mischief unto him for notwithstanding his Attornment within age he may at his full age disclaim to hold of him or may say that he holds not of him or may acknowledge he holds of him but by lesse or other services And with this seems to accord 26 E. 3. 63. 32 E. 3. Per quae servitia 9. and Age 33. Vide 2 E. 2. Age 77 78. 37 H. 8. Attornment Br. Quid Juris clamat 34 In a Quid Juris clamat brought by an Infant the tenant saith 43. E. 3. sol 5. 32. E. 3. cited per Coke Ch. Justice l. 9 85 b. 2. in Connys Case that he holds the land for term of life of a Lease of the Infants Ancestor who granted that he should not be impeached of waste by déed which he shewed forth to the Court Waste And in this Case because the Plaintiff was within age and so could not acknowledge the déed during his non-age it was adjudged that he should stay untill his full age Neverthelesse in this Case if when the Infant attains his full age the Defendant attorns by judgement of Court Parol Demur No prejudice this shall not any way trench to the Infants prejudice For albeit the Attornment were after his full age yet in as much as there was no Laches in the Infant but that he brought his writ de quid juris clamat to force the tenant to attorn the delay which was till his full age which the Law provided for his benefit shall not turn to his prejudice And therefore by judgement of law which doth wrong to none he shall have as much advantage as well for the arrerages of rent as for waste done as if the Tenant had Attorned at the time of the Plea pleaded Devise Tail Conclusion 35 There was a Clause annexed to an Estate tail devised by will to a Feme sole Co. l. 10. 42. b. 4. in Mary Portingtons Case per Coke Ch. Justice that if she should apparently and willingly conclude and agree to dis-continue the Estate c. that then the land should from thenceforth remain to another c. the Feme takes husband and they two conclude and agrée with J. S. to suffer a recovery of the Land with intention to make void the Estate and thereupon a common recovery was suffered accordingly c. And in this Case Coke Chief Iustice was of opinion Feme covert â—an passe noâ—hing without â—xamination 〈◊〉 writ that such conclusion of a Feme covert was of no force neither yet could be any cause of forfeiture for no Feme covert shall be barred by her confession of her inheritance or frank-tenement but when she is examined by due course of Law 15 E. 4. 8. 44 E. 3. 28. Vide 14 E. 4 5. And none hath power to examine a Feme covert without writ Vide 21 E. 3. 43. John de
Holbornes Case And this is the cause that if Baron and Feme acknowledge a Statute or Recognizance this is void as to the Feme albeit she survive her Baron as it was holden P. 17 Eliz. in the Countesse of Lennox Case So if Baron and Feme acknowledge a Déed to be enrolled and it is enrolled accordingly this also is void as to the Feme Vide 29 H. 8. Faits enroll Br. 14. and 7 E. 4 5. 16 H. 7. 5. and 21 E. 3. 43. And the reason is because no such writ is depending against the Baron and Feme upon which the Feme may by the Law be examined F.N.B. 104. k. But if an Infant acknowledge a Statute or Recognisance it is not void but voidable by Audita quaerela Statute Recognizance during his non-age And the cause of the diversity is for that the Iudge in case of an Infant may by inspection know his age but not know whether a woman be covert or no. And the use is alwayes upon a common Recovery against Baron and Feme to examine the Feme and to grant a Dedimus potestatem to take upon examination her Conusance as in Case of a Fine for in that Case also there is a writ upon which she may be examined Vide 44 E. 3. 28. Howbeit a common Recovery against an Infant although he appear by Guardian Common Recovery shall not binde him for an Infant hath not such a disposing power upon the Land as Baron and Feme have but is utterly disableo by Law to convey or transferre his Inheritance or Frank-tenement to others during his minority And at this day a common Recovery appeares to be a Common Conveyance or Assurance of Lands c. Co. l. 11. 77. a. 4. in Magd. Coll. Case 36 If an Infant had conveyed lands to Quéen Eliz. by déed inrolled that grant had not béen established by the Act of 18 El. cap. 2. 18 El. cap. a. Grant al Roy. Fine which was made for the confirmation of grants made to the Quéen from primo to that time c. because the person of the Infant during his minority was absolutely disabled to make any conveyance at all by the Common Law So likewise if an infant had levied a fine to Quéen Eliz. and afterwards the said Act was made yet the infant notwithstanding the Statute might have reversed such fine by writ of Error And so it was resolved M. 32 33 El. in B. R. per Wray Chief Iust totam Curiam in Vaughans Case Co. ib. 78. a. 3. There is the same Law if Baron and Feme had made a grant of the Land of the Feme to the Quéen Baron Feme for neither had his béen made good by the said Act to have bound the feme after the Coverture or her heires Because the person of the feme covert is dis-abled to convey her Land unlesse it be by fine upon due examination and so also was it holden in the aforesaid Case of Vaughan 37 If an infant hath a Mannor by descent Advowson Usurpation unto which an Advowson is appendant F. N. B. 34. x. and suffers an usurpation to the Advowson when the Church happens to be void and after grants the Mannor in fée at his full age and after that the Advowson happens to be void again In this Case the infant shall present and not the feoffée for the Advowson was severed by the usurpation and yet the infant may present 38 If a Lease be made to Baron and Feme for life or yeares Waste the Feme shall not be punished for wast done by the Baron F.N.B. 59. i. Finch 26. after the Barons death 39 A man may have a Writ of accompt against a Feme Accompt as receptrix denariorum F.N.B. 110. d. or against a Chaplain But a man shall not have a Writ of accompt against an infant 40 Women shall not be compelled nor distrained to come to the Sherifs turne F.N.B. 161. a. b or to Leets and if they be distrained Femes nemy jure in Lees Dit Wayve they may sue the writ de exoneratione sectae c. to excuse themselves of that service and thereupon they may also have alias plura and attachment c. And for as much as Femes shall not be sworne in Léets to the King as men of the age of twelve yeares or upwards shall be when a Woman is out-lawed she is said to be waived and not out-lawed for she was never put nor sworne to the Law but a man is said to be out-lawed because he is or ought to be sworne to the Law and then for contumacy he is put out of the Law and so is said to be ut lagatus quasi extra legem positus And by the Rule of the Register two Women may joyne in such a writ c. 41 If an infant of tender age viz. under the yeares of discretion kill a man Felonie that is not felony in him Pl Co. 19. a. 2. in Fogassues Case because he wanted discretion and understanding and therefore the Law imputes it to his ignorance which he hath at that age by nature and so no default in him and therefore it is called In voluntary ignorance For he cannot be wise and dâ—scréet though he would but is ignorant by compulsion and therefore shall be excused And such an Act is properly said to be ex ignorantia where involuntary ignorance is adjudged to be the cause thereof Felonie So if a man de non sanae memoriae kill another albeit he hath broken the words of the Law yet he hath not broken the Law because he hath not any memory or understanding but mere ignorance which falls upon him by the hand of God and therefore the Law imputes it to involuntary ignorance and not to him so that he shall be excused for the doing of it c. Stat. 11 H. 8. cap 20. 42 The makers of the Statute of 11 H. 8. 20. Pl. Co. 50. b. 3. in Winbish and Talbois Case per Hales in consideration of the frailty and inconstancy of Women ordained that Law to restraine them from the alienation of the Lands of their deceased Husbands and because they did conceive that they might by flattering words be easily deluded and inticed to covin therefore they ordained in that Act a penalty against them as a bridle of their inconstancy to prevent them from being in that manner seduced c. Dower best possession 43 A Woman shall be endowed of the best possession of her Husband Finch 26. as if the Husband holds of Jo. S. per iij. d. who held over of an other by xx d. and Jo. S. release to the Husband so as now the Husband holds by xx d. the wife being endowed of this land shall hold onely by the third part of iij. d. and not of xx d. Dumbe 44 If a dumbe person bring an Action he shall
he was a Lay-man and knew not letters and he acknowledged himselfe to be bound to the Plaintife by the said déed in 20 shillings which he hath paid and thereof sheweth an acquitance and as to the residue of the summe in the said Obligation nient son fait And in this Case for as much as the déed consisted upon an intire summe it was adjudged void for all The same is also agréed in 14 H. 8. 26. 30 E. 3. 31. Fee taile read for fee-simple 8 In 30 E. 3. casu ultimo in an Assise before Sheriffe and others in pais Co. lib. 11. 27. b. 3. in Hear Pigots Case the Tenant pleads feoffement of the Plaintifs to him by déed of the Land in plea to have and hold to him and his Heires comprehending a letter of Attorney to deliver seisin c. And in truth the Plaintiffe was a Lay-man ignorant of Letters and the déed with the letter of Attorney was read unto him according to the forme of an Estate taile and for the same intent he sealed and delivered the déed with the letter of Attorney in it to deliver seisin And in this Case the feoffment was adjudged void and the letter of Attorney also albeit it were truly read because it depended upon the feoffment and had relation to the Estate in fée Incidents to a deed And there Thorpe Iustice said that every déed ought to have writing sealing and delivery and when any thing passed from such as have no understanding but by hearing onely there ought also to be reading added to the other three And indéed he that is not lettered is reputed in Law as one that cannot sée but onely heare Blind and all his understanding is by hearing So likewise a man that is learned but cannot sée as to purpose taken in Law as a man not lettered And therefore if a man be learned but blind if the déed be read unto him in another manner c. he shall avoid the déed because all his understanding in such Case is by his hearing as it was resolved in Shuters Case in the Starre-chamber M. 9 Jac. who was a man of 115 yeares of age at the time of his death Vide John Pinchons Case in 37 E. 3. 3. cited in Cooke ubi supra Vide 63. 35. 85 The Law favoureth Strangers that are neither parties nor privies â—ord Tenant â—eofment â—pon Condiâ—â—on 1 Lord and Tenant and the Tenant maketh a feofment in Fée upon Condition the Feoffor dyeth Co. Inst p. 1. 76. b. 1. after his death the Condition is broken and the Heire within age entreth for the Condition broken In this Case albeit the Feoffor had no Estate or right in the Land at the time of his death but onely a Condition and which was broken after his decease yet the Heire shall be in ward for the Lord was neither partie nor privy to the Conditional feoffment and therefore there could be no default in the Lord to barre him of his wardship Mannor â—ondition â—dvowson â—pendant 2 A man seised of Land whereunto Condition is appendant Co. ibid. 122. b. 1. is disseised In this Case the disseisée cannot use the Condition until he entreth into the Land whereunto it is appendant But if a man be disseised of a mannor whereunto an advowson is appendant he may present unto the Advowson before he enters into the Mannor And the reason of this diversity is because in the Case of the Condition it should be a prejudice to the Tenant of the soile for if the disseisée might put on his cattle the disseisor might do so too which would be a double charge to the Tenant It is otherwise of an Advowson c. Co. ibid. 132 b 2. 3 Profession or entring into Religion is a Civil death so that his heire shall inherit howbeit Profession Tolleth not entry this shall work no prejudice or wrong to a stranger that hath a former right And therefore if the disseisor entreth into Religion and is professed so as the Land descends to his heire yet this descent shall not toll the entry of the disseisée c. Co. ibid. 148 b. 3 4 If there be Lord and Tenant of 40 acres of Land by fealty and 20 shillings Rent if the Tenant maketh a gift in tail Rent suspended in all or a lease for life or yeares of parcel thereof to the Lord in this Case the Rent shall not be apportioned in any part but the rent shall be suspended for the whole for a Rent-service saith Litt. § 222 may be extinct for part and apportioned for the rest but regularily it cannot be suspended in part by the Act of the partie and in esse for another part 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 the Rent is suspended in the whole In parts Howbeit a Seigniory may be suspended in part by the Act of a stranger As if two joynt-tenants or coperceners be of a Seigniory and one of them disseise the Tenant of the Land the other joynt-tenant or copercener shall distraine for his or her moity for it is no reason that they being strangers should suffer any prejudice by the Act of another c. Litt. §. 222 Co. ibid. 149 b. 4 5 If a man hath a Rent charge to him and his heires Rent-charge not extinct to a stranger issuing out of certain Land if he purchase any parcel thereof to him and his heirs all that rent-charge is extinct so as the unity of possession of parcel of the Land and of the Rent by the Act of the party extinguisheth the whole Rent Howbeit if the grantée of a Rent-charge grant the Rent to the Tenanâ— of the Land and to a stranger In this Case the Rent shall not be totally extinct but onely for the moity c. Co. ibid. 208 b. 3. Co. l. 2. 75. b. 3. Lord Cromwels Case Co. ib. 128. a. 3 Co. lib 6. 31. a. Bothies Case 6 As concerning a Condition of an Obligation Condition Stranger Feoffee Obligee and upon a Feofment there is a diversity where the Act that is local is to be done to a stranger and where to the obligée or feoffor himselfe As if one make a feofment in Fée upon Condition that the Feoffée shall enfeoffe a stranger and no time limited the feoffée shall not have time during his life to make the feofment for then he should take the profits in the interim to his owne use which the stranger ought to have And therefore in that Case Co. ibid. 218 b. 4. he ought to make the feofment as soon as conveniently he may And so it is likewise of the Condition of an Obligation It is otherwise when the Condition is that the feoffée shall re-enfeoffe the Feoffor for there the Feoffe hath time during his life unlesse he be hastned
but because the Mortgageor dies by the Act of God that shall not dis-able I. S. to pay the Money So also it I. S. had died before the day the Mortgageor might have paid it â—â—ewing of a â—eed to prove â— Condition 34 Regularly a man by Plea shall not defeat an Estate of Frank-tenement by force of a Condition Littl. § 365. Co. ib. 225. b. 4. unlesse he produce the proof of the Condition in writing c. yet if a Guardian in Chivalry in the Right of the heir enter for a Condition broken he shall plead the State upon Condition without shewing of any Déed because his Interest is created by the Law So it is also of a Tenant by Statute Merchant or Staple or Tenant by Elegit Likewise Tenant in Dower shall plead a Condition c. without shewing of the Déed and the Reason of these Cases and the like is for that the Lord doth create these Estates and they come not in by him that was to enter for the Condition broken so as they might provide for the shewing of the Déed but they come into the Land by Authority of Law and therefore the Law will allow them to plead the Condition witheut shewing of it yet the Lord by Escheat albeit his Estate be also created by Law shall not plead a Condition to defeat a Frée-hold without shewing of it but this is because it is conceived the Déed belongs to him neither yet shall a Tenant by the Courtesie plead a Condition made by his Wife In Doctor Leyfields Case in fine Co. l. 10. 94. b. and a re-entry for a Condition broken without shewing the Déed for albeit his Estate is also created by Law yet because the Law presumes that he had the Possession of the Déeds and Evidences belonging to his Wife it will not allow him that Priviledge Vide infra Ru. 56. Co. ib. 264. b. 4. 35 There is a diversity betwéen a Realease in Déed A Release in Deed and in Law and a Release in law for if the Heir of the Disseisor make a lease for life and the Disseisée release his Right to the lessée for his life his Right is gone for ever but if the Dissesée doth disseise the Heir of the Disseisor and make him a lease for life by this Release in law the Right is released but during the life of the lessee for a Release in law shall be expounded more favourably according to the intent and meaning of the parties then a Release in Déed which is the act of the party and shall be taken most strongly against himselfe Co. ib. 266. a. 2 c. 36 Rights are distinguished by thrée kinds Jus proprietatis Rights distinguished Jus possessionis and Jus proprietatis possessionis alias Jus duplicatum or droit droit For example if a man be disseised of an acre of land the Dissisée hath Jus proprietatis the Disseisor Jus possessionis and if the Dissiesée release to the Disseisor then hath he Jus proprietatis possessionis Now regularly it holdeth true Right extinct contra that when a naked right to land is released to one that hath Jus possessionis and another by a mean Title recover the land from him the Right of Possession shall draw the naked Right with it and shall not leave a Right in him to whom the Release is made So the Heir of the Disseisor being in by Discent A. doth disseise him and the Disseisée releaseth to A. now hath the méer Right of the land but if the Heir of the Disseisor enter into the land and regaine the Possession that shall draw with it A the méer Right to the land and shall not regaine the Possession onely and leave the méer Right in A. but by the continuance of the Possession the méer Right is therewith vested in the Heir of the Disseisor And the Reason of this is because the Right is conveyed by Release which is the act of Party but when the méer Right is subsequent and transferred by act in law there albeit the Possession be re-continued yet that shall not draw the naked Right with it but shall leave it in him As if the Heir of the Disseisor be disseised and the Dissesor enfeoff the Heir apparent of the Disseisée being of full age then the Disseisée dieth the naked right discends to his Heir and the Heir of the Disseisor recovers the land against him yet doth he leave the naked right in the heir of the Disseisée So if the Discontinuée of Tenant in Tail enfeoff the issue in Tail of full age and Tenant in Tail die and then the Discontinuée recovers the Land against him yet he leaveth the naked right in the issue â—â—e of 〈◊〉 37 If the heire of the Disseisor be disseised Co. ib. 266. a and the disseisée release to the Disseisor upon Condition if the Condition be broken it shall revest the naked right So likewise if the Disseisée had entred upon the heire of the Disseisor and made a feofment in fée upon Condition if he entred for the Condition broken and the heire of the Disseisor entred upon him the naked right should be left in the Disseisée but in these Cases if the heire of the Disseisor had entred before the Condition broken then the right of the Disseisée had béen gone of ever because the right in these cases was conveyed by release and feofment which are Acts of the party it had béen otherwise if they had béen transferred by Acts of Law as in the Cases put before in the example last afore-going â—â—â—se of â—dition 38 There is a diversity betwéen a Right which is favoured in law Co. ib. 274. b. 1. Litt. § 467. and a Condition created by the party which is odious in Law for that it defeateth Estates and therefore a right may be released upon Condition and if the Condition be broken the Right shall revest but if a Condition be released upon Condition the release is good but the Condition void â—eleas of aâ—â—â—s 39 In a mixt Action a release of all Actions real is a good barre Co. ib. 285. a. 2. Litt. §. 492. and so is a release of all Actions personal for a man by his owne act cannot alter the nature of his action and therefore if the Lessée for life or Lessée for yeares do waste now is an Action of wast given to the Lessor wherein he shall recover two things viz. the place wasted and treble damages and in this Case if the Lessor release all Actions Real he shall not have an action of waste in the personalty onely Also if he release all Actions Personal he shall not have an action of waste in the realty onely and so it is also where the Lessée doth waste and after surrendreth to the Lessor his Estate and the Lessor accept thereof here also the Lessor shall not have an action of wast
66. b. 4 in Sir Moyle Finches Case 7 There is a diversity betwixt brevia adversaria Diversity betwixt brevia adversaria 〈◊〉 brevia amiâ—â— bilia vix brought as adversary to recover the land c. And brevia amicabilia viz. brought by consent and agréement amongst friends for true it is in brevibus adversariis the processe of the Common Pleas shall not pursue the custome or reputation of the Country as in 6 E. 3. 11. the Demandant in a writ of Entry demands the Mannor of C. the Tenant saith that the tenements put in view are a Messuage and a Carve of land called c. and not a Mannor c. whereby it appeares that if it were not a Mannor in truth albeit it was so in Common Appellation the writ should abate but it was adjudged in Sir Jo. Bruyns case in the beginning of Quéen El. Raigne that in Common Recovery which is had by the consent and agréement of the parties of acres of land they shall be accounted according to the accustomable and usual measure of the Country and not according to the Statute de terris mensurandis made in 33 E. 1. So likewise it is agréed in 47 E. 3. 18. if a man bargaine and sell so many acres of wood that shall be measured according to the use of the County viz. according to 20 foot to the Pole and not according to the said Act for in such Case consuetudo loci est observanda also if a fine be acknowledged of a Mannor which in déed is a Mannor in reputation onely and not in truth yet is the fiue good because done by consent of parties F. N. B. 38. t. 8 In a Quare Impedit if the Defendant plead to issue and after make default Precepartum a writ shall be awarded for the Plaintiffe to the Bishop ad admittendum Clericum but if to the distresse returned against the Defendant he comes and takes day per praece partium and then makes default the Plaintiffe shall not have a writ to the Bishop but a new distringas Dier 33. 13. c. 28 29 H. 8. 9 A lease for yeares is made rendring Rent Termors câ—sent and the lessor makes feofment of the land the termor being also upon the land and without his consent in this Case the Rent is extinct but if the feofment be made by the agréement of the termor that workes no extinguishment of the Rent or surrender of the terme c. 122 Volenti non fit injuria Co. Inst p. 1. 368. a. 2. Litt. §. 701. Pl. Com. 91. the Parson of Hony Lanes ca. 1 If the Tenant in an Assise of an house desire the Plaintiffe to dine with him in the house which the Plaintiffe doth accordingly Dyning in a house no entry but doth not clame the house at that time this is no entry or possession to cause the Assise to abate because if he had béen a stranger he had béen no trespasser for volenti non fit injuria Dier 275. 46. 10 El. 2 The Marshall suffers one in execution to go at large by licence of the Chiefe Iustice the Plaintiffe also agréeing thereunto in this case Prisoner in ecution after he returnes he is in execution again so as if he afterwards escape the Gaolor is subject to an action of Debt Dier 359. 1. 20 El. 3 The Tenant peravaile who held of a Mesne Tenure as of his Mannor of D. in soccage which Mannor of D. was held over of the King by Knight-service in capite purchaseth a release of the Mesualty in this Case the Tenant peravaile shall now hold of the King in capite for volenti non fit injuria 123 Quilibet potest renunciare juri per se introducto â—â—main 1 Land may be amortified by Licences granted by the King and all the Lords immediate and mediate of whom the land is holden Co. Inst p. 1. 98. b. 4. 99. a. 3. 99. b. 2 For it is a Rule in Law Alienatio licet prohibeatur consensu tamen omnium in quorum favorem prohibitum est potest fieri and quilibet potest renuntiare c. And the Licence of Lords immediate and mediate in this Case shall Enure to two intents viz. to a dispensation both of the Statute of Quia emptores terrarum and also of the Statute of Mortmaine Condition 〈◊〉 restraine â—â—ful liâ—â— 2 If a man make a gift in taile upon Condition Co. ib. 223. b. 3 that he shall not make a Lease for his owne life or if a man make a lease for life or years upon Condition that they shall not grant over their Estate or let the land to others In these Cases and the like albeit Tenant in taile hath power by the Law to make a lease for his owne life and the Lessee for life or yeares to grant and let yet by the Condition and their owne agréement they have restraindd themselves of the liberty which the Law gives them So likewise if a man make a gift in tail upon Condition that he shall not make a lease for thrée lives or 21 yeares according to the Statute of 32 H. 8. In this Case also the Condition is good to restraine the Tenant in taile from making such leases For albeit the Statute doth give him power to make such leases yet that power may be restrained by Condition and his own agréement because this power is not incident to the Estate but given to him collaterally by the Act according to that Rule of Law Quilibet potest renunciare c. â—eires â—â—ged 3 If there be Lord and Tenant Litt. §. 538. Co. ib. 305. a. 4 which Tenant holds of his Lord by fealty and 20 s. Rent here if the Lord by his Déed confirme the Estate of his Tenant to hold by 12 d. or by a penny or a halfe penny In this Case the Tenant is discharged of all the other services and shall render nothing to the Lord but what is comprised in the same confirmation For the Lord by his confirmation to hold by lesse services hath abridged himselfe of the power and interest which was before legally due to him â—â—e all 〈◊〉 all pasâ—â— 4 By the Common Law if Patron Ordinary Litt. §. 648. Co. ib. 343. Note that this law is altered by stat 13 El. cap. 10. and Incumbent had joyned in a grant of the Rectory or Vicarage they might have charged it or conveyed it to whom they pleased because they all together had the whole right in them viz. the Patron to present the Ordinary to admit institute and induct and the Incumbent to enjoy the glebe tithes and other profits And all these had liberty to depart with their several rights and interests at their pleasure â— good right â—â—de pretenâ—â— 5 If A. be lawful owner of land and in possession Co. ib. 369. a. 3 and be afterwards disseised in this Case A.
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
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
and the other Husband and Wife the other Moiety and no crosse Remainder or other possibilitie for the improbability thereof shall be allowed in Law where it is once setled and takes effect so likewise if Lands be given to a man and two women and the Heires of their bodies begotten in this case they have a joynt Estate for life and each of them a severall Inheritance because they cannot have one Issue of their bodies neither shall there be by any construction a possibility upon a possibility for the Improbability thereof viz. that he shall marry the one first and then the other The same Law it is also when Land is given to two men and one woman and to the heires of their Bodies begotten Co. l. 2. 51. a 4. in Sir Hugh Cholmelies case in Magdalen Colledge case Co. l. 11. 70. b. 3. 2. A remote possibility is never intended by Law Remainders improbable to take effect And therefore where A. was Tenant in Taile Remainder in Taile to B. B. grants all his Estate to C. for the life of A. this Grant is void because it is impossible it should ever take effect and whereas in that case it was objected that A. might enter into Religion and be profest whereupon the Grantee might enter and enjoy the Land during the naturall life of A. it was answered and resolved That that was a Forraigne possibility and not probable nor imaginable in Law for a possibility which makes a Remainder good must be Potentia propinqua a common possibility and not Potentia remota And therefore a Remainder will not vest in a thing or person that is not in Esse at the time of the Grant made unless at the same time there be Potentia propinqua or a pregnant probability that it may take effect as a Remainder granted to a Corporation not in being at the time of the Grant made is void albeit the Corporation be erected afterwards during the particular Estate because that is Potentia remota and improbable But if a Lease be made for life the Remainder to the right Heires of I. S. this is good for by common possibility that I.S. may dye during the life of Tenant for life and untill he dye his Heires are in him Howbeit if at the time of the limitation of the Remainder there be no such person as I.S. but during the life of Tenant for life I.S. is borne and dyes his Heir shall never take it 2 H. 7. 13. 10 E. 3. 46. as it is agreed in 2 H. 7. 13. So likewise in 10 E. 3. 46. upon a Fine levied to R. he grants and renders to I. and Florence his Wife for life the Remainder to G. the Son of I. in taile the Remainder to the right Heires of I. and in truth at the time of the Fine levied I. had not any Son named G. but after had issue named G. and dyed In this case G. could not take the Remainder in Taile because he was not borne at the time of the Fine levied for when I. had not then any Son named G. the Law doth not expect that he shall have a Son named G. after for that is improbable and Potentia remota c. Obligation payable before statutes 3. Debt due by Obligation shall be payd by an Executor before a Statute acknowledged for the performance of Covenants Co. l. 5. 28. b. Harrisons case when none of them are or perhaps will ever be broken but are things in contingency Futuro and therefore such a possibility which peradventure will never happen shall not barre present and due debts by Obligation or other specialties Contingency 4. When a man by Indenture limits Lands to himselfe for life Co. l. 10. 85 a. 2. in Leonard Lovies his case Remainder to another in taile Remainder to his right Heirs with power to make Leases for Life Lives or Yeares without any restraint of Lives or Yeares and further to the uses to be exprest in his last Will or to the use of such person or persons unto whom he shal by his last Will devise any Estate or Estates thereof In this case the Estate in Taile is incontingency for by those or the like words he may devise the Land to any person in Taile or in Fee And therefore because it is very improbable that the Estate tail may ever take effect it shall not in this case presently vest by the statute of 27 H. 8. but shall be said to be in contingency so as if he by such power alter not the Estates so limited it may happen to take effect but if otherwise it will vanish and come to nothing Vide pl. ibidem Bar to an avowry 5. In Bar to an Avowry for Trespasse in 300 acres of common field Land or Downe Dyer 171. 9. 1 2. Eliz. the Plaintiff to frame himselfe a Title alledgeth in his Barr that A. from whom he derived his Estate was seised of the scite of the Mannor of Dale whereof the said 300 acres were parcell and this Barr was adjudged insufficient for the Improbability that so much Land should be parcell of the scite 162. Uncertainties by which the truth may be inveigled Villain 1. If a man do enfranchise a Villain Cum tota sequela sua Co. Inst pars 1. 3. a. 4. that is not sufficient to enfranchise his children borne before for the uncertainty of the word Sequela Heires 2. If a man gives Lands to one to have and hold to him or his heirs Co Ib. 8. b. 3. 22 H. 6. 15. he hath but an Estate for life for the uncertainty so if a man give Land to two to have and to hold to them two Et heredibus omitting Suis they have but an Estate for life for the uncertainty Co. ibid. 9. a. 2. and Co. ibid. 20. b. 1. 3. To avoid uncertainty Vocabula artis which is commonly the Mother of contention and confusion the Law doth appropriate to it selfe certaine words which may be termed Vocabula artis to expresse diverse things which cannot significantly be expressed by any other words or by any Periphrasis or circumlocution without them as the word Heires for the discent of Inheritance which doth not only extend to his immediate heirs but to his heires remote and most remote born and to be borne Sub quibus vocabulis heredibus suis omnes haeredes propinqui remoti nati nascitari And Haeredum appellatione veniunt haeredes haeredum in infinitum saith Fleta lib. 3. cap. 8. So likewise the Law useth peculiar words for Tenures Persons Offences Formes of Originall Writs Warranty Exchange c. and all this to procure certaine expressions and to prevent uncertainty for the reason aforesaid Co. ibid. 20. b. 1. 4. If a man give Lands to A. Et haeredibus de corpore suo A grant void the Remainder to B. In forma predicta this is a good Estate Taile to
the writ should by the non-return of the writ be tortious then the Sherif will never find buyers to whom he may sell any defendants goods by force of any writ of execution which would be inconvenient and great delay of executions which are the fruit and life of every sute 30 If a rent be granted out of the Manor of Dale Rent charge and the grantor grant over Co. l. 7. 24. a. 3. Buts case that if the rent be behind the grantee shall distrain for the same in the Manor of Sale this is no grant of the rent but only a penalty in the Manor of Sale for if the grantée should bring a writ of Annuity that would only extend to the Manor of D. for upon the grant of the distress in the Manor of Sale no writ of Annuity lyeth because the Manor of S. is only charged and not the person of the grantor as to that And therefore the bringing of the writ of Annuity cannot discharge the Manor of S. of any rent And so the Law by construction against the words and intention of the parties shall doe an injury to the grantor to charge him twice which were inconvenient Co. l. 9. 85. a. 4. in Connys case 31 In a writ of Mesne the Paroll shall not demurr for the nonage of the plaintif because it is not reason Parol demur nonage that the Infant should be distrained for the services of the Mesne during his nonage and yet he to have no remedy until his full age but in regard his nonage shall not privilege him from the payment of the rent during his nonage the Law will also give him remedy during that time Writ of Error 32 These two Rules in Law are regularly true Co. l. 11. 41. a. 1. in Metcalfs case 1. That a writ of Error lyeth not upon an award until the principal judgement be given 2. That it lyeth not until the whole matter in the original be determined yet each of these have exceptions For as to the first in Trin. 18 H. 7. in B. R. Rot. 3. E. was indicted for the death of M. before Iustices of Peace in the County of Lincoln whereupon a Capias was awarded and thereupon also an Exigent after which E. dies before any Attainder upon which award of the Exigent his executors bring a writ of Error and it was adjudged that the writ of Error did well lie because by the award of the Exigent his goods and chattels were forfeit and of such awards which tend ad grave damnum of the party a writ of Error lyeth sic de similibus As to the second you shall find in 36 H. 6. Fieri fac 3. That in debt against divers by several praecipes if there be error in the Iudgements against one of them he shall have a writ of Error for in Originals wherein there are several Counts and Error is against one he shall have a writ of Error and the record of his Count and the pleading c. shall be severed from the original and removed into the Kings Bench and yet the Original shall still remain in the Common Place for it would be inconvenient and prejudicial in that case to stay until judgement be given upon the whole original Howbeit where there is one original and one Count he cannot have a writ of Error untill all be determined for the record cannot be in the Kings Bench and the Com. Pl. all at one time Collusion 33 It is provided by the Statute of Marlebridge cap. 6. that the Lord by Knight service shall not lose his custody by feoffment made by Collusion Co. l. 11. 77. b. 3. in Magdalen Colleges case veruntamen non licet eis hujusmodi feoffatos sine Iudicio disseisire fed brevia habeant de hujusmodi custodia sibi reddenda yet if the tenant enfeoff the Villein of the Lord upon collusion the Lord may enter and expell him and shall not be put to his action as it is held in 33 H. 6. 16. for the general words of the Act shall not enable the Villein who is disabled against his Lord by the Common Law and if the Lord should bring an action against him according to the letter of the Act he shall be thereby enfranchised which would be a prejudice to the Lord and was never intended by the Makers of that Act. Intent of the Law performed no breach 34 In every Law there are some things which when they happen Pl. Co. 18. a. 4. in Fogassaes case 19 b. 1. a man may break the words of the Law and yet not break the Law it self and such things are exempt out of the penalty of the Law albeit they are done against the letter of the Law for the breaking of the words of the Law is not the breaking of the Law so as the intent of the Law is not broken and when the words of the Law are broken for the avoiding of greater inconveniences For example it is against the Law for any man to assault bind or beat another yet in the 22. Book of Assises pl. 56. If a man be mad and out of his wits whereby he doth or is likely to do great hurt other men may assault bind and beat him too and justifie it by Law to prevent the hurt and mischief which he may do in that condition So the Statute of Marlebridge cap. 4. prohibits generally that none shall convey a distress out of one County into another yet it is adjudged in 1 H. 6. Tit. Distress 1. that if one hold land of a Manor in another County the Lord may distrain and bring the distress from the land holden of the Manor into the County where the Manor is and this is for the avoiding of a mischief inconvenience for it would be great damage to the Lord if he might not bring the distress to his Manor for the avoidance whereof the Law is not offended albeit the letter of the Law is not observed In like manner there was a Law amongst the Romans that whosoever scaled the walls in the night should be condemned to die yet in the time of warr one scaled the walls in the night to discover the approach of the Enemy and he was by the Senate not only discharged of death but besides was well rewarded for that his service to the Commonwealth for although he thereby infringed the words of the Law yet the grave Senators expounded it to be no breach of the intent of the Law because that Law was made to prevent hurt and danger and not to inhibit benefit and safety to the City So likewise in Fogassaes case the incertainty of the word being caused for the avoiding of a great inconvenience viz. the loss of many mens lives shall excuse the incertainty of the agreement with the Collector Pl. Co. 100 b. in matters of the Crown 35 In an appeal of murder against five Trial. if one Venire
of Parliament must be alwaies taken in a lawfull and rightfull sence Stat. of Gloc. as in the Statute of Glocester cap. 3. The words in the end of that Act whereof no fine is levied in the Kings Court are to be understood whereof no fine is lawfully or rightfully levied in the Kings Court And therefore a fine levied by the husband alone of the wives land is not within the meaning of that Statute for that fine would work a wrong to the wife but a fine levied by the husband and wife is intended by the Statute for such a fine is lawfull and worketh no wrong So the Statute of Westm 2. cap. 5. saith Ita quod Episcopus Ecclesiam conferat is construed Ita quod Episcopus Ecclesiam legitime conferat and the like in a number of other cases in our books And the general rule is Non praestat impedimentum quod de lure non sortitur effectum Co. ibid. 42. a. 1. 14 If tenant for life infeoff him in the remainder for life Surrender this the Law construes to be a surrender which is a lawfull act and not a forfeiture which implies a wrong Co. ibid. 15 If tenant for life maketh a lease by déed or without déed Lease for life to him in remainder to him in the remainder or reversion in tail or in fée for the term of the life of him in remainder or reversion and after he in remainder taketh wife and dieth In this case his wife shall not be endowed for the Law will adjudge the estate made to him in remainder or reversion a good and lawfull estate and tenant for life shall enjoy the land again And here in regard this can be no surrender because tenant for life did not part with his whole estate the Law rather than to admit of a forfeiture which implies a wrong preserves the first estate for life from being surrendred drowned or forfeited And indéed forfeited it cannot be in another respect for that he in remainder was party thereunto Co. l. 1. 76 a. Bredons case 16 If there be tenant for life remainder in tail remainder in tail No discontinuance or forfeiture and tenant for life and the first remainder levy a fine to one who grants and renders a rent charge to the tenant for life and then the first remainder dies without issue and the second remainder enters and tenant for life distrains for the rent In this case there is neither discontinuance nor forfeiture no discontinuance because each of them grants but his own estate which he may lawfully do no forfeiture because it shall be first construed to be the fine of him in remainder and afterwards of the tenant for life Co. l 2. 67 a. 1 in Tookâ—es case 17 Dower assigned by one Iointenant only Assignment of Dower Attornment or by an Abator or disseisor shall not be avoided by the other Iointenant or the disseisée as it is agréed in 12 Ass pl. 20. because these are lawfull acts so it is said if the disseisor attorn or give seisin to the grantée of a seigniory this shall bind the disseisee for the same reason albeit the grantee of a seigniory cannot compell the disseisor to attorn to him or to give him seisin if he had not seisin before within the time of limitation Vide 8 H. 6. 17. 8 Ass pl. 16. 8 E. 3. 52. 11 H. 4. 29. 39 H. 6. 2. It is likewise said that if the lessor disseise his two lessees for life and enfeoff another and one of the lessees re-enter this act of the one is an attornment in Law for both much more shall an express attornment bind both because these are by construction of Law lawfull acts c. Vide 23. Fine and 5. years pass 18 T. possessed of divers parcels of land within the Manor of S. for years at will and by Copy and of others in fee there Co. l. 3. 79. b. 2. Fermers case demises the whole to C. for life then levies a fine to him and his heirs of so many acres as amount to the whole land continues possession and pays the rents to the Lord Here albeit 5. years pass yet is not the Lord barred for in as much as the lessee had lands in fee simple in the same Town by construction of Law it will be presumed that the fine was levied of the land whereof a fine might be lawfully levied And albeit the fine contained more acres than his own land yet that alters not the case for it is usual almost in all fines to put in more acres than the just content of the land Copyhold 19 If a man seised of Copyhold land in right of his wife surrender it to the use of another in fee who is admitted accordingly Co. l. 4. 23. a. 2. in Copihold cases Bullock and Dibley the baron dies this is no discontinuance to the feme or her heirs but that the feme may well enter neither shall she be put to her Cui in vita or her heir to his sur Cui in vita because the Law will construe it to be such an alienation as he may lawfully make viz. of his estate in right of his wife during the Coverture So if a Copyholder for life surrender to the use of another in fee this is no forfeiture for the like reason and because it passeth by surrender to the Lord and not by livery King tenant pur auter vie 20 If the King being tenant pur auter vie Co. l. 5. 12. a 4. in Englefields case make a lease for 40. years albeit he having but an estate pur auter vie cannot absolutely contract for a lease of 40. years yet without any recital or mention of the estate for life the lease is good because the lease for years is in judgement of Law less than the estate pur auter vie and the King doth not thereby any wrong or prejudice to any neither yet is he deceived in his grant for by construction of Law it is a lease for 40 years if Cestuy que vie so long live Afferment of Amerciaments 21 If a Iury or a Leet tax an amerciament Co. l. 8 40. b. 4. in Grieslyes case this sufficeth without any afferment for the afferment may as well be per totum Homagium as by special Afferrors because the amerciament is the act of the Court and the Afferment the act of the Iury. Vide 10 Edw. 3. 9. 10. 8 Hen. 7. 4. 7 Edw. 3. 15. b. Astlies case 25 Edw. 3. 26 27. Grant of the King 22 The King grants the herbage and pannage of a Park to Markham for life and reciting that estate Co. l. 8. 56. a. 1. The E. of Rutl. case grants to the E. of Rutland for life In this case albeit the King grants to the Earl in possession yet he is not deceived in his grant for reciting and granting as here
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
§. 209. as if a Lord of a manor will prescribe that every Tenant who matieth his daughter to any man without the Lords licence shall make fine This prescription is void being against reason because none shall make such fines but only villeins for a freeman may fréely mary his daughter to whom he pleaseth And albeit that it hath been objected by some that such a custom may have a lawful beginning because Littl. in the beginning of the chapter of villeinage § 174. alloweth that a freeman may take lands of the Lord to be holden of him viz. to pay a fine for the mariage of his son or daughter and therefore some have thought that such a custom generally with in the manor might be good but the answer is that although it may be soln a particular Case upon such a special reservation of such a fine upon a gift of land yet to claim such a fine by a general custom within the manor is against the fréedom of a freeman that is not bound thereunto by particular tenure howbeit a custom may be alleged within a manor that every tenant albeit his person be free that holdeth by bondage or native tenure the freehold being in the Lord shall pay to the Lord for the mariage of his daughter without licence a fine And this is termed Marchet of two french words Mariage and achecter to buy Co. ibid. 140. a 4. b. 1. Littl. §. 210. 6 The custom of Gavelkind in Kent where all the sons inherit equally Gavelkind hath been alwayes allowed a good custom because every son is as well a gentleman as the eldest and having means may attain to as great honor and preferment as the eldest which by want and penurie may be obstructed according to that of Horace Haud facile emergunt quorum virtutibus obstat Res angusta domi Co. ibid. 140. b. 3. Littl. §. 211. The like custom is used and allowed as reasonable in other parts of England within divers manors and seigniories although it be not called Gavelkind in any Country but Kent And as it is said of sons so likewise by custom when one brother dieth without issue all the other brethren may inherit There is also another custom allowed within divers manors called Borough-English Borough-English where the youngest son or youngest brother inherits and in the manor of B. in Berkshire where the sisters shall not be Parceners but the eldest sister shall have the inheritance all which do hold good because consonant to reason Co. inst pars 1. 141. a. 3. 7 Malus usus abolendus est and every usage is evill Malus usus that is against reason Quia in Consuetudinibus non diuturnitas temporis sed soliditas rationis est consideranda And by this rule at the Parliament holden at Kilkenny in Ireland Lionel Duke of Clarence being then Lieutenant of that Realm the Irish custom called there the Brehon-law was wholy abolished for that as the Parliament said it was no law but a lewd custom et malus usus abolendus est as is said before Co. ibid. 155. a. 2. 8 Albeit the writ of Assise be that the Sheriff Assise Faceret duodecim liberos et legales homines de vicineto c. videre tenementum c. Yet by antient course the Sheriff must return 24. and this is for expedition of justice for if 12. should only be returned no man should have a full Iury appear or be sworn in respect of challenges without a Tales which would be a great delay of trials so as in this case usage and antient course maketh a Law Co. l. 2. 17. a. 4. in Lanes case 9 Severance of the frank-tenement and inheritance of land holden by copy of Court-Roll Copyhold doth not extinguish or determine the Copy-hold estate for albeit his estate is taken to be but an estate at Will yet the custom hath so established the estate of the Copyholder that he is not removeable at the Will of the Lord so long as he performs the customs and services And by the same reason the Lord cannot determine his interest by any Act that he can do and so hath it been oftentimes adjudged in the Kings Bench. Co. l. 4. 21. a. 3. in Browns case 10 Albeit a Copyholder hath in judgement of law but an estate at Will yet custom hath so established and fixed his estate Copyhold that it is by the custom of the manor descendable and his heirs shall inherit it And therefore his estate is not meerly ad voluntatem domini but ad voluntatem domini secundum consuetudinem manerii so as the custom of the manor is the very soul and life of Copyhold estates for without custom or if they break their custom they are subject to the Will of the Lord And by custom a Copyholder is as well inheritable to have his land according to the custom as he who hath a franktenement at the Common Law for Consuetudo in this case est altera lex and being an usage time out of mind may create and consolidate Inheritances Alienation presented 11 A Custom within a Manor Co. l. 5. 84 a. 3. in Penimans cas◠that every alienation of lands holden of the same Manor whether it be by writing or feoffment thereof made or by will shall be presented at the next Court holden for the said Manor in pain that upon failer of such presentment such alienation shall be void is a good and reasonable Custom But a Custom that none shall use his Common in such a place until the Lord enter with his beasts is void for the unreasonableness for if the Lord will not enter it is no reason that the Commoners should lose their Common Vide 2 H. 4. 24. Common of Shack. 12 Common called Shack which at the beginning was but in nature of a féeding together by reason of Vicinage for avoiding of sutes is in some places by Custom altered to the nature of Common appendant or appurtenant Co. l 7. 5. a. Sir Miles Corbets case and in some places it retains the original nature and the Rule to know it is the Custom and usage of every several Town or place for Consuetudo loci est observanda And therefore if in the Town of Dale one hath gotten divers parcels of land together in which the Inhabitants have used to have Shack and long since did enclose it and nevertheless alwayes after harvest the Inhabitants have had Shack there for their Cattel This shall be taken for Common appendant or appurtenant and the Owner cannot exclude them from Commoning there albeit he will not Common with them but hold his own lands so enclosed in severalty And this is well proved by the usage for notwithstanding the antient enclosure the Inhabitants have had Common there But if in the Town of Sale the Custom and usage have béen that every Owner in the same Town hath enclosed his own land
sorts Latine words Sensible and Insensible the first is good and congruous Latin allowed by Gramarians And this without question is within the Statute of 36 E. 3. 15. which ordaines that all pleas shall be entred and enrolled in Latin The second sort are such words as these Messuagium Tostum Gardinum Bruera Jampna c. These and the like are allowed not only in Pleas but also in originall writs for these are such words as are knowne to the Sages of the Law and are also within the Statute of 36 E 3. such words as are called words of Art and are frequent also in other Sciences as amongst the Civilians Reprisalia Feuda Shopa Sollaria c. who use many times to explaine them by Anglicè c. as Sollaria anglicè Ware-houses The Physicians also use Brothium for broth and the like The third sort is false and incongruous Latin this shall abate an originall writ but shall not make a Iudicial writ count pleading or judgement vicious for false Latin shall in such cases be amended And therefore a fortiori such Latin or false English shall not avoid a grant or déed when the intention of the parties may appeare M. 3 4. El. R. 1350. M. 44 45. R. 1031. 9 H. 6 7. 9 H. 7. 16. 2 H 4 8. M. 11. Jac. as in a bill or bond Octogenta Septungenta Wiginti Sewteene or the like shall be taken for Octoginta Septingenta Viginti Seaventeene c. Also when there is no latin for a word as for a Stirrup Velvet c. Strapedia Velvetum c. may be used because they have the countenance of latin so also Operimentum for a Rugge Howbeit in such case for explanation sake it will be fit also to insert the word Anglice as Operimentum anglice a Rugge Duas virgatas velveti anglice of velvet c. The fourth and last sort are insensible words as in a case of a Replevin P. 36 El. Gawins case Vitrium for Vitrum glasse yet in that case the Court did incline onely to adjudge it false latin because it had the countenance of latin and the Court was sufficiently ascertained that glasse was meant by it P. Co. 85. b. in Partridges Case 7 If I give you a quart of wine you shall not have the quart-pot Phrase of speech but if I give you an Hogshead of wine you shall have the Hogshead for the phrase of the language expresseth the intent so 11 acres belonging to a Messuage will sufficiently declare which 11 acres are meant although land is not properly said to belong to an house but the house to land Co. l. 2. 72. a. the Lord Cromwels Case 8 Note in Docwras case 27 H. 8. 18. a. in Littl. cap. conditions 14. Where a Proviso makes a condition and where not El. Dyer 311. 4. and 5. P. M. Dyer 152 that this word Proviso makes a condition But when the Proviso depends upon another sentence or hath reference to another part of the deed it never makes a condition but a qualification or limitation of the sentence or part of the déed unto which it referres as in 5 El. 22. inter Eyre and Orme a notable case so in 7 H. 6. a lease without impeachment of wast provided that he shall not make voluntarie wast In Littl. Sect. 220. A grant of rent charge provided that the grantée shall not charge his person Tramingtons case in the K. B. P. 16. El. Rot. 273 there a Proviso tending to a qualification and to explaine a precedent sentence makes not a condition And 3 4. P. M. 150. Parkers case a Proviso amounts to a covenant see 28 H. 8. Dyer 13 b. Utrumque 9 Three were bound in an obligation thus Dyer 19. 114. 28 H. 8. Obligamus nos utrumque nostrum per se pro toto in solid The question was whether or no this obligation was several And one of the Iudges was of opinion that it was not several because utrumque is properly of two viz. both And it should have béen quemlibet nostrum c. when more than two are bound Howbeit it séemed to the Court that the obligation was good and several Vide 31. 12. Confirmation 10 If the disseisée confirme the estate of the disseisor Littl. Sect. 519 520. though it be but for an hour he shall have a lawfull estate in fee simple for ever quia confirmare est firmum facere Exposition of illa 11 If the King or a common person grant omnia illa messuagia in tenura Johannis Browne scituat in Wells Co. l. ◠33. a. Dodingtons Case whereas in truth they lie in D. in this case because the grant is general and is restrained to a certaine Towne the Patentée or Grantée shall not have any lands out of that Towne unto which the generaltie of the grant referres and this case is the stronger because of the Pronoune illa for omma illa messuagia c. maketh necessary reference as well to the towne as to the tenure of I. B. so that if either faile the generall grant is void for illa is not satisfied untill the sentence be ended and illa governs the whole sentence to the full point Vide infra max. 10. cap. 5. Commencement of a Lease 12 Indentures of demise were ingrossed bearing date the 26 of May Anno 25. Co. l. 5. 1. a. Claytons Case Eliz. to have and to hold for three yeares from henceforth and the Indentures were delivered at 4 of the clock in the afternoone of the 20 day of June Anno praedicto Eliz. In this case from henceforth shall be accounted from the time of the delivery of the Indentures and not by any compatation from the date for from henceforth is as much as to say from the making or from the time of the delivery of the Indentures or a confectione presentium because the confection or making of the Lease commenceth by the delivery and these words from henceforth or any other words of the Indenture are not of any force or effect untill the delivery Quia traditio facit loqui tantum Vide suprà 2. 9 In Conjunctivis oportet utrumque Bract. l. 2. fol. 19. a. in disjunctivis sufficit alteram partem esse veram Conjunction copulative 1 If lands be given in taile upon condition Littl. Sect. 364 that if the tenant alien in fée fée taile or for terme of life c. and also if all the issues of tenant in tail die without issue that then it shall be lawfull for the donor and his heires to re-enter Taile here the right of the intaile may this way after discontinuance be preserved to the issue in taile if any be so that upon entry of the donor and his heirs the estate taile shall not be defeated for such condition Condition And yet in this case if the tenant in taile or his heires make any discontinuance
verdict there were more then a thousand words whereas in our books when the tenant in tail was restrained from alienation there were under twelve words Haec fuit candida illius aetatis fides simplicitas quae pauculis lineis omnia fidei firmamenta possuerunt Co. l. 10. 30. b. Sâ—tions Hospital It may be also observed that the Statutes made before the reign of H. 8. were short and concise but from his time especially from the twentieth yeare of his reigne they are much more prolix and voluminous whereas Lawes and Precepts ought to be short and significant to the end they may be easily understood and the better retained in the memorie according to that of Erasmus in his religious Colloquie Praestat pauca avidè discere quam multa cum taedio devorare And that of Horace Quicquid praecipies esto Brevis ut citò dicta Percipiant animi dociles teneantque fideles Franchise Prescription 6 A Prescription to have all wild Swans which are ferae naturae Co l. 7. 18. a. The Case of Swans and not marked nidificant gignent frequentant within such a Creeke is insufficient so is also such a prescription for a Warren viz. to have all Phesants and Partridges nidificant gignent frequentant within such a Mannor but he ought to say that he hath Free warren of them within the Mannor for albeit they be nidificant c. within the Mannor yet he cannot have them Jure privilegii but onely so long as they are within that place Howbeit a Prescription thus alleaged is good viz. that within such a Créeke there hath béen time out of mind c. a game of wild swans not marked nidificant c. And then to prescribe that such an Abbot and all his predecessors c. have alwayes used to have and take to their owne use some of the said wild Swans and their signets within the said Créeke such a prescription I say is good for albeit Swans are Royal fowl yet this way a man may prescribe in them because that may have lawfull beginning viz. by the Kings grant Debet detinet 7 The forme of a writ of debt shall be sometimes in the debet and detinet and sometimes in the detinet onely F. N. Br 88. b. F. N. B. 119. b. and then if it be the debet it shall abate It shall be always in the debet and detinet when he that makes the bargaine or contract or borrows the money or he to whom the obligation is made brings an action against him that is bound or is party to the bargain contract or borrowing and also when the action is brought for money But if a man sel 20 quarters of wheat for an horse here if he bring a writ of debt for the horse the writ shall be in the detinet onely And the Rule of the Register is Fitz. ibid. m. quod in brevi debito de catallis nunquam dicetur quòd ei debet Also if a writ of debt be brought by executors upon a dutie due to their testator the writ shall be quòs eis detinet and not debet detinet because they were not partie to the contract so likewise if a writ of debt be brought against executors by the creditor upon a dutie by their testator the writ shall be quos ei detinent and not debent detinent albeit he demand money as 20 l. or any other sum Annuity 8 In a writ of annuitie the form is Quem ei debet F. N. Br. 152. a. when any thing that is not money is demanded It is otherwise in an action of debt Non est factum for if it be for money the demand shall be in the debet but if it be for any thing else it shall be in the detinet and not in th debet And in debt also if a man demand money and ten quarters of wheat then the forme of the writ shall be Praecipe A. quòd justè c. reddat B. decem libras c. quas ei debet decem quarteria frumenti quae ei injustè detinet c. 9 If a man be taken in execution by the Sheriff upon a ca. sa and the Sheriffe takes bond of him for his apperance and rendring himselfe true prisoner Pl. Co. 66. a. Dive and Manninghams case contrary to the Statute of 23 H. 6. 10. In an action of debt brought by the Sheriff against the obliger it is no apt conclusion for the obliger to say judgement se action but he ought to conclude with nient son fait for the Statute saith if an obligation be taken in another forme then is conteined in that Statute that it shall be void and if it be void it was void from the beginning and therefore never his déed Vide plus ubi suprà F. N.Br 151. g. 10 When a writ of Customes and services is in the right onely Customes and services then the demandant shall count of the seisin of his Ancestor and the writ shall be in the debet onely but when he comes of his owne seisin then the writ shall be in the debet solet Co. Inst 1. 291. a. 11 If A. be accountable to B. and B. releaseth him all his duties Accompt Release this is no barre in an action of accompt for duties extend to things certain and what shall fall out upon an accompt is uncertain And albeit the latin word is debita yet duties do onely extend to all things due which be also certaine And therefore dischargeth Iudgements in personall actions and executions also F. N.Br 8. c. 12 Where a feme is endowed of parcel of her Dower Dower and would demand the rest against the same tenant and in the same town In this case for the recovery therof she shall have a writ of right of Dower and not a writ of Dower undè nihil habet for the words of this writ will not serve because she hath already received part of her Dower And therefore she must of necessitie sue a writ of right of Dower to recover the residue Co. l. 11. 55. a. 4 in Edward Lawes case 13 An Ejectione firmae lyeth not of a Close Ejectione firmae although it hath a certaine name as Dovecot Close conteining three acres but it ought to be of so many acres and ought also to shew of what nature those acres are as Land Meadow Pasture Wood c. and the certainty ought to be comprised in the Court because he shall recover the possession by Habere facias possessionem and shall ensue the form of other writs of like nature as a Writ of ward or Ejectment de guard or the like shall not be of a Close by a certain name but ought to be by the certainty of acres conteining withall the quality of the soile as Land Meadow Pasture Wood c. 12 Nomina si nescis perit cognitio
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
Law doth not allow Misnomer 2 In a conveyance of lands in Kent certain lands lying in Beamston were excepted by the name of the Mannor of Beamston Co. l. 6. 6 4. b. Sir Moyle Finches case whereas it had indéed formerly béen a Mannor but was none at that time yet was it adjudged to be well excepted And in the Argument of this point it was said that the Law favours not advantages of misnaming otherwise then as the strict rule of Law requires no not in writs which may be abated and new ones purchased much lesse in grants or other conveyances in which case they cannot have new ones And therefore if two be joyned in a writ the one shall not plead the Misnamer of the other as it is agréed in 14 H. 6. 3. 33 E. 3. Mainten de briefe 63. In an action against baron and feme albeit they are one person in Law yet the one shall not plead the Misnomer of the other so in trespasse in Heldernesse at W. the defendant pleads in respect of Misnomer that it was neither Town Hamlet or place known c. the Plaintiff replyeth it was without shewing in certaine either that it was a Town hamlet or place known And all this in detestation of nice and dilatorie exceptions Nice constructions 3 Cook Chief Iustice of the C. Pl. in the Earle of Rutlands case in 8 Rep. 6 Jac. complaines together with the other Iudges of the same Court Co. l. 8. 56. b. The Earl of Rutlands case that then of late time divers nice and strained constructions of Letters Patents had béen made and many of them upon slight grounds had béen brought in question with purpose to subvert the force and effect of them which practice said they did much tend to the dishonour of the King and wrong of the subject and was cléerly against the true reason and ancient Rule of Law as did manifestly appeare in all their Books because such nice and captious pretence of certainty confounds true and legal certainty Indictment 4 In Mackallies case in the 9 Rep. exception was taken to the indictment which said Co. l. 9. 66. be Mackallies case in Curia dicti Domini Regis in computatorio suo scituato in Parochia sancti Michaelis in Wood-street London and did not shew in what Ward the said Parish was but it was not allowed for as it was holden in 7 H. 6. 36. b. every Ward in London is as an hundred in the Country and every Parish in London as a town in the hundred and it is not necessarie to declare in what hundred a town is neither yet in what Ward a Parish is And therefore such nicety is to be avoided as néedlesse Vide plus ibidem Exception to a Charter c. 5 Exception was taken against the confirmation of the Charter of Queens Colledge in Oxford Co. l. 11. 20. a. 22. a. Doctor Ayrays case ann 8 Jac. because it was sub nomine Aulae Reginae whereas the Charter it selfe was Aulae Scholarium Reginae but not allowed So in 17 E. 3. 48. one was named Burgensis de novo castro super Tinam and the exception was taken that a Burgesse ought to be of a certain Town and not of a Castle but it was not allowed Exception to a Charter c. for the ancient Sages of the Law did alwayes reject such niceties concerning appellations and names when the thing intended might be thereby well enough known and distinguished III Maximes of Reason taken out of LOGICKE 19 Cessante causa cessat effectus The Corporation failing the land revests in the Donor IF Land holden of I. S. be given to an Abbot and his successors or to any other Corporation In this case if the Abbot and all the Covent die so that the bodie Politique is dissolved Co. Inst pars â— 13 b. 2. the Donor shall have againe the land and not the Lord by Escheate because in the case of a bodie Politique the fée simple is vested in their politique capacity created by the policy of man and therefore the Law doth annex a condition in Law to every such gift and grant that if such bodie Politique be dissolved the Donor or Grantor shall re-enter for that the cause of the gift or grant faileth But no such condition is annexed to the estate in fée simple vested in any man in his natural capacity but in case where the Donor or Feoffor reserveth to him a tenure and then the Law doth imply a condition in Law by way of Escheate Wedlock ceasing the Dower ceaseth 2 The wife shall be endowed of the lands c. of her husband â—o ibid. 32. a. 4 if the mariage continue till his death but if the husband and wife be divorced à vinculo matrimonii as in case of precontract consanguinity affinity or the like but not à mensa thoro onely as for adultery the Dower ceaseth For ubi nullum matrimonium ibi nulla dos See Dyer 13. a. The tenure ended the distress ceaseth 3 For the rent due the last day of the terme Co. ibid. 47. b. 3 the lessor cannot distraine because the terme is ended and therefore some use to reserve the last halfe yeares rent at the feast of St. John Baptist before the end of the terme so as if the rent be not then paid he may distraine betwéen that and Michaelmas following The tenure ended the estople ceaseth 4 If a man takes a lease for years of his own land by déed indented the estopel doth not continue after the terme ended Co. ibid. 47. b. 4 m. 31. 32. Eliz. Londons case Co. l. 4. 54. a. 3. for by making of the lease the estopel doth grow and consequently by the end of the lease the estopel determines and that part of the Indenture which belonged to the Lessée doth after the terme ended belong to the Lessor which should not be if the estopel continued Vide 40. 32. Co. ibid. 76. a. 1 5 If after the Lord hath the wardship of the bodie and land The Seigniory extinct the Wardship ceaseth the Lord doth release to the Infant his right in the Seigniory or the Seigniory descendeth to the infant he shall be out of ward both for the body and land for he was in ward in respect he was not able to do those services which he ought to do to his Lord which now are extinct and Cessante causa cessat causatum And Littleton saith that tenure by Knight-service draweth unto it ward mariage c. So as there must of necessity be a tenure continuing Upon release of all debts the Land in execution is also released So likewise if the CoÌ„nusor in a Statute merchant be in execution and his land also and the Conusée release to him all debts this shall discharge the execution For the debt was the cause of the execution and of the continuance of
homage Ancestrell again so it is if a Copihold escheat and the Lord maketh a feoffment in fée upon Condition and entreth for the condition broken it shall never be Copihold again because in both these cases the custome or prescription which supported and was the cause of the tenure is interrupted and that being once broken is become remedilesse The land evicted the Annuity is gone The mariage failing the land revests 17 If a man grant an annuitty ppruna acra terrae Co. ibid. 204. a. 2. if the acre of land be evicted by an elder title the annuity shall cease so if it be pro decimis and the grantee be disturbed or pro consilio or quòd praestaret consilium and the grantee refuse to give counsel the annuity shall in these cases cease likewise if a woman give lands to a man and his heires causa matrimonii praelocuti in this case if the man refuse to marry her she shall have the land againe to her and her heires but it is otherwise in case of a man Co. ibid. 238. a. 4. 18 If a disseisor make a gift in taile A dying seised and yet no descent to take c. and the Donee discontinueth the fée and after disseise the discontinuee and dieth seised this discent shall not take away the entry of the diseissée For the discent of the Fée simple is vanished and gone by the Remitter And albeit the issue be in by force of the estate taile yet the Donée died not seised of that estate and of necessity there must be a dying seised Co. ibid. 239. a. 2. 19 When the degrées are past so as a writ of Entry in the Post doth lye yet by event it may be brought within the degrées again A writ out of the degrees may be reduced as if the disseisor enfeoffe A. who enfeoffes B. who enfeoffes C. or if the disseisor die seised and the land descends to A. and from him to B. and from him to C. Now are the degrées past and yet if C. enfeoffe A. or B. now is it brought within the degrées again Co. ibid. 242. b. 1. 20 If the eldest sonne hath issue and dieth A descent when privity of bloud faileth and after his decease the younger sonne or his heire entreth and many descents cast in his line yet may the heires of the eldest sonne enter in respect of the privity of bloud and of the same claime by one title But if the younger sonne make a feoffment in fée and the feoffée dies seised that discent shall take away the entry of the eldest in respect that the privity of bloud faileth Co. ibid. 285. a. 4. 21 If an action of wast be brought by Baron and feme in remainder in special taile Death voidâ— the action and hanging the writ the wife dieth without issue the writ shall abate because every kind of action of wast must be ad exhaeredationem Co. ibid. 291. a. 4. Execut. 7. 22 If the bodie of a man be taken in execution upon a Ca. sa and the Plaintiffe releaseth all actions Release of debt excuseth execution yet shall he still remaine in execution but if he release all debts duties or judgements he is to be discharged of the execution because the debt or the dutie or the judgement which is the cause of the execution is discharged Co. ibid 312 a. 1. 23 The Reason that Littleton giveth of the difference betwéen a rent-service and a rent-charge is Avowry for a rent service upon the person for that in rent-service the avowry shall allwayes be made upon the person but in rent-charge never upon the person but upon the Land charged Now here it may be said that this reason is taken away by the Statute of 21 H. 8. 19. For by that Statute the Lord needs not avow for any rent or service upon any person in certaine and then by Littletons reason there néedeth no privity to the attornment of a Seigniory for say they Cessante causa ratione legis cessat lex As at the Common Law no aide was grantable of a stranger to an Avowrie because the Avowrie was made of a certaine person but now the Avowrie being made by the said Act of 21 H. 8. upon no person therefore the reason of the Law being changed the Law it selfe is also changed and consequently in an Avowrie according to that Act aid shall be granted of any man and the like in many other cases which case is granted to be good Law But albeit the Lord as hath béen said may take benefit of the Statute yet may he avow still at his election upon the person of his tenant and albeit the manner of the Avowrie be altered yet the privity which is the true cause of the said difference remaineth as to an Attornment Littl. § 568. Co. ibid. 316. a. 3. 24 If the reversion of Lessée for life be granted Upon alienation the grantee shall attorn and Lessée for life assigne over his estate the Lessée cannot attorne but the attornment of the Assignée is good because as Littleton saith it behoveth that the tenant of the land do attorne and after the assignement there is no tenure or attendance c. betwéen the Lessée and him in reversion so likewise if Lessée for life assigneth over his estate upon condition he having nothing in him but a condition shall not attorne but the assignée may attorne because he is tenant of the land The assignee of tenant by possession shal â—attorn 25 Tenant in taile after possibility of issue extinct shall not be compelled to attorne for the inheritance which was once in him Co. ibid. 316. a 4. but his assignée shall be compelled to attorne because then that priviledge is lost the assignée having in him onely a bare estate for life Release of quarrels is release of Act. 26 Quaerela being derived à quaerendo properly concerneth personal actions or mixt at the highest Co. ibid. 292. a. 3. for the Plaintiff in them is called Quaerens and yet if a man release all quarrels it is as beneficial as all actions for by it all actions both real and personal are released because by the release of all quarrels all causes of actions are released albeit no action be then depending for the same Where the estate is defeasible the tenant is not compelâ—able to attorn 27 It is a general rule that when the grant by fine is defeasible Co. ibid. 318. a. 4. 36 H. 6. 24. there the tenant shall not be compelled to attorne As if an infant being seised of a reversion levie a fine thereof this is defeasible by writ of error during his minority and therefore in this case the tenant shall not be compelled to attorne so likewise if before the Statutes of 4 H. 7. 24. and 32 H. 8. 36. a tenant in taile had levied a fine the tenant could not have béen
nec è converso for the original cause of this condition by reason of vicinage was not for profit but to prevent suits in Champion Countries for the reciprocal escapes of the one Town into the other Condition precedent and subsequent 36 In all cases when an interest or estate commenceth upon a Condition precedent Co. l. 7. 10. a. 1. Ughtreds case be the Condition or Act to be performed by the Plaintife or Defendant or any other or be the condition in the affirmative or the negative there the Plaintife ought to shew it in his Count and averre the performance of it for there the interest or estate commenceth in him by the performance of the Condition and is not in him till the Condition be performed but it is otherwise when the interest or estate passeth presently and vests in the grantée and is to be defeated by matter ex post facto on Condition subsequent be the Condition or Act to be performed by the Plaintife or Defendant or by any other and be the Condition in the affirmative or the negative there the Plaintife may count generally without shewing the performance of it and it shall be pleaded by him that will take advantage of the Condition or matter ex post facto for every one ought to alleadge that which makes for him and is for his advantage but none shall be compelled to produce that which makes against him Vide infra 25. 20. A Copiholder may lop trees 37 The Lord of a Copihold Mannor Co. l. 8. 63. Swaynes case within which the Copiholders might by custome lop the timber trées for estovers and necessary repaire of fences c. makes a Lease thereof to A. for 21 years excepting the timber trées A Copihold tenant having lands upon which such timber grew surrendred his estate to another who was admitted by A. the Lessée of the Mannor and lops the trées for necessary repair of fences Now the question was whether the Copihold tenant being admitted by A. who had no interest of the trées by reason of the exception Co. l. 4. 21. a Browns case fol. 23. b Clark and Pennyfathers case fol. 24. a. P. 26. Eliz. 29. b. 2. Buntings case had power to lop them because Nemo potest plus juris ad alium transferre quám ipse habet And it was resolved that he might lawfully lop them because the estate of a Copiholder is not derived out of the estate or interest of the Lord of the Mannor for the Lord is but as it were an Instrument to convey the grant of the Copihold but the Custome of the Mannor after the grant is made is that which establisheth and makes it firme to the Grantée So that although the grant be new yet the title of the Copiholder to the profit of the trées is ancient and so ancient that by force of the Custome it excéeds the memory of man Vide Co. 4. 27. b. Taverners case 28 b. Westicks case Vide 30. 22 23. Co. l. 9. 81. Agnes Gores case 38 Gore the husband of Agnes being sick It may be murder though not intended Roper the father of Agnes procures an Electuary of Martin the Apothecary by the advise of Doctor Grey into which Agnes secretly puts Rats-bane to poison her husband and the 18 of May gives part thereof to her husband who thereupon became very sicke Roper also and another eating part thereof became very sick at last Martin being taxed for making the Electuary in that manner the 21 of May stirres it and also eats part thereof and dies the next day And it was resolved by all the Iudges of England that this was murder in Agnes and that this case did not differ from Sanders case in the Commentaries Plowd 474. although Martin by stirring it made the poison more forcible for the stirring c. without putting in the poison could not be the cause of his death and the Law joynes the murderous intention of Agnes in putting the poison into the Electuary to kill her husband with the event which insued thereupon viz. the death of Martin for the putting in of the poison was the cause and the poisoning and death of Martin was the event Quià eventus est qui ex causa sequitur dicuntur eventus quià ex causis eveniunt So if A. puts poison into wine with an intention to kill B. and C. conceiving it to be sugar stirres it drinks it and dies this is murder in A. It is otherwise where Rats-bane is layd with an intention to kill rats and one takes it eats it and dies for there was no felonious intent c. Co. l. 9. 85. a. Connyes case 39 Vpon grant of a Mannor An Infant shal do his services c. attornement of an infant being tenant of the same Mannor is good and in a Per quae servitia against an infant that hath the tenancy by descent he shall not have his age because at first the Lord departed with the land in consideration that the tenant should hold of him performe services pay a yearely rent c. and the tenant is in Law called tenant paravaile because the Law presumes that he hath benefit and availe above the services which he doth and the rent which he payes to the Lord And therefore it is against the reason and purpose of the creation of the tenure that when the heire hath the tenancy paravaile by descent he should not pay the annual rent c. which was reserved upon the Creation of the tenancy And this is the reason that the heire of the tenant who hath the tenancy by descent may be distreined for the rent c. arrere during the minority and shall not therefore have his age c. Co. l. 9. 113. a. Maryes case 40 For every féeding of the Cattle of a stranger upon a Common Trespass for common contrà the Commoner shall not have an Assise nor action upon the case as his case lies but the depasturing ought to be such per quòd le Commoner c. Common de pasture c. for his Cattle c. habere non potuit sed proficium suuminde per totum idem tempus amisit c. So that if the trespasse be so little that he hath not any losse but that still sufficient remaines for him to depasture his cattle In that case the Commonor shall not take the Strangers Cattle damage fesant neither shall he have any action for it but the tenant of the soile may in that case have an action So if a servant be beaten the Master shall not have an action for that battery except that by reason thereof he loseth his servants service but the servant for every slight battery may have an action and the cause of this diversity is for that the Master receiveth no damage by the personal battery of his servant but by reason of a per quod per quod
contraria voluntate c. Co. l. 8 48. a. John Webbes case Co. Inst pars 1 131. a. 4. Ibid. See more authorities 2 If after a Protection is allowed by Innotescimus A Protection must be disallowed by the Chancellor the Defendant tarry in the Countrey without going to the service for which he was retained above a convenient time after he had the Protection or otherwise repaire from the same service upon information thereof to the Lord Chancellor he shall repeale the Protection in that case by another Innotescimus but a Protection shall not be avoided by a bare averment of the party in that case because the record of the Protection must be avoided by matter of as high nature Co. Inst pars 1 204. a. 4. 3 E. 6. Dyer 65 66. 4 Mar. 138. 3 If a man maketh a feofment in fée or for life ad faciendum or faciendo or ea intentione or ad effectum or ad propositum What words make a condition and what not that the Feoffée shall do or shall not do such an act none of these words make the estate of the land conditional for in judgement of Law they are no words of Condition to make an estate of inheritance or Freehold defeâ—sible which took effect by Livery except it be in the Kings case or in the case of a will But if a Lease for yeares be made with such a clause or thus Quod non licebat to the Lessee dare vendere vel concedere statum sub poena forisfacturae H. 40. Elizabeth Brown Ayers case Plowd Co. 142 Browning and Bestons case Co. ibid 214. b 3. 1. ibid. per auth this amounts to make the Lease for yeares defeasible and so was it adjudged in Queen Elizabeths time in the Court of Co. Pl. and the reason of the Court was That a Lease for yeares was but a contract which may begin by word and may also by word be dissolved 4 If a man make a gift in taile or a Lease for life upon Condition Where an estate shall cease upon condition where not that if the Donee or Lessee goeth not to Rome before such a day the Gift or Lease shall cease or be void the Grantee of the reversion shall never take advantage of this Condition because the estate cannot cease before an entry but if the Lease had been but for yeares there the Grantee might have taken advantage of the like Condition because the Lease for yeares ipso facto by the breach of the Condition without any entry was void for a Lease for yeares may begin without Ceremony and so may end without Ceremony but an estate of Freehold can neither begin nor end without Ceremony Co. l. 3. 64. b. 4. and 65. a. 1. Pennants case Things that lie in grant not surrendred without deed 5 Rents Advowsons Conditions Reversions Remainders Co. ibid. 338. a. 3. and all other things that lie in grant as they cannot be granted without Deed so shall they not be surrendred without Deed. 6 An Obligation or other matter in writing cannot be discharged by an agreement by word Finch 11. Doct. and Stud. li. 1. cap. 12. 19 E. 4. 1. b. Vide infrà 25. An annuity by prescription 7 In an Annuity growing by prescription rien arrere is a good plea for this prescription is a matter in fait 5 H 7. 33. Finch 12. 4 H. 7. 7. b. but in an Annuity by Deed it is no good plea without shewing an Acquittance Matter pleaded against the King 8 When a man avoides the Kings Title by as high a matter of Record as the King claimeth he may have it by way of Plea without being driven to his Petition though the King be intitled by double matter of Record As one is attainted of Treason by Parliament and an office finds his lands whereby the King seiseth them the party may alleadge restitution by Parliament and a repeale of the former Act. Finch 12. Co. l. 4. 57. a. 4. In the Sadlers of Londons Case Power of revocation annulled by feofment or release 7 A. by Indenture enfeoffs B. of two acres to the use of A. for life remainder in taile to C. remainder to D. in fee with proviso Co. l. 1. 113. a. Albanies case that if E. die without issue A. by Indenture sealed c. in the presence of 4 witnesses may alter the uses c. A. of one acre enfeoffes F. and for the other acre A. by Indenture renounceth surrenders releaseth c. unto B. C. and D. the said Power Condition Authority c. E. dies without issue A. by Indenture revokes the first uses and limits new ones And it was resolved that A. had by the said feofment and release barred himselfe of limiting other uses for as the Proviso and Covent aforesaid did commence by Deed so by Deed may they be annulled and defeated because in all cases when any thing executory is created by a Deed the same thing by consent of all persons which were parties to the creation of it may be againe by their Deed annulled And therefore Warranties Recognisances Rent-charge Annuities Covenants Leases for yeares uses at the Common Law and the like may by a Deed of Defeasance with the mutual consent of all those that were parties to the creation of them be annulled discharged and defeated for it would be strange and unreasonable that a thing which is created by the act of the parties shall not be againe by their act with their mutual consent dissolved Bloud no valuable consideration against the Statute of 13 El 5. 10 Nature and bloud are not valuable considerations to satisfie the Statute of 13 El. 5. Co. l. 3. 81. a. 4. Twines case and therefore if he that is indebted to five several persons to each of them in 20 l. in consideration of natural affection gives all his goods to his sonne or cofin in this case in as much as the other shall lose their due debts c. which are things of value the intention of the act was that the consideration in such case should be valuable for equity requires that such a gift which shall defeat others of their due debts shall be upon as high and as good a consideration as those debts are which are so to be defeated A right cannot be transferred 11 By the Rule of the Common Law a right or title Co. l. 4. 1. a. Vernonâ— case which any hath to any Lands or Tenements of inheritance or Frank-tenement cannot be barred by acceptance of any manner of collaterall satisfaction or recompence As if A. disseise B. Tenant for life or in fée of the Mannor of Dale and after gives the Mannor of Sale to B. and his heirs in full satisfaction of all his right in the Mannor of Dale which B. accepts yet B. may neverthelesse enter into the Mannor of Dale or recover it in any real action for the
consideration of any valuable thing to present A. B. to the said Church albeit it had béen without the consent or knowledge of A. B. yet it should not have vested the Advowson in the Lord causa qua suprà Dereignment purgeth profession 4 If the wife after the husband hath entred into Religion alien Co. ibid. 132. b. 1. the land which is her own right and after her husband is dereigned the husband may enter and avoid the alienation Mariage of Priests 5 In times past if a secular Priest had taken a wife Co. ibid. 136. a. 3. and had issue and died that issue had béen lawfull and should have inherited as heire to his father c. For as it was then holden the mariage was not void but voidable by Divorce and after the death of either party no Divorce could have béen had But in those dayes if a man had maried a Nunne or a Monke had maried those mariages were holden void the Nunne and the Monke being as Littleton saith Sect 202. dead persons in Law and therefore their issue could not have inherited 21 H. 7. 39. 19 H. 7. Bastardie 33. 5. E. 2. Nonability 26. 47 E. 3. casu ultimo Rescuous lawful 6 If the Lord destrain the Tenant for rent before it be due Co. ibid. 160. b. 3. v. ibid. Pl. author the Tenant may justifie to make rescous and it shall not be adjudged disseisin of the rent So it is also of a rent charge Livery of an estate in futuâ—o void 7 If a Lease for yeares be made to begin at Michaelmass Co. ibid. 217. a. 4. the remainder over to another in fée if the Lessor make Livery of seisin before Michaelmass the Livery is void because Livery of seisin must passe a present Frée-hold and not in futuro for if it should worke at all it must take effect presently and cannot expect Release to lessee for years void 8 If a man let to another his land for terme of yeares Co. ibid. 270. Littl. § 459. if the Lessor release unto the Lessée all his right c. before the Lessée enter into the same land by force of that Lease such a release is void because the Lessée had not possession in the land but onely interesse termini at the time of the release made It is otherwise if the Tenant had béen in possession or in case of a Lessée for life Patron shall â—ot charge the Glebe 9 Regularly the Incumbent may charge the Glebe Co. ibid. 300. b. 3. Littl. § 528. if the Patron and Ordinary joyn with him in the grant or consent thereunto either by Precedent Licence or subsequent confirmation yet in this case if the Patron be but Tenant in tail or for life or the Ordinary be Patron the charge shall not be perpetual for in the first case the issue in taile reversioner or remainder shall avoid it and in the other case the Licence or Confirmation of the Ordinary is not available to charge the land without the consent of the Dean and Chapter but shall be avoided by the Successor of the Ordinary Co. Inst pars 1 300 b. 3. 10 A. Parson of D. is Patron of the Church of S. as belonging to his Church A grant of a rent not good and presents B. who by the consent of A. and of the Ordinary grants a rent charge out of the Glebe this is not good to make the rent charge perpetual without the assent of the Patron of A. Co. ibid. 301. a. 1. 11 If the Disseisor make a Charter of Feofment to A. with a letter of Attorney Confirmation void and before Livery the Disseisée confirmes the estate of A. or the Déed made to A. this is cléerly void though Livery be made afterwards Co. ibid. 323. b. 4. 12 If the Tenant of the Land A void release of a rent out of which a rent charge is issuing pay the rent to a Stranger that hath no right thereunto and the right owner release to him this release is good because he thereby admitteth himselfe to be out of possession But if the Tenant had given him any thing in name of attornment and the right owner had released to him this release had béen void because an Attornement onely can be no disseisin of the rent and therefore in that case the release had not good footing nor whereon to worke Littl. §. 633 634. Co. ibid. 336. b. 4. 13 If Feme Inheretrix have a Baron under age Nonage who during his nonage aliens the Feme of Land and dies In this case the Feme may enter So likewise if two Ioyntenants under age make feofment in fée and one of them dies the Survivour may enter c. Littl. § 660. Co. ibid. 348. 14 If Tenant in tail make feofment in fée to the issue in tail Estate in tail not chargable within age by force whereof he is seised if the Tenant in tail die the issue is remitted and therefore in this case if the issue in taile being at full age doth in the life of the Tenant in taile grant a rent charge issuing out of the land to a stranger and after the Tenant in taile dies the issue in taile shall hold the land discharged Co. ibid. 349. a. 3. 15 If the heire apparent of the Disseisée disseise the Disseisor A rent charge not good and grant a rent charge and then the Disseisée dieth the Grantor shall hold it discharged for there a new right of entry descendeth unto him and therefore he is remitted and shall avoid the charge So likewise if the Father disseiseth the Grandfather and granteth a rent charge and dieth now is the entry of the Grandfather taken away and here if the Grandfather dieth the Sonne is remitted and shall avoid the charge Finch 12. 16 If an Infant or Feme covert make their will and publish it A Will void and after die of full age or sole yet is the will nothing worth 10 Eliz. Dyer 344. Finch 〈◊〉 17 One disseised of two acres in D. releaseth all his right in all his lands in D. and delivereth it to a stranger to be delivered over to the Disseisor as his Déed such a day A void release before which day the Disseisor disseiseth him of another acre in D. and then the release is delivered over unto him yet nothing of the right of this third acre passeth by the release Co. l. 2. 55. Bucklers case 18 A. Tenant for life makes a Lease for 4 yeares to B. to begin presently A Lease for life void and after makes a Lease for life to C. to begin at Midsummer following and after Midsummer B. attorns here the Lease for life to C. is void because an estate of Frank-tenement cannot commence in futuro and then the attornment though it were after Midsummer shall not make the reversion to passe the grant
case and the Earle of Leicesters case Plow 400 c. Quae malo sunt inchoata c. A void presentment Fitz. 35 f. 6. 32 A presentment made by a stranger to an Advowson which is appropriate to an Abbey is void be the presentment in the Abbots time or during the vacation and albeit the Clerke be afterwards admitted instituted and inducted yet that cannot make the presentment which was void at first to take effect For Quod initio non valet c. It is otherwise if the Abbot himselfe present c. Co. l. 1. 15. b. 3. Sir William Pelhams case 33 A tenant for life remainder in tail remainder in fée bargains and sels the land in fée to B. who after the Statute of 32 H. 8. cap. 31. A void recovery and forfeiture by tenant for life and before the Statute of 14 El. cap. 8. suffered a recovery wherein A was vouched and vouched over c. and after Iudgement was entred and execution sued upon that recovery yet was the entry of the tenant in tail adjudged congeable for albeit the recovery was not had immediately against A. yet was it adjudged a forfeiture within that Statute of 32 H. 8. and then the suffering of the recovery being a forfeiture it could not afterwards be salved by entring Iudgement and suing execution thereupon Co. Inst pars 1. 46. a. 4. 34 If the Patron grant the next avoydance and after Parson A void grant of Glebe Patron and Ordinary before the Statute had made a lease of the Glebe for yeares and after the Parson dieth and the grantée of the next avoydance had presented a Clerk to the Church who is admitted instituted and inducted and dieth within the terme the Patron presents a new Clerk who is also admitted instituted and inducted here albeit he commeth in under the Patron that was party to the Lease and was Admitted Instituted and Inducted yet because the Lease had no good beginning but was avoided by the Grantees Incumbent who had the whole estate in him it shall not be againe revived but shall be extinct for ever and shall not be maintained against the last Incumbent Co. Inst pars 1 31. b. 4. 35 If a man be Tenant in general taile The last feme not endowed and take a wife and hath issue by her and she dies and after he taketh another wife and dies the last wife shall be endowed because she may have issue which by possibility may inherit But in this case if the husband during his first wives life alien the land in Fee and takes an estate back to him and his wife and the heires of their two bodies and the wife dies the second wife shall not be endowed because during the Coverture when her Title of Dower should take beginning he was seised of an estate taile special and yet here also the Issue that he may have by the last wife is inheritable Co. ibid. 9. a. 1. 36 B. having divers sonnes and daughters Grant to children before birth not good A. giveth lands to B. liberis suis and to their heires the Father and all his Children do take a Fee simple joyntly by force of these words their heires but if he had no child at the time of the Feofment the Child or Children born afterwards shall not take Dyer 58. a. 4. 35 H. 8. 37 Cestuy que use after the Statute of 1 R. 3. 1. Cestuy que us◠and before the Statute of Uses makes a Lease for yeares and after during the terme makes Feofment of the land and gives Livery c. In such case nothing passed by such Feofment because he had nothing in Vse or Possession and then the Statute of R. 3. would not aide him 29 Quod non habet principium non habet finem Where there can be no presentment by lapse 1 If the Bishop be named in the Quare impedit Co. Inst pars 1 344. b. 4. he shall never afterwards present by lapse and then shall neither the Metropolitan nor after him the King do it For the Bishops presentment falling which was to be the first step and begining their power of presenting which should successively follow his must néeds also fail according to the Rule Quod non habet principium non habet finem Right without action no remitter contra 2 Regularly a man shall not be remitted to a Right remedilesse Co. ibid. 349. a. 4. for the which he can have no action And therefore Littleton saith Sect. 661. that the principal cause of a Remitter is when the issue hath no person but himselfe against whom he may bring his Action by which it appeareth that he ought to have just cause of Action for neither an Action without a Right nor a Right without an Action can make a Remitter as if Tenant in tail suffer a Common Recovery In which there is error and after the Tenant in tail disseiseth the Recoveror and dieth here the issue in tail hath an action viz. a Writ of Error but so long as the Recovery remaineth in force he hath no Right and therefore in that case cannot be remitted Idem 3 If B. purchase an Advowson Co. ibid. 349. b. 3. and suffereth an usurpation and six Moneths to passe and the usurper granteth the Advowson to B. and his heires B. dieth his heire is not remitted because his Right to the Advowson was remedilesse viz. a Right without an Action 4 Vide infra M. 38. 1. 7. and 162. 49. Co. Inst pars 1 31. a. 4. 30 He that claimeth Paramount a thing shall never take benefit nor hurt by it Dos de dote peti non potest 1 If there be Grandfather Father and Son Co. Inst pars 1 32. a. 4. and the Grandfather is seised of thée acres of land in fée and taketh wife and dieth this land descendeth to the Father who dieth either before or after entry now is the wife of the Father dowable yet shall she have the thirds but of two acres onely and the wife of the Grandfather shall have for her Dower the other acre intirely because the Dower of the Grandmother is Paramount the Title of the Fathers wife and the seisin of the Father which descended to him be it in Law or actual is defeated and now upon the matter the Father had but a Reversion expectant upon a Fréehold and in that case Dos de dote peti non potest although the Grandmother die living the Fathers wife Dower according to the improved value 2 If the wife be entitled to have Dower of thrée acres of March Co. Inst pars 1 32. a. 3. every one of the value of twelve pence per annum the heire by his industry and charge maketh it good meadow viz. every acre worth ten shillings per annum the wife shall have her Dower according to the improved value and not according to the
or other Writing shall be void yet the Law implicitly requires order which ought to be pursued by the Obligor c. As if an Obligation be made to the Sheriffe against the Statute of 23 H. 6. cap. 10. or to one against the Statute of Usury 13 Eliz. cap. 8. in those and the like cases the Defendant ought to conclude Judgement si Action and cannot plead non est factum 7 E. 4 5. 7 E. 6. Br. non est factum 14. against the opinion of Montague in Dyve and Maninghams case in the Commentaries Pl. com 66. Againe when the Obligation or other Writing took at first effect and was once revera his Deed but afterwards before the Action brought became no Déed as by rasure addition alteration breaking of the Seal or the like in these cases albeit it were sometimes his Déed yet may the Defendant safely plead non est factum for doubtlesse at the time of the plea which is in the present tenures it was not his Deed. In Dyer 36 H. 8. 59. In debt the Defendant pleades non est factum and before the day of Apparence of the Inquest the mice had eaten the Label unto which the Seal was fixed by the negligence of the Clerke in whose custodie it was kept whereupon the Iustices commanded the Iury that if they found that it was his Deed at the time of the plea pleaded they should then give a special Verdict which they did accordingly If an Obligation be delivered to another to the use of the Obligée and the Obligée refuseth it upon tender in this case the delivery hath lost its force and the Obligée can never agrée to it afterwards and then also the Obligor may safely plead non est factum against the opinion in Dyer 1 Eliz. 167. So also if an Obligation be made to a Feme Covert and the Baron disagrée to it the Obligor may plead non est factum for by the refusal the Obligation loseth its force and becomes no Déed And by these resolutions the Quaere in Dyer 2. Mar. 112. and the disagreeing opinions in 14 H. 8. 28. Dyve and Maninghams case 66. 1 H. 7. 15. Dyer 1 Eliz. 167. and other places are well reconciled 30 A. Tenant for life the remainder to B. in Fée joyn in a Lease to C. this immediately after the delivery takes effect in this manner Where a Lease enures by grant or confirmatioâ— it is the Lease of A. during his life Co. l. 6. 15. Treports case and the Confirmation of B. and after the death of A. it is the Lease of B. and the Confirmation of A. according to the opinion of Dyer Brown M. 6. and 7 Eliz. 234 235. and therefore in an Ejectione firma brought by C. if he count of a joynt Demise from A. and B. his count is not good And in that case although the Lease be by Déed indented yet shall it not worke any conclusion for when the Déed enures by passing of an interest as in this case it doth it shall not be taken for any conclusion no more than a Lease for yeares of the Tenant for life by Déed indented shall be an Estoppel after his death because at the beginning it took effect by way of passing an Interest Co. l. 6. 74. a. 3. Sir Drue Druries case 31 When Tenant by Knight Service dies his heire within age Marriage dâ— to the Lord. Chattel veâ—â— presently the value of his mariage as a Chattel takes such effect and is so vested in the Lord 24 E. 3. 25. V. N. Br. 27 E. 3. that albeit such an heire within age be made a Knight and to that purpose in Iudgement of Law is estéemed of the full age of 21 yeares yet shall the Lord have the value of his mariage as well as the custodie of his land till his age of 21 yeares which last to remove all doubt was expressely given to the Lord by Magna carta cap. 3. Co. l. 7. 17. b. 3. Calvins case 32 If a King hath a Kingdome by Title of descent where the Laws have taken good effect and rooting The King cannot altâ—â— in as much as by the Laws of that Kingdome he doth inherit it Lawes without Parliament he cannot change those Lawes of himselfe without consent of Parliament So also if a King hath a Christian Kingdome by Conquest as King H. 2. had Ireland after King John had given unto them being under his obedience and subjection the Laws of England for the government of that Country no succéeding King could alter the same without Parliament A Recognisance chargeth a rent after release to the Terre-tenant 33 The Grantée of a rent charge issuing out of land acknowledgeth a Recognisance and afterwards releaseth to the Terre-tenant Co. l. 7. 38. b. 3. c. Lillingstons case the Conusée sueth Execution and extends the rent notwithstanding by the release it is extinguished for the Recognisance took effect to charge the rent before the extinguishment and therefore it shall be liable to the extent in whose hands soever it comes and as to the Conusée shall not be extinct A Chattel vested 34 If the King hath an Advowson in Fée which is void Fitz. 33. N.O. P.a. and during the avoidance the King grants away the Advowson in Fee the King shall not present to this avoidance But if the King hath an Advowson by reason of the temporalties of a Bishoprick which is void and during the avoidance the King restores to the Bishop the temporalties yet he shall present to the Advowson and not the Bishop for this avoidance because the presentation was a Chattel which vested in him before he restored the temporalties So if the heire sue Livery from the King and hath it yet the King shall present to the Advowson which voided during the time that the Advowson and land were in the Kings hand causa qua supra Likewise if a man be seised of an Advowson in Fee in grosse or appendant to a Mannor and the Advowson voides and he dies his Executors shall have the presentation and not the heire because it was a Chattel vested and severed from the Mannor neither shall the heire in taile have the presentation which falls in the life of the Tenant in tail but the Executors of the Tenant in tail c. The like 35 The Termor shall have the presentation Fitz. 34. b. N which happens during the terme albeit during the terme he present not to the Advowson So if a Vicarage happen to be void and before the Parson can present he is made a Bishop c. yet he shall present to that Vicarage because it was a Chatttel vested in him Where the Guardian shall not have ravishment 36 If the Guardian marry the heire after the age of 14 yeares Fitz. 142. h. and after the heire is taken by a stranger yet the Guardian shall not have a Writ of
good delivery For in traditionibus scriptorum non quod dictum est sed quod gestum est inspicitur It is otherwise when it is delivered to a stranger Dyer 98. b. 56. 1 Mar. 8 If two or more conspire to commit treason as to levie war Treason or the like and some of them afterwards put it in execution this is Treason in all and so it was at the Common Law before the Statute of 25 Edw. 3. Dyer 192. 26. 2 3 Eliz. 9 A. caused an Obligation to be written and sealed it Delivery of a Bond. which writing was to the use and behoof of B. whom he intended to marry and upon the day of Marriage and before it he delivers the writing to B. saying these words This will serve and B. presently delivers it over to the Obligée then present This was adjudged a good Obligation for Acta exteriora c. Dyer 224. 30. 5 Eliz. 10 An offence shall not be adjudged Robbery Robbery unlesse the Thiefe doth not onely take some-what from the person but likewise put him in feare of death and therefore in 5 Eliz. where a thiefe tooke 40 s. from the person of another in the high way without putting him in feare of death it was adjudged onely bare felony for which he had his Clergy for by not putting him in such feare the Court adjudged it no more Howbeit by the Statute of 8 Eliz. 4. Clergy is taken away from such an offender yet that Statute being an act of Continuance and the long Parl. being suddenly broken up it hath been doubted whether or no that act and all other acts of Continuance were expired for want of farther continuance but by an Act made in 17 Car. for the farther reliefe of his Majesties Armie in the Northern parts that Act and all other Acts of continuance are to continue in force untill some farther Act of Parliment be made for the continuance or discontinuance of the same 38 Inutilis labor sine fructu non est effectus Legis contra And therefore nothing can be given to a man which he had before 1 If the Lord mayhem his Villain he shall be indicted for it at the Kings suit Littl. § 194. Co. Inst pars 1. 126. a. 4. 127. b. 1. The appealâ—y a Villaine against his Lord. but in that case he shall not have an appeale of Mayhem against his Lord because he cannot enjoy the damages recovered in that suit for that upon recovery and execution for the damages the Lord may immediately take them from him again Vide supra 35. 6. 2 In an action brought by a man or a woman that are professed in Religion in Normandy Co. ibid. 132. b. 2. or any other Forreign Country Forreign profession not pleadable the Defendant shall not plead in disability of their person because that profession will want tryall here in England It is otherwise if they were professed in England for that might be tryed by the Certificate of the Ordinary 3 If a man enfeoffeth another of an acre of ground with warranty The heire and youngest son vouched togâ—ther hath issue two sons Co. ibid. 376. a. 3. dieth seised of another acre of land of the nature of Borough English and the feoffée is impleaded Here albeit the warranty descendeth onely upon the eldest son yet may he vouch them both the one is heire to the warranty and the other as heire to the land For if he should vouch the eldest sonne only then should he not have the fruit of his warranty viz. a recovery in value and the youngest sonne only he cannot vouch because he is not heire at the Common Law upon whom the warranty descendeth 4 Counts and such as be in nature of Counts as an Avowry wherein the Defendant is an Actor need not to be averred Co. ibid. 303. a 4. Negative pleas not to bâ— averred but all other pleas in the affirmative ought to be averred thus Et hoc parat est verificare c. Howbeit pleas méerly in the negative ought not to be averred because it were in vaine to aver them in regard they cannot be proved The issue after discontinuance cannot enter 5 If Tenant in taile release to his Disseisor Co ibid. 318 a 4. and binde himselfe and his heirs to warranty and die and this warranty descends upon the issue this works a discontinuance so that the heire cannot enter but is put to his action for if the issue in taile might enter the warranty which is so much favoured in Law would serve for no purpose but would be utterly destroyed whereas being put to his action the Disseisor may make use of his warranty by vouching the issue and shall thereupon recover in value if other lands descended unto him in fee-simple c. Vide 15. 9. It is vaine to give a man what he had before 6 It is a vaine thing to give that to a man which he had before Littl. §. 625. Co. ibid. 335. a. 2. because nothing can operate thereupon As if land be given in taile saving the reversion to the Donor and after the Tenant in taile by his déed infeoffs the Donor in fee this is no discontinuance of the estate taile because the reversion is not discontinued but remains in the Donor as it was before So if Tenant for life make a lease for his owne life to the Lessor the remainder to the Lessor and a Stranger in fee In this case forasmuch as the limitation of the fee should worke the wrong it enureth to the Lessor as a surrender for the one moity and a forfeiture as to the remainder of the stranger for he cannot give to the Lessor that which he had before c. So likewise if there be two Ioyntenants and one of them enfeoffe his companion and a stranger and make livery to the stranger this shall vest onely in the stranger because the livery cannot enure to his companion who was before possest of the land per my per tout c. Remainder granted for the life of the Tenant in tail void 7 If there be Tenant in taile remainder in taile Co. lib. 2. 51. a. 3. Sir Hugh Cholmleys case and the remainder in taile bargains and sells the land and all his estate c. by Indenture inrolled c. to I. S. to have for the life of the Tenant in taile and to his heirs males the remainder to the Queen c. Here the remainder to the Queen is voyd because the Grantee for the life of the Tenant in taile takes nothing for the Grantee shall never have any benefit thereby And the remainder to the Qu ought to take effect when the particular estate ends but that having no beginning can neither have ending Quod non habet principium nec habet finem And Vana est illa potentia quae nunquam venit in actum
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
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
extinct but if a man make a gift in taile or a lease for life c. rendring rent and disseise the Tenant in taile or for life c. and make feoffment in fée Here albeit the estate passeth to the Feoffée yet when the Donée or Lessée re-enters he shall revive the rent as an incident to the reversion There is the same Law also of a lease for years c. Co. l. 7 4. b. 3. Calvins case 48 Ligeance is a true and faithful obedience of the subject due to his Sovereign Allegiance 〈◊〉 Incident And this allegiance and obedience is an incident inseparable to every Subject for as soon as he is born he oweth by birth-right ligeance and obedience to his Sovereign Co. l. 7. 18. a. 3. Calvins case 49 There be regularly unlesse it be in special cases thrée incidents to a Subject born The like 1 That the Parents be under the actual obedience of the King 2 That the place of his birth be within the Kings Dominion And 3 The time of his birth is chiefly to be considered for he cannot be a Subject borne of one Kingdome that was born under the ligeance of a King of another Kingdome albeit afterwards one Kingdome descend to the King of the other Co. l. 8. 54. a. 3. Syms case 50 If a man be seised of an house in right of his wife Estovers incident to a house and another grants to the Baron and his heirs to have sufficient Estovers to burne in the house In this case the Estovers are incident and appurtenant to the house and shall descend to the issue of the Baron and Feme So likewise if one hath an house of the part of the Mother and one grant to him and his heires competent house-boot to be burnt in the same house Here those Estovers are incident to the house and therefore albeit that was a new purchase yet it shall go with the house to the heire of the part of the Mother Imprisonment incident to a Fine 51 Vnto every Fine imposed in Court Imprisonment is incident Co. l. 8. 59. b. 3. â—eechers case And therefore in all actions Quare vi armis as Rescous trespasse vi armis c. if the Defendant upon judgement given against him be fined he shall also be imprisoned For when the judgement is quòd defendens capiatur that is as much to say as quòd capiatur quousque finem fecerit c. A rent incident to a reversion 52 If a man make a lease of thrée acres all of equall value per annum Co. l. 8. 79. b. 3. Wiat Weilds case rendring 3 s. rent and the Lessor grants the reversion of one acre and the Tenant attorns the Grantée shall have 12 d. rent For albeit there was but one lease one reversion and one rent yet that rent being incident to the reversion which was severable shall therefore attend upon the reversion and upon every part of it Incidents to Corporations 53 When a body politique is incorporated by prescription by a certaine name then to implead or to be impleaded to grant and purchase Co. lib. 10. 29. b. 4. The case of Suttons Hospital Co. lib. 11. 77. a. 3. Magdalen Colledge case c. are things incident unto it Incidents inseparable 54 If the Donee in taile holds of the Donor by fealty and the Donor by deed inrolled grants the fealty to the King that grant is meerly void because fealty is an incident inseparable to the reversion as it was holden 26 Ass Pl. 66. So also if the founder of a Colledge c. will grant his Foundership to the King by deed inrolled that is void because it is inseparable to the blood as it was holden Co. l. 11. 78. a. 3. the same case Tempore H. 8. B. R. tit And therefore if before the Statute of 18 Eliz. cap. 2. which was to make good all Grants made either by or to the Queen a grant had been made to the Queen of such inseparable incidents as of a Foundership or of such services of Donee in taile as aforesaid that Act would not have made such grants good because such things are not grantable c. Estovers 55 Estovers or wood granted to be burnt in such an house 12 Eliz. 381. Finch 15. shall go to him that hath the house by whatsoever title he hath it for one is inseparably incident to the other Fealty 56 Lord and Tenant by Fealty and Homage 7. E. 3. 11. the Lord releaseth his fealty this is void for Fealty is incident to Homage Finch 15. An office 57 An office of skill and diligence 12 Eliz. 379. or an Annuity pro concilio impendendo cannot be forfeited by attainder of Treason Finch 15. Court Baron Faire 58 A Court Baron is incident to a Mannor 19 H. 8. Br. Incidents 34. and a Court of Pipowders to a Faire And therefore one cannot grant the Mannor or Faire reserving those Courts Finch 15. Castle-guard 59 Where one holdeth of a man to keepe his Castle 31 E. 3. Assise 441. the Lord cannot grant his Castle-guard reserving his Castle Finch 15. Covenant incident to the â—and 60 It hath been adjudged Co. Inst pars 1 384. b. 4. that where two Coparceners make 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 Covenantee aliened In this case the Assignee shall have an action of Covenant albeit he was a stranger to the Covenant because the acquitall did run with the land and was incident unto it in whose hands soever it should come 42 E. 3. per Finchden Covenant â—â—ns with the â—and 61 A. seised of the Mannor of D. whereof a Chappel was parcell Co. ib. 385. a. 1. a Prior with the assent of his Covent covenanteth by deed indented with A. and his heirs to celebrate Divine Service in his Chappel weekly for the Lord of the said Mannor and his servants c. In this case the Assignees shall have an action of Covenant albeit they were not named for that the remedy by Covenant doth run with the land to give damages to the party grieved and is as it were incident and appurtenant to the Mannor But if the Covenant had been with a stranger to celebrate Divine Service in the Chappel of A. and his heirs there the Assignee shall not have an action of Covenant for the Covenant cannot be annexed to the Mannor because the Covenantee was not seised of the Mannor F. N. B. 138. l. 62 In some case the heire shall have an action of Detinue for Charters albeit he hath not the land as if I be enfeoffed with warranty A detinue for charters and I enfeoff another with warranty in fée Here my heire shall have a Writ of Detinue for the déed by which I
As a Villain is disabled against his Lord but not as to any other Co. lib. 8. 45. Whittinghams case 18 If a Bastard be seised of lands in fée and make feoffment thereof Bastard Feoffment Livery and after die without issue In this case if livery were made by the Bastard himselfe in person and so the feoffment executed by himselfe it shall stand good but if livery were made by attorney the lands shall escheat c. Co. lib. 8. 145. Davenports case 19 A. hath a Rectory unto which a Vicarage is appendant Grant of the next avoydance for certain yeares yet in being and grants the next avoydance of the Vicarage to B. and after surrenders the Rectory to him in reversion In this case albeit as to all strangers the estate of the Rectory is determined by the surrender yet as to the Grantée of the next avoidance of the Vicarage it hath continuance and if the avoidance happen within the terme the Grantée shall present c. So also if the Lessée for yeares grant a rent Surrender after grant of a rent and then surrender yet for the benefit of the Grantée the terme hath continuance albeit in rei veritate it is determined â—â—owrie â—uo Warâ—â—nto 20 In Avowrie Co. l. 9. 29 b. 1. In the case of the Abbot of Strata Mercella Co. l. 11. 50. a 2 Richard Liffords case it is not necessary to shew to the Plaintiff by what title such a Franchise is claimed but when a Quo Warranto is brought by the King the Lord of the liberty ought to shew his title â—xception of â—rees 21 If Lands be demised to one for life exceptis quercubus ulmis fraxinis adhunc crescend ultra crescentiam 21 annorum c. The Lessor may sell the great Timber so excepted and then fictione juris as to the Lessée the Trees are divided from the franktenement but as to all others they are parcel of the inheritance of the Lessor â—everance of â—rees 22 If Tenant in Tail sells the Trees to another Co. ibid. that is a Chattel in the vendee and his Executors shall have them and in such case fictione juris they are severed from the land but if Tenant in Tail die before actual severance as to the issue in Tail they are parcel of his Inheritance and shall go with it neither may the Vendee then take them and yet as to the Tenant in Tail himself they were severed for a time â—annor â—anted exâ—â—pt an acre 23 A man makes a Lease of a Mannor 1. 2. P. M. 104. Finch 18. except an Acre this Acre is no part of the Mannor as to the Lessor but as to him that hath right to demand the Mannor by an eygne title it remaineth parcel and therefore he shall make no foreprise thereof in his Writ 52 Relation is of great force in Law â—ncestor and â—eir and the â—estator and â—xecutor Corâ—â—laiiva 1 If a man make a Lease for life to one Co. Instit pars 1. 54. b. 4. and 319. b. 1. the remainder to his Executors for 21 years the term for years shall vest in him for even as Ancestors and heirs are Correlativa as to inheritance as if an estate for life be made to A. the remainder to B. in tail the remainder to the right heires of A. the Fée vesteth in A. as if it had béen limited to him and his heires even so are the Testator and the Executors Correlativa as to any Chattel And therefore if a Lease for life be made to the Testator the Remainder to his Executors for years the Chattel shall vest in the Lessée himself as well as if it had béen limited to him and his Executors â—rank-marâ—age 2 A. Enfeoffes B. upon Condition Co. ibid. 219. b. 3. that B. shall make an estate in Frank-marriage to C. with one such as is the daughter of the Feoffor In this Case B. cannot make an estate in Frank-marriage because the estate must move from the Feoffée and there is not betwixt the Feoffée and the Daughter of the Feoffor the néer relation of Blood which is required betwixt the Donor and the feme Donée in Frank-marriage for here the Daughter is not at all of the blood of the Feoffée â—rotection â—nd Subjectiâ—â— relata from â—e birth 3 In matters of state Subjectio and Protectio are Relatives Co. l. 7. 4. b. 3. Calvins case and immediately upon the birth of a subject that relation begins for ligeance doth not begin by the oath in a Leet but comes into the world with a true subject and he oweth it unto his Sovereign by birth-right so also is the Soveraign bound from that very time to protect his subject And therefore it is truly said that Protectio trahit subjectionem Subjectio protectionem And this is the reason Co. ibid. 9. b. 1 that ligeance cannot be local or confined within the bounds of England onely for wheresoever the subject is there likewise is to be found the foresaid Relation And therefore Qui abjurat regnum amittit regnum sed non regem amittit patriam sed non Patrem patriae for notwithstanding the abjuration he oweth the King his ligeance and he also remaineth within the Kings protection because the King if he please may pardon and restore him to his Country again Co. l. 7. 30. 4. 1. Discontinance of Proces â—â—mmons and â—â—summons â—â—ta 4 For Continuance of Proces upon demise of the King there shall never be Resummons or Reattachment but where there was at first Summons and Attachment for these are Relatives and answer in relation one to the other Co. l. 8. 85. b. 8. Sir Rich. Pexhals case 5 If A. devise to B. 10. l per annum to be paid quarterly Office and the Fee reâ—â—â— and that B. shall keep his Courts c. A. hath an estate for life in this annuity for officium and feodum are Relatives and Concomitantia and he shall have the like estate in the Fée that he hath in the office Co. l. 10. 104. b. 2. Alfrid in Denbawds case 6 At the time of granting the Tales the principal Array must stand Quales and Tales relâ—â— for Tales are words of similitude and have reference to a resemblance which at that time ought to be in esse and therefore if the Array be quashed or all the Polls challenged and tried out no Tales shall be awarded for at that time they were not Quales but in that Case a new Venire facias shall be awarded Howbeit if at the time of granting the Tales the principal pannel did stand and after is quashed as aforesaid yet the Tales shall stand for it sufficeth that they were Quales at the time of granting the Tales and this appears in 34 H. 6. Tit. Enquest 30. Co. l. 10. 116. b. 4. Rob. Pilfolds case 7 This word Damna is taken
seised of a Carve of land by just title Littl. §. 262. Co. ib. 173. b. and disseiseth and Infant within age of another Carve and hath issue two daughters and dies and the Carve by good title is allotted to the eldest and the other to the youngest who alieneth it to another in fee and after the Infant at full age enters upon the Alienee In this case the youngest daughter hath excluded her self from having any part of the Carve by good title for that by her alienation the privity was destroyed Howbeit if the youngest daughter before the entry of the Infant had onely granted it for years or life or in tail saving the reversion there peradventure it were otherwise because in that case the privity is not utterly destroyed she having reserved to her self the reversion and fee. â—viction in â—â—parcenary 18 In coparcenary Co. ib. 173. b. 4. if the whole estate in part of the purparty be evicted that shall avoid the partition in the whole be it of a Mannor which is intire or of acres of ground or the like that be several for in that case the privity remains and the partition implyeth for this purpose both a warranty and a condition in Law and either of them is intire and therefore doth give in this case an entry into the whole And so hath it been resolved in Bastards case Co. l. 4. fol. 121. both in the case of partition as also of an exchange There is likewise the same reason when any estate of Free-hold is evicted from the Coparcener in all or part of her property for then it shall be also avoyded in the whole As if A. be seised in fee of one acre of land in possession and of the reversion of another expectant upon an estate for life and he disseise the Lessee for life who makes continual claim A. dieth seised of of both acres having two daughters partition is made so as the one acre is allotted to the one and the other acre to the other the Lessee enters the partition is avoyded for the whole and so likewise was it resolved in the case abovesaid Vide infrà 100. Co. ib. 186. b. 2. 19 If there be two Ioyntenants of an Advowson Joyntenants of an advoâ—son and the one presenteth to the Church and his Clerk is admitted and instituted this in respect of the privity shall not put the other out of possession but if that Ioyntenant that presented dieth it shall serve for a title in a Quare Impedit brought by the Survivor Littl. Sect. 304. Co. ib. 193. b. 1. 20 If there be thrée Ioyntenants Joyntenantâ— Release and one of them releaseth to another of his companions all his right in the land without the word Heires this shall enure to that companion and his heires to hold that part in common with the other Ioyntenant and this is by reason of the privity of their estate and for that he to whom the release is made is seised per my per tout of the fée and inheritance Co. ib. 193. b. 2. 21 If there be two Coparceners Coparceners Release and the one hath issue twenty daughters and dieth the other may release to any one of the daughters her whole part And here albeit she to whom the release is made hath not an equal part Neverthelesse by reason of the privity and the intirenesse of the estate the release is good although it be made without the word Heires But if there be two Ioyntenants of twenty acres and the one maketh a feoffment of his part in eightéen acres Ioyntenants release the other cannot release his intire part but onely in two acres because the Ioyntenant is severed for the residue Littl. Sect. 334. Co. ibid. 205. b. 4. 207. a. 1. 22 If a feoffment be made in Mortgage upon condition Privity betâ—â— Ancestor anâ— Heir Testâ—â— and Execâ—â— Intestate and Administrator Ordinaâ—â— that the Feoffor shall pay such a summe at such a day albeit the Feoffor die before the day of payment yet may the heire redéem the Mortgage by the payment or tender of the money So also may the Executor or Administrator or in their default the Ordinary although there be no mention in the déed of payment by any of them And all this by reason of the privity betwixt the Ancestor and heir which is and the Testator and Executor and the Intestate and Administrator or Ordinary for the heire is privy in bloud and the Executor Administrator and Ordinary are privies in right Littl. Sect. 336. Co. ib. 207. b. 4. 208. a. 2. 23 If a feoffment be made upon condition Feoffee upâ—â— condition may redâ—â—â— that the Feoffée shall pay xxl. unto the Feoffor upon such a day c. And if payment be not made that then it shall be lawful for the Feoffor c. to re-enter If the Feoffée sell the land to a stranger payment or tender made by either of the Feoffées shall be effectual to settle the estate in the last Feoffée for the first Feoffée may do it because he was privy to the condition and the last may also do it because he was privy in estate and in judgment of Law hath an estate and interest in the condition for the salvation of his tenancy Co. ib. 208. b. 3. 24 There is a diversity betwéen a condition of an Obligation Condition from Oblâ—â— or Feoffee or a condition upon a feoffment where the Act that is local is to be done to a stranger and where to the Obligée or Feoffor himself As if one make a feoffment in fée upon condition that the Feoffée shall infeoff a stranger and no time limited the Feoffée shall not have time during his life to make the feoffment for then he should take the profits in the mean time to his own use which the stranger ought to have and there is no privity betwéen the Feoffée and the Stranger and therefore he ought to make the feoffment as soon as conveniently he may and so it is also of the condition of an Obligation But if the condition be that the Feoffée shall re-enfeoff the Feoffor there the Feoffee hath time during his life by reason of the privity of the condition that is between them unlesse the Feoffee in this case be hastned by request c. Co. ib. 209. a. 3 25 For the redemption of an estate in Mortgage Privies in 〈◊〉 the Executors or heire may make the tender For albeit the heire be a third person yet is he no stranger but he and the Executors also are privies in Law c. Vide Littl. Sect. 337. Privies by deed 26 If a man enfeoff another upon condition Co. ib. 213. a 4. Littl. §. 345. that he and his heirs shall render unto a stranger a yearly rent c. This is not rent properly so called and the reservation is meerly void because there wants privity But if
the remainder to D. in fée A. makes feoffment in fée the Feoffée suffers a common recovery in which B. is vouched and he over the common Vouchée In this case A. is not bound but B. and all the remainders over are barred For albeit by the feoffment of A. all the remainders were discontinued and the estates of B. C. and D. were converted to méer rights and that the remainder could never be remitted before the estate tail in possession were re-continued Yet in case of a common recovery which is the common assurance of the land he that comes in as Vouchée shall be in judgement of Law in in privity of the estate which he ever had although the precedent estate upon which the estate of the Vouchée depended were devested or discontinued c. Privities of estate diversity 92 There are thrée manner of privities Co. l. 3. 22. b. 4. Walkers case viz. 1 In respect of the estate onely 2 Of the contract onely 3 Of the estate and contract together Privity of the estate onely as betwéen the Grantée of the Lessor and the Lessee or if the reversion escheat between the Lord by escheat and the Lessee so also between the Lessor and the Assignee of the Lessee there is privity in estate onely for that there is no contract betwixt them Privity of contract onely which extends onely to the person of the Lessor and the person of the Lessee as when the Lessee assigns over his interest notwithstanding such assignment the privity of the Contract still remains between them as to bring against the Lessee an action of Debt for rent arrear or the like albeit the privity of the estate be removed by the act of the Lessee himself Privity of estate and contract together is between the Lessor and Lessee themselves so long as the estate is continued betwixt them c. Vide Dyer 4. b. 1. 24 H. 8. The like 93 Lord and Tenant the Tenant makes feoffment in fée Co. ib. 23. a. 4. in this case the privity which was between them in estate or in tenure is gone Neverthelesse for the arrearages due as well before as after the feoffment until notice c. the privity betwéen them as to the avowry doth still remain And at the Common Law before the Stat. of Quia emptores terrarum if the Tenant had made a feoffment to hold of the chief Lord the Feoffée by no tender that he could make could compel the Lord to avow upon him but the Lord might still avow upon the Feoffor for that the privity did still remain and the Tenant by his own Act could not change the avowry of the Lord c. Howbeit in the first case if the Lord grant over his Seigniory or if the Feoffor die there the privity as to the avowry is destroyed for that is personal and holds onely between the Lord and the Feoffor themselves in person So also if after the assignment of the lease the Lessor grant over his reversion the Grantée shall not have an action of Debt against the Lessée For the privity of contract as to the action of Debt holds onely betwéen the Lessor and the Lessée themselves in person So in the same case if the Lessée die the Lessor shall not have an action of Debt against his Executors for the privity consists onely between the Lessor and Lessee c. Co. ib. b. 3. 94 If Tenant in Dower Dower Coâ—â—tesie Waste c. or Tenant by the Courtesie assigne over their estate yet privity of action remains between the heir and them so that he shall have an action of Waste against them for Waste done after the assignment But if the heir grant over the reversion then the privity of the Action is destroyed and the Grantee cannot have any action of Waste save onely against the Assignee because between them there is privity of estate but between the Grantee and the Tenant in Dower or Tenant by the Courtesie there is no privity at all Vide suprà 86. Co. ib. b. 4. 95 If the Lessor enter for the condition broken Privity of contract or the Lessee surrender to the Lessor Now is the estate and term determined and yet the Lessor shall have an action of Debt for the arrearages due before the condition broken or the surrender made as appears by F. N. B. 120 122. 30 E. 3. 7. 6 H. 7. 3. b. against the book of 32 Edw. 3. Tit. Barre 262. which is not law And this is in respect of the privity of the Contract which still remains between the Lessor and the Lessee c. Co. ibid. Vagle Glovers case 96 If the Lessee for years assign over his Interest The like and the Lessor by deed indented and enrolled according to the Statute bargain and sell the reversion to another the Bargainee shall not have an action of Debt against the Lessee because there is no privity between them Nevertheless after the assignment the Lessor himself might have an action of Debt against the Lessee himself for rent due after the assignment because the privity of the contract between the Lessor and Lessee doth still continue as long as the Lessor retains the reversion So likewise if an Executor of a Lessee for years assignes over his interest Co. l. 3. 24. a. 1. Overton and Sydhals case an action of Debt lyeth not against him for Rent due after the assignment Also if Lessee for years assigne over his interest and die the Executor shall not be charged for the rent due after his death For by the death of the Lessee the personal privity of the contract as to the action of Debt in both these cases was determined Co. ibid. Brome and Hores case 97 A. le ts to C. 3 acres of land for years rendring rent Privity of estate and coâ—tract the said C. assignes all his estate in one acre to another A. suffers a common recovery to the use of B. in fee who brings an action of Debt against the first Lessee this action will well lie for inasmuch as the Lessee assignes his interest but for part remains possessed of the residue not onely the Lessor but also his Assignee or he that claims under him shall have an action of Debt for the intire rent against the Lessee because there was not onely privity of contract but also privity in estate and contract together and therefore in this case the action runs with the estate So also at the Common law before the Stat. of Quia emptores terrarum if the Tenant had made feoffment in fee of part of the tenancy In that case there was no apportionment but the Lord or his Grantee shall avow upon the Feoffor for that he remains Tenant in respect of the residue Howbeit if he had made feoffment of all then the Grantee of the Lord shall not avow upon him c. Co. ibid. Marrow and Turâ—ins case 98 In debt
reversion shall have an attaint or Writ of Error living the Tenant for life but this is by the Satute of 9 R. 2. cap. 3. F.N.B. 108. b. 122 In trespasse if the Defendant plead villanage in the Plaintife Attaint by 〈◊〉 heir in villâ—nage and he saith that he is free and he is found free by false verdict c. and after the Defendant dies here his heir shall have an attaint to avoid this Estoppel and false verdict albeit it was given in an a â—â—n personal Sed quaere de hoc Writ of Coveâ—ant by Assigâ—ee 123 Fitz-Herbert saith F.N.B. 145. m. 146. c. the second Lessée shall have a Writ of Covenant against the Lessor if the Lease be made to him and his Assignes with waranty And yet he saith afterwards the Assignée of the Lessée shall maintaine a Writ of Covenant against the Lessor albeit in the Déed of Covenant there is no mention of any Assignée Ideo quaere de hoc Executor â—rivy 124 At the Common Law if lands had béen willed to be sold by Executors or had béen devised to Executors to be sold Co. Inst pars 1. 113. a. 3 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 one refuseth can the other make sale to him that so refuseth because he is party and privy to the last Will and remains Executor still The heir sued shall not have contribution 125 If a man seised of 3 acres of land acknowledge a recognisance or Statute c. and enfeoff A. of one acre and B. of another acre Co. l. 3. 12. b. 2. Sir William Herberts case and dies so that the third descends to his heir In this case if execution be sued onely against the heir he shall not have contribution no more than the father should have had if he had béen living for they are privies in bloud And therefore it is said that the heir fits in the seat of the Ancestor Et haeres est alter ipse filius est pars patris mortuus est pater sed quasi non est mortuus quia reliquit similem sibi c. Release of dower 126 The Baron makes a Lease for life and dieth Co. Inst pars 1 265. a. 3. a release made by the wife of her Dower to him in the reversion is good Albeit she hath no cause of action against him in praesenti And this is because of the privity of estate that is betwéen the Tenant in Dower and him in the reversion c. The privity of Executors for wardship 127 Where the Statute of West 1. cap. 22. Co. ib. 79. a. 2. giveth unto the Lord two years of the heir female after her age of 14 thereby is implied that if the Lord dieth within the two years yet his Executors or Administrators although not named shall also enjoy the same for when the Statute so vesteth an Interest in the Lord the Law giveth the same unto his Executors or Administrators because they are privies unto him in representation Then put case that the Lord hath the wardship of the body and land of an heir female and maketh his Executor and dieth before her age of fourtéen years whether the Executor shall in that case have the two years because the Executor is not Lord nor named in the Statute And in this case my Lord Coke takes it that the Executor having the wardship of the body and land shall also have the two years for that they were vested in the Lord and in respect of the privity as aforesaid The privity of Executors 128 Executors and Administrators might take benefit of the general pardon in 43 El. and might plead it as well as the Testator himselfe Co. l. 6. 79. b. in Sir Edward Phittons case So 3 Eliz. Dyer 201 upon the Statute of 23 H. 8. Executors shall have an Attaint 6 E. 6. Bendloes Executors shall have restitution upon the Statute of 21 H. 8. Also Administrators shall have a Writ of Error upon the 27 Eliz. as it was adjudged in 36 Eliz. in the Lord Mordants case in the Exchequer Chamber yet these thrée last Statutes speak onely of the partie and not of his Executors or Administrators Vide 28 Ass Pl. 7. 11 E. 3. Executors 77. â—he husband â—all not have â—hings in actiâ—â— 129 Mariage is an absolute gift of all Chattels personal to the husband and also a gift of all Chattels real sub modo Co. Inst pars 1 351. which the Feme hath in possession and in her own right for which sée R. 93. Ex. 5. but Chattels real or personal consisting méerly in action the husband shall not have by the intermarriage unlesse he â—ecover them in the life of the wife albeit he survive her As a writ of right of Ward a Valore maritagii a forfeiture of marriage arrerages of rent a presentation to a Benefice debts by obligation contract or otherwise which did accrue to the wife before marriage the husband I say shall not have these or the like unlesse he and his wife recover them because they consist in privity and therefore albeit the husband survive the wife yet he shall not have them but the Executors or Administrators of the wife So if a Feme Sole be possest of a Chattel real and be thereof dispossest and then taketh husband and dieth albeit the husband survive yet this right is not given to the husband by the intermarriage but the Executors c. of the wife shall have it So it is likewise where the wife hath but a possibility and of Reliefs c. Howbeit now by the Statute of 32 H. 8. cap. 37. if the husband survive the wife he shall have the arrerages as well incurred before the marriage as after c. Co. Inst pars 1. 169. a. 3. 130 Between Ioyntenants there is a two-fold privity viz. in estate Privity of â—ceners and in possession between Tenants in common there is privity onely in possession and not in estate but parceners have a thrée fold privity viz. in estate in person and in possession Co. Inst pars 1 208. b. 3. 131 There is a diversity Tender of â—ney to a stâ—ger where a condition concerneth a transitory or local act and is to be performed to the Feoffée or Obligee and where it is to be performed to a stranger as if A. be bound to B. to pay 10 l. to C. Here A. tenders to C. and he refuseth In this case the Bond is forfeit because there is no privity betwixt them and A. cannot compel C. to receive it but if it were to be paid to the Obligée upon tender and refusal the bond is saved by reason of the privity
the lands undisposed of excéed in value the other lands given in Frankmarriage yet shall not the Donée in Frank-marriage have any part thereof unlesse she will put her part in Hotchpot with the other lands and then they shall be equally divided betwéen the sisters And it séemeth by our old books Co. ib. 176. b. 3 Glanvil l. 7. cap. 5. that by the ancient Law there was also a kind of resemblance hereof concerning goods Si autem post debita deducta Division of the testators goods post deductionem expensarum quae necessariae erunt id totum quod tunc superfuerit dividatur in tres partes quorum una pars relinquatur pueris si pueros habuerit defunctus secunda uxori si superstes fuerit Et de tertia parte habeat testator liberam disponendi facultatem si autem liberos non habeat tunc medietas defuncto alia medietas uxori Si autem sine uxore decesserit liberis existentibus tunc medietas defuncto alia medietas liberis tribuatur Si autem sine uxore liberis tunc id totum defuncto remanebit Lambert 119. 68. And by the law before the Conquest it was thus provided Sive quis in curia sive morte repentine fuerit intestatus mortuus Dominus tamen nullam rerum suarum partem praeter eam quae jure debetur herioti nomine sibi assumito verùm eas judicio suo uxori liberis cognatione proximis justè pro suo cuique jure distribuito Frankmarriâ—ge Hotchpot 22 If a man seised of 30 acres of land each acre of equal value Littl. §. 273. Co. Inst pars 1. 179. a. 1. hath issue two daughters and gives 15 acres to one of them in Frankmarriage and dies seised of the other 15 acres In this case the other sister shall have the 15 acres so descended and the Baron and Feme shall not put their 15 acres in Hotchpot with them because the parts are already equal but this is to be thus understood if they are of equal value at the time when the Partition should be made For if the land given in Frankmarriage be by the act of God decayed in value or if the remnant of the lands in Fée-simple be improved after the gift they may be cast into Hotchpot And the Law will adjudge of the value as it is at the time of the Partition unlesse it be by the proper act or default of the parties c. And it séemeth to some that in case they be of equal value at the time of the partition that then the reversion in fée of the lands given in Frankmarriage shall onely descend to the Donee for otherwise the other sister shall have more benefit than the Donee and so their parts would not be equal and then their parts might be put into Hotchpot notwithstanding the 30 acres are all of equal value at the time of the partition which is against the reason that Littleton gives Sect. 273 c. â—rvivor of â—yntenants 23 If there be two Ioyntenants in fee Co. ib. 193. a. 3. and the one letteth his part to another for the life of the Lessor and the Lessor dieth some say that his part shall survive to his companion for that by his death the lease was determined Howbeit others hold the contrary and their reason is First because at the time of his death the joynture was severed for so long as he lived the lease continued And secondly because notwithstanding the act of any one of the Ioyntenants there must be equal benefit of survivor as to the Frée-hold but here if the other Ioyntenant had first died there had béen no benefit of Survivor to the Lessor without question because at that time the joynture would have béen severed And this last séems to be the opinion of Coke for that he puts it last according to his own rule and the course which he observes Littleton to use Co. ib. 341. b. 4. 24 A Bishop Abbot Dean Master of an Hospital Abbot c. Writ of right Parson a Jâ—â— utrum or any other such body politique or corporate which hath a sole seisin of lands in fée in right of their several Corporations if any such be ousted they shall if néed be have a remedie agréeable to their right viz. a Writ of Right which is the highest remedy for that they have the highest estate It is otherwise of a Parson because the intire fée and right is not in him his highest writ being a Juris utrum c. Co. ib. 365. b. 2. 25 Albeit the Statute of Glocester cap. 3. made in 6 E. 1. Alienation by Tenant by courtesie no barre for the relief of the heir against the alienation of the Father Tenant by the courtesie with warranty c. maketh one by mention of a Writ of Mortdancester Cosenage Aiel and Besaiel yet a Writ of Right a Formedon a Writ of Entry ad communem legem and all other like actions are within the purview of that statute for those actions are but put for examples Again where it is said in the same Statute if the Tenant by the Courtesie alien yet his release with warranty to a Disseisor c. is within the purview of that Statute because it is in equal mischief and if that evasion might take place that Stat. should have béen made in vain So also if Tenant by the Courtesie be of a Seigniory and the tenancy escheat unto him and after he alieneth with warranty this shall not bind the issue unlesse assets descend for it is in equal mischief c. Co. ib. 313. a. 2. 26 Albeit the preamble of the Statute of 34 H. 8. cap. 20. Gifts of the King 34 H 〈◊〉 20. extendeth onely to gifts in tail made by the Kings of England before that Act viz. hath given granted c. and the bodie of the Act referreth to the preamble viz. that no such feigned recovery hereafter to be had against such tenant in taile c. So as this word such may seem to couple the bodie and the preamble together Yet in this case such shall be taken for such in equal mischief or in like case and by divers parts of the Act it appeareth that the makers of the Act intended to extend it to future gifts and so is the Law taken at this day without question Littl. Sect. 732. Co. ib. 383. b. 1. 27 Some do expound these words of the Stat. of Glocester cap. 3. Heritage in Gloc. 3. iâ— heritance by purchase 〈◊〉 the heritage of his mother to be the lands which the mother hath by descent And that construction is true but that Stat. by the authority of Littleton Sect. 732. extendeth also where the mother hath it by purchase in Fée-simple for so saith Littleton himself that this word Inheritance is not onely intended where a man hath lands by descent but likewise where a man hath a
Fée-simple by purchase because his heirs may inherit him And albeit it be true that the Statute extendeth to an estate in Frankmarriage acquired by purchase yet doth it extend also to all estates in tail as well by descent as by purchase Frankmarriage being put there but onely for an example Littl. §. 738. Co. ib. 387. a. 4. 28 If Tenant in Fée-simple that hath a warranty for life Warranty life either by an expresse warranty or by Dedi be impleaded and vouch he shall recover a Fée-simple in value albeit his warranty were but for term of life because in that case the warranty was annexed and did extend to the whole estate of the Feoffée in Fée-simple But if Tenant in taile let the Tenements for life the remainder to another in fée and a collateral Ancestor confirm the estate of the Tenant for life for the terme of his life onely with warranty and die and the Tenant in tail hath issue and die Here the issue is barred during the life of the Tenant for life by the Collateral warranty And in that case if the Tenant for life be impleaded and vouch he shall onely recover in value but an estate for life because the warranty was annexed and doth extend to that estate onely c. â—wo estates â—ade together â—f the same â—nd 29 If a man make a Charter of feofment of an acre of land to A. and his heirs Co. ib. 21. a. 2. and also another Déed of the same acre to A. and the heirs of his bodie and deliver Seisin according to the form and effect of both Déeds In this case he cannot take a Fée simple onely as some hold because Livery was made according to the Déed in tail as well as to the Charter in fée neither can the livery enure onely to the Déed of estate tail with a Fée simple expectant because livery was made as well upon the Déed in Fée simple as the Déed in tail And therefore others hold that in this case it shall enure by moities viz. to have an estate tail in the one moity with the Fée simple expectant and a Fée simple in the other moity And so the livery shall work immediately upon both Déeds And this last séemes to be the opinion of Coke himselfe being put last according to his own rule which he often delivers in this part of his Institutes â—ower of â—ings intire 30 Albeit of many Inheritances that be intire whereof Co. Inst pars 1. 32. a. 1. no division can be made by metes and bounds a woman cannot be endowed of the thing it selfe yet a woman shall be endowed thereof in a special and certaine manner As of a Mill a woman shall not be endowed by metes and bounds nor yet in common with the heir but either she may be endowed of the third toll-dish or de integro molendino per quemlibet tertium mensem And so of a Villain either the third dayes work or every third wéek or moneth A woman shall also be endowed of the third part of the profit of Stallage of the third part of the profits of a Faire of the third part of the profits of the Office of the Marshalsie of the kéeping of a Park of a Dove-house of a Piscary viz. tertiam piscem vel jactum retis tertium Of the third presentation of an Advowson A Writ of Dower also lieth de tertia parte exituum provenientium de custodia Gaolae Abathiae Westm And herewith agréeth reverend antiquity De nullo quod est sua natura indivisibile secationem sive divisionem non patitur nullam partem habebit sed satisfaciat ei ad valentiam Of the third part of the profits of Courts Fines Heriots c. Also a woman shall be endowed of tithes and then her surest way is to take the third sheaf for what land shall be sown is uncertaine â—ower recoveâ—d by parts 31 Regularly the Feme ought to be endowed of an intire third part in severally by metes and bounds Co. ib. 32. b. 1. Littl. §. 36. And yet if a man solely seised of lands in Fee take a wife and enfeoffe eight persons and dies a Writ of Dower is brought against those eight persons and two confesse the action and the other six plead in barre and descend to issue here the Demandant shall have judgement to recover the third part of two parts of the lands in eight parts to be divided and after the issue is found for the Demandant against the other six the Demandant shall have also judgement to recover against them the third part of six parts of the same land in eight parts to be divided â—nsent of â—iage equal 32 If a man of the age of 14 years marry a woman of the age of ten Co. ib. 79. b. 1. at her age of twelve he may as well disagrée as she may albeit he were of the age of consent because in the contracts of matrimonie either both must be bound or equal election of disagréement given to both and so è conversò when the woman is of the age of consent and the man under â—elivery of â—ods by a â—nkrupt 〈◊〉 good El. 7. 33 Delivery of goods by the Bankrupt to a Creditor after the Commission sealed according to the Statute of 13 Eliz. cap. 7. Co. l. 2. 25. b. 1. The case of Bankrupts shall not be of force to avoid proportionable distribution of the same goods together with all the rest unto the other Creditors which are willing to submit to the order of the Commissioners in that behalfe for the Statute saith that the distribution shall be To every one of the Creditors c. rate and rate like according to the quantity of his or their debt So that one shall not prevent the rest but all may be in equali jure according to that of Cato Ipsae etenim leges cupiunt ut jure regantur Co. ibid. 35 H. 8. tit Testaments Br. 119. 34 A man holds thrée Mannors of thrée several Lords by Knight Service each Mannor of equal value here Devise of 3 Mannors â—â—den by Knigâ— Service he cannot devise two of the Mannors and leave the third to descend according to the generalty of the words of the Statutes of the 32 and 34 H. 8. of Wills For then he should prejudice the other two Lords but by a favourable and equal construction of the said Statutes he hath power to devise onely two parts of each Mannor So that equality amongst them shall be observed 4 E. 3. tit Ass 178 Co. ibid. 35 The Lord of a Mannor shall not approve it all Approvemeâ— albeit he leave sufficient Common in the lands of other Lords according to the Statute of Merton cap. 4. Co. ib. 48. E. 3 5. 36 In Dower Voucher in Dower if the heir be vouched in three several Wards within the same County execution shall be had against one onely but
L. Jud. cap 1. ver 6 7. persecuti sunt eum Israelitae prehendentes eum amputarunt pollices manuum ejus pedum ejus tum dixit Adonibezek septuaginta rege pollicibus mannum suarum pedum suorum amputatis colligebant sub mensa mea quemadmodum feci sic rependit mihi deus c. 59 Omne majus continet in se minus Co. Inst pars 1 44 b. 1. 1 Albeit by the Statute of 13 El. cap. 10. Grants of Ecclesiastical persons Ecclesiastical persons are in expresse terms restrained from making any estates of the lands which they hold in right of their Bishopricks Colledges Churches c. other then for one and twenty years and three lives from the making of them yet may they make Leases for lesser terme or fewer lives c. 25. Co. ib. 45. b. 3. 2 In the Kings case this word Committo doth amount sometimes to a grant as when he saith Commissimus de W. de B. officium Seneschalliae Commission imports a Lease c. quam diu nobis placuerit and by that word also he may make a Lease and therefore a fortiori a common person may do the same Co. ib. 52. b. 1. Hill 39 El. inter Stanton Barnes in B. R. Co. l. 3. 9. a. 3. Heydons case l. 4. 23. a. Gravenors case 3 A custome of a Mannor time out of mind used Copihold grantable in fee may be granted for a lesser terme was to grant certaine lands parcel of the said Mannor in Fée-simple and never any grant was made to any and the heirs of his body for life or for years And the Lord of the said Mannor did grant to one by Copie for life the remainder over to another and the heirs of his body And it was adjudged that the grant and remainder over was good for the Lord having authority by Custome and an interest withall might grant any lesser estate because in this case the Custome that enableth him to the greater enableth him to the lesser Omne majus continet c. It is otherwise where one hath but a bare authority c. 17. Co. ib. 68. a. 1. 4 Fealty is a part of Homage and incident unto it because all the words of Fealty are comprehended within Homage Co. ib. 223. a. 3. 5 A man before the Statute of Quia emptores terrarum might have made a feofment in fée and added further Restrainâ— to alien good that if he or his heirs did alien without licence that he should pay a fine at that time this had béen good So likewise it is said that then the Lord might have restrained the alienation of his Tenant by Condition because the Lord had then a possibility of reverter And therefore it is so still at this day in the Kings case because he may reserve a tenure to himselfe c. Littl. §. 418. Co. ibid. 25 3. a. 4. 6 When a man makes a feofment of lands lying in several towns within the same County Claime in pâ—â— good for all 〈◊〉 the same County Livery of Seisin given of the land lying in one of those towns in name of all the rest lying in the other towns will passe the estate of all to the Feoffée And therefore a fortiori it séems good reason when a man hath title of entry into lands or tenements lying in divers towns within the same County before any entry by him made that by entry into parcel thereof in the name of all the seisin of all is vested in him as well as if he had actually entred into every parcel For if it be so in a feofment passing a new right much more it is for the restitution of an ancient right as the worthier and more respected in Law c. Co. ibid. 260. a. 3. 7 If a man in prison shall not be bound by a recovery upon default for want of answer in a Court of Record in a real action A prisoner 〈◊〉 bound for a default which is mattter of Record A multo fortiori a descent in pais which is a matter of Déed shall not for want of claime bind him that is in prison c. Co. ibid. 8 As the argument à minore ad majus doth ever hold affirmatively Major â—nor Negatiâ— Affirmative so the argument à majore ad minus doth ever hold negatively and the reason hereof is this Quod in minori valet valebit in majori quod in majori non valet nec valebit in minori Co. Inst pars 1 262. Littl. §. 441. 9 At the Common Law before the Statute of Non-claim Anno 34 E. 3. cap. 16. and in the Stat. of 4 H. 7. cap. 24. One out of thâ— Realm not barred by a descent If a man that had titâ—e of entry into lands had not layed his claim within a year and a day after a fine leâ—yed of the same land he had lost the land for ever Howbeit in that case if he that had such right were out of the Realm at the time of the fine levied his title had béen thereby saved And if against a fine which is a matter of record the title of a stranger shall be in that case saved much more against a descent which is a matter in fait shall the entry of him that is out of the Realm at the time of the descent cast c. be preserved so that he may well enter at his return notwithstanding such descent c. â—elease of all â—emands disâ—argeth all â—ctions c. 10 If the Plaintiff after judgement release all demands Co. ib. 291. a. 4 b. Littl. §. 508. the execution is discharged Also by a release of all demands all actions real personal and mixt are discharged Likewise Appeals title or right of entry Rent-service Rent-charge Rent-seck Common of Pasture c. A warranty which is a Covenant real and all other Covenants real personal Estovers all manner of Commons and profits apprender Conditions before they be broken or performed and also after Annuities Recognisances Statutes Merchant and of the Staple Obligations Contracts c. All these and divers others by the word Demands are released and discharged because that word being of so large an extent contains them all c. â—o disseisin of â—ent without â—ornment 11 A Disseisor cannot disseise the Lord of the rents and services without the attornment of the Tenants to the Disseisor Co. ib. 322. b. 4. For séeing an attornment is requisite to a feoffment and other lawful conveyances A Fortiori a Disseisor or other wrong doer shall not gain them without attornment The like law is of an Abator and an Intruder â—etenced â—ht 12 Where the Stat. of 32 H. 8. cap. 9. Co. ib. 369 a. 4. Vide infrà 40. made for the suppression of Maintenance prohibiteth buying selling c. of any pretenced rights or titles in the plural
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
be revoked So if I make my testament irrevocable yet may I revoke it for my act or my words cannot alter the judgement of the Law and make that irrevocable which of his own nature is revocable c. And therefore if I be bound by obligation to stand to the award of I. S. albeit if I discharge that arbitrement I shall forfeit my bond Yet is my submission in that case revocable and so is the book in 5 E. 4. 3. b. which séems to be contrary in that point well reconciled c. Restraint to demise void 18 The Charter of the Incorporation of Suttons Hospital restrains them to alien or demise but in a certain forme Co. l. 9. 30. b. 4. in the case of Suttons Hospital this is onely a precept and ordinance testifying the Kings desire but binds not in Law So likewise in another part of the same Charter the exemption of the Ordinaries jurisdiction is but a clause declaratory For being a Lay-corporation it neither can or ought to be visited c. A defective â—â—â—re 19 In the case of Monopolies in the 11 Report Co. l. 11. 85. b. 3. in the case of Monopolies the Defendant being charged by the Plaintiffe to have sold Cards c. contrary to the priviledge granted to the said Plaintiff by Letters Patents of Qu. Eliz. c. puts in this barre that the City of London is an ancient City and that within it time out of mind c. there hath béen a society of Haberdashers and that within the said City there was a custom Quod quaelibet persona de societate illa usus fuit consuevit emere vendere liberè mâ—rchandizare omnem rem omnes res Marchandizabiles infra hoc regnum Angliae de quocunque vel quibuscunque personis c. and pleaded farther that he was Civis liber homo de civitate societate illa and that he sold playing Cards c. as was lawful for him to do c. But the Justices gave no regard to this Barre because it was no more than what the Common Law would have said and then no such particular custome ought to have béen alleaged For in his quae de jure communi omnibus conceduntur Consuetudo alicujus patriae vel loci non est alleganda and with this accords 8 E. 4 5. c. Dyer 19. b. 115. 28 H. 8. 20 The Lessor covenants Lessee may take boots without assignment that the Lessée shall have sufficient Hedg-boot by the assignment of his Bailiff In this case for as much as this covenant is in the affirmative and floweth from the Lessor and is no more than what the Law gives a Lessée priviledge to do per Baldwin and Fitzherbert the Lessée may take Hedg-boot without assignment Tamen quaere for Shelley is of another opinion because Cujus est dare ejus est disponere Modus conventio vincunt legem and the Lessée also séems to be bound by the acceptance of the lease upon those termes Ideo quaere Howbeit if I let to one two acres of Meadow and that it shall be lawful for the Lessée to cut the grasse by the assignment of the Lessor yet the Lessée may cut the grasse without my assignment Dyer 179. 45. 2 Eliz. 21 A man seised in fée of lands in Burrough English since the Statute of 27 H. 8. makes a feoffment in fée to the use of himself Burrough English and the heirs males of his body engendred Secundum cursum communis legis and after dies seised accordingly having issue two sons In this case the youngest sonne shall have the land notwithstanding the words before Vide 26 H. 8. 5. Dyer 230. 57. 6 Eliz. 22 The Lord by Knight-service releaseth and confirms to the Tonant to hold by a Spurre In this case Tenure the new reservation is void upon the estate before created Howbeit the tenure by fealty still remains Dyer 238. 36. 7 Eliz. 23 A Coroners Inquest indicts a man of murther quòd fugam fecit Coroners Inquest and upon his arraignment he is acquit and another found guilty ut oportet and it was also found that he did not flie yet he shall forfeit his goods for upon his arraignment in this case the flight shall not be given in charge because they were before forfeited by the Coroners Inquest Hob. 5. Crow and Edwards 24 In debt upon an obligation of 60 l. for the payment of 31 l. 10 s. at Coventry issue was taken that the money was paid at Coventry Trial in forreign County and yet by consent of parties and a paper Rule of Court the issue was tried at London and found for the Plaintiff and judgement given Howbeit upon a Writ of Errour brought in the Exchequer Chamber the judgement was reversed for consent of Parties cannot change the Law Hob. 13. Sir Daniel Norton and Simmes 25 If a Sheriff will make an Vnder-sheriff Sheriffe provided that he shall not serve Executions above 20 l. without his special warrant this proviso is void as being against Law and Iustice For albeit he may choose not to make an Vnder-sheriff at all or may make him at his will and so remove him wholly yet he cannot leave him an Vnder-sheriff and yet abridg his power no more than the King may in case of the high Sheriff himself Vide 167. 52. Hob. 120. Smales and Dale 26 Albeit a Tenant in Common enter into the whole Tenants in Common and claim all expresly yet he cannot thereby dispossesse his companion for the possession of him that so enters is over all lawful as well before such claime as after so as there is no possession altered by such claim and then a sole claim without more can never change the possession and without a change of possession which the Law protects it remains as before and therefore a Coparcener Ioyntenant or Tenant in common can never be disseised by his fellow but by an actual Ouster For the same reason it is that is a Tenant in Common do alone bring an action of trespasse against a stranger his action shall be abated by pleading him Tenant in Common with another albeit his entry were made generally and expresly into all which proves that the entry of one serves for all for else they could not joyn in an action of trespasse 66 Expressio eorum quae tacitè insunt nihil operatur â—pon the Qu. â—ant of the â—version deâ—and must be â—pon the â—â—nd 1 Queen Eliz. le ts for years rendring rent Co. l. 4. 73. Boroughs case payable at the receipt of the Exchequer at Westm Seu ad manus balivorum vel recâ—pturum c. with condition to be void for non-payment c. the Quéen grants the reversion in fée Here the demand of this rent ought now to be made upon the land For in the Quéens case the limiting of
it Advowson 14 The Rectory of West Bodwin ought to have come to E. 6. Dyer 350. 21. 18 Eliz. by attainder of felony to which the Advowson of the Vicarage was appendant and was concealed Quéen Eliz. grants the Rectory Et omnia haereditamenta parcella spectant vel pertinent dict Rectoriae and because the patent was in tam amplis modo forma as the Felon had it and also Ex certa scientia so as the Quéen was not deceived it was adjudged that the Advowson passed without special mention thereof 69 Partes simul sumptae componunt totum Totum comprehendit suas partes â—â—int grants â—asse all 1 Where all the Ioyntenants joyne in a feoffment Co. Inst pars 1. 186. a. 3. every of them in judgement of Law doth give his own part And so by that means the whole estate doth passe to the Feoffée according to the feoffment So it is also when all that have right title or interest in any thing Littl. § 534. Co. ib. 302. a. b. do joyne in a conveyance the estate shall be thereby cléerly setled in the Grantée as the Disseisée and the Disseisor or his heir the Lessée for years or life and the reversioner and the like â—â—â—ant of a Beâ—â—fice 2 The Parson Patron and Ordinary may charge the Glebe Littl. § 648. Co. ib. 343. b. 4. c. F. N. B. 152. 8. for they all have in them the Fée-simple thereof So may the Patron and Ordinary in time of vacation and the Glebe of a Donative may be charged by the Patron and Incumbent without the Ordinary c. â—â—ant of a â—â—rtgage 3 A. enfeoffe B. upon condition Co. l. 1. 146. b. Mayowes case the Feoffor and Feoffée by déed grants a Rent-charge to C. the condition is broken and the Feoffor enters yet is the grant of the rent good For both of them joyning together in the déed they had power to charge the land c. Co. l. 4. 26. b. 1. in Nelwiches case Meals case Co. l. 4. 24. b. Murrels case 4 If the Lord of a Copihold Mannor grant the inheritance of all his Copiholds albeit no mention at all is made of the grant of the Mannor Grant of Copiholds yet the Grantée may kéep a Copihold Court and take surrenders make admittances c. It is otherwise where he grants the Inheritance of some of them retaining the rest to himself for in that case the Grantée cannot kéep Court because those Copiholds are in that case severed from the Mannor c. F. N. B. 48. r. 5 A Parson shall have a Juris Utrum Recovery of a Benefice where the lands or tenements are aliened by his Predecessor or if recovery be had against the Predecessor by default or reddition or Nient dedire of his Predecessor where he hath not prayed in aide of the Patron and Ordinary but if he pray in aide of the Patron and Ordinary and they joyne in aid and render the land or do not gainsay the Demandants action in that case the Successor shall not have a Juris Utrum because the intire estate was in them thrée and they altogether had power by Law to dispose of it Dyer 34. 20. c. 28 29 H. 8. 6 Two were out-lawed upon an appeal of Murther Charter of pardon and they purchased their charter of pardon in these words Donavimus remittimus c. W. B. L. B. omnia omnimoda Utlag versus praef W. L. vel versus eorum alterum promulgat c. And exception was taken by the Kings Council because the words of pardon were joynt whereas they should have béen Pardonavimus c. W. B. L. B. eorum alteri c. because each felony was several and the several contumacies should have had several pardons but the pardon was allowed because as it séems it comprehended all that both or either of them were guilty of And such another pardon was also allowed in 22 E. 4. Term. Rot. 19. but the book is mis-reported and contrary to the record 7 Vide suprà 27. 9. 70 Intire things cannot be severed Co. Inst pars 1. 32. a. 1. and 164. b. 3. 1 Of Inheritances that are intire Dower of intire things no division can be made by metes and bounds And therefore a woman cannot be endowed of the intire thing it selfe but shall be endowed thereof in a special and certain manner As of a Mill not by metes and bounds nor in common with the heier but of the third toll dish or de integro molendino per quemlibet tertium mensem And so of a Villein either of every third dayes work or of every third wéek or moneth So likewise a woman shall be endowed of the third part of the profits of stallage of a Faire Parke Dove-house Pischary viz. Tertium piscem vel ictum retis tertium and of the third part of the profits of the office of the Marshalsie Et de tertia parte exituum provenientiam de custodia Gaolae Abathiae Westm Of the third part of the profits of Courts Fines Heriots c. Of the third presentation to an Addowson c. Co. ib. 47. b. 3. 292. b. 3. Littl. §. 512 513. Co. l. 8. 153. a. 1. in Edward Althums case and l. 10. 12â— in Cluns case 2 If a man demise lands for years reserving rent Intire action contrà the Lessor may have several actions of debt for every year or half-years rent according to the Covenant c. So likewise upon a Recognisance to pay an hundred pound at five several dayes the Conifée presently after the first day of payment shall have execution for that summe and shall not tarry till the last be past because these touch the realty and are of the nature of the land and the profits thereof which are severable and the several payments upon the Recognisance are in the nature of so many several judgements So it is also of a Covenant or promise for after the first default an action of Covenant or an action upon the Case doth lie because these are also several in their nature But if a man be bound in a bond or by contract to another to pay a hundred pound at side several dayes he shall not have an action of Debt before the last day be past for a bond or contract are méerly in the personalty and intire neither yet can a bond be sued above once as a covenant c. may F. N. B. 130. h. 131. a. The like 3 In trespasse or any action in nature of trespasse Co. ib 130 b. 2. which is in Law several and where every one may answer without the other there a protection cast for one shall serve for him onely unlesse they joyne in pleading or if they plead several pleas and one Venire facias is awarded against all there a protection cast for one
the land In this case the Rent and Escuage shall be apportioned but the Homage and Fealty shall still remain intire for the residue of the land still remaining in the Tenants hand because he still holds the residue of the land of him and then he must hold it by some service or other and therefore those services being in their nature unseverable and intire they shall totally remain being indéed the fréest and least chargeable services that the Tenant can hold by c. Co. ib. 150. a. 1. 14 Albeit in some cases a Rent-charge The charge of a stature not apportionable which is in his nature intire may by act in Law be apportioned as when the Grantée of the rent comes to the land by descent or the like Yet in such cases the writ of Annuity faileth because that writ being grounded upon the grant by déed which is intire must be sued for the whole and cannot be sued for part Also a rent in respect of the realty may be apportioned but the personalty is indivisible and shall not be severed no not by act in Law As if execution be sued of body and lands upon a Statute Merchant or Staple and afterwards the inheritance of part of those lands descends to the Conusée In this case all the execution is avoided for the duty being intire and personal cannot be divided c. Annua nec debitum judex non separat ipsum Co. ib. 15â— b. 2. 15 A Rent-service is of its own nature apportionable Rent-service becomes rent-seck Howbeit if it be changed from Rent-service to a Rent-seck by severance thereof from the Seigniory it thereupon becomes intire and unsevâ—â—able according to the nature of a Rent-secke And therefore if there be Lord and Tenant by fealty and certain rent and the Lord by déed grant the rent in fée fée-taile or for life saving the fealty the rent which before was Rent-service is by that severance of it from the Seigniory made a Rent-seck and then if the Grantée purchase part of the land out of which that rent is issuing the whole rent is extinct 16 If a man be seised of two acres of land in two several Counties Co. ib. 153. b. 4. and maketh a lease of both of them reserving two shillings rent In this case albeit several liveries be made at several times yet is it but one intire rent in respect of the necessity of the case and he shall distrain in one County for the whole rent and make one avowry for the whole c. A County intire for livery 17 Every County is as it were an intire body of it selfe Finch 79. Littl. § 418. so that upon a feoffment of lands in many Towns in one County livery of seisin made in one parcel in any one of those Towns in the name of all sufficeth for all the lands in all the other Towns within the same County but upon a feoffment of lands in divers Counties there must be livery of seisin in every County For entry In like manner Littl. § 417. Co. ib. 252 b. 4. if a man have cause to enter into lands lying in divers Towns in the same County if he enter into one parcel thereof lying in one Town in the name of all the lands in the same County by such entry he hath as good possession of all those lands as if he had entred into every parcel but if they lie in several Counties there must be several entries Co. ib. 153. b. 4. So likewise if a man de disseised of a rent issuing out of lands lying in divers Towns within one and the same County he shall néed to bring but one Assise for the recovery of that rent c. But if the lands lie in several Counties he shall have several Assises in confinio Comitatus and in either County shall make his pliant of the whole rent Howbeit there shall be but one Patent to the Iustice And this Assise in confinio Comitatus is given by the Statute of 7 R. 2. Stat. 7. R. 2. 10. For no Assise lay in that case at the Common Law but the party might distrain for the whole rent in either County The like for â—ervices 18 If a man hold divers Mannors or lands in divers several Counties by one tenure and the Lord is deforced of his services Co. ib. 154. a. 2. he shall have several writs of customes and services viz. For every County one writ returnable at one day in the Court of Common Pleas and thereupon Count according to his case by the Common Law But if the Tenant in that case do cease the Lord shall not have several writs of Cessavit ut suprà For the writ of Cessavit is given by Statute of West 2. cap. 21. and the form and manner of that writ is therein prescribed for which cause it is holden in our books that in that case a Cessavit lay not at the Common Law c. â— Villein adâ—owson c. â—ndivisible 19 Of Inheritances some be intire and some several and of intire Co. ib. 164. b. 3. some be divisible and some indivisible c. If a Villein descend to two Coparceners this is an intire inheritance and albeit the Villein himself cannot be divided yet the profit of him may for one Coparcener may have him one day or wéek and the other another day or wéek c. They may likewise have an Advowson in coparcenary and may present by turns because that is also an intire Inheritance which cannot be divided â—stovers â—â—ots and â—ings uncerâ—in not diviâ—ble 20 If a man have reasonable Estovers as House-boot Co. ibid. b. 4. Hay-boot c. appendant to his Frée-hold they are so intire as they shall not be divided betwéen Coparceners So if a Corodie incertain be granted to a man and his heirs and he hath issue divers daughters this Corodie shall not be divided betwéen them It is otherwise of a Corodie certain for thereof partition may be made Likewise Homage Fealty Piscary uncertain Common sans number and the like cannot be divided betwéen Coparceners and the two last not onely because they are intire but also because it would be a charge to the Tenant of the Soile if such hereditaments should be devisible the interest in them being unlimited c. Co. ib. 190. a. 3. 21 If a Corodie be granted to two men and their heirs In this case Grant of a Corodie to two because the Corodie is incertain and cannot be severed it shall amount to a several grant viz. to each of them one Corodie for the persons be several and the Corodie is personal and the grant shall be taken most strongly against the Grantor Littl. § 314. Co. ibid. 197. 22 If two Tenants in Common of lands in fée make a gift in taile or a lease for life to another rendring to them yearly a certain rent Tenants in common
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
Act of 31 H. 8. would have put that in the beginning and not in the end after other inferiour conveyances if they had intended to have extended the Act to that But these words by any other mean are to be thus expounded viz. by any such inferior meanes So likewise it hath adjudged that Bishops are not included within the Statute of 13 El. cap. 10. For that Statute begins with Colledges Deanes and Chapters Parsons Vicars and concludes with these words and others having spiritual promotions these last words do not include Bishops causa qua suprà So also in the Statute of West 2. cap. 41. The words whereof are these Statuit Rex quòd si Abbates Priores Custodes Hospitales aliarum Domorum Religiosarum c. These last words include not Bishops as it was holden Dier 1 2. P. M. fol. 109. Causa qua suprà Co. l. 8. 133. a. 1. in Turners Case Et Co. 9. 88. b. 4. in Pinchons Case 6 An Executor or Administrator ought to execute his Office Precedency debts legacâ— and to Administer the goods of the dead lawfully viz. ought to pay all duties Debts and Legacies in such precedency and order as he ought to pay them by the Law and if he vary there-from he shall be taken to do in his owne wrong And therefore he ought first to discharge Iudgements Statutes and Recognisances then Debts and Duties by bond after that Debts upon simple Contract and last of all Legacies c. Vide Co. lib. 5. 28. b. 4. Harrisons Case Co. l. 8. 157. a. 4. in Blackamores Case 7 In an Original writ if the Feme be named before the Baron it shall abate albeit that be nothing but want of forme Feme not for the 〈◊〉 c. 8 Exceptio semper altiùs ponenda est And therefore if a release run thus Exception â—ust come last A. doth acknowledge himselfe satisfied c. of all Bonds Co. l. 9. 53. a. 2. in Hickmots Case c. made by B. and it is agreed that A shall deliver all such Bonds as he hath un-delivered to B except abond of 40 l. wherein B C stand bound c. Here the exception extends to all the premisses and it could not be inserted sooner because the proper place thereof is to come last c. Reservation â—fter the Eâ—â—ates 9 The proper place of a reservation is to come after the limitation of all the Estates and therefore if A left to B Habendum pro uno anno Co. l. 10. 107. a. 1. in Lofields Case c. si in fine anni both parties shall be agreed that the Demise shall be renued or continued for a longer time tunc habend premissa for thrée years rendering yearly durante termino praedicto 40 l. c. In this case the Reservation shall extend as well to the first year as to the other thrée years because the reservation was to be inserted after all the Estates so likewise if a man by déed indented demise lands to A Habendum to him for life the remainder to B and to the heirs of his body and for default of such issue to remain to C in tail or for life Reddendo inde to the lessor and his heirs an annual rent this reservation shall extend not to the last estate onely but to the two former estates also because it could not be conveniently inserted before all the estates were limited for his proper place is to succéed them c. 10 There is an order observed in the Register F. N. B. 2. c. when a man demands divers parcels of Land in his writ The method observed in â—rits which are of divers natures which parcel shall be first specified in the writ and which next to that and so of the rest for which order take these two verses following for your direction Mes uagium Tost um Mol. endinum Col. umbare Gar. dinum Ter. ra Pra. tum Pas tura Bos cus Brue ra mora Junca ria Maris cus Alve. tum Pis caria Red. ditus sectare priora And if a man in his writ will demand ten messuages and ten acres of land and ten acres of meadow and ten of pasture c. and after in his writ will demand the moity or third part of a messuage or of an Acre of land or of meadow or of pasture c. then the form of the writ is first to set down to whole and afterwards the moity or third part F. N. B. 33. m 34 v. c. â—â—esentation turn 11 If two sisters have an advowson which happens to be void the elder sister shall have the first presentment and so shall the baron of the elder sister if he be tenant by the curtesie and the tenant in dower in that case shall have but the third presentment c. 74 Sicut natura non facit saltum Ita nec Lex â—der in writs 1 In writs of Entry sur disseisin if the degrées be not duly observed Co. Inst p. 1. 238. b. 3. and the writ framed accordingly that errour will make it abatable As if a man bring a writ of Entry sur disseisin in the Per or in the Per y cui or in the Post when it ought to be a writ of Entry sur disseisin in the nature of an Assize that is an error whereupon the writ shall abate c. Collations 2 When a Quare impedit is brought against the disturber and the Bishop sir moneths passe Co. l 6. 52. a. 1 in Boswells case in that case the Bishop shall not collate by laps neither yet if other six moneths passe shall the Metropolitan collate for the Metropolitan shall never present by laps but when the inferiour Ordinary might before have collation by laps and doth increase his time so that in this case the first degrée being wanting the other that follow shall fail c. awardship 3 If the tenant make a feofment by collusion Co. l. 9. 120. b. 4. in Quicks ca. c. the Lord ought to recover the land by wrii of right of ward before he can have a writ for the ravishment of the ward c. H. N. B. 143. k. 12. H. 4. 13. b. 33. H. 6. 16. per Priset Co. l. 10. 44. b. 4. in Jennings case 4 If the reversioner in fee and the tenant of a mean estate for life Proximity of Estates respected do both at one and the same time pray to be received the mean estate for life in respect of the immediatenesse and proximity thereof shall be preferred before the reversion in fée for the words of the statute of West 2. cap. 3. which gives that receipt being general viz. admittantur haeredes vel illi ad quos spectat reversio c. the Law which alwayes respects order of proximity prefers the next though little estate be it in remainder or reversion for life
Case if an Infant Tenant make Feofment and die without Heire the Feofment is un-avoidable here is the same Law of Coverture and non sanae memoriae c. Co. l. 6. 76. b. 4. in Sr. Geo. Cursons Case 19 It is said that one of the Chiefest reasons 32 34 3â— H. 8. of Wilâ— that moved the Parliament in 32 H. 8. and in 34 35 H. 8. to give libertie to dispose of the two third parts of Lands by will or otherwise for a Competent livelyhood of Wives and Children or for payment of Debts was this Because these Cases were ordinary usual and necessary And for that every man is in his life time bound by the Law of God of Nature and of Nations to make provision for his Wife and Children and also for the payment of his Debts c. Co. ibid. 77. a. 2. 20 There is a neerer Relation betwéen Father and Sonne Father neeâ— then Grandfather then betwéen Grand-father and Grand-child And therefore if there be Grand-father Father and divers Sonnes and the Grand-father in the life time of the Father conveys his Land to some of the Sonnes this is out of the Act of 32 H. 8. of Wils For the Father ought to have the immediate care of his Sonnes and Issues But if the Father be dead then the care of them belongs to the Grand-father and then if he convey any of his Lands to any of them that is within the said Statute Co. Inst pt 1. 123. b. 2. Litt. §. 189. 21 It is regularly true A Villein may sue his Lord. that the Villain cannot bring any Action against his Lord yet he may have against his Lord an appeale of the death of his Father or of any other of his Ancestors whose heire he is c. because the villain is both by duty and in nature bound to pursue such an Action Co. lib. 3. 12. b. 2. St. Will. Herberts Case 22 If a man seised of three Acres of Land No contribution to the heire acknowledgeth a recognisance or Statute c. And enfeoffes A. of one Acre and B. of another and the third descends to his heire in this Case if execution be sued onely against the heire he shall not have contribution For he comes in the place of his Ancestor and sits in his State Haeres enim est alter ipse filius est pars patris And as it is said Mortuus est pater quasi non mortuus quia reliquit similem sibi Co. Inst p 1. 174. a. 4. 23 If one Copercener maketh a Feoffment in Fée and after the Feoffée is impleaded and voucheth the Feoffor The heire apparent shall derraigne the warrantie from upon feofâ—â—â— for the mother she may have ayde of her Coperceuer to deraigne a Warrantie per amount but never to recover per rata against her by force of the Warrantie in Law upon the partition For as Littleton saith by her alienation she hath dismissed her selfe to have any part of the Land as parcener but if there be two Coperceners and they make partition and the one of them enfeoffs her Sonne and heire apparant and dieth and after the Sonne is impleaded Here albeit he be in by the Feoffment of his Mother yet shall he pray in ayde of the other Copercener to have the Warrantie per amount and to recover per rata not onely because the Warrantie betwixt his Mother and him is by Law annulled but likewise for that he is alter idem with his Mother Dier 2. b. 1. 19 H. 8. 24 A fine levied by Tenant in taile after the Statute of 4 H. 7. 24. Issue in taile barred by 〈◊〉 fine and before the Statute of 32 H. 8. 36. did bind the issue in taile and his title was not preserved by any of the savings in 4 H. 7. because albeit he claimed per formam doni yet claiming thorough his Father the Land came to him in the nature of a descent Dier 128. b. 61 2 3. P. M. 25 If any of the Kings subjects be beyond Sea and is commanded by the King to return home and in contempt refuseth so to do Allegiance all his Goods and Chattels Lands and Tenements shall be seised for the use of the King And this is by reason of the faith and allegiance which he oweth to the King by the Law of Nature And this was the Earle of Richmonds Case in 19 E. 2. in Scaccario The like 26 If a Bastard were borne at Turney Dier 224. 19. 5. Eliz. when it was under the obedience of H. 8. he was a denizen by the Law of Nature So it is also of the issue of Aliens born within this Realme 27 Vide Hob. Rep. pag. 1. The Earle of Clanrichards Case 10. Grisley against Lother Formedon 28 In a cessavit brought by the Husband and Wife Hob. 1. The E. of Clanrichards Case or in a writ of Escheat a consimili casu or Action or Wast because there is a vested in them already either a Signiory or reversion actually and therefore the Land holden or the present Estate to return is come in possession therefore in these Cases Reverter is to be made to them both and so are the Bookes in 3 H. 6. 2. 20 E. 3. Briefe 372. Register 238. F. N. B. â—10 Also in a Formedon in Reverter wherein nothing is already revested but the right onely returnes there the right may be laid to return either to the Wife alone or to the Husband and Wife as Douby resolves it 33 H. 6. 54. See also 18 H. 8. 20. 5 H. 3. 13. 38 E. 3. 16. and 18 E. 3. 3. where it was sometimes to the Wife sometimes to the Husband and Wife But in a Formedon in descender upon a descent to the Wife there the descent must be made in the writ to the Wife alone because the descent followeth the bloud and to that the Husband is a stranger and so are the Bookes in 19 H. 6. 46. and 53 H. 6. 10. where a Formedon in descender was brought by two Husbands and their Wives and made the descent in bloud to the Wives onely and yet concluded that the right ought to descend to the Husbands and Wives And exception was taken to it and ordered by the Court that it should be amended and the descent made onely to the Wives Assumpsit 29 In an Action upon an Assumpsit Hob. 10. Grisley and Lother that A. would give to B. 100 l. if B. would give her consent that A. might marry her Daughter and it was moved in arrest of judgement that the action would not lie the consideration being to travel or charge but onely a bare consent howbeit it was held by three Iustices against one that the consideration was good because the Mother hath by the Law of Nature a special stroke to incline the Daughters mind either one way or other and the desire of
her consent and the working of it shewes that the Plaintife so conceived it 79 Nemo praesumitur alienam posteritatem suae praetulisse Collaterall Warrantie 1 If the Tenant in taile discontinue the taile and hath issue and die Co Inst p. 1. 373. a. 3. Litt. § 709. and the Vncle of the issue release to the discontinue with Warrantie c. and die without issue this is Collateral Warrantie and shall barre the Issue in taile albeit the Vncle had no right at all to the land intailed because the Law presumeth that the Vncle would not un-naturally dis-inherit his Lawfull Heire being of his owne bloud of that right which the same Vncle never had but came to the Heire by another mean unlesse he would leave him greater advancement some other way For nemo praesumitur c. And in this Case the Law will admit no proofe against that which the Law presumeth And so it is likewise of all other Collateral Warranties no man is presumed to do any thing against nature 〈◊〉 conveyance â—ot within the â—â—at of Wils 2 If a man make a voluntary Conveyance of his Land to the use of any of his collateral bloud who is not his heire apparent Co. l. 6. 77. a. 3. in Sr. Geo-cusrons Case that is not within the Act of 32 H. 8. of Wills For it cannot be intended that he will dis-inherit his heire on purpose to defeat the King of his Ward seeing every one hopes to live to see his heire attaine his full age much lesse to defraud him of his Primer seisin Vide Dier 307. 71. 80 The Law esteemeth and judgeth of all things according to their nature and quality Co. Inst p. 1. 91. b. 4. 1 Where the tenant holds of his Lord by fealty and a pound of pepper or a pound of Cummin or a certain number of Capons Certain services not doâ—bled for relieâ— or hens or a pair of Gloves or certain bushels of wheat or the like the Lord shall have so much for relief as he receives in rent viz. a pound of pepper a pound of Cummin or the like But if the tenant holdeth of the Lord by doing certain work-dayes in Harvest or to attend at Christmas or the like he shall not double the same for of corporal service or labour or work of the tenant no relief is due It being onely payable where the tenant holdeth by such yearly rents or profits which may be paid or delivered c. Co. ib. 92 a. 2. Litt. §. 128 129. 2 When the tenant holdeth by such yearly rents or profits Not to be distrained for presently as may be presently delivered the relief is due to be paid to the Lord immediately upon the tenants death and upon non-payment thereof the Lord may distrain for it presently Howbeit if the tenant holds of his Lord by a Rose or by a bushel of Roses to be paid at the Feast of St. John Baptist if such a tenant die in winter the Lord shall forbear to distrain for the Relief untill the season of Roses for Lex spectat naturae ordinem Lex non cogit ad impossibilia And therefore it is observed by my Lord Cook that Littleton puts a diversity betwéen Corn and Roses for Corn will last and therefore the tenant must deliver the Corn presently before the time of growth and so of saffron c. but Roses and other flowers that are fructus fugaces cannot be kept and therefore are not to be delivered until the time of growing neither is the tenant driven by law artificially to preserve Roses for the Law in these cases respected nature and the course of the year c. Co. ib. 121. b. 4 Co. l. 4. 36. b. 4. in Tyrringhams case Pl. Co. 168. Hill Granges Case 3 Prescription although never so ancient cannot make any thing appendant or appurtenant Things properly appeâ—dant and appurtenant unlesse the thing appendant or appurtenant agrée in quality and nature with the thing whereunto it is so appendant or appurtenant as a thing corporeal cannot properly be appendant to a thing corporeal nor a thing in-corporeal to a thing incorporeal but things incorporeal which lie in grant as Advowsons Villains Commons and the like may be appendant to things corporeal as to a Mannor house or lands so also may things corporeal be appendant to things incorporeal as Lauds to an Office but yet these also ought to agrée in nature and quality for Common of Turbary or Estovers cannot be appendant or appurtenant to Land but to an house to be spent therein nor a Léet which is temporal to a Church or Chappel which is Ecclesiastical Neither can a Noble man Esquire c. claim a seat in a Church by prescription as appendant or belonging to land but to an house for that such a seat belongeth to the house in respect of the Inhabitancy thereof and therefore if the house be part of a Mannor yet in that case he may claim the seat as appendant to the house for the reason aforesaid Co. ibid. 129. a. 4. 4 A man cannot be naturalized either with limitation for life Naturalization or intail or upon condition for that is against the absolutenesse purity and indelebility of natural Allegiance Co. ib. 130. a. 4 5 Corporations aggregate of many are not capable of the Protections of Profecturae or moraturae Corporatiâ—â— because the Corporation it self is invisible and resteth onely in consideration of law Ca. ib. 144. b. 4 6 Littleton saith § 219 that the Grantée of a rent charge hath election to bring a writ of annuity Rent-chaâ—â—â— and so changing the person onely to make it personal or else to distrain upon the land and so to make it real but this is to be understood with some limitation for of a rent granted for owelty of partition a writ of Annuity doth not lie because it is of the nature of the land descended Also of such a rent as may be granted without déed a writ of Annuity doth not lie although it be granted by déed c. 7 If there be two Ioynt-tenants Co. ib. 192. b. 3. Litt. §. 302. and the one lets his moity to another for life â—oynt-tenants In this Case the Ioynture is severed so that if the Ioynt-tenant which still retains the frank-rent of his moity have issue and die the issue shall have that moity by descent because a frank-tenant cannot by nature of Ioynture be annexed to a barâ— reversion c. Divine Serâ—ice frank-almoigne 8 Where the Common or Statute Law giveth remedy in foro seculari Co. Inst p. 1. 96. b. Litt. §. 137. whether the matter be temporal or spiritual the Connusance of that Cause belongs to the Kings temporal Courts onely unlesse the Iurisdiction of the Ecclesiastical Court be saved c. as if an Abbot or Prior hold of his Lord by Divine Service certain and
man-slaughter ought to Insue upon a suddaine debate of effray because if it be premeditate it is murder 16 A Feme sole deviseth land to A. and his heirs A femes will revoked by taking Barâ—â— if A. survive him Co. lib. 4. 16. b. 2. in Ferse Hemblings Case they inter-marry the Feme revokes and often saith during the Coverture that A. shall not have it and dies whereupon the heir of the Feme enters And in this Case it was resolved that the making of a Will is but the inception of it and that it taketh not any effect until the death of the Devisor for Omne testamentum morte consummatum est voluntas est ambulatoria usque extremum vitae exitum And therefore it would be against the nature of a will to be so absolute that the party which made it being of sane and perfect memory might not have power to counter-mand it and then this taking of Baron being the Femes proper act shall be accounted a counter-mand in Law of the will and thereupon the heir of the Feme recovered the Land c. Payment to a termeâ— no seisin of rent 17 A man deviseth a rent for life out of the Mannor of Dale Co. lib. 6. 57. a. 4. in Bredimans Case and deviseth the Mannor for years the termor enters and payes the Rent after the Term ended the Devisée brings an Assise against the Tetretenant And in this Case it was resolved per totam Curiam that the payment of the rent by the termor was not seisin to binde the Terre-tenant after the determination of the Term in respect of the weakness and meannesse of the interest of the tenant for years who at the common Law could not prejudice nor draw in question the estate of the frank-tenement c. Common ratione commorantiae not good 18 In Trespass the defendant justifies Co. lib. 6. 60. a. 3. in Gatewards Case that all Inhabitants in any antient Messuage within the Town of Dale have used to have Common in the place c. in Solo ratione commorantiae And it was adjudged per totam Curiam that this Custome was against Law for divers reasons amongst which this was one that such a claim of a Common is against the nature and quality of a Common for every Common may he suspended or extinguished but such a Common as that shall be so incident to the person that no certain person shall be able to extinguish it for so soon as he which releaseth c. removes the new Inhabitant shall have it again 71. 3. Allegiance not local 19 In Calvins Case the plea of the Defendants that confined the ligeance of the Plaintiffe Calvin to the Kingdome of Scotland onely Co. l. 7. 9. b. 2. Calvins case Infra ligeantiam Regis Regni sui Scotiae extra ligeantiam Regis Regni sui Angliae and so did make one local ligeance for the natural subjects of England and another local ligeance for the natural subjects of Scotland was adjudged utterly unsufficient because ligeance being a quality of the mind that follows the subject whithersoever he goeth it is against the nature thereof to be local or confined within any one particular Kingdome or Countrey And therefore it is truly said Qui abjurat regnum amittit regnum sed non regem amittit patriam sed non patrem patriae for notwithstanding the abjuration he oweth the King his ligeance and still remaineth within the Kings protection because the King if he please may pardon him and restore him to his Countrey again c. â—eisin of rent â—aversable 20 There is a diversity Co. lib. 9. 33. a. 3. in Backnals Case when the Lord in his Avowrie varies from the truth of the quality of the services by colour of seisin and possession which he hath got of his tenant and when he varies from the truth of the quantity of the services by reason of seisin which he hath got of more then he ought to have of the same nature for where the Lord avowes because the tenant holds of him certain land by fealty rent and suit of Court and alledges seisin of all and for the rent arrear c. whereas the true tenure was by fealty and rent onely In this case the seisin of the suit is not material because it is of another quality and nature and the tenancy originally was not charged with any service of such a quality as suit of Court And therefore in such case the tenure is traversable But where the rent is 2 s. per annum if the Lord hath happed quiet and voluntary seisin of more rent then he ought to have as of 3 s. c. without any cohertion of distresse there because the tenancy is charged with service of such nature and quality and for that it is not to be presumed that the tenant would willingly pay more rent then he ought the seisin is traversable and not the tenure c. Co. Inst p. 1. 117. a. 2. 21 If a man be Lessée of a Villain for life for years or at will Lessee Villain and the Villain purchase lands in fée if the Lessée entreth into the Lands he shall hold the Lands as a Perquisite to him and his heirs for ever for the Law respected the quality and not the quantity of his Estate c. 22 A tenant holdeth of his Lord certain Lands in socâ—age Relief to pay yearly a pair of guilt Spurs â—o ib. 90. b. 4. or five shillings in money aâ— the Feast of Easter In this Case the rent is uncertain and the tenant may pay which of them he will at the said Feast and likewise the tenant may pay which of them he will for relief but if he pay it not when he ought then may the Lord distrain for which of them he will Howbeit if the tenure be to attend on his Lord at the Feast of Christmas or to pay ten shillings there the relief must be ten shillings because it is against the nature of the other to be doubled Co. ib. 207. a. 2 23 If an Obligation of 100 l. be made for the payment of 50 l. at a day and at the day the Obligor tender it Payment of money or wheat Diversity yet in an Action of Debt upon the Obligation if the Defendant plead the tender and refusal he must also plead that he is yet ready to pay the money and tender the same in Court But if a man be bound in 200 quarters of wheat for the delivery of 100 quarters and the Obligor tender at the day the 100 quarters c. he shall not in such case pleaâ— uncore prist because although it be parcel of the Condition yet they being bona peritura if will be a charge for the Obligor to kéep them and therefore in such case he is not bound to say he is alwayes ready to pay the same 100 quarters c.
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
Case if the Donée enfeoffe the Donor that is a dis-continuance because so there is a mean Estate that otherwise would suffer wrong and yet would be remedilesse there is the same Law also where the Donée enfeoffes the Donor and a stranger c. for that is also a discontinuance of the whole Land c. â—eme not ouâ—ed 3 If a Feme covert be tenant for life Co. ib. 335. a. 4 and the husband make a feofment in fée and the Lessor enter for the forfeiture this shall not out the woman from her just right for here albeit the reversion was revested yet the dis-continuance did still remain at the Common Law Co. ibid. 369. b. 2 4 If there be tenant for life Statute of 〈◊〉 H. 8. 9. Pretenced rights the remainder in fée by lawful and just title he in the remainder may obtain and get the pretenced right or title of any stranger and shall not thereby incur the penalty of the Statute of 32 H. 8. cap. 9. not onely for that the particular Estate and remainder are all one or that it is a mean to extinguish the séeds of troubles and suits but likewise because by the doing thereof there can happen no prejudice to any stranger Howbeit if a disseisor make a Lease for life lives or years the remainder for life in tail or in fée he in remainder cannot take a promise or covenant that when the Disseisée hath entred upon the Land or recovered the same that then he should convey the Land to any of them in remainder thereby to avoid the particular estate or the interest or estate of any other For the words of the Proviso be buy obtain get or have by any reasonable way or mean and that is not by promise or covenant to convey the land after entry or recovery because that is neither lawful being against the expresse purview of the body of the Act neither yet reasonable because it is to the prejudice of a third person Co ibid. 393 a. 2 5 If one man enfeoffe two with warranty Warranty and the one releaseth the warranty yet the other shall vouch for his moity Co. ibid. 298. a. 2. 6 If a Lease be made to an infant for life the remainder in fée Infant the infant at his full age dis-agrées to the Estate for life yet the remainder good for that it was once vested by gooo title and it is no reason that the practice betwixt the Feoffor and the Infant should prejudice him in remainder who is a stranger c. Litt. §. 636. Co. ib. 338. a. 6 7 If a Feme inheritrix take Baron and have issue a son Feme Inheritrix and the Baron die and she takes another Baron and the second Baron lets the land which he hath in right of his wife to another for term of life and after the Feme dies and after the tenant for term of life surrenders his Estate to the second Baron c. In this Case the son of the Feme may immediately enter which he could not have done if the tenant for life had not surrendred And therefore here Res inter alios acta liberis prodest c. Co. lib. 6. 1. b. Bruâ—rtons case 8 When the tenant holds by an intire service Intire Service as by the payment of an horse or an hawk c. yearly In that Case if the Lord purchase any part of the Land the whole service is extinct but if the tenant alien the Land in parcels to several men that shall give the Lord who is a stranger an advantage and benefit so that every one of the Alienées shall pay an horse hawk or the like For Res inter alios actae nemini nocere debent sed prodesse possent c. Co. lib. 2. 67. a 4. in Tookers Case 9 If the reversion of two tenants for life Attornment or the Rent or Seigniory of two joynt-tenants be granted by fine In a Quid juris clamat quem redditum reddit or a Per quae servitia against such joynt-tenants the one shall not be permitted to attorn without his companion because if the one attorn alone he may prejudice his companion as if he will not claim to be dis-punished of waste or condition to have fée or a future term c. for upon general attornment in Court of Record the Lessée shall lose all advantages which are not claimed upon Record because this question is demanded of him Quid juris clamat c. And therefore he shall have no more then he claims upon Record And for this cause one of the joynt-tenants alone by himself shall not be permitted to attorn upon Record in regard of the manifest prejudice which might happen to his companion in case it should be attornment of both c. Co. lib. 3. 29. a 3. in Butler and Bakers Case 10 It is said that as relations shall extend onely to the same thing Relation and to the same intent so shall they also onely extend betwéen the same parties and shall never be strained to the prejudice of a third person who is neither party nor privy to the said Act And therefore if a man make a feoffment of a Mannor by Déed or without déed and a long time after the livery the tenants attorn to the Feoffée In this Case the attornment by necessity and ut res magis valeat shall have relation by fiction of Law to passe the services ab initio yet this relation shall not charge the tenants for the arrerages in the mean time So if Feoffée upon condition grant a Rent-charge of the land and after the Grantée brings a writ of Annuity here ab initio this was an Annuity betwéen the Grantor the Grantée but as to the feoffor who is a stranger and is entituled to enter for the Condition broken it shall have no relation to his prejudice Likewise in 30 E. 3. 17. in a Dum fuit infra aetatem against Richard Spellow the tenant saith that his father was seised and died seised and so prayeth his age the Demandant counterpleads the age because the tenant and his father were joyntly enfeoffed and to the heirs of the father And it was adjudged that the tenant should not have his age for albeit this refusal of taking the land by purchase shall have relation as to himself yet as to the Demandant who is a stranger it shall not have relation to delay his Action when in truth the tenant had the frank-tenement by purchase Devise of the third part descended 11 W. B. and his wife were seised in tail of the Mannor of Hinton Co. l. 3. 29. b. 2 in Butler and Bakers Case for the Ioynture of the wife holden in Capite and W. B. was also seised of land in Fobbing which Mannor and Lands did amount to a full third part of all his lands he was likewise seised of the Mannor of Thoby
tenancy c. Tamen quaere F. N. B. 134. a. b. 38 In a Perambulatione facienda Perambâ—latiâ—â— if it be made by the consent of both parties being tenants in fée-simple it is binding to them and their heirs but if tenant for term of life of a Seigniory and another who is tenant in fée-simple of another Seigniory adjoyning sue such a writ or Commission whereupon perambulation is made It séems that that shall not bind him in reversion neither yet shall perambulation made by the assent of tenant in tail binde his heir F. N. B. 150. c. 39 If the tenant fore-judge the Mesne yet the Feme of the Mesne shall be endowed Parsons One title Two titles Indicavit 40 If two Parsons claim under one and the same Patron one of them may sue spoltation against the other in the Court Christian albeit the profits amount to a fourth part or more because the title of the Patronage comes not in debate But if they claim by several Patrons and the tithes or profits or pension spoiled amounts to a fourth part or more then forasmuch as the Patron of the Parson grieved being a stranger may suffer prejudice he shall in that Case have an Indicavit or Prohibition to remove the Suit into the Kings Court there to be tried at the Common Law because then the title of the Patronage will come in debate c. Vide Statute VVest 2. cap. 5. Pl. Co. 32. a. 3. in Colthirst Beinshins case 41 If a man demise land to A. for life the remainder to B. for life Remainder void and if B. die that then C. shall have the land during the life of A. this demise is void for the prejudice of the particular Estate for things done in prejudice of others shall be void As in the Case of 21 E. 4. where the King had granted to an Abbot that he should not be Collector when any tenths were granted per Clerum Angliae Exemption not void by Proviso And then the Clergy of the Province of Canterbury had granteth a tenth to the King with a Proviso that no Collector which the Bishop would return should be discharged by any Letters Patents of Exemption made by the King And the Bishop returned the said Abbot Collector And there it is holden that the Grant made by the Clergy in that point viz. to charge persons exempt is void because it is in prejudice of others And so also the above-said remainder to C. shall rather be void then a stranger shall suffer prejudice by it Co. Inst p. 1. 117. a. 2. 42 If a Villain purchase Land the Lord may seise it The Lord shall not seiâ—â— common 〈◊〉 number c. but if he purchase a common Sans number the Lord shall not have it for the Lord may surcharge the same and that would trench to the prejudice of the terre-tenant who is a third person there is the same Law also of a Corodie uncertain granted to a Villain and of all other such like uncertain inheritances Co. ib. 100. b. 1 43 If the tenant be disseised The Act of Disseisor no prejudice and the disseisor in a writ of Mâ—sne fore-judge the Mesne this shall not binde the disseisée so likewise if the Mesne be disseised and a fore-judgment is had against the disseisor this shall not binde the disseisée for the words of the Statute of VVest 2. cap. 9. are Quando tenens sine praejudicio alterius quà m medii attornare se potest capitali Domino 44 Admittances made by Disseisors Abators Intruders Co. Inst p. 1. 58. b. 2. Tenant at sufferance Admittances per Dominos pro tempore or others that have defeasible titles are good and effectual in the Law For it is no reason that the Lords competitors for the title of the Mannor should by any Act they do prejudice the Copihold Tenants who are strangers to the difference betwixt them for if they be admitted by any who is Dominus pro tempore it sufficeth howbeit such wrong-doers cannot grant voluntary Copies Advantage to strangers 45 Lessée for life levies a Fine come ceo c. to a Disseisor Co. l. 2. 55. b. 3. in Bucklers ca. this is a forfeiture and he in remainder or reversion shall take advantage of it Vide plùs ibid. It is said that if the Disseisée levie a Fine to a stranger the Disseisor shall retain the Land for ever For the Disseisée against his own Fine cannot claim the Land neither can the Conusée enter for the right of the Conusor cannot be trans-ferred to him but by the Fine the right is extinct and the Disseisor shall take advantage thereof Both wardship and relief 46 If there be Lord and tenant by divers tenures in Knight-service and the tenant is disseised of the one Co. Inst p. 1. 83. b. 4. and the Disseisor dieth seised and the tenant dieth seised of the other his heir within age the Lord seiseth the Body and Lands of that Mannor and after the heir at his full age recovereth the other Mannor against the heir of the Disseisor In this Case the heir shall pay relief for the Mannor recovered and the descent cast shall not hinder it for res inter alios c. And so one Lord of the heir of one tenant shall have both wardship during his minority and also relief at his full age Vllain profest or Neife married 47 If a Villain be made a secular Chaplain Litt. §. 202. Co. ib. 136. b. 2. yet his Lord may seise both him and his goods and albeit the Lord cannot seise his Villain that is profest in Religion nor his Neife that is married to a Frée-man not this because Marriage is honourable and indissoluable not that in favorem Ecclesiae and because then he cannot live according to his Profession and Religion yet in both these last Cases the Lord shall have his Action in his Case and shall recover what he is damnified for albeit the Profession and Marriage were lawful yet when they work a prejudice to a third person an action lieth against the Soveraign of the house and the husband to the value of the losse Ordinary Administrator 48 The Ordinary was sued after the administration committed Dier 247. 73. 8 El. in plaint of a Debt in London and Nihil habet being returned upon suggestion the debt was attached in the hands of one VV. who was indebted to the testator and after four defaults of the Ordinary being returned non est inventus and Oath made that the Debt was due the Plaintiff had judgement and execution against the said VV. against whom the Administrator also brings Debt who pleads the matter suprà whereupon the Plaintiff demurs and it was adjudged that he should recover for after the administration committed Debt lieth not either against or for the Ordinary and indéed it lay not at all until VVest 2. 19.
is found for him yet the other issue shall be tried and he shall not take advantage of the others Plea But in a Plea personal against divers Defendants it is otherwise for in such an action if one Defendant pleads that which extendeth onely to himself and the other pleads a Plea which goeth to the whole viz. to both Defendants this last Plea shall be first tried and if that be found for the Defendant that pleaded it it shall discharge both for in a personal Action a Discharge of one is a Discharge of both For example If one of the Defendants in Trespasse plead a Release to himself which in Law extends to both and the other pleads not guilty which extends but to himself the Plea which goeth to the whole and dischargeth both shall be first tried for if that be found it maketh an end of all and the other shall take advantage of it 94 Freehold and Inheritance more then it doth Chattels Co. Inst p. 1. 3. a. 2. 1 The Parishioners or Inhabitants or probi homines de Dale Parishoâ—â—â— purchase or the Church-wardens c. are not capable to purchase Lands unlesse it were in ancient time when such Grants were allowed But Goods and Chattels they may purchase c. Seigniories suspended 2 If an Estate of Fréehold in Seigniories Rents Commons Co. ib. 29. b. 2. or the like be suspended a man shall not be tenant by the Courtesie but if the suspension be but for years he shall be tenant by the Courtesie As if there be Feme Seignioresse and Tenant and the Tenant makes a Lease for life of the Tenancy to the Seignioresse who taketh an husband and hath issue the wife dieth he shall not be tenant by the Courtesie Howbeit if the Lease had béen made only for years then should he have béen tenant by the Courtesie c. An Estate for life and years 3 In the eye of the Law any estate for life Co. ibid. 46. a. 1 Co. l. 8. 70. b. 4. in Whitlocks Case being as Littleton saith an Estate of Fréehold against the tenant whereof a Praecipe quod reddat doth lie is an higher and greater estate then a Lease for years though it be for a thousand years or more which is a Chattel and if so long never without suspicion of fraud And they have béen alwayes the lesse valuable for that at the Common Law they were subject unto and under the power of the Tenant of the Fréehold c. Claim by the Lord of the Villeins goods 4 Claim by the Lord inter vicines c. of the Villeins goods Co. ib. 118. b. 4 and Lit. §. 177 shall not onely vest the goods which the Villein then hath but also which he after that shall acquire and get Howbeit it is otherwise if an Estate of Frée-hold or Inheritance in lands for there such a general Entry or Claim extends onely to such lands as the Villein hath at that time and not to any other which he shall purchase afterwards Rent 5 If a man grant a Rent out of Black-Acre to one and to his heires Co. ib. 147. b. 1 Co. l. 7. 24 a. b. 3. in Buts ca. and also grant to him that he may distrain for it in the same Acre for the term of his life this is a Rent-charge for his life and a Rent-seck afterwards diversis temporibus but if the Distresse be onely limited for certain years in the same land In that Case it remains a Rent-seck intirely for that the Fée and the Fréehold is seck in such Case c. Joynt-tenants Partition 6 At the Common Law before the Statutes of 31 H. 8. cap. 1. Litt. § 290. Co. ibid. 187. a. 1. and 32 H. 8. cap. 32. Ioynt-tenants by consent might have made partition and if they had béen possest of a Lease for yeares they might have done it by Parol but if they had béen seised in an Estate of Inheritance or for life they could not have made partition without Déed Words conditional to make a Lease void 7 If a man maketh a Feoffment in fée or Lease for life Co. ib. 204. â— 4 ad faciendum or faciendo or ea intentione or ad effectum or ad propositum c. that the Feoffée or Lessée shall do or shall not do such an Act none of these words make the state in the land conditional for in the Case of a common person and not of a will they are in judgment of Law no words of Condition and so it was resolved H. 18 Eliz. in Com. Banco Howbeit for the avoiding of a Lease for years no such precise words of condition are required as in Lease of Fréehold or Inheritance for if a man by Déed make a Lease of a Mannor for years in which there is a clause And the said Lessée shall continually dwell upon the Capital Messuage of the said Mannor upon pain of forfeiture of the said Term these words amount to a Condition So it is also if such a Clause be in such a Lease Quod non licebit to the Lessée dare vendere vel concedere Statum sub poena foris-facturae this amounts to make the Lease for years defeasible And so it was also adjudged H. 40. Eliz. Rot. 1610. inter Brown Ayel And the reason of the Court was because a Lease for years was but a Contract which may begin by word and by word may be dissolved Litt. §. 365. Co. ib. 225. 8 A man in any Action real personal or mixt cannot plead Pleading of a Condition that an Estate of Fréehold or Inheritance was made upon condition without vouching a Record thereof or shewing a writing under seal that proves the same but a man may plead a condition that concerns Chattels either real or personal without shewing forth any writing purporting the same c. Littlet § 388. Co. ib. 239. ib. 2 9 If a Disseisor make a Lease for years Discent a tolle entry and die seised of the Reversion this descent shall take away the entry of the Disseisée because he died seised of the Fée and Frank-tenement like Law it is if the Land be extended upon a Statute Iudgement or Recognizance and so it is likewise in case of a Remainder Howbeit if he had made a Lease for life either for his own or for anothers life and then had died seised of the Reversion this descent shall not take away the Entry of the Disseisée for albeit he had the Fée yet he had not the Frank-tenement and the Law doth ever give great respect to the Estate of Fréehold though it be but for term of life And therefore there is the same Law also where the Disseisor makes an Estate in tail mutatis mutandis Lit. § 525 526 Co. ib. 299. b. 4 10 If I let Land to a Feme sole for life who takes Baron Joynt confirmation to Baron and Feme
and after I confirm the Estate of the Baron and Feme to have and to hold for their two lives In this Case the Baron holds not joyntly with the Feme but onely in her right during her life and shall have it for life if he survive her But if I let to a Feme sole Land for term of years who takes Baron and I confirm the Estate of the Baron and Feme to have and to hold for their lives In this Case they have a joynt Estate in the Frank-tenement of the land because the Feme had not Frank-tenement before but onely a Chattel whereof the Baron hath such a possession in her right as was capable of a confirmation or a release and the confirmation in this Case to the husband and wife for their lives maketh them Ioynt-tenants for life because this Chattel of the Feme covert may be drowned So note a diversity betwéen a Lease for life and a lease for years made to a Feme covert for her Estate of Fréehold cannot be altered by the confirmation made to her husband and her as the term for years may whereof her husband may make disposition at his pleasure Co. ib. 275. b. 4. 11 If Lessée for years be ousted and he in the Reversion disseised Release to the Disseisor and the Lessée release to the Disseisor the Disseisée may enter for the term for years is extinct and determined But otherwise it is in case of a Lessée for life for in that Case the Disseisor hath a Fréehold whereupon the release of tenant for life may inure but the Disseisor hath no term for years whereupon the release of the Lessée for years may inure Co. ib. 378. â— 4 12 A man letteth lands for life upon Condition to have Fée A Lease for years not capable of a warranty and warranteth the land in forma praedicta afterwards the Lessée performeth the Condition whereby the Lessée hath Fée In this Case the warranty shall extend and increase according to the State for a warranty being a Covenant real executory may extend to an Estate in futuro having an Estate whereupon it may work in the beginning but if a man grant a Seigniory for years upon condition to have fée with a warranty in forma praedicta and after the Condition is performed this shall not extend to the fée 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 Fée and warrant the land in forma praedicta he in the remainder cannot take benefit of the warrantie because he is not party to the Déed and immediately he cannot take if he were party to the Déed because he is named after the habendum and the Estate for years is not capable of a warranty c. Waste 13 A Lease for life the remainder for years Finch 29. the remainder over in Fée an action of waste lieth for him in the remainder in Fée against the Lessée for life sor the mean Estate for yeares is not regarded Otherwise it were if the mean Estate for years were an Estate for life c. Joynt-tenants may prejudice one another 14 One Ioynt-tenant cannot prejudice his Companion Co. l. 2. 68. a. 3. in Tookers ca. as to any matter that concerns the Inheritance or Frank-tenement But as to the profits of the Frank-tenement they may prejudice one another c. per Popham Right of Action 15 There is a diversity betwéen Inheritance and Chattels Co. l 3. 3. a. 1 in the Marquesse of Winchesters Case for the right of action concerning Inheritances is not forfeited by Attainder c. but Obligations Statutes Recognisances c. and such other things in action are forfeited by Attainder or Outlawry Real and personal actions 16 The Law hath provided greater safety and remedy for matters of Frank-tenement and Inheritance then for Debts and Chattels Co. l. 6. 7. a. 1 in Ferrers Case for there once barred and ever barred for in personal actions as in Debt Accompt c. the bar is perpetual because the Plaintiff in that Case cannot have an Action of an higher nature but his onely remedy in such Case is by Errour or Attaint Howbeit if the Demandant be barred in a real Action by judgement upon Verdict Demurrer Confession c. yet he may have an Action of higher nature and try the same right again because it concernes the Frank-tenement and Inheritance as if one be barred in an Assise de novel disseisin yet he may have upon shewing a descent or other special matter an Assise of Mortdancestor Aiel Besaiel Entry sur disseisin to his Ancestor c. So if a man be barred in a Formedon in descender he may have a Formedon in reverter or remainder for that is an Action of an higher nature because in it the Fée-simple is to be recovered according to the opinion in Robinsons Case in the 5. Report fol. 33. â—ands not â—hargeable in â—â—cution 17 At the Common Law before the Statute of VVest 2. cap. 18. Co. l. 3. 11. b. 4 in Sir Wil. Herberts case which gave an Elegit against the moity of the Debtors Lands upon a Recognisance or Iudgment sued lands were not chargeable in execution but onely Goods and Chattels or else grain or other present profit increasing upon the land viz. Goods and Chattels by Fieri facias and such present profit by Levari facias c. Vide suprà Ru. 92. ex 16. Howbeit in the Kings Case by reason of his Prerogative and in Case of an Heir in by Descent and chargeable by the act of his Ancestor c. because otherwise in such Case the Creditor was without remedy c. lands were chargeable in execution c. 〈◊〉 by a terâ—â—r not good 18 A man deviseth a rent for life out of a Mannor Co l. 6. 58 b. 4 in Bredimans Case and deviseth the Mannor for years the termor enters and payes the rent after the term the Devisée brings an Assise for the rent against the Terre-tenant And in this Case seisin by the hands of the Termor was adjudged no sufficient seisin whereupon to ground the Assise but the seisin ought to have béen given by the hands of the Terre-tenant viz. of one the tenant of the Frank-tenement c. Vide suprà Ru. 86. ex 21. It had béen otherwise if the termor for years had béen Lessée for life for then the seisin had béen given by the hands of the Terre-tenant viz. of one that had Frank-tenement as may be collected out of Bredimans Case ubi in margine viz. fol. 58. b. â—â—rantee of a â—â—version â—â—dition 19 If a man make a Lease for years upon condition Co. l. 8. 95. b. 3 in Matt. Mannings Case Co. l. 10. 48. b. 3 in Lampets ca. that if the Lessée doth not such an act that the Lease
35 H. 8. 26 In Debt upon an Obligation to perform Covenants of an Indenture Obligation Covenants c. the Defendant pleads a Release of all Covenants in the same Indenture made five yeares after the date of the said Indenture and this was held no good plea in barre of the Obligation because the limitation of the condition being for the performance of Covenants if any Covenant was broken before the sealing and delivery of the Release the Obligation was thereby forfeit and could not be avoided by the Release Dier 210 24. 4 Eliz. 27 A man deviseth Devise that his Executors shall take the profits of his Land untill his heir shall be at full age to pay Debts c. the one dies after the Survivor makes his Executors and dies also the Executor of the Executor last dying shall take the profits because it is an interest that survives It is otherwise if it had béen but a bare authority Dier 219 8. 5 Eliz. 28 A man deviseth that after the death of his wife Devise his land shall be sold by his Executors unà cum assensu A. and makes his wife and a stranger his Executors and dies the feme dies and A. also dies In this case the authority is determined Dier 242 51. 8 Eliz. 29 Two submitted themselves to an Arbitrament by Recognisance concerning the right and interest of 200 acres of land Arbitrameâ— called Kelstorling and for all other actions and suits concerning the same Ita quòd Arbitrium c. before a certain day The Arbitrators award that the Defendant shall have brakes during his life in the Waste of the Town of Kelstorn rendring to the other 2 s. per annum And upon a Demurrer it was adjudged a void award for three causes 1 Because they made their award but of one thing whereas the submission was of two Howbeit if the submission had been by Parol it had been a good award of part 2 They have not awarded the property of the land whereof the submission was but a profit onely out of the land 3 They have not in their award named Kelstorling and although they might intend it yet an averrement of the parties cannot declaim the intent of the Arbitrators And all this because their power being but a bare authority must be strictly observed 100 And therefore these may be countermanded so cannot those An office without profit discharged with profit otherwise 1 Where the Grantée of an Office hath no profits thereby Co. Inst p. 1. 233. a. 4 c. but onely a Collateral certaine Fée there the Grantor may discharge him of his service as to be a Bailiff Receiver Surveyor Auditor or the like the exercise whereof is onely Labour and Charge to him Howbeit though he do discharge yet he must have his Fée c. But where the Grantée besides his certain Fee hath also profits and availes by reason of his Office there the Grantor cannot discharge him of his service or attendance for that would be to the prejudice of the Grantée As if a man doth grant to another the Stewardship of his Courts of his Manors with a certain Fée the Grantor cannot discharge him of his Service and attendance because he hath other profits and fées belonging to his Office which he should lose if he were discharged of his Office So it is also in the case which Littleton putteth § 379. of the Office of the Kéeper of a Park because in that case also he hath not onely his Fée certain but profits and availes also in respect of his Office as Déer-skins Shoulders c Attornment 2 If a feme sole maketh a Lease for life or years reserving a Rent Co. ib. 310. b. 1. and granteth the Reversion in Fée and taketh husband this is a Countermand of the Attornment Power of Arâ—â—tration cannot be made inevocable 3 If a man be bound by Obligation to stand to abide observe Co. l. 8. 82. a. 3. in Vinyors Case c. the Rule Arbitrament c. of another yet he may countermand the authority so given to the Arbitrator for a man cannot by his act make such an authority power or warrant to be uncountermandable which by the Law and of its own nature is countermandable As if I make a Letter of attorney to make Livery or to sue an action in my name or if I assign auditors to take an accompt or I make one my Factor or if I submit my selfe to an arbitrament albeit these are made by expresse words irrevocable or although I grant or bind my self that all these shall stand irrevocably neverthelesse they may be revoked So likewise if I make my last Will and Testament irrevocable yet I may afterwards at my pleasure revoke it for my act and my words cannot alter the judgment of Law and make that irrevokable which of its own nature is revocable And therefore notwithstanding it is said in 5 E. 4. 3 6. That if I be bound to stand to the award that I S. shall make I cannot discharge that Arbitrament because I have bound my self to stand to his award and that if it were without Obligation it would be otherwise Neverthelesse in the one case and in the other the authority of the arbitrator may be countermanded but then in the one case he shall forfeit his Obligation and in the other case he shall lose nothing for ex unda submissione non oritur actio And with this agrées Brooke in abridging the said Book of 5 E. 4. Vide 21 H. 6. 30. 28 H. 6. 6. 49 E. 3. 9. 18 E. 4. 9. 8 E. 4. 10. 9 E. 4. 4. b. 1 a E. 5. 28 H. 8. Di 22. Perkins 14 E. 4. 8. Perkins 19 6. 4 A licence to come to my house to speake with me Licence Authority Countermandable Presentment Oblige not Goods bailed over to be delivered to J. S. or to bestow in Almes a letter of Attorney to deliver seisin all these may be countermanded before they be done But if I present J. S. to a Church I cannot after varie and present a new for a kind of Interest passeth out of me So if I deliver an Obligation as a sorowle into a strangers hand to be delivered to the Obligée upon a Condition to be performed this cannot be countermanded for upon the delivery there passeth an Interest to the Obligée he being as it were party and privy to the delivery Finch 32. Dier 49. 7. c. 33 H. 8. 5 A man delivers a summe of money to another to the use and behoofe of a Woman Bailment and to deliver it unto her upon the day of her marriage In this Case when a man makes such a conditional gift of his frée will and pleasure and delivers the thing in Ovell hand to kéep to the use of a stranger before that condition be performed the bailment which is but a méere authority is revocable So if
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
afterwards but if execution be sued in the life of the Conusor it shall bind the Survivor So if a Villein purchase lands and bind himself in a Recognisance c. if the Lord enter before execution the Lord shall avoid it But where execution thereof is had before seisure the Lord shall be bound thereby c. Diversity of the grant of an Annuity and of a feoffment 13 If a man grant an Annuity pro una acra terrae or pro decimis c. Co. ib. 204 a. 2 or pro concilio or quod pasturet concilium and the Lord is evicted the tythes disturbed or the Councel refused In these cases the Annnuity ceaseth because this word pro sheweth the cause of the Grant and therefore amounteth to a Condition and then according to the Rule cessante causa cessat effectus But if A. pro consilio impenso c. make a feoffment or a Lease for life of an acre or pro una acra terrae albeit he denyeth Councel or that the acre be evicted yet A. shall not re-enter because in this case there ought to be legal words of condition or qualification for the cause or consideration shall not avoid the State of the Feoffée And the reason of this diversity is for that the state of the land is executed and the annuity is onely executory Condition annexed to an eâ—tate in lands and of a Recognisance or Obligation diversity 14 There is a diversity betwéen a Condition annexed to a state in Lands or Tenements upon a Feoffment Gift in tail Co. ib. 206. a. 3. c. and a Condition of an Obligation Recognisance or such like for if a Condition annexed to Lands be possible at the making of the Condition and become impossible by the Act of God yet the estate of the Feoffée c. shall not be avoided As if a man maketh a Feoffment in Fée upon Condition that the Feoffor shall within one year go to Paris c. and presently after the Feoffor dieth so as it is made impossible by the Act of God that the Condition should be performed yet in that case the estate of the Feoffée is become absolute for though the Condition be consequent to the state yet there is a precedency before the re-entry viz. the performance of the Condition and the state of the Land is executed and setled in the Feoffée and cannot be redéemed back again but by matter subsequent viz. the performance of the Condition So it is also where the Condition is that the Feoffor shall appear in such a Court the next Term and before the day the Feoffor dieth for in that case also the estate of the Feoffée is absolute c. But if a man be bound by Recognisance or Bond with Condition that he shall appear the next Term in such a Court and before the day the Conusor or Obligor dieth the Recognisance or Obligation is saved because the Bond or Recognisance is a thing in Action and executory whereof no advantage can be taken Co. ib. 206. b. 3. until there be a default in the Obligator c. In like manner if a man make a Feoffment upon Condition that the Feoffée shall kill I. S. In that case albeit the performance of the Condition be malum in se and therefore the Condition it self méerly void yet the estate is absolute because executed and setled c. But if a man make a Bond upon Condition that he shall kill I.S. the Condition being unlawful as before and the Bond a thing onely in action and executory they are both void c. 〈◊〉 estate once â—id remediâ—e 15 Where an Estate or Lease is ipso facto void by a Condition or Limitation no acceptance of the Rent after Co. Inst p. 1. 215. a. 1. can make it to have a continuance Otherwise it is of an Estate or Lease onely voidable by entry Co. ib. 226. a. 1. 16 R. brought an Ejectione firmae against E. for ejecting him out of land An estate executed need not plead a Deed. which he held for years of the demise of C E. pleads that B. gave the land to P. and K. his wife in tail who had issue E. the Defendant and after the Donées enfeoffed C. upon condition to demise the land to R. for years the remainder to P. and K c. C. did demise the land to R. but kept the reversion wherefore K. the wife after her husbands decease entred upon R c. for the Condition broken and died after whose decease the Land descended to E. now Defendant Judgment si Action Here exception was taken to this plea because E. maintained his entry by force of a Condition broken and shewed forth no Déed But the plea was ruled to be good because the thing was executed and therefore he had no Déed to shew forth any Déed for indéed he being issue in tail was remitted Co. ib. 236. b. 4. 17 There is a diversity betwéen inheritances executed Estates executed and executory diversity and inheritances executory as lands executed by Livery c. cannot by indenture of defeasance be defeated afterwards and so if a Disseisée release to a Disseisor it cannot be defeated by Indentures of defeasance made afterwards c. Littl. § 620 621 622. Co. ib. 333 334 18 If Tenant in tail grant the Land to A. for life The like and afterwards grants the Reversion to B. in Fée and afterwards A. dies and B. enters and then the tenant in tail dies In this case the entry of the issue in tail is taken away because the Reversion of B. is executed So it is also where the Tenant in tail grants the Land for yeares and afterwards grants away the Reversion to another for in that case also both the Fée and Frank-tenement are discontinued and the Reversion is executed in the Grantée It is otherwise where the tenant for life survives the tenant in taile for then is not the Reversion executed in the life of the tenant in taile and then is not the issue in taile put to his Formedon but may lawfully enter c. Co. l. 1. 155. b. 2 The Rector of Cheddingtons Case 19 There is a diversity betwéen a Covenant or Agréement An estate certaine uncertaine diveâ—sâ—â—y which is perfect and certain albeit it shall take effect in possession upon some future matter precedent And a Coâ—enant or Agréement imperfect and uncertaine which is to be reduced to certainty by matter ex post facto For in the one case the estate is bound presently in the other case not As 3 Mar. Brook Feoffments al uses 59. It is covenanted betwixt A. and B that the Sonne of A. shall marry the Daughter of B for which B. gives to A. 100 l. and A. covenants with B that if the marriage take not effect that A. and his heires will stand seised of 150 acres in D. to the use of B. and his heires until
Earle of Bedfords Ca. yet the Law in many Cases hath consideration of him in respect of the apparent expectation and possibility of his birth for which sée the opinion of Sanders and Browne in Stowells Case for the avoyding of a fine Pl. Co. fol. vide temps E. 1. Tit. Guard 153. 31 E. 1. Tit. briefe 873. for the Guard of such an infant vide 38 E. 3. 7. 41 E. 3. 11 E. 3. Tit. voucher that he shall be vouched in ventresa mere 3 El. Dier 186. An adulterer counsels the Feme to murder the Infant when it should be borne who doth it accordingly in this Case the adulterer is accessory yet at the time of the counsel given the Infant was in ventre sa mere c. Feofment of Cestuy que use good 17 If Cestuy que use after the Stat. of 1 R. 3. and before the Statute of 27 H. 8. had disseised the Disseisor of his feoffées Co. l. 10. 49. in Lampets Case here the use is suspended and depends in possibility to be revived by the entry of the feoffées and yet if he make feoffment in Fée that is good and shall bind in respect that the Law hath consideration of that possibility of the use A possibility â—ay have a â—eing and be â—â—â—feitted 18 H. possessed of an house for 31 yeares deviseth the profits thereof to I. durante viduitate and after deviseth the term to R. and dies Co. l. 10. 52. a. 3. in Lampets Case viz. Tr. 28 El. Rot. 1674. Harrington Rudyards Case I. by the assent of the Executor enters and purchaseth the house in Fée of L. who covenants with I. that the house shall be frée from all former bargaines c. And in an Action of Debt upon an Obligation for the breach of covenants the defendant pleads covenants performed the Plaintiffe assignes for breach the devise to I. and afterwards to R. and that after I. entring into that covenant I. had maried O. upon whom R. entred and thereupon the Plaintiffe demurres And the great Question in the Case was whether R. at the time of the making of the covenant having onely a possibility the covenant did extend unto it or no And it was resolved that the covenant did extend to that possibility and that the possibility had being for that purpose and might be forfeited 19 Vide infra M. 105. in all â—ands may be â—tailed â—â—gh given â— persons unâ—aried 20 If tenements be given to a man and to a woman Co. Inst p. 1. 25. b 4. which is not his wife and to the heires male of their two bodies they have an Estate taile albeit they be not maried at that time and so it is if lands be given to a man which hath a Wife and to a woman which hath a husband and to the heirs of their two bodies they have presently an Estate taile for the possibility that they may marry c. â—eare-say 21 Such thing as one hath by credible heare-say by the example of Litt. â— 720 are not be neglected but are worthy of observation Co. ib. 377. b. 4 for the apparent possibility that they may be true 105 And therefore nothing to be void which by possibility may be good 1 Vide supra R. 104. e. 1. Co. Inst p. 1. 25. b. 4. Co. l 50. b. in Lampets Case 2 If Lands be given to two husbands and their wives Lands intailed to more than two good and to the heires of their bodies begotten this is not a void Grant for the uncertainty but they shall take a joynt estate for life and several inheritances viz. the one husband and his wife the one moity and the other husband and wife the other moity So if lands be given to a man and two women and the heires of their bodies begotten they have a joynt estate for life and every of them several inheritance because they cannot have one issue of their bodies neither shall there be by any construction a possibility upon a possibility viz. that he shall marry the one first and then the other So it is also when land is given to two men and one woman and to the heires of their bodies begotten c. Co. ib. 45. b. 3. 3 Regularly in every Lease for yeares the term must have a certaine beginning and a certaine end for so Bracton saith A Lease for yeares good though uncertain when it shall begin Terminus Annorum certus esse debet determinatus And Littleton also hath these words Pur terme de certaine ans Neverthelesse although before the time it should take effect in possession or interest it do depend upon an incertainty viz. upon a possibile contingent before it begin in possession or interest or upon a limitation or condition subsequent yet is it not void for that uncerrainty as if A. seised of lands in fée grant to B. that when B. payes to A. xx shillings that from thenceforth he shall have and occupy the land for 21 yeares and after B. payes the twenty shillings this is a good Lease for 21 yeares from thence-forth notwithstanding that uncertainty because it was at first possible the twenty shillings should be paid and that being paid the Lease had from thence-forth a certaine beginning and therefore was not void but good ab initio c. So if A. leaseth his land to B. for so many yeares as B. hath in the Mannor of Dale and B. hath then a term in the Mannor of Dale for 10 yeares this is a good Lease by A. to B. of the land of A. for 10 yeares for albeit there appear no certainty of yeares in the Lease yet because by reference to a certainty it may be made certaine it sufficeth If the Parson of D. make a Lease of his Glebe for so many yeares as he shall be Parson there this cannot be made certaine by any-meanes for nothing is more uncertaine than the time of death Terminus vitae est incertus licet nihil certius sit morte nihil tamen incertus est hora mortis but if he make a Lease for three yeares and so from thrée yeares to thrée yeares so long as he shall be Parson this is a good lease for 6 years for it is possible he may so long continue Parson there and then it is good for so long viz. first for thrée yeares and then for thrée yeares more but for the residue it is uncertaine If a man maketh a Lease to I. S. for so many yeares as I. N. shall name this is not void for the uncertainty for when I. N. hath named the yeares then is it a good Lease for so many yeares A man maketh a Lease for 21 yeares if I. S. shall so long live Here albeit the end of his Lease depends upon an uncertainty viz. upon the time of the death of I. S. which is uncertaine yet because it is possible at last to know the certaine
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.
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
howbeit by act in Law the nature of the action may be changed as if a man make lease pur terme d'auter vie and the Lessée doth waste and then Cestuy que vie dieth In this Case an action of waste shall lie for damages onely because the other is determined by act in Law So likewise if an action of wast be brought against Tenant pur auter vie and hanging the writ Cestuy que vie dieth the writ shall not abate but the Plaintife shall recover damages onely because if Cestuy que vie had died before any action brought the Lessor might have had an action of waste for the damages as afore-said â—t-secke 40 Grant of a Rent-secke without attornment is not good Co. ib. 209. b. 3 for the grantée cannot distraine for it without attornment or seisin otherwise because it is conveyed by the single act of the parties But if there be Lord Mesne and Tenant and the Mesne grant over his mesnaltie by déed the Lord releaseth to the Tenant whereby the mesnalty is extinct by act in Law in this Case if there be a Rent by surplussage it is now changed into a Rent-secke and albeit there be no expresse attornment for it as a Rent-secke and that the quality of that part of the Rent is altered from a rent-service to a rent-secke yet because it is altered by act in Law the attornment to the grant of the mesnalty is a good attornment for that Rent-secke by surplussage Vid. sup 17. â—â—e 41 If an house fall by tempest or other act of God Co. l. 4. 63. 2. 4 Herlakendons Case the lessee for life or years hath special Interest to take the great Timber to build the house again if he will for his habitation but if the lessée pull down the house the lessor may take the great Timber as a thing which was parcel of his Inheritance and in which the interest of the lessée is determined as in Case of trees and for the same reason and yet he may have an action of waste and recover treble damages Co. lib. 5. 5. in the Lord Mortwyes Ca. 42 If Tenant in tail be restrained by Statute to demise his Estate otherwise then by reserving thereupon verum antiquum redditum Demise by Tenant in taile and the Estate being a Mannor consisting of Frée-rents Copi-rents and Lease-rents he demiseth the whole Mannor reserving a rent amounting to the summe of all those rents whereas the demesnes onely were formerly demised rendring rent or if his Estate were two Farmes anciently let viz. one at 20 l. per an and the other of 10 l. per an and he demiseth them both together by one Indenture reserving 30 l. per an In these and the like Cases such demises will onely hold farme during the life of the Tenant in taile and after his death his issue shall avoid them for here the true and ancient rent is not reserved and being thus altered by the act of the party they shall not bind the issue in taile But if there be two Coperceners seised of land in tail which was formerly let at 10 l. per an one of them may demise her part or moity at 5 l. per an and it shall bind her issue so likewise if a Mannor hath béen always demised at 10 l. per an and after a tenancy escheats yet it may be still demised at 10 l. per an and yet it may be said that now the 10 l. per an is not verus antiquus redditus for no rent was ever yet reserved out of the land escheated But these two last Cases differ from the former in as much as Coperceners and the Lord by escheate are in by act of Law and of God which shall not prejudice any But if the Lord had purchased the tenancy it had béen otherwise for then he had béen in by his owne Act and not by Act of Law Co. lib. 5. 22. Laughters ca. 43 When the Condition of an Obligation consists of two parts in the disjunctive and both are possible at the time of the Obligation made Condition disjunctive and after one of them becomes impossible by the Act of God the obligor is not bound to perform either part So if A. be bound to B. upon Condition that if A. marry I. and together which I. do sell the land of I. if then A. do purchase to I. and her heires so much land as the money received for the other land sold amounts unto or else shall leave her worth so much at his death that then c. In this Case albeit A. marry I. and they joine in the sale of her land yet if A. survive I. it is made impossible by the Act of God to perform the first part of the disjunctive condition viz. to convey land unto her and therefore he is also discharged of the last part also Co. l. 5. 85. Sir Henry Knivets Case 44 Tenant for life lets for yeares the Tenant sowes the land Land soveâ— and before the graine is ripe Tenant for life dies here the interest of the graine is in the Lessée for yeares who may lawfully enter and take it when it is ripe for the Tenant for lifes dieth is by act of God which shall prejudice none So if there be Tenant for life remainder in Fée the Tenant for life demiseth for yeares the Tenant for yeares is outed and the Tenant for life disseised the Disseisor lets for yeares the dissors Tenant sowes the land Tenant for life dies before the grain is ripe he in the remainder enters the Lessee of the disseisor enters upon him he in remainder brings an Action of Trespass In this Case he in remainder may justifie his entry but hath no right in the grain also the disseisors lessée may justifie the taking of the grain because of his possession but the méere right of the graine is in the lessée of the Tenant for life and he shall recover in Trespass against the disseisors lessée damages for the graine C. l. 6. 1 2. in Briuertons Ca. See more of this learning in Talbots Case Co. l. 8. 105. in Leyfields Case Co. l. 16. 107 108. 45 If one holdeth land of his Lord by the yearly service of a Spurre Horse or the like and the Lord purchase parcel of the tenancy Intire servâ— such intire services are gone because such service cannot be servered or apportioned and he hath discharged pâ—rt thereof by his owne Act So it is also when the original Act is the Act of the Party mixt with an Act of Law as by recovery in a Cessavit of parcel of the tenancy all the intire services are gone But if parcel descend to the Lord where the tenure is by a spurre horse or the like there it is otherwise because that comes to him singly by Act in Law Howbeit when such service is to be performed by Coperceners where by the Statute
upon an Infant and present Usurpation upon an Infant which Infant hath an Advowson by discent and after the Incumbent die the Infant shall present and if he be disturbed he shall have an Assise de darreine presentment But if the Infant purchase the Advowson and present and after the Church is void and a stranger presents and usurpes upon the Infant and after the Incumbent dies in this Case the Infant shall not have an Assâ—â— of darreine presentment but shall be put to his writ of right because in the first Case he is in by Act in Law viz. discent but in the last Case by act of the party F. N. B. 34. s. 52 If a Feme purchase an Advowson and takes Baron A Feme hath an Advowson and the Church is void and a stranger presents and the Baron suffers this usurpation here by this usurpation the Feme shall be out of possession after the six moneths past and shall be put to her writ of right of Advowson if she had presented before but if she had not presented before she is without recovery howbeit the Law is otherwise where the Feme hath the Advowson by discent or by course of inheritance which is an Act in Law Gâ—ant good without acâ—â—eament 53 The Grantée of a Reversion by Fine shall not have a Writ of Waste against the Tenant before the Tenant hath attorned Fitz. N. B. 60. I but if a Reversion escheat to the Lord he shall have a Writ of Waste against the Tenant without any Attornment Or if the Lord of a Villain claim a Reversion that the Villain hath here also the Lord shall have a Writ of Waste against the Tenant if he make Waste without Attornment So also if the King grant a Reversion by his Letters Patents the Grantée shall have a Writ of Waste without Attornment because the Grantée being in by matter of Record he is conceived in by act of Law in like manner if before or since the Statute of Wills a man deviseth a Reversion to one in Fée the Devisée shall have a Writ of Waste against the Tenant without Attornment for before the said Statute he was in by Custom and since the Statute by force of the same Statute which are acts in Law A writ of â—esne 54 If Tenant for life be distrained by the Lord Paramount for Services Fitz. N. B. 136. g. a Writ of Mesne doth not lye for him against him in remainder or reversion but against the Mesne yet in this Case Tenant in Dower shall have a Writ of Mesne against the Reversioner because she comes to her Estate by Act of Law 55 In real Writs original if one be summoned and severed Co. l. 10. 134. b 2. in Read Redmans Case and afterwards dies which is the Act of God this shall abate the Writ but the taking of Baron or Entry into the Land by the party that is so summoned and severed shall not abate the Writ because these are acts of the party and the Writ by such acts where there is no summons or severance becomes onely abatable Guardian may â—ead without â—ewing a Deed. 56 A man cannot plead in any action Littl. §. 365. Co. Inst p. 1. 225. b. 4. that the Estate was made in Fée Fée-taile or for life upon Condition without vouching a record thereof or shewing a Writing under Seal proving the same Condition but if a Guardian in Chivalry in the right of the Heir entreth for a Condition broken he shall plead the Estate upon Condition without shewing of any Déed because his Interest is created by the Law And so it is also of a Tenant by Statute Merchant or Staple or by Elegit Howbeit the Lord by Escheat Co. ib. 226. a. 1 although his Estate be created by Law shall not plead a Condition to deseat a Frée-hold without shewing a Déed because the Déed doth belong unto him Vide supra Ru. 34. 〈◊〉 â—iry 57 Vide Max. 148. 21. 58 An Action of Debt for a rent reserved upon a Lease for yeares is alwayes grounded upon a privity and if the privity fail Dyer 4. b. 3. 24 H. 8. the action also failes and so it is adjudged in 18 H. 6. that if a man make a Lease for yeares rendring rent albeit the Lessee never enters or occupies the land yet the Action of Debt lyes for the privity But in 9 H. 6. a man makes a lease for yeares rendring rent the Lessor grants the reversion to a stranger the grantée shall never have an action of debt for the rent because he was not privy but a stranger to the first Lease Howbeit when the Law makes a privity it is otherwise as if a Lease be made to one for yeares rendring rent and the Lessée makes his Executor and dies an action of Debt lies against the Executor for the rent because he is made privy by the Law â—portion â—ct of rent 59 At the Common Law there could be no apportionment of rent Dyer ib â—â— by the act of the party but onely by act of Law for if the Tenant before the Statute of Quia Emptores terrarum Anno 18. E. 2. had made a Feoffment in Fée of part of the Tenancy the Lord might distrain in that part for all the rent but at the Common Law if a man had made a Lease for yeares of two acres of Land the one in Borough English and the other in Gavelkind and had issue two Sonnes and died In this Case this rent should be apportioned because this rent discended to them by Course of Law So if Lessée for years make a Feoffment of parcel of the Land leased and the Lessée enter for the Forfeiture into that parcel In this Case also the rent shall be apportioned because this Title of Entry is given to the Lessor by the Law Dyer 246. 68. 8 Eliz. 60 After the Teste of a Writ of Covenant Fine of Feme Sole and the Dedimus potestatem and the Conusance of a Fine taken of a Feme Sole and before the day in Bank to record and engrosse the Concord the Feme takes Baron yet it shall be recorded and engrossed at the Fine of the feme sole for she had done all that in her lay to do And such a fine shall bind the feme and her Heires and also the Baron as it séems for the marriage of the feme was her own Act It had béen otherwise if in that mean time she had died being the Act of God for then the Writ of Covenant had abated 115 Utique fortior est dispositio Legis quam hominis Co. Inst p. 1 310. a. 1. â—87 b. 2. 1 If a reversion be granted to a man and a woman Attornment 〈◊〉 Baron and Feme they are to have moities in law but if they inter-marrie and then attornment is had they shall have no moities and yet by the purport
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
When a man conveys a thing to another by several words which will admit several acceptions Co. l. 2. 35. b. 3. 36. b. 4. Sit Rowland Heywards Case the interest of the thing granted passes presently and the grantée his heires or executors may make their election when and in what manner they will take it And therefore if a man seised of a Mannor part in demesne and part in lease demiseth bargaines and sels it to another for yeares the Lessée may make his election whether he will take it by demise at the Common Law or by bargaine and sale So also in Sir Rowlands Heywards Case in the second Report it was said if a man give two Acres of land habendum the one acre in fée and the other in taile and he alien both and hath Issue and dies in this Case the Issue may bring a Formedon in descender for which Acre he pleaseth for the election was not determined by the grantées death because the Estate past presently by the livery and the issue takes by discent â—e heires Eâ—tion 13 If a feofment be made to two and the heires of one of them Co. l. 2. 61. a. 3 Wiscots Case and he that hath the fée dies and after he Tenant for life dies in this Case the heire hath election to have a Mortdancester or a scire facias or a Formedon in remainder at his pleasure The Lords Eâ—ction 14 If there be Lord and Tenant by Knight-service Co. l. 2. 68. a. 4. in Tookers ca. and the Tenant die his heire within age here the Lord hath election either to seise the Ward or to distraine for the services and waive the Ward Per Popham Election of â—hings in â—gant 15 If Tenant in taile of a Rent Advowson Tithes Common Co. l. 3. 84. a. 4. in the Case of Fines or other such things which lie in grant grants them by déed in fée and dies the grant is not absolutely determined by his death but it is at the Election of the Issue to make the grant voidable or void at his pleasure for if he bring a Formedon for the Rent c. he makes the grant voidable but if he distraine for the rent or claime it upon the land he thereby determines his election and makes it void Co. l. 4. 81. a. 1 in Nokes Case 16 If a man seised of land in fée lets the same for life rendring Rent and besides binds himselfe and his heires to Warranty Election of Warranty here the expresse warranty takes not away the Warranty in Law for if he in reversion grant over his reversion and the Lessée attorn and after is impleaded it is at his Election whether he he will vouch the grantée by the warranty in Law or the Lessor by the expresse warranty Vide 20 E. 3. Tit. Counterplea de Garrantie 7. Co. l. 4. 82. a. 4. in Sir Andrew Corbets Case 17 If a man deviseth demiseth or limiteth by way of use land to another untill 800 l. be raised for the perferment of his daughters and dies Election of entry or actions and the heire or he in Reversion or Remainder enter upon him to whom the Land is devised demised or limited as afore-said and expulse him In this Case it is in the Election of the person so expulsed either to bring his Action and recover the meane profits which shall be accounted parcel of the summe or he may re-enter and hold the Land until he may levie the whole summe and the time in which he was so expulsed shall not be accounted parcel There is the same Law in other Cases viz. of Tenant by Elegit Statute Merchant Statute Staple Guardian who holdes over for the double value If he in the Reversion who is to have the Lands outs them they have such Election as afore-said either to hold over or to bring their action Co. l. 4. 93. a. 4 in Slades Case 18 For money due upon the sale of corne or the like Election of actions it is in the election of the Plaintiffe to bring an Action upon the Case or an Action of Debt 1 For the greater number of Presidents and Iudgment in the point 2 Every contract executory justly implies an Assumpsit 3 Recovery in an Action upon the Case barres in Debt 4 It is the more speedy Action for if the payment be at several days no debt lies till the last this lies upon the first breach 5 It is a formed action in the Register and may lie where Debt lies as appeares there Fol. 97 98 100 103. See Dier 20. 118. 28 H. 8. Gore Woddeys Case Co. ib 94. b. 4. in Slades Case 19 When the Register hath two writs for one of the same Case Election of action it is at the election of the party to take and use either the one or the other and it appeares by divers Cases in the Register that an action upon the Case will lie albeit the Plaintiffe may have for the same thing another formed Action in the Register F. N. B. 94. g. Register 103. b. So if a man hath a Mannor within an Honor and hath a Léet within his Mannor for his owne Tenants if he or his Tenants are distrained by the Lord of the Honor to come to the Léet of the Honor he that is so distrained may have a general writ of Trespas or a special writ upon his Case So if an Officer take toll of him who ought to be quit of toll he shall have a general writ of Trespas or an action upon his Case as appeares by Fizt ibid. If a Prior or other Prelate be riding upon his journey and one distraines the horse upon which he rides when he might distraine other of his goods in this Case he may have a general action of Trespass or an action upon his Case as appeares by the Register fol. 100. F. N. B. 93. b. So if a Sheriffe suffer one in execution upon a Statute Marchant to escape the Conusée may have an Action of debt or an action upon the Case as appeares by the Register 98. b. F. N. B. 93 B. C. So if a man â—ust the Executors of his Lessée for yeares from their terme they may have a special writ upon their Case as appeares F. N. B. 92. g. Register 97. and yet they may also have an Ejectione firmae or Trespass for in all Cases when the Register hath two writs for one and the same Case it is at the election of the party to take either the one or the other 〈◊〉 of 〈◊〉 for 〈◊〉 20 Where a Prior is the Kings debtor Co. l. 5. p. 1. 16. a. 2. in the K. Ecclesiastical Law and ought to have tithes of another spiritual person he may choose either to sue for subtraction of his tithes in the Ecclesiastical Court or in the Exchequer and yet the persons and matter also was Ecclesiastical
appendant in twenty acres of land enfeoff B. of parcell thereof this Common shall be apportioned and B. shal have Common pro rata and if he be invested shall make a speciall prescription for his Common It is otherwise of Common appurtenant which is against common right for by purchase of part of the land in which c. the whole common is extinct Co. l. 6. 58. a 4 Bredimans case Co. ibid. 58. b. 3. 7. Lessee for years pays a rent seck Seisin of Reâ—seck by the Lessee for years not good this is not such a seisin as is required in an Assise against the tenant of the frank tenement and one of the reasons alledged for this resolution is because a rent seck is against common right and therefore shall not be favoured in Law but the seisin ought to be given by the tenant of the frank tenement or seisin ought to be made or given by all the ter-tenants that have interest in the land out of which c. because they are against common right and therefore not favoured in Law Co. l. 8. 105. b. 3. in John Talbots case 8. In most cases where the Lord purchaseth part of the tenancy especially if the tenant hold by an Intire service the whole service is extinct Homage and fealty remaiâ— howbeit although the Lord purchase parcell of the tenancy Homage and Fealty shall remaine for the residue because they are due of common right Co. l. 8. 118. a. 2. in Doctor Bonhams case 9. When an Act of Parliament is against common right and reason Acts against common rigâ— void or repugnant or impossible to be performed the common Law doth controll it and adjudgeth such an Act voyd And therefore in 8 E. 3. 30. Thomas Tregors case upon the Statute of Westm 2. c. 38. and Artic super Car. cap. 9. Herle saith Some Statutes are made against Law and right which those that made them perceiving would not put them in execution The Statute of Westm 2. cap. 21. gives a Writ of Cessavit heredi petenti super heredem tenentem super eos quibus alienatum fuerit hujusmodi tenementum And yet where in 33 E. 3. tit Cessavit 42. there were two Coparceners Lords and Tenant by fealty and certaine rent the one Coparcener had issue and dyes the other and the Neece could not joyne in a Cessavit because the heire could not have a Cessavit for the Lessee in the time of her Ancestor F. N. B. 209. f. and with this accords Plowd Com. 110. and the reason hereof is because in Cessavit the tenant before judgment may render the arrerages and damages c. and retaine his Land and this he cannot do when the heire brings Cessavit for the Lessee in the time of his Ancestor for the arrerages occurred in the life of his Ancestor belong not to him and thereupon because the sayd Act was against common right and reason the common Law as to that point adjudged it voyd Vide plus ibidem Tâ—â—hes due of common right 10. Quota pars viz. decima pars which we call dismes or tythes is an Ecclesiasticall Inheritance collaterall to the estate of the Land Co. l. 11. 13. a. 3. in Bridle and Nappers case which cannot be either extinct or suspended by unity of possession because they are due of common right And therefore if a Prior having a Parsonage impropriate had infeoffed a Lay-man of part of the Glebe yet he should have had tythes against his owne feoffment as it is held in 42 E. 3. 13. a. Vide Hob. 107. The Bishop of Carliles case Certainty in a Leet 11. The Lord of a Leet cannot justifie to distraine for the certainty of the Leet because it is collaterall and against common right Co. l. 11. 44. 2. 45. 2. in Rich. Godfreys case and for the private profit of the Lord of the Leet which the Lord cannot have without prescription and therefore as he ought to prescribe in the principall so ought he to prescribe in the distresse Howbeit although for an amerciament in a Court Baron the Lord cannot distraine without prescription Vide 44 E. 3. 13. yet for a Fine and all amerciaments in a Court Leet distresse is incident of common right And therefore if the certainty be not duely payd the Deciver or Capitall pledge that collects it may first be amerced and then distrained for his negligence Tenant at wil. 12. If Lessor upon a lease at will reserve an annuall rent Litt. S. 72. Co. Inst pars 1. 57. b. he may distraine for the rent arreare or have an action of debt for it at his election because power of distresse is in that case given him of common right and so is also the action â—galty de partition 13. Where Coparceners make partition by Parol Litt. S. 252. Co. ibid. 169. b. and for egalty of partition one of them is to have a rent out of the land in this case shee may distraine for the rent arreare of common right Assize 14. In an Assise of Novel disseisin for Land Dyer 84. a. 81 7. E. 6. or since the Statute of 32 H. 8. 7. for Tithes the ter-tenant need not be named in the Count but onely the disseisor It is otherwise in an Assise of Rent-charge or seck because they are things against common right 145. And therefore it suffereth things against principles of Law rather then the party should be without remedy A speciall case of an entail 1. John de Mandevile by his Wife Roberge had issue Robert and Mawde Michael de Morvile gave certaine Lands to Roberge Co. Inst pars 1. 26. b. 2. and to the heires of John Mandevile her late Husband on her body begotten and it was adjudged that Roberge had an estate but for life and the fee-taile vested in Robert heires of the body of his Father being a good name of purchase and that when he dyed without issue Mawde the Daughter was tenant in taile as heire of the body of her Father per formam doni and the Formedon which shee brought supposed Quod post mortem prefatae Robergiae Roberti filii heredis ipsius Johannis Mandevile heredis ipsius Johannis de prefata Robergia per prefatum Johannem procreat prefatae matildae filiae predict Johannis de prefato de Robergia per prefatum Johannem procreatae sorori heredi predicti Roberti descendere debet performam donationis predictae And yet in truth the land did not descend unto her from Robert but because shee could have no other Writ it was adjudged to be good In which case it is to be observed that albeit Robert being heire tooke an estate by purchase and the Daughter was no heire of his body at the time of the gift yet shee recovered the land per formam doni by the name of Heire of the body of her Father which indeed her brother was
consent to a ravishment and was so resolved in the case of Martin Trotte 32 Eliz. in Communi Banco and accordingly was the Opinion of the Court of Common Pleas Pasch 1. Jac. To this may be added as a like Case The Kings Patentee before he enter c. by all which you may observe a diversity betwixt a right for which the Law giveth a remedy by action and a Title for the which the Law giveth no remedy but by entry onely â—â—â—tinuall â—â—me 17. Regularly Continuall claime cannot be lawfully made Co. ibid. 250. b. 1. Litt. S. 414. but where hee that makes the claime hath present right or title to enter and yet in some cases where a man is left without other remedy a Continuall claime may be made by him that hath right and cannot enter As if Tenant for yeares Statute Merchants Staple or Elegit be outed and he in the reversion disseised the Lessor or he in reversion may enter to the intent to make his claime and yet his entry as to take any profits is not lawfull during the terme So likewise the Lessor or Reversioner may in such case enter to avoyde a collaterall Warranty or the Lessor in that case may recover in an Assise And so as some have holden may a Lessor enter in case of a Lease for life to the intent to avoyde a Descent or Warranty If the Disseisee make Continuall claime and the Disseisor dye seised within the yeare his Heire within age and by Office the King is intitled to Wardship in this case albeit the entry of the Disseisee be not lawfull yet may he make Continuall claime to avoyde a Descent â—â—â—nuall â—â—â—e 18. When a man for feare of death Co. Inst pars 1. 2 53. b. 4. Litt. S. 419. or some corporall hurt dare not make an actuall entry into land hee may approach as neer thereunto as he dare for such feare and claime the Land and this claime which is an entry in Law doth vest the possession and seisin in him for his advantage but not for any thing which may tend to his disadvantage as if he had made an actuall entry into the Land because otherwise he should be left without remedy â—â—lawry 〈◊〉 beyond 〈◊〉 reversable 19. If a Recovery be had against a man in a Precipe by default Co. ibid. 260. b. 3. when he was extra quatuor maria it shall not be reversed by a Writ of Error for that cause for that he is not left without remedy but may have his action of an higher nature or a Quod ei deforceat Howbeit if a man be outlawed in a personall action being then extra quatuor maria he may reverse it by a Writ of Error for otherwise he should be without remedy and besides de Minimis non curat Lex 20. Where a man cannot have advantage of the speciall matter by way of pleading Co. ibid. 283. a. 3. What not pleaded given in evidence he shall be permitted to take advantage thereof in the Evidence for otherwise he should be left without remedy For example the Rule of Law is that a man cannot justifie in the killing or death of a man and therefore in that case he shall be received to give the speciall matter in Evidence as that it was Se defendendo or in defence of his House in the night against Theeves or Robbers or the like Co. ibid. 312. b. 1. 21. If a Seigniory be granted to one for life the remainder to another in fee Attornment Acquittall the attornement of the Tenant to the Tenant for life is an attornement to the remainder also Howbeit if acquittall ought to be made or other priviledge had in such case albeit attornement be made to the Tenant for life and he acknowledge the acquittall c. Yet after his decease hee in remainder shall not distraine untill hee acknowledge the Acquittall also notwithstanding the Attornement of the Tenant for life for otherwise the Tenant should be without remedy Co. ibid. 347. a. 1. 22. By the policy of the Law Abbot capable to sue and be sued The Abbot termed the soveraigne albeit indeed he be but a Monke or secular person dead in Law yet hath he capacity and ability to sue and be sued to enfeoffe give demise and Lease to others and to purchase and take from others for otherwise they who right have should not have their lawfull remedy nor the House remedy against any other that did them wrong Co. ibid. 354. a. 3. 23. Regularly Baron remitted against his own alienation a man cannot be remitted against his owne alienation yet if there be Baron and Feme in speciall tayle and the Baron alien the Land to another in fee and take an estate backe to him and his Wife for their lives in this case the Baron is remitted against his owne alienation as well as the Feme for the Feme cannot be remitted without the Baron be remitted also and rather then the Feme should not by Remitter have remedy and her ancient right restored to her the Baron shall be also remitted against his owne Grant Litt. S. 673. And therefore in that case if there were any remainders in taile upon the speciall taile and last of all a reversion or remainder in fee above them upon taking backe of the estate for lives by the Baron all those in remainder or reversion are also remitted Co. ibid. 376. a. 3. c. 24. By the Rule of Law One that is not heire at Law may be vouched to warranty a Warranty made by the Father descends upon his heire at the common Law and he onely is to be vouched to maintaine the same yet in some cases lest the Voucher should be without remedy they that are not Heire at Law may be vouched As if a man enfeoffeth another of an acre of land with warranty and hath issue two Sons and dyeth seised of another acre of land of the nature of Burrow English the Feoffee is impleaded here albeit the Warranty descendeth onely upon the eldest Son yet may he vouch them both the one as heire to the Warranty and the other as heire to the land For if he should vouch the eldest Son onely then should hee not have the fruit of his Warranty Viz. a recovery in value and the youngest Son onely he cannot vouch because he is not heire at the common Law upon whom the Warranty descendeth So it is also of heires in Gavelkind the eldest may be vouched as heire to the Warranty and the other Sons in respect of the Inheritance descended unto them In like sort the heire at the common law and the heire of the part of the Mother shall be vouched Howbeit the heire at Law may be vouched alone in both these cases at the election of the Tenant sic de similibus In the same manner if a man dye seised of certaine lands in fee having issue
a Son and a Daughter by one venter and a Son by another the eldest Son entreth and dyeth and the land descends to the Sister in this case the Warranty descendeth on the Son and he may be vouched as heire and the Sister as heire of the land In which and the other case of Burrow English the Sonne and heire at Law having nothing by descent the whole losse of the Recovery lyeth upon the heires of the Land albeit they be no heires to the Warranty Warrants 25. If a man doe warrant Land to another without this word Heires his heires shall not vouch and regularly Co. Inst pars 1. 384. b. 4. if hee warrant Land to a man and his heires without naming Assignes his assignee shall not vouch Howbeit if the Father be enfeoffed with Warranty to him and his heires and the Father enfeoffeth his eldest Sonne with warranty and dyeth In this case albeit the Warranty between the Father and the Son is by act in Law extinct yet the Law giveth to the Son advantage of the Warranty made to the Father because otherwise he should be without remedy occasioned by an act of Law which can do no wrong 26. It is against a Rule in Law Co. ibid. 390. a. 1. that a man should vouch himselfe Vide R. 54. Ex. 14. And yet if a man be enfeoffed with warranty to him and his heires of greene acre â—aâ—ranty and is also seised in fee of black acre in Burrow English and having two Sonnes enfeoffeth his eldest Sonne of greene acre in this case if the eldest Sonne be impleaded hee shall vouch himselfe and his younger Brother being heire in Burrow English for otherwise the eldest Sonne should be without remedy because the act in Law Viz. The descent hath determined the Warranty betweene the Father and the eldest Sonne â—arranty by â—â—fe and husbâ—â—d c. 27. Baron and Feme being one person in Law Co. ibid. 290. a. 3. 1. 103. b. 9. Dyer 2. p Mar. 315. b. 1. 15. Eliz. it is against the Rule of Law that they should vouch one another neither shall a Warranty be made use of while it is in suspence And yet if a man enfeoffeth a woman with Warranty and they intermarry and are impleaded and upon default of the Husband the Feme is received in this case the Feme shall vouch her Husband c. notwithstanding the Warranty was put in suspence by the intermarriage So likewise on the other side if a woman enfeoff a man with Warranty and they intermarry and are impleaded in this case the Husband shall vouch himselfe and his Wife by force of the said Warranty Albeit it be against another Rule of Law Viz. 54. before cited that a man should doe an act to himselfe And all this least the Husband or Wife in their severall cases should be without remedy Warranty Câ—parcener 28. Regularly Co. ibid. 174. a. 4. the Feoffee of one Coparcener shall not have ayde of the other Coparcener to deraigne a Warranty paramount And yet if there be two Coparceners and they make partition and the one of them enfeoffs her Sonne and heire apparent and dyeth and the Son is impleaded In this case albeit he be in by the Feoffment of his Mother yet shall he pray in aide of the other Coparcener to have the Warranty And the reason of the granting of this ayde is-for that the warranty between the Mother and the Sonne is by Law annulled and therefore least the Sonne should be prejudiced by Law which can do no wrong and so be left without remedy the Law giveth him albeit he is in by Feoffment to pray in ayde of the other coparcener to deraigne the warranty paramount Co. l. 3. 12. a. 3. in Sir Wil. Harberts case 29. Debt against the Heire In Debt against the heire upon an obligation made by the Ancestor the creditor could not at the common Law have had execution against any part of the Land whereof the debtor was seised in the life of the debtor himselfe but after his decease he might have had all the land descended upon the heire in execution untill he should be satisfied the debt because the common law giving action of debt against the heire if the debtor should not have had execution of the Land against the heire he should not have had any fruit of his action and so should have been left without remedy for the goods and chattells of the debtor did belong to his Executors or Administrators so as if land should not have been lyable to a debt of a common person at the common Law the creditor had been without remedy and yet the common phrase is Lands pay no debts Co. l. 4. 30. b. 3. in Shaw and Thompsons case 30. Dower Copy-hold In a Court Baron the damages to be recovered ought not to exceed forty shillings yet in a Copyhold Mannor where the custome is that a Feme shall be endowed if shee recover Dower with damages in the Lords Court albeit those damages exceed forty shillings yet are they recoverable in the same Court for otherwise shee should be without remedy because they are not recoverable by the common Law but onely in the Court of the Lord by Levari facias Co. l. 5. 88. a. 3. in Garnors case 31. At the common Law No capias in debt at the C. Law if a man had judgement in an action of debt and after judgement outlawed the Defendant in this case the Plaintiff was not at the end of his suit as to any processe to be further sued by himselfe for he could not have a Scire facias nor any other processe upon the Iudgement but was put to his new Originall as it is agreed in 13 H. 4. 1. a. 21 E. 3. 55. and 20 E. 3. Nonability 8. And albeit before the Statute of 25 E. 3. ca. Capias did not lye in debt nor the body of the Defendant before that Statute was subject to execution for debt yet in these cases if the Defendant be taken by Capias ut lagatum at the Kings suit no Laches being in the Plaintiff in continuance of his processe he shall be in execution for the Plaintiff if he will for albeit the property of all the Defendants goods and profits of his Lands are by the Outlawry vested in the King yet rather then the Plaintiff should be without remedy he shall hold him in execution for his debt and for that reason he shall in such case participate of the benefit as well as the King Co. l. 6. 41. b. 1. in Sir Anthony Mildmays case Co. l. 7. 39. b. in Lillingstons case 32. If a man by Deed grant a rent to another for his life Rent sued for by Executors provided that he shall not charge his person in this case if the rent be arreare and the grantee dye his Executors shall charge the person of the grantor
cases the disseisin is immediately to the heire Howbeit in some cases albeit the disseisin be not done immediately to the heire yet the warranty shall not bar him As if the Father be Tenant for life the Remainder to the Son in fee the Father by covin and consent maketh a Lease for years to the end that the Lessee shall make a Feoffment in fee to whom the Father shall release with warranty and all is executed accordingly the Father dyeth this warranty shall not binde albeit the disâ—eisin was not done immediatly to the Son for the Feoffment of the Lessee is a disseisin to the Father who is particaps criminis So it is if one brother make a gift in tail to another and the Vncle disseise the Donee enfeoffeth another with warranty the Vncle dyeth and the warranty descendeth upon the Donor and the Donee dyeth without issue here albeit the disseisin was done to the Donee and not to the Donor yet the warranty shall not bind him The Father the Son and a third person are Ioynt-tenants in fee the Father maketh a Feoffment in fee of the whole with warranty dyeth the Son dyeth the 3. person shall not only avoid the Feoffment for his own part but also for the part of the son he shall take advantage that the warranty commenced by disseisin though the disseisin be done to another If a man commit a disseisin to the intent to make a Feoffment in fee with warranty albeit he make the Feoffment many years after the disseisin yet because the warranty was done to that intent and purpose the Law shall adjudge upon the whole matter and by the intent couple the disseisin and warranty together And all this because such disseisins commence by wrong So it is also of a warranty that commenceth by abatement or intrusion that is when the abatement or intrusion is made of intent to make a Feoffment in fee with warranty for neither shall that bind the right heire no more then a warranty that commenceth by disseisin because they do also commence by wrong Likewise if the Tenant dyeth without heire and the Ancestor of the Lord enter before the entry of the Lord and make a Feoffment in fee with warranty and dyeth this Warranty shall not bind the Lord because it commenceth also by wrong being in the nature of an Abatement Et sic de similibus An unlawfull Fine not suffered to passe 10. This exception in the Statute of Glocester cap. 3. 6 E. 1. Litt. S. 729. 730 731. Co ibid. Co. ibid. 383. a. 3. whereof no Fine is levied in the Kings Court are to be understood lawfully levied And therefore if the Baron will levy a Fine of the Femes Land without the Feme the Iudges being conusant thereof ought not to take it because it worketh a wrong to the Feme and if it be with warranty to the heire also Neither indeed ought the Iudges to take a Fine which worketh a wrong to a third person Dâ—â—â—ni pro teâ—pore difference 11. Domini pro tempore of a Copy-hold Mannor Co. ibid. 58. b. 1. Co. l. 4. 24. p. 29. Eliz. inter Rouse and Arteis who are in by lawfull title though it be onely for years by Statute Merchant Staple or Elegit at will for wardship in Chivalry c. may hold Courts make admittances and grant voluntary Copies of antient Copyhold lands which come into their hands and such voluntary grants by Copy made by such particular Tenants as aforesaid shall bind him that hath the Freehold and Inheritance because all these be lawfull Lords pro tempore Also Disseisors Abators Intrudors Tenants at sufferance c. of such Mannors who come in by tort and hold by defeasible titles may hold Courts and make admittances of ancient Copyhold-lands which shall stand good against them that right have because these are lawfull acts and they are compellable to do them But voluntary Grants by Copy made by Disseisors Abators Intrudors Tenants at sufferance or others that have defeasible titles shall not bind the Disseisee or others that right have because they come in by tort as aforesaid Livery of part not good 12. If Feoffment be made of a Messuage cum pertinentijs Co. l. 2. 32. a. 1. in Beltisworths case the Lessor de parts with nothing thereby but onely that which is parcell of the house viz. the buildings curtilage and garden Howbeit the keeping of the possession of a house or any parcell of the thing demised against tortious entry and expulsion by the Lessor is not onely possession of all that may passe by the name of Messuage or of such parcell but of all the lands c. which are demised therewith by one intire demise in the same County And therefore if a Lease for years be made of an house a close and divers other Lands and the Lessor makes Livery of the Close in the name of the whole in Lease the Lessee being then in the house and no body for him in the close In this case the Livery is void for the possession of the house by the Lessee at the time of the Livery made is possession also of all the Lands c. contained in the demise because it is to preserve the first right and interest of the Lessee against force and the tortious entry of the Lessor It is so also albeit the Lessee had then demised that close by will but otherwise if he had demised it for years for that had made a severance of it from the rest of the Messuage and Lands demised Election lost by wrong doing 13. If one enfeoff another of two acres Co. l. 2. 37. a. 4. in Sir Rowland Heywaâ—ds case to have and hold the one for life and the other in tail In this case the Feoffee hath election to chose which he shall have for life and which in tail Howbeit if before his election he makes Feoffment in fee of both the acres In such case the Feoffor shall enter into which of the acres he pleaseth for the Forfeiture for the Feoffee by his own act and the wrong done to the Feoffor hath lost his election Co. l. 2. 55. b. 4. in Bucklers case 14. Tenant for life leases for years and then grants to A. Estopell to plead partes finis nihil habuerunt for life from a day to come the Lessee for years atturnes after the day the terme expires and A. enters and leases at will the Lessee for life levies a Fine Come ceo c. to the Tenant at will and then the Remainder enters for the Forfeiture In this case the Fine levyed to the Tenant at will is a Forfeiture and the Remainder may thereupon well enter upon the Tenant at will and thereby charge the disseisin And here albeit neither the Tenant for life nor the Tenant at will have any thing in the Land for the interest of the Tenant for life is past away to A.
the Guardian cannot lose the Wardship An Infant payes releif 3. Littleton saith Litt. S. 112. Co. ibid. 83. b. 4. That the heire of a Tenant by Knight-service ought not to pay releife untill his age of twenty one years yet in some case the Heire shall pay releif when he was within that age at the time of the death of his Ancestor As if a man holdeth Lands of the King by Knight-service in Capite and of a common person other Lands by Knight-service and dyeth his heire being within age here the King hath the Wardship both of body and Lands by his Prerogative untill the full age of the heire and therefore in this case the Heire though he be within age shall immediately pay releif to the other Lord for as the Law giveth away the Wardship to the King by reason of his Prerogative so doth it in respect thereof reserve to the other Lord all that conveniently may be reserved viz. his releif The Lord shall not have the body 4. A man seised of Land holden by Knight-service hath issue a Daughter who takes Baron and hath issue a Son Litt. S. 114. Co. ibid. 84. a. 3. the Tenant dyes and also the Mother in this case the Son shall not be in ward for his body living his Father but yet the Lord shall have the Wardship of the Land untill the full age of the Son for albeit in this case the Law doth give the custody of the body to the Father and barreth the Lord thereof yet the Lord shall have the Wardship of the Land by force of the tenure of the first creation thereof So it is also if the Father marry his heire within age and dyeth in this case also the Lord shall have the Wardship of the Land Co. ibid. 88. b. 3. 5. Where the Father is Guardian of his Son for Land holden in Knight-service this is in respect of his paternall naturall custody Father Guardian in socage accountable and therefore in such case he shall not be answerable for his marryage or custody of his Lands but where the Father is Guardian by reason of a tenure in Socage he must by Law be accountable to the Son both for his marriage and also for the profits of his Lands which he should not be if he had the custody of his eldest son in this case as his Father in respect of nature And because the Law doth appoint him to be Guardian in Socage it compels him also to be accountable for the act of Law doth never any man wrong Co. ibid. 134. b. 2. Anic super carta cap. 15. 28. E. 1. 6. Before the Statute of Articuli super cartas In reall actions fifteen dayes returne in all Summons and Attachments in Plea of Land were contained the terme of fifteen dayes and it appeareth not onely by that Statute but likewise by the ancient Authors of the Law who wrote before that Statute that this was the ancient common Law And the reason of giving so many dayes in reall Actions was the Recovery being so dangerous that the Tenant might the better provide himself both of answers and proofes Co. ibid. 132. b. 2. 7. If I be disseised and my Brother release with Warranty Descent upon Profession and is afterwards profest in Religion and thereby the Warranty descend upon me In this case albeit the Law binds me by the Warranty yet I being his heire the Law gives me by descent such Inheritance as my Brother had at the time of his Profession Co. ibid. 137. a. 3. Litt. S. 203. 8. Albeit by an act in Law a man may have damnum Profession dischargeth wardship yet in such case it is alwayes absque injuria as if a Ward enter into Religion and be profest hereby the Lord loseth the Wardship of the Land which may be said damnum for by such Profession the Ward is civiliter mortuus a dead man in the Law and cannot hold any Inheritance neither can the Guardian continue the Wardship of the land because by the civill death of the Ward the Inheritance is descended to another but this damnum is absque injuria for by such Profession the land descends to another who is either to be in Ward or to pay releif And therefore in such case the law giveth the Guardian no remedy neither by any formed Writ nor by Action upon the case Co. Inst pars 1. 138. a. 3. 9. If Tenant for another mans life by his Deed grant a Rent charge to one for twenty one years Cesty que vie dyeth A annuity good the land evicted hereby the Rent-charge is determined and yet the Grantee may have during the years a Writ of Annuity for the arrearages incurred after the death of Cesty que vie because the Rent charge did determine by the act of God and the course of law Actus Legis nemini facit injuriam So it is also if land out of which a Rent-charge is granted be recovered by an eyent title and thereby the Rent-charge is avoyed yet the Grantee shall have a Writ of Annuity because the Rent-charge is avoyded by the course of law and so it was holden in Wards case cited in Co. l. 2. fo 36. in Heywards case against an opinion obiter in 6 H. 6. 42. a. Vide Max. 114. Ex. 13. Co. ibid. 149. a. 1. 10. A. hath common of Pasture sans number in twenty Acres of land Common sans number not apportioned and ten of these Acres descend to A. the common sans number is intire and uncertaine and cannot be apportioned but shall remaine but if it had been a Common certaine as for ten Beasts in that case the Common â—â—â—dition shall be apportioned And so it is also of common of Estovers Turbary Piscary c. And it is to be observed that in none of these cases or the like the descent which is an act in Law shall worke any wrong to the Ter-tenant for neverthelesse he shall have thereby that which belongeth to him for the Act in Law shall never worke any wrong The like 11. Of Common or Corody certaine as for ten beasts Co. ibid. 164. b. 4. so many Dishes in certaine c. partition amongst Coparceners or Apportionment may be made for this can worke no wrong to the Ter-tenant But if a man have reasonable Estovers as House-boot Hay-boot c Appendant to his Free-hold they are so intire that they shall not be divided amongst Coparceners So likewise if a Corody uncertaine be granted to a man and his heirs and he hath issue diverse Daughters this Corody shall not be divided between them there is the same Law also of Common sans number for in these cases and the like if Estovers Common Piscary or Corody uncertaine should be partable amongst Sisters such partition would worke a wrong to the Ter-tenant Co. ibid. 165. a. 1. who should be opprest and over-charged thereby which the Law
the Husband may do of the Wives Land when he is to be Tenant by Courtesie Co. ibid. 47. b. 1. 3. When Cattell are distrained they are to be put in a pound overt Distresse or open within three miles in the same County as into a pinfold made for such purposes or in his own close or the close of another by his consent to the end the owner may give his Cattell meat and drink without Trespasse to any other and then if the Cattell miscarry he that distrains them is excused for it cannot be imputed to any neglect of his the Owner in such case being bound to sustain them at his perill but if the Cattell be put into a pound covert or close as in a house where the Owner cannot come at them in such case they are to be sustained with meat and drink at the perill of him that distraines and he shall have no recompence for the charge of keeping them and if any of them miscarry he shall make them good for in this case it cannot be imputed to the folly or neglect of the Owner if they be worse or miscarry because he could not come at them to sustaine them Co. ibid. 53. a. 2. 3. 4. Waste It is permissive waste in the Tenant to suffer the house to be uncovered whereby the Sparrs or Rafters Planches or other Timber of the House become rotten Howbeit if the House be un-covered when the Tenant cometh in it is no waste in the Tenant to suffer the same to fâ—ll downe for in such case it cannot be imputed to his neglect but the Owners So likewise if a wall be un-covered when the Tenant comes in it is no waste though he suffer it to decay Also if the house fall down by tempest or be burnt by lightning or prostrated by enemies or the like without any default in the Tenant or be ruinous at his coming in and fall downe this is not waste in the Tenant but he may build the same againe with such materialls as remaine and with other Timber which he may take growing upon the ground for his habitation but he must not make the house longer then it was Co. ibid. 53. b. 1. 5. It is waste to suffer a Wall of the Sea to be in decay Waste so as by flowing and re-flowing of the Sea the Meadow or Marsh is surrounded whereby the same becomes unprofitable howbeit if it be surrounded suddenly by the rage and violence of the Sea occasioned by wind tempest or the like without any default of the Tenant this is no waste punishable because it cannot be imputed to the Tenants neglect or default in that case Fl. l. 1. c. 111. According to Fletaes rule Fortuna ignis hujusmodi eventus inopinati omnes tenentes excusant Co. ibid. 55. a. 4. c. 6. Tenant at will particular estates Graine c. sowne Tenant at will shall reape the crop which he sowed in peace before his Lessor determined his will whether it be graine hempe flax or any other annuall profit for it cannot be imputed to his folly that he knew not his Lessors intention that he would determine his will before they might be ripe there is the same Law and reason of Tenant by the curtesie in Dower for life pur anter vie or any other un-certaine estate viz. when the terme will determine and if such Tenant happen to dye his Executors c. shall enjoy the crop If Tenant by Statute Merchant sow the ground and then a sudden and casuall profit falleth by which he is satisfied Co. ibid. b. 3. Co. ibid. b. 4. yet shall he have the embleaments causa qua supra And in all these cases it is not materiall whether the graine c. be not ripe or dead ripe ready to be cut for by the same reason they may be taken though they be not ripe they may also be taken when ripe Albeit Littleton saith Apres lembleer devant que les blees sant matures Co. ibid. 55. b. 4. 7. Where there is Lessor and Lessee at will Tenant at will c. notice requisite the Lessor may by actuall Entry into the ground determine his will in the absence of the Lessee but by words spoken from the ground the will is not determined untill the Lessee have notice no more then the discharge of a Factor Attorney or such like in their absence is sufficient in Law untill they have notice thereof â—â—aine sowne Terme uncertaine 8. If Lessee for years that knoweth the end of his terme Co. ibid. 56. b. 4. soweth the Land if the terme determine before he can cut them the Lessor shall have them because the end of his terme was certaine and it was his folly to sow them when he might know beforehand that he could not Inn them in due season Howbeit where a Lease for years depends upon an un-certainty as upon death of Tenant for life being made by him or of a Husband seised in right of his wife or the like there it is otherwise Dying seised â—ardship 9. If there be Lord and Tenant Co. ibid. 76. b. 1. and the Tenant maketh a Feoffment in fee upon Condition and the Feoffor dyeth after his death the Condition is broken the Heire within age entreth for the Condition broken in this case the heire shall be in Ward and yet the Tenant dyed not seised of the Land neither had he any estate or right in the Land at the time of his death but onely a Condition and which was broken after his death Neverthelesse because here is no default in the Lord to bar him of his Wardship and the Condition restoreth the Tenants the Land in nature of a descent for he shall be in by descent therefore shall the heire in this case be in Ward Vide pl. ibid. Guardian in Socage robbed Discharged 10. Co. ibid. 89. a. 3. 4. If a Guardian in Socage having received the rents profits of the Lands of the Minor happen to be robbed of the same without his default or negligence he shall be discharged thereof upon his account so also shall a Bayliff of a Mannor a Receiver a Factor of a Merchant or the like It is otherwise of a Carrier for he by taking his hire doth thereby implicity undertake the delivery of the goods delivered unto him So it is likewise if goods be delivered to a man to be kept or to be safely kept which is all one in Law and after those goods are stollen from him this shall not excuse him for by the acceptance he undertook to keep them safely and therefore he must keep them at his perill But if the goods be delivered unto him to be kept as he would keep his owne there if they be stollen from him without his default or negligence he shall be discharged so if goods be delivered to one as a gage or pledge and they be stollen
with his attornement to the said Duke and after the Duke grants it over to E. 6. in fee by deed enrolled and doth not alleadge expressely that Sir Richard Sackvile granted the reversion by deed but generally quod concessit reversionem hadendam in feodo ad quam quidem concessionem idem querens se inde Atturnavit And in this case the Count per Dyer was good without saying per cartam and without producing it into Court because the Farmer was a stranger to the deed or grant and had not the power of it for that it belonged not to him neither did he convey any title to him under it T. 17. H. 6. Rot. 121. So in an Assise the Plaint was made of Land and rent and the tenant conveyed them unto him by the grant of A. in taile the remainder to the King in fee and prayed Aide of the King without shewing the deed and without saying concessit tenementum per cartam habuit Auxilium c. Feomedon 28. In a Formedon in Reverter the doner need not shew the pedigrees of the issues of the donee nor who was last seised Dyer 216. 56 4. Eliz. because he is a stranger to the pedigree and by intendment cannot come to the knowledge of it It is otherwise in a Formedon in discender Quaete in Remainder Appeal 29. The Lessee of a Parson brings an Ejectione firmae Dyer 240. 46. 7. Eliz. the defendant pleads that the parson was deprived the Plaintiff saith that the parson hath appealed to the Arch-Bishop of Canterbury in Curia sua prerogativa de Arcubus and because the words of the Statute of 24. H. 8. 12. are the appeal that shall be to the Arch-bishop of the Province or c. without limiting any Court in certaine the Defendant demurred And these words to the Arch-Bishop of Canterbury were held sufficient because of substance c. And in this argument although it appeared by the Civilians that the Arches were not the Praerogative Court yet because the Defendant did not shew it but demurred generally the Temporall Iudges were not bound to take notice of their Iurisdictions Formedon in Rem 30. In a Formedon in Remainder brought upon a Remainder in use after the Statute of 27. H. 8. It was held by the Justices Dyer 277. 58. 10. Eliz. that the demandant need not shew the deed of the remainder 1. because in this case the remainder might be created without deed 2. for that the deed did appertaine to the feoffees and not to Cestuy que use and therefore might not be in his power to produce Hob. 51. Holmes and Twist 30. A. being possest of 10 tunne of woad sels to B. one tunne thereof Assumpsit for which B. promiseth to pay him according to such rate as he should sell the rest for A. sels the rest after the rate of 23 l. the tunne In this case A. shall not recover the 23 l. of B. before he hath acquainted B. at what rate he sold the rest because the price is a secret thing betwixt A. and his other chapmen whereof B. is not bound to take notice as it was adjudged upon a Writ of Error in the Exchequer Chamber T. 12. Jac. Rot 1758. 152. Nor to do that which were in vain for him to do Litt. S. 103. Co. Inst pars 1. 79. a. 2. 1. If an heire female be married within the age of 14. in the life of her ancester and the ancester die she being still within the age of 14 Tender of marriage the Lord shall have but the ward of the land untill her age of 14 and shall not within the two years after tender her marriage according to the Statute of Westminster 1. cap. 22. for that is without the case of the Statute it being in vaine for the Lord to tender her marriage when she is already married Natura non facit vacuum nec Lex supervacuum Litt. S. 179. Co. ibid. 119. a. 3. 2. If a villaine purchase a reversion Claime by Lord. the Lord after attornment ought to claime it upon the land to entitle himselfe thereunto so it is also of a rent common or other inheritance issuing out of land but if a villaine purchase the seigniory or a rent common or c. issuing out of the land of the Lord himselfe it is said that the seigniory rent common c. are extinguished in the Lords possession without any claime for it is needlesse to claime them upon the Land when he himselfe is possessed of the land out of which they are issuing Co. ibid. 123. b. 3. 3. A villain shall not have an appeal of Robberie against his Lord Appeal Lord and Villain for that the Lord may lawfully take the goods of the villain as his owne and then it would be in vaine to bring an appeale against the Lord for taking his owne goods Litt. S. 194. Co. ibid. 126. b. 3. 4. If the Lord mayhem his villain Appeale of mayhem he may be indicted for it at the suite of the King and thereupon make Fine for his offence but the villain shall not have an appeale of mayhem against his Lord because in such appeale he shall recover onely damages which the Lord after execution may take againe and so the Iudgement would become inutile and illusorie and sapiens incipit a fine And the law never giveth an action where the end of it can bring no profit or benefit to the Plaintiff Litt. S. 273 Co. ibid. 178. b. 4. 5. A man seised of 30 acres of land of equall value Hochpot and having two Daughters gives 15 acres with one of them in frankmarriage and dies and the other 15 acres descends to the other Daughter In this case there shall be no casting into hochpot because the lands were of equall value at the time of the partition for it were in vaine to put them into hochpot being equall no alteration since by the act of God or otherwise whereby the lands are bettered or impared being to be had in consideration Co. ibid. 19â— b. 1. 6. If there be two tenants in common of a rent as money graine Tenants in common or any severable thing and they be disseised thereof they shall bring severall assises for the recoverie thereof because they have it by severall titles Howbeit if the rent be a Hawke horse or any other intire thing which cannot be severed they shall joyne in an assise for it because the Law will never enforce a man to demand that which he cannot recover and a man cannot recover the moitie of an Hawke horse or the like Lex neminem cogit ad vane seu inutilia Co. ibid. 218. a. 4. 7. If I grant a rent charge in fee out of my land upon condition Claime not needfull there if the condition be broken the rent shall be extinct in my hand because I that am in
B. for that the words In forma predicta do include the other but if a man let Lands to A. for life the Remainder to B. in Taile the Remainder to C. In forma predicta this Remainder is void for the uncertainty Co. ib. 34. b. 1. 5. In Dowment Ad ostium ecclesiae to the end it may have certainty Dowment ad â—ostium ecclesiae which is the Mother of quiet and repose and to avoid after contention the Law requireth that it be done openly and may be assigned in certainty to be enjoyed distinctly by it selfe and not in Common Co. ibid. 37. a. 3. Co. ibid. 6. In all cases where the demand of Dower is certaine Assigment of dower as in case of Dower Ad ostum ecclesiae or Ex assensu patris There the wife after the death of her Husband may enter but where the demand is uncertaine as in Writs of Dower at the Common Law there albeit the thing it selfe be certaine yet shall she not take it without Assignment as if a woman bring a Writ of Dower of three shillings rent albeit she ought to be endowed of one shilling yet cannot she after judgement distraine for 12 d. before Assignment because the demand was uncertain So it is if two Tenants in Common be and the wife of one of them bring a Writ of Dower to be endowed of a third part of a moiety and have Iudgement to recover yet cannot she enter without assignment Co. ibid. 34. b. 3. albeit the Assignment cannot give her any certainty because her Husbands Estate was uncertaine So if a woman bring a Writ of Dower of six pounds Rent-charge and she hath judgement to recover the third part albeit it be certaine that she shall have forty shillings yet she cannot distrain for forty shillings before the Sheriff do deliver the same unto her It is otherwise where a Writ demands Land Rent or other things in certaine for there the Demandant after Iudgement may enter and distraine before any Seisin delivered to him by the Sheriff upon a Writ of Habere facias seisinam c. Co. ibid. 45. b. 2. 7. If a man make a Lease for so many yeares as he shall live Lease void this is voyd for the uncertainty Co. ibid. 45. b. 4. 8. If the Parson of D. make a Lease of his Gleab for so many yeares as he shall be Parson there this cannot be made certaine by any meanes The like for nothing is more uncertain then the time of death Terminus vitae est incertus licet nihil certius sit morte nihil tamen incertius quam hora mortilo But if he make a Lease for three yeares and so from three yeares to three yeares so long as he shall be Parson this is a good Lease for six yeares if he continue Parson so long viz. First for three years and after that for three yeares and for the residue uncertaine Co. ibid. 49. b. 2. and Co. ib. 359. â— 3. 9. If A. be to make a Feoffment to B. and C. and their heires without Deed Livery and A. makes Livery to B in the absence of C. in the name of both and to their heires this Livery is void to C. because a man being absent cannot take a Freehold by a Livery but by his Attorney lawfully authorised by Deed to receive Livery unlesse the Feoffment be made by Deed and then the Livery to one in the name of both is good and the reason hereof seems to be because the Feoffment being made without Letter of Attorney or Deed it is uncertaine whether or no he consented thereunto which is apparent by his sealing of the Letter of Attorney or Deed of Feoffment Note That a Deed sealed may be delivered without words because there is sufficient certainty expressed in the Deed what is meant by the Delivery but Livery of Seisin requireth words to expresse it and also Ceremony to the end it may be certainly known what is intended by it And a man absent can neither take nor make Livery without Deed. A Plow-land uncertaine 10. A Fine of so many Acres of Land Meadow and Pasture Co. ibid. 69. a. 4. in certaine is good because the quantity of an Acre is certainly known by the Statute De terris mensurandis but a Fine De una virgata terrae shall not be received for the uncertainty because it containes in some places more in others lesse and therefore Prisot saith well in 35 H. 6. 29. That a Plow may till more Land in one yeare in one Country then in another Rent and Distresse uncertaine 11. There may be a certainty in uncertainty Co. ibid. 96. a. 1. 142. a. 3. as if a man hold of his Lord to sheere all the sheepe depasturing within the Lords Mannor this is certaine enough albeit the Lord hath sometimes a greater and sometimes a lesse number there for this uncertainty being referred to the Mannor which is certain the Lord may distrain for this uncertainty Howbeit no distresse can be taken for any Services that are not put into certainty nor can be reduced to any certainty for Id certum est quod certum reddi potest because Oportet quod res certa deducatur in judicium and upon the Avowry Damages cannot be recovered for that which neither hath certainty nor can be reduced to any certainty A Protection uncertaine 12. A Protection Co. ibid. 130. b. 4. as well moraturae as profecturae must be regularly to some place out of the Realme of England and must be also to some place in certaine as super salva custodia Caliciae c. and not to Carlile or Wales which are within the Realme or the like but it may be to Ireland or Scotland because they are distinct Kingdomes or to Calice Aquitaine or the like but a Protection granted to one c. untill he returne from Scotland was in 1 E. 3. 25. disallowed for the uncertainty of the time So likewise a Protection Quia moratur super altum mare will not serve not onely because as some think that Mare non moratur or for that a great part of the Sea is within the Realme of England but likewise for the uncertainty of the place A Bishops certificate 13. If a Bishop certifie that another Bishop hath certified him Co. ibid. 134. a. 3. that the party which is his Diosesan is excommunicated this certificate upon anothers report is not sufficient for the uncertainty there is the same reason also of an Hear-say in evidence A Villain 14. If the Lord make a Lease to his Villain for life or years by Deed or without Deed this is an infranchisment of the Villain Litt. S. 207. Co. ibid. 138. but if he make him a Lease at will by Deed or without Deed it is no infranchisement because he hath no certainty of his estate but the Lord may put him
out when he will An Earledome to Daughters 15. If an Earle hath his dignity to him and his Heirs and dyeth Co. ibid. 165. a. 3. having issue one onely Daughter the Dignity shall descend to the Daughter and to her posterity as well as any other Inheritance as it fell out in Sampson Leonards case who marryed Margaret the onely Sister and Heire of Gregory Fines Lord Dacre of the South and in the case of William Lord Rosse for in such case there can be no uncertainty when there is but one Daughter or Sister Howbeit where there are more Daughters then one the eldest shall not have the Dignity and power of the Earle viz. to be a Countesse but in such case the King who is the Soveraigne of honor and dignity may for the uncertainty confer the dignity upon which of the Daughters he please Howbeit the Lands shall be divided betwixt them as amongst Parceners for they are divisible and certaine Co. ibid. 211. a. 2. 220. a. 4. 16. If a man be bound to pay twenty pounds at any time during his life at a place certaine Uncertain day of payment the Obligor cannot tender the money at the place when he will for then the Obligee should be bound to perpetuall attendance and therefore the Obligor in respect of the uncertainty of the time must give the Obligee notice that on such a day at the place limited he will pay the money and then the Obligee must attend there to receive it for if the Obligor then and there tender the money he shall thereby save the penalty of the Bond for ever So likewise if a man make a Feoffment in fee upon Condition that if the Feoffor at any time during his life pay to the Feoffee twenty pounds at such a place certaine that then c. In this case also the Feoffor must give notice to the Feoffee when he will pay it for without such notice as aforesaid the tender will not be sufficient Also if A. be bound to B. with Condition that C. shall enfeoff D. on such a day C. must give noâ—â—ce thereof to D. and request him to be on the Land at the day to receive â—he Feoffment and in such case he is bound to seek D. and to give him notice In all which cases it is to be observed that what the contract of the parties leaves uncertain the Law to prevent contention reduceth to a certainty And therefore in such cases Littletons advise is wholesome councell viz. Not onely to limit a certaine place and day Litt. S. 342. Co. ibid. 212. a. 3. but likewise to set down in the Condition a certaine time of the day as betwixt the houres of two and four or the like And indeed it is good in Conveyances to set downe every thing in certainty and particularity for certainty is the mother of quietnesse and repose and uncertainty the cause of variance and contention And therefore for the obtaining of the one and avoyding of the other the best meane is in all assurances to take councell of learned and well experienced men and not to trust onely without advice to a Presiden for as the Rule is concerning the state of a mans body Nullum medicamentum is idem omnibus so in the state and assurance of a mans Lands Nullum exemplum est idem omnibus Co. ibid. 218. a 2. 17. A Lease is made to a man and a woman for their lives upon Condition that which of them two shall marry first Lease on Condition to marry that one shall have the fee they intermarry In this case neither of them shall have fee for the uncertainty Co. ibid. 227. a. 1. 18. If the Iury give a Verdict of the whole Issue and of more Insufficient Verdict c. that is surplusage and shall not stay Iudgement for utile per inutile non vitiatur and necessary incidents required by Law the Iury may find Howbeit a Verdict finding matter uncertainly or ambiguously is insufficient and no Iudgement shall be given thereupon as if an Erecutor plead plene administravit and Issue is joyned thereupon and the Iury finde that the Defendant hath goods in his hands to be administred but find not to what value this is uncertaine and therefore insufficient so a Verdict that finds part of the Issue and nothing for the residue is insufficient for the whole because they have not tryed the whole Issue whereby they are charged As if an Information of Intrusion be brought against one for intruding into a Messuage and one hundred Acres of land upon the generall Issue the Iury find against the Defendant for the Land but say nothing for the House this is insufficient for the whole and so it was twice adjudged viz. H. 25 Eliz. in a Writ of Error in the Exchequer Chamber inter Brace and the Queene and M. 28 29 Eliz. inter Gomersall and Gomersall in account in Banco Regis Co. Inst pars 1. 271. b. 4. 19 A Feoffee to the use of A. and his Heirs before the Statute of 27 H. 8. for money bargaineth and selleth the Land to C. and his Heirs Uncertainty or an use who hath no notice of the former use yet no use passeth by this bargain and sale for there cannot be two uses in esse of one and the same Land and seeing there is no transmutation of Possession by the Ter-tenant the former use can neither be extinct nor altered And if there could be two uses of one and the same Land then could not the Statute of Uses execute either of them for the uncertainty Detinue 20. A Writ of Detinue lyeth for goods delivered or found Co. ibid. 286. b. 2. when the Plaintiff can declare in certain what they are but it lyeth not for money out of a Bag or Chest or for Corne out of a Sack or the like because these cannot be distinguished from other money or Corne So likewise an Action of Detinue lyeth for Charters which concerne the Inheritance of Land if he know them in certaine and what Land they concerne or if they be in a Bag sealed or Chest locked albeit he know not the certainty of them but the Writings or at least the Bag or Chest he must know in certaine otherwise that Action lyeth not And in case of a Bag or Chest it is good to declare if he can of one Writing in certaine for then the Defendant cannot wage his Law which otherwise he may Plaas double and multiplied 21. In dilatory Pleas there may be duplicity and multiplicity of distinct matter for in their time and place a man may use divers of them Co. ibid. 304. a. 3. but in Pleas perpetuall and peremptory there ought not to be duplicity or multiplicity of distinct matter to one and the same thing whereunto severall answers admitting each of them to be good are required for that is not allowable in Law for the
ut supra Uncertain reâ—â—cation 62. A. seised of the Mannor of D. levies a Fine to uses with power of Revocation upon payment of 40 s. to the Conusee Co. l. 9. 106. b. 2. Lady Greshams case in Marg. Podgers case being likewise seised of the Mannor of S. levies another Fine thereof to the same Conusee but to other uses with like power of Revocation upon payment of 40 s. to the said Conusee Afterwards A. payes 40 s. to the Conusee for revocation of all the uses raised upon both the Fines and this payment was testified in writing under the Seales of the parties In this case none of the uses are revoked but the Revocation is utterly void for the uncertainty because two severall summs of 40 s. should have been tendred and not one summ onely for they were severall Indentures and severall Mannore and could not be satisfied by one summ because it was thereby left uncertain which uses and of which Mannor the Revocation was meant Uâ—certaine plea. 63. In debt against an Executor he ought not to plead Co. l. 9. 109 b. 3. Menel Treshams case Quod ipse non habet c. aliqua bona c. praeter bona c. quae non sufficiunt ad satisfacienda debita predicta but he ought to plead Quod non habet c. bona c. praeterquam bona cattalla ad valentiam of a certaine summe Et non ultra quae eiisdem debitis obligata onerabilia existunt c. for the first plea is insufficient for the uncertainty because the Plaintiff cannot reply thereupon so as a certain Issue may be taken â—ncertainty of â—â—e the perâ—â—n 64. When there is uncertainty in the person Co. l. 10. 51. a. 3. in Lampets case to whom a Release or other Grant is made such Release or grant cannot be good And therefore if a Lease for life be made the Remainder to the right heires of I. S. and the Lessee is disseised and the eldest Son of I.S. releaseth to the disseisor and after I. S. dyes In this case the Release is voyd for the uncertainty whether or no he shal be right heir at the death of his Father So likewise in 17 Eliz a man lets to Baron and Feme for 21 years the Remainder to the survivor of them for 21 yeares and the Baron grants over this term here also the grant is void for the uncertainty of the person for albeit of all Chattels reall which are the Femes the Baron may dispose yet in this case neither the Baron nor Feme had any thing untill the Survivor c. Co. l. 10. 90. a. 3. in Doctor Leyfeilds case 65. The reason why colour is given in a Writ of Entre sur disseisin Colour in pleading Writ of Entre in the nature of an Assize and Assize Trespasse c. is for that the Law which prefers and favours certainty as the mother of quiet and repose to the intent that either the Court may adjudge upon it if the Plaintiff demur or that a certaine Issue may be taken upon a certaine point requires that the Defendant when he pleads such a speciall Plea notwithstanding which the Plaintiff may have right shall give colour to the Plaintiff to the end that his Plea should not amount to a generall Issue and so leave all the matter at large to the Iurors which would be uncertaine and full of multiplicity and perplexity of matter Co. l. 10. 117. b. 2. in Rob. Piâ—folds case 66. In Trespasse the Plaintiff counts for damages twenty marks Uncertaine Verdict the Defendant pleads not guilty the Iurors tar damages and costs joyntly at twenty two markes In this case the Verdict cannot stand for it appeares not how much is for damages and how much for costs and therefore the Plaintiff can have Iudgement but for twenty marks for the uncertainty Co. l. 11. 25. b. 1. in Hen. Harpers case 67. An Ejectione firmae brought de omnibus omnimodis decimis in W. without saying garborum faeni lavae c. Uncertaine allegation this is not rightly layd for the uncertainty because there is no certainty alleadged of the nature or quality of the tithes whereupon a certaine Iudgement may be given or execution by habere facias possessione had And this also appeares in an Assize brought de quadam portione decimarum c. in 7 E. 6. Dyer 84. F. N. B. 41. a. 68. The Bishop shall not cite or distraine any to appeare before him to make oath at the pleasure of the Bishop against the will of him Citations that is so summoned or cited for such generall citations which the Bishops make to cite men to appeare before them prosalute animae without expressing any cause in speciall are against Law for which the party greived may sue a prohibition against the Bishop and thereupon an Attachment if the prohibition be not obeyed And such cause ought to be onely Matrimoniall or Testamentary Plow 56. a. 1. Wimbish and Talbâ—ies case 69. A Bar which is certaine to a common intent is good Replicationâ— must be certaine but Replications Titles Pleas in Abatement of Writs and Estoppels ought to containe Certainty for the Law which is grounded upon reason ordaines that Replications which make the Issue should be certaine to the end that neither the Court nor Iurors who trie the Issue should be misled or enveigled by uncertainty and therefore albeit a man may plead in Bar Que estate without shewing how he comes by the estate yet in a Replication if he plead Que estate generally it is not good as it is held in 2 E. 4. but he ought to shew how he comes by the estate for the cause aforesaid Pl. 65. a. 3. Dive and Manninghams case 70. Where a Recovery is had of two hundred Acres An uncertaine Plea upon occasion of pleading that Recovery to plead a Recovery of one hundred Acres inter alia is not good for the uncertainty as in 22 E. 4. in a Scire facias to have execution of two hundred acres of Land the Tenant pleads that since the Scire facias sued I.S. brought a Formedon of one hundred Acres inter alia and recovered and had execution Iudgement of the Writ for that parcell and this Plea was not held good for it is not the right forme of pleading such a Recovery because a Recovery ought to be certainly pleaded to every intent and these words inter alia are certaine to no intent but there it is held that he ought to have pleaded that I. S. brought a Formedon of two hundred Acres whereof those one hundred Acres now in demand are parcell and hath recovered and hath had execution Certainty in Law proceedings 71. The proceedings of a Suit Pl. 84. a. 4. Partridges case the allegations ought to be certaine in one part or other according to the nature of the Suit viz.
sometimes in the count and for want of certainty it shall abate as in 3 E. 4. A man retained in Husbandry brings an Action of debt against a Prioresse for his salary and declares that he was retained with his Predecessor and shewes not the person that retained him this count abated for the uncertainty for it might be that one who had not Warranty retained him for the Predecessor Sometimes the Count and Writ also may be generall without certainty as in Assizes but there the certainty ought to be shewed by the Replication sometimes the Writ Count and Replication may be uncertaine but then the certainty ought to appeare by the Verdict as in a Quare Impedit the value appeares not in the Count nor in the Replication but it will appeare by the Verdict for they shall assesse double damages or damages by halfe a yeare according to the value of the Church so in a Writ of Ward the Iury shall find whether the heire be marryed or not and shall assesse damages for it and yet in the Count or Replication no such matter appeares So likewise in a Detinue the value of the goods shall appeare by the Verdict c. so as certainty ought alwayes to appeare to the Court. Jeofaile 72. In debt upon an Obligation for performance of Covenants Dyer 31. 217. 28 H. 8. whereby the Defendant was bound to do and suffer to be done upon request all such things for the Plaintiffs assurance in certaine Lands as should be devised by councell the Defendant saith that he was not requested the Plaintiff replyes that his councell advised that the Defendant should seal a Release which was required to be done and that the Defendnat refused to this the Defendant rejoynes and saith that he did not refuse and that he was ready to do it And the Court said that this re-joynder was a full Jeofaile and therefore insufficient for the uncertainty for that he waved his bar viz. the request which he ought to have maintained as to have said Quod non fuit requisitus Abayance 73. When the right of Fee-simple is perpetually by Iudgment of Law in abeyance without any expectation to come in esse Co. Inst part 1. 343. a. 3. there he that hath the qualified fee and to many purposes is no more then a bare Tenant for life concurrentibus hijs quae in jure requiruntur may charge or alien it as in case of a Parson Vicar c. when the Patron and Ordinary joyne with him in the Charge or Grant for in this case at the common Law when all that had an Interest in the thing did joyne the Charge or Grant might have been thereby made certaine and infallible but where the Fee-simple is in Abeyance and albeit by possibility it may every houre come in esse yet it is altogether uncertaine when or whether ever or never that may happen In such case the Fee-simple cannot be charged untill it come in esse so as it may be certainly charged or aliened As if a Lease for life be made the Remainder to the right Heires of I.S. Here the Fee-simple cannot be charged or aliened before I.S. be dead in case I.S. dye living the Tenant for life Co. ibid 378. a. 3. but if the Tenant for life happen to dye before I.S. then is the Remainder vanished and gone because it cannot immediatly vest after the death of the Tenant for life Second deliverance 74. Vpon a second deliverance the Defendant being a Widow justifies by an estate for life if she so long continue a Widow Dyer 142 51 c. 3 4. P. M. and averreth not that she is the same woman to whom the estate was made nor that she is still a Widow for which uncertainty and others concerning the place where the Cattell were taken the Plaintiff had Iudgentent c. Inquisition 75. Inquisitio capta apud D. of Land in S. Dyer 208 19. 3 4. Eliz. without shewing in what County either D. or S. is was adjudged insufficient for the uncertainty because upon a Traverse it could not be tryed for want of the knowledge where the Venue should be taken Dyer 254. b. 1. 9 El. 76. In debt for rent arreare the Plaintiff counts Debt for rent arreare that his termor devised to the Defendant the terme and dyed and that the Defendant entred and was possessed and that for arreare of rent the Action accrued to this the Defendant demurs 1. because he hath not alleadged that the Devisor made Executors and that the Defendant entred with their agreement 2. For that he saith not vertute cujus legationis the Defendant was possest for which uncertainties the Count was adjudged insufficient for if the Defendant were in of any other estate or title then as Assignee of the Lessee an Action of debt lyeth not against him for want of privity Dyer 264. 39 9. Eliz. 77. A new Assignment was in one Acre New Assignment terrae sive prati in campo vocat N. the Defendant pleads not guilty but for the uncertainty whether Land or Meadow and also because there was no abuttalls the Iury were discharged Hob. 2. Axworths case 78. In an Action upon the case by Thomas against Axworth Slander the words were This is John Thomas his writing innuendo the Plaintiff and he innuendo c. hath forged this Warrant the Sheriffs Warrant at the Suit of M. Hog against the Defendant Innuendo And in this case it was held that the Innuendo would not support the Action the word Warrant alone being of an uncertaine sense and the matter of the Action shall not be enlarged or ascertained by the Innuendo as Pox innuendo the French Pox. Vide Hob. 6. Miles case 45. Harvies case Hob. 38. Dawtries case 79. Office An office was found by Commissioners after the death of William Dawtry whereupon a Melius Inquirendum went forth and recited but thus Cum per quandam Inquisitionem captam apud Chichester c. and doth not say that it was either by Commission or Writ or before whom and it was held void for the uncertainty and the office also that was taken upon the Melius for by the Melius it ought to appeare that the first office was by warrant c. Hob. 89. Rich and Shere 80. In an Ejectione firmae the Plaintiff counts of a Messuage c. Ejectioâ—e firma with Appurtenances called Dizard in Cornewall to hold for five years the Defendant pleads not guilty whereupon the Plaintiff had Iudgement And the Defendant assignes for Error that the Plaintiff had not shewed in what Towne Parish Hamlet or place the Messuage lay but in the generall County and thereupon the Iudgement was reversed in the Exchequer Chamber 13. Jac. for here was a tryall without a Visne Hob. 90. 81. Vide Hob. 90. Keere and Owen upon an Elegit Elegit Error for omitting the Entry
that a man may grant a Rent charge newly created out of Lands to a man and his Heires upon such a Condition and that in such case it shall be good because the Rent is of his own Creation but this is against the reason and opinion of Littleton Sect. 360. and also against the height and purity of a Fee simple Howbeit the examples aforesaid are to be understood of Conditions annexed to the Grant or Sale it self Condition not repugnant in respect of the Repugnancy and not to any collaterall thing As if A. be seised of Black acre in fee and B. enfeoffeth him of white Acre upon Condition that A. shall not alien black acre the Condition is good because the Condition is annexed to other Land and ousteth not the Feoffee of his power to alien the Land whereof the Feoffment is made and so no Repugnancy to the State passed by the Feoffment And so it is of gifts or Sales of Chattells reall or personall Again A man before the Statute of Quia Emptores terraum might have made a Feoffment in Fee and added further that if hee or his Heires did alien without Licence that then he should pay a Fine this had been good And it is said that then the Lord might have restrained the Alienation of his Tenant by Condition because the Lord had a possibility of Reverter so it is in the Kings case at this day because he may reserve a Tenure to himself Co. ib. 223. b 4. Co. l. 10. 38. b. 4. Mary Portingtons case Co. l. 5. 40. Sir Anthony Mildmayes case 11. If a gift in Taile be made upon Condition that the Donee c. Condition repugnant upon grant of an estate in taile shall not alien this Condition is good to some intents and void to other some for as to all those alienations which amount to any discontinuance of the Estate Taile as Littleton speaketh Sect. 362. or are against the Statute of Westminster 2. the Condition is good without question but as to a common Recovery the Condition is voyd because this is no discontinuance but a Bar and this common Recovery is not restrained by the said Statute of Westminster 2. and therefore such a Condition is repugnant to the Estate Taile for it is to be observed That to this Estate Taile there be diverse incidents First To be dispunishable of Wast Secondly The Wife of the Donee in Taile shall be endowed Thirdly That the Husband of the Feme Donee after Issue shall be Tenant by the Curtesie Fourthly That Tenant in Taile may suffer a common Recovery And therefore if a man make a gift in Taile upon condition to restraine him of any of these incidents the condition is repugnant and void in Law And it is further to be observed That a collaterall Warranty or lineall without assets in respect of the recompence is not restrained by the Statute De donis no more is a common Recovery in respect ot the intended recompence And Littleton ubi supra to the intent to exclude the Common Recovery saith Tiel alienation discontinuance joyning them together Inst pars 1. Co. 224. a. 2. 12. If a man before the Statute Do donis had made a gift to a man The like and to the Heires of his Body upon Condition that after Issue he should not have power to sell this Condition had beene repugnant and void Pari ratione after the Statute a man makes a gift in Taile the Law Tacite gives him power to suffer a common Recovery therefore to add a Condition that he shall have no power to suffer a common Recovery is repugnant and void Co. ibidem 13. If a man make a Feoffment to Baron and Feme in Fee Feoffment to Baron and Feme upon Condition that they shall not alien to some intent this is good and to some other intent it is void for to restraine an alienation by Feoffment or alienation by Deed it is good because such an alienation is tortious and voidable But to restraine their alienation by Fine is repugnant and void because it is lawfull and unavoidable 14. It is sayd that if a man enfeoff an Infant in Fee upon condition Infant that he shall not alien Co. ibid. this is good to restraine alienations during his minority but not after his full age Co. ibid. 15. It is likewise sayd Spirit Corpor. that a man by Licence may give Land to a Bishop and his Successors or to an Abbot and his Successors and add a Condition to it that they shall not without the consent of their Chapter or Covent alien because it was intended a Mortmain that is that it should for ever continue in that Sea or House for that they had it En autor droit for religious and good dses And note That whatsoever is prohibited by the intent of any Act of Parliament may be prohibited by Condition and shall cause no repugnancy Confirmation 16. A Disseisor makes a Lease for one hundred years Co. ibid. 297 a. 2. and the Disseisee confirmes the estate of the Lessee for fifty of those years this is a confirmation of the whole terme for when he had once confirmed the Lessees estate the whole estate was thereby confirmed and therefore afterwards to limit the terme to fifty years onely when the whole terme was confirmed before is repugnant and void but the Confirmation ought to have been of the Land for part of the terme so likewise might the Disseisee confirme part of the Land for part of the terme c. Vide infra 32. Habendum 17. In a Deed or other Conveyance of Land Co. ibid. 299. a. 2. when the Habendum doth either agree in substance with the Premisses or enlarge them the Habendum is good but when it abridgeth the Premisses it is repugnant and void Vide Dyer 272. 30. Repugnant covenant 18. John de Marre made a Charter to John de Burford of Fee-simple and the same day it was covenanted between them Co. ibid. 217. b. 3. 12 E. 2. Voucher 265. that John de Burford should hold the same Tenements for eight years and if Jo. de Marre did not pay to Jo. de Burford one hundred markes at the end of the terme that then the Land should remaine to Jo. de Burford and his heires In this case the subsequent Covenant was repugnant and void for first the Charter of the Fee-simple was absolute and the Covenant being made after the Charter could neither alter the absolute Charter nor upon a Condition precedent give him a Fee-simple that had a Fee-simple before A saving Repugnant 19. I.S. being seised of certaine Land in Fee Co. l. 1. 47. a. in Alton Woods case the same Land is given by Act of Parliament to the King in Fee saving the Estates Rights c. of all persons In this case the Estate of I. S the owner of the Land is not
ceremony is requisite to the perfection of the Estate and to the Estate limited by the Habendum nothing is requisite to the perfection and essence thereof but only the delivery of the Deed there albeit the Habendum be of a lesse Estate then is mentioned in the premisses yet the Habendum shall stand and the premisses are repugnant and void as it fell out in the principall case in Baldwins case for A. covenants grants and lets to farm to B. and C. and to the heires of C. to have for ninety nine years c. here the Estate for yeares limited by the Habendum took effect by the delivery of the Deed whereas the Estate mentioned in the premisses could not take effect without Livery and for that cause was adjudged repugnant and void Indictment repugnant 30. Where a Wound was given the fourth of August Co. l. 4. 42. b. 2. Heydons case and the party dyed the nineteenth of December after An Indictment against A. and B. as Abbettors to the Felony was drawn in these words Et praed A. B. tempore feloniae murdri praed fact viz. 4 Aug. c. Felonice fuerunt presentes c. ad feloniam murdrum praed in forma praed faciend And this Indictment as to A. and B. the Abbettors was adjudged insufficient for the Repugnancy because no Felony was committed untill the death of the party and none shall be adjudged a Felon by relation which is but a Fiction in Law The like 31. In an Appeale of Murder Co. l. 4. 42. b 4. Humes case the Wound was layd in the Count to be given at Weetwood and the death to be at Westliborne and then he concludes Et sic praed L.O. apud Weetwood praed modo forma praed the said A. H. Felonice c. Murdravit And it was resolved that the Count was repugnant and insufficient for it cannot be said that he murdred him at the place where the wound was given but where the party dyed The like is adjudged in Wrotes case Co. l 4 a 4. Confirmation 32. A Prebend leases for seventy yeares Co. l. 5. 81. a. 4. Foords case the Deane and Chapter being the Patron confirme dimisionem praed in the Forme aforesayd for one and fifty yeares and no farther this confirmes the entire Terme for after the Terme is confirmed one and fifty yeares are repugnant and void It had been otherwise if they had recited the Lease for seventy yeares and then confirmed the Land for one and fifty yeares vide supra 16. Conditions repugnant 33. It hath beene sayd Co. l. 6. 42. b. 4. Sir Anthony Mildmayes case If a man make a gift in Taile upon Condition that he shall not make Feoffment this is a good Condition but if the Condition be that he shall not make a Charter of Feoffment this is not good for this without Livery as Littleton saith fo 15. amounts but to a Tenancy at Will which Tenant in Taile cannot be restrained to do So if a man make a gift in Taile upon Condition that he shall not make a Lease for his owne life this is void and repugnant for when a man makes a gift in Taile which is an Estate of Inheritance and by possibility may continue for ever and thereby makes the Donee the Principall owner of the land he cannot restraine him from doing any lawfull Act or making any Estate which is no Wrong to any and which by the Law he may lawfully do or make Howbeit if a man make a Lease for Life or Yeares with Condition that he shall not alien or demise this is good because the Lessor hath the Reversion whereby he hath power to restraine the Lessee so if a man demise a Copy-hold Mannor for Life or Yeares with Condition that hee shall make no voluntary Grant of any Copy-hold Lands according to the Custome of the Mannor this is good but if a man grant in tail a Copy-hold Mannor with such a Condition the Condition is void for the repugnancy Co. l. 6. 61. a. 3. Gatewards case 34. It was alleadged that the custome of the Towne of S. was Common that every Inhabitant within it had used c. to have Common by reason of Commonancy within a place in the Towne of H. which was another Towne and it was adjudged insufficient for the repugnancy Co. l. 7. 25. a. 2. Buts case 35. A. seised of black Acre in fee Rent Avowry and possessed of white Acre for years grants a Rent-charge to B. for life out of both of them A. distrains and avows in white Acre concluding thus in his Plea Virtute cujus he was seised in dominico suo ut de libero tenemento pro termino vitae suae and the Avowry was adjudged insufficient and repugnant because he could not have a Frank-tenement out of a terme for years Derivata potestus non potest esse major primitiva Max. 26. Co. l. 8. 118. a. 2. in Doct. Bonhams case 36. When an Act of Parliament is against common right and reason Cessavit Act of Parliament repugnant or repugnant or impossible to be performed the common Law shall controle and adjudge such an Act to be void as the Statute of West 2. cap. 21. gives a Writ of Cessavit heredi petenti super heredem tenementum super eos quibus alienatum fuerit hujusmodi tenementum and yet it is adjudged in 33 E. 3. Tit. Cessavit 42. that the Heire should not have a Cessavit The case was this there were two Coparceners Lords and Tenant by Fealty and certaine Rent the one Coparcener hath Issue and dyes in this case the Aunt and the Neice shall not joyne in a Cessavit because the heire cannot have it for the Cesser in the time of her Ancestors in regard the arrearages do not belong to her c. See F. N. B. 209. F. Pl. Com. 110. besides in a Cessavit the Tenant before Iudgement may render the arrearages and damages c. and retaine the Land and that cannot be done when such an heire brings a Cessavit for the Cesser in the time of his Ancestor because the arrearages then incurred belong not to him as aforesaid Co. l. 8. 127. a. 1. The City of London case 37. Where there is a Market overt and correction in any Prescription repugnant a Prescription to sell commodities in private houses or other places out of the open Market is repugnant and void because so the Seller may use deceit and is not subject to search Qui male agit odit lucem omnia delicta in aperto leviora sunt See 11 H. 6. 19. The Prior of Dunstables case Co. l. 9. 58. b. 3. William Aldreds case 38. When a man hath lawful easement or profit by prescription time out of mind another Custome which is also time out of mind Prescription for a way cannot take it away because that were repugnant
and then shall take their remedy over Detinue for writings 24 Regularly Co. l. 1 2 3 in the Lord Buckhursts case the writings that concern land belong to the owner of the land and are to be kept by him yet if I am infeoffed to me and my heirs and I enfeoff another to him and his heirs with warranty my heir shall have a Detinue for the déed by which I was infeoffed and shall Count specially viz. upon the special matter in respect of the special loss and prejudice which he may have for want of the déed in case he should be vouched upon the warranty which I made to my feoffée Vide 10 E. 4. 9. b. Rent extinct 25 Tenant in tail remainder in tail Co. l. 1. 62. b. Caples case he in remainder grants a rent charge out of the land and then Tenant in tail in possession suffers a recovery In this case the rent is extinct and gone for it were inconvenient that the land should be subject to the charges both of the tenant in possession and of him in remainder also as to be charged with the statutes or recognisances of tenant in tail and also of him in remainder simul et semel whereas tenant in tail in possession having power to dock both his own estate and the estate of him in remainder by possibility it might never come in possession to him in remainder Fraudulent Conveyances 26 Where a man conveyes his land to the use of himself for life Co. l. 3. 82. b. 2. Standen Bullocks case in Twines case per Warmsley Just from Sir Ch. Wray Ch. Just per tot cur and after to the use of divers others of his blood with future power of revocation as after such a feast or after the death of such a man and afterwards and before the power of revocation commenced he for a valuable consideration bargains and sells the land to another and his heirs this bargain and sale is within the remedy of the Statute of 27 Eliz. cap. 4. for albeit the Statute saith The said first conveyance not by him revoked according to the power by him reserved which séems by the literal sence to be meant of a present power of revocation for no revocation can be made of a future power until it come in esse yet it was held that the intent of the Act was that such voluntary conveyance which was originally subject to the power of revocation be it in praesenti or in futuro shall not stand against the purchasor bonâ fide for valuable consideration if any other construction should be made the said Act would serve for little or no purpose for then it would be no hard matter to evade it So likewise if A. reserve a power of revocation by the assent of B. and after A. bargains and sells the land to another this bargain and sale is good and within the remedy of the said Act for otherwise the good provision of the Act by a small addition and knavish invention might be defeated The like 27 In 38 Eliz. in C. B. betwixt Lee and his wife executrix of one Smith plaintif and Mary Colshil executrix of Th. Colshil defendant Co. l. 3. 82. b. 4. Colshils case reported in Twines case in debt upon an obligation of 1000 marks Rot. 1707. The case was this Colshil the testator had the office of a Customer by Letters patents to him and his deputies and by indenture betwixt him and Smith the testator of the plaintif and for 600 l. paid and 100 l. per annum to be payd during the life of Colshil makes deputation of the said office to Smith and Colshil covenants with Smith that if Colshil dye before him that then his executors should repay unto him 300 l. and divers covenants were in the said Indenture concerning the said office and enjoyment thereof and Colshil was bound to Smith in the said obligation to perform covenants and the breach was alleged for the non-payment of the said 300 l. for that Smith survived Colshil And albeit the said covenant to repay the 300 l. was lawfull yet in as much as the residue of the covenants were against the Statute of 5 Ed. 6. cap. 16. the obligation was adjudged voyd because if the addition of a lawfull covenant should make the bond of force as to that the Statute would serve for little or no purpose Vide plus ibid. Co. l. 4. 122. b. 4. in Bustards case 28 The Rule of Law is Exchange that exchanges ought to be of equal estates and yet if A. hath a reversion in fée of an acre of land expectant upon an estate for life and makes an exchange with B. by déed indented and gives this acre by name of an acre of land and not by the name of the reversion in exchange for another acre In this case albeit B. expect to have the acre so given to him in possession yet in as much as nothing passes by the grant of the acre of land but the reversion the warranty or condition in Law annexed to the exchange cannot by the Law extend to more than passed by force of the exchange for they are incident and annexed to the estate which is given and cannot extend to the franktenement which was in the lessée because if the Law should be otherwise great mischief would ensue for if an exchange be made of divers Manors and peradventure divers parcels of them are in lease for life In this case if the exchange should be voyd because it was not made as of a Manor in possession that would avoid all such exchanges which would be mischievous and there can be no mischief on the other part for when the tenants for life are in possession of the Land it will be imputed the laches and folly of the purchasor that he did not discover it by Survey or some other enquiry Co. l. 5. 90. a. 2. in Hoes case 29 Regularly all writs directed to the Sherif ought to be returned Executions for so the Sherif is by them commanded to do if a Capias in process be not returned the arrest is tortious so likewise an Elegit because the extent is to be done by an Inquest and not by the Sherif alone if it be not returned it is not valid nevertheless in all writs of execution when the Sherif alone doth it as Capias ad satisfaciendum habere facias possessionem or seisinam fieri facias Liberate c. if the execution be duly made it is valid albeit the writ be not returned for if the non-return of the writ by the Sherif should cause new execution to be had against the defendant and should leave him to his action against the Sherif that would tend much to the prejudice of the defendant whose goods are already sold by the writ and process of Law for the satisfaction of his debt Again if the sale of the goods by force of
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
implies a warranty nevertheless because for the most part a warranty is contained in a Charter the writ retains the same form and in such cases the words unde chartam habet c. are not material Escheat 17 If a man be condemned to be hangd for felony and happen to die after such judgement and before execution thereof by the officer F.N.B. 144. b. yet the writ of Escheat shall say pro quo suspensus fuit c. and it is not material whether he be hanged or no but the writ retains that form because for the most part after such judgement the felon is hanged 192 Frequentia Actus multum operatur Fine Non-claim 1 A. possessed of divers lands in D. for years at will Co. l. 3. 79. b. 2. in Fermors case and by Copy and seised of other lands there in fée demises the whole to B. for life and then 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 five years pass yet is not the Lord barred by his non-claim because in as much as the lessée had lands in fée simple in the same Town the fine shall be presumed to be levied of such lands there whereof it is lawfull to levy a fine and then as for the quantity albeit the fine contain more acres than his own fee simple lands that can prove nothing to pass the Lease or Copy land because it is the common use and practice almost in all fines to insert more acres therein than the lands intended to be passed by such fines do contain Corporation 2 Albeit a Corporation have a Commencement by Charter Co. l. 4. 77. b. in the case of Corporations and by consequence within memory and it be expressed in their charter that the choice of their Maior Bailifs and other principal officers shall be by the Commonalty yet if by a continual usage they have chosen them by a certain select number of the principal of the Commonalty or of the Burgesses albeit no constitution can be shewed to warrant such election yet such election is adjudged good in Law because it it hath been so often put in execution Vide supra 189. 25. Duâ—chy of Cornwall 3 Ed. 3. gave unto the Black Prince the Dukedom of Cornwall Co. l. 8. 21. b. 1. in the Princes case c. habendum et tenendum eidem duci ipsius haeredum suorum Regum Angliae filiis primogenitis et dicti loci ducibus in regno Angliae haereditarie successuris c. This grant was adjudged fee simple and not at will as some would have had it And one of the reasons was because divers Acts both of E. 3. and the Black Prince himself did confirm the same to be fee simple and not any inferiour estate for E. 3. in the 14. year of his reign when he was to make war against Philip de Valois King of France which was but 3. years after the said Charter grants to the Prince by the name of Edward Duke of Cornwall to be Lieutenant of the Realm so long as the King should be beyond sea Then in 21 E. 3. the Prince for a fine of 1000 marks demiseth the Stanneries to Redman rendring 3000 marks rent per annum And divers other Letters Patents were cited in the Princes case in the 8. Rep. to the like purpose all which did confirm the said estate of the Prince to be fee simple For frequentia actus multum adjuvat Vide supra 71 4. Also another reason to prove the title of the Prince to the Dutchy of Cornwall was that ever since the creation thereof which was in the 11 of Ed. 3. in the succession of divers ages it had béen enjoyed according to the said Charter by the eldest son of the Kings of England c. for which sée the book at large 193 It alwayes construeth things to the Best And therefore Co. Inst part 1. 87. b. 3. 1 If a man be seised of a rent charge rent seck common of pasture Guardian Infant under 14. or such like Inheritances which do not lie in tenure and dieth his heir within the age of 14 years In this case the heir may choose his Guardian but if he be of such tender years as he can make no choice then if the father hath made no disposition of the custody of the child the Law adjudged it most fit that the next of kin to whom the Inheritance cannot descend should have the custody of him and whosoever taketh the rent c. the heir shall charge him in an accompt Co. ibid. 98. a. 3. 2 Where an Abbot holding in Frankalmoigne together with his Covent aliens the land to a Secular man he cannot hold as they held Frankalmoigne Socage viz. in Frankalmoigne yet because of necessity he must hold the land of some person and by some service the Law in this case creates and appoints him the lowest and easiest tenure that is viz. to hold the land of the Lord in socage by fealty only which is incident to every tenure Co. ibid. 99. b. 3. so likewise if the Seigniory be transferred to a stranger by act in Law and thereby the privity is altered In such case also the tenure in Frankalmoigne is changed to a tenure in socage by fealty And therefore if there be Lord Mesn and Tenant and the Tenant is an Abbot who holds of the Mesn in Frankalmoigne Here if the Mesn die without heir so as the Mesnalty escheats to the Lord Paramount the Abbot shall hold immediately of the Lord Paramount by fealty only because he cannot hold of him in Frankalmoigne 148 35. Co. ibid. 146. b. 3 3 If a Villein descend to two Coparceners Intire Inheritances this is an intire inheritance albeit the Villein himself cannot be divided the Law hath ordained that the profit of him shall be divided for one Coparcener may have the service one day one wéek c. and the other another day or wéek c. And for the same reason it is that a woman shall be endowed of a Villein viz. to have him every third day wéek or c. Likewise if an Advowson descend to Coparceners the Law hath so ordered it that they shall present by turns Et sic de similibus In all which cases the Law hath contrived and established the best way and order that may be for the parting of Intire inheritances which are otherwise in their nature indivisible Co. ibid. 214. â— 2. 4 If two joyntenants the one for life and the other in fee Iâ—intenants Tenant for life Reversioner joyn in a Lease for life or a gift in tail reserving a rent In this case the rent shall inure to them both for if the particular estate determine they shall be joyntenants again in possession But if tenant for life and he in the reversion joyn in a
just cause the Mulier is barred for ever for the possession of the King when he hath no just cause of seisure shall be adjudged the possession of him for whose cause he seised But if after the death of the Father the Mulier be found heir and within age and the King seiseth In such case the possession of the King is in right of the Mulier and vesteth the actual possession in the Mulier and consequently the Bastard eigne is foreclosed of any right for ever so it is likewise when the King seiseth for a contempt or other offence of the father or of any other ancestor In that case if the issue of the Bastard eigne upon a Petition be restored for that the seisure was without just cause the Mulier is not barred because the bastard could never enter and consequently could gain no estate in the land but the possession of the King in that case shall be adjudged in the right of the Mulier Vide 2 Ass pl. 9. Copyhold 2 If a Copihold estate fall into the Lords hands by escheat Co. l. 4. 31. a. 2. in Frenches case forfeiture or the like and the Lord make a lease thereof for years life or other estate by deed or without deed or if the Lord make a feoffment thereof in fee upon condition and enter for the condition broken or if the Copyhold so forfeited or escheated before any new grant thereof made be extended upon a Statute or Recognisance acknowledged by the Lord or if the feme of the Lord in a writ of Dower hath that land assigned to her In all these cases and albeit these last impediments are by acts in Law yet for as much as all these interruptions are lawful the lands can never after be granted by Copy because after such disposition thereof it was not demised or demisable But if the interruption be tortious as if the Lord be disseised and the disseisor die seised or if the land be recovered against the Lord by a false verdict or erronious judgement In these cases until the land be recovered or the judgement nulled or reversed by the Lord of the Manor the land was not demised or demisable and yet after the land is recontinued it is again grantable by Copy because the interruption was tortious for Non valet Impedimentum quod de jure non sortitur effectum quod contra legem fit pro infecto habetur Restraint to alien 3 If a man make a gift in tail upon condition that the donee shall not alien yet in such case if the donee suffer a Common recovery Co. l. 6. 41. b. 2. in Sir Anthony Mildmayes case that is no breach of the Condition because it is a Conveyance allowed by Law in respect of the intended recompence but if he make a feoffment in fee or any other estate whereby the reversion is tortiously discontinued the donor may enter for the Condition broken for every act which is prohibited by Law or is a tort may be prohibited by condition vide 10 H. 7. 11. So if a feoffment be made to Baron and feme upon condition that they shall not alien yet that doth not restrain their joint alienation by fine because it is lawfull and incident to their estate But their feoffment or alienation by deed is restrained by such a condition for that is tortious and against Law Also if a man enfeoff an Infant in fee upon condition that he shall not alien this cannot restrain him to alien at his full age but during his minority it doth because that is tortious and prohibited by Law Co. l 7. 6 a. 3. in Sendâ—ls case 4 One of the reasons Robbery why the robbing of an house either in the day or in the night is not within the Statute of Winchester for the Hundred to satisfie the damages is for that it is not lawfull for any man to enter into the house of another for the safeguard thereof Co. l. 11. 74. a. 3. Magd. Coll. case 5 Albeit the Friers Carmelites were of a Profession of Religion Carmelites and had not any habitation so as it seemed to be a work of piety and charity to provide an habitation for them yet non facias malum ut inde fiat bonum F.N.B. 36. f. 6 If a man be disseised of a Manor to which an Advowson is appendant Usurpation and the disseisor suffers an usurpation by a stranger to the advowson and after the disseisée re-enters into the Manor he shall present to the advowson when it happens to be void notwithstanding such usurpation Dyer 168. 19. 1 Eliz. 7 Bronker Sherif of Wiltshire to prevent perjury in his office Sheriffs oath did neglect to be sworn in incepto officii which he ought to have done by the antient Common Law of the Realm for which contempt he was fined and imprisoned by decrée in the Star-chamber Dyer 219. 10. 5 Eliz. 8 A man is bound to deliver the key of an house Livery of seisin and quiet possession to the Maior of London to the use of the obligee no person being in the house he locks the door and delivers the key to the Maior out of view A stranger pretending title enters into the house This séems to be no delivery of possession yet verdict was given for it which was afterwards affirmed in Attaint And the reason séems to be for that the impediment was unlawfull 196 Praetextu liciti non debet admitti illicitum Co. l. 11 88. b. 1 in the case of Monopolies 1 The Charter of making and importing Cards being adjudged in the 11 Rep. a Monopoly had a glorious preamble and pretext Monopolies yet was repealed as derogatory to the Kings honor and very pernicious to the Commonwealth And indeed it is true Quod privilegia quae revera sunt in praejudicium Reipublicae magis speciosa habent frontispicia et boni publici praetextum quam bonae et legales concessiones but Praetextu liciti non debet admitti illicitum Dyer 35 6. 33. 29 H. 8. 2 If a lessée hath liberty to fell trées to repair the house Waste and he fells 4. Oaks for that purpose and sells them and buyes 4. other Oaks as good and imployes them towards the repair of the house yet that is waste for the cutting of them down and selling them was a tort so if a man sell the distress which he hath caken and impounded and afterwards finding his error buyes them again and impounds yet their sale is a tort and the impounding of the Cattel afterwards shall not excuse it Dyer 36. b. 38. 29 H. 8. 3 If the lessor be bound to a man in 100 l. and the lessée cuts down 20 Oaks sells them and payes the obligée for the lessor Waste yet an action of waste lyeth against the lessee for felling the trees albeit the money arising upon the sale was converted to the
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
588 589. Co. ibid. 323. b. 3. 3. If my Tenant who payes me a Rent-service in grosse Rent paid to a stranger atturnes and payes it to a stranger this shall not put me out of possession of the Rent albeit the stranger die and a Descent is cast for still I may distraine my Tenant for all in arreare and Nemo redditum alterius invito Domino precipere aut possidere potest Release of warranty 4. If one enfeoff two with warranty Co. ibid 393. a. 1. and the one release the warranty yet the other shall vouch for his moyety A Donative 5. If the Patron of a Church Prebend Chantery Chappell c. Co. ibid. 344. a. 2. Donative doth once present to the Ordinary and his Clerk is admitted and instituted it is now become presentable and shall never be Donative after and then also Laps shall incur to the Ordinary as it shall of other Benefices presentable but a Presentation to such a Donative by a stranger and admission and institution thereupon is meerly void Debt Execution 6. If the Defendant in debt dye in execution Co. l. 5. 86. b. 4. in Blumfeilds case the Plaintiff may have a new execution by Elegit or Fieri facias because the Plaintiff shall not be prejudiced nor the Defendant take benefit by the act or tort of the Defendant in not paying his debt when no default was in the Plaintiff he having pursued the due and ordinary course of Law Lord Mesne and Tenant 7. The King is Lord A. Mesne Co. l. 6. 6. a. 1. in Sir Jo. Molyns case and B. Tenant of the Mannor of D. B. commits treason and after Attainder an Office is found and the Mannor seised into the Kings hand afterwards the King grants the Mannor to C. and his heirs Tenendum de nobis heredibus successoribus nostris aliis capitalibus dominis feodi illius per servicia vide debita de jure consueta These are sufficient words to create a tenure in the Mesne as it was before the Attainder and Forfeiture and the tenure of the Mesne is thereby preserved for it is against reason and equity that the Mesne who did no wrong should lose his services Seisin of rent 8. Where payment of a rent by a Bayliff or Tenant for life Co. l. 6. 59. a. 4. in Bredimans case for years or at will workes a speciall prejudice to the Master or Lessor it shall not be accounted suffcient Seisin thereof as if the Lord hath not had Seisin of his rent within sixty years and the Tenant makes one his Bayliff generally of his Mannor In this case the Bayliff cannot without expresse command of his Master pay this remedilesse rent to the Lord or if he do it otherwise it worketh no Re-seisin thereof so it is also if the Tenant for life for years or at will pay such a rent without order of the Tenant of the Frank-tenement A grant without Attornement 9. If a man be seised of a Mannor part in Lease for life Co. l. 6. 68. a. 1. in Sir Moyle Finches case and other part in Lease for years and he levy a Fine to A. to the use of B. in taile with divers Remainders over In this case B. shall avow for rent or have an Action of Waste without Attornement for when a Reversion is setled in any in Iudgement of Law and he hath no possible meanes to compell the Tenant to atturne and no Laches or default in him in such case he shall avow or have Action of Waste without Attornment for the Rule is Quod remedio destituitur ipsa re valet si culpa absit Quare Impedit abate 10. A Quare Impedit against the Bishop and Incumbent Co. l. 7. 25. b. 4. in Halls case without naming the Patron shall abate for otherwise the Patronage shall be in that case recovered against him who hath nothing in the Patronage and it is against reason that he who is Patron should be dispossest and ousted of his Patronage when he is a stranger and no party to the Writ No damage without notice 11. A. by a writing purporting his Will Co. l. 8. 92 a. 3. in Frances case deviseth Land to B. and his Heires but afterwards without the knowledge of B. enfeoffs C. to the use of B. for life with divers Remainders over provided that B. disturbe not the Executors of A. from carrying away the goods A. dyes B disturbs the Executors the next in Remainder enters upon B. into the Land In this case albeit B. had made disturbance against the words of the Proviso yet he shall not thereby forfeit his terme without notice of the Condition for none shall lose any Estate or Interest which he lawfully hath without some act or default in himselfe and therefore in this case in as much as B. was a stranger to the Feoffment he shall not lose his estate without notice given him of the Proviso Quod nostrum est sine facto sive defectu nostro amitti seu in alium transferri non potest which accords with the opinion of Pophani in Mallories case in the 5. Report 113. b. that the Feoffee of Land or bargaine of a Reversion by Deed indented and inrelled shall not take advantage of a Condition for non-payment of rent reserved upon a Lease upon Demand thereof Co. l. 5. 113. in Mallories case without giving notice thereof to the Lessee The like 12. Co. l. 8. 92. a. 4. in Fraâ—ces case If the estate of the Lord of a Mannor cease by Limitation of an use whereby the use and estate thereof is transferred to another the demand of the rent of a Copy-holder who denies to pay it to him causeth no Forfeiture without giving notice to the Copy-holder of the alteration of the use and estate And so it was adjudged Hill 1. Jac. in Trespasse inter Beconshaw Plaintiff and Southcote and others Defendants So likewise the Bargainee of a Mannor by Deed indented and inrolled shall not take advantage of a Forfeiture of a Copy-holder for denyall of payment of rent without notice to him given of the bargaine and sale for the Law will never compell a man to take notice of acts done amongst strangers Co. ibid. 93. a. 1. or of any uncertainty upon paine of forfeiting a mans Estate or Interest but in such cases notice ought to be given to those that are to suffer the losse It is otherwise when a man binds himselfe to do a thing as to performe an Arbitrement to pay the ovus which such an Auditor assigned shall charge him withall or the like for in such case he takes upon him to doe it Error in a Fine 13. A Fine was levyed of a Mannor and other Lands Co. l. 5. 43. Bohuns case to the value of twenty Marks per annum so as the Kings-silver was forty shillings which was paid but in
entring of it upon the Writ of Covenant the Mannor was omitted and thereupon Error was brought but after that albeit the transcript of the Fine was removed into the Kings B. the Iudges of the Common Place amended the Record because it appeared to them that the Kings-Silver was paid for the Mannor and whereas the Writ of Covenant was Dede meipso for Teste meipso they amended that also and certified it into the K. B. upon Diminution and it was allowed for it was against reason that the Misprision of the Officer or Clerk should prejudice the Conusee when it hapned not by any default or neglect in him Vide Dyer 225. 34. Niâ—i Prius 14. At a Nifi prius the Iury after departure come againe and said Dyer 218. 4. 5 Eliz. that they were all agreed save one who had eaten and drunk thereupon they were re-manded at the request of the Plaintiff and after gave Verdict for him and this was held good Howbeit day was given in Bank to assesse a Fine upon the said Iuror and the Fine was assessed at twenty pounds but the Plaintiff had Iudgment Execution 15. Dyer 244. 61. 8 Eliz. The Solicitor of the Plaintiff and the Sheriff conspire to arrest one condemned in debt and after procure a Capias ad satisfaciendum and the Prisoner being brought into the Court upon the returne of the Writ had the matter examined and it was found ut supra yet because the Plaintiff was not particeps criminis he remained still in execution and the Sheriff and Solicitor were amercied viz. the Sheriff at ten pounds and the Solicitor at five pounds 151. It driveth not a man to shew take notice of or do that which by intendment he knoweth not or should or cannot do Men in one County take no notice of things done in another 1. Because the Inhabitants of one County do not accampany together with men of another County at County Courts Turnes Leetes Co. Inst pars 50. a. 1. and othor Courts therefore in Iudgement of Law they shall take no notice of a Livery in another County to passe Lands in their owne County Waste 2. If waste be done Sparsim here and there in Woods the whole Wood shall be recovered Co. ibid. 54. a. 4. So likewise in Houses so many whole Roomes shall be recovered wherein the Waste is done for it would be impossible or at least inconvenient for the Plaintiff to recover onely part of the Wood or part of the Roomes of the Houses because in such case he could not be able conveniently to make any use of them Protection cast 3. Co. ibid. 131. a. 4. A protection may be cast either by a stranger or by the party himselfe for an Infant Feme covert Monke or any other may cast a protection for the Tenant or Defendant and this difference there is when a stranger casteth it and when the Tenant or Defendant casteth it himselfe for the Defendant or Tenant casting it he must shew cause wherefore he ought to take advantage of the protection but a stranger need not know the cause save onely that the Tenant or Defendant is thereby protected because it is presumed the stranger may not know the cause Co. ibid. 157. a. 2. Dy. 231. Challenge 4. He that challengeth for the Hundred must shew in what Hundred it is and not drive the other party to shew it Not to shew writings 5. If Land be morgaged upon Condition Co. ibid. 226. a. 3. and the Morgagee letteth the Lands for years reserving a rent the Condition is performed the Morgagor re-enters in an Action of Debt brought for the rent the Lessee shall plead the Condition and Re-entry without shewing forth any Deed So in an Assize the Tenant pleads a Feoffment of the Ancestor of the Plaintiff unto him c. the Plaintiff saith That the Feoffment was upon Condition c. and that the Condition was broken and pleads a Re-entry and that the Tenant entred and took away the Chest in which the Deed was and yet detaineth the same In this case the Plaintiff shall not be enforced to shew the Deed. Wager 6. Wheresoever a man is charged as Executor or Administrator Co. ibid. 295. a. 4. he shall not wage his Law for no man shall wage his Law of another mans Deed because the Law presumes he is not acquainted therewith It is otherwise of a Successor to an Abbot for that the House never dyes Acceptance of rent no confirmation 7. P. Leases on Condition the Lessee shall not alien any part Co l. 3. 64. a. 4. in Pennants case the Condition is broken the Lessor before notice accepts the Rent due after This acceptance is no confirmation of the Lease because the Assignment may be so secret that the Lessor cannot know it It is otherwise where a Lease is made rendring rent at a certaine day with clause of Re-entry upon non-payment of the Rent in this case if the Lessor hath advantage of Re-entry upon non-payment of the Rent at the day acceptance of the Rent after confirmes the Lease because the Lessor in such case might know the day and time of payment of the rent Certaine quantities of water not required 8. Co. l. 4. 88. b. 4. in Luttrells case In an Action upon the case for diverting a streame of water from a Mill the Plaintiff may alleadge the diverting of a great quantity of water without shewing how much in certaine for it is impossible to shew how much water in certaine runs by the Mill and the quantity of water is not materiall Co. l. 4. 27. b. 4. in Hubbard and Hamonds case 9. Where a Copy-holder payes a certaine Fine Copy-hold Fines he ought to pay it at the Court upon his admittance but where the Fine is uncertaine the Copy-holder is not bound to pay it presently because he knoweth not what Fine the Lord will assesse nemo tenetur divinare And because he cannot then provide any certaine summe he shall have a convenient time to pay it in case where the Lord limits no certaine time for the payment thereof Co. l 5. 101. a. 2. in Penrud docks case 10. Nusance Quod permiâ—tat A. raiseth an house to the nusance of the curtilage of B. in this case if A. alien his house and B. his curtilage the Feoffee of B. shall not have a Quod permittat against the Feoffee of A. before notice given to the Feoffee of A. to abate the nusance because he was a stranger to it and by consequence might be ignorant thereof Howbeit B. might have brought it against A. without notice for that A. was the Actor of the nusance Co. l. 5. 113. b. 1. in Mallories case 11. Notice requisite to take advantage of a Condition If the Lessor in the absence of the Lessee enter and make Feoffment and the Lessee re-enter albeit
sutes Co. l. 10. 48. a. 3. in Lampets case great oppression of the people principally of terre-tenants and the subversion of the due and equal execution of Iustice the wisdom and policy of the Sages and Founders of our Law have provided that no possibility right title or thing in action shall be granted or assigned to strangers and as they cannot be granted by the act of the party so right of action cannot be transferred by act in Law as unto the Lord by escheat neither shall the Lord of a Villein have things in action as appears in 22 Ass pl. 37. c. Co. l. 3. fol. 1. And in the Marquess of Winchesters case Right of action to land was not given to the King by an Act of Attainder And all this was for the quiet and repose of terre-tenants Howbeit all rights titles and actions may by the like prudence and policy of the Law be released to the terre-tenant for the same reason of his repose and quiet and for the avoidance of contentions and sutes and that every one may live in his vocation in peace and plenty Ecclesiastical livings 26 To preserve Ecclesiastical possessions from alienation in prejudice of the Successor Co. l. 10. 60. a. 3. in the Bish of Sarums case the prudence of the Sages of the Law did provide that no sole Corporation should be trusted with the disposition of his possessions as to bind his Successors but in such case they were to have the consent of others as the Bishop was to have the consent of his Dean and Chapter the Abbot of his Covent the Parson of his Patron and Ordinary sic de caeteris Auditor of the Court of Wards 27 The Law to prevent any miscarriage in matters of Iudicature hath provided Co. l. 11 4. a. 2. in Auditor Curles case that no judicial office shall be granted in reversion and the rule of Law in this point is Officia Judicialia non concedantur antequam vacent And the reason is to prevent a great inconvenience which may insue thereupon for that he who at the time of the grant in reversion may be able and sufficient to supply the office of Iudicature and to administer equal justice to the Kings Liege people may before the office fall become unable and insufficient to perform it And therefore the Kings grant of the office of Auditor of the Court of Wards unto John Churchil and Iohn Tooke in reversion after the death of Walter Tooke and William Curle was adjudged void because it was an office of Iudicature in that Court and therefore could not be granted in reversion Error in London 28 If a man hath judgement given for him in London in the Sheriffs Court F.N.B. 24. a. or before the Maior and Sheriffs in the Hustings of London and the defendant to delay the execution of the judgement sues a writ of Error to remove the Record before the Maior c. in the Hustings or before certain Commissioners if the judgement be given in the Hustings c. and afterwards the defendant eloyns his goods goods out of the City or wasts them to the intent that the plaintif should not have execution of those goods In this case the plaintiff may have a special writ directed to the Maior and Sherifs to take order that so many of the goods of the defendant as amount to the value of that which is recovered may be safely kept to satisfie the plaintif if he shall have the judgement affirmed for him so as execution of the former judgement may be made c. of the same goods c. Security of the Peace 29 Before a man can have security of the Peace against another F.N.B. 79. h. lest the cause of his complaint may arise rather from malice than any just ground of fear the party complainant ought first to make oath that he requires the Peace against the other for the safeguard of his body and not out of malice And this course is stil used in the K. B. and before Iustices of Peace And it was also the usual course in the Chancery to make such oath before a Master of that Court before he could have it granted but of later times that course hath been left in Chancery which Fitzharbert saith is not well done because such prosecution for the most part procéeds rather from malice than any just cause of fear F.N.B. 113 a. 30 The King of right ought to save and defend his Realm as well against the Sea as against Enemies Oyer Terminer for Nusances that it be not surrounded and laid waste and to provide remedy for the same and also to take order that his subjects may have their passage throughout the Realm by bridges and safe wayes c. And therefore if the banks of the Sea be broken or the Sewers and drains be not scowred that the fresh waters may have their direct course the King for the prevention of such damage as may happen by reason of such defaults might by the Common Law before any Commissions of Sewers c. grant commissions to inquire hear and determine such defaults Pl. Co. 67. a. 2. in Dyve Maninghams case 31 The persons mentioned in the second branch of the Statute of 23 H. 6. 10. viz. such as were in ward by Condemnation Bailment exemption Capias utlagatum or excommunicatum surety of the peace or committed by command of the Iustices or Vagabonds refusing to serve were not bailable by the Common Law before that Statute for the Inconveniences which might ensue thereupon Co. l. 5. 83. b. in the case of Market overt 32 No sale of stoln goods but in a Market overt Market overt alters the property And therefore if stoln plate be openly sold in London or elswhere in any other market overt in a Scriveners shop that sale alters not the property because it is no market overt for plate it is otherwise if it be openly sold in a Goldsmiths shop but if the sale be there behind a hanging or Cupboard or in a ware-house or other part of the house and not openly that passengers may observe it such sale alters not the property And this the Law hath ordained to prevent felony c. Vide Max. 191. 3. 134. 14. Co. Iâ—st pars 1. 6. b. 4. 31 It was resolved in the C. B. Pasc 10. Feme covert no witnesse for the Baron Iac. that a wife cannot be produced as a witness either against or for her husband and one of the reasons of that resolution was in respect it might be a cause of implacable discord and dissention betwixt the husband and wife and a mean of great inconvenience H b. 36. Druries case 32 Drury brought a Quare Impedit against Kent the Incumbent and others and upon surmise made to the Court Prohibition that Kent did fell timber upon the Glebe and upon the lands of
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
down a tree where the trees are not exempted this is an implyed determination of the will Lease at will for that it would otherwise be a wrong in the lessor to do it So if a man lease a Manor at will whereunto a Common is appendant and the lessor puts in his beasts to use the Common this is also a determination of the will for otherwise he should be a trespassor Co. ibid. 78. b. 2. 3 By common intendment a will shall not be supposed to be made by collusion for In facto quod se habet ad bonum malum A Will. magis de bono quam de malo lex intendit Co. ibid. 119. a. 3. Littl. §. 179. 4 If there be tenant for life of land the reversion in fee Villein a Villein purchase the reversion and the tenant for life attorns In this case the Lord may justifie to enter upon the Land and claim the reversion and yet shall be no trespassor to the tenant for life for the Law will make construction that he entred to make his claim and not to commit trespass The like Law is also of a reversion after an estate in tail Statute Merchant or Staple Elegit and for years and of the reversion of a Seigniory rent common and any other freehold or inheritance issuing out of any lands or tenements of another Co. ibid. 170. b. 4. If Partition be made by the two Barons in the life-time of their femes coperceners albeit such partition be unequal yet it is not void Pa râ—tion but voidable for it shall be déemed good and lawfull until it be defeated by the entry of either of the femes if she happen to survive her husband There is the like Law of an Infant copercener Co. ibid. 171 a. 4. for it remains good if he defeat it not at his full age Feoffment upon condition 6 If a feoffment be made by deed poll upon condition Littl. §. 376. Co. ibid. 232. and the feoffor haps the deed poll and afterwards the condition is broken wherupon the feoffor re-enters In this case having the deed en poigne albeit it doth not properly appertain to him but to the feoffée yet he may make use of the deed and thereby plead the condition in justification of his entry and title for it will be rather intended that he came to the déed by lawfull Joint trespass than by tortious means Littl. §. 3â—7 So if there be two joynt trespassors and the party trespassed releaseth to one of them In this case also if the other trespassor be sued and have the release en poigne he may plead it in discharge of the trespass causa qua supra Bastard 7 If the husband be within the 4. seas viz. within the Iurisdiction of the King of England if the wife hath issue Co. ibid. 144. a. 2. no proof is to be admitted to prove the Child a Bastard for the question being whether he is legitimate or no the Law will rather deem him legitimate than Proles spurius a bastard And in this case Filiatio non potest probari The like 8 If a man hath issue two daughters the eldest being a Bastard Co. ibid. 244. a. 4. and they enter and enjoy the land peaceably together Here the Law in favour of legitimation will not adjudge the whole possession in the Mulier who indeed hath the only right but in both so as if the Bastard hath issue and dieth her issue shall inherit And in the same case if both daughters enter and make partition this partition shall bind the Mulier for ever The like 9 If the Bastard invite the Mulier to see his house Co. ibid. 245. a. 2. and to see pictures c. or to dine with him or to hawk hunt or sport with him or such like upon the land descended and the Mulier cometh upon the land accordingly this is no interruption because he came in by the consent of the Bastard and therefore the Law will not adjudge the coming upon the land in such case to be any trespass but if the Mulier cometh upon the ground upon his own head and cutteth down a tree or diggeth the soil or take any profit these shall be interruptions For rather than the Bastard shall punish him in an action of trespas the act shall amount in Law to an entry because he hath a right of Entry so it is if the Mulier put any of his Cattel into the ground or command another to do it these do amount to an entry for albeit in these cases the Mulier doth not use any express words of Entry yet these and such like acts do without any words amount in Law to an Entry for acts without words may make an Entry but words without an act viz. Entry into the land c. cannot make an Entry Vide infra 28. M scon inuance 10 If one process be awarded instead of another or a day is given which is not legal this is a miscontinuance of the sute Co. ibid. 325. a. 4. and if the tenant or defendant make default it is good cause of Error but if he appear then is the Miscontinuance salved for albeit in truth his appearance is not legal yet when he appears the Law shall construe it to be lawfull because there is a sute depending against him in Court Dâ—scontinuance of estates 11 If there be tenant for life the remainder in tail Co. ibid. 332 a. 4. and he in the remainder grants it to another in fee by deed and the tenant for life attorns this is no discontinuance of the remainder in tail So it is likewise of a rent charge Advowson in gross Common in gross or the like for the Rule is that a grant by deed of such things as do lie in grant and not in livery of seisin do work no discontinuance and the reason is because the Law makes construction that of such things the grant of tenant in tail worketh no wrong either to the issue in tail or to him in reversion or remainder for in such case the Law adjudged nothing to pass from the tenant in tail but that which he may lawfully grant viz. an estate for his own life Co. ibid. 335. a. 2. 12 If tenant for life make a lease for his own life to the lessor the remainder to the lessor and a stranger in fée Surrender Forfeiture In this case for as much as the limitation should work a wrong by construction of Law it rather inureth to the lessor as a surrender for the one moiety and a forfeiture as to the remainder of the stranger for he cannot give to the lessor that which he had before and as to the remainder to the stranger it is a forfeiture for his moiety and when the lessor entreth he shall take benefit thereof Co. Inst part 1. 381. b. 1. 13 The words of an Act