False plea in Dower 2. In a Writ of Dower Co. ibid. 33. a. 1. if the Tenant being in by discent plead a false Plea he shall answer all the damages from the time of the Husbands death albeit for some part of that time he enjoyed not the Land nor received any profit thereof As it appeares in a notable Record between Belfeild and Rowle Mich. 8 9. Eliz. Rot. 904. in Com. Ba. In which Suite the Tenant as to parcell pleads non tenure and for the residue detainer of Charters upon which Pleas they were at Issue and both Issues found by the Iury against the Tenant and found further that the Husband dyed seised such a day and yeare and had Issue a Son and that the Demandant and the Son for six yeares after the decease of the Husband together took the profits of the Land and after the Son such a day and yeare dyed without Issue after whose decease the Land discended to the Tenant as Vncle and Heire to him by force whereof he entred and took the profits untill the purchasing of the Originall Writ and found the value of the Land by the yeare and assessed damages for the detaining of the Dower and costs of Suit upon which Verdict after much debating the Demandant had Iudgement to recover her damages for all the time from the death of her Husband without any defalcation And this was cheifely caused by his false Plea whereas he might have avoyded the answering of the damages for the six yeares if he had truly pleaded according to the truth of his case Assignment of Dower by a wrong-doer voidable 3. If assignment of Dower be made by any Disseisor Abator Co. ibid. 35. â— 2. in Bredi mans case Co. l. 6. 58. a. 1. Intrudor or any wrong doer in Lands and Tenements if they came to that estate by collusion and covin between the Widow and them albeit the Widow hath just cause of Action and the Assignment be indifferently made after Iudgement by the Sheriff of an equall third part yet shall the Disseisee c. avoid it for covin in this case shall suffocate the right that â—â—pertained to her and so the wrongfull manner shall avoid the matter that is lawfull See Pl. Co. 51. a. Rent-charge extinct by covin 4. If a man grant a Rent-charge out of two acres Co. ibid. 148. b. 3. and after the Grantee recovereth one of the Acres against the Grantor by a title Paramont the whole rent shall issue out of the other Acre but if the Recovery be by a faint title by Covin then the rent is extinct for the whole because he claimeth under the Grantor Forfeiture 5. If Tenant for life plead covinously Co. Inst pars 1. 252. a. 1. to the disherison of him in the Reversion this is a Forfeiture upon Record Avowry Stat. 11 H. 8. 19. 6. The Stat. of 21 H. 8. 19. which gives to the Lord Avowry upon the lands without naming any person certain being made to suppress fraud Co. ibid. 268. b. 2. in the case of Avowry Co. l. 9. 22. a. shall be taken with equity And therefore where the words of the Statute be If the Lord distraine upon the Lands and Tenements holden yet if the Lord come to distrain and the Tenant chase away his Beasts which were within view out of the Land holden and there the Lord distraine Albeit the Distresse be in that case taken out of his fee and Seigniory yet it is within the said Statute for in Iudgement of Law the Distress is lawfull and as taken within his fee and Seigniory because that Statute being made to prevent fraud and covin admits an equitable interpretation as aforesaid So it is also if his Bayliff do it tamen quaere de hoc but for Damage-feasant the Distresse must be taken upon the Land c. Attaint 7. Perjury which is a falsehood or fraud in a high degree is greivously punished by the common Law Co. ibid. 294. b. 2. And therefore in an Attaint which is a Writ that lyeth where a false Verdict in Court of Record upon an Issue joyned by the parties is given if the petty Iury be attainted of a false oath they are stained with perjury and infamous for ever for the Iudgement at the common Law importeth 8 greivous punishments 1. Quod amittat liberam legem imperpetuum viz. that they shall be infamous for ever and never be received to be a witness or of a Iury 2. Ferisfaciant omnia bona catalla sua 3. Terrae tenementa in manus domini Regis capiantur 4. Uxores liberi extra domos suas ejicerentur 5. Domus suae prostrentur 6. Arbores suae extirpentur 7. Prata sua urentur 8. Corpora sua carceri mancipentur And the Law esteemed perjury in this kind the more odious and afflicteth the greater punishment thereupon because the tryalls of all Actions reall personall and mixt depend upon the oath of twelve men and prudent Antiquity inflicted a strange and severe punishment upon them if they were attainted of falsehood and perjury ut poena ad paucos metus ad omnes perveniat for there is miserecordia puniens and there is also crudelitas paucens But this punishment is altered by the Statute of 23 H. 8. cap. 3. Co. ibid. b. 3. 8. The Statute of 23 H. 8. cap. 3. made to prevent perjury and false Verdicts shall be taken with equity for 1. where the Statute saith Attaint Stat. 23 H. 8. 3. that the party greived shall have an Attaint against the party who shall have Iudgement upon the Verdict yet the Attaint shall be maintained upon that Statute against the Executors of that party Howbeit it must be between party and party 2. In the Kings Bench or Common Pleas 3. Consider what Pleas may be pleaded in an Attaint by force of that Statute and what not Litt. S. 675. 9. If a man let Land to a Feme for life A false Recovery and afterwards one sues a feined and false Action against the Feme and recovers the Land against her by default so as the Feme may have a Quod ei deforceat according to the Statute of West 2. cap. 4. The Law gives so much respect to a Recovery Co. ibid. 356. a. 4. 362. a. 1. Co. l. 1. 15. b. 3. that it workes a Discontinuance so as the Reversioner shall not have an Action of Waste c. Howbeit if Tenant for life suffer a common Recovery or any other Recovery by covin and consent between the Tenant for life and the Recoveror this is a Forfeiture of his estate and he in the Reversion may presently enter for the Forfeiture See the Statute of 14 Eliz. cap. 8. concerning this matter and Co. l. 1. 15. Sir William Pethams case l. 3. 60. c. Litt. S. 678. 10. If the Baron discontinue the Land of the Feme Covin
have one Attaint for the false verdict upon the forcible entry and A. shall have another single Attaint for the finding of the detainer Contract by a â—ervant 26 A servant makes a bill Dyer 230. 56. 6. El. testifying the buying of ware to the use of his Master and this without Seale in which he binds himselfe to pay the debt yet In this case debt lyeth not against the servant but onely an Action upon the case for it is the debt of the Master and the Assumpsit of the servant Copihold Dower 27 The Custome of a Mannor is that the Lord the Surveyor Dyer 251. 89. 8 Eliz. or his deputy may demise by copy the Lord deviseth authority to two fo make Customary estates for payment of his debts and dies they hold Court in their own names and grant copies in reversion according to the Custome the Feme of the Lord hath one of the Copiholds assigned by the Sheriffe upon recovery of the third part of the Mannor in Dower And it was held that she should avoid the grant made by the two assigned because she claimes by Title of Dower which is paramount the devise 32 According to the end Knight-service the defence of the Realm 1 The Tenant in Knight-service Co. Inst pars 1 70. b. 2. that is able to performe the Service himselfe may neverthelesse if he please performe it by another as well as he that is sick or an Infant or a Corporation aggregate of many c for Sapiens incipit a fine and the end of this Service is for defence of the Realme And therefore if it be done by an able and sufficient man and the end for which the Law ordained it be effected it is duly performed as it ought to be Tender to the heir female 2 If the Lord tender a comoenable mariage to the heire female within the two yeares Co. Inst pars 1 79. a. 1. 35 H. 6. tit gard 71. and she marry elsewhere within those two yeares the Lord shall not have the forfeiture of the mariage because the onely end which the Statute of West 1. cap. 22. giveth those two yeares is for the Lord to make his tender Co. l. 6. 71. a. The Lord Darcies case or rather that he should not lose the advantage of making his tender And the benefit of those two yeares are given unto him as it were in lieu of the forfeiture in case the heire female should refuse his tender for if he make tender within the two yeares and she accept the same and marry immediately after mariage she is out of ward Errour sued against a villain 3 If Villanage be pleaded by the Lord in an action real mixt Co. Inst pars 1 127. b. 4. 18 E. 4. 6. 7. or personal and it is found that he is no Villaine the bringing of a Writ of Error is no enfranchisement because the end of bringing that Writ against the Villaine is not to commence any new suit against him but onely to defeat the former Iudgement 4 If a Castle that is used for the necessary defence of the Realme Co. Inst pars 1 165. a. 4. Bract. l. 2. fol. 76. Fleta l. 5. c 9. Britton 186 187. Co. ibid. 31. b. 3 descend to two or more Coparceners Castles for defence and others this Castle might be divided by Chambers and Roomes as other houses be but yet for that it is pro bono publico pro defensione regni it shall not be divided for as one saith Propter jus gladii dividi non potest And another saith Pur le droit del esche que ne foeffre division en aventure que la force del Realme ne defaille par taut But Castles ordained for another end viz. for habitation and private use and not for the necessary defence of the Realme ought to be parted betwéen Coparceners as well as other houses and wives may also be thereof endowed but cannot be of Castles for defence c. Co. ibid. 268. b. 2. 5 It is ordained by the Statute of 21 H. 8. cap 19. That Avowry upoâ— distress for rent if the Lord shall distraine upon the lands and tenements holden c. he may then avow c. upon the same lands c. as in lands c. within his Fee or Seigniory c. without naming any person certaine and without making Avowry upon any person certaine c. Here albeit the purview of this Act be general yet all necessary incidents are to be supplied and the Scope and end of the Act to be taken And therefore though he néed not to make his Avowry upon any person certaine yet he must alleadge Seisin by the hands of some Tenant in certaine within forty yeares for otherwise rent and other annual payments are not recoverable by the expresse limitation of the Statute of 32 H. 8. cap. 2. Co. Inst pars 1 288. b. 1. Littl. § 503. 6 If a man be out-lawed in a personal Action by Process upon the Original and bring a Writ of Error if he Release of aâ— actions no plea in erroâ— at whose suit he was out-lawed will plead against him a Release of all manner of Actions personal that séemes to be no plea for by that Action he shall recover nothing in personaltie But the end of the Writ of Error is onely to reverse the out-lawry Co ibid. 368. a. 3. Plowd Com. 91. The Parson of Honylanes case Co. ibid. 369. a. 4. 7 If the Tenant in an Assise of an house desire the Plaintife to dine with him which the Plaintife doth accordingly Licence no seisin and so they be both in the house together and in truth one pretendeth one Title and the other another Title yet the Law in this case shall not adjudge the possession in him that right hath because the Plaintife came not thither to claime his right but onely to dine there at the instance of the Tenant And it would be to his prejudice if the Law should adjudge him in possession and doubtlesse a Trespasser he cannot be for that he came thither upon the Tenants invitation Co. ibid. 369. a. 4. 8 A Lease for yeares to another to the intent to trie the Title in an Ejectione firma is out of the Statute of 32 H. 8. cap. 9. An ejectione firma no bought title which prohibits the buying and selling of pretenced Rights or Titles because it is directed to a lawful end and is in a kind of Course of Law but if it be made to a great man or any other with purpose to sway or countenance the cause that is to be taken within the same Statute being chiefly intended for the suppression of such abuses in the Common-wealth Co. Inst pars 1 381. b. 3. 9 Such construction must be made of a Statute that the end Stat. of Gloc. 6 E. 1. 3. for which it was ordained may be alwayes
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
of his own right heirs the reversion of the fée had béen in him because the use of the fée continued ever in him And the Statute doth execute the possession to the use in the same plight quality and degrée as the use was limited Co. Inst pars 1 22. b. 4. 7 If a man make a gift in taile or a lease for life Void remainder the remainder to his own right heires this remainder is void and he hath the reversion in him for the Ancestor during his life beareth in his body in judgement of Law all his heirs and therefore it is truly said that haeres est pars antecessoris And this appeareth in a common case for if Land be given to a man and his heirs all his heirs are so totally in him that he may give the land to whom he will Co. ib. 23. a. 4. 8 Albeit Tenant in Frankmarriage is estéemed in Law a frée tenure till the fourth degrée be past Frankmarriage Fealty yet the Donées in Frankmarriage shall immediately make fealty because fealty is incident to every tenure except Frankalmoigne and cannot be separated from it Co. ib. 47. a. 3. 9 If a man make a lease for years Rent incident to the reversion and reserve a rent to him and his Executors the rent shall end by his death because the heire hath the reversion and the rent is incident to the reversion Co. ib. 68. a. 1. 10 Fealty is incident to Homage because it is a part of Homage Fealty all the words of Fealty being comprehended within Homage Mirror cap. 3. Co. ib. 69. a. 1. 11 As fealty is incident to Homage Fealty Homage c. so Homage and Knight service are incident to Escuage and by the grant of services Escuage passeth with the rest â—dship of Donee inâ—nt to the â—or 12 If Tenant by Knight service maketh a gift in taile Co. ibid. 77. a. 1. in Sir Thomas Wiats case T. 18 Eliz. in C. Ba. per Cur. and the Donée maketh a Feoffment in fée and the Donée dieth his heire within age the Donor shall have the Wardship of him because he is his Tenant in right But if the Feoffée die his heire within age the Donor shall not have the Wardship of his heire but the Lord paramount because he is Tenant in fait to him Neither shall the Donor avow upon the Feoffée or his heire for the services due unto him because he must in his Avowry shew the reversion in fée to be out of him by the Feoffment and consequently the services incident to the reversion are also out of him but he shall avow upon the Donée and his issue And thus are all books that séem to be at variance either answered or reconciled â—ure 13 There can be no tenure without some service Co. ibid. 92. b. 1. because the service maketh the tenure and is incident unto it 〈◊〉 services 〈◊〉 Fealty seâ—able 14 Of Incidents there be two sorts viz. separable and inseparable Co. ib. 93. a. 1. Separable as rents incident to reversions c. which may be severed Inseparable as fealty to a reversion or tenure which cannot be severed For as all lands and tenements within England are holden of some Lord or other and either mediately or immediately of the King so to every tenure at the least fealty is an unseparable incident so long as the tenure remains and all other services except fealty are severable â—ident teâ—res c. 15 The tenure in Frankalmoigne is an incident to the inheritable bloud of the Grantor Co. ibid. 99. a. 4. and cannot be transferred or forfeited to any other no more than a foundership of an house of Religion which is intended to be in Frankalmoign or Homage Ancestrell or the writ of contra formam Feoffamenti or the writ of contra formam Collationis or any other incident to their inheritable bloud but it is no incident inseparable for the Lord may release to the Tenant in Frankalmoigne and then the tenure is extinct and he shall hold of the Lord paramount by fealty as in the case of Littleton Sect. 139. â—stresse inciâ—nt to fealty 16 If rent-service be behind the Lord may distrain for the arreare Co. ibid. 142. a. 3. because fealty is incident to rent-service and where fealty c. is incident to the rent there is a distresse also incident thereunto 〈◊〉 leases Feâ—y insepaâ—le â—nt not inâ—arably inâ—ent â—alty inciâ—nt 17 In the case of a gift in taile lease for life or years Co. ibid. 143. a. 1. the fealty is an incident inseparable to the reversion so as the Donor or Lessor cannot grant the reversion over and save to himselfe the fealty or such like service but the rent may be excepted because the rent although it be incident to the reversion yet is it not inseparably incident 18 If a man maketh a gift in taile without any reservation Co. Inst pars 1. 143. a. 2. the Donée shall hold of the Donor by the same services that he holds over but otherwise it is of an estate for life or yeares for there if he reserveth nothing he shall have fealty only which is an incident inseparable to the reversion â—elease of â—nd except â—e said rent 19 If there be Lord and Tenant by fealty and rent Co. ib. 150. a. 3. 4. and the Lord by his déed reciting the tenure releaseth all his right in the land saving his said rent In this case the Seignory remains and he shall have the rent as a rent service and also the fealty incident unto it for in saying the said rent it is as much as if he had said the rent service whereunto fealty is incident â—ant of serâ—es quid oâ—atur 20 If the Donée hold of the Donor by fealty and certain rent Co. ibid. 150. b. 1. and the Donor grant the services to another and the Tenant attorne some have said the rent shall not passe because the rent cannot passe but as a rent service being granted by the name of services And the fealty cannot passe because it is an incident inseparable to the reversion But it seemeth that the rent shall passe as a Rent-secke because at the time of the grant it was a rent service in the Grantor and therefore there be words sufficient to passe it to the Grantée and it is not of necessity that it shall be a Rent-service in the hands of the Grantée c. Co. ibid. 148. b. 3. 21 If a man maketh a lease for life of Black acre and White acre Accrueâ— Rent appâ—oned reserving two shillings rent upon condition that if the Lessée doth such an act c. that then he shall have fée in Black acre the Lessée performs the condition Here albeit by relation he hath the fée-simple ab initio yet shall the rent be apportioned for that the reversion of one acre
whereunto the rent was incident is gone from the Lessor Littl. §. 225. Co. ib. 150. a. 22 If there Lord and Tenant Distresse iâ—dent to fealâ— and fealty 〈◊〉 homage and the Tenant holds of the Lord by fealty and certain rent and the Lord grants the rent by his déed to another c. reserving the fealty and the Tenant attorns to the Grantée of the Rent Here such a rent in the hands of the Grantée is not Rent-service but Rent-secke because the power of distraining remains still with the Lord as an incident to the fealty which he hath reserved c. So it is likewise where the Tenant holds by homage fealty Littl. §. 226 227. Co. ibid. 150. b. and rent and the Lord grants the rent reserving the Homage c. but in this last case if the Lord grant away the Homage saving unto himselfe the rest of the services and the Tenant attorn c. In this case the Tenant shall hold the land of the Grantée and the Lord shall have the Rent but as a Rent-seck and shall not distrain for it because the power of distraining doth of common right go along with the Homage and Fealty Co. ibid. 68. a. 1. Co. ibid. 151. b. 1. Fealty being an inseparable incident to Homage and Distresse the like to Fealty c. 23 Incidens is a thing appertaining to Definitio or following another as a more wrorthy or principall Littl. §. 228. Co. ib. 151. b. 3 4. 24 If a man let lands to another for terme of life reserving rent Rent sepâ—â—â—bly fealty 〈◊〉 separably â—â—cident to the reversion if he grant the rent c. saving the reversion c. the Grantée hath the Rent as a Rent-seck for which he cannot distrain because the fealty unto which the Distresse is incident doth still remain in the Grantor as an inseparable incident to the reversion for albeit the rent be also incident to the reversion yet it is separably incident whereas Fealty is inseparably incident unto it so that although when the rent was first reserved it was Rent-service and so by consequent had Fealty and distresse incident unto it yet being now by the grant fevered from the reversion and Fealty it hath lost the priviledg of distresse which always inseparably adheres to the Fealty c. Neverthelesse in the said case if the Lessor grant the reversion for life c. the rent shall passe therewith as incident to the reversion and the Grantée shall then have it as a Rent-service whereunto Distresse is incident because it then passeth by the grant of the reversion as with the superiour or principall and that without using these words in the Grant cum pertinentiis c. Co. ibid. 192. a. 3. 214. a. 2. 25 If two Ioyntenants make a lease for life Jointenants reserving a rent to one of them the rent shall enure to them both because the reversion remains in Ioynture and therefore the rent which is incident to the reversion shall also enure in joynture c. unlesse the reservation be by déed indented for then he onely to whom it is reserved shall have it c. so also a surrender to one shall enure to both Littl. 348. Co. ib. 215. b. 3. 26 If there be Lord and Tenant Rent incideâ— to the reveâ—on and the Tenant make a lease for life reserving to him and his heirs an annual rent c. and after the Lessor dies without heire so that the reversion falls to the Lord by way of Escheat and the rent of the Tenant for life is behind In this case the Lord by Escheat may distrain for the Rent arrear Escheat albeit it was reserved to the Lessor and his heirs for both Assignees in Déed Assignees in Law shall have the rent because the rent being reserved of inheritance to him and his heirs is incident to the reversion and goeth with the same Co. ibid. 223. b. 4. 27 Albeit as Littleton saith Sect. 362. Tenant in 〈◊〉 barred by coâ—dition 〈◊〉 not a Tenant in taile may by condition be barred from making any alienation and discontinuance of his estate contrary to the Statute of Westm 2. yet cannot that estate be so clogged by a condition that the incidents which are by Law annexed unto it may be barred or severed from it Co. l. 6. 41. a. 1. Sir Anthony Mildmayes case 42. b. 4. l. 10. 38. b. 4. Mary Portingtons case Now the incidentâ— to an estate taile are 1 To be dispunishable of waste 2 That the Feme of the Donée shall be endowed 3 That the Baron of the Feme Donée after issue shall be Tenant by the Courtesie 4 That the Tenant in taile may suffer a common recovery And therefore if a man make a gift in taile upon condition to restrain the estate from having any of these incidents the condition is repugnant and void in Law And for this cause it is that a Collateral or lineall warranty with assets in respect of the recompence is not restrained by the Statute of Donis conditionalibus no more is a common recovery in respect of the intended recompence And Littleton there to the intent to exclude the common recovery saith Tiel alienation discontinuance joyning them together Descriptio incidentium 28 They that have Conusance of any thing Co. ibid. 227. b. 4. are to have Conusance also of all incidents and dependants thereupon For an incident is a thing necessarily depending upon another Vide 64. Stat. 21. H. 8. 19. 29 By the Statute of 21 H. 8. cap. 19. it is enacted Co. ibid. 268. b. 1. That if the Lord shall distrain upon the Lands and Tenements holden c. that he may avow c. upon the same lands c. as in lands c. within his Seignory c. without naming of any person certaine and without making avowry upon a person certain Here albeit the purview of this act be generall yet all necessary incidents are to be supplyed and the scope and end of the Act to be taken And therefore although he néed not to make his avowry upon a person certain yet he must alleadge seisin by the hands of some tenant certain within forty years c. Incident serviâ—es shal not be discharged without speciâ—l words 30 If there be Lord and Tenant Co. Inst pars 1. 305. b. 3. and the Tenant holds of his Lord by the service of Fealty and xx s. rent if the Lord by his Déed confirme the estate of his Tenant to hold for xii d. or for a penny c. In this case saith Littleton Sect. 538. the Tenant is discharged of all the other services and shall pay the Lord nothing but what is comprised within the same confirmation Neverthelesse these words are thus to be understood that the Tenant shall not render any more rent or annual service to the Lord than is contained in the
King hath an Interest in the Land or shall lose Rent c. or services then the Court ought to cease until they shall receive a procedendo in loquela from the King c. F. N. B. 154. d. e. 85 If the King by his writ certifie the Iustices Justices to surcease upon the Kings Certificat that the Lands are in his custodie by reason of the nonage of some heire taken by Inquisition and returned into the Chancery commanding them that they shall not procéed Rege Inconsulto In that Case it séemes that the Iustices ought to cease for the present albeit there be no such Office found nor returned for they are bound to give credit to the Kings certificate albeit that it be not true c. And in Assise de Novel disseisin if the King send his writ to the Iustices that the Defendant holds the Land put in view of the Kings gift for term of life by the Kings Charter commanding them not to procéed Rege Inconsulto here although the Tenant will not plead this yet it séemes that the Iustices ought to cease by that writ So if the King rehearse in the writ that the Tenant is in his service in warre beyond Sea or in Scotland and that he holds by Charter of the Kings grant for term of life commanding that they shall not procéed Rege Inconsulto but to continue the Assise untill a certain day there also it séems they shall surcease Because the Tenant cannot plead it for if the Escheator will say that he seised the Land into the Kings hand in an Assise brought by any person the Court shall surcease for that saying and by force of the Kings Certificate c. F. N. B. 106. c. 86 Men and Women of Religion are to be excused from appearing at the Sheriffs turne or at Leets unlesse it be for some great cause Men of Religion And if they be distrained to come unto them they may have a writ De exoneratione sectae c. out of the Chancery to discharge themselves of such service c. F. N. B. 159. c. 87 If Land descend to Coperceners Suit of Copeceners for which onely one suit ought to be done In this Case if the Land be holden of the King then all the Coperceners ought to make a suit as well after the partition as before But if the Land be holden of another Lord then the eldest Sister or her Feoffée shall onely make the suit c. And if the Lord do distraine the other Coperceners for that suit they shall have a writ De exoneratione sectae c. to discharge themselves of it c. Pl. Co. 76. b. in The Lord Willoughbies Case 88 If the King direct his writ Coronatoribus in Com. L. this is to be understood in the Kings Case Coronatoribus de Com. L. for the Kings writs in such Cases The Kings Writ will admit a favourable construction for the fulfilling of the Kings full intent c. Finch 81. 89 For the Kings prerogate see Finch 81. c. and elswhere throughout his whole Book under the several heads when there is any difference betwéen this Case an that of a subject Finch 83. 90 The King never dieth Demise Le Roy. but in Law it is said the demise of the King and a gift unto the King without more trencheth to his Successors 91 The particular prerogatives due to the King by the Common Law may be for that most part referred to one of the eight heads hereafter following notified in the outward margent by their several and respective letters as followeth 1 Divine perfection A 2 Infinitenesse B 3 Majesty C 4 Soveraignity power D 5 Perpetuity F 6 Justice G 7 Truth H 8 Omniscience I Ideot 92 Because every subject is by Law in the protection of the King Co. l. 4. 126. a. 2. in Beverleys Case who therefore is of right bound to defend his subjects persons and Estates and for as much as an Ideot is not able to governe himselfe or order his Estate The Law of England hath provided the King to be his Tutor to Govern and order both his person and Estate For the Statute of Praerogativa Regis made in the 17 of E. 2. cap. 9. was nothing else but a declaration of the Common Law c. Rent reserved 93 It is a Maxime in Law that the Rent must be reserved to him Co. Inst p. 1. 143. b. 4. from home the State of the Land moveth and not to a stranger but some do hold that it is otherwise in the Kings Case Upon a joint purchase tenement in common 94 If Lands be given to A. de B. Bishop of N. and to a secular man Co. ibid. 190. a. 4. to have and to hold to them two and to their heires In this Case they are joyntenants For each of them take the Lands in their natural capacity But if Lands be given to the King and to a subject to have and to hold to them and to their heires yet they are Tenants in Common and not Ioyntenants For the King is not seised in his natural capacity but in his Royal and Politique capacity in Jure Coronae which in respect of the Majesty of his Kings Person cannot stand in jointure with the seisin of a subject in his natural capacity And therefore if there be two joytenants and the Crowne descend to one of them the joynture is thereby severed and they are become Tenant in Common c. Grant in Mortâ—aine 95 It appeareth by Littleton § 140. Co. ibid. 99. a. 3 which my Lord Coke saith is a secret in Law that in the Kings licence to grant land to a Corporation there needs not any non obstante of the Statutes of Mortmaine for the King shall not be intended to be mis-conusant of the Law and when he licenseth expressely to alien to an Abbot c. which is in Mortmaine he needs not make any non obstante of the Statutes of Mortmaine for it is apparent to be granted in Mortmaine and the King is the head of the Law and therefore praesumitur Regem habere omnia Jura in scrinio pectoris sui for the maintenance of his grant to be good according to the Law Descent of â—etrage to Feâ—ales 96 When an Earldome or Baronie descends to one Daughter or other heire Female she shall solely enjoy both the Dignity and Lands Co. ibid. 165. a. 3. but where it descends to more heirs Females then one the Lands shall be divided as amongst other Coperceners Howbeit in that Case the dignity cannot be divided neither shall the Eldest have it as to be a Countesse Baronesse c. But in such case the King who is the Soveraigne of Honor and Dignity may for the uncertainty conferre it upon which of the Daughters he please this is to be intended when the Ancestor dies seised of Peerage in Fée-simple
Quare vi armis and since that by sundry Statutes in divers other Actions viz. in Accompt debt detinue annuity Covenant Action upon the Statute of 5 R. 2. Action upon the Case c. Co. ibid. 201. b. 2 4 Villenage is such an exception in any plea brought by the Villein against the Lord that it shall make the writ abate Dis-ability persons so that he shall not have a resummons or Re-attachment as in Case of the Excommunication c. Co. ibid. 158. a. 1. 5 If a man be out-lawed in Trespass debt No Juror or any other Action he is thereby disabled to serve of a Iury for that is a principal Challenge to the Poll viz. propter delictum because he is Exlex and therefore is not legalis homo Co. ibid. 132. b. 4. 6 A man exiled or banished beyond Sea viz. by authority of Parliament Exiled Abjured Dead The Feme may sue or in Case of abjuration upon an Ordinary procéeding of Law is in the nature of a dead man in Law And therefore in such Case his Wife may sue or be sued without him as in Case when a man enters in Religion and is profest a Monk c. Thus it was in the Case of the Wife of Sir Robert Belknap 2 H. 4. 7. a. one of the Iustices of the Court of Common Pleas for during his banishment being yet alive she brought a writ in her owne name whereupon one said Ecce modò mirum quòd foemina fert breve Regis Non nominando virum conjunctim robore Legis So likewise E. 3. 10 E. 3. 53. 1 H. 4. 1. b. Pl. in Parl. 19 E. 1. brought a Quare Impedit against the Lady Maltravers and after that H. 4. brought a writ of Ward against Sibill B. during the exile of her Husband The like was also adjudged at the Parliament holden in Crastinum Epiphanum Ann. 19 E. 1. in the Case of Margery de Mose Wife of Th. of Weyland being the yeare before abjured the Realme for felony c. Howbeit if the Husband by Act of Parliament have judgement to be exiled but for a time which some call a Relegation that is no civil death but abjuration in 8 E. 2. Coron 425. is called a divorce betwéen the Husband and the Wife And therefore in that Case the Wife may sue and be sued c. Co. ib. 2. a. 4. Co. l. 7. 17. a. 2. in Calvins Case 25. a. 4. Calv. Case 7 If an Alien Christian or Infidel purchases houses lands Aliens purchase is the Kings tenements or hereditaments to him and his heires albeit he can have no heires yet he is of capacity to take a fée-simple but not to hold for upon an Office found the King shall have them by his prerogative of whomsoever the land is holden and in that Case the Lord shall lose his Seigniory So it is also if he purchase land and die for in that likewise the Law casteth the fréehold and inheritance upon the King If an Alien purchase any Estate of frée-hold in lands c. upon Office found the King shall have them If an Alien be made denizen and purchase lands and die without issue the Lord of the fée shall have the escheate and not the King If an Alien purchase a lease for yeares upon Office found the King shall have it unlesse it be of an house for habitation to the end he may use Merchandize and Commerce Howbeit such an house also if he return home and leave or die the King shall have it and not his Executors c. â—ne born out 〈◊〉 the Kings â—geance 8 A man seised of land in fée hath issue an Alien Co. ib. 8. a. 1. that is borne out of the Kings Ligeance he cannot be heire propter defectum subjectionis albeit he is borne within lawfull marriage And if he be made Denizen by the Kings letters patents yet cannot he inherit to his father or any other But it is otherwise if he be naturalized by Act of Parliament for he is not then accounted in law Alienigena but Indigena â—ue not inâ—â—ritable 9 When an Alien is made Denizen the issue Co. ib. Co. l. 7. 7. a. 4. in Calvins Casâ— 36 H. 8. dâ—nizen Br. 9 that he hath afterwards shall be heire to him but no issue that he had before So likewise if an Alien commeth into England and hath issue two Sonnes these two Sonnes are Indigenae subjects borne because they are borne within the Realme and yet if one of them purchase lands in Fée and dieth without issue his Brother shall not be his heire for there was never any Inheritable bloud betwéen the Father and them and where the Sonnes by no possibility can be heires to the Father the one of them shall not be heire to another Co. ibid. 129. a. 3. It is otherwise of naturalization by Act of Parliament for if the Father he naturalized by Parliament the Issue had before c. shall Inherit So if an Issue of an English-man be borne beyond Sea and the Issue be naturalized by Parliament he shall Inherit his Fathers Land but so he shall not although made Denizen because no Alien naturalized by Act of Parliament is to all intents and purposes as a naturall borne subject but so is not a Denizen Dower â—enant by Courtesie 10 If a man be seised af an Estate of frée-hold and inheritance in lands c. and take an Alien to Wife and dieth Co. ib. 31. b. 4. Co. l. 7. 25. a. 4. Calv. Case she shall not be endowed neither shall the Baron be Tenant by the courtesie Howbeit it is otherwise in the Kings Case c. And Edmond the Brother of E. 1. married the Quéen of Navarre and died And it was resolved by all the Iudges that she should be endowed of the third part of all the lands whereof her husband was seised fée â—is-ability of â—ing 11 It is a good plea in dis-ability of the person Litt. §. 189. Co. ib. 129. b. 1. Co. l. 7. 16. a. 4. in Calv. Case Co. ib. 17. a. 3. Calv. Case that the Demandant or Plaintiffe is an Alien vee and this exception holds good in all Actions both reall and personal against an Alien enemy but not absolutely against other Aliens for the Law doth distinguish betwéen an Alien that is a subject to one who is an enemy to the King and one that is subject to one who is in league with the King And true it is that an Alien Enemy shall maintaine neither Reall nor Personal Action Donec terrae fuerint communes viz. till both Nations be in peace But an Alien that is in league shall maintain personal Actions For such an Alien may trade and traficke buy and sell And then of necessity he must be of ability to have personal Actions but he cannot maintaine either reall or mixt actions So also an
Tenant by the Courtesie joyn Also if there be two Ioynt-tenants and to the Heires of one of them and they make a Lease for life they shall joyn in an Action of Waste for the same reason Co. l. 2. 77. b. 1. The Lord Cromwels case 4 B. seised of a Mannor with an Advowson Appendant by Indenture bargaines and sells the Mannor to A. and covenants to suffer a Recovery and levie a Fine to A. in Fee Joynder in a Fine and that the said A. shall render by the Fine to B. 42 l. per annum Rent provided that A. shall grant the Advowson to B. for life and if he die before any avoidance then one turne to his Executors and it was farther Covenanted that all Assurances to be made should be to the said Vses The Recovery is had B. and A. lovie a Fine to P. who renders the Mannor with the Advowson to A. in Fée and the Rent to B. Proclamations passe A. dies before the Grant of the Advowson the Church becomes void in the life of B. E. enters as Heir to A. B. enters and without any request for the Advowson bargaines and sells to the Lord Cromwel for whom it is adjudged And in this Case it was resolved that albeit the Fine was not acknowledged by B. to A. to a stranger was adjudged a good performance of the Covenant because B. and A. joyned in the Fine for conformity to the end by that meanes A. might take the Mannor and B. the Rent but B. had the Mannor again because the Condition was not performed Ibid. 5 Albeit a Fine is of so high a nature Joynder is Fine that the Law doth not suffer any bare Averrement against the purport and Conusance of a Fine yet when the Law requires one for conformity to joyn with another in a Fine it suffers him to shew the truth of the matter for the avoiding of prejudice and conclusion So in 30 and 31 El. in a Writ of Error to reverse a Fine levied by Baron and Feme for the Non-age of the feme the Baron and feme had Restitution presently and the Conusée could not detaine the Land during the Coverture because all the Estate passed from the feme and the Baron onely joyned for conformity Vide Pl. ibid. Co. l. 6. 47. a. 1. Dowdales ca. 6 In Debt against Executors Assets found bâ— any County the Defendant pleads plene administravit the Plaintiff replies that he hath Assets in E. and the Iury finds Assets in Ireland and the Plaintiff recovers For when the place is material as when it is parcel of the issue there the Iurors cannot find the point in issue in any other place because in such case by special pleading the point in issue is restrained to a certaine place For there is a diversity when the place is named onely for conformity and necessity and when it is parcel of the issue as in the Case of 10 El. Dyer 271. In Debt against the Heir he pleads riens per discent generally in this Case the Plaintiff cannot reply in such a general manner for then there could be no trial of it but in such Case for conformity and necessity of a Trial he ought to name a certaine place as he did there in a Parish and Ward in London neverthelesse there the Iurors might find Assets in any other County of England c. 113. 4 Colour â—o discent to 〈◊〉 away enâ—y 1 If a man seised of Land hath issue two Sonnes and die seised Littl. §. 396. Co. Inst p. 1. 242. 2. and the youngest enter by abatement and hath issue and dies thereof seised and the Tenements descend to his issue and the issue enter This is no discent to take away entry because they both claiming by one Title and from the same Ancestor the youngest had colour to enter as heir So it is also if there be two Sisters Litl §. 398. Co. ibid. 243. a. 4. and the eldest enter c. and albeit in either of the said Cases there be never so many discents cast yet may the Heirs the elder Brother or younger Sister enter causa qua supra Howbeit if there be Bastard eigne Littl. §. 399. Co. ibid. 243. b. 4. and Co. 244. a. 3. and mulier puisne if the Bastard enter and is peaceably seised all his life and die and his issue enter the Mulier shall not enter for he hath more colour to kéep it as eldest Sonne then in the aforesaid Cases And therefore the Mulier in such Case is left without remedy and hath lost the Land for ever whereas the other are left in their Action And it is holden that albeit the heir be under age at the time of the discent cast yet that shall not help it for the Law preferres Legitimation before Infancy because there being no Claim all his life-time the Law implies Legitimation And when the Discent is cast Justum non est aliquem post mortem facere bastardum qui toto tempore vitae suae pro Legitimo habebatur See more in the first Part of the Institutes fol. 242 243 244. Littl. § 400. â—o trespasse â—gainst the 〈◊〉 2 If there be Lord and Tenant by fealty onely Littl §. 484. Co. ib. 28. l. b. 4. and the Lord distraines the Tenant for Rent whereupon the Tenant brings an Action of Trespasse against the Lord who justifies for fealty and Rent and the Iury finds that he holds by fealty onely yet the Writ shall aâ—ate because he held of him by fealty and the matter in issue is whether he holds of him or no and it being found he did the Lord had sufficient colour to distraine him and therefore in that case the Action shall abate â—im slaughâ—â— found for â—â—der 3 If A. be appealed or indicted of Murder Co. ib. 282. a. 1 viz. that he of Malice praepense killed I A. pleadeth not guilty modo forma yet the Iury may find him guilty of Man-slaughter without Malice praepense for if in truth it was but Man-slaughter they had colour enough to find it so Inclaiming 〈◊〉 House 4 If two be in all House together the one claiming by one Title Littl. §. 701. Co. ib. 368. a. 2. and the other by another the Law adjudged him in possession who hath right to the House for Duo non possunt in solido unam rem possidere yet if a man hath issue two Daughreas Bastard eigne and Mulier puisne and die seised and they both enter generally the Sole Possession shall not be adjudged onely in the Mulier because they both claime by one and the same Title and the Bastard hath as well colour to claime it as the Mulier â—â—ard shall â—â—â—ch 5 If the Bastard eigne enter and take the profits Co. ib. 376. b. 3. he onely shall be vouched and not both the Bastard and Mulier for there is colour enough to vouch him alone he
of debt afterwards because both actions charge the person The like Law is of an Assise and of a writ of entry in nature of an Assise and the like â—â—der of 〈◊〉 2 If a feofment be made of a wood upon Condition to pay a certaine Rent the Demand ought to be made at the Wood-gate Co. ib. 202. a. 1 or at some high way tending through the Wood or other most notorious place there And if one place be as notorious as another the feoffor hath election to demand it at which he will and albeit the feoffée be in some other part of the wood ready to pay the Rent yet that shall not avail him sic de similibus Co. ib. 210. a. 1 Litt. §. 339. 3 If upon a Mortgage the money be limited to be payd to the feoffée Payment of Mortgage money and before the day of payment he make his Executors and die in this Case the Mortgageor shall pay it to the Executors albeit they be not named or if it be limited to be paid to the Mortgagee or his heirs then if he die it ought to be paid to his heire because named but if to his heires or executors the Mortgageor hath election to pay it to either So likewise if the Condition be to pay it to the feoffée his heirs or assignes and the feoffée make feofment over it is in the election of the feoffor to pay the money to the first or second feoffée at his pleasure and so if the first feoffée die the feoffor may pay the money either to the heire of the first feoffée or to the second feoffée at his election for the Law will not enforce the feoffor to take knowledge of the second feofment nor of the validity thereof whether the same be effectual or not but at his pleasure Litt. §. 341. Co. ib. 211. b. 2 4 If feofment in fée be made reserving Rent An Assâ—se oâ— entry and for default of payment a re-entry this is a Rent-secke and in this Case if the feoffor be once seised of the Rent which after is denied him it is at his election whether he will have an Assise of Novel disseisin for the rent arrere or enter for the Condition broken but after a recovery in Assise he cannot have recourse to his re-entry because by bringing the Assise he affirmes the continuance of the Estate Litt. §. 454. Co. ib. 268. b. 1. 312. a. 1. 5 Before the Statute of 21 H. 8. 19. Avowry at laâ— or by Seat the disseisée might compel the Lord to avow upon him but since that Statute if the Lord distraine upon any of the Lands and Tenements holden c. he may avow c. upon the same Lands c. as in Lands c. within his fée or Seigniory c. without naming of any person certaine and without making avowry upon a person certaine and therefore at this day the Lord hath his Election either to avow according to the Common Law or by force of the said Statute as by the word may in the same Statute is imported Littl. § 478. Co. ib. 278. b. 3 6 If a man be disseised by an Infant who aliens in fée Several reâ—dies by acâ— or entry and the alienée dies seised and his heire enters the disseisor being still within age In this Case it is in the Election of the Dissefsor to have a writ of dum fuit infra aetatem or a writ of right against the alienée or otherwise he may make his entry into the land without any suit or recovery And so it is to be observed that many times the Law doth give a man several remedies and of several kinds as in this Case by action and by entry by action either by writ of right or dum fuit infra aetatem Littl. §. 496 497 478. Co. Inst p. 1. 286. b. 1. 7 When a man hath several remedies for one of the same thing A remedy 〈◊〉 remaine aâ— a release be it real personal or mixt albeit he releaseth one of his remedies yet he may use the other So where a man may enter into lands and also have an Action real given him by the Law to recover them In this Case if the Demandant release to the Tenant all manner of actions real yet the Demandants entry is not thereby taken away because nothing is released but the Action And so it is also of thnigs personal as if a man wrongfully takes my goods albeit I release to him all actions personals yet I may by Law take my goods out of his possession In like manner if I have any cause to have a writ of detinue of my goods against another here albeit I release unto him all Actions personals yet I may by Law take my goods out of his custody because no right of the goods is released but onely the Action â—lent diâ— or a◠〈◊〉 8 If one bold of me by Rent-service which is a service in grosse Litt. § 588 589. and not by reason of my Mannor and another that hath no right claimes the Rent and receives it of my Tenant by cohersion of distresse or otherwise and disseiseth me by taking the Rent albeit such a disseisor die so seised in taking the Rent yet after his death it is at my election either to distraine for the Rent or taking him to be a disseisor to have an Assise against the pernor of the profits â—ine or aâ— 9 If an Abbot Bishop or Husband in the right of his Wife Co. ib. 3 27. b. 2 seised of a Rent or any other Inheritance that lies in grant had aliened it was in the Election of the Successor or Wife after the death of her Husband to claime the Rent c. or to bring an Action for such alienation did not worke a discontinuance and so it is also by construction of the Statute of West 2. cap. 1. in Case of Tenant in Taile â—tes waivâ— by Feme â—ert 10 If Lands be given to the Husband and Wife and their heirs Co. ib. 357. a. â— the Husband makes a feofment in fée the feoffée giveth the land to the Husband and Wife and the heirs of their two bodies the Husband dieth In this Case the wife may elect which of the Estate she will for both Estates are waivable and her time of Election and power of waiver accrewed unto her first after the decease of her Husband â—echer of 〈◊〉 heires 11 Inderaigning a warranty against heires in Gavelkind Co. ib. 376. a. 4 the eldest may be vouched as heire to the warranty and the other sonnes also in respect of the Inheritance descended unto them So likewise the heire at the Common Law and the heire of the part of the mother may be both vouched yet in both these Cases the heire at the Common Law may be vouched alone at the election of the Tenant â—nveyance â—y several 〈◊〉 12
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
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-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.
untill a new Sheriff be made and albeit they in the interim fled out of the walls of the Goale yet the Law hath the custody of them and preserves them in execution without any fresh Suit in what place soever they be and therefore they may in such case be againe taken in execution at any time after for no escape can happen in prejudice of the party but when some body may be charged therewith and the Law deceives none 30. If since the Statute of 31. H. 8. 1. Ioynt-tenants make partition with consent by Deed the Warranty annexed to their estate is gone Co. l. 6. 12. a. Morrices case Writ of partition but if they sue a Writ of Partition according to that Act they may vouch as before and such partition will not prejudice them being founded upon a Statute Law whereunto all persons give consent So if there be two Ioynt-tenants with Warranty and the one disseiseth the other and the Disseisee brings an Assize In this case it seems to be the better opinion that the Disseisee shall not recover in severalty but generally neither is the Warranty gone by such Recovery as it was adjudged in 28 lib. Ass Pl. 35. because the Recovery is an Act in Law which prejudiceth none albeit some Books are against it as 10 E. 3. 40. 10. lib. Ass 17. Co. l. 6. 27. b. 4. Viscount Montagues case 31. No Fine for alienation Stat. 27 H. 8. Vicount Montague with licence of the Queen suffers a Recovery to B. and D. to uses with power of revocation and limitation of other uses he revoks and limits new uses in this case no Fine shall be paid to the Queen for alienation For when licence is granted to alien to A. and the alienation is to the use of B. here no Fine is to be paid for the alienation to the use of B. because the use is executed by the Statute of 27 H. 8. which can wrong no man Co. l. 9. 106. b. 2 Margaret Podgers case 32. P. Copy-holder for life Remainder for life An act of Parliament doâ— no wrong the Lord bargains and sels and levies a Fine with Proclamations to P. five yeares passe without any claime by those in Remainder yet are they not barred because P. the Bargainee was in by force of the Statute of 27 H. 8. upon a bargaine and sale by Deed indented and inrolled and an act of Parliament can never do wrong See there also the Lady Greshams case where an Act of Parliament excused a Fine for alienation of Land in Capite without licence upon the same reason The like 33. Plow 59 a. 2. in Wimbish and Talboies case Where a Feoffment was made to Feoffees to the use of another before the Statute of 27 H. 8. of uses and then that Statute was made which transfers the Possession to Cestuy que use In this case the gift passes from the Feoffees to Cestuy que use by the Parliament because the consent of the Feoffees is involved in that Act of Parliament and it cannot be said that the Parliament gave it to Cestuy que use for if it should be said the gift of another then of the Feoffees then should the Parliament do the Feoffees wrong in taking a thing from them and making another the Donor thereof which an Act of Parliament cannot doe See there also the Rector of Edingtons case 19 H. 6. 62. Fitz. Grant 10. Br. 40. Parl. 88. to the like purpose Stat. W. 2. c. 39. Ravishment of Gard. 34. A woman covert is not within the Statute of West 2. cap. 39. Co. l. 9 73. a. 1. in Doctor Husseys case Concerning ravishment of Ward for part of the words are Si haeredem post annos nubiles maritaverit de maritagio satisfacere non potuerit abjuret regnum vel habeat prisonam imperpetuum c. for a Feme covert being by Law disabled to satisfie she shall not be by Law punished with banishment or perpetuall imprisonment and the Husband being innocent ought not to be punished because the punishment is personall Vide pl. ibid. infra Max. 156. Fealty 35. Co. Inst pars 1. 98. a. 3. Where an Abbot holding in Frankalmoigne together with his Covent aliens the Land to a secular man he cannot hold as they held viz. in Frankalmoigne and of necessity he must hold of some body and by some service for that the Law will enjoyne him to do to avoid the inconvenience of holding of none And therefore in regard the Law is in this case to create him a new tenure it shall be the lowest viz. in Socage and with the least service that can be done and nearest to the freedome of the former service Vide 184. 4. Parol demur non-age 36. Co. l. 9. 85. a. 4. in Connies case In a Writ of Mesne the Parol shall not demur for the non-age of the Plaintiff because it is not reason that the Infant should be distrained for the services of the Mesne during his non-age and yet he to have no remedy untill his full age but in regard his non-age shall not priviledge him from the payment of the Rent during his non-age the Law will also give him remedy during that time 149. Vide M. 150. Ex. 9. Especially for things that cannot be imputed to their own folly or neglect Tenant by the curtesie Things that lye in Grant 1. Tenant by the Courtesie shall have after his Wives death a Rent Co. Inst pars 1. 15. b. 2. Co. ibid. 29. a. or Advowson albeit the Rent day was not then come nor the Church then void and by consequent he not actually seised thereof before his Wives death because there was no Laches or default in him nor possibility to get Seisin and therefore the Law in respect of the issue begotten by him will give him an estate by the curtesie of England therein albeit he was not thereof actually seised as aforesaid It is otherwise where he hath in right of his Wife title of Entry into Lands and in her life neglects it for that is imputed to his own laches and folly Neither shall a man be Tenant by the curtesie of a bare right title use or of a Reversion or Remainder expectant upon an estate of Free-hold unlesse the particular estate be determined or ended during the Coverture Curtesie Dower 2. Co. ibid. 31. a. 3. A man shall not be Tenant by the Curtesie of a Seisin in Law without Entry but he ought to be actually seised in the life of his Wife Howbeit a woman shall be endowed of a Seisin in Law as where Lands or Tenements descend to the Husband here before Entry he hath but a Seisin in Law and yet the Wife shall be endowed thereof albeit it be not reduced to an actuall Possession for it lyeth not in the power of the Wife to bring it into an actuall Seisin as
whereof it is not possible for one to discharge and yet none can be presented to any of them which would be inconvenient Co. l. 4. 81. b. Sir Andrew Corbets case 2 Sir Andrew Corbet deviseth some of his lands to Richard Corbet and others Devise of Profits to raise a summe untill 800 l. shall be levied and received out of the profits of them besides all charges to be imployed for the preferment of his two daughters Marg. and Mary Robert Corbet sonne and heire conceals the will enters into the lands and enjoyes them fiâ—e years and dies after whose death the will being discovered Richard Corbet enters into the lands and raiseth 640 l. and imployes them according to the will but the question here arising was whether the profits taken by Robert Corbet and which the devisees might have taken shall be accounted parcel of the summe of 800 l. And in this case it was resolved that albeit the words be until the summe of 800 l. shall be levied c. yet it is as much in Law as if the words had been shall or may be levied And it was also held in case of a lease or limitation of use untill such a summe shall be levied that was as much to say as untill such a sum may be levied for otherwise great mischief would insue because in as much as he in reversion or remainder shall not enter untill the sum be levied it shall be in the power of those who are appointed to levie it to deferre the levying of it and so to exclude him in the reversion or remainder from taking the profits of the land for ever which would be inconvenient Co. l. 4. 9â— a. Dâ—uries case 3 If a Baron retaines two Chaplains according to the Statute of 21 H. 8. 13. and they purchase dispensation Chaplains and are advanced according to the Statute Here if the Baron discharge one of them from his service he cannot retaine another during the life of the Chaplain discharged for by that meanes he may advance as many Chaplains as he will even without number by which the Statute would be defrauded A like case to this was adjudged in C. B. 28 El. and after affirmed in B. R. in a writ of error Co. l. 5. 10. a. Housteads case 2 A feme sole makes a lease at will and after takes Baron Tenant at will Here the will is not determined by the intermariage for albeit the feme by taking the baron hath submitted her felfe to the will of her husband as her head yet in as much as it may be prejudicial to the husband to have the lease determine for then he should lose the rent payable at the next rent day after the mariage and because it will rather tend to the benefit than to the prejudice of the feme if the lease continue And also for that it may be a great prejudice to husbands who marie women that have tenants at will for the lâ—sse of their rents for these causes it was resolved that without expresse matter done by the husband after the mariage to determine the will it shall not determine Co. l. 5. 68. The L rd Cheyneyes case 5 Sir Th. Cheyney 1 El. deviseth Devise c. to H. his sonne and the heires male of his bodie the remainder to Th. Ch. of D. and the heires male of his bodie with condition that he or they or any of them shall not discontinue c. the question was whether T. Ch. should be received to prove by witnesses that it was the intent of the divisor to include his sonne within these words he or they And it was resolved by Wray and Anderson upon conference with other Iudges that he shall not for the construction of wills ought to be collected out of the words of the will in writing and not by collateral averment without because that would be subject to much inconvenience in as much as it would not then be possible for any man to know by the written words of the will what Construction to make or what advise to give when whatsoever shall be in that case done may be controled by collateral averments out the will â— 1 H. 6. 41. Co. Inst 1. 275. b. 6 If a man be disseised by two and releaseth to one of them Transmutation of estates he shall hold his Companion out but if tenant for life be disseised by two and he releaseth to one of them this shall enure to them both for he to whom the release is made hath a longer estate than he that releaseth and therefore the release cannot enure to him alone to hold out his Companion Descent 29. 13 E. 4. for then should the release enure by way of entry and grant of his estate and consequently the disseisor to whom the release is made should become tenant for life and the reversion revested in the Lessor which strange transmutation and change of estates in this case the Law will not suffer The l ke 7 If a man grant lands to A. in fée Littl. 720 722. Co. Inst 1. 377. Justice Richels Case Temps R. 2. upon condition that if he alien in fée his estate shall cease and be voide and that immediately from thenceforth the estate of the land shall remaine to B. and his heires here the estate to A. is good and he may lawfully alien notwithstanding the condition for his estate being an estate of Inheritance in lands and tenements it cannot cease or be voide before it be defeated by entry and then if this remainder should be good it must give an entry upon the alienée unto him that had no right before which would be inconvenient and against the expresse rule of Law because an entry cannot be given to a stranger to avoide a voidable act as appeares by Littleton in his Chapter of Conditions An Infants will 8 Because Littleton saith Sect 123 that the Guardian in Soccage shall render an account of the mariage money to the heire or his executors Here from this word executors some have collected Co. Inst 1. 89. b that an Infant of the age of 14 may make a will but the meaning of Littleton in that place is that if after the mariage he accomplish the age of 18 yeares he may then make a will and constitute executors to administer his goods and chattels for at that age he hath power by the Law to make a will and these words are to be understood as they may stand with Law and Reason Subsequent statutes expounded by the equity of former 9 The Statute of Glocester in 6 E. 1. cap. 3. ordaines Co. l. 8. 52. b. 4. in Syms case Pl. Co. 110. in Fulmerstons case that where the tenant by the Curtesie aliens his wives Inheritance with warrantie if assets descend to the heire he shall be barred for the value of the Inheritance so descended and if lands after descend that then the
tenant shall recover against the 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
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
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
case Recovery or other assurance to certaine persons and within a certaine time and to certaine uses are but directory and do not bind the estate or interest of the land yet if the Fine Recovery or other assurance be pursued according to the Indentures no naked averment shall be taken against those Indentures viz. that after the making of the Indentures and before the assurance it was concluded and agréed by mutual consent of the parties that the assurance should be to other uses But if any other agréement or limitation of uses be made by writing or by any other matter as high or higher then shall the last agréement stand for every contract or agréement ought to be dissolved by matter of as high nature as that by which such agréement was contracted because Nihil tam conveniens c. Outlawry reversed by error upon an Indictment 19 One Eaton was indicted in B. R. for the death of a man Eatons case 18 H. 7. Co. l. 5. 111. a. Foxleyes case whereupon an exigent was awarded into the County of Lincolne Eaton dies and was never convict or attainted yet his executors being a writ of Error to reverse the award of the exigent For in as much as the King was entitled by matter of Record it ought to be avoided by matter of as high nature Co. l. 7. 45. Kâ—rns case 20 If two claim as heirs to one man of one and the same Land No traverse without office holden of the King and one is found by office the other cannot traverse that office without first finding another office which finds him heire also Co. l. 8. 25. b. 4. The Princes case 21 The Charter of E. 3. The Duchy of Cornwal Anno 11 Regni sui by which lands were annexed to the Duchy of Cornwal being past by the consent of the Lords and Commons in Parliament retained the force of an Act of Parliament and therefore those lands cannot be disannexed but by Act of Parliament Co l. 9. 79. a. b. 12. H. 4. 23. 9 H. 7. 4. 4 H. 8. Dyer 1. c. Henry Petoes case 22 If a man be bound in a Statute to do any collaterall Act Writing discharged by writing as to make a feofment to render a true accompt or the like here accord with execution by money or any other thing is not satisfaction to save the forfeiture of the Condition for the contract being made by writing to performe such a collateral Act it cannot in that case be altered without writing But if a man by contract or Assumpsit without Déed be to deliver a horse or to build an house or to do any other collaterall thing there money may be paid by accord in sasatisfaction of such Contract for as a Contract upon consideration may begin by parol so by accord by parol for any valuable consideration it may be dissolved Co. l. 10. 86. b. 4 Leonard Loveis case 23 Vses and Powers in contingencie and possibility may be by mutual assent of the parties revoked and determined for Uses and powers revoked c. as they may be raised by Indenture So by proviso or limitation annexed unto them in the same Indenture they may be extinguished and destroyed either before or after their being Co. Inst pars 1 115. a. 3. 24 Albeit a man cannot prescribe or alleadge a Custome against a Statute A prescription saved because it is matter of Record being indéed the highest proofe and matter of Record in Law yet a man may prescribe against an Act of Parliament when his Prescription or Custome is saved or preserved by another Act of Parliament c. Dyer 25. b. 160 28 H. 8. 25 A man is bound by Indenture to pay a summe of money Payment no plea without an acquittance and in an action of debt upon that Déed the Defendant saith he hath paid the summe but sheweth no acquittance In this case the plea is not good for this Indenture is like a simple Obligation where payment is no plea without an acquittance It is otherwise where the Obligation hath a Condition per Mountagu Vide suprà 6. Co. Inst pars 1. 131. a. 4. 26 By the Statute of 13 R. 2. 16. Protection If after a protection is allowed by Innotescimus the party stay in the Country without going to the Service for which he was retained above a convenient time after he hath such protection or repaire from the said Service upon information thereof to the Lord Chancellor he shall repeal such protection by another Innotescimus Howbeit such 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 a matter of as high a nature 28 Things grounded upon an evil void beginning cannot have good perfection Co. Inst pars 1 19 a. 4. 30 E. 1. Form 65. Temps E. 1. 1 Before the Statute of West 2. cap. 1. Alienation by tenant in tail before issue no barre to the donor Alienation by the Donée in taile after issue had did barre the Donor of his reversion but if he had aliened before issue had and had after had issue although that alienation would have barred the issue because he claimed a Fée simple yet in that case if the issue had died without issue Dower of a Ibid. 62. 19. E. 2. Form 61. Plowd 246. Co. 7. 35. Nevils case Co. Inst pars 1 35. a. 3. the Donor might re-enter for that he aliened before any issue at what time he had no power to alien to barre the possibility of the Donor 2 Tenant for life of a Carve of land the reversion to the father in fée reversion ex assensu patris not good the sonne and heire apparent of the father endoweth his wife of this Carve by the assent of the father the Tenant for life dieth the husband dieth here the reversion was a tenement in the father and yet this is no good endowment ex assensu patris because the father at the time of the assent had but a reversion expectant upon a Fréehold whereof he could not have endowed his own wife and albeit the Tenant for life died living the husband yet quod initio non valet tractu temporis non convalescet â—imony makes the Presentation c. void 3 A Villein at this day purchaseth an Advowson in fée Co. ibid. 120. a. 2. the Church becomes void the Lord for 100 l. given by A. B. Clerke presents him to the Church and his Clerke is admitted instituted and inducted yet this gaineth not the Advowson to the Lord for by the Statute of 31 El. cap. 6. the presentation admission institution and induction in that case are made void and not onely voidable as they were before the Statute And so it is also if any other on the behalfe of A. B. had given or contracted with the Lord in
their heirs because the tenancie was originally charged with the Condition which is paramount the descent for the Condition remaines in the same essence that it was in at the time of the creation of it and the estate of the Tenant is conditional in whose hands soever the tenancie comes c. So it is likewise if such a Tenant upon Condition be disseised and the Disseisor die thereof seised and the land descends to the heire of the Disseisor In this case albeit the entry of the Tenant upon Condition that was disseised is taken away yet if the Condition be broken then may the Feoffor or Donor that made the estate upon Condition or their heires enter Causa qua suprà and also for that a Condition cannot be devested or put out of possession as Lands and Tenements may â—ower paraâ—ount a desâ—nt 13 If a Disseisor die seised and his heire enter who endoweth Co. Inst pars 1 240. b. 4. Littl. § 393. the Feme of the Disseisor of the third part of the Tenements c. In this case as to this third part which is so assigned to the Feme in Dower presently after the Feme entreth and hath the possession of the same third part the Disseisee may lawfully enter upon the possession of the Feme into the same third part because albeit the heire entred yet when the wife is endowed she shall not be in by the heir but immediately by her husband being the Disseisor for her life and that by a Title paramount the dying seised and dscent And therefore in judgement of Law the descent as to the Free-hold and Possession which the heire had is taken away by the endowment for that the Law adjudgeth no mean seisin between the husband and the wife â—wer paraâ—unt the â—â—or title 14 A man makes a gift in taile reserving twenty shillings rent Co. Inst pars 1 241. a. 4. and dies the Donee takes wife and dieth without issue the heire of the Donor entreth and endoweth the wife Here the wife is not in by the heir of the Donor but by title paramount of the estate of her husband And therefore albeit the estate taile be spent and the rent reserved thereupon determined yet after she is endowed she shall be attendant to the heire in respect of the said rent 15 If there be Lord Mesne and Tenant and the Mesne grant by Fine the Services of his Tenant to another in fée Co. Inst pars 1 321. b. 1. Littl. § 583. Co. l. 5. 113. a. Mallories case Temps E. 2. Attorn 18. 39. H. 6. 38. per Prisot The Lord Paramount may distrain without attornment after the Grantee dies without heir here the Services of the Mesnalty shall escheat to the Lord paramount and in this case if the services of the Mesnalty be afterwards behind the Lord Paramount shall distraine the Tenant although the Tenant did never attorne because the Lord Paramount commeth to the Mesnalty by a Seigniory paramount and therefore there needs no Attornement As if there be Lessee for life of a Mannor and he surrenders his estate to the Lessor there needeth no Attornement of the Tenants because the Lessor is in by a Title Paramount Co. Inst pars 1 327. b. 4. 16 A Discontinuance made by the husband Discontinuance of the wives land takes not away the entâ—â— of him that hath a title paramount did take away the entry onely of the wife and her heires by the Common Law and not of any other which claimed by Title Paramount above the Discontinuance as if lands had been given to the husband and wife and to a third person and to their heires and the husband had made a Feofment in fee this had been a Discontinuance of the one moity and a Disseisin of the other moity And if the husband had died and then the wife had died the Survivour should have entred into the whole for he claimed not under the Discontinuance but by Title Paramount from the first Feoffor And séeing the right by Law doth survive the Law doth give him a remedie to take advantage thereof by entry for other remedy for that moity he could not have Co. Inst pars 1. 338. b. 2. 17 If a Bishop be seised of a rent charge in fée A title paramount avoid rent and charges the Tenant of the land enfeoffes the Bishop and his Successors the Lord enters for the Mortmaine he shall hold it discharged of the rent for the entry for the Mortmaine affirmeth the Alienation in Mortmaine and the Lord claimeth under his estate But if Tenant for life grant a rent in fée and after enfeoffe the Grantée and the Lessor enter for the forfeiture the rent is revived because the Lessor doth claime above the Feofment Co. Inst pars 1 351. a. 3. 18 If a Feme Sole possest of a Lease for yeares takes Baron Chattels real returns to the feme if she survived who deviseth it by his Will or disposeth not of it at all in his life time the Feme if she survive shall have it againe because her estate is paramount the interest of the Executor And there is the same reason of estates by Statute Merchant Statute Staple Elegit Wardships and other Chattels real in possession So likewise if the husband charge the Chattel real of his wife 7 H. 6. 2. it shall not bind the wife if she survive him causa qua supra Co. Inst pars 1 385. a. 3. 19 If lands he given to two brethren in Fée simple Title paramount by â—â—â—vivorship with a warranty to the eldest and his heires the eldest dieth without issue the Survivour albeit he be heire to him yet shall he neither vouch nor rebate nor have a Warrantia cartae because his Title to the land is by relation above the fall of the Warranty and he commeth not under the estate of him to whom the Warranty is made Co. l. 2 68. a. 1. Tookers case 20 If the Lessée for life or yeares attorne upon any condition subsequent the condition is void Attornment paramount condition for if the reversion or remainder be once vested it cannot be devested by any condition annexed to the Attornement because the Grantée thereof is not in by the Lessée but by the Grantor but if one Attorn upon a condition precedent there it is no Attornement before the condition be performed Co. l 3. 83. a. 3 Vpton and Bassets case in Twines case 21 In Upton and Bassets case in 3 Report fol. 83. it was agréed An ancient right not â—â—red that by the Common Law an estate made by fraud shall be avoided onely by him that hath a former Right Title Interest Debt or Demand as in the 33 of H. 6. Sale in market overt by Covin shall not barre a more ancient Right neither shall a covenous Grant defeat an execution in respect of a former Debt as it is
the sonne is not remitted for the Statute makes the possession in him as the use was before Howbeit it seemeth also that his issue shall be remitted because he claimes paramount the Statute viz. per formam doni for the estate tail is still in being and was not extinct by the Statute And in this case it is not material whether the sonne when he entred was at full age Dyer 54. b. 22. 34 H 8. or under age for it seems he is not remitted albeit he were then under age for if Tenant in taile make a feofment to the use of himselfe and his heires and the Feoffor dies his issue within age and then comes the Statute here the heire shall not be remitted but it seemes his issue may causa qua suprà Vide suprà 5. Dyer 54 b. 1. 34 and 35 H. 8 33 The Kings Tenant of lands holden in Capite before the Statute of Uses suffers a common recovery to the use of his sonne and heire apparant and his wife and of the heires of the bodie of the sonne Wardship after which Statute the sonne hath issue and dies the issue within age In this case the issue shall not be in ward during the life of the Feme for the ancient use of the Fee simple which was paramuont the Statute remaines still in the father albeit he expressed not any use in Fee simple and then by the Statute the possession was vested in the sonne and the feme as the use was and the Fee simple in the father as he was Donor of the use and not as one in remainder of a new Fee simple for that would have altered the case And in the same case if the father had covenanted that the sonne immediately after his decease should have had in possession or in use all his land according to the same course of Inheritance as they then stood and that all men seised or to be seised should stand seised to the uses and intents aforesaid yet the sonne should not be in ward for it had been but a Covenant which changeth not the estate of the Fee simple which was paramount the Statute as afore is said Emblements sown 34 If Tenant pur auter vie sow the land and Cestuy que vie die Dyer 316. 2. 15. Eliz. the Tenant pur auter vie shall have the crop So if the Baron sow the Femes land and the Feme die the Baron shall reap the crop Likewise if the Baron make feofment in fée to the use of himselfe for life the remainder to the use of the Feme for life with remainders over and the Baron sow the land and die his executors shall have the crop and not the Feme or Heire because death being the Act of God it could not be fore-séen or prevented Howbeit if the Baron make feofment in fée to the use of himselfe and his Feme for their lives with remainders over and the Baron sow the land and die the Feme shall have the crop because she was Ioyn-tenant with her husband and hath it by Title paramount the executor So if the Baron sow the land and die and the third part is assigned to the Feme for Dower she shall have the emblements therewithall because she is in of her husbands estate paramount the Title of the executor and likewise shall be endowed de optima possessione of her husband 31 Things are to be construed Secundam subiectam materiam Account by the Guardian 1 It hath béen a question much controverted in the books of the Law at what age of the heir Co. Inst pars 1 89. a. 1. Stat. of Marlebridge 52 H. 3. 17. a Guardian in Soccage was compellable to render an accompt whether at 14 or at 21. And the causes of that doubt have béen both upon the words of the Statute of Marlebridge cap. 17. and likewise upon the original writ of accompt against such a Guardian The words of the Statute are these Cum ad legitimam aetatem pervenerit sibi respondeat c. a 16 E. 3. Wast 100. c And legitima aetas is 21 yeares Also the writ of accompt reciting the said Statute saith Quare cum de communi concilio c. provisum sit quòd custodes c. in Soccagio haeredibus c. cum ad plenam aetatem pervenerint reddant rationabilem compotum c. c 16 E. 2. account 120. 17 E. 2. ibid. 121. c 2 E. 2. account 14 E. 3. ibid. 3 Mar. 137. Kelway 131. Pl. 16 El. Rot. 436. Littl. § 123. Whereupon it was gathered that no action of accompt did lie against the Guardian in Soccage at the Common Law untill the heire were of his lawfull and full age of 21 yeares But legitima aetas as the Statute hath it or plena aetas as the writ doth render it are to be understood secundam subjectam materiam viz. of the heire of Soccage land whose lawfull or full age as to the Custodie or Wardship is 14 and therefore upon consideration had of the said Statute and of all the Books it was adjudged in the Court of Common Pleas P. 16. El. rot 436. that the heire after the age of 14 yeares shall have an Action of accompt against the Guardian in Soccage when he will at his pleasure and with this agrées Littleton Sect. 123. Age of Infant to make a wil. 2 Because Littleton saith Sect. 123 that the Guardian in Soccage shall render an accompt of the mariage money to the heire or his executors some have inferred Co. Inst pars 1 89. b. 2. that an infant of the age of 14 may make a will but the meaning of Littleton in that place is that if after his mariage he accomplish his age of 18 yeares he may then make a will and constitute executors for his goods and chattells for at that age he hath power by the Law to make a Will and the words are to be understood Secundam subjectam materiam and as they may stand with Law and Reason Vide suprà 15. 21. The Kings Councils 3 The King of England is armed with divers Councils Co. Inst pars 1 110. a. 2. viz. Commune Concilium which is the Court of Parliament Another is called Magnum Concilium and this is sometimes applied to the House of Péeres alone and sometimes out of Parliament to the Péeres of the Realme being Lords of Parliament who are called Magnum Concilium Regis Thirdly the King hath a Privy Council for matters of State Fourthly the King hath another Councel for matters of Law and they are his Iudges of the Law Now therefore when it is spoken generally of the Kings Councel it is to be understood secundum subjectam materiam as if matter of Law be concerned then his Councel at Law viz. his Iudges are to be understood if matter of State his Privy Councel c. Co. Inst pars 1 302. b. 1. 4 If the
several Warranties in regard they are severally seised the one of part of the land and the other of the residue in severalty 6 E. 2. Covenant Br. 49. So also a joynt Covenant taketh severally in respect of the several interests of the Covenantées Vide 16 Eliz. 337 338. Dyer inter Sir Anthony Cook and Weston in Justice Windhams case Co. l. 5. 7. b. 4. Co. ibid. Justice Windhams case Sometimes also joynt Words or Grants shall enure severally in respect of the incapacity or impossibility of the Grantées to take joyntly as a Lease made to an Abbot and a secular man or to two men or two women and to the heires of their two bodies engendred for in these and the like cases the inheritance is several Vide 19. Co. l. 5. 103. a. Hungares case 12 In Debt upon an Obligation brought by Hungate against Mese and Smith A joint obligation whereof the Condition was to performe an Arbitrament betwixt the Plaintife on the one part and the Defendants on the other part Ita quod Arbitrium praedictum fiat deliberetur utrique partium praedictarum before such a day And the Defendants pleaded that the Arbitrament was indéed made before the day agréed upon and was also delivered unto the Plaintife and unto Mese one of the Defendants but not unto Smith whereupon the Plaintife demurred and Iudgement was given against the Plaintife for in that case it was resolved that sometimes the word uterque is discretive and hath the quality of severing and sometimes collective and hath the property of joyning together as if two or thrée be bound in an Obligation utrumque eorum this word utrumque makes the Obligation several but in the abovesaid case it shall be taken collective And the Rule alwayes to know in which of these two sences it shall be taken is to consider the Subject matter and to make construction according to the congruity of Reason Dyer 28. H. 8. 19. b. ut evitetur absurdum as in the case of the 39 H. 6 7. the Condition of an Obligation was si uterque eorum viz. the Obliger and the Obligée Steterit arbitrio Roberti Bozom c. And it was adjudged that each of them was bound pro parte sua and not the one for the other for that would be absurd and against the congruity of Reason And in the said case of Hungate in as much as both the parties were equally subject to the penalty and danger reason requires that the Arbitrament should be delivered to both the parties to the end they may performe it and avoid the danger of breaking it c. Vide suprà 8 9. Co. l. 62. a. 2. Catesbyes case 13 The time for the Bishop to collate by lapse is Tempus semestre Tempus Semestre halfe the yeare according to the Kalender and is not to be accounted according to 28 dayes for each Moneth for verba sunt accipienda secundum subjectam materiam and therefore because this computation of moneths concernes those of the Church it is great reason that the computation shall be according to the computation of the Church wherewith they are best acquainted 8. 4. Vide Dyer 327. 7. Co. l. 7. 10. a. 3. Calvins case 14 In regard the King albeit he be but one person Allegiance due to the natural capacity yet hath two several capacities in him the one natural as he is a man the othe other politique so called because framed by the policy of man if it be demanded to which of these capacities ligeance is due The answer is that it is due to the natural person of the King which is ever accompanied with the politique capacity and the politique as it were appropriated to the natural capacity and is not due to the politique capacity onely that is to his Crowne or Kingdome distinct from his natural capacity For every Subject is presumed by Law to be sworne to the King which is to his natural person and likewise the King is sworne to his subject as it appeareth in Bracton l. 3. de actionibus cap. 9. fol. 107. which oath he taketh in his natural person because the politique capacity is invisible and immortall nay that capacity hath no soul being framed by the policy of man And therefore in all indictments of Treason when any do intend or compasse mortem destructionem Domini Regis which must néeds be understood of his natural body his body politique being immortal and not subject to death the indictment concludeth contra ligeanciae suae debitum by which it plainly appeares that ligeance is due to the natural body of the King that capacity being indeed the onely subject matter capable thereof Co. l. 8. 85. b. 3. Sir â—ichard Pexhul case 15 If A. deviseth to B. ten bullocks and ten pounds issuing and payable out of his lands and tenements quarterly at the most usual Feasts c. Here these in words payable quarterly Ten Bullocks and ten pound rent ought to be understood Secundam subjectam materiam and to have reference to the rent for ten bullocks per annum cannot be delivered quarterly â—ffices of â—â—st personal 16 The Office of Marshall of the Marshalshey cannot be granted for yeares Co. l. 9. 96. b. 4. Sir George Keynels case because it is an Office of great trust annexed to the person and concernes the administration of Iustice and the life of the Law which is to kéep such as are in execution in salva aâ—cta custodia to the end they may the sooner pay their debts and this trust is indjviduâ—l and personal and shall not be transferred to executors or administrators for the Law will not confide in persons unknown for the ordering of matters which concerne the administration of Iustice c. Bond taken by the Sheriff 17 In debt brought by Dyve against Maningham upon an obligation of 40 li. with condition to save Dyve bring then high Sheriffe of the County of Bedford harmelesse and to be ready at his command Plowd 65. b. 2. Dyve against Maningham as his true prisoner c. the Defendant pleades the Statute of 23 H. 6. cap. 10. by which such bonds taken by the Sheriffe colore officii are made void and farther saith that one Thomas Palley purchased a Liberari fac out of a recognisance to him made by the said Defendant and procured it to be directed to the said Sheriffe of Bedford to be served and certified and shewed farther that the King had sent to the Sheriffes of London Middlesex and Hertford other writs in forme aforesaid and that the same Sheriffe returned the writ into the Chancery c. In this case one exception taken to the Defendants plea was for that there were diâ—ers Sheriffes named in it and at last it is said that the same Sheriffe returned the writ c. which was said to be uncertaine but it was resolved to be certain enough
32 H. 8. 5. the Plaintife could not have had a new execution for the execution of lands was valuable and accounted in Law for a satisfaction and to avoid infinitenesse there could be but one valuable satisfaction or execution with satisfaction at the Common Law but execution of the body is not a valuable execution and therefore the Plaintife after the Defendants death may have new execution untill he be fully satisfied for that is the end and fruit of his suit Et finis rei attendendus est fines mandatorum Domini Regis per rescripta sua viz. brevia diligenter sunt observandi 22 Hob. 8 case of Essoines 33 Qui adimit medium di rimit finem Littl. § 237. 1 Rescous Replevin Dissesin of reâ—â— and Inclosure are thrée sorts of Rent Service because as Littleton saith the Lord is by them disturbed of the meanes to come by his rent Co. Inst pars 1. 161. a. 4. 2 The turning of the whole streame that runnes to a Mill is a disseisin of the Mill it selfe 9 Ass 19. Mirr cap. 2. Sect. 15. Britt 108. 114. Turning a water-course 118. 141. Co. ibid. 3 If a man be disturbed to enter and manure his land Disturbance this is a Disseisin of the land it selfe for Qui obstruit additum destruit commodum 26 Ass 17. 3 E. 4. 2. per Littl. 49 E. 3. 14. b. And therefore where it is said that a man shall not be punished for suing of Writs in the Kings Court be it of right or wrong it is regularly true Replevin but it faileth in the special case of the Writ of Replevin for the cause aforesaid Fitz. N. B. 42. S. 22 E. 3. 15. 43. Ass 40. 43 E. 3. 20. Faux judgement 10. 8 E. 4. 15. per Moile 2 R. 3. 19. Littl. § 240. Co. ibid. 162. a. 3. Bract. l. 2. 16. Brit. 19. 88. Fleta l. 3. 5. 7. If the Lord of a rent Service Terrified from distraining or the Grantée of a rent charge or Seck be going upon the way to distraine for the rent and the Tenant hearing it forestalls his way and threatens him in such sort that he dare not procéed for feare of the losse of life or member this is also a Disseisin of the rent causa qua supra But this must not be vagus vanus timor sed talis qui cadere possit in virum constantem and not in hominem vanum meticulosum talis enim debet esse metus qui in se continet mortis periculum corporis cruciatum Co. ibid. 172. b. 1. 13 E. 3. Leg. 50. 5 An Infant cannot make his Law of non summons for Infant shal â—â—wage according to the Maxime in Law Minor jurare non potest And therefore in that case the default shall not grieve him for séeing the meane to excuse the default is taken away by Law the default it selfe shall not prejudice him Co. ibid. 233. b. 3. 15 E. 4 3. 5 E. 4. 26. 6 If the Kéeper of a Parke fell or cut any Trées Woods The Keeper 〈◊〉 a Park making wast or Vnder-woods and convert them to his own use this is a forfeiture of his office for destruction of the vert is by a meane destruction of venison So it is also if he pull down any house wherein the hey wherewith the Déer are fed is usually put for that also tendeth to the destruction of the Déer 28 H. 8. Beudloes enter evesque de Londres Hieron Co. l. 9. 50. 95 96. 99. Escape 7 If a Gaoler that hath a prisoner in his custodie upon execution Co. ibid. 260. a. 3. Boytons case suffereth him to go at large though it be with a Keeper he is liable to an escape for he ought to kéep him in salva arctà custodia to the end he may the sooner pay his debt Co. l. 3. 43. b. 4. Entry Release of all actions 8 Where a man may enter Co. Inst pars 1. 286. a. 3. Co. l. 8. 152. a 1. Sir Edward Althams case a release of all Actions doth not barre him of his right because he hath another remedie viz. to enter But where his entry is not lawfull there a release of all actions is by consequence a barre of his right because he hath released the meane whereby he might recover his right As if the Disseisée release all Actions to the heir of the Disseisor which is in by descent he hath no remedie to recover the land because he had no other meanes to recover it but by Action and of that he is barred by his Release An Alien hâ—ndred of Trade 9 To hinder an Alien from getting into his hands by Gift Trade Co. l. 7. Calv. case 17. a. or other lawfull meanes any treasure or other personal goods whatsoever as also an house for his necessary habitation and conveniencie of trading and from maintaining any Action for the same were in effect to denie unto him Trade and Traffick which is the life and support as of every Island so more especially of this Kingdome Release of all demands 10 The reason Co. l. 8. 154. a. 3. Sir Edward Althams case why a Release of all Demands doth barre a man of all his Right Title and Interest in any Lands Tenements Gâ—ods Chattels c. is because by such a Release the meanes and remedies of recovering them are utterly extinct and so by consequence the right and Interest in the things themselves Nusances 11 If a man by erecting a Building or a Wood-pile doth stop up or hinder the light of his neighbours house Co. l. 9. 58. a. 2. Aldreds case or if by building an Hogs cote néer his neighbours dwelling-house he much annoyes the same or makes the aire infectious or unholsome an Action upon the case will lie in either of these cases for hereby he hinders and interrupts the peaceable dwelling of his neighbour which is the principal end for which the house was at first erected A Legacie of a Lease 12 A. possest of a Lease for 500 yeares deviseth it to B. for life the remainder to C. and his heires and dies Co. l. 10. 51. b. 3. Lampets case here albeit the whole terme be in B. and C. hath nothing but a possibility or a future Interest and therefore cannot grant it over yet in as much as the Legacie or Devise to C. is in esse and present and therefore may be discharged the Interest also which springs from the Legacie may likewise be discharged for Qui distruit medium distruit finem And therefore if oâ—e devise to another 20 l. when he comes to the age of 24 yeares and die the Legatorie after the age of 21 yeares may release this Legacie and devise and although he afterwards attaine to the age of 24 yeares he shall be barred to recover it and yet in this case a Release of all
and warranteth the land in Forma praedicta afterwards the Lessée performs the Condition whereby the Lessee hath fee In this case the warranty shall extend and increase according to the estate And so it is also albeit the Lessor had died before the performance of the Condition for then also the warranty shall rise and increase according to the estate and yet the Lessor himselfe was never bound to the warranty but it hath relation from the first Livery And the reason of this is because a warranty being a Covenant reall executory may extend to an estate in futuro having an estate whereupon it may worke in the beginning But if a man grant a Seigniory for years upon Condition to have fee with a warranty in forma praedicta and after the condition is performed this shall not extend to the fee because the first estate was but for years which was not capable of a warranty And so it is if a man make a lease for years the remainder in fee and warrant the land in forma praedicta he in the remainder cannot take benefit of the warranty because he is not party to the déed and immediately he cannot take if he were party to the deed because he is named after the Habendum and the estate for years is not capable of a warranty c. Remainder grants Rent charge voydable 34 A. is Tenant in taile the remainder to B. in taile Co. lib. 1. 62. b. 4. Caples case B. grants a rent charge issuing out of the land to C. and his heirs A. suffers a common recovery and dies without issue In this case C. shall not have the rent because the remainder of B. being defeated by the recovery the estate of his Grantee in the rent is also defeated A remainder must vest either during the particular estate or eo instante that it determines 35 A. seized of land holden in Socage deviseth it to D. for life and after to the next heire male of B. B. hath issue C. A. dies Co. lib. 1. 66. b. 4. Archers case per tot Curiam B. enfeoffs D. with warranty In this case by the feoffment of the Tenant for life the remainder is destroyed for every contingent remainder ought to rest either during the particular estate or at least eo instante that it determines because if the particular estate which should support the remainder be once determined in Deed or in Law before the contingency fall the remainder it selfe must needs be also determined and voyd Here therefore in as much as by the feoffment of B. his estate for life was determined by a condition in Law annexed unto it and cannot possibly be afterwards revived for this cause the contingent remainder is destroyed as aforesaid against the opinion of Gascoigne 7 H. 4. 23. b. Co. lib. 1. 135. a. 4. Chudleys case 36 A. grants land to B. to the use of B. for the life of C. the remainder to the heirs male of C. the remainder to the next heirs of A. B. makes a feoffment to C. and his heirs Here by that feoffment The like the estate for life is destroyed and by consequent the remainders which depend upon it are destroyed also for by the feoffment of the Tenant for life title of Entry was given for the forfeiture and at that time he in the next future remainder was not in esse to take it and therefore the remainders in futuro by this matter ex post facto were utterly destroyed made void So if Tenant for life be the remainder to the right heirs of I. S. If in this case Tenant for life make feoffment in fee during the life of I. S. the remainder is destroyed for otherwise there should be a remainder without a particular estate which cannot be Co. ibid. b. 3. 11 R. 2. Detinue 46. 37 A gift in taile was made to A. C. the remainder to the right heirs of A. S. the Donee makes feoffment to B. in fee and after A. S. dies The like the right heir of A. S. shall never have that remainder for the estate of the Land was by the feoffment of the Tenant in tail devested and discontinued and all the estates vested in the Feoffee neither was there any particular Estate either in esse or in right to support the remainder when it fell c. Co. l. 2. 52. a. 4. Sir Hugh Cholmleys case 38 If a man make a gift in taile the remainder in fée The like he in the remainder grants his remainder to another for life the remainder to the King in fée upon condition that if he pay or tender 10 l. at the Rolls c. that then the grant shall be void The tenant in taile suffers a recovery and thereby destroys not onely the estate taile it selfe but likewise the remainder in fée and the estate for life granted by him in the remainder and so by consequent the remainder to the King as also the condition which depend upon the estate for life c. Co. lib. 2. 55. Bucklers case 39 There is a diversity betwixt a grant made by the agréement of the parties which standeth not with the rules of Law Grant made upon a good ground contra Diversity can never by any subsequent as by livery or attornment be made good a grâ—â—t which is good at the beginning but is to have his consummation and perfection by some Ceremony subsequent As in case of a Charter of feoffment if the Feoffée enter before livery he is not a Disseisor for the Charter is good and the agréement of the parties is according to Law and that may be made good by livery of seisin subsequent But if lands in lease for years be granted to C. Habendum tenementa praedicta from Michaelmas next for life and after Michaelmas the Tenant attorns In this case the grant to C. is voyd and cannot afterwards be made good by attornment and therefore if he enter he is made a Disseisor for the Law will make construction upon the whole grant and an estate of Franktenement cannot commence in futuro And therefore observe well the difference betwixt a good beginning or foundation capable of a structure and an evill one which wants a foundation whereon the structure may stand and be built c. Co. lib. 4. 24. a. 1. Copihold cases Clarke and Penyfathers case 40 If a Disseisor or the feoffée of a Disseisor or any other Admittances of copihold that hath a forcious or feasible estate or interest subject to the action or entry of another holdeth Court and maketh any voluntary grant upon the escheat or forfeiture of a Copi-hold such voluntary grant shall not bind him that right hath for when after re-continuance of the Mannor by action or entry he shall have defeated the title of such Disseisor c. he shall also avoyd such voluntary grants But if such a Lord that is in
by such defeasible title admit any of the Tenants upon surrender made to the use of another or gives admittance to the heire upon descent such admittances are good because grounded upon the custome of the Mannor and therefore such acts are lawfull and quodam modo judicial which he may be forced to do in a Court of Equity and for that cause such admittances will binde those that right have c. Copihold â—ce leased â—e custome is â—estroyed 41 If a Copihold estate be forfeit or escheat Co. l. 4. 3. 1. a. 3. Frenches case or otherwise fall into the Lords hands if the Lord make a lease for years thereof or for life or any other estate by déed or without déed or suffer if before any new grant thereof to be extended upon a Statute recognizance or the like or if the Feme of the Lord have it assigned unto her in dower c. In all these cases and the like the custome which supports the Copihold tenure being destroyed the tenure it selfe is also destroyed so that it shall never after be granted by Copie or holden by Copie of Court Roll Howbeit after it is so forfeited or escheated as aforesaid the Lord may kéep it as long as he please in his hands before he makes any voluntary grant of it and yet the Custome shall be preserved because it is all that while demised or demisable and so it ought to be by the Custome c. â—ease void â—on a void â—nsideration 42 The Kings patentée for years assigns divers parcells of the land to other severall persons still reserving to himselfe part thereof Co. l. 5. 94. a. 1. Barwicks case and takes another lease in reversion for 21 years the principall consideration whereof was the surrender of the old lease whereof he had assigned divers parcels to others as aforesaid And after 3 years of the last lease were expired in consideration of the surrender of the same last lease the King grants him another of all the same land for thrée lives In this case the last grant of the lease for lives was adjudged void because when the Patentee took the second lease the consideration thereof was the surrender of the first lease which could not be any good consideration for that he had before assigned divers parcels of the land to others and then the King was deceived in his Grant and by consequent the second lease was void Now therefore the surrender of the second lease which was void being the consideration of granting the last lease for lives that last lease being granted upon a consideration which was not valuable must néeds be void also â—meys acâ—ats 43 If a Writ abate for Non-tenure of all Co. l. 6. 10. a. 4. Spencers case the Demandant shall not have a new writ by Journeys accounts because the first writ was taken out without cause or ground 33 H. 6. but a praecipe of a Mannor being abated for non-tenure of parcell the Demandant shall have a Writ by Journeyes accounts because the Tenant is Tenant of the residue for which the Writ is brought and it were hard to force the Demandant to discover in whom the estate of every parcell of the Mannor stands 4 E. 3. 159. â—dable leaâ— 44 When voidable leases being void for a time Co. l. 7. 8. a. 2. The Earl of Bedfords case shall be ever after avoided and when not this difference is taken viz. when the interest of him that makes the avoydance is but for part of the terme so that after his interest determined a residue of the terme doth still remain and when he that makes the avoydance so avoyds the whole interest that no part of the terme at all doth remain after such avoidance As if Tenant in taile of Lands in Capite make leases not warranted by the Statute of 32 H. 8. 28. and die his heire being under age In this case although the King in right of the heir may avoid those leases for his time yet if after the Kings interest determined the heir accepts the rent they shall be thereby made good again But if the Patron of the Church of D. grant the prochein avoidance to another and after and before the Statute of 13 Eliz. the Parson Patron and Ordinary had made a lease for years rendring rent and the Parson had died and the Grantée had presented a Clerk who had béen admitted instituted c. in this case that lease had béen absolutely destroyed and the Successor although the Patron that was party to the lease present him shall avoid it c. Co. l. 8. 43. b. 4. in Whittinghams case 4 H. 6. fol. 2. 45 A man seized of certain Lands in right of his wife Deseasable 〈◊〉 states makes feoffment by déed indented of it to certain persons upon condition that they shall let the Land again unto the Baron and Feme for their lives with divers remainders over in taile the remainder to the right heirs of the Baron and after the Baron dies the Feoffées let the Land to the Feme for life the remainders over in taile the remainder to the right heirs of the Feme whereas it should have béen to the right heirs of the Baron In this case when the heir of the Baron enters for the condition broken by his entry the feoffment that made the discontinuance is defeated and so by consequence the discontinuance it self is defeated also so that the Feme may enter and shall be in as of her former estate Co. l. 8. 75. a. 3. in the Lord Staffords case per Coke chief Iustice 46 When one estate is to increase upon another estate by force of a condition precedent the first estate ought to be permanent Estates by â—â—cruer which may serve as a firme foundation whereon to build the future estate and not removeable at the will of the Grantor or Lessor And therefore if a man grant an Advowson to another at will upon condition that if he do such an act he shall have fée In this case the estate at will is no such foundation as the Law requires to support the encrease of an estate of Franktenement or Inheritance for the Grantor may determine his will before the performance of the condition and so avoid his owne grant and a Lease at Will cannot support a remainder over So likewise if a man grant an Advowson Rent c. for years upon condition if the Lessée within a yeare pay 10 s. he shall have for life and if he pay 20 s. within another yeare after he shall have fée the Lessée performs both conditions yet shall he have but for life for the estate for life at the time of the Grant was but in contingency which is no foundation upon which a greater estate may encrease because a possibility cannot encrease upon a possibility and the estate of Fee-simple cannot encrease upon the estate for years for that is drowned by the
Parson in the same plight condition that he was in upon his first presentation notwithstanding the presentment of the other by the Defendant c. â—nferiour Courts 30 When a writ of right is directed to the Lord of a Mannor Co. l. 6. 11. a. Jentlemans case or his Bayliffs or a Iusticies or other Vicontiel Writs are directed to the Sheriffe c. that shall not change the nature or jurisdiction of those Courts as to make the Lord or Sheriffe to whom those Writs are directed to be Iudges of those Courts respectively which were not so before but the Sutors do still remaine Iudges thereof Neither yet shall the direction of those Writs to the Lord or Sheriffe as aforesaid albeit they are in themselves matter of Record constitute the Lord or Sheriffe to be Iudges of Record or a Court Baron Hundred Court or County Court to be Courts of Record For upon a Iudgment given in any of those Courts a writ of False judgement lies and not a writ of Errour c. No change by â—emise of the â—ing 31 When the King demises his Crown to the next Successor Co. lib. 7. 29. b. 4. Discontinuance of processe per mort de la Roygne upon the general resummons by the Kings writ which begins thus Mandamus vobis quod ad sectam nostram animumque ligeorum populi nostri c. the originall and issue if any be joyned is revived for that is a full record and ought to be entred it is otherwise of the processe before issue joyned voucher garnishment c. yet they shall be also revived upon a special writ reciting all the special procéeding And it appeares by the booke of Entries tit Reattachment 499. that if the Issue be joyned and the Iury returned and a day given for tryall before which day the King dies yet by special resummons all shall be revived for the Iury was returned of record and the record thereof was made full and perfect c. Co. lib. 11. 64. a. 2. Doctor Fosters case 32 It is ordained by the Statute of 1 Eliz. cap. 2. Statutes for going to Church That every person shall resort to their Parish Church or upon let thereof to some other every Sunday and Holiday c. And by the Statute of 23 Eliz. cap. 1. That every person not repairing to Church according to 1 Eliz. 2. being thereof lawfully convict shall forfeit twenty pound for every moneth they so make default and that of the forfeitures aforesaid the Queen c. shall have the two third parts viz. the one to her owne use the other for reliefe of the poore c. and the other third part the prosecutor shall and may recover by action of debt c. And by the Statute of the 29 Eliz. cap. 6. it is enacted That every such offender once convicted shall afterwards in Easter and Michaelmas Termes pay unto the Exchequer twenty pound for every moneths absence from Church c. and if default be thereof made c. the Queens Majestie c. shall and may by processe out of the Exchequer seize all the offenders goods and two parts of his lands c. And lastly by the Statute of 35 Eliz. cap. 1. It is ordained c. that for the more speedy recovering c. of the forfeitures c. payable to the Queen c. by vertue of this Act and of 23 Eliz. 1. all and every such forfeitures c. shall be recovered c. by action of debt c. in the Kings Bench the Common Pleas or Exchequer as other debts may be recovered c. Here albeit the Statutes of the 29 and 35. séems to alter the law of the 23. in respect of part of the penalty given to the prosecutor by the 23. and being all of it mentioned as given to the Quéen in the other two subsequent Acts Yet the Act of the 23. remains in full force according to the tenour of the same notwithstanding the said subsequent Acts because those two Acts do not give the penalty to any new person but to the same person to whom the Statute of the 23. giveth it viz. to the Quéen c. and they are but acts of addition especially that of the 35. to give a more speedy remedy than was given by that of the 23. c. As in a Writ of Mesne the processe at the Common Law was Distresse infinite and although the Statute of Westm 2. cap. 9. gives a more speedy processe and in the end a Forejudger yet the Plaintiff may take which processe he will either at the Common Law or upon the said Statute because both are in the affirmative Vide ibid. many authorities accordant c. Co. ibid. 4. 33 In many cases the designation of one person in a late Act of Parliament Grant of Ward shall not exclude another person which was authorized to do the same thing by an Act precedent It is provided by the Statute of the 8 H. 6. cap. 16. that after office found c. he which found himselfe grieved might within the moneth after traverse and to take the lands and tenements to farm and that then the Chancellour Treasurer and other Officer shall demise unto him to farme untill c. Vide 13 E. 4. 8. And now by the Statute of the 1 H. 8. cap. 16. he hath liberty by the space of three moneths And after the Statute of the 32 H. 8. cap. 40. gives authority to the Master of the Wards with the advice of one of the Council to make a lease of the Wards lands or of an Idiots during the time that they shall remain in the Kings hands Here albeit the last designes another person yet doth it not utterly take away the first For if before any lease made by the Master of the Wards the Chancellour and Treasurer make one according to the Statute of 8 H. 6. then cannot the said Master demise the lands So also if the Master grant them first to another the Chancellour Treasurer c. cannot demise them to the party grieved as Stanford holds Praer fol. 69. a. b. where he mentioneth the rule Leges posteriores prioâ—es contrarias abrogant In 43 Ass Pl. 9. the Statute of 13 E. 3. de Mercatoribus which gives assise to the Tenant by Statute Merchant taketh not away the Assize which the Tenant of the Franktenement had before but both may well stand together So in 33 H. 8. Dyer 50. if it should be enacted that the youngest son should have an appeale of the death of his father that would not exclude the eldest son of his fuit because there are no words of restraint c. â—ncient Deâ—esne 34 In a writ of right Close if the writ of the Demandant abate F.N.B. 19. d. and thereupon he brings a writ of false judgement in the Common Pleas and there the judgement being reâ—ersed the writ is awarded good then shall the Demandant hold
50. E. 3. nu 123. And it hath béen attempted in Parliament to give an action of accompt against the Executors of a Guardian in Soccage but never could be effected â—â—nity and 〈◊〉 charge 3 An annuity is a yearly payment of a certain sum of money granted to another in fée for life or yeares Co. ib. 144. b. 3. and charging the person of the Grantor onely but doth not enure to the Grantée onely for his heire and his and their Grantée shall have a writ of Annuity but if a Rent charge be granted to a man and his heires he shall not have a writ of Annuity against the heire of the Grantor albeit he hath assets unlesse the grant be for him and his heirs â—â—cisor â—ease 4 If a Disseisor make a lease for life the remainder in fée Co. ib. 275. b. 2. and the Disseisée releaseth unto the tenant for life all his right this release shall enure to him in remainder because as to this and some other purposes they are but as one Tenant in Law Howbeit if the Disseisée release all actions to the Tenant for life after the death of the Tenant for life he in the remainder shall not take benefit of this release for it extended onely to the Tenant for life and ended with his life as it was adjudged in Edw Althams case Co. l. 8. 148. So also if the Disseisor make a lease for life and the Disseisée release all actions to the Lessée this enureth not to him in the reversion c. â—taile in an â—cale 5 In a writ of right when the tryall is by Battaile Co. ib. â—94 b. 4. neither the Tenant nor Demandant shall fight for themselves but shall finde each of them a Champion to fight for them because if either the Demandant or Tenant should be slain no judgement could be given for the lands and tenements in question It is otherwise in an appeal for here the Defendant shall fight for himselfe and so shall the Plaintiff also because there if the Defendant be slaine the Plaintiff hath the effect of his suit viz. the death of the Defendant c. â—â—mment in life of â—â—tor and â—â—ntee 6 Vpon the grant of any thing whereunto attornment is necessary Co. ibid. 309. a. 4. as of a Seigniory rent reversion remainder c. the attornment must be made during the lives both of the Grantor and also of the Grantée for if either of them die before attornment the grant is void And the reason hereof is for that every grant must take effect as to the substance thereof in the lifetime both of the Grantor and of the Grantée whereas in this case if the Grantor dieth before attornment the seigniory rent reversion remainder c. descends to his heire and therefore after his decease the attornment cometh too late so likewise if the Grantée dieth before attornment an attornment to the heire is void for nothing descended to him and if he should take he should do it as a purchasor whereas heires were added but as words of limitation of the estate and not to take as purchasors c. Co. lib. 2. 36. a. Sir Rowland Heywards case 7 If a man for good consideration bargain sell Election and demise a reversion of land to the use of another for yeares and the Grantor or Cestuy que use die before attornment or enrollment the grant is in this case void or good at the election of Cestuy que use void if taken at the Common Law by way of grant because then there wants attornment but good by way of Bargain and Sale according to the Statute of Vses 27 H. 8. cap. 10. and because the Statute of 27 H. 8. cap. 16. of Enrolments extendeth not unto it for that no estate of Franktenement pâ—sseth but onely an estate for yeares And notwithstanding the death of the Grantor and Cestuy que use either one or both the Executors or Administrators of Cestuy que use have power as well as Cestuy que use himselfe to choose by which way they will claime whether by way of grant at the Common Law or by way of Bargain and Sale according to the said Statute of Vses because Cestuy que use had immediately upon the grant a present interest in him which hee or in case he had died his Executors before election might have assigned over and for that he claims one and the same thing by two several wayes it being in his or his Executors power to choose which of them they please It is otherwise where the election is to choose one of two several things by one and the same way or title for then nothing passeth before election and that election must be made during the life of the parties And therefore if I have thrée horses and I give unto you one of my horses in this case the election ought to be made in the life of the parties for in as much as none of the horses is given in certain the certainty and therefore the property commenceth by election And with this agrées Bullocks case in the 10 of Eliz. 281. The Bishop of Sarum having a great Wood of 1000 acres called Berewood enfeoffs another of an house and of 17 acres parcell of the said wood and makes livery in the house here nothing passeth of the wood before election and therefore his heire could not make election c. Co l. 8. 6â— a. 1. in Jo Trollops case 8 If the Bishop make Certificate and die before it be received Certificatâ— a Bishop the Certificate is worth nothing but the Successor ought to certifie a new Fitz. 55. Co. lib. 9. 87. a. 4. Pinsons case 9 An action of Debt lyeth not against Executors upon a contract for the eating and drinking of the Testator for that action dieth with him Wager of Law Executors because in that case the Executors cannot wage their Law as the Testator might have done for a man shall never have an action against Executors where the Testator might in his life time have waged his Law because they cannot have the benefit of Law-wager as he might have had c. 15 E. 4. Vide infrà 14. Co. lib. 11. 1. The Lord De la Wares case 10 Of the family of the Lord De la Ware there was Grandfather Dignity restrained foâ— life Father and Sonne the Grandfather 3 H. 8. was summoned to the Parliament by Writ and after in 3 E. 6. it was enacted that the father should be disabled during his life from claiming any dignity but was afterwards by Qu Eliz. called to the Parliament and sate in the House as a puisne Lord and died after whose death the sonne sued in Parliament to be restored to the place of his Grandfather viz. betwixt the Lord Berkley and the Lord Willoughby of Ersby and it was granted him For there was a diversity taken betwixt a disability personal and
privity c. So also it is if the Tenant alien hanging the precipe the release of the Demandant to the Tenant the precipe is good and yet he hath nothing in the land c. Co. l. 1. 87. b. Corbets case per Walmsley Co. Inst pars 1. 266. a. 1. 45 In time of vacation an Annuity that the Parson ought to pay Release to 〈◊〉 Patron good may be released to the Patron in respect of the privity But a release to the Ordinary onely seemeth not good because the Annuity is temporal Littl. § 452. Co. ib. 267. b. 1. 46 A release of a right made to him in reversion or remainder Privies in estate shall aid benefit him that hath the particular estate for years or life or an estate taile So likewise shall a release of a right made to the particular Tenant for life or in tail aid and benefit him or them in the remainder c. because they are all privies in estate c. Littl. Sect. 454. Co. ibid. 268. a. 47 If there be Lord and Tenant and the Tenant is disseised Release to privies goâ—d and the Lord release to the Disseisee all his right in the Seigniory and in the land this is a good release and the Seigniory is thereby extinct and this is by reason of the privity that is between the Lord and the Disseisee And therefore there is an observable difference betwixt a Seigniory or Rent-service and a Rent-charge For a Seigniory or Rent-service may be released extinguished to him that hath but a bare right in the land and the reason of this is in respect of the privity between the Lord and the Tenant in right For the Disseisee is not onely in that case as Tenant to the Avowry but if he die his heire within age the heire shall be in ward and if of full age he shall pay relief and if he die without heire the land shall escheat but there is no such privity in case of a Rent-charge for there the charge onely lyeth upon the land A Seigniory may likewise be released by the Demandant to the Vouchee Co. ib. 269. a. 1. as also by the Donor to the Donee after the Donée hath discontinued in fée and this is méerly in respect of privity without any estate or right c. And therefore if the Donée in taile maketh a feoffment in fee and the Donor release to him and his heirs all his right in the land this shall extinguish the rent because the Lord must avow upon him and yet the Tenant in tail after the feoffment hath no right in the land but the reason is in respect of the privity and for that the Donor is of necessity compellable to avow upon him onely For if he should avow upon the Discontinuée then it should appear of his own shewing that the reversion whereunto the rent is incident should be out of him and consequently the Avowry should abate And so it was resolved Trin. 18 Eliz. in the Common Pleas in Sir Thomas Wiats case Much more then shall a release made by the Donor to the Donée being disseised extinguish the rent reserved upon the gift in tail Littl. §. 455. because in that case the Donée had still a right in him Howbeit this is also in respect of the privity that is betwixt the Donor and Donée yet here by such a release no right of the reversion shall passe to the Donée because at the time of the release he had nothing but a right in the land c. For a release of a right in lands and tenements to one that hath but abare right Co. ib. 267. a. 4. 273. a. 2 c. regularly is void And to make such a release available he to whom it is made must have either frée-hold in Déed or in Law in possession or a state in remainder or reversion in fée or fée-tail or for life c. Release beâ—ore entry â—oid 48 A man lets his land to another for terme of years Littl. Sect. 459. Co. ib. 270 a. 3. 4. and the Lessor releaseth to the Lessée all his right c. before the Lessée enter into the land that release is void as to enlarge his estate the Lessée having onely Interesse termini and not possession of the land but if such a Lessée enter and have possession then such a release unto him after entry shall be avaylable to enlarge his estate according to the limitation of the same by reason of the privity that is betwixt them by force of the same lease Howbeit if a man make a lease for years to begin presently reserving a rent if before the Lessée doth enter the Lessor releaseth all the right that he hath in the land albeit this release cannot enlarge his estate yet it shall in respect of the privity extinguish the rent And so it is also if a lease be made to begin at Michaelmas reserving a rent and before the day the Lessor releaseth all his right c. this cannot enure to enlarge the estate neverthelesse it shall extinguish the rent in respect of the privity as it was resolved in the Exchequer 39 40 Eliz. betwéen Sir Henry Woodhouse and Sir William Paston Release of Joyntenant of an advowson 49 A man granteth the next avoydance of an Advowson to two Co. ib. 270. b. â— the one of them may before the Church become void release to the other For albeit the Grantor cannot release to them to encrease their estate because their interest is future and not in possession yet one of them to extinguish his interest may release to the other in respect of the privity But after the Church becomes void then is such a release void because it is then as it were but a thing in action Pasc 38 Eliz. in Quare Impedit per Denuet vers l'evesque de Norwich in Com. Banco Release to tenant at will good to tenant at sufferance void 50 A release to a Tenant at will is good Littl Sect. 460 461. Co. ib. 276. b. 3. 271. a. 132. because betwéen the Lessor and such a Lessée there is a possession with a privity but a release to a Tenant at sufferance viz. who cometh to the possession first lawfully and then holdeth over is utterly void because he hath a possession without privity As if Lessée for years hold over his terme c. a release to him is void for that there is no privity betwéen them and so are the books that speak of this matter to be understood for if a man entreth into land of his own wrong and take the profits his own words That he will hold it at the will of the owner cannot qualifie his wrong but he must néeds be a Disseisor and then a release to him is good or if the owner consented thereunto then is he a Tenant at will and that way also a release is good Howbeit there is
67. a. Tookers case 67 If two Ioyntenants let their land for life reserving rent Release of one Joyntenant to another c. if one of them release unto the other that release unto the other that release is good to settle the whole estate and rent in him to whom the release is made without any attornment at all of the Tenant for life in respect of the privity betwéen the Tenant for life and them in the reversion So it is also albeit there be thrée or more Ioyntenants and one of them release to one of the other Howbeit there is a difference betwéen these releases for the release in the â—â—e case maketh no degrée but he to whom the release is made is supposed in from the first Feoffor whereas in the other it worketh a degrée and he to whom the release is made is in the per by him that made it yet in neither of these cases is there any attornment requisite by reason of the privity But if one Ioyntenant make a Lease for years reserving a rent and dieth the other Ioyntenant shall have the reversion because he claimes paramount that Lease as by the first Feoffor Howbeit he shall not have the rent for that there is no privity betwéen him and the Tenant for years as there was in the other case betwéen the tenant for life and them in the reversion c. Attornment by â—ne Joynteâ—ant good for â—oth 68 If two joynt Lessées for years Co. ib. 319. a. 4. or for life be ousted or disseised by the Lessor and he enfeoff another Here if one of the Lessées re-enter this is a good attornment and shall bind both in respect of the privity betwéen the Ioyntenants For an attornment in Law is as strong as an attornment in Deed. Co. l. 2. 67. a. Tookers case Grant of a Seigniory by â—ne shall have â—n Assise beâ—ore attornment 69 If there be Lord and Tenant Littl. §. 579. Co. ib. 320. a. 2. Littl. §. 580 581 582. v. Dyer R. 5. 6. and the Lord grants the Services by Fine hereby the Services are immediately in the Grantée by force of the Fine Howbeit he cannot distraine for any part of the Services without attornment because an Avowry is in lieu of an action which he cannot have without privity nor privity without attornment neither yet before attornment can he have an action of wast a writ of entry ad communionem legem or in consimili casu or in casu proviso a Writ of Customes and Services a Writ of Ward c. But if a man make a Lease for years and grant the reversion by Fine if the Lessee be ousted and the Conusee disseised the Conusee without attornment shall maintaine an Assise for that Writ is maintained against a stranger where there needeth no privity And of such things as the Lord may seise or enter into without suing any action the Conusee before any Attornment may take benefit as to seise a ward or heriot or to enter into the lands or tenements of a ward or escheated to him or to enter for an Alienation of Tenant for life or years or of Tenant by Statute Merchant Staple or Elegit to his Disherison Discontinuâ—nce barres entry 70 One of the chiefe reasons why a Feofment in fee gift in tail Co. ib. 327. a. 1. or Lease for the life of the Lessée made by the Tenant in taile doth make a discontinuance to take away the entry of him in reversion or remainder in case the Tenant in tail die without issue is because the Tenant in tail and he in the reversion or remainder are privies in estate c. Where it is no â—ane 71 If Tenant in tail make a Lease for the life of the Lessée Co. ibid. 333. b. 4. Littl. Sect. 620. and afterwards grant the reversion to another and the Tenant for life attorns and dies and the Grantée of the reversion enters in the life of the Tenant in tall and after the Tenant in tail dies In this case the issue cannot enter but is put to his Formedon in respect of the privity between the Tenant in tail and his issue the Grantee of the reversion having seisin and execution of the entailed lands in the life and from the grant of the Tenant in tail himselfe Howbeit if Tenant in taile make a Lease for life and grant the reversion in fee and the Lessee attorn as before and that Grantee granteth it over to another and the Lessee attorneth again to the last Grantee and then the Lessee for life dieth so as the reversion is executed in the life of Tenant in tail yet this is no discontinuance but that after the death of the Tenant in tail the issue may enter because the last Grantee was not in of the grant of the Tenant in tail himselfe but of the first Grantee between whom and the issue in tail there is no privity c. â—iscontinuâ—ce 72 If at this day Tenant in tail make a Lease for life Co. ib. 333. b. 4. and after by Deed indented and inrolled according to the Statute he bargaineth and selleth the reversion to another in fee and the Lessee dieth so as the reversion is executed in the life of Tenant in tail Albeit the Bargainee is not in the per by the Tenant in tail but rather in by force of the Statute yet in as much as he claimeth the reversion immediately from him which is executed in his life time this is a discontinuance And so it is and for the same cause if Tenant in tail had granted the reversion to the use of another and his heirs c. in respect of the privity between the Tenant in tail and his issue c. Co. ib. 351. a. 4. 73 If a woman grant a term to her own use A trust goeth to Executoâ—â— and not to the Baron taketh Husband and dieth the Husband surviving shall not have this trust but the Executors or Administrators of the Wife for it consisteth in privity P. 32 Eliz. in Canc. in Withams case c. Co. Inst pars 1 352. a. 4. 74 In every Estoppel privity is required Estoppels for it ought to be reciprocal viz. ought to binde both parties and therefore regularly a stranger shall neither take advantage nor be bound by an Estoppel But privies in bloud as the heir Privies in estate as the Feoffee Lessee c. Privies in Law as the Lord by escheat Tenant by the Courtesie Tenant in Dower the Incumbent of a Benefice and others that come under by act in Law or in the Post shall be bound and take advantage of estoppels c. Littl. §. 674 675. Co. ib. 356. a. 3. 75 If a man let a house to a woman for life For an actâ—â—â— of wast priâ—â— is requisite saving the reversion to the Lessor and after one sues a feigned action against the woman and recovers the
party heir or assignée but in privity of estate yet any that is in of another estate be it by disseisin abatement intrusion usurpation or otherwise shall rebutt by force of the warranty as a thing annexed to the land which sometimes was doubted among the Sages of our Law Release of a writ of Errour 84 If a man be out-lawed in a personal action Co. Inst pars 1. 289. a. 2. c. and brings his writ of Error if he at whose suit he was out-lawed will plead against him a release of all actions personal this séems to be no plea because by the said action he shall recover nothing in the personalty but onely to reverse the Outlawry Howbeit in that case a release of the writ of Errour is a good plea For albeit the Plaintiff in the writ of Errour is to recover or be restored to nothing against the party Yet inasmuch as the Plaintiff in the former action is privy to the record a release of a writ of Errour to him is sufficient to barre the Plaintiff in the writ of Errour of the suit and vexation by the said writ of Errour Co. ib. 48. a. 4. 49. b. 3. Co. ib. 54. a. 1. 85 If there be divers Feoffées Livery to 〈◊〉 Joyntenant good to boâ—â— and the Feoffor makes livery onely to one of them according to the deed In this case the land passeth to them all in respect of the privity of their estate c. So likewise if there be two Ioyntenants of a Ward and one of them do waste both shall answer for it for the same reason Co. ib. 54. a. 1. 86 A Tenant by the Courtesie or in Dower Wast against tenant in dower and by the Courteâ—â— can hold of none but of the heire and his heirs by descent and therefore if they grant over their whole estate and the Grantee doth waste yet the heir shall have an action of waste against them and recover the land against the Assignee but if the heir either before the assignment had granted or after the assignment doth grant the reversion over the stranger shall have an action of waste against the Assignee because then in both cases the privity is destroyed Co. ibid. a. 2. c. Vide infrà 94. Also if waste be done by a stranger they shall answer for it c. Co. l. 2. 66. b. 4. Tookers case 87 There are two Iointenants for life Attornment 〈◊〉 one Joyntenant good 〈◊〉 both the reversioner grants over his estate in fee one of the Iointenants onely doth attorn this is a good attornment of both to settle the reversion in the Grantee in respect of the privity and intirenesse of their estate Co. ib. 67. a. 2. c. So if the Lessor disseise his two Lessees for life and enfeoff another and one of the Lessees re-enter this act of one of them is an attornment in Law for both If one Iointenant give seisin of rent that shall binde his companion as it is agreed in 39 H. 6. 2. If a lease be made to two and after the reversion is granted to one of them and he accepts the deed this is holden good attornment in Law for both Baldwin 28 H. 8. Dyer 12. b. Co. l. 3. 2. a. 4. The Marq. of Winchesters case 88 Albeit by the general words of the act of attainder of all rights Right of actâ—on not forfeâ—ed by attaâ—â—er c. and hereditaments c. made against the Lord Norris in the 28 H. 8. all his lands c. in demesne reversion or remainder and also all his right to lands and tenements into which his entry was congeable were given to the King yet neither a writ of Errour nor right of action to recover land were given to him by the general words of the same act although such a right is truly a right and also an hereditament because such a right for which the party hath no remedy but by action onely to recover the land is a thing which consists onely in privity and which cannot escheat or be forfeit at the Common Law Of this sort are the right of Formedon in descender the right of action upon a disseisin and a descent cast and the like Co. l. 7. 13. a. 4. in Englefeilds case Co. ib. 4. a. 3 4. 89 Vpon judgement given against Tenant for life A reversioner shall bring Errour c. or against Tenant in tail since the Statute de donis conditionalibus he in the reversion or remainder may have a writ of Errour albeit he was not party to the suit by aid prayer voucher or receipt But he could not in that case bring that writ till after the particular estate determined Howbeit if he was party and privy to the first record by aid prayer voucher or receipt then might he have a writ of Errour presently during the life of the Tenant in tail or for life for that he was in that case party and privy to the first record c. Co. l. 3. 6. a. Cuppledikes case 90 Baron and Feme are seised of lands to the use of them Upon fine and vouching tenant in tail the remainder is barred and the heirs male of the body of the Baron the remainder in fee to another the Baron acknowledgeth the fine of the land in fee and a stranger recovers the land against the Conusee who voucheth the Baron onely and he voucheth over the common Vouchee and judgement and seisin are given accordingly the Feme being still in life This recovery shall bind the remainder for here was a lawful Tenant to the precipe and albeit the Baron who had the estate tail was onely vouched and not the Feme who had a joynt estate with him Yet the Baron coming in as Vouchee he comes in privity of the estate tail and not of any other estate and then the recovery in value gives recompence both to the estate tail which the Baron hath and also to the remainder over because although by the fine the estate tail as also the estate of the Feme and the remainder were all devested or discontinued yet the Baron as Vouchee shall be in judgment of Law in of his estate tail And the case is the stronger inasmuch as the estate of the Feme was put to a right So that the Baron comes in now as sole Tenant in tail and cannot be joyntly seised with the Feme because she was not Vouchée Neither yet can the Baron be in of any other estate for that he once had an estate tail and now comes in as Vouchée and therefore in that case in respect of the privity shall be said in as of the estate tail and not otherwise But if the wives inheritance had béen joynt with her husbands it might be doubted 108. 28. The like 91 If A. be Tenant in tail the remainder to B. in tail Co. ibid. the remainder to C. in tail
Inst pars 1 83. b. 3. All Earldoms and Baronies were derived from the Crown and were holden of the King in Capite and the King would not then suffer them to be divided or severed And such intire Earldoms and Baronies are within that Statute to pay relief according to the limitation thereof Howbeit at this day Earls and Barons are without such Earldoms and Baronies of the Kings gift in chief For at the creation of an Earl he hath sometimes an Annuity granted unto him and sometimes nothing at all but rather giveth somewhat for his Honour So as such Earls and Barons so created are cléerely out of the Statute of Magna Carta and are to pay such reliefs as other men that hold of the King in Capite For as the heir of a Knight shall not pay 100 s. relief unlesse he hath a Knights fée c. so neither the Earl nor Baron shall pay any relief by that Statute unlesse he hath an Earldom or Barony intended by the same Statute c. â—xecutors to â—ll lands 14 By the Statute of 21 H. 8. cap. 4. it is provided Co. ib. 113. a. 3. that where lands are willed to be sold by Executors though part of them refuse yet the residue may sell And here albeit the letter of the Law extendeth onely where Executors have a power to sell yet being a beneficial law it is by construction extended also where lands are devised to Executors to be sold Co. ib. 143. a. 4 Littl. Sect. 216. 15 The Law so regardeth equity and equality Tenure of land that it will in divers cases work according to them without any provision or reservation of the party And therefore if before the Statute of Quia emptores terrarum a man had made a feoffment in fée rendring rent to him and his heirs this was Rent-service for which he might distrain of common right And if he had made no reservation at all of any rent or service Yet the Feoffée should then have holden of the Feoffor by such service as the Feoffor held over of his Lord next paramount For the Law in this case did create a tenure Littl. Sect. 222. Co. ib. 148. b. 3. 16 If a man seised of divers lands of some in Fée-simple Rent-servâ—â— apportionable and of the rest in tail make a gift in tail or a lease for life or years of all reserving a rent and die Here if the issue in tail avoyd the gift or lease as to the entailed lands the rent shall be apportioned for seeing the rent is reserved out of and for the whole land it is reason that when part thereof is evicted by an elder title that the Donée or Lessée should not be charged with the whole rent but that it should be apportioned ratably according to the value of the land Co. ib. 154. a. 1. 17 By the Statute of 7 R. 2. cap. 10. it is enacted Equity upâ—â— 7 R. 2. â—â— that an Assise of rents issuing forth of lands in divers Counties shall be taken in Confinio comitatus which séems to be meant onely of Counties that border one upon another Neverthelesse albeit the Counties do not joyn but have twenty Counties lying between them yet the assise in Confinio comitatus doth lye and the Iustices shall sit between the said Counties And where the Statute seems to speak of two Counties onely the like Law is when the rent issueth out of lands lying in more Counties than two Co. ibid. a. 3. 18 The Statute of Merton cap. 2. made 20 H. 3. Equity upâ—â— Merton 20 H. 3. which gives the writ of Redisseisin is as followeth Item si quis fuerit disseisitus de libero tenemento coram justiciariis Itinerantibus seisinam suam recuperaverit per Assinam novae disseisinae vel per recognitionem eorum qui fecerint disseisinam ipse disseisitus per Vicecomitem seisinam suam habuerit fi iidem disseisitores posteà post iter justiciariorum vel infrà de eodem tenemento iterum eundem conquerentem disseisiverint inde convicti fuerint statim capiantur c. Here albeit this Statute seems to intend onely lands and tenements Littl. Sect. 233. yet Littleton § 233. Rent-sec◠〈◊〉 charge expounds it to extend also to a Rent-charge or a Rent-seck For although they are against common right yet a man may have a Free-hold in them And therefore if a man grant omnia tenementa sua a Rent-charge or a Rent-seck will also passe thereby Also by the same Statute the Assise seems to be limited to be taken onely coram justiciariis Itinerantibus Howbeit Littleton there speaketh generally and so is the Statute to be intended viz. before any other Iustices that have authority to take Assises and Justices Itinerant are onely set down there for an example And albeit that Statute saith Recuperavit per Assisam c. by the verdict of the Assise as Littleton in the same Chapter expoundeth it or per recognitionem c. by confession yet if the recovery be upon a demurrer or by pleading of a record and failer of it or by any other manner such recoveries are also within the equity of the same Statute And therefore Littleton in the abovesaid Section speaketh generally Et recovera le seisin del rent intimating that it ought to be understood of all manner of recoveries in an Assise of Novel disseisin Westm 2. â— by equity though peâ— And in that manner is the abovesaid Statute confirmed by Westm 2. cap. 26. And here it is worthy observation that this Statute is expounded by equity notwithstanding it is a penal Law for by the said Statute of Westminst 2. double damages is given upon the recovery Co. ib. 174. a. 3. Co. l. 4. 121. b. 4 Bastards case 19 There is a diversity between a recovery in value by force of a warranty upon an exchange and upon a partition Exchange Partition Recovery for upon an exchange he that loseth shall recover a full recompence for all that he so loseth But upon a partition the patcener that loseth shall onely recover the moity or half of that which is lost to the end that the losse may be equal 48. Equity of 32 H. 8. 32. 20 The Tenant by the Courtesie shall have a writ of Partition upon the Statute of 32 H. 8. cap. 32. Co. ib. 175. a. 4. as well as Ioyntenant or Tenant in common for life or years For albeit he is neither Ioyntenant nor Tenant in common because a praecipe lyeth against the Parcener or Tenant by the Courtesie yet forasmuch as he is in equal mischief as another Tenant for life he shall be intended within the equity of that Statute Division of lands Hotchpot 21 If a man seised of lands in fee hath issue two daughters Littl. Sect. 267. and gives part of them to one of his daughters in Frankmarriage and dies In this case albeit
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
Feme shall be admeasured Howbeit hée may well assigne her lesse Omne majus c. Pl. Co. 83. a. 2. Partridges case Co. Inst pars 1. 369. a. 4. 41 Where the Statute of 32 H. 8. cap. 9. Pretenced title c. prohibiteth the buying or selling of any pretenced rights or titles in the plural number yet the buying or selling of any one right or title is also prohibited by the same Statute for the singular is included in the plural Pl. Co. 86. b. 3. per Hales Partridges case Vide suprà 12. Pl. Co. 86. a. 4. in Partridges case per Hales 42 The Statute of the 1 H. 5. cap. 3. recites Entry into land that some people do of late use to forge divers false deeds and muniments c. And therefore it ordaines that the party so grieved may have his suit in that case c. Here that Statute speaks of false déeds c. in the plural number yet if a man forge one false déed onely he shall incurre the penalty of that Statute So likewise the Statute of 5 R. 2. cap. 7. forbids that none shall make entry into any lands or tenements except in case where entry is given by the Law Yet if one enter onely into one tenement he shall be punished notwithstanding that Statute is in the plural number for the plural number contains in it the singular number and more c. Pl. Co. 87. a. 3. Partridges case 43 Where the Statute of 32 H. 8. cap. 9. prohibits the buying Pretenced 〈◊〉 to a lease c. of any pretenced rights c. a lease for years is prohibited as well as an estate in fée in taile or for life for under the word any the lesse estate shall be conteined in the greater So also the Statute of 23 H. 6. Sheriffs cap. 10. prohibits that no Sheriff shall let to farme in any manner his County c. whereby he is restrained to let to farme any part of his County because the lesse is contained in the greater c. Co. l. 5 pars 1. 34. b. 4. in the K. Ecclesiastical law 44 It was adjudged in the Court of Common Pleas by Dyer Weston Ecclesiastical persons may resign to the King and the whole Court that a Deane or any other Ecclesiastical person may resigne to the King as divers did to King E. 6. because the King hath the authority of the supream Ordinary For Cui licet quod majus est non debet quod minus est non licere Co. Inst pars 1 129. a. 2 45 If the King by his prerogative may make one An alien maâ—denizen that is an alien born an absolute Denizen viz. Quòd ille in omnibus tractetur reputetur habeatur teneatur gubernetur tanquam ligens noster infra dictum regnum nostrum Angliae orâ—undus c. à fortiori he may grant to such an Alien a particular denization viz. Quòd in quibusdam curiis suis Angliae audiatur ut Anglus quod non repellatur per illam exceptionem quòd sit Alienigena natus in partibus transmarinis c. to enable him to sue onely or may grant him a denization sub conditione c. Devise for Executors â—hall sell 46 If a man deviseth his land to A. for life Co. ib. 112. b. 3. and that after his decease it shall be sold by his Executors generally and make thrée or four Executors and during the life of A. one of the Executors dieth and then A. dieth the other two or thrée Executors may sell for the greater number includes the lesse and the plural number of Executors still remains whereby the words of the Will are also satisfied It is otherwise if before the Statute of 21 H. 8. 4. he had made but two Executors and one had died or if he had made I. S. I. N. and I. D. his Executors by name and one of them had died for then the words of the Will had not béen satisfied which in such case giving but a bare power must be thereby observed so also if he had devised it to be sold by his sons in law being thrée and one dies the other two might have sold it but not if there had béen onely two and one die or refuse before sale Vide Rule 110. 21. Isabel Goodcheaps case 49 E. 3. Arbitrament 47 The submission to an award betwixt A. and B. was general Co. l. 8 98. a. 2. Baspoles case viz. of all actions c. and the award was that A. should pay B. 20 pound And in this case it was objected that it did not appeare that the matter of the arbitrament was the matter onely that was betwixt them because the submission was general of all actions demands c. And therefore if the arbitrament were not made of all the matters in controversie the Award was void But the Award was adjudged good because when the submission is general of all actions c. Generale nihil certi implicat and therefore it stands well with the generality of the words that there was but one cause depending in controversie betwixt them And Omne majus continet in se minus But it is otherwise where the submission is of certain things in special c. Waste 48 The Lessée covenants to cut no trées Dyer 115. b. â—7 1 2 P. M. and gives bond to perform covenants the Lessée cuts ten trées and the Lessor sues him upon the bond and assignes for breach the cutting of twenty trées he pleads that he did not cut twenty trées upon which they are at issue and the Iury found that he cut onely ten yet judgement was given for the Plaintiffe for the other tenne trées were but surplusage and omne majus c. Lease by a â—rebend 49 A Prebend of Sarum makes a lease for seventy years the Bishop Dyer 338. 43. 17 Eliz. Deane and Chapter confirm the Bishop being Patron and Ordinary for 50 years and no more In this case the demise and all conteined in the Indenture was adjudged good for 50 years 60 Additio probat minoritatem â—e is Fee-â—â—mple 1 When you finde it said in any Book Co. Inst pars 1. 189. a. 3. that a man is seised in fée without saying more it shall be understood in Fée-simple and not in Fée-taile unlesse there be but unto it such an Addition Fee-taile c. And therefore in Heraldry the younger sonnes give the differences And in France by Monsieur without any addition or other title is to be understood the Kings onely brother and by Madame without more the Kings onely sister and therefore they are said in French to be Monsieur sans queüe and Madame sans queüe viz. without any other addition or title But if there be in France any occasion of naming any other Lord or Lady they are always named with their proper and peculiar title as Monsieur de
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
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
〈◊〉 joyn in an â—sise of an 〈◊〉 thing and a pound of Pepper and an Hawk and an Horse and they are seised of that service and afterwards all the said services being arreate they distrain for it and the Tenant makes rescous In this case as to the rent and the pound of Pepper they shall have two several assises because those rents are severable and the two Tenants in Common claim and hold the reversion unto which the same rents are incident by two several titles But as to the Hawk and Horse albeit they be Tenants in Common c. they shall joyn in the assise because these things are intire and cannot be severed for one of them alone by himselfe cannot make his plaint in Assise for the moity of an Hawke or of an Horse because the Law will never suffer a man to demand any thing against the order of nature or reason as it appeareth by Littleton Sect. 129. Lex enim spectat naturae ordinem Co. ibid. b. 3. 23 Tenants in Common shall joyn in a Quare Impedit In an adâ—â—son ward c. because the presentation to the Advowson is intire Also they shall joyn in a writ of right of Ward and ravishment of Ward for the bodie for the same reason Co. ib. 197. b. 4. § 285. a. 4. 24 If two Tenants in Common be of the Wardship of the body Release â—o prejudice and a stranger ravisheth the Ward and one of the Tenants in common releaseth to the ravisher this shall go in benefit of the other Tenant in common and he shall recover the whole Neither yet shall that release be any bar to him for that the Wardship of the bodie is intire and cannot be severed Co. l 5. 97. b. the Countesse of Northumberlands case So it is also if there be two Ioyntenants of an Advowson and they bring a Quare Impedit and the one doth release yet the other shall sue forth and recover the whole presentment Likewise two Tenants in Common shall joyn in a detinue of Charters and albeit the one be non-suit yet the other shall recover Co. Inst pars 1. 199. b. 4. 25 There is a diversity betwéen Chattels real Tenants iâ— common Ward Villein that are apportionable and severable as leases for years wardship of lands interest of tenements by Elegit Statute Marchant Staple c. of lands and tenements and Chattels real intire as Wardship of the body a Villein for years c. For if one Tenant in Common take away the ward or the Villein c. the other hath no remedie by action but he may take them again Howbeit for the other he that is outed may have remedy against his companion that outs him viz. by Ejectione Firmae Ejectment of Ward Quare ejecit infrà terminum c. Co. ib. 200. a. 3. 26 If two Tenants in Common be of a Mannor Waife Estray to which Waife and Stray doth belong a stray doth happen they are Tenants in common of the same and if one doth take the stray the other hath no remedie by action but onely to take it again unlesse by prescription they claim to have them by turns c. Co. ib. 215. a 3. 27 The Grantée of part of the reversion shall not take advantage of a Condition by the Statute of 32 H. 8. cap. 34. A conditioâ— intire As if a lease be made of thrée acres reserving a rent upon Condition and the reversion is granted of two acres the rent shall be apportioned by the act of the parties but the condition is destroyed for that it is intire and against common right It is otherwise in the Kings case c. â—elease of 〈◊〉 actions 27 In mixt actions as an action of Waste Litt. § 492. c. which are mixed both in the realty and personalty a release of all actions real or a release of all actions personal is a good plea in barre because the action is in its nature intire and therefore a release of part shall annul all c. There is the same reason of an Assise of Novel disseisin a writ of Annuity Quare Impedit c. â—â—heritance â—ehold intire â—erm not so 28 If a Disseisor make a lease for a hundred yeares Co. ibid. 285. a. 4. Co. ib. 297. a. 2. Co. l. 5. 6. in Foords Case the Disseissee may confirm parcel of those yeares viz. Either the whole land for part of the terme or part of the land for the whole term c. So likewise if the Tenant for life make a lease for a hundred years the Lessor may confirm either for part of the terme or for part of the land but an estate of Inheritance or Frée-hold cannot be confirmed for part of the estate â—nfirmation 〈◊〉 part of a â—â—me because those estates are intire and not severable as yeares be And therefore if the Disseisée confirm the estate of the Disseisor Litt. § 519. albeit in the déed of confirmation the limitation be exprest to be in taile for years for a day or onely for an hour yet hath the Disseisor a Fée-simple because his estate was before the confirmation intire and unseverable â—â—eritance â—ehold intire 29 If any Disseisor make a lease for life the remainder in fée Litt. § 525. Co. ibid. 297. a. 4. b. 2. if I confirme the estate of the Tenant for life yet after his decease I may well enter because they are several estates and nothing is confirmed but the estate for life So it is also when the several estates are in one and the same person as if the Disseisor make a gift in taile the remainder to the right heirs of the Tenant in taile or the remainder first for life â—â—nfirmation â—one jointeâ—â—nt shall eâ—â—e to both and then to the right heirs of the Tenant in taile In these cases if the Disseisée confirm the estate of the Tenant in taile it shall not extend to the other estates causa qua suprà But if the Disseisor make a lease for life to A. and B. and then the Disseisée confirms the estate to A. Here B. shall take advantage thereof because the estate of A. which was confirmed was intire and joint with B. and therefore in that case the Disseisée shall not enter into the land and devest the moity of B. So likewise if the Disseisor enfeoff A. and B. and the heirs of B. and then the Disseisée confirms the estate for his life this shall not onely extend to his companion but to his whole Fée-simple also because to many purposes he had the whole Fée-simple in him and the confirmation shall be taken most strongly against him that made it c. 〈◊〉 confirmatiâ—o Baron â—e not good 30 If I let land to a Feme sole for terme of her life Litt. §. 525. Co. ibid. 299. a. 4. who takes husband and after I confirme the estate
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
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
that Service is not performed the Lord hath his remedy in foro seculari because the Service being certain proof thereof may be made in a temporal Court It is otherwise of tenure in frank-almoigne for that Service being spiritual and uncertain must be deâ—â—ned and recovered in foro Ecclesiastico in an Ecclesiastical Court unto which Court the Connusance of that cause doth properly belong c. Tenants in common for Rent arrear 9 If two tenants in common of Lands in fée make a gift in tail Co. ibid. 197. Litt. §. 314. or a lease for life reserving a yearly rent and a pound of pepper and an hawk and an horse and they are seised of that service and afterwards all the said service being arrear they distrain for it and the tenant makes rescâ—us In this Case as to the rent and pound of pepper they 〈◊〉 have two several Assises because the two tenants in common hold the reversion unto which that service is incident by several titles but as to the hawk and horse albeit they be tenants in common c. they shall joyn in the Assise for one of them above by himself cannot make his plaint in Assise for the moity of an hawk or of an horse because the Law will never suffer any man to demand any thing against the order of nature or reason as it appeareth by Littleton § 129. Lex enim spectat naturae ordinem c. Conditional â—eoffments â—or obligations 10 If A. enfeoff B. of Black acâ—e Co. ib. 208. b. 4 upon condition that if C. enfeoff B. of White acre A. shall re-enter In this Case C. hath time during his life to make the feoffment if B. doth â—oâ— hasten it by request and so likewise of all Obligation Howbeit in some Cases although the condition be collateral as aforesaid and is to be performed to the Obligée and no time limited c. yet in respect of the nature of the thing the Obligor shall not have time during his life to perform it As if the condition of an Obligation be to grant an Annuity or yearly rent to the Obligée during his life payable yearly at the Feast of Easter this Annuity or yearly rent must be granted before Easter or else the Obligée shall not have it at that Feast during his life sic de similibus And so it was resolved by the Iudges of the Common Pleas in Andrews case for which see Dier 14. Eliz. 311. â—he like 11 If a feofment or bond be made upon condition Co. ib. 210. a. 4 that the Feoffor or Obligor shall pay a certain sum of money to the feoffée or obligée at such a day but no place limited for the payment thereof In this case the Feoffor or Obligor ought to séek out the feoffée or obligée to make payment thereof accordingly if he be to be found within England c. for in case of an Obligation the Law was alwayes clear and in case of a feofment although it hath béen sometimes controverted yet at this day that doubt is setled it having béen oftentimes resolved that séeing the money to be paid is a sum in grosse and collateral to the title of the land the feoffor must tender the money to the person of the feoffée and it is not sufficient for him to to tender it upon the land otherwise it is of a rent that issueth out of the land Howbeit if the condition of a bond or feoffment be to deliver twenty Quarters of wheat or twenty loads of timber or the like the Obligor or Feoffor is not bound to carry the same about and to séek the Feoffée or Obligée but the Feoffor or Obligor before the day must go to the Feoffée or Obligée and know where he will appoint to receive it and there it must be delivered And so note a diversity betwéen money and things ponderous or of great weight Likewise if the Condition of a Bond or Feoffment be to make a Feoffment there it is sufficient for him to tender it upon the Land because the State must passe by livery c. Co. ibid. 285. b. 3. 12 Every man shall plead such pleas as are proper for him Pleas of a disseisor and apt for his defence to be pleaded As a disseisor that hath nothing in the land may plead a release of Actions personal because damages are to be recovered against him and therefore for his defence he may plead it But a release of Actions real he cannot plead because he hath no Estate in the land And none shall plead a release of Actions real in an Assise but the tenant of the land Et sic de caeteris Co. ibid. 338. a. 3. 13 A particular Estate of things that lie in grant cannot commence without déed Things that lie in grant and consequently that Estate cannot be surrendred without déed but albeit a particular Estate be made of Lands by déed yet may it be surrendred without déed in respect of the thing demised because the particular Estate might have béen made without déed And so on the other side if one be tenant by the Courtesie or tenant in Dower of an Advowson Rent or other thing that lies in grant albeit there the Estate began without déed yet in respect of the nature and quality of the thing that lies in grant it cannot be surrendred without déed And so if a Lease for life be made of Lands the remainder for life albeit the remainder for life began without déed yet because Remainders and Reversions though they be of lands are things that be in grant they cannot be surrendred without déed c. Co. ibid. 144. a. 3. 14 A Rent cannot be granted out of a Piscarie a Common No rent oâ—â— of things incorporeal an Advowson or such like incorporeal Inhabitants but out of lands or tenements whereunto the Grantée may have recourse to distrain or which may be put in view to the Re-cognitors of an Assise And although it be out of Lands or tenements yet it must be out of an Estate that passeth by the Conveyance and not out of a right as if the Disseisée release to the Disseisor of Land reserving a rent the reservation is void sic de similibus Co. l. 4. 43. b. 4. in Bibithes Case 15 John Goffe the brother and heir of R. Goffe No accessorâ—e before the 〈◊〉 in manslâ—â—â—hter brings an Appeal of murder of the said R. Goffe against Bibithe as principal and against Hoell David as accessarie before and against David Thomas as accessarie after The principal pleads not guilty and by nisi prius in the County of Manmouth he was found guilty of man-slaughter and not guilty of murder and in this Case it was resolved per Popham Chiefe Iustice totam Curiam in the Kings Bench that Hoell David was discharged because there could not be any accessory before the fact in Case of man-slaughter for
in the Case of a common person Co. ib. 31. b. 4. 2 If a Common Person take an Alien to Wife and die An alien albeit he were seised of Lands in Fée or Fée taile yet shall not his Wife be endowed but if the King take an Alien borne and die she shall be endowed by the Law of the Crowne And yet Edmund brother to E. 1. married the Quéen of Navarre Rot. Parl. 26 E. 1. Rot. 1. and died And it was resolved by all the Iudges that she should be endowed of the third part of all the Lands whereof her husband was seised in fee. Co. ib. 90. a. 4. F. N. B. 33. p. q. r. 3 If a Bishop hath an Advowson and the Church becomes void Bishop Advowson and the Bishop dies neither the Successor nor the Executors shall present but the King because it is but a Chose in action Co. ib. 388. a. 2. F. N. B. 33. p. q. r. 4 A man holds the mannor of D. whereunto an Advowson is appendant of the King by Knights-service the Church becomes void Advowson Wardship Eâ—ecutors and then the Tenant dies his heire under age in this Case the King shall present and not the Executors of the Tenant And this is by reason of a prerogative that belongeth to the King to provide for the Church being void for where the tenure by Knight-service is of a Common Person the Executors of the Tenant shall present c. Co. ib. 108. b. 2. 5 Tenure by rendring yearly to the Lord a Bow a Sword Petty Serjeancie Soccage a Dagger a Gantlet or such other small things belonging to warre in Case of a Common Person is nothing else but plain soccage ab effectu because it had such effects and incidents as belong to soccage and neither ward nor marriage c. But in the Kings Case in respect of the dignity of the Kings Person it obtaineth the Name of Petie Serjeancie c. Co. ib. 118. a. 2. Litt § 177 178. 6 If a Villain purchase Land and alien it before the Lord enter Villein pâ—â—chas Land 〈◊〉 goods seisâ—â— the Lord is barred for ever For before the Lord enters he hath neither jus jure nec jus ad rem but onely a possibilitie of an Estate which Estate he must gaine by his entry And therefore if the Villain doth by way of prevention alien before the Lord doth enter the Lord is for ever barred of the possibilitie which he had to enjoy the Land Si autem servus vendiderit feodum Fleta l. 3. c. 13 Britt fol. 98. a. 19 E. 2. Dow. 171. quod sibi haeredibus perquisiverit antequam Dominus seisinam inde caeperit valet donatio Dominus sibi ipsi imputer quod tantum expectavit saith Fleta Howbeit if the Kings Villain purchaseth Land and alieneth before the King upon an Office found for him doth enter yet the King after Office found shall have the Land Quia nullum tempus occurrit Regi And yet after Office found the King shall not have the mean profits because the title commenceth by the seisure Litt. §. 178. It is otherwise of Goods in the Kings Case For if the Kings Villain acquire any Goods or Chattels the property of them is in the King before any seisure or Office And it is well said of an Ancient Author Mirr cap. 3. Britt fol. 88. Al Roy quant al droit de la Corone on á franch Estate ne poet nul temps accurre and another speaking in the Person of the King saith Nul temps nest limit quant á mes droits c. â—â—narty 7 Where a Church is presentative Co. ibid. 119. b. 4. 344 a. 4. it is full by admission and institution against any common Person but against the King it is not full before Induction â—â—een purâ—â—s sue 8 By the Common Law the Wife of the King of England is an exempt Person from the King Co. ibid. 132. a. 4. Co. l. 4. 23. b. 2. Clerke Pennyfathers Case and is capable of Lands and tenements of the gift of the King as no other Feme covert is and may sue and he sued without the King for the wisedome of the Common Law would not have the King whose continuall care and study is for the Publique circa ardua Regni to be troubled and disquited for such private and petty causes So as the wife of the King of England is of ability and capacity to grant and to take to sue and to be sued as a Feme sole by the Common Law Also the Quéen of England hath many other prerogatives viz. She shall find no pledges for such is her dignity as she shall not be amerced â—â—ince Neither she nor the Kings Son are restrained by the Statute of 1 H. 4. c. 6. concerning grants by the King In a Quare Impedit brought by her some say that plenarty is no plea no more then in the Case of the King â—â—enarty Baiâ—â—â—e Hundred If any Bailiffe of the Quéenes bring an Action concerning the Hundred he shall say In contemptum Domini Regis Regiâ—ae The Quéen shall pay no toll c. â—enancie part â—â—iened diâ—â—â—ain in all 9 If the Quéenes Tenant alien a certain part of his tenancie to one Co. ibid. 133. b. 1. and another part to another the Quéen may distraine in any one part for the whole as the King may do but other Lords shall distraine but for the rate Ane therefore where the Quéen so distraineth there lyeth a writ de onerando per rata portione â—rit of right â—â—rected Also the writ of right shall not be directed to the Quéen no more then to the King but to her Bailif otherwise it is when any other is Lord. â—yde counterâ—leaded 10 In case of Ayde prayer of the Quéen Co. ibidem it is Domina Regina inconsulta and the cause of the Ayde prayer shall not be counterpleaded no more then in the Kings Case And see where the ayde shall be granted of the King and Quéen and where of the Quéen onely and she of the King 14 E. 3. Voucher 110. 21 E. 3. 53. 22 E. 3. 3. b. 17 E. 3. 65. 10 E. 3. 17. 5 E. 3. 4. 15 E. 3. Ayde del Roy 66. 10 E. 3. 18. 26 H. 6. Ayde le Roy 24. â—â—otect Marleâ—â— distresse 11 A protection shall be allowed against the Queen Co. ibidem but not against the King neither shall the Quéen be sued by petition but by a praecipe The Quéen is not bound by the Statute of Marlebridge for driving a distresse into another County â—eath treason â—â—wag 12 If any do compas the death of the Quéen Co. ibid. 133. b. 2. and declare it by any over fact the very intent is treason as in the Case of the King No man may marry the Quéen Dowager without the
a lease be made of three acres reserving a Rent upon Condition and the reversion is granted of two acres the Rent shall be apportioned by the Act of the parties but the Condition is destroyed for that it is intire and against Common right Howbeit in the Kings Case the Condition in that Case is not destroyed but still remaines in the King notwithstanding such alienation of part c. The Kings Eâ—â—ate no deâ—ree 21 In a Writ of entry sur disseisin an estate made to the King makes no degrée Co. ibid. 239. a. 2. and therefore if a dissessor by déed inrolled convey the Land to the King and the King by his charter granteth it over the disseisée cannot have a writ of Entry in â—e per cui but in le post c. â—ying seised 〈◊〉 descent 22 If there be Tenant for life the remainder in taile Cb. ibidem 4. the remainder in Fée and Tenant in taile disseiseth the Tenant for life and dieth seised this shall take away the entry of the Tenant for life But if the Kings Tenant for life be disseised and the disseisor die seised this descent shall not take away the entry of the Lessée for life because the disseisor could gaine no Estate against the King and then he could not die seised of any more then a bare Estate of frée-hold during the life of the Lessée And Littleton saith Litt. § 387. that a descent of an Estate for term of another mans life shall not take away an entry c. â—escent â—â—ant 23 It is said if the King die seised of Lands Co. ibid. 246. a 2. and the Land descend to his Successor this shall bind the disseisée though he were an Infant at the time of the descent because the priviledge of an Infant in that Case holds not against the King â—vowson â—nder Ma. 24 In a writ of right of Advowson brought by the King Co. ibid. 294. b. 2. F. N. B. 31. d. the Tenant shall not render the Di. Marke because nullum tempus occurrit Regi and therefore the King shall alleadge that he or his Progenitor was seised without shewing any time It is otherwise in the Case of a common person for then the Tenant shall tender a Di. Mark against him that brings the writ to inquire of the seisin alleadged in the Court c. â—at Attorn 25 A grant of a Seigniory Rent Reversion Remainder Co. ibid. 309 b 2. F. N. B. 60. 1 c. to the King or by the King to another is good without attornment and this is by force of his prerogative â—nt fine Atâ— in distrain 26 In case of a déed nothing passeth before attornment Co. ibid. 314. b. 2. in Case of a fine the thing granted passeth as to the State but not to distraine c. without attornment but in the Kings Case the thing granted doth passe both in Estate and in Privitiâ— to distraine c. without attornment unlesse it be of Lands or tenements that are parcel of the Dutchy of Lancaster and lie out of the County Palatine Co. ibid. 318. a. 3. 27 Tenant for life shall not be compelled to attorne in a quid juris clamat upon a grant of a reversion by fine Quid juris clamat in Chiâ— Attornment holden of the King in Chiefe without licence And the reason hereof is not because the Tenant of life must be charged by the fine for his Estate was more ancient then the fine levied but because the Court will not suffer a prejudice to the King and the King may seise the reversion and Rent and to the Tenant shall be attendant to another c. Co. ibid. 33 5. a. 3. 28 If there be Tenant in taile Descent Coâ— Recovery 〈◊〉 Barre the reversion or remainder in the King In that Case the Tenant in taile cannot dis-continue the Estate taile but Tenant in taile the reversion in the King might have barred the Estate taile by a Common Recovery untill the Statute of 33 H. 8. cap. 20. which restraineth such a Tenant in taile Howbeit that Common Recovery neither barred nor dis-continued the Kings reversion c. Co. ibid. 344. b. 4. Co. l. 6. 49. b. 4. in Boswels Case 29 At the Common Law before the Statute of W. 2. cap. 5. A writ of righâ— of Advowâ—â— if a stranger had presented his Clerke and he had béen admitted and instituted to a Church whereof any subject had béen lawfull Patron the Patron had no other remedie to recover his Advowson but by a writ of right of Advowson wherein neverthelesse the incumbent was not to be removed And so it was also at the Common Law if an usurpation had béen had upon an Infant or Feme Covert having an Advowson by descent or upon Tenant for life c. the Infant Feme Covert and he in the reversion were driven to their writ of right of Advowson For at the Common Law if the Church were once full Plenarty the incumbent could not be removed and plenarty generally was a good plea in a Quare Impedit or assise of Darreine presentment Howbeit at the Common Law if any had usurped upon the King and his presentée had béen admitted instituted and inducted for without induction the Church had not béen full against the King the King might have removed him by Quare impedit Quare Impâ—dit and so have béen restored to his presentation for therein he hath a prerogative quod nullum tempus occurrit Regi c. Co. ibid. b. 2. F. N B. 34. c 30 If the King do present to a Church Revoke pâ—sentation and his Clerke is admitted and justified yet before induction the King may repeale and revoke his presentations c. Co. ibid. b. 3. 31 A tortious Act or entry or a false Entry Fained Recovery a feined recovery against Tenant for life or in taile the reversion or remainder in Fée to the King shall never devest any Estate remainder or reversion out of the King It is otherwise in the Case of a common person Co. l. 4. 23. b. 2. In Clerke and Penni-fathers Case 32 If the Quéen be onely Tenant for life of a Copi-hold Mannor Copi-hold Mannor and a Copi-hold of in-heritance escheats unto her the Quéen may grant it to whom the pleaseth and that shall bind the King his heires and successors for ever for she was Domina pro tempore And the custome of the Mannor also shall bind the King c. Co. l. 4. 55. a. 4. in Sadl Case 33 When the Kings title and the title of a subject concurre in commencement Titles concurre the Kings title shall be perferred as Weston holds Pl. Co. 263. b. Co. l. 4. 58. a. 3. in the Sadlers Case 34 When the Kings Tenant seised of Land in Fée dies without heire Escheat the Fée and frank-tenement is
be in better condition then the subject from whom the claimes and in that case shall have the priority and so shall his grantée also c. as is holden in 24 E. 3. 65. Fitz. tit gard 27 47. Co. l. 5. 91. b. 3. in Semaynes Case 39 In all cases when the King is partie Sheriffe 〈◊〉 open dooreâ— the Sheriffe if no doore be not open may after notice given of the cause of his coming request made to have the door opened break open the house of the partie either to take him or to make other execution of the Kings process if he cannot otherwise enter into it but so it is not in the case of a subject c. So for felonie or suspicion of felonie the Kings officer may breake the house to take the felon because in every felonie the King hath an Interest and where the King hath Interest Felonie the writ is Non omittas propter aliquam libertatem and therefore the libertie or priviledge of an house shall not hold out against the King besides it concernes the Common Wealth that felons be apprehended and in that respect also the King hath a special Interest being the head of that body c. Co. l. 5. 104. a. in Bakers case 40 T. 42 E. in B. R. in Ejectione firmae it was resolved Demurre that if the Plaintiffe shew in evidence any matter in writing Record or Sentence in the Ecclesiastical Court whereupon Question in Law may rise and the defendant offers to demurre c. the Plaintiffe cannot refuse to joyne in demurrer unlesse he will waive his evidence so if the Plaintiffe produce witnesses and the defendant admit their testimonie to be true he may demurre c. So also may the Parliament demurre mutatis mutandis Howbeit upon evidence in an information for the King his Council shall not be compelled to demurre But in that Case the Court may direct the Iury to find the special matter and thereupon they shall adjudge the Law as appeares in 34 H. 8. Dier 53. And this is by reason of the Kings prerogative who may also waive the demurrer and take issue at his pleasure Nota bene Co. lib. 5. 106. a. 4. 108. b. 1. in Sir Henry Constables case 41 Originally the Common Law gave unto the King all such things as were In nullius bonis as Wrecke viz. Goods Things 〈◊〉 liuâ— boâ—i quae naufragio ad terram appelluntur Flotsan viz. When the Ship is drowned or otherwise perished and the Goods flote upon the Sea Wrecke Jetsam as when the Ship is in danger to be drowned and to dis-burden the Ship the Goods are cast into the Sea and after notwithstanding the Ship perisheth Estrayers Lagan vel potius Figan as when the Goods so cast out are so ponderous that they sinke and the Mariners to the end they might find them again fasten a piece of Corke or a Boye to them that will not sinke and therefore this séemes to be called Ligan à Ligando It gave also to the King Estrayes which Bracton calles Animalia vagantia and others Animalia vacantia quia Domino vacari debent Also treasure trove and the like Because by the Rule of the Common Law when none could claime a property in any Goods the King was to have them by his prerogative And therefore Bracton saith Sunt alia quaedam quae in nullius bonis esse dicuntur sicut Wreccum maris Bract. l. 3. c. 3. Grossus Piscis sicut Sturgio Balena aliae res quae Dominum non habent sicut animalia vagantia quae sunt Domini Regis propter privilegium Mare Clausum And note that the King shall have Flotsan Jetsan and Lagan by his prerogative as well as wrecke Albeit they be in or upon the Sea for the Sea is of the Kings Ligeance and parcel of this Crowne of England as it is holden in 6 R. 1. protection 46. and Britton cap. 33. agrées well with the opinion of Bracton that wrecke c. are things in nullius bonis and come into the hands of the subject Originally by Kings grant his words are these Britt c. 33. Et ausi purchas lou per franchise grantee par nous de choses trovves en nulluy biens si come de wrecke de neer bestes estrayantes of Conies Levres pessons Fesants Pertris autres Bestes sauvages par franchise de aver wrecke de meer trouve en son soil waife estray trouve en son fee garrennes en ses demesnes terres c. Lady Peere â—rest 42 A Countesse by descent or mariage cannot be arrested for debt or trespas 1 In respect of her dignity 2 The Law presumes Co. l. 6. 52. b. 3. in the Case of Isabel Countesse of Rutland that she hath sufficient in Lands and Tenements so hereby to be distrained for albeit in respect of her sex she cannot sit in Parliament yet she is a Péere and shall be tried by her Péeres as appeares of 20 H. 6. cap. 9. which was nothing else but a declaration of the Common Law So it is also of a Baron that is a Péere of Parliament 11 H. 4. 15. In homine repligiando against the Lady Spencer it appeares that the said Lady was a Peere of the Realme â—pon account Lady not exâ—ined 43 In 3 H. 6. 48. Co. ibid. 53. a. 1. A Writ of debt upon arrerages of accompt was brought by the Lady of Aburgavenie against another the Defendant pleads Rien luy doit and is ready to make his Law and prayes by force of the Statute of 5 H. 4. cap. 8. that the Parliament might be examined which Act is generall viz. that examination shall be made which is alwayes intended upon oath And there Cokein who gave the Rule said La Dame d'Aburgavenie est un Peere del Realme ne sera bien fait de luy faire venir d'estre examine Car par mesme la reason nous Dames faire venir chescun Duke on Countee d'Angliterre Rolfe Serjeant purquoy nou Sr. Le dit Statute est general est fait pur chescun home haut base A que Cokein dit le ley voit over diversity pur enter Seignior ou Dame c. auter Common Person By which book it may be observed that a Lady which is but the wife of a Baron is a Péere of the Realme and is in equipage as to Nobility and priviledges incident to their dignities with Dukes â—duo Juror Earles c. 44 In 48 E. 3. 30. Co. ibid. 53. a. 3. Sir Ralfe Everden Knight brings a writ to the Chancery and also a writ of the Privy seale to the Iustices rehearsing that he was a Baron and commanding them to discharge him of his oath in juratis accessis recognitionibus quibuscunque because the Barons ought not to be sworne upon Inquests and Recognitions
Also if issue be taken whether the Plaintiffe be an Earl or no it shall not be tried by the Countrey but the Kings writ Also the Defendant shall not have a day of grace against a Lord of the Parliament because he is conceived to attend the publique And all these and many other do appear in our Books 48 E. 3. 30. Regist 179. F. N. B. 247. 48. Ass Pl. c. 23. Ass Pl. 24. 32 H. 6. 27. 35 H. 6. 46. So that as when such an Office descends to an infant or to a man de non sanae memoriae they of necessity ought to exercise it by Deputy so likewise an Earl for the necessity of his attendence which the Law intends upon the King and the Common-wealth that Stewardship of a base Court shall be executed by Deputy Also if a Parkership be granted to an Earl without words to make a Deputy yet he may keep it by his servants And if a Duke have licence to hunt in a Park the Law will allow him attendance suitable to his condition c. Marshalsie Seisure Office Scire facias 56 It was found by Office in 9 Jac. that Sir George Reynel had forfeited the Office of Marshal of the Marshalsie Co. l. 9 95. b. 3. in Sir George Reynels Case by divers voluntary escapes and it was resolved that the King might seise that Office without suing out a Scire facias And in that Case it was observed 1 That the King in some cases shall be in possession by seisure without Office as in 21 H. 7. and Stamf. in case of temporalties of a Bishop and of Priors aliens because the certainty of them appears in the Exchequer 2 He shall sometimes be in possession by Office without seisure as of Lands Tenements Offices c. which are local oâ— whereof continual profit may be taken as upon condition attainder wardship c. Vide 2 H. 7. 8. Stamf. 55. Dowries case in Rep. 3. and the Sadlers Rep. 5. And the Office albeit false yet cannot be avoided without traverse for he cannot traverse the Kings title in the information Traverse Advowson c. 20 E. 4. 10. 3 The King shall be in possession by Office and seisure of an Advowson and thereof he is not in possession until presentment admission and institution And if the King upon refusal bring a Quare Impedit the owner may traverse the Kings title in that Action without traverse of the Office because it is not a manual but an incorporal hereditament also the right to present is casual and not continual 4 The King shall be in possession without office where his tenant died without heir 9 H. 7. 2. 5 When distinct matters amount to an office in that case there ought to be a Scire facias before the King can seise 6 When a common person is put to his Action In that Case the King upon office is put to his Scire facias c. â—o tenure reâ—erved Capite 57 When the King grants any land without reservation of any tenure or absque aliquo inde reddendo or the like Co. l. 9. 123. b. 3. in Anthony Lowes Case the Land by operation of Law shall be holden of the King in capite by knights-service according to the rate and proportion of Land holden by knights-service viz. more or lesse according to the quantity of the Land c. 58 When any thing is due to the King Co. l. 9. 132. a. in Holis Case he ought to have the full and compleat effect of the thing so due unto him As if there be Grandfather Father and Son of Lands whereof some are holden of the King in capite by Knight-service in capite and the residue of other Lords c. And the Grandfather conveys all the Lands holden of other Lords and part of the capite Lands to the Father for life the remainder to the Son in tail the remainder to the right heirs of the Grandfather And the residue of the capite Lands to four younger Sons successively for life the remainer to the right Heirs of the Grandfather the Grandfather dies the Father tenders his livery and dies before livery sued or office found the Son being of full age and all this is found by office and the Son continues the livery the four younger Sons being still in life In this Case albeit by the death of the father before livery sued the King hath lost the priviledge of having primer seisin after the death of the Grandfather as it was adjudged in Northcots case and in Hales case in the 8 Rep. c. for here the Son shall not sue livery nor pay primer seisin because they were due by the Father after the death of the Grandfather and the Son living the Father is not within the Statutes of 32 34 H. 8. for the Lands conveyed unto him Neverthelesse in the same Case the King shall have primer seisin for the Lands conveyed to the younger Sons because they are within the thrée Cases in which wardship and primer seisin are given unto the King by the said Acts viz. Advancement of his wife preferment of his children and payment of his debts And the reason hereof is because when the said Acts give unto the King primer seisin it is intended of an actual and effectual primer seisin and not of one which is onely Mathematical and Imaginary for as before is said the King ought alwayes to have a full and compleat effect of the thing which is due unto him So also if the King hath title to present by lapse hâc vice and he present and his Clerk is admitted and instituted but dies before induction In this Case the King shall present again for he had not the full and compleat effect of his presentation as it was resolved by Sir James Dyer rotam Curiam in Gyles his Case 18 Eliz. in Co. Ba. Likewise if the King marry a daughter Marriage again which he hath inward infra annos nubiles and before the age of consent the Baron dies the King shall have the marriage of the Heir again because the first marriage was not compleat as it was resolved in Ambrosia Gores case in the 6 Rep. fol. 22. King donor not barred And the King donor in tail before the Statute of West 2. de donis c. was not barred by the alienation of the Donée post prolem suscitatam without Assets albeit there were collateral warranty Howbeit in all these Cases a common person shall be barred c. Co. l. 10. 113. b 1. in Legats Case 59 When the King grants any thing upon a false insinuation Grant upon false suggestions void or suggestion such a grant of the Kings is void for in that Case there is a diversity betwéen the King a common person For a Subject that may intend his private affairs shall not in such Case avoid his Grant but the King who intends the Publique good shall avoid
and the six moneths passe and after the Kings tenant dies before the Bishop presents by laps and leaves his heir within age and in ward to the King In this case the Bishop shall not present by laps but the King shall have the presentment by reason of the ward c. F. N. B. 35. p. 75 In a Quare Impedit for the King Not stopt albeit the Defendant hath a writ to the Bishop against the King yet the King may sue a new Quare Impedit against the party of the same avoidance and make another title F. N. B. 37. f. 76 The King may sue a Ne admittas after the six moneths past Ne admittas where he hath a Quare Impedit or an Assise de Darrein presentment depending because Nullum tempus occurrit Regiâ— It is otherwise in the Case of a common person because the Bishop may then present by laps the title of presentment being devolved to him c. F. N. B. 38. e. 77 In a Quare Impedit betwéen two strangers The Kings title if the title appears to the Court for the King they award a writ to the Bishop for the King accordingly F. N. B. 60. i. 78 Vpon grant of a Reversion Wast Attornment although it be by fine the Grantée cannot bring an Action of wast against the tenant before Attornment but if the King grant a Reversion by his Letters Patents the Grantée may have an Action of waste before Attornment F. N. B. 85. a. 79 At the Common Law every man may go out of the Realm for Merchandizing Peregrination Ne exeâ—s regâ— absque lier 〈◊〉 Regis or other Cause whatsoever pleased him without the Kings licence and he was not to be punished for it Howbeit because every man is by Law bound to defend the King and his Realm therefore the King at his pleasure may by his Writ de securitate invenienda quòd se non divertat ad partes exteras sine licentia Regis command that he shall not go out of the Realm without his licence c. And if he doth it he may be punished for dis-obeying the Kings Command And it séems that this Commandement may be made by the Kings Writ under the Great Seal Privy Seal or Privy Signet For in this Case the Subject is bound to take notice of every Seal the King hath as well as of the Great Seal F. N. B. ibid. c. The King may do the like by his Proclamation in Case he cannot be found to have the Writ served upon him which if he obey not it is a contempt for which he shall make fine to the King Note that by the Statute of 5 R. 2. cap. 2. it was ordained that none should go out of the Realm without the Kings licence which continued in force until 4 Jac. and then by the Statute of 4 Jac. cap. 1. that Clause of that Statute was repealed So that at this day it séems that the Subject hath the same liberty that he had at the Common Law Dier 296. 19. yet by the words in the beginning of the writ which are these Rex A. de B salut c. Quia datum est nobis intelligi quod tu versus partes exteras absque licentia nostra clà m destinas te divertere It séems he cannot go out of the Realm unlicensed by the King c. As Dyer observes 165. p. 6. Ideo quaere de hoc Protection 80 If after the King hath granted to one his protection F. N. B. 92. b. c. any man takes his Goods or enters into his Lands c. or beats his Servants c. the partie grieved shall have a special writ directed to the Seriffe to inquire of them and to certifie it before the King c. And it séemes that the King shall make processe against them by venire facias as upon an Indictment and that they shall make fine hereupon Sea-banks Sâ—wers 81 The King ought of Right to have and defend his Realme as well against the brâ—akings in of the Sea F. N. B. 133. a. as against enemies that it be not drowned or wasted and to provide remedy for it And also to provide that his subjects have their passages throughout the Realme by Bridges and safe Wayes And therefore if the Sea-bankes be broken or Sewers and Gutters be not scoured that the fresh waters may have their direct Course the King may and ought to make a Commission to inquire thereof c. And to hear and determine those defaults But now matters that concerne Sewers are regulated by direct late Statute viz. 23 H. 8. 5. 13 El. 9. c. Priority Wardship 82 If a Man hold of the King by Posteriority F. N. B. 142. f. and of another man by priority and after the King grants to the Quéen the Seigniory for terme of life and after the Tenant dies his heire within age In this Case the Quéen shall have the wardship of the body having no regard to the Posteriority Because the Reversion of the Seigniory remaines still in the King It had béen otherwise if the King had granted it in remainder to another in Fée for then it seemes they should not have had the priority c. Annuity 83 If the King grant an Annuity to one for terme of life or yeares F. N. B. 152. k. it ought to be expressed in the grant by whose hands he shall receive that Annuity as to say by the hands of the Sheriffe of S. or by our Baylife of the Mannor of S. and then the Sheriffe or Baylife shall have allowance upon that Patent shewing if he pay it And if there be not such words in the grant of the Annuity then the grant is void For he cannot sue to the King for it and no person is bound to pay it unto him if he be not named and expressed in the Patent c. â—yde â—â—ayer Procedendo 84 If a Man pray in Ayde of the King F. N. B. 253. e. f. and the Ayde is granted then shall it be awarded that he shall sue to the King in the Chancery And the Iustices of the Common Pleas shall cease until a Writ De procedendo in loquela come unto them c. And then they may procéed in the Plea until it go on so farre that Iudgement ought to be given c. For the Plaintiffe And then also the Iudges ought not to procéed to Iudgement until another Writ De procedendo ad judicium be brought unto them And if the King certifie the Iustices by his writ that the Lands are seised into the Kings hands then also shall they surcease until a writ De procedendo loquela be sent into them c. And if it appeare to the Iustices upon Record that the Tenements are seised into the Kings hands or if it appeare to the Court by the pleading and shewing of the Parties that the
the warranty did bar him for ever c. 23 Albeit Laches of a man non compos mentis may prejudice him for his entry as if he be disseised Co. l. 4. 125. a. 4. in Beverleys Case and a discent is cast Fine in this case he cannot enter yet it shall not prejudice his right as if a man non compos mentis were disseised and the disseisor had levied a Fine in this Case at the Common Law although the year and day had passed yet he that was non compos mentis was not bound thereby but that he might well enter And this is proved by the Statute de modo levandi Fines made Anno 18. E. 1. which was nothing else but a Declaration of the Common Law There is the same Law of an Infant one in prison or not within the four Seas or of a woman not duly examined for in all these Cases a Fine was not binding at the Common Law although claim was not made within a year and a day as appears by the same Statute c. There is also the like exception of such persons in the later Statute of Fines with Proclamations made 4 H. 7. cap. 24. which proves that the Law-makers had in all Ages a special care to provide for persons that had such defects and imperfections c. Ideots King Tutor 24 In Case of Ideots or fools natural Co. l. 4. 1â—6 a 2. in Beverleys Case because as Bracton saith Non multum distant à brutis qui ratione carent the Law of England as well as the Law Civil hath provided a Tutor for them viz. the King and hath made provision for the preservation both of their Inheritance and also of their goods as appears by Britton fol. 16. and likewise by Prerogativa Regis cap. 9. made 17 E. 2. which was nothing else but a Declaration of the Common Law And albeit that Statute onely saith Quòd Rex habebit custodiam terrarum fatuorum naturalium c. yet the King shall have as well the custody of their bodies and goods as of their lands and also of all other hereditaments as well those which they have by purchase as others which they have by inheritance at the Common Law c. And the reason of this is because as Fitz. N. B. saith 232. the King is bound of right by his Laws to defend his Subjects their Goods and Chattels Lands and Tenements And therefore every Subject being by the Law in the Kings protection an Ideot who cannot defend or govern himself nor order his Estate ought of right to have both his person and estate protected and ordered by the King c. Executor 25 If an Infant be an Executor Co. l. 5. 27. b. 2 in Russels case a Release or Acquittance made by him binds him not unlesse it be in the due pursuit of his Office of Executorship and for so much onely as he really receives Executor 26 An Administrator durante minore aetate cannot sell any of the goods of the dead if it be not of necessity for the payment of debts Co l. 5. 29. b. 3. in Princes case or bona peritura for he hath his Office of Administration pro bono commodo of the Infant and not for his prejudice Also such an Administrator cannot assent to any legacy unlesse there be Assets to pay debts c. and generally he can do nothing to the prejudice of the Infant for the words of the letters of Administration are Administrationem omnium singulorum bonorum ad opus commodum utilitatem executoris durante sua minore aetâ—te non alitèr nec alio modo committimus c. 27 Generally in all Actions real Co. l. 6. 3. b. 1. in Markals Case which the Infant brings of his own possession Pâ—â— Iâ—fancie â—â—tolne deâ—â—r albeit he hath the land by descent and that the tenant plead the déed or warranty of his Ancestor the parol shall not stay for his non-age For by presumption of Law the granting of delay is in favour and for the benefit of the Infant lest by default of good understanding of his estate and of the truth of the matter he might be prejudiced of his right which descends unto him from his Ancestor And therefore in such case the Law will rather suffer a delay then hazard the right of thâ— land the possession whereof his Ancestor hath by negligence or otherwise lost But when the Ancestor dies seised and the land doth descend unto the Infant and he enters and takes the Explees and profits In this Case it will he a prejudice to the Infant if he should lose the possession which he had and shall be thereof delayed until his full age It is otherwise when onely a naked right descends unto him for then he can suffer no such prejudice but rather may run a hazard c. And with this agrées 12 E. 4. 17. in a writ of Entry sur disseisin of a disseisin made to the Infant himself And 41 E. 3. tit Age 39 in a VVrit of Right of a deforcement done to the Infant himself of land which he had by descent So likewise in Escheat and Cessavit and a writ of Right sur disclaimer brought by an Infant because he hath the Seigniory in possession which by Escheat Cesser or Disclaimer he might lose and in that Case also his Ancestor had no right to the land and therefore the Parol shall not stay for his non-age In like manner in a writ of Mesne brought by an Infant because the cause of Action and the wrong begins in the time of the Infant himself the Parol shall not stay c. 21 E. 3. Age 85. Temp. E. 1. Age 119. 7 E. 2. Age 140. Also in a Formedon in remainder albeit the Infant demands Fee-simple yet because his Ancestor whose Heir he is was never in seisin nor took explees and therefore in such Case he shall alledge explees onely in the particular tenant who had the estate upon which the remainer depended for this cause the tenant without plee cannot pray that the Parol may stay in as much as the remainder was never in the possession of any of his Ancestors and the Demandant himself is the first in whom it will vest and that shall have seisin of the land in demand c. It is otherwise in a Form in reverter causa qua suprà Co. l. 6. 8. b. 1 in Ferrers case 28 At the Common Law before the Statute of West 2. cap. 4. if one had suffered a recovery in any real Action against him by default if he were lawfully summoned Recovery by default and that there were no errour in the procéeding he had not any remedy but by writ of Right Howbeit the Law was otherwise in case of an Infant for he was therein excused by reason of his tendernesse of age and want of understanding Co. l. 7. 7. b. 4. in the Earl of
intailed within the said Statute for that they be not issuing out of Tenements nor annexed to nor exercisable within or concerning Lands or Tenements of Fréehold or Inheritance but concerning Chattels and savour nothing of the realty So it is likewise if I by my Déed for me and my Heires grant an Annuity to a man and the Heires of his body because this onely chargeth my Person and concerneth no Land nor laboureth of the Realty Baron Feme Chattels real and personal 5 If a Feme sole be possessed of an Estate for years Co. Inst p. 1. 351. 185. b. 3. 299. b. 4. and 46. b. 2. or by Statute Merchant Statute Staple or Elegit or of a wardship or other chattels real and taketh Baron the Baron is thereof possessed in her right onely And albeit during the Coverture he may dispose of such an Estate by Grant Demise c. or upon Out-lawry Attainder c. may forfeit it or may subject it to be sold by the Sheriff upon an execution for his Debt and in Case he survive the Feme shall then have a clear interest in it yet he cannot dispose of such an Estate by Will and if she survive him no disposition or forfeiture being thereof made as aforesaid she shall have it and not his executors or administrators because these Estates and Interests savour of the realty and therefore the Feme being thereof once possest her interest cannot be by the Inter-marriage so easily removed as if they were Chattels personal There is the same Law also of Chattels real which being of a mixt nature viz. partly in possession and partly in action happen during the Coverture As if the husband be seised of a rent-service charge or seck in the right of his wife the rent becomes due during the Coverture the wife dieth the husband shall have the arrerages but if the wife survive the husband she shall have them and not the executors of the husband So it is also of an Advowson if the Church become void during the Coverture he may have a Quare Impedit in his own name as some hold but his wife shall have it if she survive him and the husband if he survive her Et sic de similibus But as concerning Chattels personal the inter-marriage is an absolute gift of such goods which she hath in possession and in her own right whether the husband survive the wife or no so that he may at his pleasure dispose of them either by act execute in his life or by will and albeit he make no such disposition of them and die living the wife yet his Executors or Administrators shall have them and not the wife c. Howbeit if they be in action as Debts by Obligation c. the husband shall not have them unlesse recovered during the Coverture neither yet shall he have such goods as the wife hath in auter droit as Executrix or Administratrix c Vide R. 55. ex 129. â—enants in â—â—mmon â—hattels 6 If one Tenant in Common of Chattels take any Chattels real Co. ib. 200. a. z which are not of an intire nature from his companion the other may have his remedy to recover them by Action but if one of them take all the personal goods from the other he hath no remedy by Action or otherwise save onely to take them again by Catch-pole Law And so it is also of intire Chattels real as a Ship Horse Hawk or the like but that is in respect of the Intirenesse and inseverablenesse of their nature c. for which sée R. 70. ex 25. â—reehold or â—â—heritance 〈◊〉 reassumed â—e collateral â—â—sfaction 7 It is said in our Books that Accord with satisfaction is a good plea in personal actions where damages onely are to be recovered Co. l. 4. 1. a. 4 in Vernons case but not in real Actions For a right or title to any Estate of Inheritance or Fréehold cannot be barred by acceptance of any collateral satisfaction or recompence As if A. disseise B. tenant for life or in Fée of the Mannor of Dale after A. gives the Mannor of Sale to B. and his Heires in full satisfaction of all his rights and actions which he hath in or for the Mannor of Dale and B. accepts thereof Neverthelesse B. may enter into the Mannor of Dale or recover it in any real action it is otherwise of things in the personalty Dier 2. 8. 6 H. 8. 8 In real Actions to plead Alien Actions that the Plaintiff is an Alien is a good bar because an Alien can have no land within the Realm but such a Plea in personal Actions is no bar because an Alien may bring personal Actions unlesse he be an Alien Enemy Co. l. 6. 7. a. in Ferrers Case 9 Betwixt real and personal Actions there is a diversity Bar in personal actions binde not so in real for in personal Actions as in Debt Account c. the bar is perpetual because in such Cases a man shall not have an Action of a higher nature But in a real Action if the Demandant be barred by judgment upon Verdict Demurrer Confession c. yet he may have an Action of a higher nature and shall try the same right again because it concerns his Frank-tenement and Inheritance So if a man be barred in Assise of Novel disseisin yet upon shewing a descent or other special matter he may have an Assise of Mortdancestor Aiel Besaiel c. Vide infrà 1. 78 14. Litt. §. 146. Co. Inst p. 1. 103. a. 2. 10 An Abbot Prior Bishop Successor of an Abbot c. bouâ—d or other sole Corporation cannot dis-claim or devest any thing of Fée which is vested in their houses or other spiritual Corporations to the prejudice of the Successor Howbeit if an Abbot or Bishop c. acknowledge the Action in a writ of Annuity or in an action of Debt upon an Obligation Statute or Recognisance this shall binde the Successor so as he shall not prevent execution thereupon albeit they were granted and made without the consent of the Covent Chapter c. because these things being in the personalty the recovery thereof cannot be falsified in an higher action Et res judicata pro veritate accipitur Vide suprà M. 1. cap. 4. Co. ib. 125. b. 3 11 In a Plea real against divers tenants Pleas real and personal if one tenant plead in barre to parcel or which extendeth onely to him that pleadeth it and the other pleads a Plea which goeth to the whole viz. to both the tenants and which indéed would make an end of the business if it were tried yet those several Pleas shall have several trials as if a praecipe be brought by one as heir to his father against two and one of them pleads a Plea which extendeth but to himself and the other pleads a Plea which extends to both as Bastardie in the Demandant and it
shall be void and after the Lessor grants the Reversion over the condition is broken the Grantée shall take advantage of that Condition by the Common Law for the lease is thereby absolutely void But if a lease for life had béen made upon such Condition the grantée shall not take benefit of the breach of the Condition because a frank-tenant whereof a praecipe lies cannot so easily cease but it is voidable by entry after the Condition broken which cannot by the Common Law be transferred to a stranger c. and with this agrées 11 H. 7. 17. Br. Condit 245. 2. Mar. per Bromley Rule 27. Co. l. 9. 135. a 1 in Ascoughs Case 20 If the Lord grant his Seigniory for yeares Seigniory Attornment Lessee for 〈◊〉 for yeares the remainder to the Tenant peravaile for life in this Case the Seigniory is suspended because the Tenant for life hath the frank-tenement of the Seigniory and he is Tenant to every praecipe of the Seigniory as in the Case of Littleton l. 2. cap. Attornment fol. 128. If land be let to a man for term of yeares the remainder to another for term of life and after the Lessor grants over the reversion and he in the remainder for life attornes this is a good attornment and shall binde the Lessée for yeares without any attornment made by him For he was Tenant of the frank-tenement and at the Common Law the termor for yeares was subject and under the power of the Tenant of the frank-tenement for he shall not falsifie a recovery at the Common Law against the Tenant of of the frank-tenement because he hath but a Chattel c. Co. lib. 10. 48. b. 3. in Lampets Case 21 If Lessée for 1000 yeares be ousted by the Lessor Frank-teâ—â—â— cannot drâ—â—â— in a Chattel and he maketh a lease for 2 yeares to another In this Case the Lessée for 1000 yeares may release to the Lessée for 2 yeares but if the Lessor disseise his Lessée for life and make a lease for 1000 yeares yet the Lessée for life cannot release to that Lessée for yeares because a frank-tenement is too high to be drowned in a Chattel Co. lib. 10. 87. a. 4. in Leonard Loveis Case 22 If a term be devised to one and to the heires males of his body A term shall go to the Eâ—ecutors his heire shall not have it but his Executors for the term which is but a Chattel cannot be entailed and such a devisée may alien the term to whom he pleaseth and so it was adjudged Tr. 28 Eliz. in B. R. in Peacocks Case and 21 Eliz. resolved by Anderson and Walmesly being referred unto them out of the Chancery betwéen Higgins and Milles. Sée also Dier 7. 28 H. 8. Pl. 8. F. N. B. 34. f. 23 If a Man make a devise of lands or Tenements Court Christiaâ— the devisée shall not sue for them in the Ecclesiastical Court and if he do the other party shall have a prohibition Otherwise it is of personal goods and also of Chattels real as a term of yeares a ward c. for for such the devisée may sue in that Court c. Co. l. 3. 26. a. 3. c. in Butler Bakers Case 24 An Estate of Inheritance or frée-hold cannot be put out of a man by any verbal wayver disclaimer or dis-agréement in pais Disclaim in pais of interâ— in goods 〈◊〉 so of frechâ— or otherwise then in Court of Record but a man may disclaime or disagrée to Interest in Chattels in pais and no such dis-agréement in a Court of Record is in that Case necessary For example If Lands be given to Baron and Feme in taile or in sée the Baron dies the Feme in this Case cannot divest the frank-tenement out of her by saying she dis-agrées to the grant or that she will have nothing to do with the land So if the Baron aliens his land and takes again an Estate to him and his wife in taile the Baron dies the Lord of whom the land is holden by Knight-service supposing that the Baron died solely seised by parol assignes dower to the Feme which she accepts yet this refusall of the Inheritance and acceptance of the Dower in pais shall not divest the frank-tenement out of her Likewise if a Charter of feofment be made to four and seisin delivered to three in the name of all and after the seisin delivered the fourth comming and séeing the déed dis-agrées to it and saith he will have nothing to do with the land yet it was adjudged in 13 R. 2. Title Jointenance that this dis-agréement by parol in pais could not divest the frank-tenement out of him And Thorpe in 53 E. 3. Tit. Disclaimer saith that in such Case the tenancy remaines in all until dis-agréement in Court of Record But if A. make an Obligation to B. and deliver it to C. to the use of B. this is the déed of A. presently Howbeit if C. offer it to B. there B. may refuse it in pais and by such refusal the Obligation shall be his force There is the same Law of a gift of goods and Chattels if the déed be delivered to the use of the Donée the goods and Chattels are immediately in the Donée before notice or agréement but the Donée may make refusal of such gift in pais and thereby the property and Interest shall be divested and such dis-agréement is not necessary to be made in a Court of Record as in Case of a frée-hold c. Condition to be void 25 There is a diversity betwéen a Condition annexed to a frée-hold and a Condition annexed to a lease for yeares Co. Inst p. 1. 214. b. 3. for if a man make a gift in taile or a lease for life upon Condition that if the Donée or lessée goeth not to Rome before such a day the gift or lease shall cease or be void the grantée of the Reversion shall never take advantage of this Condition because the Estate cannot cease before an entry but if the lease had béen but for yeares there the grantée should have taken advantage of the like Condition because the lease for yeares ipso facto by the breach of the Condition without entry was void for a lease for yeares may begin without Ceremony and also may end without Ceremony And of a void thing a stranger may take benefit but not of a voidable Estate without entry Rent issuing 〈◊〉 of fee and lease hold 26 A man seised of Black-acre in fée Co. 7. 23. a. Buts Case and possest of White-acre for yeares grants a Rent charge for life with clause of distresse in both In this Case the Rent issues onely out of Black-acre for out of White-acre in regard of the meanesse of the Interest thereof a frank-tenement cannot issue neither shall it be put in view and acceptance of the Lease of White-acre by grantée of the
Assurance in the Countrey and to be maiâ—tained for the common good and quiet of the Realm And upon the Feoffment the Fréehold which is so much estéemed in Law doth passe by open livery to the Feoffée but by the release a bare right onely 3 Vide suprà M. 94. Pl. 25. M. â—o Pl. 8. Dier 51. b. 17 33 H. 8. 4 Tenant in tail before the Statute of 27 H. 8. Lease good against Issue iâ— tail of Vses makes a Feoffment in Fée to the use of himself and his heirâ— and after he and his Feoffées make a lease for years rendring rent and after the Statute is made the tenant in tail dies seised and his issue aliens the land by fine before any entry made upon the Termor or any receit of the rent and the alienée accepts he rent In this Case the Alienée shall never avoid the lease whether he accepted the rent or no for the lease was not méerly void by the death of the tenant in tail without actual entry made by the issue but it had béen otherwise of a rent granted out of the land by the Tenant in tail and his Feoffées So likewise in Littletons Case of a Feoffment by tenant in tail to his eldest son within age and when he comes to full age he make a Leasts for years and after the father dies so as the son is remitted yet hâ— shall not avoid his lease as he might have done a rent issuing out of the land Co. Inst p. 1. 332. a. 4. 5 If there be tenant for life the remainder in tail Discontinuance and he in the remainder grants it to another in fée by Déed and the tenant for life attorns this is no discondinuance of the remainder in tail so it is likewise of a Rent-charge Advowson in grosse Common in grosse or the like for the Rule is that a Grant by Déed of such things as do lie in Grant and not in livery of Seisin do work no discontinuance Co. ib. 332. b. 1 6 If tenant in tail of a rent service c. Discontinuance or of a Reversion or Remainder in tail c. grant the same in Fée with warranty and he oweth Assets in Fée simple and dieth This is neither bar nor discontinuance to the issue intail but he may distrain for the rent or service or enter into the land after the decease of the tenant for life But if the issue bringeth a Formedon in descender and admit himself out of possession then he shall be barred by the warranty and Assets It is otherwise 〈◊〉 tenant in tail in possession maketh a Feoffment with livery of Seisin for that worketh a discontinuance And yet if tenant in tail of a rent disseise the tenant of the land and make a Feoffment in Fée with warranty and dieth This is no discontinuance of the rent but the issue may distrain for the same And albeit the warranty exâ—â—â—â— to the rent yet by the Rule of Littleton § 618. it lieth not in discontinuance And where the thing doth lie in livery as lands and tenements yet if to the Conveyance of the Fréehold and Inheritance no livery of Seisin is requisite it worketh no discontinuance as if tenant in tail exchange lands c. or if the King being tenant in tail grant by his Letters Patents the lands in Fée there is no discontinuance wrought Also it is regularly true of a thing that lieth in grant that although it be granted by fine yet it worketh no discontinuance Howbeit it tenant in tail make a lease for yeares of lands and after levy a Fine this is a discontinuance for a Fine is a Feoffment of Record and in such Case the Fréehold passeth But if tenant in tail maketh a lease for his own life and after levy a Fine this is no discontinuance because the Reversion expectant upon a State of Fréehold which lieth onely in grant passeth thereby 97 A matter in the right more then a matter in possession Fore-judger â—f Mesne 1 If the tenant be disseised and the Disseisor in a writ of Mesne Co. Inst p. 1. 100. b. 1. fore-judge the Mesne this shall not binde the Disseisée And so if the Mesne be disseised and a fore-judgment is had against the Disseisor this doth not binde the Disseisée for the words of the Statute of West 2. cap. 9. are Quando tenens sine praejudicio alterius quam medii attornare se potest capitali Domino c. â—â—scription â—â—stome 2 A title once gained by prescripcion or custome Co. ib. 114. b. 2 cannot be lost by interruption of the possession for ten or twenty years but by interruption in the right it may be lost as if a man have had a rent or Common by prescription unity of possession of as high and perdurable estate is an interruption in the right â— Writ of â—â—sne 3 In a writ of Mesne the Plaintiffe made his title by prescription Co. ibid. that the Defendant and his Ancestors had acquitted the Plaintiff and his Ancestors and the Terre-tenant time out of minde c. the Defendant took Issue that the Defendant and his Ancestors had not acquitted the Plaintiff and his Ancestors and the Terre-tenant and the Iury gave a special Verdict that the Grandfather of the Plaintiff was enfeoffed by one Agnes and that Agnes and her Ancestors was acquitted by the Ancestors of the Defendant time out of minde before that time since which time no acquital had béen and it was adjudged and afterwards affirmed in a writ of Error that the Plaintiff should recover his acquital for that there was once a title by prescription vested which cannot be taken away by a wrongful cesser to acquite of late time And albeit the Verdict had found against the letter of the Issue yet for that the substance of the Issue was found viz. a sufficient title by prescription it was adjudged both in Banco M. 4â— 44. El. in a Prohibition betwixt Nowel and â—icks in B. R. and afterwards in a writ of Error in B. R. â—â—las deciâ—â—di for the Plaintiff So a modus decimandi was alledged by prescription time out of minde for tithes of lambs and thereupon issue joyned and the Iury found that before 20 years then last past there was such a prescription and that for these 20 years he had paid tithe-lamb in specie and it was objected first that the Issue was found against the Plaintiff for that the prescription was general for all the time of prescription and 20 years did fail thereof Secondly that the party by payment of tithes in specie had waved the prescription or custome But it was adjudged for the Plaintiffe in the prohibition for albeit the modus decimandi had not béen paid by the space of 20 years yet the prescription being found the substance of the Issue is found for the Plaintiff Common And if a man hath a Common by prescription
and taketh a Lease of the land for 20 years whereby the Common is suspended after the years ended he may claim the Common generally by prescription for that the suspension was but to the possession and not to the right and the Inheritance of the Common did alwayes remain And when a Prescription or Custome doth make a title of Inheritance the party cannot alter or wave the same in pais Litt. §. 430. Co. ib. 257. a 2 4 The Disseisée after claim lawfully made shall have an Action of Trespasse against the Disseisor Claim Trespass Disseisee Disseisor notwithstanding his continuance of possession and occupation and shall recover damages and costs for the first entry before any regresse and after regresse of the Disseisor he shall have an Action of Trespasse with a Continuando and recover as well for all the mean occupation as for the first entry Lit. § 486 487. Co. ib 283. b. 2. 5 If the Disseisée enter upon the heir of the Disseisor which entry is a disseisin The meer râ—gâ— preferred before the possession c. and the heir bring an Assise or writ of Entry in the nature of an Assise he shall recover but if the heir bring a writ of right against the Disseisée he shall be barred because in the writ of right the charge of the grand Assise upon their oath is upon the méer right and not upon the possession c. And albeit in that Case the heir in an Assise or writ of Entry c. may regain the possession from the Disseisée yet shall the Disseisée still retain his ancient right and thereupon may again recover the possession of the land from the heir in a writ of Entry in the per. for the disseisin made unto him by the ancestor of the heir Co. ib. 266. a. 2 c. or otherwise may recover it in a writ of right c. And therefore there is a diversity worthy observation when the possession shall draw the right of the land to it and when not for when the possession is first and then a right cometh thereunto the entry of him that hath right to the possession shall gain also the right which followeth the possession and the right of possession in that Case draweth the right unto it but when the right is first and then the possession cometh to the right albeit the possession be defeated as in the Case aforesaid it is by the heir of the Disseisor yet the right still remaineth So if a woman that hath right of Dower disseise the heir and he recover the land against her yet shall he leave the right of Dower in her Likewise if the heir of the Disseisor be disseised and the Disseisor enfeoff the heir apparent of the Disseisée being of full age and then the Disseisée dieth and the naked right descends to him and the heir of the Disseisor recovers the land against him yet doth he leave the naked right in the heir of the Disseisée that being originally in him in respect of the privity of Descent Also if the heir of the Disseisor be disseised and the Disseisée release to the Disseisor upon condition if the condition be broken it shall revest the naked right c. And so the Disseisée had entred upon the heir of the Dissesor and made a Feoffment in Fée upon â—ondition if he entred for the condition broken and the heir of the â—isseisor entred upon him the naked right should be left in the Disseisée But in these two last Cases if the heir of the Disseisor had entred before the Condition broken then the right of the Disseisée had béen gâ—ne for ever because in the first Case the possession of the disseisor was first and then came the right unto it by the release of the disseisée anâ— in the other Case the possession and right happened both in one and the same instant and in that Case the possession shall relate first And iâ— both Cases untill the breach of the Condition the disseisée had oustâ—d himself of his whole Estate In like manner A. disseiseth the heâ—r of the disseisor and the disseisée releaseth to A. Now hath A. the méere right to the land and therefore if the heire of the disseisor enter into the land and re-gaine the possession that shall draw with it the méere right to the land and shall not re-gaine the possession onely and leave the méere right in A. but by the recontinuance of the possession the méere right is therewith vested in the heire of the disseisor because the possession was in A before the acquisition of the méere right c. â—respass â—illein 6 In an Action of Trespass against Tenant for life 14 H. 7. 5. Keble Finch 30. who pleads villeinage in the Plaintiff and the Plaintiff is found frank no villein yet he in the reversion is not estopped by this verdict for the thing it selfe whereupon the reversion dependeth is not in demand and the Plaintiffe shall recover onely dammages Neither can he in the Reversion have a writ of Error or attaint upon it Otherwise it is in à nativo habendo for there the right of Villeinage commeth in question and he in the Reversion may have an error or attaint 98 Yet it favoureth Possession where the right is equal Happe the â—ardship 1 If a man purchaseth at one time several lands Finch 30. holden of several Lords by Knight-service and dieth the Lord that first can happe the wardship of his heire shall have it Guardian in soccage 2 Husband and Wife purchase soccage land to them and the heires of their body and have issue within fourtéen yeares of age die 8 El. 296. Finch 30. In this Case if the Grand-mother of the part of the Mother of the Issue doe first seise the body she shall have the wardship and not the Grand-father of the part of the Father of the Issue Guardian in soccage 3 If lands holden in soccage be given to a man and the heires of his body and he dieth his heire within the age of 14 yeares Co. Inst p. 1. 88. a. 4. Pl. Co. Carels Case the next Cosen of the part of the Father albeit he be the worthyer shall not be preferred before the next Cosen of the part of the Mother but such of them as first seiseth the heire shall have his custody Guardian in â—occage 4 If a man be seised of lands holden in soccage of the part of his Father and of other lands holden in soccage of the part of his mother Co. ibidem and dieth his Issue being within the age of 14 yeares In this Case such of the next of kin of either side as first happeth the body of the heire shall have him Howbeit the next of the bloud of the part of the Father shall enter into the lands of the part of the mother and the next of kinne of the part of the
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
intendeth for the Law intendeth a constant and perpetual apparence c. â—ant by the â—resie â—gh the 〈◊〉 be atâ—ted 5 If a man takes a wife seised of lands or tenements in fée and hath Issue and afterwards the wife is attainted of felony Co. ib. 40. a. 1. so as the Issue cannot inherit to her yet he shall be Tenant by the courtesie in respect of the Issue which he had before the felony and which by possibility might then have inherited But if the wife had béen attainted of felony before Issue had albeit he hath Issue afterwards he shall not be Tenant by the courtesie Because then there was no possibility at all that such Issue should inherit after her â—ant in â—er though â—e be a â—ing imâ—bility of â—ng Issue 6 Dower is given to the Feme for the possibility that the Issue Co. ib. 40. a. 3. which she may have by the Baron may inherit his land albeit she be barren and have no Issue by the Baron And although the Feme be 100 yeares old and the husband at his death onely 4 or 7 years old yet shall the Feme be endowed For the Law can not judge that impossible which may fall within the bounds of nature to be possible it being certain that women in ancient time have had Children at such an age as no women doth now attaine unto and my Lord Coke saith that he knew a woman above 60 years old to have a Childe ideò non definitur in Jure c. Co. ib. 47. a. 1 7 A Rent cannot be reserved by a Common person upon an Estate for life of any incorporal inheritance as Advowsons Commons Rent reservâ—â— upon a reveâ—sion or rendring good Offices Corody Multure of a mill Tythes Faires Markets Liberties Priviledges Franchises and the like because the Lessor cannot have resort or recourse to distraine for the Rent arreare and if it be upon a lease for yeares yet he shall not distraine for it but have onely an Action of debt for it upon the contract Howbeit a reversion or a remainder of Lands or Tenements may be granted reserving a Rent for the apparant possibility that it may come in possession c. Co. ib. 58. b. 3. 8 Albeit a Copi-hold Tenement that escheates Copi-hold the Lords â—â—maines still demisible is kept for many yeares together in the Lords hands yet it still retaines the quality of being demisible in respect of the possibility that the Lord may again admit some man unto it c. Co. Inst p. 1. 80. a. 1. 9 If the Ancestor marieth his heire apparent within the age of consent and dyeth the Infant being still within the age of consent An infant mâ—â—ried before yeares of coâ—sent the Lord may take the Infant if he will into his possession and if the Infant be detained from him he shall recover him in a writ of ravishment of ward and thereupon have the Infant delivered unto him And this is in respect of the possibility that the Infant may dis-agrée to the marriage Howbeit if at the yeares of consent he agrée to the marriage neither the King nor the Lord shall have the marriage for then it is a marriage ab initio and there néed no other marriage Co. ib. 244. a. 2 10 If the Husband hath an apparant possibility of procreation Issue the hâ—â—band inteâ— Maria. as under eight years or under the age of procreation the Issue which his Wife hath is a Bastard albeit he was then within the four seas that is within the jurisdiction of the King of England but when the parties are both of full lawful age if the Husband be within the four seas as afore-said when the wife hath Issue albeit he never came neer her yet is the Child Legitimate for the possibility that they might méete together For in that Case Filiatio non potest probari c. So it is also if the Issue be borne within a moneth or a day after marriage for in such Case the Law will not judge of any impossibility c. Co. ib. 316. a. 4 Co. l. 10. 44. a. 2. Jennings Case 11 A. seised of Land in Fée grants it in tail to B. and afterwards grants the Reversion to C. in Fée by Fine in this Case Tenant in tâ—â—â— not compelable to attoâ—â—â— the Tenant in tail is not compellable to attorne in respect of the possibility that this Estate being an Estate of Inheritance may continue for ever c. Litt. §. 707. Co. ib. 371. 6. 12 If a man hath Issue two Sonnes and is disseised Lineal colateral warranty and the eldest Son release to the Disseisor by déed with Warranty and die without Issue and afterwards the Father dies this is a lineal Warranty to the younger Son for the possibility that the younger Son might have convyed his tittle to the Land through the eldest Son in Case the eldest Son had survived the Father Otherwise it is where the yonger Son deceaseth and dies without Issue for the eldest Sonne can by no possibility convey his title to the Land from the Father through the younger Son c. Litt. §. 708 Co. ib. 372. a. 13 If Tenant in taile hath issue thrée Sonnes Lineal câ—lateral waâ—ranty of Tenant in taile and discontinue the taile in Fée and the second Son releaseth by his déed with Warranty to the Discontinuee and after the Tenant in taile dies and the second Son dies without Issue here the eldest Sonne is barred to have any recovery by writ of Formedon because the Warranty of the second Brother is collateral to him for the impossibility that he may convey any Estate to him through the second Brother but if the eldest Sonne die without Issue then may the youngest Son have a Formedon in respect of the possibility that the youngest Son might have conveyed the descent of the land to him thorough the second Brother c. The heire shal have writthings 14 If a man make a Feoffment with warranty and die Co. l 11. b 4 in the Lo. Buckhursts Case the heire of the Feoffor shall have all the writings which the Feoffor himselfe might detaine albeit the heire hath nothing by descent for the possibility of the descent afterwards Grant of a remainder to the heires of I. S. good 15 If a Lease be made for life the remainder to the right heires of I. S. the same I.S. being then in rerum natura it is good Co. l. 2. 51. b. 1. Sir Hugh Cholmeleys Case for the common possibility that I. S. may die during the life of the Tenant for life Co. Inst p. 1. 378. a. 3. The Law considereth a child in ventre sâ—â—â—re 16 Albeit Filius in utero matris is part viscerum matris vide 3. Ass Pl. 2. 22 Ass Pl. 94. 22 E. 3. Tit. Corone 180. Stanford fol. 21. Co. l. 7. 8. b. 4. the
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
â—tion for a â—n a Leet 21 For offences committed in the Léet it selfe Co. l. 8. 41. b. 2 in Grieslies ca. as refusing to take the oath of Constable or the like the Lord may bring his action of Debt distraine goods and sell them or distraine and impound them at his Election â—count to â—ng 22 If the Treasurer and Vnder-Treasurer of the Exchequer give power to one by an un-lawful warrant to receive money of one and more of the Tollers of that Court Co. l. 11. 90. b 4. and 92. b. 4. Sir Walter Mildmayes ca. cited in the E. of Devons Ca. it is in the Kings Election to charge the party that receives them or in Case he die his Executors or otherwise to charge the Treasurer and Vnder-treasurer that issued out such unlawful warrant â—n Office â—wardâ— 23 If a man be ousted of his Steward-ship of a Mannor Co. l. 9. 51. a. 1 the Earle of Shrewsburies Case so as another executes the place taking the profits thereof for his restauration thereunto he may either bring an Action of the Case or otherwise an Assise at his Election â—ers or oâ—s in Gaâ—ed a Raâ— parte â— a Nuper 〈◊〉 24 If the Ancestor die seised F.N.B. 9. g. and one of the Sisters enter into all the Lands and deforce the rest In this Case the other Sisters may sue a writ de rationabili parte or a writ of nuper obiit at their Election So likewise for lands in Gavelkind if one Brother enter into all the lands and oust his Brothers here also if the Ancestor died seised the other Brothers may sue a writ de rationabili parte or a nuper obiit at their Election â—ded in Aâ—y or by â— â—juste 〈◊〉 25 If there be Lord and Tenant F.N.B. 10. h. and the Lord incroacheth other services then such as are due to him as Homage Escuage or the like In this Case the Tenant may avoid such incroachment in Avowry made by the Lord for such services because the Tenant may traverse the manner of the Tenure as to say that he holds of the Lord by fealty and xx s. Rent onely without that that he holds by Homage Fealty and Rent in manner and forme as the Avowry is made Or otherwise he may bring a writ of Ne injustè vexes if he please at his Election â—t of right â—urowson â—n scire faâ— 26 If a man recover in a writ of Right of Advowson F.N.B. 36. a. at the next avoidance he may present and shall have a Quare impedit without assigning any presentment in himselfe or his Ancestors but shall declare upon the Record or otherwise he may have a scire facias upon such recovery â—it utrum â—â—aint 27 If a man recover by an Action tried against a Parson F.N.B. 48. r. lands and Tenements by verdict and the Parson pray not in Ayde of the Patron and Ordinary In this Case if it was a false Verdict the Successor may have a Juris utrum or an attaint at his Election â—r or atâ— 28 If a Parson lose by action tried or by default F.N.B. 49. g. his Successor may have a writ of Error or an attaint at his Election 〈◊〉 in Court â—ristian or a 〈◊〉 of annuiâ— 29 If a Parson Vicar Master of an Hospital or the like F.N.B. 51. b. have a pension out of another Church which they and their Predecessors have had time out of minde it is at the Election of such Parson Vicar c. to sue for such pension in the Court Christian or by writ of annuity at the Common Law for in that case if they sue for it in Court Christian and the other party purchase a prohibition c. upon the matter shewed they shall have consultation F.N.B. 82. d. â—sse or â—de auxilio 30 For Ayde ad filium suum militem faciendum vel ad filiam maritandam the Lord may distraine his Tenant and make avowry or bring a writ auxilio at his Election F. N B. 98. c. 31 If Baron and Feme lose by default the land of the Feme here Deceit or in vita if the Baron die the Feme may have a writ of defeit or a Cui in vita at her Election F.N.B. 99. g. 32 A writ of deceit may issue out of the Common Pleas or Chancery at the Election of the Plaintiffe A writ of ceit our oâ— Com. Plâ— Chaâ—cery as if a man lose by default land in a praecipit quod reddat in the Common Pleas the Tenant shall have a writ of deceit alleadging that he was not summoned or the like out of the Common Pleas or out of the Chancery at his Election F.N.B. 104. f. 33 Where the Recognisor purchaseth a Mannor Audita 〈◊〉 or seisâ—t unto which the Recognisée is Villain regardant In this Case the Recognisor may have an audita quaerela or otherwise may enter and seise the Recognisor without any such suit at his Election F.N.B. 122. d. 34 A man may sue a writ of debt upon a Statute Merchant Debt or eâ—cution Statute Staple or Recognisance or otherwise he may sue execution upon those Statutes at his Election F.N.B. 155. d. 35 If Tenant in Taile Dower by the Courtesie Deceit or Quod ei dâ—ceat or for life lose by default where they were not summoned or the like they may have a writ of deceit or a Quod ea deforceat upon the Statute of W. 2. c. 4. at their pleasure Dier 162. 51. 4 5. P. M 36 If a man condemned in debt or damages have lands in divers Counties Elegit Fieri faâ—â— the Plaintiffe may pray an Elegit in each County for the whole debt or damages or he may make divisions of his debt viz. Quoad decem libras c. quoad alias decem libras c. sic deinceps at his election Vide M. 17 E. 3. in debt against Executors two writs of fieri facias were awarded into several Counties for the whole debt And in waste in 29 H. 6. Rot. 103. the Plaintiffe for the treble damages had thrée writs of Elegit in thrée several Counties for the whole Dier 344. 2. 18 Eliz. 37 A man grants a Rent-charge without these words per se haeredibus and dies Annuity the grantée brings a writ of Annuity against the Heire and after discontinues his suit and distraines and iâ— it was adjudged well done because the Election to make it an Annuity was determined by the death of the Father 119 Cujus est divisio alterius est Electio Co. Inst p. 1. 166. b. 2. Litt. §. 245. 1 Vpon partition amongst Coperceners Election by Coperceneâ— the eldest shall have the Election for she shall have Civitiam partem but if she herselfe make the partition she loseth her priviledge of Election and shall take last Hob. 107.
with Condition that if it happen the Rent to be behind by the space of a wéeke after any day of payment c. In this Case the Feoffor néedeth not demand it on the Feast day but the uttermost time for demand is a convenient time as afore-said before the last day of the wéeke unlesse before that the Feoffée méet the Feoffor upon the land and tender the Rent as is afore-said Co. ibid. 3 If Rent be granted payable at a certaine day The like and if it be behind and demanded that the grantée shall distraine for it In this Case the grantée néed not demand it at the day but if he demand it at any time after he shall distraine for it For the grantée hath election in this Case to demand it when he will to enable him to distraine The like 4 If Rent be granted payable upon Michaelmas day or within 20 dayes after it séems the grantée must demand it a convenient time before Sun-setting both upon Michaelmas day and the last of the 20 dayes for in this Case it séemes to be in the election of the grantor to tender and pay it upon Michaelmas day or the twentieth day at his pleasure Tamen quaere Pl. Co. 70. b. in Kedwellies Case against Brand. 5 If Rent be reserved to be payd upon Michaelmas day The like and if it happen to be behind forty days after that then the Lessor may re-enter In this Case the Lessor must demand it a convenient time before Sun-set upon the fortieth day to give advantage of re-entry Howbeit if the Rent be limited to be payd at another place assigned and not upon the land as Rent reserved out of Dale to be payable at Sale in such Case the Lessor may take advantage of re-entry without demand and the Lessée is then bound to tender it at his peril but when no place is limited the land is the place because it is principal Debtor Vide 52. 10. â—â—e like 6 If Rent be reserved to be payd at the Feasts of Michaelmas and the Annunciation Dier 142. 50. 3 4 P. M. or within a moneth after the said Feasts by equal portions and if it happen the Rent to be behind after any of the said Feasts and dayes by the space of 8 wéeks that then c. In this Case it séemed to Sanders Chiefe Iustice Whiddon and others that the 8 wéekes should be accounted from the 28 day after the Feast because that makes for the benefit of the Lessée and against the Lessor who grants and the 28 day is a day of payment at the Election of the Lessée as well as the first Feast and day Tamen quaere because no Feast and day certain is mentioned before but the Feast day and the moneth is not any day nor comprehends any day in certain c. Copi-hold 7 In Case of forfeiture of a Copi-hold upon non-payment either of Rent or Fine there must be a demand thereof Ho. 135. Denny and Lemman at the time it grew due or some time after of the person of the Tenant 132 When no time is limited the Law appointeth the most convenient and in some Cases the immediate time â—â—e conâ—â—â—ent and â—â—ng life 1 If a Feofment be made upon Condition Litt. §. 337. Co. Inst p. 1 208. a. 3. c. that if the Feoffor pay a certain summe of money to the Feoffée that then it shall be lawfull for the Feoffor and his heires to enter in this Case if the Feoffor die before the payment made tender by the heire is void because it was limited to be payd by the Feoffor himselfe viz. during his life for séeing no time is limited the Law doth appoint the time and that is during the life of the Feoffor wherein divers diversities are worthy the observation As first betwéen the said Case of the Condition of a feofment in Fée for the payment of money where no time is limited And the Condition of a bond for the payment of a sum of money where no time is limited For in such a Condition of a bond the money is to be paid presently viz. in convenient time And yet in Case of a Condition of a bond there is a diversity betwéen a Condition of an obligation Co. l. 6. 30. b. 4. in Bothies Ca. Co. l. 2. 79 80 81. in the Lo. Cromwels ca. which concernes the doing of a transitory Act without limitation of any time as payment of money delivery Charters or the like for there the Condition is to be performed presently that is in convenient time and whereby the Condition of the Obligation the Act that is to be done to the Obligée is of his owne nature local For there the Obligor no time being limited hath time during his life to performe it as to make a feoffment c. in Case where the Obligée doth not hasten the same by request Again where the Condition of the Obligation is local there is also a diversity when the concurrence of the Obligor and Obligée is requisite as in the Case of a feofment c. and when the Obligor may perform it in the absence of the Obligée as to acknowledge satisfaction in the Court of the Vpper-Bench for here albeit the knowledge of satisfaction is local yet because he may do it in the absence of the Obligée he must do it in convenient time and hath no time during his life Co. ib. 208. b. 3 Co. l. 6 30. b. 4 in Bothies ca. The Lo. Cromwels Case Co. ib. 218. b 4 2 There is a diversity betwéen a Condition of an Obligation The like and a Condition upon a feofment 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 In this Case the Feoffée shall not have time during his life to make the feofment for then he should take the profits in the meane time to his owne use which the stranger ought to have and therefore in such Case he ought to make the feofment as soone 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-enfeoffe the Feoffor there the Feoffée hath time during his life for the privity of the Condition betwéen them unlesse he be hastned by request and so it is likewise of an Obligation Co. ib. 208. b. 4 also in Bothies Ca. in the Lo. Cromwels Ca. 3 There is also a diversity The like when the Obligor or Feoffor is to enfeoffe a Stranger and when a Stranger is to enfeoffe the Feoffée or Obligée As if A. enfeoffe B. of Black-acre with Condition that if C. enfeoffe B. of White-acre A. shall re-enter in this Case C. hath time during his life to enfeoffe B. if B. doth
Possession of the Land need make no claime upon the Land and therefore the Law shall adjudge the rent void without any claime Claime the like 8. If a man make a Feoffment unto me in fee Ibid. upon condition that I shall pay unto him twenty pounds at a day c. and before the day I let unto him the Land for years reserving a rent and after faile of paying the twenty pounds In this case the Feoffor shall retaine the Land to him and his Heires and the rent is determined and extinct for that the Feoffor could not enter neither hath he need to claime upon the Land because he himselfe was in Possession and the Condition being collaterall is not suspended by the Lease The like 9. If a man by his Deed in consideration of Fatherly love Ibid. b. 1. 237. a. 2. c. covenant to stand seised to the use of himselfe for life and after his decease to the use of his eldest Son in tail the Remainder to his second Son in taile the Remainder to his third Son in fee with a Proviso of revocation c. The Father makes a Revocation according to the Proviso In this case the whole estate is immediately upon the Revocation revested in him without Entry or Claime causa qua supra Release good 10. A Release to a Tenant at sufferance as to one that holds over his terme is void Co. ibid. 270. b. a. Litt. S. 460 461. but a Release to a Tenant at will by the Owner of the Land is good to convey the Inheritance unto him because there is between them a Possession with a privity for it would be in vaine to make an estate by Livery to him who hath already Possession of the Tenements by the Owners consent Averment 11. That which is apparent to the Court by necessary collection out of the Record need not be averred for it were vaine to aver that Co. ibid. 303. b. 3. which is apparent to the Court already Attornment of T. in tail 12. Albeit Tenant in taile may attorne where the Reversion of his estate is granted over yet he is not compellable to attorne Co. ibid. 316. a. 4. although such Grant of the Reversion be by Fine because he hath an estate of Inheritance which may continue for ever and therefore it were a vaine thing to require any Attornment from him Attornment 13. If a Lease be made for life the Remainder to another in tail Litt. S. 578. Co. ibid. 319. b. 1. the Remainder to the right heires of the Tenant for life In this case if the Tenant for life grant his Remainder in fee that Remainder passeth without Attornment for here if any should attorne it should be the Tenant for life and it were in vaine for the Tenant for life to attorne upon his own Grant Attornment 14. In these eases following Co. ibid. 318. a. 4. the Tenant is not compellable to attorne because if he should it were in vaine for him so to do As 1. if an Infant levy a Fine the Tenant shall not be compelled to attorne because the Fine is defeasible by Writ of Error during his minority So if Land be holden in ancient demesne and he in the Reversion levieth a Fine of the Reversion at the common Law in this case the Tenant shall not be compellable to attorne because the estate that passed is reversible by a Writ of Disceit Also if Tenant in tail before the Statutes of 4 H. 7. and 32 H. 8. had levyed a Fine the Tenant should not have been compelled to attorne because it was defeasible by the issue in tail but since those Statutes which give strength to Fines to bar the Issue in tail the reason of the common Law being taken away the Tenant in this case shall now be compelled to attorne as it was adjudged in Iustice Windhams case Co. l. 3. fol. 86. Lastly if an alienation be in Mortmaine the Tenant shall not be compelled to attorne because the Lord Paramont may defeate it Co. l. 5. 21. a. 1. Sir Anthony Maines case 15. A. Leases for one and twenty years to B. and is bound to make a new Lease to B. upon surrender of the old A. Disability to make surrender Leases to another for eighty years by Fine in this case the Bond is forfeit Albeit the first act is to be done by B. viz. to surrender and albeit he never surrender for by the Fine levyed for eighty years A. hath disabled himselfe both to take the Surrender and to make a new Lease And the Law will not enforce a man to doe a thing which will be vain and fruitlesse To make Feoffment Lex neminem cogit at vana inutilia per agenda but it would be a vaine thing to compell B. to surrender to A. when A. is not in a capacity to take it So if a man seised of Lands in fee Covenants to enfeoff I. S. of them upon request and after he makes Feoffment in fee of the said Lands in this case I. S. shall have an Action of Covenant without request because it would be in vaine for I. S. to make request when the other hath disabled himselfe to do it Co. l. 5 121. b 4. in Longâ— case 16. In some cases upon an Indictment of Man-slaughter it may be requisite to expresse the length and depth of the wound A wound upon an Indictment because it may appeare thereby whether or no the wound was mortall but when the wound penetrates through the body it is not necessary to shew them because it were vaine to shew them when the wound appeares to be mortall of it selfe without producing those dimensions Co. l. 9. 54. a. 4. in Batens case 17. In a Quod permittat brought by A. against B. for building an House so neare the House of A. that it jutties over the House of A. it is sufficient to say Nusance Ad nocumentum liberi tenementi ipsius A. without assigning any speciall Nusance for it were in vaine to assigne any such speciall Nusance when it appeares to the Court that it must needs be to the Nusance of the Plaintiff because the raine which falls from the House of the Defendant must of necessity fall upon the House of the Plaintiff And Cujus est solum ejus est usque ad Caelum Also by over-hanging of the Defendants House the Plaintiff is hindred of Aire and building his House higher c. Co. l. 9. 106. a. 4. in Margaret Podgers case 18. A. being Copy-holder for life Remainder for life Fine of a Copyhold in bar the Lord bargaines and sels and levies a Fine to A. with Proclamations and five years passe without any claime by those in Remainder neverthelesse they in Remainder shall not be barred for no Fine or Warranty shall bar any estate in Possession Reversion or Remainder which is not devested
copyhold-Copyhold-lands are within the Statute of 32 H. 8. 9. for the Statute saith If any bargaine buy or sell c. Pretenced titles of Copiholds any right or title in or to any Lands or Tenements c. and Copyholds are Lands in and to which right or title may be had and made and they are included in that act to avoid Suites Maintenance and Champerty and by consequent fraud and deceit per Wray And note that in Partridge and Crokers case in Pl. Co. 76. A Lease for years is adjudged within that Act. Co. l. 5. 14. b. 2. 20. By all Statutes made to prevent and suppresse fraud Fraud The king bound the King is bound albeit he be not especially named because Truth Iustice and Religion are the Supporters of his Crowne and Diadem In the case of Ecclesiasticall persons Co. l. 5. 60 a Gooches case 21. In Debt upon an Obligation against the heire Fraudulent conveyance void the Defendant pleads riens per descent the plaintiff maintaines assets in Com. S. the Defendant saith that before the action commenced he had enfeoffed A. of those lands against which the Plaintiff alleadged and proved that the feoffment was by fraud unto which it was urged that the fraud ought to have been specially pleaded and could not be brought in evidence but it was adjudged per totam Curiam that it might be given in evidence and needed not to be specially pleaded 1. because the Statute of 13. Eliz. 5. provides generally that the estate as to the creditor shall be void and Acts of Parliament made for prevention and Suppression of fraud ought to have a benigne interpretation 2. If that matter ought to be pleaded it would prove mischievous to Creditors and would tend much to the mainteinance and increase of fraud and covin for fraud and covin because they are odious are so privily hatched in an hollow tree in arbore cava opaca and so artificially contrived and concealed that the partie grieved hath no meanes to find or know them and then to force the Plaintiff who is a stranger to it to plead the feoffment whereof he hath no notice and that it was done by fraud c. would be mischievous and against Law and reason and thereupon Iudgment was given for the Plaintiff Co. ibid b. 22. A. seised of land in fee makes a fraudulent conveyance to the intent to deceive and defraud purchasers contrarie to the stat of 27. The like Eliz. 4. continues in possession and is reputed as owner B. enters into communication with A. for the purchase thereof and by accident B. hath notice and intelligence of the fraudulent conveyance and notwithstanding that concludes with A. and takes his assuranre from him In this case B. shall avoyde the said fraudulent conveyance by the said Act notwithstanding such notice for the Act hath by expresse words made the fraudulent conveyance void as to the purchasor and in as much as it is within the expresse purview of that Statute it ought to be so taken and expounded in suppression of fraud per Wray but see the like case agreed and resolved per totam Curiam P. 3. Jac. in the case of one Standen Co. l. 5. 69 b. 4. in Burtons case 23. If A. lend 100 l. to B. upon the first of July 1653 and B. Usury grants to A. 20 l. per annum out of the Mannor of D. to begin to be paid at Christmas twelve Moneths after upon Condition if B. pay 100. pounds to A. the first of July 1654. that then the Annuity shall ceâ—se This is not within the Statute of usury but if it had been agreed betwixt them that notwithstanding such power of redemption the 100 l. should not be paid the first of July 1654. and the clause of redemption was inserted on purpose to evade the Statute that had been an usuriâ—us bargain and contract within the Statute Usury 24. A. lends B. 100 l. to pay 20 l. for the Loan of it for one yeare Co. ibid. per Popham if the Son of A. shall be then living this is Vsury within the Statute for if this shall be out of the Statute by reason of the uncertainty of the life the Statute will be of little effect because by the same reason that hee may add one life he may adde more and so he may evade the statute at pleasure that Liberty being like a Mathematicall line viz. Divisibilias in indivisibilia False deed 25. If a Deed be pleaded and shewed in Court and denyed Co. ib. 74. b. 4. in Wymarkes case then it shall alwaies remaine in Court to the end that if it be found not his Deed it should be damned for the falsity thereof Fraudulent conveyances 26. The statute of 11 H. 8. 5. Co. ibid. 77. a. 4. in Boothes case being made to suppresse Fraud and Deceit shall be taken and interpreted beneficially And therefore whereas the words of that Act are that where Tenant for life or yeares have demised or granted to the intent that those in Reversion viz. their Lessors their Heires or Assignes should not know their names and afterwards the first Tenants continually occupy the Lands c. and make Wast c. It is ordained c. that he in Reversion in such case shall maintain a Writ of Wast against the said Tenants for life or yeares yet every Assignee of the first Lessee mediate or immediate is within the sayd Act albeit not therein mentioned Also he in Remainder is within the Act as well as he in Reversion albeit both in the Preamble and Body of the Act there is only mention made of him in Reversion Profits 27. In Formedon the Tenant pleads non-tenure Co. ibid. b. 2. the Demandant saith that he hath made a Feoffment to persons unknown with purpose to defraud him of his Tenancy and still takes the profits In this case the pernancy of the profits and not the Feoffment is traversable 4 H. 7. 9. Warranty 28. The Father Tenant for life Remainder to the Son Co. l. 5. 80. b. 2 leases for yeares to A. with a designe to bar the Son A. enfeoffs B. to whom the Father releaseth with Warranty and dies In this case the Son is not barred by this Warranty being a Warranty that begins by disseisin for albeit it is said in our bookes and true it is that Warranty is much favoured in Law because it extends to establish him that is the Ter-tenant in possession yet when Warranties are mixt with Covin which is so odious and so much abhorred in Law they loose not only their favour but force also for Covin is like poyson that infects every good thing with which it is mixt c. Feigned arrest 29. The entring of feigned Actions in the Counter Co. l. 6. 54. b. 2. in the Countesse of Rutlands case upon pretence afterwards when the Serjeants have the Prisoner in
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
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
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
own Tender but if he that gaged them tendred the money before the stealing and the other refused to deliver them then for this negligence and default in him he shall be charged with them Default in reâ—â—â—ictions 5 In real actions where Voucher lyeth Co. ibid. 101. b. 4. if the Sheriff return that the Vouchée is summoned and he make default then a Magnum Cape ad valentiam is awarded when if he make default again then Iudgement is to be given against the tenant Also if the vouchee do appear and after make default then a Parvum Cape ad valentiam is awarded and if he thereupon make default again then judgment is to be given as before Villein 〈◊〉 Lords 〈◊〉 6 If a Villein purchase land Co. ibid. 118. a. 4. b. 1 2. Littl. §. 177. and alien the land to another before the Lord enter In that case the Lord cannot enter for it shall be adjudged his folly that he entred not when the land was in the Villeins hand So it is likewise if a freeman hath issue and afterwards by confession becometh bond and purchase lands in fee and before the Lord enter he dieth seised and the land descends to his issue which is free in this case also the Lord shall not enter The like Law it is if the land so purchased by the Villein escheat to the Lord of the fee before any entry made by the Lord of the Villein as if the Villein dye without heir or be convict or outlawed for felony or if a recovery be had against the Villein in a Cessavit or the like in all such cases it will be imputed to the folly of the Lord of the Villein that he entred not in time when he might Also if a Villein be disseised before the Lord doth enter the Lord may enter into the land in the name of the Villein and thereby goin the Inheritance of the land but if there be a descent cast so as the entry of the Villein is taken away then the Villein must recontinue the estate of the land by judgement and execution before the Lord of the Villein can enter So if the Villein purchase lands in tayl and alien before the Lord enter the Lords entry is taken away causa qua supra but if the Villein dye and his issue recover the land entayled in a Formedon then the Lord may enter The like law is also of Seigniories Co. ibid. 2. Advowsons Reversions Remainders Rents Commons certain and such like certain Inheritances And all the reason of these â—â—â—es is besides the Lords folly and negligence because the Lord before his entry hath no interest but only a bare possibility Howbeit it is otherwise in the Kings case after office found because nullum tempus occurrit Regi Co. ibid. 118. a. 4. b. 3. Littl. §. 177. 7 If a Villein purchase goods or chattels Villein The Lords seisure of Goods and sell or give them away before the Lord seise them his title to the goods is gone for the Law imputeth it to his folly and negligence as before of lands c. for a bare claim of the goods of the Villein is not sufficient in Law but he must seise some part in the name of all the residue or that the goods be within the view of the Lord for the claim and view amount to a seisure as the claim of a Ward being present by word is a sufficient seisure albeit the Guardian layeth no hands of him And here under the name of goods and chattels are comprehended not only personal goods as an Horse a Cow Housholdstuff and the like but also chattels real as Wardships Leases for years Interests by Statute staple Statute merchant Elegit or the like and the gifts aforesaid do not only extend to gifts in deed but likewise to gifts in Law And therefore if a Wife hath goods and taketh Baron upon this gift in Law by force of the marriage the land is barred So likewise if a Villein having goods make his executors and dye by this gift in Law the Lord is barred for his folly and neglect Co. ibid. 131. a. 4. 8 In an action where a Protection lyeth â—â—â—tectiâ—n if after it is allowed the party tarrieth in the Country without going to the service for which he was relieved above a convenient time after the Protection had or otherwise withdraw himself from the service upon Information thereof to the Lord Chancellor he shall repeal the Protection in that case by an Innotescimus See the Statute of 13 R. 2. 16. Littl. §. 261. Co. ibid. 173. a. 4. 9 If lands be given to a man in tayl Partition who hath as much Feesimple lands and hath issue two daughters and dye and the daughters make partition and the feesimple lands are assigned to the youngest daughter for her purparty and the entailed lands to the elder and the youngest daughter aliens the feesimple lands and having issue dies In this case the issue of the youngest daughter may enter into the moiety of the entailed lands notwithstanding such partition for it will be imputed to the folly of the eldest daughter that she agreed to such a Partition whereas she might have had upon the Partition the moyety of the one and also of the other because in a writ of Partition she was not compellable to take the whole estate in tayl but might have challenged moities in each as aforesaid and that ex provisione legis But when she will not submit her self to the policy and provision of Law but betake her self to her own policy and provision there the Law will not ayd her So likewise if a man be seised of three Manors in fee of equal value Dower and taketh wife and chargeth one of the Manors with a rent-charge and dieth the wife may by the provision of the Law take a third part of all the Manors and hold them discharged but if she will in folly accept the entire Manor charged she shall hold it charged with the rent Mortgage 10 If the Mortgageor tender the money at the day to the Mortgagée and the Mortgagée refuse it and the Mortgageor thereupon enter Littl. §. 335. Co. ibid. 207. the Mortgagée is without remedy at the Common Law for it will be imputed to his folly that he refused it when lawfull tender thereof was made unto him Vide Max. 80. case 24. Bastard Mulâ—er 11 If there be a Bastard eygne and Mulier puisne Littl. §. 399. 401. Co. ibid. 244. and after the fathers death the Bastard enter and peaceably enjoys the land without entry of the Mulier all his life and having issue dieth seised In this case the Mulier is barred for ever for it is imputed to the folly and negligence of the Mulier that he entred not during the life of the Bastard and albeit the Mulier were under age or covert baron at the time of
may aver him to be tenant of the land as the writ supposeth for the benefit of his damages which otherwise he should lose or otherwise he may pray judgement and enter at his election but where no damages are to be recovered as in a Formedon in descender and the like there he cannot averr him tenant but pray his judgement and enter for thereby he hath the effect of his fute and Frustra fit per plura c. And therefore if tenant in tail discontinue Littl. §. 691. and his issue bring a Formedon against the discontinuée and the discontinuée pleads that he is not tenant but utterly disclaims in the tenancy of the land In this case the judgement shall be that the tenant shall go without day and after such judgement the issue may enter into the land notwithstanding the discontinuance One patent better than two 2 When the King was to grant a reversion Co. l. 8. 167. a. 1. in the Earl of Cumberlands case the antient form was to recite the first grant and then to grant the reversion and besides by another patent to grant the lands in possession by which way a good estate passed to the patentee Howbeit to pass these several grants in one and the same patent is as good and effectual in Law as to pass them in several patents and frustra fit per plura c. Seisure Office 3 If the Office of the Marshalsie be forfeit Co. l. 9. 95. b. 3. in Sir Geo. Reynolds case the King shall be in possession thereof by seisure without office so it is also of the Temporalties of a Bishop or of a Prior Alien because the certainty of these appear in the Exchequer frustra fit c. In some cases also the King shall be in possession by office without seisure as of lands tenements offices c. which are local and whereof continual profit may be taken as where it is found by office that a condition is broken or that one attainted of felony is seised of land c. or in case of the ward of land c. In all these cases the King is in possession by office without any seisure 2 H. 6. 1. b. Finch fol. 54. 4 One that is in Court ready to joyn with the defendant may do it without process Vouchee as the vouchee the lessor of the plaintif being prayed in aid of when the defendant in a replevin avows upon him Or the Mesne when the Lord paramount avows upon him but joynder in aid cannot be by Attorney without process Co. l. 5. 21. Sir Anthony Maines case 5 M. leases for 21 years unto S. and covenants to make a new lease to S. upon the surrender of the old Covenant to surrender M. leases to another by fine for 8. years and hereupon S. without surrender of the old lease brings an action of Covenant against M. In this case the covenant is broken albeit S. do not surrender which ought to be the first act because it were in vain for him to do it in regard M. hath disabled himself to take the surrender or to make a new lease 4 E. 3. 170. 6 The demandant may waive issue upon Counterplea of voucher Waiver of issue and grant the voucher for if the Enquest pass the tenant cannot have more 1 H. 6. 4. b. 7 One that is a debtor to the King of Record in the Exchequer Kings debtor if he be seen in Court may be brought in to answer without process Dyer 59. ◠14. 36 H. 8. 8 In Replevin the defendant hath return awarded upon Nonsute of the plaintif Replevin and upon Returno habendo the Sherif returns averia elongata per Querentem and thereupon Withernam is awarded and the defendant hath delivered unto him as many of the plaintifs goods whereupon the Plaintif is to sue a second deliverance In this case he shall sue the second deliverance for the first distress and not for the Cattel delivered upon the Withernam for the Cattel of the first distress being the cause of the Withernam being delivered the other upon the Withernam will be also discharged Dyer 19◠24. 2 3. El. 9 The Sherif of Midd. had an attachment of privilege against one Kemp Cap. satisfac an attachment and likewise a Capias ad satisfaciendum against him at the same plaintifs sute both returnable the same term into the C. B. but the attachment was returnable first upon which he brings his body into Court and said he would return the Ca. sa at the day of return thereof Howbeit upon motion of one of the Protonotaries the Iustices sent the defendant to the Fleet and discharged the Sherif of him and would not stay untill the return of the Ca. Sa. there being a former judgement against him upon Record Vide Dyer 214. 47. Dyer 204. 1. 2. Eliz. Vpon nihil dicit in waste a writ issueth Waste that the Sherif in propria persona accedat ad locum vastatum to enquire of the damages and it was held good and not to enquire of the waste for that was confest by the Nihil dicit neither is it in such case necessary that he should then go in person according to West 2. cap. 25. for that is only in vasto inquirendo where the Defendant makes default to the distress 178 Expedit Reipublicae ut sit finis Litium 1 Regularly an Abbot Prior Bishop Abbot Annuity or other sole Corporation cannot disclaim Co Inst p rs 1. 103. a. 1. or do any act to the prejudice of their house or benefice but what may be avoided by the successor yet if an Abbot Bishop c. acknowledge the action in a writ of Annuity this shall bind the successor because he cannot falsifie it in an higher action and Expedit reipublicae ut sit finis Litium Vide supra Max. 1. case 4. 93 10. So it is likewise in an action of debt upon an Obligation Statute or Recognisance for there must be an end of sutes and Res judicata pro veritate accipitur Challenge 2 If the plaintif allege a cause of challenge against the Sherif Co. ibid. 158 a. 3. 18 E. 4. 8. the process shall be directed to the Coroners and if any cause against any of the Coroners process shall be awarded to the rest if against all of them then the Court shall appoint certain Elisors or Esliors so nanamed of the French word eslire to choose because they are named by the Court against whose return no challenge shall be taken to the array Howbeit challenge may be yet made to the Polles but that shall be also presently examined and setled in Court For Expedit reipublicae c. Partition 3 A partition of intailed lands betwéen parceners Co. ibid. 173. b. 1. being equal at the time of the partition shall bind the issues in tail for ever albeit
defendant pleads Judgement barr to the bond That the plaintif hath recovered upon the same bond and that the judgement thereupon is removed by Error into the Kings Bench and was not yet reversed And this was adjudged a good plea because the judgement takes away the strength of the bond and if after judgement he might sue the same party upon the same bond he might do it infinitely and consequently the defendant might be infinitely amerced for upon every Iudgement the defendant shall be amerced and if he be a Peer of the Realm the amerciament is 100 s. and so the defendant might be infinitely amerced upon one and the same obligation which would be mischievous Et interest Reipublicae ut sit finis litium Co. l. 7. 43. Kenns case 17 A bill of reviver upon a bill of reviver shall not be suffered for the infiniteness Bill of reviver no more than a writ by Iourneys accompts upon a former writ of the same nature for so they might be had infinitely Barrettry 18 A Barrettor is in judgement of Law accounted one of the most dangerous and pernicious vermin in the Commonwealth Co. l. 8. 37. in the case of Barretry because whereas the Law endeavoureth to settle peace and amity and to suppress discord and contention he is seminator litium oppressor vicinorum suorum either by force and open Maintenance of possessions or the like or by fraud and malice under colour of Law as by multiplicity of unjust and feigned sutes Informations or the like to the end he may by that means enforce poor people ad redimendum vexationem to give him money or otherwise to compound with him c. A bitrement 19 Vpon an award albeit the parties do not discover all their differences to the Arbitrators so as they determine some C. l. 8. 98. a. 4. in Baspoles case and leave the rest undetermined yet the award is good because otherwise many Arbitrements might be avoided for the one or the other of the parties may conceal a trespass done to him or some other secret cause of action and so avoid the Arbitrement which were inconvenient for Expedit reipublicae c. Accord 20 Accords are much favoured in Law Co. l. 9. 79. b. 4. in Peytoes case because they prevent and compose sutes and controversies amongst neighbours Et concordiâ parvae res crescunt discordiâ maximae dilabuntur And therefore it was adjudged P. 3 sac rot 1033. that an Accord with satisfaction was a good plea in barr in Eden and Blakes case Fines 21 The general Statute of 32 H. 8. 36. Co. l. 11. 75. a. 1. of Fines shall bind the King though he be not named because it was ordained for the setling and quieting of estates and the prevention of debates and controversies in the Commonwealth in Magdalen College case Assets descended a barr 21 The Statute of Glocester in 6 E. 1. cap. 3. ordains Co. l. 52. b. 4. in Syms case Pl. Co. 110. Fulmerstons case that where tenant by the curtesie aliens his wives inheritance with warranty if assets descend from the heir he shall be barred for the value of the inheritance so descended and if lands after descend that then the tenant shall recover against the heir of the seisin of his mother viz. out of the residu of his mothers lands so much as the assets afterwads descended shall amount unto Here albeit at the making of this Act being in 6 E. 1. there were no intailed lands for all Inheritance was then viz. before Westm ◠being 13 E. 1. feesimple absolute or conditional yet intailed lands are since taken to be within the equity of the said Act of Gloc. but not to retain or recover the lands intailed but only the lands which should so descend because otherwise there would be occasion of new sutes and contention which the Law hates and abhorrs for if the tenant after assets descended might retain or recover the lands intailed then if the assets were aliened the issues inheritable to the estate tail might by writ of Formedon in descender recover the intailed lands again which would beget a new sute and no way answer the Intention of the said Act being indéed a good provision for féesimple lands but not for lands entailed without such a construction by equity as aforesaid And therefore in case of entailed lands so aliened with warranty the tenant shall have a Scire facias out of the Rolls of the Iustices before whom the sute depends to recover the lands descended according to the provision of the said Act of Glocester which in just and proportionable equity agrées with the case of the feesimple lands and the Intention of the same Act. Vide supra 15. 9. infra 186. 8. 179 Circuit of Action Co. Inst part 1. 265. a. 3. 1 Littleton saith § 446. If the father be disseised Rebutter and the son having only a possibility release to the disseisor without warranty such release is void Howbeit if there be a warranty annexed to the release then the son shall be barred for albeit the release cannot barr the right because the son had no right in the land in the life of the father yet the warranty may rebut and barr him and his heirs of a future right which was not in him at that time And the reason which in all cases is to be sought out wherefore a warranty being a covenant real shall barr a future right is for avoiding of circuit of action which is not favoured in Law viz. That he who made the warranty should recover the the land against Terre-tenant and then the Terre-tenant by force of the warranty should have as much land in value against the warrantor which course would occasion Circuit of action and more trouble than needs Mauxels case 7. b. Finch 2 Where the father enfeoffeth his son and heir apparent with warranty and dieth Voucher the son in a praecipe brought against him may immediately vouch his fathers feoffor for the Law will not suffer him to vouch himself according to Max. 54. and so when he comes in as vouchee he may darraign the first warranty to avoid Circuit of Action Finch fol. 14. Fr. Edit F. N. B. 18. f. 3 In false Iudgement against an Abbot the plaintif was non-sute False Judgement and the Abot had a Scire facias against the plaintif to shew cause why he should not have execution returnable quindena Paschae at which day the plaintif appears and assigns his errors and tenders security to sue cum effectu and prays a Scire facias against the Abbot ad audiendum errores and the opinion of the Court was that he might assign his errors against the Abbot without suing out any Scire facias against him Finch pag. 55. 4 In an action of waste upon a lease for years by déed Waste wherein the lessor granteth to the
Copyholders holding of a Manor parcel of the Rectory the Court granted a Prohibition to prevent further waste Hâ—b 62. Paâ—row Lâ—wâ—llyn 33 The privat delivery of defamatory Letters was criminal and censurable in the Starr-chamber and now as it seems Star-chamber inditable in the Upper Bench because such quarrellous Letters tend to the breach of the peace and to the stirring of Challenges and quarrels and therefore the means of such evils as well as the end are to be prevented 187 It moderateth the strictness of the Law it self Co. I st part 1 13. â— 1. 1 A Protection Moraturae or Profecturae have these clauses in them Protection Praesentibus minimè valituris si contingat ipsum c. a custodia Castri praedicti recedere Or si contingat iter illud non accipere vel infra illum terminum a partibus transmarinis redire according to the provision of the Statute of 13 R. 2. 16. nevertheless if he return into England and came over to provide Munition Habiliments of warr victuals or other necessaries it is no breach of the said conditional clauses nor against the said Act for that in judgement of Law coming for such things as are of necessity for the maintenance of the warre Moratur he doth stay according to the intention of the Protection and Statute aforesaid Annuity 2 If A. be seised of lands Co. ibid. 144. b. 2. and he and B. grant a rent charge to one in fée this prima facie seems to be the grant of A. and the confirmation of B. but yet the grantee may have a writ of annuity against both Howbeit if two men grant an annuity of 20 l. per annum to another although the persons be several yet he shall have but one annuity but if the grant be Obligamus nos et utrumque vestrum the grantee may have a writ of annuity against either of them but he shall have but one satisfaction Iudgement 3 An action of trespass was brought against Tilly and Woody for five boxes with charters taken c. Tilly pleads not guilty H. 7. E. 4. fol. 31. Title Judgement 50 Pl. Co. 66. b. 3. Dyve and Maningham and Woody makes title to him by a gift and the plaintif traverseth the gift and thereupon they were at issue and Tilly was found guilty and the issue was found for Woody against the plaintif In this case albeit the issue was found against Tilly yet the plaintif had not judgement against him for it was found betwixt the plaintif and Woody that the plaintif had not title and then in as much as it appeared to the Iudges by the Record that the plaintif had not title they ex officio ought to give judgement against the plaintif The like 4 An action of trespass was brought by lessee for years of Cattel taken the defendant saith P. 10 E. 4. fol. 7. Title Office del Court 7. Br. 29. Pl. Co. ibid. that the Lessor held of him by divers services c. and for so much arrear he took the Cattel the plaintif saith there is nothing arrear c. and hereupon they were at issue and it was found for the plaintif And yet per totam Curiam the plaintif shall not have judgement for albeit the defendant admitted the writ good yet the Court did abate it because it appeared unto them that the defendant was Lord against whom an action of trespass lyeth not Marbr 3. for the Statute saith Non ideo puniatur dominus c. Appeal 5 In an appeal by a feme of the death of her father Pl. Co. ibid. albeit the defendant affirm the writ yet the Court ex officio ought to abate it for it appears to the Court that no feme may have an appeal of the death of any save of her husband by the Statute of Magna Carta cap. 34. which was in affirmance of the Common Law Non est fâ—ctuÌ„ 6 In debt upon an obligation Pl. Co. 66. b. 4. if the defendant conclude his plea with Iudgement si action whereas his plea should have been non est factum yet if the Iustices find that it was not his deed so as the plaintif had no cause of action they ought ex officio to give judgement against the Plaintif Vide 11. 9. Attaint 7 The Statute of 23 H. 8. 3. Dyer 201. 65. 3 El. â— of Attaints lyeth as well against executors as the party himself albeit the party that recovers upon the false verdict be only named in that Statute for that Statute being made in mitigation of the rigor of the Common Law shall be taken by equity and the words against the party that hath judgement are superfluous for it lyes against any that enjoyeth the thing lost 188 Verba semper accipienda sunt in mitiori sensu Slander 1 If one say to another that he is perjured Co. l. 4. 15. b. 1. in Stâ—nhop Blithes case or that he hath forsworn himself in such a Court by these words an action may be maintained for by these words it appears that he hath forsworn himself in a judicial proceeding but to charge another generally that he hath forsworn himself is not actionable because he may be forsworn in usual communication And benignior sententia in verbis generalibus seu dubiis est praeferenda Vide 178 11. Co. l. 4. 15. b. 3. in Yeamans case 2 Yeamans charged Hext being then a Iustice of Peace in these words For my ground in Allerton Hext seeks my life Slander These words being taken in mitiori sensu were not actionable 1. because he may seek his life lawfully upon just cause and his land may be holden of him 2. seeking of his life is too General and for seeking only no punishment can be inflicted by the Law Co. l 4. 17. b. 4. in Iames Rutleches case 3 In an action upon the case for words Slander as an Innuendo cannot make the person certain which was uncertain before so neither can an Innuendo alter the matter or sense of the words themselves as to say that such an one was full of the Pox innuendo the French Pox this Innuendo doth not perform his proper office for it strives to extend the general words the Pox to the French pox by Imagination of an Intent which is not apparent by any precedent words unto which the Innuendo may referr And the words themselves shall be taken in mitiori sensu Co. l. 4. 20. a. 1. in Barhams case 4 Barham brings an action upon the case against Nethershall Slander the words were these Mr. Barham did burn my barn innuendo a barn with corn with his own hands and none but he And it was adjudged that they were not actionable for it is not felony to burn a barn unles it be parcel of a Mansion-house or full of Corn And in this and the like
c. hereupon C. brings a writ of Error c. and for one of the Errors assigns that albeit Ludlow be a Court of Record yet it is not such a Court as is intended by the Statute for causes of that nature for that the antient usage in all such popular actions or informations hath been that albeit the Informer tam pro domina Regina quam pro ipso exhibits the Information yet if the defendant pleads a special plea the Quéens Attorney shall reply alone and it was intended by the makers of the said Act that the sute should be in such a Court where the Kings Attorney may attend for the benefit which the King may have by such a sute and that is in the four Courts at Westminster And thereupon the Iudgement was reversed Vide Dyer 236. 24. Admission and Institution 32 He that comes in by Admission and institution Co. l. 6. 49. b. 1. in Boswels case comes in by a judicial act and the Law presumes that the Bishop who hath the cure of the Souls of all within his diocess for which he shall answer at his fearfull and final account in respect whereof he ought to defend them from all Schismatiques Heretiques and other Instruments of the devil will not do or assent to any wrong to be done to any Parsonage within his diocess but if the Church be litigious will inform himself of the truth de Iure Patronatus and so do right Peer agâ— 33 The person of a Peer of the Realm or a Countess Baroness Co. l. 6. 52. b. 3. in the Countess of Rutlands case c. by marriage or descent ought not to be arrested for debt or trespass because the Law presumes that they have sufficient in lands and tenements whereby they may be distrained and therefore in such cases issues only shall go out against their lands And albeit a Countess Baroness c. in respect of her sex cannot sit in Parliament yet she is a Peer of the Realm and shall be tried by her Peers as appears by the Statute of 20 H. 6. cap. 9. which is but a declaration of the Common Law Vide plus ibidem Cestuy que use 34 If Cestuy que use had granted his use by his will Co. l. 6. 76. a. 3. in Sir Geo. Cursons case no collusion could have been averred upon such a will to obtain the wardship of his heir for Nemo praeâ—umitur esse immemor suae aeternae salutis et maxime in articulo mortis et omne testamentum morte consummatum est And therefore the Statute of 4 H. 7. 10. which gives the wardship of Cestuy que use makes exception when any will is by him declared Vide 27 H. 8. 14. Divorce 35 Ch. and Eliz. were divorced in the Court of Audience ratione aetatis minoâ—is et impubertatis Eliz. after they had lived ten years together and had issue a daughter Co. l. 7. 43. b. Kennes case and afterwards Ch. marrying another woman by another Sentence in the Ecclesiastical Court the first marriage was declared void the second good and liberty given them ad exequenda conjugalia obsequia The second wife dies and Ch. marries a third wife and hath issue another daughter The last daughter is found heir by office the first traverseth the office by bill in the Court of Wards And in this case it was resolved that albeit the first was in truth a lawfull marriage yet the Sentence of divorce being in force no averment could be admitted against it because the Spiritual Iudge having jurisdiction thereof before the Sentence were repealed it was intended by Law to be Iust and our Law gave credence thereunto for Res Judicata pro veritate accipitur See Dyer 13. pl. 62. Co. l 9. 52. b. 4 in Hickmols case 36 If the Obligee confess himself to be discharged of all bonds betwixt him and the Obligor Release of bonds this by intendment of Law is a release or discharge of all bonds betwixt them for albeit the word discharge is not properly said of the part of the Obligee but of the Obligor for the Obligor is to be discharged yet in judgement of Law such an acknowledgement amounts to a discharge of the Obligor of all such duties Co. l. 9. 109. Meriel Treshams case 37 In debt against an executor he cannot plead quod ipse non habet c. aliqua bona c. praeter bona Plea of Executor c. quae non sufficiunt ad satisfacienda debita praedicta but he ought to plead quod non habet c. bona c. praeterquam bona catalla ad valentiam of a certain summ non ultra quae eisdem debitis obligata onerabilia existunt for the first plea is insufficient for the uncertainty vide Max. 162. pl. 61. and the other he ought to plead because he being privy and representing the person of the testator hath by intendment of Law notice of the certainty and certain value of the goods and therefore in such case ought to plead certainly as aforesaid The like Law is of an administrator for the goods of the Intestate Co. l. 11 13. a. 1. in Priddle and Nappâ—rs case 38 Of Impropriations formerly given to Monasteries Appropriations not only those which were truly Impropriate but likewise such as had been and were so in reputation were given to H. 8. by the intendment of the Statutes of Dissolution for albeit in those Statutes there is a saving of rights yet the Founders Donors c. are excepted out of that Saving so as they are bound by the body of the Act. Co l. 11. 16. a 4. in Doct. G anâ—s case 39 A Prescription Tites that every Inhabitant in the parish is to pay 2 s. in the pound according to the value of their houses yearly instead of Tithes is a good prescription because by intendment of Law the commencement thereof might be lawfull for it might be so by composition for the land before the houses were built 40 It is a Principle in Law that a barr is good if it be certain Plea in barr to a common intent good to a common intent Pl. Co. 28. a. 4. Colchrist Bernshin Vide ibid. 31. a. 33 a. 4. â—6 a. 3. as if a Messuage be demised to A. for life the remainder to B. for life si ipse B. vellet inhabitare in messuagio praedicto c. Here in an Action brought by the lessor for the recovery of the Messuage c. upon the condition broken it is a good barr for B. to say that after the death of A. he entred without averring the time of his entry viz. immediately after the death of A. because by intendment of Law it will be presumed he did so enter So if one plead in barr that A. died seised and that B. entred as son and heir to A. this is a good barr
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
such protections must be therein expressed to the end it may appear to the Court that they are granted pro negotiis regni et pro bono publico And these protections are not allowable only for men of full age but for men within age and for women as necessary attendants upon the Camp and that in thrée cases Quia Lotrix seu Nutrix seu Obstetrix Co. ibid. 131. b. 2. 12 Treasure is one of the chiefest supports of a Commonwealth Protection And therefore the King who is the Head of the Commonwealth is regularly by his prerogative to be preferred in payment of his duty or debt by his debtor before any subject albeit the Kings debt or duty be the later upon which ground it is that the King may grant his debtor a protection cum clausula volumus to protect him from the sutes and actions of other Creditors And the reason hereof is for that Thesaurus Regis est fundamentum belli firmamentum pacis But this Law is somewhat altered by the Statute of 25 E. 3. cap. 19. quod vide Co. ibid. 132. b. 3. If a Monk be a farmer of the King yielding a rent Monk he shall have an action concerning that farm because the Kings revenue is also the revenue of the Commonwealth Co. ibid. 133. a. 4. 13 By the Common Law the wife of the King of England is an exempt person from the King Queen and is capable of lands or tenements of the gift of the King as no other feme covert is and is of ability and capacity without the King to grant and to take to sue and be sued as a feme sole at the Common Law for the wisdom of the Law would not have the King whose continual care and study is for the publique circa ardua regni to be troubled and disquieted with such private and petty causes Co. ibid. 149. a. 2. Co. ibid. 149. b. 2. 14 If the tenant holdeth by fealty and a bushel of wheat Service Tenant or a pound of Cumin or pepper or the like and the Lord purchaseth part of the land there shall be an apportionment as well as if the rent were in money yet if the rent were by one grain of wheat one séed of Cumin one pepper Corn a horse or any other intire service by purchase of part the whole should be extinct Howbeit if such an intire service be pro bono publico as Knight service Castle-guard Cornage c. for the defence of the Realm or to repair a bridge or way to keep a Beacon or to keep the Kings Records or for avancement of Iustice and peace as to aid the Sheriff or to be Constable of England albeit the Lord purchaseth part yet the intire service remains See Bruertons case Co. l. 6. 1. b. 4. Jo. Talbots l. 8. 105. b. 4. Authority 15 If a man make a Letter of Attorney to two to do any act Co. ibid. 181 b. 3. if one of them die the survivor shall not do it but if a Venire facias be awarded to four Coroners to impannel and return a Iury and one of them die yet the other shall execute and return the same because it is for the execution of Iustice and by consequent pro bono publico so if a charter of feoffment be made and a Letter of Attorney to four or thrée joyntly and severally to deliver seisin two of them cannot make livery because it is neither by them four or three joyntly nor by any of them severally But if the Sheriff upon a Capias directed to him make a warrant to four or thrée joyntly or severally to arrest the defendant two of them may arrest him for the reason aforesaid and for the same reason such an act shall be more favourably expounded than a private one for Iura publica ex privato promiscua decidi non debent Tenants in Common and Joyntenants 16 If there be two tenants in Common of a Manor Co. ibid. 200. a. 3. c. to which waif and stray doth belong a stray happens they are tenants in Common thereof And yet if one of them take the stray the other hath no remedy by action but to take it again unless they have a prescription to take strayes by turns Howbeit if there be two tenants in Common of a Dove-house and the one wholly destroyes the flight or of a folding and one disturbs the other to erect hurdles In these cases an action of trespass lyeth against the other because they are offences committed in prejudice of the Commonwealth If two several owners of houses have a River in common betwéen them and the one corrupts the River the other shall have an action upon his case against his companion So if there be two tenants in Common or Iointenants of an house or Mill and it fall into decay and the one is willing to repair it and the other will not he that is willing shall have a writ de reparatione facienda and the writ saith Ad reparationem et sustentationem ejusdem domus teneantur whereby it appeareth that owners are in such case bound pro bono publico to maintain houses and mills which are for the habitation and use of men Offices 17 Non-user of it self without some special damage is no forfeiture of Private offices as the Kéepership of Park or the like Co. ibid. 233. a. 4. But Non-user of Publique offices which concern the administration of Iustice or the Commonwealth is of it self a cause of forfeiture Repair by the lessee 18 In many cases a tenant for life or years may fell down timber to make reparations albeit he be not compellable thereunto Co. ibid. 54. b. 2. and shall not be punished for the same in any action of waste As if an house be ruinous at the time of the lease made if the lessée suffer the house to fall down he is not punishable for he is not bound by Law to repair the house in that case and yet if he cut down timber upon the ground so letten and repair it he may well justifie it And the reason is for that the Law doth favour the supportation and maintenance of houses which were ordained for the habitation of Mankind and are by consequent beneficial to the Commonwealth And therefore if the lessor by his Covenant undertake to repair the house yet the lessee if the lessor doth it not may with the timber growing upon the ground repair it though he be not compellable thereunto In like manner if a man make a lease of an house and land without impeachment of waste for the house yet may the lessée with the timber upon the ground repair the house though he may utterly waste it if he will and so it is in many other cases for the reason above alleged Co. l. 4. 14 b. 1. Cutle◠and Dixons case 19 If a man exhibit articles to Iustices of
H. 4. 43 44. Escape Statutes extendible by equity 33 Albeit the Statute of 1 R. 2. 12. be penal Pl. Co. 56. b. Plats case and gives an action of debt only against the Warden of the Fléet yet is extended by equity against all other persons who have the Custody of prisoners in execution because it is good for the Commonwealth for although it is penal against the Warden yet being also extended against all others so chargeable with prisoners it is beneficial to the Common-wealth And indeed every Statute is penal against some man but in as much as the taking of it by equity is more beneficial than prejudicial to the greater number of men and so by consequent to the Commonwealth it is good reason that it should be by the Rules of Law extended by equity So likewise the Statute of Circumspecte agatis in 13 E. 1. is Pl. Go. 59. b. in Wimbish and Talbois case Vide Pl. Co. 82. a. the Stat. of 32 H. 8. 9. of pretenced titles extended also by equity viz. Circumspecte agatis de negotiis tangentibus Episcopum Norwicensem ejus Clerum and yet it is extended to all other Bishops Likewise the Statute of 9 E. 3. cap. 5. which ordains that the executor who comes in first by distress shall answer is extended by equity to Administrators Also the Statute of Westm 2. cap. 3. 13 E. 1. which gives a Cui in vita upon a recovery by default is extended by equity to a Cui ante Divortium And the Statute of Marlbridge cap. 6. which makes mention only de hiis qui primogenitos suos infra aetatem existentes feoffare solent and yet if his first son die and he enfeoff his second son who is his heir this is within the equity of that Statute or if he levy a fine to him which is a matter of Record that is also within the equity of the same Statute and yet the Statute speaks only of a feoffment But regularly all Statutes which are for the advancement of Iustice or beneficial to the Commonwealth are extendible by equity Torts justifiable 34 In some cases a man may justifie to do a wrong Dyer 36. Pl. 40 29 H. 8. which tends to the good of the Commonwealth as in time of warr a man may justifie to make Bulwarks in another mans soyl without license So may he justifie to pull down an house that is on fire for the safeguard of the neighbouring houses also if the Sheriff pursue a felon to an house he may justifie to break open the house door to take him for all these and the like sound to the good of the Commonwealth Co. Inst pars 1. 165. a. 4. 35 If a Castle that is used for the necessary defence of the Realm Coparceners descend to two or more Coparceners this Castle might be divided by Chambers and Rooms as other houses be but yet for that it is pro bono publico pro defensione Regni it shall not be divided Propter jus gladii dividi non potest Fleta l. 5. cap. 9. And another saith Britton 186 187. Pur le droit del espee que ne souffree division en aventure que la force del Realm ne defaille pas tant But Castles of habitation for private use that are not for the necessary defence of the Realm may be parted amongst Coparceners as well as other houses and wives may be thereof also endowed as before hath been said supra 2. Co. Inst pars 1. 14. a. 36 In King Alfreds time Knights fees descended to the eldest son Knight service Socage for that by division of them between Males the defence of the Realm might be weakned but in those dayes Socage-fee was divided between the heirs male and therewith agreeth Glanvile lib. 7. cap. 1. 3. Cum quis haereditatem habens moriatur si plures reliquerit filios tunc distinguitur utrum ille fuerit Miles sive per feodum militare tenens aut liber Sockmannus quia si miles fuerit aut per militiam tenens tunc secundum jus regni Angliae primogenitus filius patri succedit in toto c. si vero fuerit liber Sockmannus tunc quidem dividetur haereditas inter omnes filios c. 198 Publique Commerce Vide supra 198 31. Co. Inst pars 1. 2. b. 2. 1 If an Alien take a lease for years of Lands Meadows Alien Trade c. or being no Merchant taketh a lease for years of an house for habitation upon office found the King shall have them for albeit he be capable to take such a lease or lands tenements or hereditaments to him and his heirs yet upon office found the King shall have them by his prerogative Howbeit he being a Merchant may take a Lease for years of an house for habitation as incident to Commercery for without habitation he cannot merchandise or trade But if he be no Merchant or being a Merchant depart the Realm the King shall have the Lease or if he die possessed thereof neither his executors or administrators shall have it but the King for he had it only for habitation as necessary to his trade or traffique unto which the Common Law giveth much favour Co. ibid. 129. b. 1. 2 An alien enemy shall not maintain any action real personal Alien Actions or mixt donec terrae fuerint communes Howbeit in favour of trade an alien in league may maintain personal actions because such an Alien may trade and traffique buy and sell And therefore he must of necessity be of ability to have personal actions or being condemned in an information he may have a writ of Error to relieve himself but he cannot have either real or mixt actions Co. ibid. 172. a. 3. 3 Regularly Merchants accompt a Receiver upon his accompt shall not be allowed his expences and charges yet in some case in an action of accompt against one as Receptor denariorum he shall have allowance of his expences and charges and also shall accompt for the profit he received or might reasonably receive And this was provided by Law in favour of Merchants and for advancement of trade and traffique As if two Ioint Merchants occupy their stock goods and merchandize in common to their common profit one of them naming himself a Merchant shall have an accompt against the other naming him also a Merchant and shall charge him as Receptor denariorum ipsius B. ex quacunque causa contractu ad communem utilitatem ipsorum A. B provenientium sicut per legem Mercatoriam rationabiliter monstrare poterit Merchants 4 Survivorship holdeth not betwixt two Ioint-merchants Co. ibid. 182. a. 2. for the wares merchandizes debts or duties which they have as Ioint-merchants or Parceners shall not survive but shall go to the executors of him that deceaseth And this is per legem Mercatoriam which is part of the Laws of this Realm
uses that the honor of the Law be not prejudiced nor any way blemished And therfore in Porters case in the 1. Rep. one of the reasons why good charitable uses ought not to be expounded to be within the Statute of 23 H. 8. cap. 10. was because it would be dishonourable to the Law of the Land to make such good uses void and to restrain well-minded people to give lands to good and charitable uses And if that or any other Statute should be made directly against the Law of God Doct. Stud. lib. 1. cap. 6. as if it should be ordanied that none should give Alms to any in what necessity soever they were or the like the Iudges in point of Honor to the Law ought to adjudge such a Statute void Libel 6 In a setled state of Government if an injury be offered Co. l. 4. 125. b. 1. In the câ—ses of Libels the party grieved ought not to revenge himself by the odious Course of libelling or otherwise but ought to make complaint thereof to the Magistrate in an ordinary Course of Law Kings grant 7 It hath been alwayes the gravity of the antient Sages of the Law to construe the Kings grants beneficially for his Honor Co. l 6 6. a. Sir John Molins case Co. l. 9. 131. a. in Bewleys case and the relief of the Subject and not to make any strict or literal construction in subversion thereof And therefore E. 3. being Lord an Abbot Mesne and the Tenant attainted of Treason the King grants to I. M. to be held of us and other chief Lords of the fee by the services c. In this case the Mesnalty was adjudged to be revived for that the words were sufficient to create a tenure in the Mesne as it was before the Treason because that seemed to be the Kings intention and was also consonant to equity viz. that the Mesne who offended not should not lose his services And therefore in such case the grant shall be taken beneficially for the Honor of the King and for the relief of the Mesne neither yet can the words Tenendum c. have any other reasonable construction Arrest of Peers 8 The person of one who is in Law a Countess by mariage Co. l. 6. 52. b 3. The Countess of Rutl. case or by descent is not to be arrested for debt or treâ—pass for albeit in respect of her sex she cannot sit in Parliament yet is she a Péer of the realm and shall be tried by her Péers as appears by the Statute of 20 H. 6. 9. which was but a declaration of the Common Law And there are two reasons why her person shall not be arrested in such cases the one in respect of her dignity and the other in respect that the Law presumes that she hath sufficient lands and tenements in which she may be distrained There is the same reason for a Lord that is a Péer of Parliament Oath of Allegeance 9 To preserve the Kings Honor and Safety Co. l. 7. 6. b. 3 in Calvins case and good order in the Government of the Commonwealth the Oath of Allegiance was invented and enjoyned as it is said in Lamb. 135 136. by King Arthur to be taken in Folkmotes now called Turns and Leets Hujus legis authoritate expulit Arthurus Rex Saracenos et inimicos a Regno c. Et hujus legis authoritate Etheldredus Rex uno et eodem die per universum regnum Danos occidit Homage fealty 10 Homage and Fealty Co. l. 10. 108. b. 2. in Humfry Lofields case were at first ordained for the preservation of order in the Common wealth and being servicces of fidelity do require multiplication And therefore if a man seised of two acres the one at the Common Law and the other in Borough English and make a gift in tail of both and the donée having issue two sons dies both the sons shall make fealty There is the same Law also of Homage whether it be reserved by the party or created by the Law so likewise if the donor die having two sons both the s os shall have homage and fealty King 11 In a writ de Cautione admittenda these words F.N.B. 66. a. De gratia nostra speciali are not words of necessity but of form only for the Honor of the King for he ought of right to make restitution of the goods of the Clerk before seised by the Sheriff Fines in Courts 12 For the better preserving of order in the Commonwealth Co. l. 8 38 b. 3. in Grieslyes case if any contempt or disturbance be committed in any Court of record the Law giveth the Iudge or Iudges thereof power to impose upon the offenders a reasonable fine And this holds not only for the Superiour Courts at Westm but likewise for all inferiour Courts which are of Record And therefore in a Léet being a Court of Record and the Steward Iudge there if any contempt or disturbance to the Court be committed before the Steward there he may impose a reasonable fine upon the offendors as if the Bailiff there refuse to execute his office the Steward may assess upon him a reasonable fine and with this agrées 7 H. 6. 12. b. So if a Tithingman refuse to make presentment in a Leet the Steward may impose a reasonable fine upon him as it was held 10 H. 6. fo 7. Also if one of the Iury in a Léet depart without giving up his verdict he shall be fined by the Steward as appears in the book of Entries fol. 149. Et sic de similibus Dyer 107. b. 27. 13 When a Peer of the Realm is party to a sute Challenge there ought to be one Knight at least impannelled of the Iury otherwise it is a good Challenge for the Peer 200 Publique quiet Co. Inst pars 1. 5. a. 3. 1 No Subject can build a Castle or house of strength imbattelled Fortresses c. or other fortress defensible without the Kings license for the danger which might ensue in disturbance of the peace and quiet of the Realm if every one at his pleasure might do the like Co. ibid. 72. a. 4. 2 Albeit Escuage incertain was due by tenure Escuage yet because the assesment concerned so many and so great a number of the Subjects of the Realm lest it might disturb the publique quiet thereof it could not be assessed by the King or any other but by the Parliament only Co. ibid. 130. b. 3. 3 Britton treating of an Essoin beyond the Grecian Sea amongst other things saith thus None shall go beyond sea Nul grand Seignior ne Chivalier de nostre Realm ne doit prender chemin sans nostre conge car issint poet le realm remainer disgarny de fort gente because if many others should do the like and by that means the Realm be left unfurnished of able and powerfull
a wife who is indebted to other persons F. N B. 120. f. the Baron and feme shall be sued for this debt living the feme but if the feme die the Baron shall not be charged therewith after the death of the feme Howbeit if the Creditor of the Baron and feme recover the debt during the Coverture which was due by the feme before the Coverture then albeit the feme die yet the Baron shall be charged to pay that debt after the death of the feme by reason of that Recovery c. And all this because during the coverture they are but one person in Law Remitter 5 If tenant in tail enfeoff a feme in fee and die Littl. §. 665. Co. Iâ—st pars 1. 350. b. 3. and his issue within age takes the feme to wife this is a remitter to the infant within age and the feme hath nothing left in her because they are one person in Law So likewise if the husband discontinue his wives land and take back an estate to him and his wife during the life of the husband this is a remitter to the wife presently albeit the estate is not by the limitation to have continuance after the decease of the husband because the husband and wife are one person as aforesaid Joint purchase 6 If a joint estate of land be made to Baron and feme and a third person in this case the Baron and feme shall have but a moity Littl. §. 291. Co. ibid. 187. a and the third person the other moity so likewise if land be given to Baron and feme and two others the Baron and feme have but a third part because they are but one person in Law Cui in vita 7 If the Baron discontinue the land of the feme Littl. §. 676. Co. ibid. 356. b. 1. and after take an estate to him and his wife and a third person for life or in fee This is only a remitter to the feme for the moity and for the other moity after the death of her husband she shall have a Cui in vita Witness 8 It was resolved in the Common Bench Co. ibid. 6. b. 4. in P. 10 Iac. that a wife cannot be produced as a witness either against or for her husband quia sunt duae animae in carne una and it might be a cause of implacable discord and dissention between the husband and wife and a mean of great inconvenience Pardon for alienation 9 Sir Robert Catlyn Chief Iustice purchased lands holden of the Crown in Capite to him and his wife Dyer 196. 40. 3. Eliz. and the heirs of the said Sir Robert and the Quéen pardons him omnes transgressiones et offensas pro quacunque alienatione sibi facta without speaking of his wife yet this was a sufficient discharge of the fine for the alienation to him and his wife because as it seems they were one person in Law Ho 179. Levendens case 10 An action of debt was brought against the husband and wife for the Recusancy of the wife Debt for Recusancy and the husband would have appeared alone by Supersedeas but the Court resolved that either both must appear or both be outlawed being one person in Law 209 The Wife is of the same Condition with her Husband Co. Inst pars 1. 16. b. 3. Co. l. 4 118 b. 3. in Actons case Co. l. 6. 52. b. 53. b. in the Countess of Rulands case 1 Nobility may be granted for term of life by act in Law Nobility without any actual creation As if a Duke take a wife by the intermarriage she is a Dutchess in Law and so of a Marquess an Earl and the rest and in some other case for that in such case she is of the same condition with her husband Howbeit there is a diversity betwéen a woman that is noble by descent and a woman that is Noble by mariage for if a woman that is noble by descent marry a man that is under the degrée of Nobility yet she remaineth Noble stil but if she gain it by marriagâ— she loseth it if she marry under the degree of Nobility and so is the Rule to be understood Si mulier Nobilis nupserit ignobili desinit esse Nobilis but if a Dutchess by mariage marieth a Baron of the Realm she remaineth a Dutchess and loseth not her name because her husband is Noble sic de caeteris Co. ibid. 30. b. 1. Co. l. 4. 55. a. 3. in the Commonalty of Sadlers case 2 If a man mary the Nief of the King by license and hath issue by her and after lands descend to the Nief and the husband enter Villeinage the Nief dieth he shall be tenant by the Curtesie of this land and the King upon any office found shall not evict it from him because by the marriage the Nief was enfranchised during the Coverture But if a free woman marry a Villein of the King by licence and lands descend to the Villein the Villein dieth the wife shall not be endowed but upon an office found the King shall have the land for the Villein remaineth still a Villein to the King Co. ibid. 123. a. 1. Littl. §. 187. 3 If a Nief marry a freeman Villenage by the Common Law of England the issue is free because in such case during the Coverture she is enfranchised and by consequence free And therefore they being both free the issue ought to have the same privilege So likewise if a Villein marry a freewoman the issues are Villeins for the like reason viz. because during the coverture they are both Villeins Co. ibid. 136. b. 1. 4 In case where a freeman marrieth a Nief some have holden Villein Nief that by this marriage the wife shall be free for ever but the better opinion of our books is that she shall be privileged during the coverture only unless the Lord himself marrieth his Nief and then some hold that she shall be free for ever Vide infra 9. Co. ibid. b. 2. 5 If a Nief be regardant to a Mannor Villein Nief and she taketh a freeman to husband by licence of the Lord and the Lord maketh a feoffment in fee of the Manor the husband dyeth the feoffee shall not have the Nief but the feoffor for that during the mariage she was severed from the Manor And so is the book of 29 Ass which is falsly printed to be understood Co. ibid. 6 If there be two Coperceners of a Villein Villeinâ— and one of them taketh him to husband she and her husband shall not have a Nuper obiit against her Copercener but after the decease of her husband 〈◊〉 may Petty treason 7 By the Statute of 25 E. 3. it is declared Pl. Co. 86. b. 2. in Partridges case that if a servant kill his Master it shall be adjudged
Treason viz. Petty treason and in 19 H. 6. 47. tit Corone 7. Br. Treason 8. upon an Indictment one was arraigned for killing the wife of his Master which he confessed and thereupon it came into question whether or no he should be drawn and hanged or hanged only and it was adjudged by the advice of all the Iustices of both the Benches that he should be drawn and hanged for that it was treason And there it is not taken within the equity of that Statute which speaks only of killing the Master but rather within the words thereof because Master and Mistress import the same being one person in Law Amerciâ—meâ—t 8 If a feme coveâ—t be outragiously amercied F N. B. 75. d. and thereupon the husband be distrained for it he shall have the writ de Moderata misericordia to relieve himself from such outragious amerciament Villein and Nief 9 If a freeman marry a Nief she shall be free for ever F. N. B. 78. g. albeit the Baron die and she survive and this the Law giveth her as Britton saith in favorem libertatis and it séems reasonable that the Law should be so because she and her husband are but one person in Law and she ought to be of the same nature and condition in Law to all intents with her husband Now therefore her husband being free to all intents without any condition in Law or otherwise and she being of the same nature and condition with her husband if she be once clearly discharged of Villeinage to all intents she cannot be Nief after without some special act done by her self as divorce or Conusance in a Court of Record and this is in favour of Liberty Vide Exod. cap. 21. supra 4. A Lady of Honor. 10 A writ of partition was brought against the Duke of Suffolk and his wife and others per Radulphum Haward Armig. Dyer 59. b. 51 6 7 E. 6. Dominam Annam Powes uxor ejus for so she was named in the writ and exception was taken upon the Misnomer because she ought to have béen named only by the name of her husband and not otherwise And by the opinion of Montague Ch. Iustice and Hales Iustice the exception was good because by the Law of God she is sub potestate viri and therefore her name of dignity ought to he changed according to the degree of her husband notwithstanding the curtesie of the Ladies of Honor and the Court whereupon the plaintifs brought a new writ ad reâ—pondendum Radulpho H. Anna uxori suae nuper uxori Domini Powes defuncti 210 They cannot sue one another nor make any grant one to the other or the like Baron cannot gâ—aâ— to the â—â—mâ— 1 A man may at this day by his deed covenant with others to stand seised to the use of his wife Co. Inst para 1. 112. a. 4. Littl. §. 168. or make a feoffment or other conveyance to the use of his wife for now such an estate may be executed to such uses by the Statute of 27 H. 8. 10. because an use is but a trust and confidence which by such a mean may be limited by the husband to the wife so likewise in places where lands were devisable the husbands before that Statute might by his testament devise his tenements to his wife in fée for life or years because such devise took not effect until after the death of the devisor Howbeit at the Common Law a man could not by any conveyance either in possession reversion or remainder limit an estate to his wife neither yet since the said Statute covenant with his wife to stand seised to her use because he and his wife being one person in Law he can grant nothing to her nor covenant with her Co. ibid. 206. b. 3. 2 If a man be bound with a Condition to enfeoff his wife Bond. the condition is void and against Law because it is against a Maxim of Law viz. that a man cannot make any grant to his wife and yet the bond is good but if he be bound to pay his wife money that is good Et sic de similibus Co. l. 4. 29. b. 3. in Buntings case 3 Albeit he that is admitted to a Copyhold estate is in by him Copyhold that made the surrender yet a man may surrender to the use of his wife because the Baron doth it not immediately to the wife but by two means viz. by surrender of the Baron to the Lord to the use of the wife and by the admittance of the Lord according to the surrender but if the estate did immediately pass from the husband to the wife it could not be good Co. l. 8. 136. a. 2. in Sir Iohn Nedhams case 4 It was adjudged M. 30 31 Eliz. that Feme Executrix where in debt against a feme executrix she pleaded fully administred and it was found that the defendant had taken the Obligor to husband and that the husband was dead this was no release in Law neither yet the debt thereby extinct but only suspended during the Coverture for she could not against a Maxim of Law by taking him to husband make a release to him of the debt 5 Hob. 10. Fryer against Gildridge 211 Upon a joynt Purchase during the Coverture either of them taketh the whole Co. Inst pâ—rs 1. 55. b. 2. 1 If a man be seised of land in right of his wife Emblements and soweth the ground and dieth his executors shall have the Corn and if his wife die before him he himself shall have it But if husband and wife be joyntenants of the land and the husband sow the ground and then the land surviveth to the wife in this case it is said that she shall have the Corn. Vide 8 Ass 21. 8 E. 3. 54. Dyer 316. Co. ibid. 187. a. 4 2 If a joynt estate of land be made to a man and a woman and their heirs before mariage and after they intermarry in this case Baron feme hold by intierties the husband and wife have moities betwéen them but if it be during the Coverture they hold by intireties For example William Ocle and Joan his wife purchased lands to them two and their heirs afterwards William Ocle was attainted of high treason for the murder of E. 2. and was executed Joan his wife surviving him E. 3. granted the lands to Stephen de Bitterly and his heirs John Hawkins the heir of Ioan in a petition to the King discloseth this whole matter and upon a Scire facias against the Patentee hath judgement to recover the lands for that William and Joan were one person in Law Co. ibid. 187. b. 2. Vide Pl. Co. 58. b. 4. Wimbish and Talbois 3 If a feoffment were made before the Statute of Vses 27 H. 8. 10. to the use of a man and a woman and their heirs The like and