all the mean profits from the time of the erroneous Iudgment given until the Iudgment in the Writ of Error so as the Reversal hath a Retrospect to the first Iudgment as if no Iudgment had been given And therefore the Case in 4 H. 7. 10. b. the case is A. seised of Land in Fee was attainted of High Treason and the King granted the Land to B. and afterwards A. committed Trespass upon the Land and afterwards by Parliament A. was restored and the Attainder made voyd as if no Act had been and shall be as available and ample to A. as if no Attainder had been and afterwards B. bringeth Trespass for the Trespass Mesue and it was adjudged in 10 H. 7. fo 22. b. That the Action of Trespass was not maintainable because that the Attainder was disaffirmed and annulled ab initio And in 4 H. 7. 10. it is holden That after a Iudgment reversed in a Writ of Error he who recovered the Land by Erroneous Iudgment shall not have an Action of Trespass for a Trespass Mean which was said was all one with the principal case in 4 H. 7. 10. and divers other Cases were put upon the same ground It was secondly objected That the Wife could not have a Petition because there was not any Office by which her title of Dower was found scil her marriage the seisin of her Husband and death for it was said that although she was marryed yet if her Husband was not seised after the age that she is Dowable she shall not have Dower as if a man seised of Land in Fee taketh to Wife a woman of eight years and afterwards before her age of nine years the Husband alieneth the Lands in Fee and afterwards the woman attaineth to the age of nine years and the Husband dyeth it was said that the woman shall not be endowed And that the title of him who sueth by Petition ought to be found by Office appeareth by the Books in 11 H. 4. 52. 29 Ass 31. 30 Ass 28. 46 E. 3. bre 618. 9 H. 7. 24. c. As to the first Objection it was resolved That the Wife should be endowed and that the Fine with proclamations was not a bar unto her and yet it was resolved that the Act of 4 H. 7. cap. 24. shall bar a woman of her Dower by a Fine levyed by her Husband with proclamations if the woman doth not bring her Writ of Dower within five years after the death of her Husband as it was adjudged Hill 4 H. 8. Rot. 344. in the Common Pleas and 5 Eliz. Dyer 224. For by the Act the right and title of a Feme Covert is saved so that she take her action within 5. years after she become uncovert c. but it was resolved That the wife was not to be ayded by that saving for in respect of the said Attainder of her Husband of Treason she had not any right of Dower at the time of the death of her Husband nor can she after the death of her Husband bring an Action or prosecute an Action to recover her Dower according to the direction and saving of the said Act But it was resolved That the Wife was to be ayded by another former Saving in the same Act viz. And saving to all other persons scil who were not parties to the Fine such action right title claym and interest in or to the said Lands c. as shall first grow remain descend or come to them after the said Fine ingrossed and proclamations made by force of any Gift in Tail or by any other cause or matter had and made before the said Fine levied so that they take their Actions and pursue their right and Title according to the Law within five years next after such Action Right Claim Title or Interest to them accrued descended fallen or come c. And in this case the Action and right of Dower accrued to the wife after the reversall of the Attainder by reason of a Title of Record before the Fine by reason of the seisin in Fee had and the Marriage made before the Fine levied according to the â—â—â—ention and meaning of the said Act. And as to the said poâ—â—t of Relation It was resolved That sometimes by construction of Law a thing shall relate ab initio to some intent and to some intent not For Relatio est fictio Juris to do a thing which was and had essence to be adnulled ab initio betwixt the same parties to advance a Right or Ut res magis valeat quam pereat But the Law will never make such a construction to advance a wrong which the Law abhorreth Or to defeat Collaterall Acts which are lawfull and principally if they do concern Strangers And this appeareth in this Case scil when an erroneous Iudgment is reversed by a Writ of Error For true it is as it hath been said That as unto the mean Profits the same shall have relation by construction of Law untill the time of the first Iudgment given and that is to favour Iustice and to advance the right of him who hath wrong by the erroneous Iudgment But if any stranger hath done a Trespasse upon the Land in the mean time he who recovereth after the Reversall shall have an Action of Trespasse against the Trespassors and if the Defendant pleadeth that there is no such Record the Plaintiff shall shew the speciall matter and shall maintain his Action so as unto the Trespassors who are wrong Doers the Law shall not make any construction by way of relation ab initio to excuse them for then the Law by a fiction and construction should do wrong to him who recovereth by the first Iudgment And for the better apprehending of the Law on this point it is to know That when any man recovers any possession or seisin of Land in any Action by erroneous Iudgment and afterwards the Iudgment is reversed as is said before and upon that the Plaintiff in the Writ of Error shall have a Writ of Restitution and that Writ recites the first recovery and the reversall of it in the Writ of Error is that the Plaintiff in the Writ of Error shall be restored to his possession and seisin Una cum exitibus thereof from the time of the Iudgment c. Tibi praecipimus quod eadem A. ad plenariam seisinam tenementorum praedict cum pertinentiis sine dilatione restitui facias per sacramentum proborum legalium hominum de Com. suo diligenter inquires ad quantum exitus proficua tenementorum illorum cum pertinentiis a tempore falsi Judicii praedict reddit usque ad Oct. Sanct. Mich. anno c. quo die judcium illud per praefat Justiciar nostros revocat fuit se attingunt juxta verum valorem eorundem eadem exitus proficua de terris catallis praedict B. in baliva tua fieri facias denarios inde praefato A. pro exitibus et proficuis
not of Tythes severed from the nine parts for that shall be in Case of a Praemunire and it appeareth to the Common Law See 16 H. 2. in the Case of Mortuary Vide Decretalia Sexti Lib. 3. tit de Decimis cap. 1. fo 130. Col. 4. Et summa Angelica fo 72. the same And that also appeareth by Linwood amongst the Constitutions Simonis Mephum tit de Decimis cap. Quoniam propter fo 139. 6. verbo Consuetudines Consuetudo ut non solvantur aut minus plene solvantur Decimae non valet and ibidem secundum alios Quod in Decimis realibus non valet Consuetudo ut solvatur minus decima parte sed in personalibus c. And ibidem Litt. M. verbo Integre faciunt expresse contra opinionem quorundum Theologorum qui dicunt sufficere aliquid dari pro Decima And that is the true Reason in both the said Cases scil de modo Decimandi de Limitibus Parochiorum c. that they would not adjudg according to their Canons and therefore a Prohibition lieth and therewith agreeth 8 E. 4. 14. and the other Boóks abovesaid and infinite presidents and the rather after the Statute of 2 E. 6. cap. 13. And also the Customs of the Realm are part of the Laws of the Realm and therefore they shall be tryed by the Common Law as is aforesaid See 7 E. 6. Dyer 79. and 18 Eliz. Dyer 349. the Opinion of all the Iustices VI. Mich. 6 Jacob. in the Exchequer Baron and Boys Case IN the Case between Baron and Boys in an Information upon the Sur Stat. 2 E. 6. cap. 14. of Ingrossers Statute of 5 E. 6. cap. 14. of Ingrossers after Verdict it was found for the Informer That the Defendant had ingrossed Apples against the said Act The Barons of the Exchequer held clearly That Apples were not within the said Act and gave Iudgment against the Informer upon the matter apparent to them and caused the same to be entered in the Margent of the Record where the Iudgment was given and the Informer brought a Writ of Error in the Exchequer chamber and the only Question was Whether Apples were within the said Act the letter of which is That whatsoever person or persons c. shall ingross or get into his or their hands by buying contracting or promise taking other then by Demise Grant or Lease of Land or Tythe any Corn growing in the Fields or any other Corn or grain Butter Cheese Fish or other dead Victual within the Realm of England to the intent to sell the same again shall be accepted c. an unlawful Ingrosser And although that the Statute of 2 E. 6. cap. 15. made against Sellers of Victual which for their great gain conspire c. numbereth Butchers Brewers Bakers Cooks Costermongers and Fruterers as Victualers yet Apples are not dead Victuals within the Statute of 5 E. 6. For the Buyers and Sellers of Corn and other Victuals have divers Provisoes and Qualifications for them as it appeareth by the said Act but Costermongers and Fruterers have not any Proviso for them also always after the said Act they have bought Apples and other Fruits by Ingross and sold them again and before this time no Information was exhibited for them no more then for Plums or other fruit which serveth more for delicacy then for necessary Food But the Statute of 5 E. 6. is to be intended of things necessary and of common use for the sustenance of man and therefore the words are Corn Grain Butter Cheese or other dead Victual which is as much to say as Victual of like quality that is of like necessary and common use But the Statute of 2 E. 6. cap. 15. made against Conspiracies to enhaunce the prices was done and made by express words to extend it to things which are more of pleasure then of profit So it was said That of those Fruits a man cannot be a Forestaller within this Act of 5 E. 6. for in the same Branch the words are any Merchandize Victual or any other thing But this was not resolved by the Iustices because that the Information was conceived upon that branch of the Statute concerning Ingrossers VII Hill 27 Eliz. in the Chancery HIllary Term the 27 of Eliz. in the Chancery the Case was thus One Ninian Menvil seised of certain Lands in Fee took a wife Fine Dower Relation and levyed a Fine of the said Lands with proclamations and afterwards was indicted and out-lawed of High Treason and dyed The Conusees convey the Lands to the Queen who is now seised the five years pass after the death of the Husband The Daughters and Heirs of the said Ninian in a Writ of Error in the Kings Bench reverse the said Attainder M. 26 and 27 Eliz. last past and thereupon the Wife sueth to the Queen who was seised of the said Land as aforesaid by Petition containing all the special matter scil the Fine with proclamations and the five years passed after the death of her Husband the Attainder and the reversal of it and her own title scil her marriage and the seisin of her Husband before the Fine And the Petition being endorsed by the Queen Fiat droit aux parties c. the same was sent into the Chancery as the manner is And in this case divers Objections were made against the Demandant 1. That the said Fine with proclamations should bar the Wife of her Dower and the Attainder of her Husband should not help her for as long as the Attainder doth remain in force the same was a bar also of her Dower so as there was a double bar to the Wife viz. the Fine levyed with proclamations and the five years past after the death of her Husband and the Attainder of her Husband of his Treason But admit that the Attainder of the Husband shall avail the Wife in some manner when the same is now reversed in a Writ of Error and now upon the matter is in Iudgment of Law as if no Attainder had been and against that a man might plead That there is no such Record because that the first Record is reversed and utterly disaffirmed and annihilated and now by Relation made no Record ab initio and therewith agreeth the Book of 4 H. 7. 11. for the words of the Iudgment in a Writ of Error are Quod Judicium praedict Errores praedict alios in Recordo c. revocetur admittetur c. quod ipsa ad possessionem suam sive seisinam suam as the case requireth tenementorum suorum praedictorum una cum exitibus proficuis inde a tempore Judicii praedict reddit praecept ad omnia quae occasione Judicii illius omisit restituatur By which it appeareth that the first Iudgment which was originally imperfect and erroneous is for the same Errors now adnulled and revoked ab initio and the party against whom the Iudgment was given restored to his possession and to
Tenements were holden of the King in capite for this cause the suing of the Writ shall conclude the Heir onely which sueth the Livery and after his death the Iurors in a new Writ of Diem clausit extremum are at large as before is said And if that Iury finde falsly in a Tenure of the King also the Lord of whom the Land is holden may traverse that Office Or if Land be holden of the King c. in Socage the Heir may traverse the last Office for by that he is grieved onely and he shall not be driven to traverse the first Office and when the Father sueth Livery and dyeth the conclusion is executed and past as before is said And note that there is a special Livery but that proceeds of the Grace of the King and is not the Suit of the Heir and the King may grant it either at full age before aetate probanda c. or to the Heir within age as it appeareth in 21 E. 3. 40. And that is general and shall not comprehend any Tenure as the general Livery doth and therefore it is not any estoppel without question And at the Common Law a special Livery might have been granted before any Office found but now by the Statute of 33 H 8. cap. 22. it is provided That no person or persons having Lands or Tenements above the yearly value of 20 l. shall have or sue any Livery before inquisition or Office found before the Escheator or other Commission But by an express clause in the same Act Livery may be made of the Lands and Tenements comprized or not comprized in such Office so that if Office be found of any parcel it is sufficient And if the Land in the Office doth exceed 20 l. then the Heir may sue a general Livery after Office thereof found as is aforesaid but if the Land doth not exceed 5 l. by the year then a general Livery may be sued without Office by Warrant of the Master of the Wards c. See 23 Eliz. Dyer 177. That the Queen ex debito Justitiae is not bound at this day after the said Act of 33 H 8 to grant a special Livery but it is at her election to grant a special Livery or to drive the Heir to a general Livery It was also resolved in this Case That the Office of 35 H. 8. was not traversable for his own Traverse shall prove that the King had cause to have Wardship by reason of Ward And when the King cometh to the possession by a false Office or other means upon a pretence of right where in truth he hath no right if it appeareth that the King hath any other right or interest to have the Land there none shall traverse the Office or Title of the King because that the Iudgment in the Traverse is Ideo consideratum est quod manus Domini Regis a possessione amoveantur c. which ought not to be when it appeareth to the Court that the King hath right or interest to have the Land and to hold the same accordingly See 4 H. 4. fo 33. in the Earl of Kents Case c. XXIX Mich. 7 Jacobi Regis NOte The Priviledg Order or Custom of Parliament either Parliament of the Vpper House or of the House of Commons belongs to the determination or decision onely of the Court of Parliament and this appeareth by two notable Presidents The one at the Parliament holden in the 27 year of King Henry the sixth There was a Controversie moved in the Vpper House between the Earls of Arundel and of Devonshire for their seats places and preheminences of the same to be had in the Kings presence as well in the High Court of Parliament as in his Councels and elsewhere The King by the advice of the Lords spiritual and temporal committed the same to certain Lords of Parliament who for that they had not leisure to examine the same it pleased the King by the advice of the Lords at his Parliament in anno 27 of his Reign That the Iudges of the Land should hear see and examine the Title c. and to report what they conceive herein The Iudges made report as followeth That this matter viz. of Honor and precedency between the two Earls Lords of Parliament was a matter of Parliament and belonged to the Kings Highness and the Lords spiritual and temporal in Parliament by them to be decided and determined yet being there so commanded they shewed what they found upon examination and their Opinions thereupon Another Parliament in 31 H. 6. which Parliament begun the sixth of March and after it had continued sometime it was prorogued until the fourteenth of February and afterwards in Michaelmas Term anno 31 H. 6. Thomas Thorp the Speaker of the Commons House at the Suit of the Duke of Buckingham was condemned in the Exchequer in 1000 l. damages for a Trespass done to him The 14 of February the Commons moved in the Vpper House That their Speaker might be set at liberty to exercise his place The Lords refer this Case to the Iudges and Fortescue and Prisoit the two chief Iustices in the name of all the Iudges after sad consideration and mature deliberation had amongst them answered and said That they ought not to answer to this question for it hath not been used aforetime That the Iustices should in any wise determine the Priviledg of this High Court of Parliament for it is so high and mighty in its nature that it may make Laws and that that is Law it may make no Law and the determination and knowledg of that Priviledg belongeth to the Lords of the Parliament and not to the Iustices But as for proceedings in the lower Courts in such cases they delivered their Opinions And in 12 E. 4. 2. in Sir John Pastons case it is holden that every Court shall determine and decide the Priviledges and Customs of the same Court c. XXX Hillary Term 7 Jacobi Regis In the Star-Chamber Heyward and Sir Iohn Whitbrokes Case IN the Case between Heyward and Sir John Whitbroke in the Star-Chamber the Defendant was convicted of divers Misdemeanors and Fine and Imprisonment imposed upon him and damages to the Plaintiff and it was moved that a special Proces might be made out of that Court to levy the said damages upon the Goods and Lands of the Defendant and it was referred to the two chief Iustices whether any such Proces might be made who this Term moved the Case to the chief Baron and to the other Iudges and Barons and it was unanimously resolved by them That no such Proces could or ought to be made neither for the damages nor for the costs given to the Plaintiff for the Court hath not any power or Iurisdiction to do it but onely to keep the Defendant in prison until he pay them For for the Fine due to the King the Court of Star-Chamber cannot make forth any Proces for the levying of the
CERTAIN SELECT CASES IN LAVV REPORTED BY Sir EDVVARD COKE Knight LATE Lord CHIEF JUSTICE OF ENGLAND And one of His Majesties Council of STATE Translated out of a Manuscript written with his own hand Never before Published With two Exact Tables the one of the Cases and the other of the Principal Matters therein contained LONDON Printed by Tho. Roycroft for J. Sherley H. Twyford and Tho. Dring and are to be sold at their Shops at the Pelican in Little-Brittain in Vine-Court Middle Temple and at the George in Fleetstreet 1659. TO THE READER READER IT may seem altogether an unnecessary work to say any thing in the praise and vindication of that Person and his Labours which have had no less then the generall approbation of a whole Nation convened in Parliament For if King THEODORICK in Cassiodore could affirme Neque enim dignus est a quopiam redargui qui nostro judicio meretur absolvi That no man ought to be reproved whom his Prince commends How much rather then should men forbear to censure those and their Works which have had the greatest allowance and attestation a Senate could give and to acquiesce and rest satisfied in that judgement Such respect and allowance hath been given to the learned Works of the late Honourable and Venerable Chiefe Justice Sir EDWARD COKE whose Person in his life time was reverenced as an Oracle and his Works since his decease cyted as Authentick Authorities even by the Reverend Judges themselves The acceptance his Books already extant have found with all knowing Persons hath given me the confidence to commend to the publick view some Remains of his under his owne hand-writing which have not yet appeared to the World yet like true and genuine Eaglets are well able to behold and bear the light They are of the same Piece and Woofe with his former Works and in respect of their owne native worth and the reference they bear to their Author cannot be too highly valued Though in respect of their quantity and number the Reports are but few yet as the skilfull Jeweller will not lose so much as the very filings of rich and precious mettals and the very fragments were commanded to be kept where a Miracle had been wrought Propter miraculi claritatem evidentiam So these small parcels being part of those vast and immense labours of their Author great almost to a Miracle if I may be allowed the comparison were there no other use to be made of them as there is very much for they manifest and declare to the Reader many secret and abstruse points in Law not ordinarily to be met with in other Books so fully and amply related deserve a publication and to be preserved in the respects and memories of Learned men and especially the Professors of the Law and to that end they are now brought to light and published If any should doubt of the truth of these Reports of Sir EDWARD COKE they may see the originall Manuscript in French written with his own hand at Henry Twyfords Shop in Vine-Court Middle Temple Farewell J. G. MICH. AN. 6 JACOBI REGIS In the Common Pleas. Willowes Case IN Trespasse brought by Richard Stallon one of the Attorneys of the Court against Thomas Bradye which began in Easter Copyhold Fine reasonable Term An. 6 Jacobi Rot. 1845. for breaking of his House and Close at Fenditton in the County of Cambridge And the new Assignment was in an Acre of Pasture The Defendant pleads that the place where c. was the Land and Freehold of Thomas Willowes and Richard Willowes and that he as Servant c. And the Plaintiff for Replication saith that the place where was parcell of the Mannor of Fenditton and demisable c. by Copy of Court-roll in Fee-simple And that the Lords of the Mannor granted the Tenements in which c. to John Stallon and his heirs who surrendred them unto the said Willowes and VVillowes Lords of the said Mannor to the use of the Plaintiff and his heirs who was admitted accordingly c. The Defendant doth rejoyn and saith That well and true it is that the Tenements in which c. were parcell of the Mannor and demisable c. And the surrender and admittance such pro ut c. But the said Thomas Bradye further saith that the Tenements in which c. at the time of the Admission of the said Richard Stallon were and yet are of the clear yearly value of fifty three shillings and four pence And that within the said Mannor there is such a Custome Quod rationabilis denariorum summa legalis monetae Angliae super quamlibet admissionem cujuslibet personae sive quarumcunque personarum tenent vel tenent per Dom. vel Dominos Manerii praedict sive per Seneschallum c. ad aliquas terras sive Tenementa Customaria Manerii praedict secundum Consuetudinem Manerii illius debetur a tempore quo c. debitum fuit Dom. c. tempore ejusdem admissionis pro sine pro admissione illa quod idem Dominus vel idem Dom. praedict vel Seneschallus suus Curiae ejusdem Manerii pro tempore existen usus fuit vel usi fuerunt per totum Tempus supradict in plena Curia Manerii illius pro Admissione ejusdem personae seu earundum personarum sic facta assidere appunctuare Anglice to Assesse and appoint eandem rationabilem denariorum summam pro fine pro eadem Admissione sic praefertur facta nec non superinde eandem denariorum summam sic assessam appunctuatam praefatae personae sive personis sic admissae sive admissis solveret solverent c. eidem Domino c. praedictam rationabilem denariorum summam pro fine pro Admissione sua praedict sic assessam appunctuat And further saith That the Steward of the said Mannor at a Court holden 1. Octob. in the fourth year of the Reigne of the King that now is admitted the Plaintiff to the Tenements in which c. and assessed and set a reasonable summ of money that is to say five pounds six shillings eight pence that is to say Valorem corundem tenementorum per duos annos non ultra pro fine pro praedict Admissione praedict Richard Stallon to the said Lords of the Mannor to be paid And also the said Steward at the same Court did give notice and signifie to the Plaintiff the said summ was to be paid to the said Lords of the Mannor c. And further saith that the said VVillowes and VVillowes afterwards that is to say the second day of November in the fourth year aforesaid at Fenditton aforesaid requested the said Richard Stallon to pay to them five pounds six shillings eight pence there for the Fine for his admittance c. which the said Rich. Stallon then and there utterly denied and refused and as yet doth refuse By which the said Richard Stallon forfeited to the aforesaid Thomas and Richard
VVillowes all his Right Estate c. of and in the Tenements aforesaid in which c. The Plaintiff surjoyneth and saith that the said summ of five pounds six shillings eight pence c. was not rationabilis finis as the said Thomas Bradye above hath alledged c upon which the Defendant doth demur in Law And in this Case these points were resolved by Coke chief Iustice VValmesly VVarberton Daniel and Foster Iustices 1. And principally If the Fine assessed had been reasonable yet the Lords ought to have set a certain time and place when the same should be paid because the same stands upon a point of forfeiture As if a man bargains and assures Land to one and his heirs upon condition that if he pay to the Bargaines or his heirs ten pounds at such apiace that he and his heirs shall re-enter In that case because no time is limited the Bargainor ought to give notice to the Bargaines c. when he will tender the money and he cannot tender it when he pleaseth and with that agrees 19 Eliz. Dyer 354. For a man shall not lose his Land unlesse an expresse default be in him and the Bargaineein such Case is not tied to stay alwaies in the place c. So in the Caseat Bar the Copyholder is not tied to carry his Fine alwaies with him when he is at Church or at Plow c. And although that the Rejoynder is that the Plaintiff refused to pay the Fine so he might well do when the request is not lawfull nor reasonable for in all cases when the request is not lawfull nor reasonable the party may without prejudice deny the payment And he who is to pay a great Fine as a 100 l. or more it is not reasonable that he carry it alwaies with him in his Pocket and presently the Copyholder was not bound to it because that the Fine was uncertain arbitrable as it was resolved in Hulbarts Case in the fourth part of my Reports amongst the Copyhold Cases 2. It was resolved that although the Fine be incertain and arbitrable yet it ought to be secundum arbitrium boni viri And it ought to be reasonable and not excessive for all excessivenesse is abhorred in Law Excessus in re qualibet jure reprobatur Communi For the Common Law forbids any excessive distresse as it appeareth in 41 E. 3. 26. Where a man avowed the taking of sixty Sheep for 3 d. Rent and the Plaintiff prayed that he might be amerced for the Distresse And the Court who is alwaies the Iudge whether the Distresse be reasonable or excessive held that six Sheep had been a sufficient Distresse for the said Rent and therefore he was Vi. F. N. B 82 a reasonable Aid incertain untill the Statute of Glanvi lib. 9. fol. 70. 14 H. 4 9. by Hill 14 H. 4. 1. 3. amerced for so many of them as wereabove six Sheep And the Court said that if the Avowant shall have return he shall have a return but of six Sheep And this appeareth to be the Common Law for the Statute of Artieuli super Cartas extends only where a grievous Distress is taken for the Kings Debt See F. N. B. 174. a. and 27. Ass 51. 28. Ass 50. 11 H. 4. 2. and 8 H. 4. 16. c. Non Capiatur gravis Districtio c. And so if an excessive or an unreasonable Amerciament be imposed in any Court Baron or other Court which is not of Record the party shall See Glanvil lib. 9. cap. 8. Optime B. rationabilibus auxiliis ita tamen moderat secund Quantitatem feodorum suorum secundum facultates ut nemini gravidae viderentur c. Vide Bracton 84. b. cationab relev 1. quod rationem mensuram non excedat and see him there 86. optime c have Moderata Misericordia And the Statute of Magna Charta is but an affirmance of the Common Law in such point See F. N. B. 75. Nullus liber homo amercietur nisi secundum quantitatem delicti And gravis Redemptio non est exigenda And the Common Law gives an Assise of Sovient Distresse and Multiplication of Distresse found which is excessive in respect of the multiplicity of vexation And therewith agreeth 27. Ass 50 51. Non Capiatur multiplex districtio F. N. B. 178. b. And if Tenant in Dower hath Villains or Tenants at Will who were rich and she by excessive Tallages and Fines makes them poor and Beggers the same is adjudged Wast And therewith agreeth F. N. B. 61. b. 16 H. 3. Wast 135. and 16 H. 7. And see the Register Iudiciall fol. 25. b. Wast lieth in exulando Henricum Hermanum c. Villeius Quorum quilibet tenet unum Messuagium unam virgat terrae in Villinagio in praedict villa de T. by grievous and intollerable Distresses By all which it appeareth That the Common Law doth forbid intollerable and excessive oppressing and ransoming of Villains whereby of Rich they become Poor And yet it may be said that a man may do with his Villain what he pleaseth or with his Tenant at Will but the Law limits the same in a reasonable and convenient manner For it appeareth that such intollerable oppression of the poor Tenants is to the disinherizin of him in the Reversion So in the Case at Bar Although that the Fine is incertain yet it ought to be reasonable and so it appeareth by the said Custome which the Defendant hath alledged And therefore in such Case the Lord cannot take as much as he pleaseth but the Fine ought to be reasonable according to the Resolve of the Court in the said Case of Hubbard in the fourth part of my Reports 30. Vide 14 H. 4. 4. by Hill It was resolved That if the Lord and Tenant cannot agree of the Fine but the Lord demandeth more then a reasonable Fine that the same shall be decided and adjudged by the Court in which any Suit shall be for or by reason of the denying of tho Fine And the Court shall adjudge what shall be said a reasonable Fine having regard to the quality and value of the Land and other necessary circumstances which ought to appear in pleading upon a Demurrer or found by Verdict And if the Fine which the Lord or his Steward assesseth be reasonable Bracton l. 2 fo 51. Quam longuin debet esse tempus non definitur in jure sed pendet â—ex justicianorum discretiono Let the Copyholder well advise himself before he deny the payment of it And alwaies when reasonablenesse is in question the same shall be determined by the Court in which the Action dependeth As reasonable time 21 H. 6. 30. 22 E. 4. 27. 50. 29 H. 8. 32. c. So if the Distresse be reasonable and the like c. It was resolved That the said Fine in the Case at the Bar was unreasonable viz. To demand for a Cottage and an acre of Pasture five pounds six
his Deed indented dated the 22 of December in the first year of King James made between him of the one part and the said John Sammes and George Sammes Son and Heir apparent of the said John of the other part did bargain sell grant enfeoff release and confirm unto the said John Sammes the said Mead called Grany Mead to have and to hold the said Mead unto the said John Sammes and George Sammes and their Heirs and Assigns to the onely use and behoof of the said John Sammes and George Sammes their Heirs and Assigns for ever and by the same Indenture Sir Thomas did covenant with John and George to make further assurance to John and George and their Heirs to the use of them and their Heirs and Livery and Seisin was made and delivered according to the true intent of the said Indentures of the within mentioned premisses to the uses within mentioned John Sammes the Father dyeth George Sammes his Son and Heir being within age the Question was Whether George Sammes should be in Ward to the King or no And in this case three points were resolved 1. For as much as George was not named in the premisses he cannot take by the Habendum and the Livery made according to the intent of the Indenture doth not give any thing to George because the Indenture as to him is voyd but although the Feoffment be good onely to John and his Heirs yet the use limited to the use of John and George and their Heirs is good 2. If the Estate had been conveyed to John and his Heirs by the Release or Confirmation as it well may be to a Tenant by Copy of Court Roll the use limited to them is good for upon a Release which creates an Estate a use may be limited or a Rent reserved without question but upon a Release or Confirmation which enures by way of Mitter le droit an use cannot be limited or a Rent reserved But the third was of greater doubt If in this case the Father and Son were Ioynt-tenants or Tenants in common For it was objected when the Father is onely enfeoffed to the onely use of him and his Son and their Heirs in the Per that in this case they shall be Tenants in common By the Feoffment the Father is in by the common Law in the Per and then the limitation of the use to him and his Son and to their Heirs cannot devest the Estate which was vested in him by the common Law out of him and vest the Estate in him in the Post by force of the Statute according to the limitation of the use and therefore as to one moyety the Father shall be in by force of the Feoffment in the Per and the Son as to the other moyety shall be in by force of the Statute according to the limitation of the use in the Post and by consequence they shall be Tenants in common But it was answered and resolved That they were Ioynt-tenants and that the Son in the Case at Bar should have the said Grange by the Survivor for if at the common Law A. had been enfeoffed to the use of him and B. and their Heirs although that he was onely seised of the Land the use was joyntly to A. and B. For a use shall not be suspended or extinct by a sole seisin or joynt seisin of the Land and therefore if A. and B. be enfeoffed to the use of A. and his Heirs and A. dyeth the entire use shall descend to his Heir as it appeareth in 13 H. 7. 6. in Stoners Case and by the Statute of 27 H. 8. cap. 10. of Vses it appeareth That when several persons are seised to the use of any of them that the Estate shall be executed according to the use And as to that which was said That the Estate of the Land which the Father hath in the Land as to the moyetyof the use which he himself hath shall not be devested out of him To that it was answered and resolved That that shall well be for if a man maketh a Feoffment in Fee to one to tho use of him and the Heirs of his body in this case for the benefit of the issue the Statute according to the limitation of the uses devests the Estate vested in him by the common Law and executes the same in himself by force of the Statute and yet the same is out of the words of the Statute of 27 H. 8. which are Where any person c. stand or be scised c. to the use of any other person and here he is seised to the use of himself and the other clause is Where divers and many persons c. be joyntly seised c. to the use of any of them c. and in this case A. is sole seised But the Statute of 27 H. 8. hath been always beneficially expounded to satisfie the intention of the parties which is the direction of the uses according to the Rule of the Law So if a man seised of Lands in Fee-simple by Deed covenant with another that he and his Heirs will stand seised of the same Land to the use of himself and the Heirs of his body or unto the use of himself for life the remainder over in Fee in that case by the operation of the Statute the Estate which he hath at the common Law is devested and a new Estate vested in himself according to the limitation of the use And it is to be known that an use of Land which is but a pernency of the profits is no new thing but part of that which the owner of the Land had and therefore if Tenant in Borrough-English or a man seised of the part of his Mother maketh a Feoffment to another without consideration the younger Son in the one case and the Heir on the part of the Mother on the other shall have the use as they should have the Land it self if no Feoffment had been made as it is holden in 5 E. 4. 7. See 4 and 5 Phil. and Mar. Dyer 163. So if a man maketh a Feoffment unto the use of another in tayl and afterwards to the use of his right Heirs the Feoffor hath the Reversion of the Land in him for if the Donee dyeth without isse the Law giveth the use which was part of the Land to him and so it was resolved Trinity 31 Eliz. between Fenwick and Milford in the Kings-Bench So in 28 H. 8. Dyer 11. the Lord Rosses Case A man seised of one Acre by Priority and of another Acre by Posteriority and makes a Feoffment in Fee of both to his use and it was adjudged that although both pass at one instant yet the Law shall make a Priority of the uses as if it were of the Land it self which proves that the use is not any new thing for then there should be no Priority in the Case See 13 H. 7. b. by Butler So in the Case at Bar The use limited to