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
the land descends to his heire and a Stranger abates and after the Sonne when he comes to full age releaseth all his right to the Abator In this case the heire of the Disseisor shall not have an Assise of Mortdancester against the Abator but shall be barred because the Abator is armed with the right of the Sonne of the Disseisee by his release and the entry of the Sonne was congeable for that he was within age at the time of the descent cast It is otherwise where a man of full age is disseised and a descent cast c. for then a release to the Abator c. is not good because in that case the entry of the Disseisee being taken away the release of the Disseisee to the Abator wants a good foundation upon which it may be grounded viz. the title of entry which in the other case it hath Co. Inst pars 1 295. b. 3. 17 It is said of a Confirmation Confirmation where good 〈◊〉 bad that it cannot strengthen a void estate Confirmatio est nulla ubi donum praecedens est invalidum ubi donatio nulla omnino nec valebit confirmatio For a Confirmation may make a voidale or defeasible estate good but it cannot work upon an estate that is void in Law Littl. §. 521. Co. ibid. 297. a. 3. 18 If my Disseisor make a Lease for terme of life Confirmation not good the remainder over in Fee and I confirme the estate of him in the remainder without any Confirmation made to the Tenant for terme of life In this case I cannot enter upon the Tenant for life because the remainder depends upon that estate and therefore if his remainder should be defeated the remainder should be also defeated and it were not reasonable that I should by my entry upon the Tenant for life defeat the remainder against my own Confirmation There is also the same Law and Reason if the Disseisor had made a Lease for life reserving the reversion to himself Co. ibid. 298. a. 1. c. for in that case neither could I have entred upon Tenant for life least I should have thereby also destroyed the reversion against my own Confirmation c. And therefore it hath been adjudged that if a Disseisor make a Lease for life and after levie a Fine of the reversion and the five yeares passe so as the Disseisee is for the reversion barred he shall not afterwards enter upon the Lessee for life Reported by Sir John Popham Chiefe Justice because then the Disseisee by entry upon the Tenant for life should also regaine the reversion which was irrecoverably lost by force of the Statute Co. ibid. 298. a. 2. 19 It is regularly true that when the particular estate is defeated Remainder where defeatâ—ble and where not the remainder thee by shall be also defeated neverthelesse it faileth in divers cases Pl. Com. Colthirsts case for where the particular estate and remainder depend upon one title there the defeating of the particular estate is the defeating of the remainder but where the particular estate is defeasible the remainder by good title there although the particular estate be defeated yet the remainder continues good As if the Lessor disseise A. Lessée for life and make a Lease to B. for the life of A. the remainder to C. in Fée albeit A. enter and defeat the estate for life yet the remainder to C. being once vested by good title shall not be avoided for it were against reason that the Lessor should have the remainder againe against his own Livery So it is also if a Lease be made to an Infant for life the remainder in Fee the Infant at his full age disagrees to the estate for life yet the remainder stands good for that it was once vested by good title And in both these cases there was a particular estate at the time of the remainder created A void remainder 20 If the Lord grant by Deed his Seigniory to A. for life Co. â—bid 310. a. 1. the remainder to B. in fee A. dieth and then the Tenant attorns to B. this attornement is voide because it is not according to the Grant for then B. should have a Remainder without any particular estate to support it and the particular estate being void for want of attornement the Remainder which depends upon it is also void Revâ—rsion void 21 Tenant in taile makes a Lease for life to A. for the life of A. and after grants the reversion to B. in fee the Tenant in taile dies Co. ibid. 333. a. 2. and after that A. dies In this case the entry of the issue in taile is lawfull because by the death of the Lessée the discontinuance is determined and consequently the grant made of the reversion gained upon that discontinuance is void also Rent Common c. charged upon the land where good or void 22 If Tenant in taile enfeoffe the heire in taile being under age Litl §. 660. Co. ibid. 349. a. 1. and when the heir is at full age he chargeth the land with a Rent Common c. and after the Tenant in taile dies whereupon the heire is remitted In this case by the remitter the grant of the Rent Common c. is determined because the Grantor had not any right of the estate in taile in him at the time of the grant but onely the estate in Fee simple gained by the Feofment which is wholly defeated and the state of the land out of which the Rent Common c. issued being defeated the rent is defeated also But if Tenant in taile make a Lease for life whereby he gaineth a new reversion in fee so long as Tenant for life liveth and he granteth a rent charge out of the reversion and after Tenant for life dieth whereby the Grantor becometh Tenant in taile againe and the reversion in fee defeated yet because the Grantor had a right in the entaile in him cloathed with a defeasible Fée simple the rent charge remaineth good against him but not against his issue c. The like 23 If the heire apparent of the Disseisée disseise the Disseisor Co. ibid. a 3. and grant a rent charge and then the Disseisee dieth the Grantor shall hold it discharged for his former estate being defeated by the remitter the rent which was granted out of it is also defeated So also if the Father disseise the Grand-father and granteth a rent charge and dieth now is the entry of the Grand-father taken away if after the Grand-father dieth the Sonne is remitted and shall avoid the charge c. A Discontinuance defeated as also all that dependâ— thereâ—pon 24 If the Baron discontinue the land of the Feme Litl §. 679. Co. ibid. 357. b. 4. and afterwards the Discontinuee lets the same land to the Baron and Feme for life by Deed indented reserving rent and for default of payment a
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
every one hath a part of the Mannor without saying any thing of the Advowson appendant the Advowson remains in coparcenary and yet in every of their turns it is appendant to that part which they have and so it is also if they make composition to present against common right yet it remains appendant Co. ib. 131. b. 2. 4 The King by his Prerogative regularly is to be preferred in payment of his duty or debt by his debtor before any subject The Kings debt first pâ—â— except in sâ—â— where a fine 〈◊〉 due to the 〈◊〉 and damages to the party although the Kings debt or duty be the latter and the reason hereof is for that Thesaurus Regis est fundamentum belli firmamentum pacis And thereupon the Law gave the King remedy by the writ of Protection Cum clausula volumus to protect his Debtor that he shall not be sued or attached until he had paid the Kings debt but hereof grew some inconvenience because many times to delay other men of their suits the Kings debts were the more slowly paid For remedy whereof it was enacted by the Stat. of 25 E. 3. cap. 19. That the other Creditors might have their actions against the Kings Debtor and also procéed to judgement but not to execution unlesse that Creditor will take upon him to pay the Kings debt and then he shall have execution for both the debts Howbeit in some cases the Subject shall be satisfied before the King for regularly whensoever the King is entitled to any fine or duty by the suit of the party the party shall be first satisfied as in a Decies tantum against a Iuror or an Embraceor for there the ten-fold damages shall be first satisfied and then the Kings fine because this is as accessary to that So likewise if in an action of Debt the Defendant deny his déed and it is found against him in that case he shall pay a fine to the King but the Plaintiff shall be first satisfied And so it is in all other like cases The like course was also taken in Bils preferred by Subjects in the Starre Chamber For if costs and damages were there recovered by the party they were answered before the Kings fine c. Vide 189. 41. Co. ib. 138. a 4. 5 If Tenant in tail of a Mannor whereunto a Villein is regardant A Mannor drawes the Villein enfeoff the Villein of the Mannor and dieth the issue shall have a Formedon against the Villein and after the recovery of the Mannor he shall seise the Villein Howbeit before the recovery of the Mannor he cannot seise the Villein for that the Mannor was principal c. Littl. § 229 Co. ib. 152. a. 3. 6 If the Donor or Lessor of land grant his reversion to another Rent and â—vice incidenâ— to the reversion c. and the Tenant attorns the rent and service passe by this word reversion because they are incident unto it but by the grant of the rent the reversion shall not passe because the Incident shall passe by the grant of the Principal but not the Principal by the grant of the Incident Accessarium non dâ—cit sed sequitur suum principale Scire facias â—llows the â—cord 7 Where the Statute of 32 H. 8. cap. 5. Co. ib. 290. a. 2. concerning executions of lands c. in case the said lands be evicted giveth a Scire facias out of the same Court from whence the former execution did procéed c. to have execution of other lands c. If the record be removed by writ of Errour into another Court and there affirmed the Tenant by execution that is evicted shall have a Scire facias by the equity of that Statute out of the Court into which the writ of Errour was brought because the Scire facias must be grounded upon the record and Accessarium sequitur principale c. â—illein and â—dvowson apâ—endant to a Mannor 8 Albeit a man cannot at all be put out of possession of his Villein in grosse nor directly of his Villein regardant yet may he per obliquum Co. ib. 306. b. 4. c. and by a mean be put out of possession of his villein regardant to a Mannor For by putting him out of possession of the Mannor which is the Principal he may likewise be put out of possession of the Villein regardant which is but accessory And so it is also of an Advowson appendant to a Mannor And therefore by the grant of a Mannor without saying cum pertinentiis the Villein regardant Advowson appendant and the like do passe For if the Disseisor shall gain them as Incidents to the Mannor whose estate is tortious A multo fortiori the Feoffée who cometh to his estate by lawful conveyance shall have them as Incidents And where the entry of the Disseisée is lawful he may seise the Villein regardant or present to the Advowson c. before he enter into the Mannor But it is otherwise where his entry is not lawful And so are our ancient Authors to be intended and a point much controverted in our books to be resolved Vide Dyer 5 6. 9 If the reversion of Lessée for life be granted Co. ib. 316. a. 3. Littl. § 568. and Lessée for life assigns over his estate Attornment â—ollows the â—and the Lessée cannot attorn but the Assignée for the attornment follows the land So likewise if Lessée for life assigneth over his estate upon condition the Assignée shall attorn because he is Tenant of the land c. The demesns c. follows the Mannor 10 Attornment of the Tenant of a Mannor to a Disseisor of the Demesnes shall dispossesse the Lord of the rents and services Co. Inst pars 1. 323. a. 1. parcel of the Mannor because both Demesns rents and services make but one intire Mannor and the Demesnes are the principal c. A charge follows the land 11 If there be 80 acres of Meadow Co. ib. 343. b. 3. which use to be divided yearly amongst divers persons by lot or otherwise viz. thirtéen acres thereof to A. 10 acres to B c. So as sometime the 13 acres lie in one place and sometime in another and so of the rest In this case if A. being seised of these 13 acres in fée grant a Rent-charge out of those 13 acres generally lying in the Meadow of 80 without mentioning where they lye particularly There as the estate of the land removes the charge shall remove also Advowson â—ollows the Mannor 12 Tenant in tail of a Mannor whereunto an Advowson is appendant maketh a discontinuance Co. ib. 349. b. 2. 5 H. 7. 35. Co. l. 3. 3. a. 4. in the Marq. of Winchesters case the Discontinuée granteth the Advowson to Tenant in tail and his heirs Tenant in tail dieth the issue is not remitted to the Advowson because the issue had no action to recover the Advowson before
hath his Clergy the accessory cannot be arraigned For the Maxime of Law is Ubi factum nullum ibi forcia nulla ubi non est principalis non potest esse accessarius Then before there appears to be a principal one cannot be charged as accessory but none can be said to be principal before he be so proved and adjudged by Law and that ought to be by judgement upon verdict or confession or by outlawry for it sufficeth not that in truth there is a principal unlesse it appeare so by judgement of Law And this is the reason that when the principal is pardoned or takes his Clergy before judgement that then the accessory shall never be arraigned because it appeares not by judgement of Law that he was principal and the acceptance of the pardon or prayer of the Clergy may be an argument but can be no judgement in Law that he is guilty Howbeit if the principal after attainder be pardoned or hath his Clergy allowed there the accessory shall be arraigned because it then appears judicially that there was then a Principal 28 29. 34 35. Land tree severed 20 When a man makes a lease for life or years Co. l. 4. 64. b. 2. in Herlakendens case the Lessée hath but a special interest or property in the trées being great timber as accessories annexed to the land so long as they are annexed unto it But if the Lessée or any other sever them from the land the property and interest of the Lessée is thereby determined and the Lessor may take them as accessory things which were parcel of his Inheritance and in which the interest of the Lessée is determined c. The like 21 If I let my land for life and after grant the trées Co. ib. 62. b. 4. and after that the Lessée dies yet the Grantée cannot take them as it was holden per toram Curiam in 21 H. 6. 46. d. because at the time of the Grant the Lessée had a property in them as accessories annexed to the land c. Vide Max. 25. The like 22 If trées being great timber be blown down by the winde Co. ib. 63. b. 1. the Lessor shall have them for they were parcel of his Inheritance and not the Tenant for life or years But if they be dotards without any great timber in them the Tenant for life or years shall have them c. Superstitious uses draw good uses 23 When certain summes are limited to superstitious uses Co. l. 4. 115. a. 2. in Adams Lamberts case and one use is separated and divided from the other there the finding of one of them onely shall not give all the land to the King by the Stat. of 1 E. 6. cap. 14. but onely the sum appointed to the superstitious use which was employed within five years before the making of that Statute but if one of the uses depend upon the other there the finding of the principal or any part thereof shall give all the land to the King As if land be given to the intent that an Obit shall be found in such a Chappel and that upon the Obit 10 s. shall be distributed and employed to the Priest and 6 s. 8 d. to divers poor persons that shall be present at it and the residue of the profits to the reparations of the Chappel In this case if the Obit be maintained in any part within the five years although the 6 s. 8 d. be not employed to the poor men nor any thing at all upon the reparations of the Chappel within the five years Yet all the land shall be given to the King by the said Statute because all the uses depend upon the first 24 In suits in the Star Chamber before the repeal of that Court albeit the suit was for the King Co. lib. 5. 51. Halls case Upon censure or sentēce the King cannot pardon the damages or costs before censure or sentence contr◠and the offence such as the King might pardon yet when the censure was once given and damages given to the Plaintiff then the Plaintiff had particular interest in them by the censure which the King would not pardon But if the pardon had béene obtained before the censure there the pardon had discharged all for then the Court could not have procéeded to any censure of the Principal and by consequent neither of damages which are but accessories There is the same law of a pardon before sentence in suits depending betwixt party and party in the Court Christian for defamation casting violent hands upon a Clerk or the like for these being suits pro salute animae vel reformatione morum are in truth suits onely for the King although prosecuted by the party And therefore if in such a suit the Plaintiff hath expended any costs and the King before sentence pardons the Defendant in that case the costs are lost causa qua suprà It is otherwise if he be not pardoned till after sentence for then costs being thereby given to the Plaintiff he hath a particular interest in them which the Kings pardon cannot frustrate c. Co. l. 5. 96. b. 3. in Goodales case being adjudged in Randals case 23 24 Eliz. in the Court of Wards 25 A. seised in fée of certain lands A condition accessory to the estate by déed indented and enrolled according to the Statute covenants with B. That if B. pay unto A. his Heirs or Assignes 10 l. upon such a day at such a place that then A. and his heirs will stand seised of the said lands to the use of B. and his heirs A. having issue a son makes his Will in writing and makes C. his Executor and withal deviseth that C. shall have the land during the minority of his son and then dies his son within age In this case the question was to whom after the death of A. the Tenant ought to be paid and it was resolved that it ought to follow the estate of the land as an accessory unto it and shall not be paid unto C. either as Termor or Executor because C. could not be such an Assignée as is meant by the words of the Covenant having by the devise onely a particular interest in the land Neither yet if A. had granted the land for life or years could any such Lessee have béen Assignée in that case because notwithstanding such grant the reversion still remained in A. and the possibility of having the land again as in his former estate in case the condition were not performed and therefore the payment thereof ought to be made to his son and heir or unto the Assignée of the Covenantors whole estate as if the Covenantor had made an absolute feoffment in fée or else a gift in taile or lease for life with the remainder over in fée then the Feoffée Donée in tail or Lessée for life might be Assignées to whom the Condition ought to
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
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
Rent shall not suspend the Rent c. Diversity beâ—wixt lease â—â—â—e-hold 27 If a man make a Lease for yeares upon Condition Co. l. 8. 95. b. 3. Mathew Mannings Case that if he do not such an Act the Lease shall be void and afterwards he grants the reversion over the condition is broken the grantée shall take benefit of this Condition by the Common Law for the lease is thereby absolutely void but if the lease had béen for life with such Condition the grantée shall not take benefit of the breach of the Condition for a Frank-tenement up on with a praecipe lies cannot so easily determine but is voidable by entry after the Condition broken which cannot be by the Common Law transferred to a stranger 〈◊〉 tenants â—â—nants in Common 28 If Lands be given to John Bishop of Norwich and his Successors and to John Overall Doctor of Divinity and his heires Co. Iâ—st p. 1. 190. 4. being one and the same person he is Tenant in Common with himselfe but it is otherwise of Chattels real or personal for if a Lease for yeares be made or a ward granted to an Abbot and a secular man or to a Bishop and a secular man or if goods be given to them they are joynt-tenants thereof and not tenants in common for they take them in their natural and not in their politique capacity 〈◊〉 of a râ—â—â—â—sion for 〈◊〉 good â—â—houe Atâ—â—â—ment 29 Grant of a Reversion of frée-hold is not good without attornment but if a man make a lease for yeares rendring Rent Dier 26. 167. 28 H. 8. and afterwards makes a Lease of the same land to another to commence during the first term this is a good grant of the reversion and he shall have the Rent it being but a Chattel which is granted in reversion without attornment 95 Matter of Record more then other transactions Co. Inst p. 1. 161. a. 3. 1 There is a diversity betwéen a warrant of Record A warrant a bare authority and a warrant or an authority in Law for if a capias be awarded to the Sheriffe to arrâ—st a man for felony albeit the partie be innocent yet cannot he make rescous but if the Sheriffe will by the authority which the Law giveth him arrest a man for felony which is not guilty he may rescue himselfe Littl. §. 406. C. ibid. 247. b. 4. Dier 232. 9. 2 If a man de non sane memoriae or an Infant make a feofment or other conveyance of his land in pais the heire of the non sane memoriae Conveyance by fine c. and the Infant himselfe or his heire may enter and but the feoffée c. Otherwise it is if the conveyance be by fine or by other assurance of record c. unless the Infant reverse it before full age because of inspection Co. ibid. 251. b. 2. 4. 3 A particular Estate of any thing that is in grant Conveyance by fine men then that by grant cannot be forfeited by any grant in fée by déed as if Tenant for life or yeares of an Advowson Rent Common or of a Reversion or remainder of Land by déed grant the same in fée this is no forfeiture of his Estate because it passeth by déed and nothing is divested neither yet doth any thing thereby passe albeit the déed of such things be enrolled and so made a matter of record yet neither then worketh if any forfeiture because the déed is the originall c. But a grane of such things by fine albeit no reversion or remainder is thereby divested worketh a forfeiture because that is matter of Record ab origine c. Co. ibid. 252. a. 1. 4 An attornment of Record to a stranger by Tenant for life or yeares worketh a forfeiture So doth not an attornment in pais Attornment forfeiture Co. ibid. 258. a. 2. lib. 9. 106. a. in the Lord Analâ—ys Case 5 If an Infant or any man of full age have any right of entry into any lands Entry by a stranger suffâ—cient for the diseisee c. any stranger in the name and to the use of the Infant or man of full age may enter into the Lands and this regularly shall vest the Lands in them without any commandement precedent or agréement subsequent But if a disseisor levie a fine with proclamation according to the Statute of 4 H. 7. cap. 24. a stranger without a commandment precedent or an agréement subsequent within the five years cannot enter in the name of the Disseisée to avoid the fine Howbeit an Assent subsequent within the five yeares is sufficient Omnis enim ratio habitio retrotrahitur mandato aequiparatur And this resolution is grounded upon the construction of the said Statute and the force of a fine being a matter of Record c. Co. ibid. 309. a. 4. 314. a. 3. Litt. §. 579. Co. l. 2. 67. b. 4. in Tookers Case 6 Before the Stature of uses 27 H. 8. cap. 10. upon a grant in pais of a Seigniory Rent reversion or remainder Grant in pâ—â—â— not good without attornment otherwise of a fine if either the grantor or the grantée had died before attornment such grant had béen remedilesse and void c. but if the grant had béen by fine then albeit the Conusor or Conusée had died yet the grant had béen good or for by fine levied the state did passe to the Conusée and his heires and the attornment to the Conusée or his heires at any time to make privity to distraine had béen sufficient But now by force of that Statute the grant of such things by fine or bargaine and sale by déed indented and enrolled is good yea even to distraine also without attornment Vide R. 55. e. 69. Co. Inst p. 1. 320. a. 3. 7 If Tenant for life hath a priviledge Claime of â—â—â—vilege by â—â—â—nant for 〈◊〉 c. not to be impeacheable of wast or any other priviledge and upon grant of the reversion by déed he attornes without saving his priviledge yet loseth he thereby no priviledge for there can be no conclusion or barre by such attornment in pais And so it is also of an attornment in Law as if the Lessor disseise the Lessée for life and make a feoffment in fée and the Lessée re-enter this is an attornment in Law which shall not prejudice him of any priviledge Likewise if the Lessor levie a fine of the reversion and the Conusée die without heire whereby the reversion escheateth to the Lord In this Case the Law doth supply an attornment and therefore the Lessée shall lose no priviledge c. But in a Quid Juris clamat brought by the Conusée of a fine if the Tenant for life claimeth not his priviledge but attornes generally his priveiledge is lost because that is upon record and the writ supposeth him to be but a bare tenant
So if the Lessée be disseised and wast is done and the Lessée re-enters an Action of wast shall be maintained against the Lessée and so in like Cases And yet in none of these Cases the Plaintiffe in the Action of wast had any thing in the reversion at the time of the wast made Howbeit in these Cases the privity utterly still remaines but in the other by force of the recovery it is for the present utterly destroyed c. Vide Statute 14 Eliz. cap. 8. concerning this matter Litt. §. 695. Co. ib. 364. a. 4. 15 The Disseisor lets the Land to the Disseisée for yeares Dâ—sclaime Remitter who enters and disclaimes by parol in pais to have any thing but the lease for yeares in the Land yet is the Disseisée in his Remitter notwithstanding such disclaimer in pais But if he disclaim in Court of Record that he hath not any Estate save onely such Estate for yeares such disclaimer in Court of Record shall conclude him And so observe a diversity betwéen a claime or disclaime in pais of an Estate and a claim or disclaime of Record for a claime or disclaime in pais shall not hinder a remitter But a claim or disclaim of Record shall because this worketh a Conclusion so doth not that c. Infants Acts upon record not avoidable 16 There is a diversity to be observed betwéen matters of Record done or suffered by an Infant and matters in fait Co. ib. 380. b. 2. for matters in fait he shall avoid either within age or at full age but matters of Record as Statutes Merchant and of the Staple Recognisaances acknowledged by him and a Fine levied by him or a Recovery against him by default in a real action saving in Dower must be avoided by him viz. Statutes c. by Audita querela and the Fine and Recovery by writ of Error during his minority and the like And the reason thereof is because they are judicial acts and taken by a Court or a Iudge c. Partition in Chancery of an Advowson 17 If Coperceners make partition in Chancery F N B 36 c or in the Common Pleas to present by turn and after a stranger usurpes in their several turnes yet after when their turnes happen each of them may have a Scire facias upon that partition against the stranger when her turn falls to shew wherefore he presents notwithstanding such usurpation made but it is otherwise as it séems where the partition is not of Record for then they are put to their writ of right by reason of such usurpation Bar to a writ of Eschear 18 Some do hold that if there be Lord and Tenant Co. Inst p. 1. 268. a. 4. and the Tenant be disseised and the Disseisée die without heir the Lord accepts rent by the hands of the Disseisor this is no bar to him but if he avow for the rent in a Court of Record this shall bar the Lord of his writ of Escheat Not named yet good 19 If a Grant be made to Co. ib. 3. 2. 3. or a Lease be made by a Dean and Chapter Mayor and Communalty or the like it is good without naming the Dean or Mayor c. by their names but in pleading the proper name of the Dean Mayor c. must be shewed because it is matter of Record and ought to be certain Partition 20 If there be two Coperceners Dier 52. 20. 33 H. 8 and one of them make a Lease for years of her part and afterwards the other brings a writ de partitione facienda against the Lessor and partition is thereupon made In this Case albeit the part allotted to the Lessor be lesse then the part of the other yet the Termor is without remedie But if the partition were without writ it séemes to be otherwise Ancient Deâ—esne 21 Ancient Demesne shall be extended by Elegit Co. l. 5. 105. a. 4. in Aldens ca. because in such Case no Iudgement is given to recover the possession of the land in a Court of Record but onely execution made by the Sheriff in pais Howbeit in an Assise brought by tenant by Elegit ancient Demesne is a good Plea as it is held in 22 Ass Pl. 45. because there the Plaintiffe shall recover the possession of the land by Iudgement upon Record Certificate recorded 22 The Certificate of the Messenger sent by Quéen Mary to the Palatinate in Germany to call Mr. Bartue and his wife Dier 177. 31. 2 El. the Dutchesse of Suffolk home and the abuses there offered him by their servants being recorded in Chancery and afterwars sent by Mittimus into the Exchequer could not be traversed for that it was a Record and could not be tried by any Visne of the Realm it is otherwise of matter of fact done in the Countrey c. 96 Conveyances by Livery or which passe Estates of the Land more then those that passe by Grant or onely passe things belonging to or issuing out of the Land Things in â—â—â—nt 1 Livery of seisin is of greater consideration in Law Co. Inst p. 1. 251. b. 2. then a bare Condeyance by Grant For a particular Estate of any thing that lies in Grant cannot be forfeited by any Grant thereof made in Fée Lit. §. 609 610 611. Co. ib. 330. b. 2. Life No forfeitâ—â—â— As if tenant for life or years of an Advowson Rent Common or of a Reversion or Remainder of land by Déed grant the same in Fée this is no forfeiture of their Estates because it passeth onely by Déed Conveyant by livery a forfeiture and nothing is divested neither yet doth any thing thereby passe but what may lawfull passe But if tenant for life of land enfeoff another of the land in Fée by livery without Déed that is a forfeiture of his Estate in regard of the solemnity of the livery whereby the Reversion or Remainder is divested So likewise if the Tenant for life or years of land the Reversion or Remainder being in the King make a Feoffment in Fée by livery c. Albeit in that Case no Reversion or Remainder is divested out of the King neverthelesse that also is a forfeiture of his Estate in respect of the solemnity by livery tending to the Kings dis-herisin c. Litt. § 598 599 600. and Co. ibid. 328 a. 3 Co. l. 3. 84. a c. in the case of Fâ—nes and 85. b. 4 c. 2 If tenant in tail be disseised A Release no Discontinuance and he then releafeth by his Déed to the Disseisor and his heirs all his right that makes no discontinuance because nothing can passe by such a release but that which may lawfully passe without prejudice to any other But otherwise it is if he make a Feoffment in Fée of the land in respect of the livery of Seisin because it is the most solemn and common
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
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
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
men to serve the King that might tend much to the disturbance of the publique quiet thereof Vide supra 198 35. infra 16. Max. 78. 27. Dyer 128. pl. 61. Co. ibid. 246. a. 1. 4 Regularly Infant no lachess shall be adjudged in an Infant within the age of 21 years yet the Publique Repose of the Realm concerning mens freeholds and inheritances shall be preferred before the privilege of Infancy in case of a fine when the five years begin in the time of the Ancestor Vide Pl. Co. 372. Co. ibid. 328. a. 3. 5 The disseisee Release Feofment or any other that hath a right only by his release or confirmation cannot make any discontinuance because nothing can pass thereby but that which may lawfully pass But otherwise it is of a feoffment in respect of the livery of seisin for that it is the most solemn and common assurance in the Country and to be maintained for the Common quiet and repose of the Commonwealth Co. ibid. 361. b 3. Co. l. 1. 106. a. 4. in Shelley case 6 If a judgement be given against a tenant in tail upon a faint or false action and tenant in tail die before execution Common recovery no execution can be sued against the issue in tail But if in a Common Recovery judgement be had against tenant in tail where he voucheth hath judgment to recover over in value albeit the tenant in tail dieth before execution yet the Recoveror shall execute the judgement against the issue in tail not only in respect of the intended recompence but likewise for that it being the Common assurance of the Realm is much favoured in Law for the publique quiet and repose of the Commonwealth Co. ibid. 161. a. 3. 7 Incloser is adjudged in Law a disseisin of the rent Incloser because the Lord cannot justifie to break open the gates or break down the Inclosures to take a distress for that would be in disturbance of the publique peace and quiet of the Commonwealth Exchequer Seal 8 The Iudges in general cases have great respect and consideration Co l. 2. 17. a. 1. Lanes case that their judgement may not impeach or prejudice a multitude of people against antient and common approbation and therefore in Lanes case in the 2 Rep. a lease under the Exchequer seal was adjudged good albeit by the Common law no grant of any land by the King is available or pleadable but under the Great Seal yet the antient usage of that Court makes such leases to be good and available in in Law For if such leases should not be good great mischief would ensue thereupon because an infinite number of leases and grants under the Exchequer Seal would be said to be void and as great a number of grants of reversions expectant upon such leases would be void also for if the King grant a reversion where he hath a possession his grant is void And therefore lest their judgement in that case might disturb the publique repose of the Commonwealth leases under the Exchequer Seal were adjudged good and available in Law as aforesaid c. Common assurances 9 In Common Recoveries Co. l. 2. 75. a. 3. in the Lo. Cromwels case and other common assurances it would be a thing too perilous to make any construction against the general allowance thereof for thereupon would arise infinite contentions quarrels and sutes which would be inconvenient and stirr up trouble and disquiet in the Commonwealth whereas the end of the Law is to settle and establish repose and tranquillity betwixt man and man concerning their possessions Imprisonment 10 The body of the defendant was not liable to the execution for debt at the Common Law Vide 13 H. 4. 1. Co. l. 3. 12. a. 3. in Sir William Harberts case But the Common Law which is the preserver of the Common peace of the land abhors all force as the Capital enemy thereof And therefore against such as commit any force the Common Law subjects their bodies to Imprisonment which is the highest execution and whereby he loseth his liberty untill he hath agreed with the party and made fine to the King False News 11 The Statutes of Westm 1. cap. 33. and of 2 R. 2. cap. 5. which prohibit false and scandalous news Co. l. 4. 13. Actions of Slander whereby debate might arise between the Lords and Commons in disturbance of the peace and quiet of the Commonwealth seem to be but declarations of the Common Law for doubtless that offence was punishable at the Common Law before the making of those Statutes because it was prejudicial to the peace and repose of the Commonwealth and might be a cause to raise Sedition in the Realm As the Poets describes it Ac veluti magno in populo cum saepe coorta est Seditio saevitque animis ignobile vulgus Jamque faces saxa volant furor arma ministrat In which tumults another Poet saith Non novit medium rustica progenies Murder Constable 12 If upon an Affray made Co. l. 4. 40. b. 4. in Yongs case Co. l. 9 66. a. 4. 68. a. 4. in Mackallyes case the Constable and others in his assistance come to suppress the Affray and to keep the peace and in doing their office the Constable or any of his assistants are slain this is murder in Law albeit the Murderer did not know the party that was slain and although the affray was sudden because the Constable and his assistants come by authority of Law to keep the peace and to prevent the danger that might ensue by the breach thereof and therefore the Law adjudgeth it Murder and that the Murderer had malice prepense because he opposed himself against the justice and publique reposâ— of the Commonwealth So if a Sheriff or any of his Bailiffs or other Officers be slain in the execution of a process of Law Co. l. 5. 71. b. in Saint-Iohns case or in doing their office it is Murder Guns There is the same Law also of a Watchman that is slain in doing his office Vpon the same reason it is that the generalty of the Statute of the 33 H. 8. 6. prohibits not Sheriffs and their officers to carry about them in execution of Iustice and in order to the peace and quiet of the Realm the weapons therein forbidden Co. l. 5. 91. b. 1 in Swaynes case 13 In order to the general peace and quiet of the Commonwealth every mans house is to him as his Castle and Fortress A mans house his Castle as well for defence against injury and violence as for his repose And albeit the life of a man is a precious thing and much favoured in the eye of the Law so as albeit one man kill another in his own defence or per infortuniam without any intent yet the Law adjudgeth that felony and thereby he shall forfeit all his
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
Lease of the same land for 20 yeares rendring rent the terme to begin after the death of Lessée for life afterwards Lessée for life grants his estate to the Lessor who during the life of the tenant for life makes feofment to a stranger in fée who suffers a recovery and Lessée for life dies and for the rent avowry was made by the recoverors and the question was whether or no the rent was extinct by the feofment and the better opinion séemes to be that it was not extinct because it was not in esse at the time of the feofment made Abbot c. disclaim barre to the successor 8 If an Abbot Prior Bishop Co. Inst pars 1 103. a. 1. or other sole Corporation levie a Fine or acknowledge the Action in a Praecipe quòd reddat the Successor shall be bound pro tempore but he may have a Writ of Right and recover the land Howbeit in a Quo warranto at the suit of the King against an Abbot Bishop or c. for Franchises and Liberties if the Abbot c. disclaime in them this shall bind the Successor So likewise if an Abbot c. acknowledge the Action in a Writ of Annuity this also shall binde the Successor because he cannot falsifie it in an higher Action Vide suprà M. 1. case 4. 24 Nemo potest plus juris ad alium transferre quà m ipse habet Co. Inst pars 1 265. a. 2. Littl. § 446. 1 These words which are commonly put into releases A release before interest void viz. quae quovis modo in futurom habere potero are as void in Law for no right passeth by a release but the right which the Releasor hath at the time of the release made And therefore if there be father and sonne and the father be disseised and the sonne living the father releaseth by his déed to the disseisor all his right which he hath or may have in the same tenements without clause of Warranty c. and after the father dieth c. The sonne may lawfully enter upon the possession of the dissessor because he had no right at all at the time of the release made all the right being then in the father and therefore in this case after the decease of the father the sonne may enter into the land against his owne release for Nemo potest plus juris c. Co. ibid. 275. b. 3. 2 If Tenant in Fée simple being disseised by two release to one of his disseisors Release to disseisors enures onely to one of them he to whom the release is made shall hold out his Companion because the right of the disseisée and the estate gained by the dssseisor are of equal extent viz. both in Fée simple but if Tenant for life be disseised by two and he release to one of them this shall enure to them both because Tenant for life by his release can but convey unto them his own estate and by consequent he to whom the release is made hath a longer estate than he that releaseth and therefore such a release cannot enure to him alone to hold out his companion For then should the release averre by way of entry or 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 Co. ibid. 276. a. 3. 3 If two Ioyn-tenants in Fée simple be disseised by two By Joyn tenants good onely to one and one of the disseisées releaseth to one of the disseisors all his right he shall not hold out his companion because he had but power to release a moity Co. ibid. 309. b. 2. 4 If the Conisée of a fine before any attornment No distress by déed indented and inrolled bargaineth and selleth the Seigniory to another here the Bargainée shall not distreine because the Bargainor could not do it Co. ibid. 314. a. 3. Littl. § 562. 5 If there be Lord and Tenant A Seigniory suspended and the Tenant make a Lease to a man for terme of his life saving the reversion to himselfe and the Lord grant the Seigniory to the Tenant for life in fée and lie in the reversion attorne as he ought c. In this case some think that the Tenant for life cannot grant the Seigniory over because he took it suspended 5 E. 3. Twongs case and it was never In esse in him but if the tenant make a Lease for life for or years to the Lord there the Lord may grant it over because the Seigniory was In esse in him and the Fée simple of the Seigniory was not suspended but if the Lord disseise the Tenant or the Tenant enfeoffe the Lord upon Condition there the whole estate in the Seigniory is suspended and therefore in that case he cannot during the Suspension grant over his Seigniory Littl. § 619. Addition but approved for law per Cooke Co. Inst pars 1 332. b. 4. 6 If Tenant in taile let this land to another for yeares No disconâ—nuance and after grants the reversion to a third person in fée and the Tenant for yeares attornes to the Grantée and the terme is expired during the life of the Tenant in tail whereupon the Grantée enters and after the Tenant in taile hath issue and des In this case this grant of the reversion makes no discontinuance Co. Inst pars 1 332. b. 4. notwithstanding the grant is executed in the life of the Tenant in taile because at the time of the Lease made for terme of yeares no new Fée simple was reversed in the Lessor but onely the reversion of the estate taile remained in him in like sort as it did before the Lease made Joyn-tenants grant moities 7 If there be two Ioyn-tenants Co. ibid. 337. b. 1. and the one is of full age and the other within age and both they make a feofment in fée and he of full age dieth Here the infant shall not enter into the whole but shall enter or have a dum fuit infra aetatem for the moity onely because no more could passe from him by the feofment An estray 8 If an estray happen within the Mannor of the wife 43 E. 3. 8 10. H. 6. 11. 39. 8. 5. 17. Co. ibid. 381. b. 2. if the husband bie before seisure the wife upon seisure shall have it and not the executors because the property could not be in the husband before seisure and therefore the executors could derive to themselves no title in it from the husband The heir not bound to warranty 9 The heire shall never be bound to any expresse warranty Littl. § 734. Co. ibid. 385. b. 3. but where the Ancestor was bound by the same warranty for if the Ancestor were not bound it cannot descend upon the heire And
thereof So likewise if the Son and heir apparent of a Baron retein a Chaplain and give unto him his Letters under his hand and seal and after his father dies and this Chaplain purchaseth a dispensation this retainer and those Letters will do him no good because they were not available at the first to make him capable Et quod ab initio non valet tractu temporis non convalescet Co. l. 4. 107. b. 3. Adams and Lamberts case H. 6. 7. E. 6. Dyer 81. 26 Pope Urbane at the request of Ralph Baron of Greystock A void foundation of a Colledge founded a Colledge of a Master and six Priests to be resident at Greystock and assignes to each of the Priests five marks per annum besides their bed and chamber and to the Master 40 l. per annum And upon the Statute of 1 E. 6. 14. it was certified in the Book of First-fruits and and Tenths Rectoriam Collegium de Greystock But it was resolved by all the Iustices that this reputative Colledge was not given to the King by the said Act because it had no lawfull beginning nor so much as the countenance of a lawfull beginning for the Pope cannot found or incorporate a Colledge within this Realme nor assigne or give Licence to assigne any temporal livings unto it but it ought to be done by the King himselfe and by no other Co. l. 5. 42. Codwels case 27 In appeal of Mayhem betwixt John Codwel Plaintife A void Panel and Thomas Parker Defendant the parties descend to issue and the Iury finds for the Plaintife and now it was moved in arrest of Iudgement that there was variance betwixt the Panel of the Venire facias and the Distringas and Postea in the name of one of the Iury that appeared and gave the verdict for in the Panel of the Venire facias he was named Palus Cheale And in the Distringas and in the Postea it was Paulus Cheale And because the name of a Iuror in the Venire facias was mistaken the Iudgement was arrested But if he had béen well named in the Panel upon the Venire and misnamed in the Distringas or Postea upon examination it might have béen amended because the Venire facias and Panel are the beginning and ground of the other subsequent Processe A void Presentation 28 D. was seised of a Mannor Co. l. 6. 50. a. 4. Boswels case 16 E. 3. Tit. Quare impedit 67. Adams case unto which an Advowson was appendant and dies the Mannor descends to E. an Infant the Church becomes void A. presents during the nonage of E. who at full age enfeoffes F. of the Mannor and after the Church becomes void againe and F. presents whereupon the Assignée of A. brings a Quare impedit And it was adjudged that by the feofment of E. when he had attained his full age the Mannor passed to the Feoffée but not the Advowson because by the usurpation the Infant was out of possession of the Advowson and he had but a right in it the usurpation being onely voidable by action which could not be transferred to a stranger And therefore the Advowson being not at all granted to F. he shall not gaine it afterwards by an usurpation A void grant of the Office of the Auditors of the Court of Wards 29 Quéen Eliz. in the 31 yeare of her Raigne grants unto Walter Tooke and William Curle Officium unius Auditorum Curiae suae Wardorum Co. l. 11. 4. a. 4. Auditor Curles Case c. habend dictis Waltero Willielmo alteri eorum conjunctim divisim pro termino vitarum suarum eorum alterius diutiùs viventis c. And afterwards King James in the 4 yeare of his Reign during the lives of the said Walter Tooke and William Curle grants the Reversion of the said Office to John Church-hill and John Tooke And in this case King James his grant was adjudged void because that Office being partly judicial and partly ministerial could not in respect of the Iudicial part be granted in Reversion for which the Rule is officia judicialia non concedantur antequam vacent And therefore being void at first it shall not be made good afterward for albeit William Curle one of the first Grantees and John Church-hill one of the last Grantees happen to die yet shall not John Tooke enjoy the Office by vertue of King James his grant because quod ab initio non valet c. A void grant of a Surveyorship â—0 John Bishop of Sarum grants the office of Surveyour of the Mannor of Sherborne unto Edward Green and John Green for their lives together with the fee of 6. l. 13. s. 4. d. per annum Co. l. 10. 61. b. 4. The Bishop of Sarums case whereas the office formerly used to be granted onely to one Edward Green dies as also the Bishop the fee is behind and John Green distreins for it but could not maintain the Avowry because the grant was void by the Statute of 1 Eliz. not printed which restraineth Ecclesiastical persons from making unusual grants c. and in this case albeit Edward Green being dead and John Green alone had the office when he distrained yet the grant being void at first shall not be made good by any subsequent Act that happens after to bind the Successor to perform it Quia quae malo sunt inchoata principio vix est ut bono peragente exitu quod initio non valet c. A void grant to a Colledge 31 A Grant by the Master and Fellowes of a Colledge to Queen Eliz. contrary to the Statute of 13 El. 10. being thereby made void Co. l. 11. 7â— a. 4. Magdalen Colledge case could not afterwards be made good by the Statute of 18 El. 2. for Confirmations of Grants made unto her because that can by no meanes be made good which was meerly void at the beginning Neither shall the general words of 18 El. enable any person to make any conveyance which by the Common Law was disabled as if an Infant had conveyed land to the Queen by Deed inrolled or had levied a Fine to her before the Statute of 18 El. and then that Act had been made yet the estates granted had not been confirmed by that Act because the Infant during his minority was absolutely disabled to make such a Grant and therefore notwithstanding that Statute he might have reversed the Fine by a Writ of Error as it was adjudged M. 32 and 33 Eliz. in B. R. by Wray and all the Court in Vaughans case So likewise if a man seised of land in fee had granted the land after his death Co. l. 11. 78. a. 3 The same case to the Queen her heires and successors the said Statute of Confirmation had not made such a grant good because it was against the Rules of Law 38 H. 6. 33. The Abbesse of Sions
value as it was in her husbands time So it is likewise if the heire improve the value by building the like Law is if the value be impaired in the time of the heire for then also she shall be endowed according to the value at the time of the assignement and not according to the value as it was in her husbands time And the reason of all this is because she claims paramount the improvement or impairing of it and hath Title to she quantity of the land viz. one just third part Co. Inst pars 1 46. a. 3. 3 If Tenant in taile make a Lease for yeares reserving xx s. rent Lease by tenant in tail good in dower and after take a wife and die without issue here as to him in the reversion the Lease is méerly void because he claimes paramount the Lease but if he endow the wife of Tenant in tail of the land as she may be though the estate taile be determined now is the Lease as to the Tenant in Dower who is in of the estate of her husband revived againe as against her for as to her the estate taile continueth and the Lease is paramount her Title Co. Inst pars 1. 113. a. 3. Littl. § 169. 4 If a man by the Custome devise that his executors shall sell his lands c. and dieth the lands in this case descend to his heire Feoffee in by devise and the executors have no estate in them but onely a bare and naked power neverthelesse a feofment from them shall amount to an alienation to vest the land in the Feoffée because the Feoffée by construction of Law shall be said to be in by the Divisor and not by the executors So it is likewise if a man by the custome devise a reversion or any other thing that lyeth in grant to be sold by his executors they may sell the same without Déed causa qua suprà Co. Inst pars 1. 117. a. 2. 5 If lands be given to a Villain and to the heirs of his bodie The Lords title Paramount an entail to a villain and so is the Kings to that of an Alien the Lord may enter and put out the villein and the heirs of his body for Quicquid acquiritur servo acquiritur domino And in this case the Lord gains a Fée simple determinable upon the dying of the Villain without issue of his bodie and the absolute Fée simple remaineth still in the Donor And if the Lord enter and after enfranchise the Donée and after the Donée hath issue yet that issue shall never have remedie either by Formedon or Entry to recover this land by force of the Statute de donis c. For the Lord is in paramount the entaile and that Statute giveth onely remedie to the issues of the Donée that hath capacity and power to take and retaine the gift And the Title of the Lord remaines as it did at the Common Law for the Statute restraineth acts done onely by the Tenant in taile So it is also if lands be given to an Alien and to the heires of his body upon office found the land is seised for the King afterwards the King makes the Alien a Denizen who hath issue and dieth the King shall detaine the land against the issue because the Kings Title is Paramount the entail viz. by his prerogative Vide infrà 32. Co. Inst pars 1 148. b. 3. 6 If a man grant a rent charge out of two acres A Title Paramount to rent and after the Grantée recovereth one of the acres against the Grantor by a Title paramount the whole rent shall issue out of the other acre Doct. Stud. l. 2. cap 17. Co. Inst pars 1 148. b. 3. 7 If a man enfeoffeth B. of one acre in fée upon Condition Title Paramount a grant and B. being seised of another acre in fée granteth a rent out of both the acres to the Feoffor who entreth into the one acre for the Condition broken the whole rent shall issue out of the other acre because his Title is paramount the grant Co. Inst pars 1. 184. b. Littl. § 286. 8 If two Ioyn-tenants be seised of an estate in Fée simple Jus accreseâ—dendi praefertur oneribus and the one grants a rent charge to another out of his part here the rent is good during his life but after his decease the Survivor shall avoid it because he commeth in by the first Feoffor and not under his companion So likewise if a man be possest of certaine lands for terme of yeares in the right of his wife and granteth a rent charge and dieth Co. Inst pars 1 185. a. 1. the wife shall avoid the charge And for the same reason it is that if a Ioyn-tenant charge the land with common of Pasture Turbary Estovers or with a Corodie or with a way over the land or the like this shall not bind the Survivour For jus accrescendâ— prefertur oneribus and Alienatio rei praefertur juri accrescendi Vide M. 15. Pl. 14. Co. Inst pars 1 185. a. 2. 9 One Ioyn-tenant in fée taketh a Lease for yeares of a stranger Simile by Déed indented and dieth the Survivour shall not be bound by the conclusion because he claimes above it and not under it Baron chargeth the Femes â—and 10 If there be two Ioyn-tenants in fée Co. Inst pars 1 185. a. 2. Finch 13. Dyer 187. and the one maketh a Lease for yeares reserving a rent and dieth the surviving Feoffée shall have the reversion but not the rent because he claimeth in by the first Feoffor which is paramount the rent So it is also of the wife where the husband being Lessée for yeares in her right maketh a Lease of part of the terme reserving a rent Inst part 1. 318. a. 3. Simile 11 If a husband wife Co. Inst pars 1 187. b. 4. and a third person purchase lands to them and their heires and the husband before the Statute of 32 H. 8. cap. 1. had aliened the whole land to a stranger in fée and died the wife and the other Ioyn-tenant were Ioyn-tenants of the right and if the wife had died the other Ioyn-tenant should have had the whole right by Survivour for that they might have joyned in a writ of right and in this case the discontinuance would not have barred the entry of the Survivour because he claimed not under the discontinuance but by Title paramount above the same by the first feofment A condition â—aramount a descent 12 If a man be seised of lands in Fée or Fee taile upon Condition to render certaine rent or any other Condition Co. Inst pars 1 240. a. b. Littl. § 391 392. albeit such a Tenant die seised yet if the Condition be broken in his life time or after his decease that descent shall not take away the entry of the Feoffor or Donor or of
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
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
Will is determined though the Lord cometh in above the lease for life or for years the custodie or any other particular interest or tenancy at will yet shall he be compelled to make admittance according to the surrender And so it was holden in the Earl of Arundels case in 17 Eliz. See more of this Co. l. 4. in the Copihold cases Tâ—in 1. Jac. Inter Shepland and Ridler in Repl. in Co. Ba. the case of Guardian in soccage adjudged Co. ib. 76. b. 1. 10 In many cases the heire shall be in ward The Lord that have Wardship though not dying seised albeit the Tenant died not seised c. nor in the Homage of the Lord As if the Tenant maketh a feoffment in fee upon condition and the Feoffor dieth after his death the condition is broken the heire within age entreth for the condition broken In this case the heire shall be in ward and yet the Feoffor had no estate or right in the land at the time of his death but onely a condition and which was broken after his decease but because the condition restoreth the Tenant to the land in nature of a descent for he shall be in by descent by the same reason shall it restore the Lord to the wardship c. Co. ib. 89. b. 4. 11 If a stranger entreth into the lands of the Infant within age of 14 years taketh the profits of the same A stranger Guardian is soccage accountable the Infant may charge him as Guardian in Soccage And this doth well agrée with the writ of accompt against a Guardian in soccage for the words be Idem B. praefato A. rationabilem compotum suum de exitibus pervenientibus de terris tenementis suis in N. quae tenentur in soccagio quorum custodiam Idem B. habuit dum praedicta A. infra aetatem fuit dicitur and true it is that in judgement of Law he had the custodie of the lands and is called Tutor alienus whereas the right Guardian in Soccage is called Tutor proprius Neither is it any plea for him to deny that he is prochein amy but he must answer to the taking of the profits as Littleton saith Sect. 124. Co. ibid. 108. a. 4. 12 If one holdeth land of a common person in grosse as of his person and not of any Mannor Tenure in Capite c. and this Seignory escheateth to the King yea though it be by attainder of Treason he holdeth of the person son of the King as he held before of the person of the Subject and not of the King in Capite because the originall tenure was not created by the King And therefore it is directly said that a tenure of the King in Capite is when the land is not holden of the King as of any Honour Castle Mannor c. But when the land is holden of the King as of his Crown Vide Dyer 44. 28. c. 30 H. 8. Mag. Car. cap. 31. 25. 4. Advowson appendant 13 An Advowson is appendant to the Mannor of Dale Co. ib. 122 a. 1. of which Mannor the Mannor of Sale is holden the Mannor of Sale is made parcel of the Mannor of Dale by way of Escheat In this case the Advowson is still onely appendant to the Mannor of Dale Common appendant 14 If Common appendant be claimed to a Mannor Co. ib. 122. a. 4. yet in rei veritate it is appendant to the Demesnes and not to the services and therefore if a tenancy escheat the Lord shâ—ll not increase his Common by reason of that An Assise for â—ent after disâ—eisin 15 If the Tenant rescue the Distresse Co. Inst pars 1. 160. b. 3. and after is disseised of the tenancy yet an assise lyeth against him for the Disseisin done of the rent by the Rescous c. Coparcenary â—n other â—ands 16 If one of the Parceners take Baron and die Co. ib. 174. b. 4. c. the Baron being Tenant by the Courtesie is compellable by a writ de partitione facienda to make partition and shall be joyntly impleaded with the other Coparcener for he doth continue the state of Coparcenary as the other Parcener doth c. So likewise if there be two Coparceners and one of them doth alien in fée the Alienée and the other Coparcener are Tenants in common and several writs of Praecipe shall be brought against them and yet the Parcener may have a writ of partition against the Alienée at the Common Law which is a stronger case than the case put of Tenant by the Courtesie The heire in Hotchpot 17 If the Donées in Frankmarriage die before the lands be put into Hotchpot with the other Coparcener Littl. §. 270. Co. ib. 178. a. the heire of the Donées may well do it Descent shall not take away entry 18 If a Dissesor make a lease to a man and to his heirs during the life of I. S. and the Lessée dieth Co. ib. 239. a. 3. living I. S. this shall not take away the entry of the Disseisée because he that died seised had but a Frée-hold and heirs in that case were added to prevent an occupant For an heire in that case shall not have his age c. as it was adjudged in Lambs case P. 16 Eliz. in Co. Ba. Right left after recovery 19 If the Disseisée disseise the heire of the Disseisor Co. ib. 266. a. 4. albeit the heire recover the land against the Disseisée yet shall he leave the proceeding right in the Disseisée So if a woman that hath right of Dower disseise the heire and he recover the land against her yet shall he leave the right of Dower in her Attornment 20 If either the Grantor or the Grantée of a Seigniory rent reversion Co. ib. 315. a. 4. remainder c. die before attornment the attornment is thereby countermanded But albeit the Tenant of the land die or grant over his estate to another yet may he that hath his estate either by descent or grant attorn at any time Wast mainâ—einable 21 Regularly when the reversion is devested Co. ib. 356. a. 4. the Lessor cannot have an action of Waste yet in some special cases an action of Waste shall lie albeit the Lessor had nothing in the reversion at the time of the Waste done As if Tenant for life make a feoffment in fée upon condition and Waste is done and after the Lessée re-enter for the condition broken In this case the Lessor shall have an action of Waste So likewise if Lessee for life be disseised and Waste is done the Lessée re-enters Here also an action of Waste shall be maintained against the Lessee c. 5. Co. ibid. 366. b. 3. 22 A warranty that commenceth by disseisin is properly Warranty that begins by disseisin when the disseisin is done immediately to the heire that
2. 4. Sir Ed. dw Althams case and releaseth to the Reversioner omnes actiones c. sectas querelas Demand quaecunque nec non totam dotem suam ac titulum ac actionem dotis sibi contingent c. de aliquibus terris in Wethersfield c. this is onely a Release of her Dower in Wethersfield and not in Gosfield â—â—peachment Wast 6 If a man demise Land for life absque impetitione vasti Co. l. 11. 82. b. 3. Lewis Bowles case the Lessée may cut down the Timber-trees and convert them to his own use but if it be absque impetitione vasti per aliquod breve de vasto In that case the Action onely shall be discharged and not the property in the Trees so that the Lessor after they are felled may seise them c. Co. l. 3. 83. a. 4 Twines case 7 No purchaser shall avoid a precedent conveyance made by fraud and covin What is a good consideration within the Statute of 13 Eliz. 5. but he that is a purchaser for money or other valuable consideration For albeit in the preamble of the Statute of 13 El. 5. it is said For money or other good consideration and likewise in the bodie of the Act For money or other good consideration Yet these words good consideration are to be understood onely of valuable consideration and this appears well by the clause which concerns them that have power of revocation for there it is said For money or other good consideration paid or given and this word paid is to be referred to money and given is to be referred to good consideration so the sense is For money paid or other good consideration given which words exclude all considerations of nature bloud or the like and are to be understood of valuable consideration which may be given and therefore he that makes the purchase of the land for valuable consideration is the onely purchaser within that Statute And this last clause doth well expound these words other good consideration mentioned before in the preamble and bodie of that Act. 54 No man can do an act to himself Co. Inst pars 1. 38. b. 4. 39 a. 4. 1 A Feme Guardian in Soccage shall not endow her selfe De la plus beale without judgement Feme Doweâ— but after judgement she may as Littleton saith § 49. for then it is the act of the Law and not simply hers Co. ib. 48. b. 1. 2 If A. by Déed give lands to B. to have and to hold after the death of A. to B. and his heirs this is a void déed Grant in fâ—turo void because he cannot reserve to himselfe a particular estate and construction must be made upon the whole déed Littl. §. 168. Co. ib. 112. a. 3 A man cannot make any grant of lands Baron canâ—â— grant to feâ—â—â— c. to his wife during the Coverture because they are but one person in Law and a man cannot do an act to himselfe c. Littl. §. 212. Co. ib. 141. a. 4 A man cannot be judge in his owne cause No distresse iâ—repleviable and therefore if a man will prescribe that if any Cattle he Damage fesant upon the Demesnes of his Mannor he may detaine them untill he be satisfied for the damage at his own will and pleasure this custome is repugnant to reason and ought not to be allowed by the Iudges For Malus usus abolendus est quia in consuetudinibus non diuturnitas temporis sed soliditas rationis est confideranda Co. ib. 141. a. 2. Finch 19. 5 A fine levied before the Bailiffs of Salop was reversed A Fine void because one of the Bailiffs was party to the fine Quia nemo debet esse judex in propria causa Nemo potest esse judex c. Hillar 4. H. 4. Coram Rege Salop. Littl. §. 479 480. Co. ib. 280. a. 1. and 307. a. 4. Littl. §. 543 544. 6 If there be Lord and Tenant Extinguishment of rent c. and the Lord releaseth to the Tenant his Seigniory this must of necessity enure by way of extinguishment For the Tenant cannot have service to be taken of himselfe neither yet can one and the same man be both Lord and Tenant So also if a Rent-charge be granted out of land and the Grantée releaseth or granteth the rent to the Terre-tenant in this case the rent is extinct for a man cannot have land and also rent issuing out of the same land neither yet can he pay the rent to himselfe There is the same reason of Common of Pasture released to the Tenant of the land for that also works an extinguishment because a man cannot have Land and a Common of Pasture issuing out of the same land c. Co. ib. 280. a. 3. 7 If there be Lord and Tenant by Fealty and Rent Increasing extinguishment the Lord granteth the Seigniory for yeares and the Tenant attorneth the Lord releaseth his Seigniory to the Tenant for years and to the Tenant of the land generally the whole Seigniory is extinct and the estate of the Lessée also but if the release had béen to them and their heirs then the Lessée had had the inheritance of the one moity and the other moity had béen extinct And the reason of this diversity is because when the release is made generally it cannot enure to the Lessée longer than for life because it enureth by way of enlargement and being made to the Tenant of the land it enureth by way of Extinguishment because he cannot do service to himselfe and then there cannot remaine in the Seigniory a particular estate for life But when the release is made to them and their heirs each one takes a moity the one by way of encreasing of the estate and the other by extinguishment â—cceptance â—ttornment 8 If there be Lord and Tenant Littl. §. 558. Co. ib. 312. b. and the Tenant lets the Tenements to a Feme for term of her life the remainder over in fée the Feme takes Baron and after the Lord grants the services c. to the Baron and his heirs In this case there can be no attornment by parol c. because the Baron that ought to attorn cannot attorn to himselfe but his acceptance of the grant of the Seigniory amounts to an Attornment in Law The like 9 If the Lord grant his Seigniory to the Tenant of the land and to a stranger the Tenant cannot properly and formally attorn to himself Co. ib. 313. a. 1. but his acceptance of the grant is a good attornment in Law to extinguish the one moity and to vest the other moity in the stranger 10 If there be Lord and Tenant and the Tenant take Feme Littl. §. 559. Co. Inst pars 1. 313. a. and after the Lord grant the services to the Feme and her heirs Acceptance Attornment Here can be no
A. be seised of certain lands and A. and B. joyne in a feoffment in fee reserving a rent to them both and their heirs and the Feoffee grant that it shall be lawfull for them and their heirs to distrain for the rent so reserved this is a good grant of a rent to them both because B. is party and privy to the deed as well as A. and the clause of distresse is a grant of the rent to A. and B. But if B. had been a stranger to the deed then B. had taken nothing c. Privies in bloud estate and right A re-entry cannot be transferred 27 If an estate be made upon condition and clause of re-entry Littl. Sect. 347. Co. ib. 214. b. 4. at the Common Law none shall take advantage of such re-entry but only parties or privies As if a man let land to another for term of life by Indenture rendring rent to the Lessor and his heirs and for default of payment a re-entry c. If after the Lessor grant the reversion to another in see and the Tenant attorn c. In this case the advantage of re-entry is gone for ever For albeit if the rent happen to be arrear the Grantee of the reversion may distrain for it because it is incident to the reversion yet shall he not for that cause enter into the land and out the Tenant for that the advantage of re-entry at the Common Law belongs onely to the Lessor himself and unto his heire as privy in bloud unto him and cannot by grant of the reversion be transferred unto another neither yet can it be left in the Lessor or his heirs because he hath departed with his whole estate in the land But if the Lessor has died seised of the reversion his heire should have taken advantage of such re-entry for that he is privy in bloud unto him as aforesaid And therefore there is a diversity between the reservation of a rent and a re-entry for a rent cannot be reserved to the heire of the Feoffor leaving out the Feoffor himself but the heire may take advantage of a Condition which the Feoffor himself could never do As if I enfeoff another of an acre of ground upon condition that if my heir pay to the Feoffee c. xx s. that he and his heirs shall re-enter this condition is good and if after my decease my heire pay the xx s. he shall re-enter for he is privy in bloud and shall enjoy the land as heire unto me So also if a Bishop Arch-Deacon Parson Prebend or any other bodie politique or corporal Ecclesiastical or Temporal make a lease c. upon condition his successor may enter for the condition broken for they are privies in right Likewise if a man have a lease for years and demise or grant the same upon condition c. and die his Executors or Administrators shall enter for the condition broken for they are also privies in right and represent the person of the dead â—eoffor shall â—lead a deed â—oll 28 If feoffment be made by déed Poll upon condition Littl. Sect. 375. and because the condition is not performed the Feoffor enters In this case if either the deed Poll be pleaded by the Feoffée and by that means shewed to the Court or that the Feoffor otherwise happens the possession of the said déed albeit that déed properly belongs to the Feoffée and not to the Feoffor yet because the Feoffor is privy unto it he shall make use of it and be received to plead it Release 29 If two men do trespasse to another who releaseth to one of them by his déed the other trespassor shall make use of that release if he have it to shew because they are parties and privies in the trespasse so likewise if two be bound in an obligation and the Obligée releaseth to one of them both are discharged c. â—â—ir Execuâ—â—â— privies 30 If an action of Debt upon an Obligation be brought against an heire Littl. §. 376. Co. ib. 23â— a. he may plead in barre a release made by the Obligée to the Executors and yet the deed doth properly belong to the Executors and not to him but because both he and they are privies to the Testator such a release shall enure as well to him as to them if he be able to produce it otherwise it shall not avail him Littl. §. 396 397. Co. ib. 242. a. 31 If a man seised of lands in fée hath issue two sons and die seised Privity of bloud and title and the youngest son enters by abatement into the land and having issue dies thereof seised and the issue enters into the land this shall not be a descent to take away the entry of the eldest son or of his heirs because the Law intendeth that the youngest son entred claiming the land as heire to his father and for that the eldest son claimeth also by the same title viz. as heire to his father therefore he and his heirs may well enter upon the second son and his heirs in respect of the privity of bloud betwéen them and of the claim by one and the same title But in the same case if after the fathers death the eldest son had entred and then the youngest son had disseised the eldest and had died seised that had béen a descent to take away the entry of the eldest or of his heirs for that was a plain disseisin and the privity of bloud shall not help that case c. So also where lands were given to the husband and wife and the heirs of their two bodies and they had issue a daughter and the wife died and the husband had issue by another wife four sons and died and the eldest son abated and died seised This descent did take away the entry of the daughter because there wanted privity of title for that they claimed not by one and the same title And in the first case albeit the eldest son hath issue and dieth and that after his decease the youngest son or his heire entreth and many descents be cast in his line Yet may the heires of the eldest son enter in respect of the privity of the bloud and of the same claim by one title But if the youngest son make a feoffment in fée and the Feoffée die seised that descent shall take away the entry of the eldest in respect that the privity of the bloud faileth And admit that the youngest son be but of the halfe bloud to his brother yet is he of the whole bloud to his father and therefore if he entreth by abatement and dieth seised it shall not bar his elder brother of his entry Howbeit if after the decease of the Father a Stranger doth first enter and abate upon whom the youngest son entreth and disseiseth him and die seised this descent shall binde the eldest for he entred by disseisin and not by abatement c. Co. ib. 243. a. 1
respect of the privity betwéen the Lord and the Tenant but if there be Lord Mesne and Tenant the Lord cannot confirme the estate of the Tenant to hold of him by lesser Services for such a Confirmation is void because there is no privity betwéen them c. Attornment to one Joyntenant good 60 If a reversion be granted to two by Déed Co. ib. 310. a. 1. Co. l. 2. 67. b. Tookers case and the Lessée attorne to one of them according to the grant this Attornment shall enure to both the Grantées in respect of the privitie c. Attornment to the partâ—cular tenant vests all the remainders 61 If a reversion be granted for life the remainder in tail Co. Inst pars 1. 310. the remainder in fée the attornment to the Grantée for life shall enure to them in remainder to vest the remainders in them for they are privies in estate c. And in this case albeit the Tenant shall declare in expresse terms that he doth onely attorne to the Grantée for life and that those in remainder shall take no benefit by that attornment after his death yet shall the attornment be good to them all for having attorned to the Tenant for life the Law which he cannot controll doth vest all the remainders in respect of the privity c. Upon grant of a Seigniory or rent service the person to be charged ought to attorne 62 Vpon the grant of a Mannor or a rent service Littl. Sect. 553. Co. ib. 311. a. 1. b. 2. Littl. Sect. 557. none ought to attorne but he that is privie and presently to be charged and without such attornment the grant availeth not As if a man be seised of a Mannor which is parcel in demesne and parcel in service if he alien this Mannor to another all that hold of the Alienor as of his Mannor ought to attorne to the Alienee otherwise the services remaine still in the Alienor But if the Lord make a Lease for years or for life of a Mannor and the Frée-holders attorne to the Lessée here if afterwards the reversion of that Mannor be granted the Attornment of the Lessée for years or life shall bind the Frée-holders for by their former Attornment they have put the Attornment into the mouth of the Lessee their Attornment being involved within his So likewise Littl. Sect. 554. if there be Lord and Tenant and the Tenant lets his land to another for life or makes a gift in tail saving the reversion Here if the Lord grants the Seigniory to another he in the reversion ought to attorne to the Grantee and not the Tenant for life or in tail for he is the true Tenant to the Lord and not they c. Also if there be Lord Mesne and Tenant Littl. Sect. 555. and the Lord will grant the Services of the Mesne In that case albeit in the grant he maketh no mention at all of the Mesne yet the Mesne ought to attorn and not the Tenant peravaile because he is the next privie in tenure that ought to be charged c. And therefore there is a diversity to be observed between a rent service and a rent charge or a rent seck for as to a rent service no man as hath been said can attorne Co. ib 311. b. 2. but he that is privie c. So in case of a rent charge it behoveth that the Tenant of the Freehold doth attorn to the Grantee without respect of any privitie And this is the reason that the Disseisor onely in the case of a grant of a rent charge shall attorn because he is Tenant of the Free-hold but in case of a grant of a rent service the Attornment of the Disseisee sufficeth in respect of the privitie And therefore if there be Lord and Tenant by homage fealty and rent and the Tenant is disseised and the Lord grants the rent to another the Disseisee attorneth this is void but if he had granted over this whole Seigniory the attornment had been good And the reason of this diversity is for that when the rent is granted onely it passeth as a rent seck and consequently the Disseisor being Terre-tenant must attorne but when the intire Seigniory is granted then the Disseisee in respect of the privity may attorn c. Littl. §. 557. Co. Inst pars 1. 312. a. 1. 63 If there be Lord and Tenant Attornmenâ— by the perâ— chargeable good and the Tenant let his Tenement to another for life the remainder in Fee and after the Lord grants the services to another c. and the Tenant for life attornes this is good enough for he that is privie and immediately Tenant to the Lord must attorn and that is in this case the Tenant for life And so on the other side if a Seigniory be granted to one for life the remainder to another in Fée the attornment to the Tenant for life is an attornment to him in remainder also because they are privies in estate c. Vide suprà 61. Littl. Sect. 562. 64 If there be Lord and Tenant Attornmenâ— by the reâ—â—oner and the Tenant make a Lease for life saving the reversion Here if the Lord grant the Seigniory to the Tenant for life in Fée in this case he in the reversion ought to attorne to the Tenant for terme of life because he is the Tenant to the Lord in respect of the privity c. Litt. Sect. 568. Co. ib. 316. a. 1. 65 Regularly upon the grant of a reversion the Terre-tenant shall attorn yet if Tenant in Dower or by the Curtesie Attornmenâ— by Dower 〈◊〉 Curtesie grant over his or her estate and afterwards the heir grant over the reversion in respect of the privity the Tenant in Dower or by the Curtesie shall attorn and not the Grantée and likewise by reason thereof they shall be subject to an action of Wast so long as the reversion remaineth in the heir albeit they have granted over their whole estate because so long as the heir kéepeth the reversion they are to be attendant upon him for that their Grantée cannot â—e Tenant in Dower or by the Curtesie c. F. N. B. 55. e. 56. a. f. Littl. Sect. 571. Co. ib. 317. a. 1. 66 If land be let to a man for terme of years Attornmenâ— by Lessee for life or yeaâ—â— good the remainder to another for terme of life reserving to the Lessor a certain rent by year and livery is made to the Lessée for years in this case if the reversioner grant over his reversion attornment made either by the Lessée for years or by the Lessée for life in remainder shall be available to settle the reversion in the Grantée in respect of the privity of those estates which depend one upon another P. 15. Eliz. in Brasbritches case in Co. Ba. per Dyer Littl. Sect. 574. Co. ib. 318 a. 1 2. Co. l. 2.
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
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
Vide Dier 150. 84. Co. ib. 207. a. 4 24 If a man make a single bond Condition collateral or acknowledge a Statute or Recognisance and afterwards make a defeasance for the payment of a lesser sum at a day if the Obligor or Conusor tender the lesser sum at the day and the Obligée or Counsée refuseth it he shall never have any remedy at Law to recover it because it differeth in quality from the sum contained in the Obligation Statute or Recognisance because if is no parcel thereof but contained in the defeasance made at the time or perhaps after the Obligation Statute or Recognisance And in such Case in pleading of tender and refusal the party shall not be driven to plead Uncore prist neither hath the Obligée or Counsée any remedy by law to recover the sum contained in such defeasance so likewise it is if a man make an Obligation of 100 l. with condition for the delivery of corn or timber c. or for the performance of an Arbitrement or the doing of any Act c. This differing in nature from the sum contained in the Obligation and being no parcel thereof is collateral thereunto And therefore in such Case also a tender and refusal is a perpetual bar The like Law it is of tender and refusal of money upon a Mortgage of Land because the money is collateral and differeth in nature from the land Dier 5. b. 26. H. 8. 1 2. 25 A man seised of land devisable by the custome lets it for years Rent reservâ—â— a chattel rendering rent and deviseth the rent to a stranger and dies and the stranger is seised of the rent and dies also In this case the rent being in its nature but a chattel shall go to the executor of the Devisée and not to his Heir 26 In debt against Executors brought in the County of Middlesex Debt against Executors the Defendants plead fully administred Dier 30. b. 206 28. H. 8. The Plaintiffe saith that they have Assets in Essex and thereupon the Defendants demurred and judgment was given for the Plaintiff because Assets in their nature is a thing transitory and not local and if it had been in issue and trial of a Iury of Middlesex they might have found the Assets in any County of England Rent-service apportionable 27 Rent-service was apportionable at the Common Law before the Statute of Quia Emptores terrarum Co. Inst p. 1. because there are divers kinds of Rent-service which are not within that Statute and yet were apportionable by the Common Law as if a man maketh a lease for life or years reserving a rent and the Lessée surrender part of the land to the Lessor or if the Lessor recover part of the land in an Action of wast or entreth for a forfeiture or granteth part of the reversion to a stranger or if tenant by knight-service by his last will in writing deviseth two parts of his lands In all these cases the rent shall be apportioned yet they are not within the words of the said Statute but the reason séems to be for that rent-service is of the nature of the land and therefore partable as it is partable according to Max. 64. It is otherwise of a rent charge because it is not of the nature of the land being against common right and collateral to the land Livery out of ward 28 A livery to be out of ward being in nature of a restitution Co. ib. 77. a. 4. shall be taken and expounded favourably And therefore if livery be made of a Mannor cum pertinentiis the Heir shall thereby have the Advowson appendant It is otherwise of Grants by Letters Patents Confirmation 29 If a Lease for life be made to two Co. Inst p. 1. 299. b. 1. to have and to hold the one moity to the one for life and the other moity to the other for life and the Lessor confirm their estate in the land to have and to hold to them and their heirs In this Case they are tenants in common of the Inheritance for regularly the confirmation shall inure according to the quality and nature of the Estate which it doth inlarge and increase 30 There being thrée Coperceners of land in Gavelkind in reversion Dier 128. a. 58 2 3. P. M. depending upon an Estate for life Partition the youngest aliens his part by fine in fée the tenant for life dies and the eldest son enters into the whole and then the second brother and the alienée bring a joynt writ of partition upon the Statute of 31 H. 8. 1. against the eldest brother But it was adjudged that it was not maintainable because they were entituled to writs of partition of several natures viz. the one to a writ of Copercenarie at the Common Law and the other to a writ of Partition by the Statute and therefore could not joyn â—eprivation 31 The President of Magdalen Colledge in Oxford being deprived by the Bishop of Winchester their Visitor Dier 209. 20. 3 4. Eliz. could not have an Appeal to the Delegates because the deprivation was temporal and not spiritual and therefore out of the Statute of 25. H. 8. 19. And so he was put to his Assise â—â—sance 32 Tenant for life of an house brings an Action upon the Case against one who stopped the way in his land Dier 250. 88. 8 Eliz. which time out of mind had béen a passage betwixt the house and a Park and albeit the Park was the Lessors and not the tenants for life yet it was held by the Count that such an Action lay not for the tenant for life but an Assise of Nusance 〈◊〉 in grosse 〈◊〉 rent 33 The Lord Dacres lets certain land and stock to friends Dier 275. 49. 10 Eliz. who covenant to pay 100 l. per annum to him and his wife his heirs assignes during the term and also 2000 l. at a certain day for the marriage-portion of his daughter he dies his son within age suffers more then a third part of all his land to descend after the Feme dies And in this Case it was adjudged that the Quéen should not have the 100 l. per annum but the executors of the Feme because in nature and quality it is not a rent which goeth to the heir but a sum in grosse 81 In persons the Law looketh at the excellency of some and giveth them singular Priviledges and preheminences above others as to the King the Queen his Wife Noblemen and Peeres of the Realme also unto persons of holy Church Co. Inst pt 1. 21. b. 3. 1 If the King give Land to a man with a Woman of his kindred in Frank-marriage and the Woman dieth without Issue Frank-marriage the man in the Kings Case shall not hold it for his life because the Woman was the cause of the gift but it is otherwise
presently after his death and before office thereof found cast upon the King for in such Case it ought to be in some person or other and if any person enter into the Land and take any of the profits an information of Intrusion by the King may be perferted against him before office or seisure because the King immediately after the Tenants death is in actual possession and hath not onely a frank-tenement in Law as a Common person in such Case hath And as to that this diversity is taken that when the Kings Tenant dies in possession without heire so as in that Case possessio est vacua and in none there the Law adjudgeth the King unto whom no laches can be attributed in actual possession presently but when another is in seisin and possession at the time of the escheat so that Possessio plena est non vacua In that Case the King shall not be adjudged in possession The Kings Teâ—ant â—lien â—illein Mortmaine until that seisin and possession be removed as if the Kings Tenant be disseised and die without heire or if an Alien nee or the Kings Villein or the Alienee in Mortmain be disseised and die without heire and all that found by Office in those Cases the King shall not be in possession untill the possession and seisin of the terre-tenant be removed But if Land descend to the King after the death of his Father or of any other Collateral Ancestor the King shall be immediately in actual possession before entry or seisure So likewise if the King make a Lease for life or a gift in taile and the Lessée dies or the donée dies without Issue In that Case the possession shall be actually in the King without any entry or seisure and with this accords 9 H. 7. 2. 6. where it is expressely said that when none is in possession it shall be adjudged in the King according to his title and so the doubt which Stamf. makes Praerogative 53. b. is well resolved Condition â—emand 35 If the King make a Lease for yeares rendring Rent with Condition to be void upon non-payment of the Rent Co. l. 4. 73. a. in Boroughs Case the King shall take advantage of that Condition without any demand it being a thing undecent and against the dignitie of the King to wait upon his subject or to demand any thing of him it is otherwise if the King grant over his reversion For his grantée shall not take advantage of the Condition without demand of the rent this is by reason of a personal prerogative in this Case annexed to the person of the King and not in respect of the nature and qualitie of the Rent for that remaines the same whether paid to the King or to a subject upon the ground or elswhere c. â—wo Houses â—mised 36 Two houses are let to one man by one demise Co. l. 5. 55. b. 3. 56. a. 1. Knights Case rendring for the one 4 l. per annum and for the other 20 s. per annum with proviso that if the said Rent of 5 l. be arreare in part or in all then the Lessor to re-enter The Inheritance of these Houses afterwards escheats to the King â—he fold â—ent â—eare â—ndition who after grants the reversion of that upon which 20 s. per an is reserved to I. S. the Rent thereof is arreare In this Case the Patentée cannot enter for the Condition broken because by the severance of any part of the reversion all the Condition as to a Common person is intirely destroyed It is otherwise in the Kings Case for the Condition remaines intirely in the King with the reversion of the other House and that is in respect of his prerogative c. â—gs grants â—ourably inâ—â—ted â—ein â—en â—vowson 37 The Law makes a difference betwéen the Kings grants who is alwayes presumed to intend Ardua regni pro bono publico omnium Co. ibid. 36. a Knights Case Co. l. 7. 14 a. in Englefeilds c. and the grants of subjects who have leasure to attend their private affaires for the grants of a subject are alwayes interpreted most strongly against him that makes them but the Kings grants are alwayes taken with a favourable and beneficial interpretation so that no prejudice may happen to him by construction or implication upon his grant otherwise then was truly intended by it And therefore if the King grant Land to I. S. and his heires when in truth I. S. is the Kings Villein this shall not enfranchise the Villein by Implication There is the same Law of an alien nee 17 E. 3. 39. An Advowson of a Prebendarie holden of the King was aliened to an Abbot and his successors and the King grants to the Abbot and his successors that they shall hold the Prebnedary in proper use neverthelesse he shall seise the Advowson for alienation in Mortmaine and shall destroy the Appropriation for he shall not be outed of his right to the Advowson by Implication Debt Release And in 2 R. 3. 4. 21 E. 4. 46. 34 H. 6. If two be undebted to the King the King release to one of them this shall not discharge the other in 6 H. 7. 15. 11 H 7. 10. If the King release all demands right Restr to alâ—â— of Inheritance shall not be there by released 21 H. 7. 7. The King grants Lands in Fée upon condition that the grantée shall not alien this is good Howbeit in all these cases the Law is otherwise in the case of a common person c. Co. ibid. a. 4. Knights Case 38 In many cases the King that claimes by a subject Rent-secke distraine shall be in better case in respect of the dignity and prerogative incident by the Law to the Royal person of the King then the subject himselfe by whom he claims As if the King had a rent secke by attainder of treason or by grant c. he shall distraine for it not onely in the land charged but likewise in all his other lands and yet the subject by whom the King claimes shall not distraine for it at all If a subject hath a recognisance or obligation Recognisanâ— Oblig and afterwards he is out-lawed or attainted in this case the King shall seise all the land of the Counsor or obligor whereas he himselfe could have but a moity if a subject demise land rendring rent and a re-entry upon default of payment thereof in this case the subject shall not take advantage of such a condition without demand of the rent c. but if the inheritance of that land come to the King by Act of Parl. attainder grant Seise all Condition Demand Priority c. he shall take advantage of the breach of such a condition without demand of the rent F. N. B. 142. c. if the King purchase a Seigniory of which land was holden by posterity the King shall
trâ—â— and the Land descends to his Heir In this Case the Heir cannot distrain or avow upon the Tenant for life nor bring an Action of waste against him before Attornment there is the same Law also of the Assignée of such a Grantée c. Howbeit if such a Grantée die without Heir so that the Land escheats to the Lord of the Fée In that Case the Lord shall bring an Action of waste c. without attornment because he is a stranger and commeth in méerly in the Post Co ib. 338. b. 15 When a Reversion and a particular Estate A lease c. drowned or hath continâ—ance for the benefit of a stranger c. or a Rent and the Land out of which it issues c. happens to come into one and the same hand by Grant Surrender or otherwise if the interest of a stranger be therein concerned the particular Estate or Rent c. shall in consideration of Law either be drowned or continued when either the one way or the other the stranger may reap a benefit or prevent a prejudice Howbeit of Parties and Privies no such consideration shall be had Litt. §. 636. As if a Feme inheritrix take Baron and have issue a son and that Baron die and she takes another Baron and the second Baron lets the Land for life and after the Feme dies and the tenant for life surrenders his Estate to the second Baron c. In this Case the son may immediatly enter upon the second Baron for betwéen the Lessée and the second Baron the Estate for life is determined and so likewise for the benefit of the issue it shall be adjudged in Law to be Also if he in the Reversion after an Estate for life make a lease for years or grant a rent-charge c. and then the Lessée for life surrenders In this Case the lease or rent shall commence presently because it is for the benefit of the Lessée for years or the Grantée of the rent who are strangers c. that it should so do But if a Reversion be granted with warranty and the tenant for life surrender In this Case the Grantée shall not have execution in value against the Grantor who is a stranger during the life of the tenant for life for as to the Grantor the Estate for life notwithstanding such surrender shall in consideration of Law be conceived to have continuance lest such a surrender might work a prejudice to the Grantor that is a stranger So if tenant for life surrender to him in Reversion being within age he shall not have his age for that would be a prejudice to a stranger who is to become Demandant in a real action c. Also if tenant for life grant a rent-charge and after surrender yet the rent shall remain during the life of the tenant for life for otherwise it would work a prejudice to the Grantée of the rent who is a stranger c. and as to that purpose the reversioner cometh in under the charge If a Bishop be seised of a rent-charge in fée the tenant of the Land enfeoffes the Bishop and his successors the Lord enters for the Mortmain he shall hold it discharged of the rent for the Lord claimeth under the Mortmain and it is for his benefit that the rent should be extinct c. If a man maketh a lease to A. for life reserving a rent of 40 s. per annum to him and his heirs the remainder to B. for life the Lessor grants the reversion to B. in fée A. attornes In this Case B. shall not have the rent because although the fée-simple do drown the remainder for life betwéen them yet as to a stranger it is in esse c. and therefore B. shall not have the rent but his heir shall have it After assignment no action of debt against the exâ—ecuto or administator 16 If the executor of a Lessée for yeares assigne over his Interest Co. l. 3. 24. a. 2. in Overton Sydhals Case T. 37. El. in B.R. an Action of debt shall not lie against him for Rent due after the assignement So if the Lessée for yeares assigne over his Interest and die his Executor shall not be charged for Rent due after his death because by the death of the Lessée the personal privity of the contract as to the Action of debt in both Cases being determined the Executor becomes a méere stranger to the said Leases c. There is the same Law also of an Administrator as appeares P. 41 El. Rot. 2458. in C. B. Marrow Turpins Case Statute of 33 H. 8. cap. 39. 17 The makers of the Statute of 33 H. 8. cap. 39. Co. l. 7. 21. b. 3. in the Lord Andersons case whereby the heire in taile is chargeable with the Kings debts as well as the heire in Fée-simple was at the Common Law did not think fit to charge his alienée when the heire in taile before any processe or extent had bona fide aliened the Land for they had reason to favor the purchasor farmor c. of the heire in taile more then the heire himselfe because they are strangers to the debts of the Tenant in taile and come to the Land upon good consideration c. Rent 18 Lessée for yeares grants a Rent-charge and surrenders 1 El. 194. Finch 27. yet the Rent shall be payd during the yeares So if he in the reversion grant a Rent-charge during the terme and then the Lessée surrendreth unto him he shall pay the Rent during the terme for the stranger that is the grantée of the Rent for his benefit shall say that the terme continueth or that it is determined c. 86 Res inter alios acta alteri nocere non debet sed quando que prodesse potest Vide supra Max. 51. 43 62. â—â—e for life â—â—â—â—sion 1 If a man make a Lease for life Co. Inst p. 1. 319. a 4. and then grant the reversion for life and the Lessée attornes and after the Lessor disseiseth the Lessée for life and makes a feofment in fée and the Lessée re-enters this shall leave a reversion in the Grantée for life and another reversion in the Feoffee and yet this is no attornment of the Grantée for life because he doth no Act nor giveth assent to any which might amount to an attornment in law But res inter alios acta alteri nocere non debet c. â—onâ—r Donce Dis-continuâ—nce 2 If land be given in tail saving the reversion to the Donor Co. ib. 335. a. 1 and after the tenant in tail by his déed enfeoffes the Donor in fée this is no dis-continuance of the Estate tail because the reversion being already in the Donor it cannot by the feoffment of the tenant in tail be dis-continued but if a man make a gift in tail the remainder in tail reserving the reversion to himself In this
Inheritance coupled with such an authority may surrender by Attorney Also there is a diversity betwéen a general absolute power and authority as Owner of the Land as aforesaid and a particular power or authority by him that hath but a particular interest to make Leases for lives or years And thereforr if A be tenant for life the remainder in tail c. And A. hath power to make Leases for 21 years rendring the ancient rent c. he cannot make a lease by a letter of Attorney by force of his power because he hath but a particular power which is personal to himself alone as it was resolved in the Lady Greshams Case 24 Eliz. per Wray and Anderson then Iustices of Assise in Suffolk â—wer to make â—ases not in â—eir own â—me 14 When any hath authority as Attourney to do an Act Co. ib. 79. b 4. he ought to do it in the name of him that gives him such authority for he appoints the Attorney to be in his place and to represent his person and therefore the Attorney cannot do it in his own name nor as his proper act but in the name and as the act of him but gives him the Authority And what he doth otherwise is void So if Attorneys have power by writing to make leases by Indenture for years c. they cannot make the Indentures in their own name but in the name of him that gave them warrant c. 〈◊〉 Office of â—arshalsie 15 The office of Marshal of the Marshalsie cannot be granted for years because it is an Office of great trust annexed to the person Co. l. 9. 96. b 4. in Sir George Reynols Case and concerns the administration of Iustice and the life of the Law which is to kéep such as are in Execution in salva arcta custodia to the end they might the sooner pay their debts c. And this trust is individual and personal so that it shall not be extended to Executors or Administrators for the Law will not repose confidence in matters concerning the administration of Iustice in persons unknown 〈◊〉 an Office â— survivor 16 If an Office of trust be granted to two pro termino vitae suarum without more by the death of one of them he grant shall be void Co. l. 11. 3. b. 4. in Auditors Curles Case for it being an Office of trust no survivor can be thereof In like manner there can be no survivor in the Office of the two Auditors of the Court of Wards for the Statute of 32 H. which erects that Court provides that there shall be two persons c. who shall have a Iudicial voice and therefore in that case the King cannot appoint onely one because it is a matter of trust committed to two and the subject by that Act hath an Interest in it securiùs expediuntur negotia commissa pluribus Howbeit the King may constitute one at one time another at another time by several Patents And albeit he may so do yet he that is first constituted hath no judicial voice before the other be also constituted for it is provided by the Statute that two persons c. shall be one Officer And therefore in the same case although they be constituted by one and the same Patent with these words conjunctim divisim alterius eorum diutius viventis yet that shall serve for no other purpose then that the survivor shall be one of the persons to whom another may be added to make up that one Office c. â—tate 17 A licence to hunt in my Park or Walk in my Orchard extends but to himself not to his servants or other in his company for 13 H. 7. 13. Finch 31. it is but a thing of pleasure otherwise it is of a licence to hunt kill and carry away the Déer for that is a matter of profit â—y 18 Way granted to Church over any land 12 H. 7. 25. b. Finch ibid. extends not to any other but himself for it is but an Easement â—rnment 19 A Reversion granted to two Ioynt-tenants 11 H. 7. 12. b. Finch ibid. and the tenant attorns to one it is a void Attornment 20 If the Sheriff behead one that should be hanged it is felony 5 H. 6. 58. b. 4. Finch ibid. 4 E. 6. 68. b. Finch ibid. 21 The King licenceth one to alien the third part of his Land Licence and he alieneth all it is a void alienation for all Finch ibid. 22 A Lease is made to A. and B. for their lives A. dyeth Joyntenants limitation B. shall have all during his life for it is an Interest But if a Lease be made to I.S. during the life of A. and B. there if one of them die the Estate is utterly determined for that is a limitation Co. l 1. 173. b. 4. Digges Case 23 A. covenants to stand seised to the use of himself for life Revocation and Limitations strictly taken the Remainder to B. in tail c. which power to revoke and limit new Vses by Déed indented to be inrolled in Chancery A. afterwards revokes and limits by Déed indented and then levies a Fine and after that the Indenture of Revocation c. is inrolled in Chancery Here by levying the Fine before inrolment he hath extinguished his power of Revocation c. So also it had béen if he had made Feoffment of the Land for power of Revocation and limitation of Vses are to be punctually observed because strictly taken in Law And therefore also in the same case these words Indented to be inrolled are to be understood Indented and Inrolled Co. ib. 174. b. 2. 24 A. covenants with B. that in consideration B. will marry his Daughter Limitations exitnct he and his heirs will stand seised to the use of B. and his heires B. enters and disseiseth A and makes Feoffment in Fée A. re-enters and after B. marries his Daughter yet here the Vse doth not vest in B because he hath extinguished the limitation of the Vse to him by his Feoffment Dier 56. 18. 35 H. 8. 25 If a man be bound in an Obligation with condition to pay 10 l. to the Obligor at a day to come Obligationâ— Limitation payment and the Obligee delivers him an Horse or any other thing in satisfaction of the 10 l. and the Obligee accepts it the condition is performed for the Obligée may dispence with his own duty by that means but if the condition be that a stranger to the condition shall pay it or that the Obligor shall pay it to a stranger to the Obligation in such cases the Conditions ought to be strictly performed according to their several limitations otherwise the Obligations are forfeit for in such case an horse or other thing in satisfaction of the summe will not suffice because such limitations must be strictly observed Dier 56 20 c.
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
distrainable for that uncertainty because by that relation it becomes certaine Co. l. 8. 95. b. 4. in Math. Mannings Case Lampets Case Co. l 10. 47. a. 4 2 If lessée for yeares deviseth his lease to A. for life Term uncertaine made certaine albeit it is uncertaine how many yeares A. shall hold it yet is not the Devise void for such uncertainty because when A. dies it becomes certaine how many yeares A. was to hold it and then also it may be certainly known how many how many yeares the party that is to have the subsequent interest therein ought also to hold it Co. l. 9. 30. b. 4 The Abbot of Stata Mâ—rcellaes Case 3 When a Charter hath onely a general reference to other Charters which are upon Record it is as much in law Record implyeth certainty as if they had béen all particularly recited because they may be certainly known by the Record Co. l. 47. a. 1. The â—arl of Shrewsbuâ—ies Case 4 Qu. Eliz. grants to the Earle of Shrewsbury Grants uncertaine made certaine Senesch Dominiorum sive Maneriorum suorum de Mansfield Bolsover Harfley and no County is mentioned where they lie yet is not the grant for this uncertainty void because albeit the Quéen might have divers Mannors in the same or other Counties of the same Name yet because by some of the Clauses of the Patent or by other circumstances it might be understood what Stewardships she meant to grant the letters patents were adjudged good notwithstanding such uncertainty If the King by his letters patents grant to another all the Mannors and Advowsons which were Priors of A. being a Prior Alien or which were I. S. who was attaint c. such Grants are good albeit the County is not named because upon inquiry they may be certainly known as it is adjudged 32 H. 6. 20 21. So if the King grant to the Abbot and his Sucessors that the Monkes during the vacations shall have all the Temporalties of the Abbey this is a good Grant notwithstanding the uncertainty of not naming the County or Counties where they lie as it was adjudged 39 E. 3. 21. F. N. B. 33. T. So likewise in 23 E. 3. 21. b. The King grants unto the Quéen all the possessions of a Baronie escheated until Jo. of Gaunt might be able to govern himself and it was adjudged good c. For in all such cases if it may be discovered by any Clause of the Patent by any circumstance as the Tenants Name in whose possession it was or the like by the Particular or otherwise what it is that the King intended to grant it suffiseth And if such Patentée be impleaded and the Plaintiff by reason of such uncertainty plead non concessit and demanding Oyer of the Letters Patents demurres thereupon it shall be adjudged against the Plaintiffe For it is matter in fact what Mannors c. passe and for pâ—oof thereof such Clauses and circumstances as aforesaid shall be given in evidence c. 〈◊〉 Hospital â—â—rtaine â—â—ugh not â—â—lt 5 A piece of Ground or Soil whereupon an Hospital Co. l. 1e 32. a. 1 The Case of Suttons Hospital c. is intended to be built may in the Letters Patents of Incorporation be called an Hospital albeit there be no building at that time founded thereupon and that uncertainty shall not prejudice such a grant because of the possibility that it may be built thereupon by that meanes may be made certain â—â—erties passe â—â—ogh uncerâ—â—ine 6 If the King grant lands Co. l. 10. 65. a. 3 Whistelers Casâ— which have come to his hands before and grant over to the Grantée tales libertates privilegia jurisdictiones c. as he that was last seised of the Lands had here albeit the King knew not the certainty of the Liberties and Priviledges yet the grant is good and the grantée may require the Liberties and Priviledges that the other had before because that uncertainty may be reduced to certainty by inquiry or other circumstance Vide the Case de Strata Mercella Co. l. 9. 24. 18 El. Dier 351. â—idie unâ—â—â—taine made â—â—rtaine by â—â—â—stance 7 In Fogasses Case Pl. 6. 2. 4. 12 3. 17. a. 3. albeit the quantity of the Woad was not known when the Agréement was made with the Collector and so by consequent neither the subsidie what money should be paid for it yet because the Subsidie might afterwards be known by circumstance viz. by weighing whereupon the King might be entitled to an action for it the agréement was adjudged good and the Statute performed If one demise all his Acres in D. to I. S. for yeares rendring for every acre 12 d. the Lease is good because the certainty of the Rent may be known by a Survey of the Acres whereby the Lessor may be entitled to an action of Debt for the Rent if it be arrear If one give two acres to another Habendum the one for life and the other in Fée it is uncertaine which of them he hath for life and which in Fée but if afterwards the Grantée make feoffment of one of them he shall be said to have Fée in that ab initio So if one let black-acre and white-acre to another for life the remainder of one of them in Fée here it is uncertaine in which of them he hath fée but if afterwards he licence the Tenant for life to fell Trees in white-acre it shall be adjudged that he had the remainder of that Acre ab initio In Wheelers Case 14 H. 8. H. 14. H. 8. 17. Br. Condition 67. The Grant of a term upon condition that the Grantée shall obtaine the favour of the Lessor and shall pay so much as I. S. shall arbitrate was good when the condition was fulfilled and the second Grant was adjudged void And there it is holden fol. 21. that if one make a Lease for so many yeares as I. S. shall name here this is uncertaine at the beginning but if afterwards I. S. name 20 years it shall be good for 20 years from the beginning P. 17 E. 4. 1. So also in 17 E. 4. in trespasse for graine taken away there the plaintff and defendant had bargained that the defendant should goe to the place where it grew sée it if he liked it upon view he should take it paying the plaintiff 40 d. for every acre this was there holden a good contract notwithstanding the uncertainty of the quantity of the Graine and of the summe he should pay for it because upon the Circumstance of measuring it the certainty might appear And so there albeit this were a Conditional agréement and uncertaine yet it was held good Iustification if he had presently paid for it T. 9 H. 6. 27. Fitzh Grants 7. Br. Patents 4. when he carried it away In 9 H. 6. the King grants to the Dutchesse of York quondam Insulam c. cum
omnibus exitibus amerciamentis proficuis omnium gentium residen c. de infra Insulam praedict in quibuscunque curiis nostris emergentibus and there this grant is holden good for albeit the King knew not at first what issues or amerciaments would be forfeited yet because when they were forfeited H 5. E. 4. fo ultimo and Br. Patent 60. they might be certainly known the Grant was adjudged good So lâ—kewise in 5 E. 4. The King grants to Garter the Office of King of Heralds cum feodis proficuis de antiquo c. here in this Grant there was no certainty of the Fées and profits belonging to that Office yet was the Grant adjudged good because by inquiry they might be reduced to a certainty Also in 30 H. 6. The King grants all such Lands M. 30. H. 6. per Choke as came to him by Attainder c. This Grant contained no certainty yet it was held good because it might be reduced to a certainty So if the King will pardon all Riots here nothing is named in certaine yet is the pardon good It is holden in 21 H. 6. that P. 21 H. 6. 43. Fitz. Grants 40. Br. Grants 123. and Contract 13. Perck 17. c. if a Parson will grant all his tythe Wool of the next year it is a good Grant yet the quantity of the Wool is uncertaine at the time of the Grant So it is also where one grants to another all the perquisites of his Court If a man grant two acres as before the Habendum the one for life the other in fee in this case if the Tenant lose both these acres by default he may have a Quod ei deforceat for the one and a Writ of Right for the other and by that meanes the certainty of the Grant is determined If one grant a Rent-charge Lit. cap. Rents fo 40. Fitz. N. B. 152. a. the Grantée may avow or have a Writ of Annuity and whether of these he will have is maintainable and this Grant which was in that respect uncertaine at first is by that meanes reduced to a certainty and good So if one grant to another 20 s. or a Robe M. 9. E. 4. 36. in Debt and Abr. by Fitz. Der. â—9 Br. 12. Perck 17. here it is uncertaine which he shall have yet it being reducible to a certainty by the Will of the Grantor the Grant is good If I have two Horses in my Stable viz. a black and a white and I give unto I. S. one of these Horses this is uncertaine yet it is a good Grant because by the Election of I. S. it may be made certaine Dier 91. a. 11. 1 Mar. 8 If I give unto you so many of my Horses Uncertaâ—â— certaine bâ— gaines as may well be spared this is void for the uncertainty But if I give you one of my Horses albeit this is also uncertaine yet because you may make it certaine by your Election the Gift is good So if I promise to give for your Land so much as it is reasonably worth this is void for the uncertainty But if the judgment thereof be referred to a third person who doth adjudge it by that meanes it is made good c. 107 Res non per se invicem sed per pecuniam estimantur non pecunia per Res. Diversity of a Condition 1 There is a diversity Co. Inst p. 1. 221. b. 2. when the Condition is for the payment of money and when for the delivery of a Horse Robe Ring or the like for where it is for payment of money there if the Feoffée or Obligée accept an Horse c. in satisfaction this is good but if the Condition be for the delivery of a Horse Robe c. or c. There albeit the Obligée or Feoffée accept money or any other thing for the Horse c. it is no performance of the Condition A diversity of Conditions when to do a Collateral act and when to pay money 2 In Peytoes Case in the 9 Report there is a difference taken Co. l. 9. 79. a. 2. betwixt a Condition in a Déed to a Collateral act as to be bound in a Statute to make a Feoffment to render a true Account and the like For there accord with Execution for money or other thing is not satisfaction to save the Forfeiture of the Condition Dier 1. 4 H. 8. 56. 18. 35. 7 H. 8. for the Contract being made by writing to do such a Collateral act cannot in such case be altered without writing according to Rule 27. And thus it is holden in 12 H. 4. 23. 9 H. 7. 4. 4 H. 8. Dyer 2 c. But when the Condition in the Déed by the original Contract of the parties is to pay money there by agréement of the parties any other thing may be given in satisfaction of the money For as the Philosopher saith Nummus est mensura rerum commutandarum which agrées with the Rule above And in this sence it is true quòd pecuniae obediunt omnia But so it is not of other things And it matters not whether the money mentioned in the Condition be a Collateral summe or parcel of the Obligation or not for if a man be bound by Obligation in 200 Quarters of Wheat upon Condition to pay 20 l. the Obligor may by agréement betwixt them give unto him a Horse Gold-ring c. in satisfaction of the money albeit in that case the money be Collateral to the Obligation And therefore if a man enfeoff another by Déed upon Condition that the Feoffor shall pay a certaine summe of money c. the Feoffor may by agréement betwixt them give the Feoffée a Horse Gold-ring or the like in satisfaction and yet the money in this case is Collateral having regard to the land for if tender be made and refusal he shall never be compellable to pay the money and therefore it is méer Collateral Quia reprobata pecunia in hoc casu liberat solventem And with this agrées Littl. fol. 79 in the Chapter of Conditions So also if a man be bound by Obligation in 100 Quarters of Wheat upon Condition to pay 50 Quarters he cannot give money or any other thing in satisfaction thereof because the original Contract was not for money So as when money is to be paid any other thing may be paid in satisfaction but so it is not of any other things for then neither money nor any other thing can be given in liew thereof 108 It favoureth mutual Recompence Fee-simple without the â—ord Heires 1 Vpon partition betwéen Coparceners of Lands in Fée-simple Co. Inst p. 1. 9. b. 4. 169. b. 4. Litt. §. 252. if the one for owelty of partition grant a Rent to the other generally the Grantée shall have a Fée-simple in the Rent without the word Heires because the Grantor hath a Fée-simple in consideraon whereof he granted
because there is not Quid pro quo which ought to be in every contract 46 The servant of A. was arrested in London upon Trespass Assumpsit and two Dier 272. 31. 10 El. who knew his Master bailed him afterwards A. promised them for their friendship to save them harmlesse from the damages and costs c. In this Case if they be afterwards charged an Action upon the Case lyeth not because there was no consideration for the bailing was on their own heads and was executed before the Assumpsit But if the Master had requested it before and assumed after ut supra it séemes to be otherwise As in considerarion that you have married my Daughter at my request I will give you c. This is a good consideration because the marriage ensued my request Hob. 6. 4. 18. 88. 47 Vide Hob. 4. Lané Malorie in Assumpsit Assumpsâ—â— the consideration was the delivery of two Statutes Staple to the Defendant Also Hob. 18. Woolastons Case in Assumpsit the consideration was a longer day And 88 Nichols Raynored the consideration was a promisse for promisse which must be at the same time otherwise they are nuda pacta Likewise 88 Brinsley and Partridge the consideration a former debt promised upon accompt Hob. 118. Shelton 48 Every Rate or modus decimand Tithe by prescription is a discharge of the natural title 109 De minimis non curat Lex Co. l. 5. 56. b. 3. Knights Case 1 In Office by commission under the Exchequer seale is enough to entitle the King to a Chattle Chequer seale Co. l. 6. 42. a. 2 S. Anth. Mildmays Case 2 The Law favours Estates taile in possession but gives no regard to Remainders or Reversions expectant upon an Estate in taile Rev. or Râ— upon an thâ— taile not â—luable for it is adjudged in Caples Case in the 1 Report that if Tenant in taile suffer a Common Recovery that shall not onely barre the Estate taile and the Remainder or Reversion but also a Rent which he in Remainder or Reversion hath granted So likewise was it adjudged in 12 El. betwixt Terling and Trafford in the Kings Bench that a Reversion or Remainder expectant upon an Estate taile shall not be assets to the heire in debt upon an obligation made by his Father Also Hil. 14 El. it was resolved by all the Iustices of C. Pl. in Copwoods Case that if there be tenant in taile the remainder to the right heirs of I.S. and Tenant in taile suffer a common recovery I.S. being then in life this shall barre the remainder albeit it were in abeyance and consideration of Law which the Law usually favours but de minimis non curat lex â—â—se for years â—â—eeble â—â—te 3 If Lessée for yeares pay a Rent seck Co. l. 6. 57. a. 4 Bredimans Ca. it is not seisin required in an Assise against the Tenant of the Frank-tenement in respect of the meanesse and imbecilitie of his Estate For at the Common Law he could prejudice nor draw into question the Estate of the Frank-tenement nor before the Statute of Glocester could be received albeit a recovery were had against the Tenant of the Frank-tenement by agréement neither could he falsifie a recovery before the Statute of 21 H. 8. and all this by reason of the Féeblenesse of his Estate 〈◊〉 attaint 4 In Trespas the Defendant pleads Villenage in the Plaintiffe and he was found frée and had 2 s. damages given him F. N. B. 107. l In this Case the Defendant shall not have an attaint for the finding of the Plaintiffe Frée because the damages are so small â—dition in 〈◊〉 broken 〈◊〉 5 There is a condition in Law annexed to the keep-ship of a Park Litt. §. 378. Co. Inst p. 1. 233. a. 4. viz. that if he do not well and lawfully kéep the Park it shall be lawfull for the Grantor and his heires to enter But this must be understood with a distinction For if the kéeper doth not attend on the Park one two or c. dayes this is no forfeiture of his Office but if in his default any Déere be killed whereby a damage comes to the Lord that is a forfeiture For non-user of it selfe without some special damages is no forfeiture of private Offices but non-user of publike offices which concern the administration of Iustice or the Common Wealth is of it selfe a cause of forfeiture â—â—covery not â—lable by 〈◊〉 outâ—â—y otherâ—â— 6 If a Recovery be had against a man in a praecipe by default when he is out of the Realme Co. ib. 260. b. 3 he shall not as it séemes avoid it by writ of Error for so a man might be infinitely delayed of his Frée-hold and Inheritance whereof the Law hath so great regard But out-lawry in a personal Action shall be avoided in that Case quia de minimis non curat Lex and otherwise he should be without remedy whereas in the other Case the Tenant may resort to his writ of higher nature or a quod ei deforceat for his remedy â—â—â—sion upâ—â— Estate 〈◊〉 of no vaâ—â—â— Law 7 If Lands be given to a man in taile Co. ib. 172. b. 3 who hath as much Land in Fée-simple and he die leading Issue two Daughters who make partition so as the Land in Fée-simple happens to the youngest Daughter Here if the youngest Daughter Alien the Fée-simple Land and die her heire shall enter for a pur part upon the entailed Lands And so it is also if the youngest Daughter had granted her part to another in taile For the Reversion expectant upon an Estate taile is of no account in Law because it may be cut off by tenant in tail â—â—covery 〈◊〉 or deâ—ging of â—â—â—aâ—y 8 If a man be seised of Lands in Fée and hath Issue two Daughters and make a Gift in taile to one of them and die seised of the Reversion in Fée which descends to both Sisters Co. Inst p. 1. 174. b. 1. and the Donée or her Issue is impleaded she shall not pray in ayde of the other Copercener either to recover per rata or to deraigne the Warranty paramount for that the Reversion is not of any estéeme in Law and the other Sister is a Stranger to the Estate Taile whereof partition neither was nor could be made Hob. 214. 9 The Earle of Somerset had obtained a grant of the licence of wines for yeares and tooke it in the name of Sir John Daccombe Wine Licence in trust for him Now the Question was whether or no by the Earles attainder of felony the lease was forfeited And by the opinion of all the Iudges it was forfeited and afterwards it was so resolved also in the Exchequer viz. in Cases of Chattels real and personal and things in Action of that sort 110 In Actions the Law yeeldeth favour when for the doing of them there is
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.
being heir in appearance and he is not bound to dis-able himselfe â—â—ministratiâ—â—â—oid and â—â—able 6 If an Ordinary of a Diocesse commits Administration of Goods Co. l. 5. 29. b. 4. in Princes Case Were and Jefferies Case when they are bona notabilia such Administration is méerly void but Administration committed by the Metropolitan when the defunct had not bona notabilia is onely voidable because he hath Iurisdiction in all the Diocesses within the Province and therefore hath sufficient colour to do it Co. l. 6. 65. a. 3. in Sir Moile Finches Case 7 In 41 E. 3. 19. Rich. Tompson had Issue by Joan before mariage one Agnes and after he marries Joan and makes feofment in fée A Bastard takes by yâ— chase and retakes the Estate to himselfe for life remanere inde Agnetae filiae praedict Rich. Johanne and it was agréed that this was a good remainder without any averment that she was known to be their Daughter for albeit by the Common Law she was not their Daughter yet in as much as she had colour by the Ecclesiastical law which saith subsequens matrimonium tollit peccatum procedens this colour is sufficient in Case of a conveyance to make the remainder good and so note the diversity betwixt descent and purchase c. Co. l. 8. 101. per tout in Sir R. Lechfords Case The better opinion per Coke 8 If there be Bastard eigne and Mulier puisne Mulier beyonâ— sea c. and the Father die seised the Mulier being beyond Sea within age in Prison or of non sanae memoriae and the Bastard enter and continue in peacable possession of the Lands and hath Issue and dies and the lands descend to his Issue here the right of the Mulier is for ever bound because he hath colour of legitimation by the Law of Holy Church and the Common Law respects legitimation before the above-said Imperfections Vide plus ibid. Co. l. 10. 76. b. in the Case of the Marshalsea 9 If a Sheriffe holding his Torne after Michaelmas moneth takes there an Indictment of Robbery it is utterly void Things done by warrant contra being coram non judice But if the Court of the Common Bench in a plea of Debt award a Capias against a Duke Earle or c. which by the Law lyeth not against them and that appeares in the writ it selfe here if the Sheriffe arrest them upon the Capias albeit the writ be against Law yet because that Court hath jurisdiction of the cause the Sheriffe hath colour to do it and shall be excused and herewith accords Dier 60. b. 38 H. 8. So also if a Iustice of Peace make a warrant to arrest one for Felony who is not indicted albeit the Iustice erre in granting the warrant yet he that makes the arrest by force of that warrant shall not be panished by writ of false imprisonment because the Iustice is Iudge of the Cause Plow 83. b. 1. in Strange and Crokers Case 10 In 9 H. 6. it is said that if I grant to B. Maintenance that if my Tenant for life die during my life that then B. shall have the Land for 10 yeares Here if my Tenant be impleaded B. may lawfully maintaine in respect of the Colour of title he hath to the Land Co. Inst p. 1. 148. b. 4. 11 Entry into Religion and profession of a Disseisor shall not cause a descent to toll the entry of the Disseisée Bastard Mulier because it is the Disseisors owne Act and not the Act of God as death is yet if there be Bastard eigne and Mulier puisne and the Bastard before claime enter into Religion it is said such a discent shall toll the entry of the Mulier by reason of the colour of title that the Bastard had to the land and such an heire shall also have his age 114 It prizeth the Acts of God and of the Law more then those that are done by the party Co. Inst p. 1. 18. a. 4. 1 Fée-simple being as Littleton saith the largest Estate of inheritance that is Two Fee-simples one Fée-simple cannot depend upon another by the grant of the party as if Lands be given to A. so long as B. hath heires of his body the Remainder over in Fée here the Remainder is void yet in several persons by Act in Law a reversion may be in Fée-simple in one and a Fée-simple determinable in another by matter ex post facto as if a Gift in taile be made to a Villein and the Lord enter the Lord hath a Fée-simple qualified and the Donor a reversion in Fée but if the Lord enfeoffe the Donor now both Fée-simples are united and he hath but one Fée-simple in him â—â—ires female â—ill not take 2 When a man giveth lands to another man and the heirs female of his body dieth having issue a son a daughte◠〈◊〉 daughter shall inherit for the will of the donor the Stat. working 〈◊〉 it Co. ib. 24. b. 3 25. b. 3. 26. b. 4. which is upon the matter an act in law shall be observed but in case of a purchase it is otherwise for if A. have issue a son a daughter a lease for life is made the remainder to the heirs females of the body of A. A. dieth the heire female can take nothing because she is not heire for she must be both heire heire female which she is not because the brother is heire and therefore the will of the giver cannot be observed because here is no gift and therefore the Statute cannot work thereupon so it is if a man hath a son and a daughter and dieth lands are given to the daughter and the heirs female of the body of her father the daughter shall take nothing but an Estate for life because there is no such person she being not heire but where a gift is made to a man and to the heirs female of his body there the Donée being the first taker is capable by purchase and the heire female by discent secundam formam doni â—â—tes may 〈◊〉 altered 3 Regularly Estates cannot be altered from one to another Litt. §. 33. Co. ib. 28. a. unlesse all that have interest joine in the alteration thereof but by the Act of God estates may be changed without any act done by the parties that are interessed as if lands be given to a man and the heirs that he shall engender of the body of his wife here the wife hath nothing and the man is Tenant in special taile therefore in this Case if the Feme die without issue on her body begotten by the Baron the estate in special tail is by the act of God charged into tenancy in tail after possibility of issue extinct â—â—ging of â—â—tes 4 If a feofment in fee be made to the use of a man and his wife for the term
upon an Infant and present Usurpation upon an Infant which Infant hath an Advowson by discent and after the Incumbent die the Infant shall present and if he be disturbed he shall have an Assise de darreine presentment But if the Infant purchase the Advowson and present and after the Church is void and a stranger presents and usurpes upon the Infant and after the Incumbent dies in this Case the Infant shall not have an Assâ—â— of darreine presentment but shall be put to his writ of right because in the first Case he is in by Act in Law viz. discent but in the last Case by act of the party F. N. B. 34. s. 52 If a Feme purchase an Advowson and takes Baron A Feme hath an Advowson and the Church is void and a stranger presents and the Baron suffers this usurpation here by this usurpation the Feme shall be out of possession after the six moneths past and shall be put to her writ of right of Advowson if she had presented before but if she had not presented before she is without recovery howbeit the Law is otherwise where the Feme hath the Advowson by discent or by course of inheritance which is an Act in Law Gâ—ant good without acâ—â—eament 53 The Grantée of a Reversion by Fine shall not have a Writ of Waste against the Tenant before the Tenant hath attorned Fitz. N. B. 60. I but if a Reversion escheat to the Lord he shall have a Writ of Waste against the Tenant without any Attornment Or if the Lord of a Villain claim a Reversion that the Villain hath here also the Lord shall have a Writ of Waste against the Tenant if he make Waste without Attornment So also if the King grant a Reversion by his Letters Patents the Grantée shall have a Writ of Waste without Attornment because the Grantée being in by matter of Record he is conceived in by act of Law in like manner if before or since the Statute of Wills a man deviseth a Reversion to one in Fée the Devisée shall have a Writ of Waste against the Tenant without Attornment for before the said Statute he was in by Custom and since the Statute by force of the same Statute which are acts in Law A writ of â—esne 54 If Tenant for life be distrained by the Lord Paramount for Services Fitz. N. B. 136. g. a Writ of Mesne doth not lye for him against him in remainder or reversion but against the Mesne yet in this Case Tenant in Dower shall have a Writ of Mesne against the Reversioner because she comes to her Estate by Act of Law 55 In real Writs original if one be summoned and severed Co. l. 10. 134. b 2. in Read Redmans Case and afterwards dies which is the Act of God this shall abate the Writ but the taking of Baron or Entry into the Land by the party that is so summoned and severed shall not abate the Writ because these are acts of the party and the Writ by such acts where there is no summons or severance becomes onely abatable Guardian may â—ead without â—ewing a Deed. 56 A man cannot plead in any action Littl. §. 365. Co. Inst p. 1. 225. b. 4. that the Estate was made in Fée Fée-taile or for life upon Condition without vouching a record thereof or shewing a Writing under Seal proving the same Condition but if a Guardian in Chivalry in the right of the Heir entreth for a Condition broken he shall plead the Estate upon Condition without shewing of any Déed because his Interest is created by the Law And so it is also of a Tenant by Statute Merchant or Staple or by Elegit Howbeit the Lord by Escheat Co. ib. 226. a. 1 although his Estate be created by Law shall not plead a Condition to deseat a Frée-hold without shewing a Déed because the Déed doth belong unto him Vide supra Ru. 34. 〈◊〉 â—iry 57 Vide Max. 148. 21. 58 An Action of Debt for a rent reserved upon a Lease for yeares is alwayes grounded upon a privity and if the privity fail Dyer 4. b. 3. 24 H. 8. the action also failes and so it is adjudged in 18 H. 6. that if a man make a Lease for yeares rendring rent albeit the Lessee never enters or occupies the land yet the Action of Debt lyes for the privity But in 9 H. 6. a man makes a lease for yeares rendring rent the Lessor grants the reversion to a stranger the grantée shall never have an action of debt for the rent because he was not privy but a stranger to the first Lease Howbeit when the Law makes a privity it is otherwise as if a Lease be made to one for yeares rendring rent and the Lessée makes his Executor and dies an action of Debt lies against the Executor for the rent because he is made privy by the Law â—portion â—ct of rent 59 At the Common Law there could be no apportionment of rent Dyer ib â—â— by the act of the party but onely by act of Law for if the Tenant before the Statute of Quia Emptores terrarum Anno 18. E. 2. had made a Feoffment in Fée of part of the Tenancy the Lord might distrain in that part for all the rent but at the Common Law if a man had made a Lease for yeares of two acres of Land the one in Borough English and the other in Gavelkind and had issue two Sonnes and died In this Case this rent should be apportioned because this rent discended to them by Course of Law So if Lessée for years make a Feoffment of parcel of the Land leased and the Lessée enter for the Forfeiture into that parcel In this Case also the rent shall be apportioned because this Title of Entry is given to the Lessor by the Law Dyer 246. 68. 8 Eliz. 60 After the Teste of a Writ of Covenant Fine of Feme Sole and the Dedimus potestatem and the Conusance of a Fine taken of a Feme Sole and before the day in Bank to record and engrosse the Concord the Feme takes Baron yet it shall be recorded and engrossed at the Fine of the feme sole for she had done all that in her lay to do And such a fine shall bind the feme and her Heires and also the Baron as it séems for the marriage of the feme was her own Act It had béen otherwise if in that mean time she had died being the Act of God for then the Writ of Covenant had abated 115 Utique fortior est dispositio Legis quam hominis Co. Inst p. 1 310. a. 1. â—87 b. 2. 1 If a reversion be granted to a man and a woman Attornment 〈◊〉 Baron and Feme they are to have moities in law but if they inter-marrie and then attornment is had they shall have no moities and yet by the purport
donative be disturbed the Patron shall have a Quare Impedit of this Church donative and the writ shall say Quòd permittat ipsum praesentare ad Ecclesiam c. and declare the special matter in his declaration And so it is also of a Prebend Chantery Chappel Donative and the like and no laps shall incurre to the Ordinary except it be so specially provided in the foundation Neverthelesse if the Patron of such a Church Chantery Chappel c. Donative doth once present to the Ordinary and his Clerke is admitted and instituted it is now become presentable and never shall be donative after and then also laps shall incurre to the Ordinary as it shall of other benefices presentable but a presentation of such a Donative by a Stranger and admission and institution thereupon is méerly void Co. ib. 367. a. 3 25 If the Tenant make a lease of the land to the Lord for yeares Segniory extinct or the Lord be Guardian of the Land or have it by Statute or Elegit and then make feofment in fee thereof to a Stranger Here albeit as to the Lessor this is a disseisin yet hereby the Lord hath extinguished his Seigniory Co. ib. 170 b. 1. 26 Husband and wife Tenants in special taile Parcenerâ— of certaine land in fée have issue a Daughter the wife dieth the husband by a second wife hath issue another Daughter and dies both the Daughters enter where the eldest is onely inheritable and make partition in this case the eldest daughter is concluded during her life to impeach the partition or to say that the youngest is not heire So likewise I. S. seised of lands in fée hath issue two daughters Rose bastard eigne and Anne mulier puisne who enter and make partition in this Case Anne and her heirs are concluded for ever â—â—â—dition to â—â—le farther â—â—ance by a 〈◊〉 not letâ—â—d 27 A. is bound with Condition that he and his son shall at any time after make better assurance of land sold to B. B. tenders a writing unto them the sonne being not lettered destres time to be advised of it Co. lib. 2. 3. b. Marsers Case which being denied he doth not deliver it In this Case albeit a man unlettered is favoured in the Law so as it is not his Act if the writing be not read unto him or rightly expounded although he deliver it yet here because A. undertooke that his son should do it and no certaine fine was limited for the doing thereof the bond in this case is forfeit for the time for doing of it was peremptory â—â—n not letâ—ed seales a â—ed 28 A lay-man not lettered is not bound to deliver a déed Co. lib. 2. 9. Thorough-goods Case if there be not a person present that can read or expound the déed to him in such language as he understands neither is he bound thereby if it be read or expounded to him in another manner then the words and matter thereof import and it concernes the party that should take it to sée that done if the party that should deliver it require the same but if the party that shall deliver the writing require it not to be done he shall be bound by the déed although it be indited contrary to his meaning Copi-hold â—â—rict 29 The King grants a lease of lands held of him by Copy to A. who assignes to the Copi-holder Co. l. 2. 17. a. 4 Lanes Case the King grants the reversion in fée to B. the terme for years expires here the entry of B. is lawfull for by the acceptance of the assignment of the term the copi-hold is determined 〈◊〉 tenants â—y prejudice 〈◊〉 another 30 As to the profits of the frank-tenement one joint-tenant may prejudice another for there is a privity and trust betwixt them Co. l. 2. 68. a. 3 per Popham in Tookers Case and therefore if one of them take all the profits of the land or all the Rent the other hath no remedy for the Law imputeth it to his folly to joine himselfe in Estate with such a person as will breake his trust So likewise if there be two Lords and a Tenant of land holden by Knight-service and the Tenant die his heire within age here the Lords have Election either to seise the Ward or to distraine for the services and so to waive the Ward as it is agréed in 1 E. 3. But in this Case if one of them seise the Ward and the other distraine for the services he that first seiseth or distraines shall bind the other â—eâ—â—ent upâ—â— Condition â—â—en 31 If A. enfeoffe B. of a Mannor with an Advowson appendant upon Condition that A. shall grant B. the Advowson during his life A. dies before he grants it In this Case the Condition is broken For when the feoffée or grantée upon Condition is to make an Estate to the feoffor or grantor and no time is limited for the doing thereof regularly it is true that the feoffée hath time to do it during his life if the feoffor or grantor do not hasten it by request for upon request and a day or time limited when he will have it done the feoffée or grantée ought to do it accordingly but if no Request be made and the feoffée or grantée who ought to performe the Condition die in this Case the Condition is broken for he hath not performed the Condition within the time prescribed to him by the Law which was during his life But this general Rule admits some exceptions which neverthelesse are agréeable to this Maxime for in this Case of an Advowson A. hath not time during his life albeit no request be made but also upon this contingent viz. if no avoydance fall in the meane time for if the grantée stay until an avoydance fall then ipso facto the Condition is broken for then B. cannot have the whole effect that by the re-grant he ought to have because that is to have all the presentations during his life the Advowson is become in another plight then it was in before So if A. enfeoffe B. the 1 of May upon condition that he shall grant to B. an Annuity or Rent during his life payable yearly at Mich. and La. da. in this Case the feoffée hath not time during his life to make this grant but ought to do it before Mich. for otherwise he shall not have the Annuity or Rent during his life and it may be collected upon the Booke of 14 E. 3. tit Debt 138. that in Case of the grant of a rent he shall not have time during his life Likewise if two not married be enfeoffed upon Condition to re-enfeoffe the Donor or feoffor c. and one of them die yet the other may perform the Condition but if he that survives hath a wife then is the Condition broken for if he made the re-enfeofment yet shall his wife be endowed And in all these Cases and the
cause of his demurrer that if there were any other matter in the declaration whereof the Defendant might have advantage he could not take any benefit or advantage thereof Pl. Co. 84 b. 3. in Partridge and Strange Crokers Case 72 In a count or declaration if the Plaintiffe recite a Statute Count abaâ—â— by mis-recâ—â— which he néeds not do being a general Statute whereof the Iustices are bound to take conusance in such Case if he mis-recite it as in the date or otherwise his count shall abate for though it was not requisite to recite it yet he making use thereof by way of recital he ought to recite it as in truth it is because then he hath grounded his action upon the Statute by him recited where it appeares to the Court Iudicially that there was no such Statute at that time and so he hath abated his count by his own shewing c. Co. Inst p. 1. 207. a. 2. 73 If feofment be made upon Condition Tender and refusal that the feoffor shall pay a certaine sum of money at such a day c. if tender of the money be made accordingly and the feoffée refuse to receive it by this the feoffor and his heires may enter c. And then the feoffée is without remedy to recover the money at the Common Law because it was his folly that he would not receive it when he might So if an obligation of 100 l. be made with Condition for the payment of 50 l. at a day c. and at the day the obligor tender the money and the obligée refuse it In this Case albeit in an Action of Debt upon the obligation the 50 l. may be received because it is still a duty and parcel of the obligation and the obligée hath remedy by Law for the same according to the Rule Liberata pecunia non liberat ofterendum yet if the Defendant plead the tender and refusal wherein he must also say uncore prist and tender the money in Court if the Plaintiffe will not then receive it but take issue upon the tender and the same be found against him he hath lost the money for ever because he hath made two refusals when he might have had it â—cceptance of â—ent 74 C. purchaseth a Copi-hold of A. to him his wife and their childe for their lives Dier 30. 207. 28 H. 8. A. le ts the franck-tenement of the soile by Déed indented to B. for his life reserving Rent and livery and seisin is made accordingly Afterwards A. levies a fine sur conusance de droit come ceo c. to C. of the same land and C. accepts the Rent of B. In this Case it séemes that by the acceptance of the Rent of B. the Copihold of C. is gone So if a Disseisor make a lease for life reserving Rent and after grant the reversion to the Disseisée and he accept the Rent of the Lessée he shall never after oust him Quod fuit concessum per quosdam â—â—â—viledge 75 One of the Clerkes of the Chancery was sued in the C. B. and proces continued till the exigent Dier 3 3. 18. 28 29 H. 8. and the Defendant who was the Clerke sues a supersedeas to the Sheriffe quia improvidè and after he sues a writ of priviledge out of the Chancery directed to the Iustices of the B. reciting the priviledge of Chancery and requires the Iustices to surcease In this Case the priviledge was dis-allowed and the Clerke put to answer because the Court was lawfully seised of the plea by the Act of the Defendant himselfe for in as much as he sued out the supersedeas quia improvidè he thereby affirmed the jurisdiction of the Court for that every supersedeas quia improvidè recites the Defendants appearance in Court by an Attorney and names him and therefore it was his own default But if he had sued such a writ notwithstanding the exigent the priviledge had béen allowed him and then after the writ of priviledge come to the Iustices they ought to have sent a special supersedeas to the Sheriffe of the Out-lawry reciting the priviledge And this resolution agréed with Presidents shewed in Court Doâ—er imperâ—â—… plea. 76 In Dower the issue was Ne unque seisie que Dower luy puit Dier 41. 1. 30 H. 8. and a Déed of feofment made unto the Baron was by the Demandant given in evidence to the inquest and produced in Court whereunto it was answered that before the feofment the Baron was seised of land to him and his former wife in special taile and that after he made discontinuance and re-took the Estate in fée by the feofment afore-said and of such Estate died seised whereby the heire who is Tenant in taile is remitted and therefore the second Feme could not be endowed in this Case albeit the matter alleadged might have a voided the Dower if it had béen specially pleaded yet here the issue being onely ne unque seisie c. the Iustices were of opinion that the Iury ought to find for the Demandant c. se … is 77 If A. plant Conies in his owne ground which increase to such a number that they destroy the land of B. next adjoyning Co. l. 5. 104. b. Boulstones Ca. in this case B. cannot have an action upon the case for the damage he sustains by them for the property of them remaines no longer in A. then they remaine within his Warren and when they come upon the land of B. he may lawfully kill them because then they are his if he can catch them and it is his own fault if he do not take them 〈◊〉 to be of â—ounsel in a … s owne â—â—â—se 78 This Maxime teacheth us Co. Inst p. 1. 377. b. 4. that it is not safe for any man be he never so learned to be of Counsel with himselfe in his own Case but to take advice of other learned men and the rather because the phisautia and self-opinion which is in man by nature so obscures his understanding that he can hardly give a right judgement of things that concerne himselfe Non prosunt dominis quae prosunt omnibus artes and in suo quisque negotio habitior est quam in aliena And therefore in the new inventions of Iustice Richel an Irish-man in R. 2. time and of Thirming in H. 4. time Litt. §. 720. time there were found many imperfections and Richel was overthrowne in an Action upon the Case by his owne shewing in 2 H. 4. fol. 11. vide Co. l. 1. 88. a. 2. in Corbets Case Dier 69. b. 36 5 E. 6. 79 A man enfeoffs two upon Condition A Conditioâ— severable that the feoffées before a certaine day shall make an Estate again to the Feoffor for term of his life the remainder over in fée to a stranger one of the feoffées makes an Estate accordingly in this Case albeit the Condition was
hath a good lawful right and yet if A. being out of possession granted away the land or contracteth for it with another he hath now made his good right of entry pretenced within the Statute of 32 H. 8. 9. and both the grantor and grantée within the danger thereof A forciori of a right of Action Quod nota â— joynt grant â—f a Rent-â—â—nge 6 A. enfeoffes B. upon Condition A. and B. joyne in the grant of a Rent-charge out of the land to C. the Condition is broken A. enters Co. l. i. 146 a. 2 Anne MayoÌ„es Case In this Case it was objected that this grant enured as the grant of B. and the confirmation of A. which confirmation could not alter the quality of the Estate Howbeit it was resolved and adjudged that the land was chargable with the Rent and one of the reasons alleadged for it was that every fée may be charged one way or other and when both joyne in the grant that have the whole interest in the land it must néeds be charged with the Rent for if it cannot be done by their joint grant there is no other way to do it Co. l. 3. 60. b. 1. in Lincolne Colledge Ca. 7 A. and B. fâ—ynt-tenants for life An entail docked by 〈◊〉 lease and to the heirs of the body of A. intermarry and have issue C. who after the death of A. disseises B. and suffers a Common recovery and B. releaseth with warranty and dies In this Case the Estate taile had béen barred albeit B. had not released with warranty for it is reasonable that the entaile should be cut off this way as well as by joyning in a fine or surrender of B. and recovery after against the heire because they both had power to barre the Estate taile one way or other having the whole Estate in them subject to be docked Co. l. 10. 48 b. 4 in Lampets ca. F. N. B. 152. g k. 8 Littleton saith Joinder of dâ—visees in a grant c. of a lease cap. Discout fol. 144. that it is a Maxime in the Law that land in fée-simple may be charged one way or other So also it is a Maxime in the Law that every right title or interest in praesenti or futuro by the joyning of all that may claime any such Right Title or Interest may be barred or extinct And therefore at the Common Law if the Donor and Donée had joyned in the grant of a rent-charge and after the Donée had died without issue and the fée had reverted to the Donor that he should have held it charged and yet he had but a possibility at the time of the charge made Because all those who had any Estate or interest therein in praesenti or in futuro did joyne in the charge So likewise à fortiori if they had joyned in a lease for yeares and the Donée had died without issue the lease had béen good against the Donor In like manner Lessée for 400 yeares devises for life to his executor The principal Case there the remainder to M. and dies M. maries her husband and she releases to the Executor In this Case albeit M. had but a possibility yet a release by her Husband and her to the Tenant in possession vests the whole interest of the term of 400 years in the Executor because none other had interest in praesenti or in futuro but those that joyned in the release and both consented to it the one in releasing and the other in accepting thereof For if they had joyned in an assignment of the term it had also béen good causa qua supra And in Case both joyne in a grant it is the grant of him that hath the term and the release or confirmation of the other Co. ib. 49. a. 3. Pasc 4 E. 6. in Co. Ba. 9 If a man make a lease to another for 21 years Lessor and Lessee joine if the Lessée shall so long live here if the Lessor and Lessée joyne in the grant of a term by Déed to another and after the Lessée die within the term so granted the grantée shall enjoy the land during the residue of the term absolutely Fuit tenus per Montague Hales Molineux Browne Co. l. 10. 101. a. 3. in Bewfages Case 10 In the Statute of 23 H. 6. 10. which enjoynes Sheriffes to take baile of prisoners within their guard for appearance upon reasonable suerty of sufficient persons c. Here these words Security to the Sheriffe Reasonable suerty of sufficient persons do not so restraine the Sheriffe but that he may if he please take suerty of one single person for the Statute leaves it to his discretion to take such security as he thinks fit because he is to be amercied if the party appeare not at the day in the writ and therefore it is at his peril if he take not good security of the party arrested and he hath liberty to waive that power by taking lesse security then the Statute mentioneth for those words import rather an advice then a command and Quilibet potest renunciare c. Dier 23. b. 148 28 H. 8. Stat. 27 H. 8. 10. 11 A man seised of land in right of his wife makes a feoffment in fée to his owne use and declares his will to be Upon grant by the Baron oâ— the Femes lanâ— though to her no remitter that the feoffées shall stand seised to the use of his wife for life And then comes the Statute of Uses 27 H. 8. 10. which saith that Cestuy que use shall be déemed in possession of such an Estate as he had in the use Here the Question was whether or no the Feme should be remitted And by Shelley it séemes she is remitted because she comes in not by her owne Act but by an Act in Law viz. by the Statute and there is none against whom she may bring her Cui in vita But Baldwin and Knightly è contra because she comes in by Act of Parliament to which every one is party and the Statute saith Cestuy que use shall be adjudged in such Estate as he had in the use for if Tenant in taile make a feofment in fée to his owne use in fée or fée taile the issue is not remitted because he had a fée-simple in the use and the Statute conveyes unto him such an Estate as he had in the use Ideo quaere â—â—sor â—â—see 12 A Lease is made for yeares upon Condition Dier 334. 3â— 16 Eliz. that the Lessée shall not alien to any person without the Lessors Licence the land nor any part thereof the Lessor gives him Licence to alien part the Lessee aliens the residue without Licence And it was adjudged that the Lessor might enter notwithstanding the dispensation with the condition in part and that the condition was intire â—â—re of an â—â—raile 13 Baron and Feme are Tenants in special
the Conusee had sued execution two yeares before the day of payment albeit the Feoffee was a stranger to the Record 18 E. 3. So also in 32 E. 3. A Scire facias was brought by the Grâ—â—â—e of the reversion against him that had execution of the Land by reason of a Statute Merchant and to obtaine the Scire facias alledged that the Conusee had received his duty c. And yet the grantee was neither party and privy likewise if a Parson hath an annuity and recover and after the Church is appropriate to a religious House the Soverâ—igne of the House though he be not party shall have a Scire facias so it is also as is said of two Benefices united Vide Rule 145. 〈◊〉 14. If a Iury in a Leet refuse to make presentment Dyer 211 31. 4. Eliz. the Steward may assesse a Fine upon each of them for contempt and concealement and if the Homage in a Court Baron refuse to do it if they be Copy-holders it is a forfeiture 15. If the Sheriff returne Rescous the party shall have Trovers by the word Convincatur in West 2. ca. 40. 〈◊〉 16. One Cobham being indicted of Piracy stood mute Dyer 241. 49. 7. Eliz. for he answered not directly and therefore had Iudgement of Paine for t dure by the Statutes of 27 H. 8. 4. and 28 H. 8. 15. Howbeit he might have had his Clergy if he had demanded it by the Statute of 1 E. 6. 12. where Piracy is not mentioned 144. It favoureth Common Right … ment of â—â—wer 1. Dower being a thing due of Common right Co. Inst pars 1. 35. a. 3. it may be assigned without Livery of seisin or writing and before the Guardian in Chivalry enter the Heire within age may assigne Dower causa qua supra â—â—â—mon right â—â—mmon â—â—w 2. Where the Tenant holds his land of his Lord by fealty and certaine rent or by homage fealty and certaine rent Litt. S. 213. or by other services and certaine rent and the rent is arreare at a day when it ought to be payd in this case the Lord may distrain for the rent of common right so if a man demise land to another by Deed or without Deed Co. ibid. 142. a. 4. for life or yeares rendring rent if it be arreare c. the Lessor may distraine for it of common right albeit there be no clause of distresse comprised in the Deed or otherwise And when it is said That a man may doe a thing of common right it is as much as to say that he may do it by the common Law And the common Law is called Common right because it is the best and most common birth-right that the Subject hath for the safegard and defence not onely of goods lands and revenues but of his Wife and Children his body fame and life also And when it is said that a man may distraine or do or have any thing of common right it is as much as if it were said he may do or have it by the common Law without any reservation or provision of the party It is worth observation that the common Law of England is sometimes called Right sometimes common Right sometimes Communis justicia The French also call their municipall Law Droit which in their vulgar tongue signifies Right In the great Charter the common law is called Right Rectum Nulli vendemus nulli negalibus aut differemus Justiciam vel rectum In West 2. ca. 1. it is called Common Droit In primes voet le Roy commande que le pais de saincte Eglise de la terre soit bien garde maintaine en touts points que Common droit soit fait a touts anxibien aux povres come aux riches sans regard de nullus which agreeth with the ancient law of King Edgar Porro autem has populo quas servet proponimus leges primum publici Juris beneficio quisquam fruitur idque ex aequo bono sive is dives sive inops fuerit jus Redditur And Fleta saith Item quod pax Ecclesâ—ae terrae inviolabiliter observetur quod communis Justicia singulis pariter exhibeatur Also all the Comissions and Charters for execution of Iustice are Facturi quod ad justiciam pertinet secundum Legem consuetudinem Angliae So as in truth Iustice is the Daughter of the law or common right for the law bringeth her forth and in this sense being largely taken as well the Statutes and Customes of the Realme as that which is properly the common law is included within Common Right Co. Inst pars 1. 147. b. 4. Litt. S. 212. 3. If a man hath a Rent charge to him and his heires issuing out of certaine land if he purchase parcell thereof to him and his heires Rent-chaâ— extinct by purchase of parcell all the Rent-charge is extinct and the annuity also and one of the reasons thereof is because the grant of a Rent-charge out of Land is against Common right Co. ibid. 215. a. 3. 4. By the Common Law no Grantee or Assignee of a Reversion could take advantage of a re-entry by force of a Condition A Grantee part of a Râ—version shalâ— nor take advantage of 〈◊〉 Condition because it was against Common right but this is now altered by the Statute of 32 H. 8. ca. 34. Yet at this day since the Statute a Grantee of part of the Reversion shall not take advantage of a Condition no more then he could before that Statute As if the Lease be of three acres reserving a rent upon Condition and the reversion is granted of two acres in this case albeit the rent shall be apportioned by the act of the parties yet is the Condition destroyed for that it is intire and also against common right and therefore shall not be taken by Equity or implication upon the words of the Statute being without the expresse words thereof Co. ibid. 225. b. 2. 5. There is a difference between a rent and a re-entry A Re-entry cannot be without Deeâ— for upon a gift in tayle or a Lease for life a rent may be reserved without Deed because it is naturall and agreeable to Law that rent should be reserved out of Land but a Condition with a re-entry cannot be reserved in these cases without Deed because that is collaterall unnaturall and against Common right Co. 4. 37. b. 3. Vide Co. l. 8. 79. in Wiat Weilds case 6. There is difference between Common appendant and Common appurtenant for Common appendant may be apportioned Common appendant maâ— be apportioâ—ed not common appuâ—nant because it is of Common right and therefore in that case if the Commoner purchase parcell of the land in which c. yet the Common shall be apportioned as if the Lord purchase parcell of the tenancy the rent being not intire shall be apportioned so if A. hath Common
and was also capable at the time of the gift whereas when the gift was made shee tooke nothing but in expectancy when shee should become heire per forman doni And yet the law permits her to have a Writ in forme aforesaid least otherwise she should have been without remedy Co. ibid. 47. b. 3. 2. The Lord shall not have an action of debt for reliefe or for escuage due unto him because he hath other remedy to recover the same viz. Remedy for releife c. by distresse Howbeit his Executors or Administrators shall have an action of debt for them because they are now become as showers falne from the stock and they have no other remedy Litt. S. 67. Co. ibid. 52. b. 4. 3. If tenements are let to a man for the terme of halfe a yeare or a quarter of a yeare c. in this case if the lessee make waste For waste the lessor shall have against him a Writ of waste and the Writ shall say Quod tenet ad terminum annorum but he shall have a speciall Declaration upon the truth of the matter and the Count shall not abate the Writ and the reason is because he can have no other Writ whereby the wrong done him may be remedied And therefore albeit the Statute of Glocester ca. Co. ibid. 54. b 4. 5. which giveth the action of waste against the lessee for life or yeares which lay not against them at the common Law speaketh of one that holdeth for terme of years in the Plurall number neverthelesse although it be a penall Law whereby treble damages and the place wasted shall be recovered yet a tenant for halfe a yeare being within the same mischiefe shall be within the same remedy though it be without the letter of the Law causa qua supra Co. Inst pars 1. 56. a. 1. 4. If Lessee for yeares be disturbed of his way An action for a publick nusance for remedy thereof he shall have his speciall action upon the case but if it be a common way to avoyd multiplicity of suits it ought to be presented and reformed in the Leet or Turne and no particular person shall bring any action for it unlesse he suffer particular damage by the nusance as if he and his Horse fall into a ditch so made in the common way or the like which happeneth not to others Howbeit in the Kings Bench in a case betwixt Westbury and Powell it was adjudged that where the Inhabitants of Southwarke had by custome a watering place for their Cattell which was stopped up by Powell in that case any Inhabitant there might have an action because otherwise they should be without remedy for that such a nusance is not presentable in the Leet or Turne Co. ibid. 111. a. 4. 5. In Cities and Burrows where Tenements were devisable Ex gravi querela granted to Devisees of Lands if the heire of the devisor had entred and had held out the devisee albeit the devisee might have entred as Lit. saith S. 167. Yet besides the Law ordained a Writ for him called Ex gravi querela and this Writ without any particular usage was incident to the custome to devise because otherwise if a discent had been cast before the devisee had entred the devisee had been without remedy there being no other way provided for him to recover his land Litt. S. 179. Co. ibid. 119. a. 3. 6. If a Villain purchase a Signiory rent or other profit out of land Claime of a Reversion c. by the Lord of a Villain or a reversion after an estate for yeares life in taile by Statute Merchant Statute Staple or Elegit and attornement is made unto him according to the grant in such cases the Lord may come upon the land and claime the reversion and in so doing shall not be adjudged a trespasser for he hath no other means to come by the reversion because if he should stay untill the reversion should fall the Villain might alien it to another before his entry and so prevent him of his just title thereunto Also upon grant of an Advowson to a Villain claime must be made immediately at the Church though it be then full of an Incumbent Lit S. 180. for if he stay till an avoydance he may be prevented as aforesaid Vide infr 35. Outlawry no plea in Error to reverse it 7. Regularly an outlawed person cannot sue and if hee do Co ib. 128. a. 4. it is a good plea in disability of his person to say that he is outlawed yet in a Writ of Error to reverse an Outlawry Outlawry in that suit or at any strangers suit shall not disable the Plaintiff because if he in that action should be disabled and were outlawed at severall mens suits he should never reverse any of them Aliens may have actions personall 8. Albeit Aliens though in annuity are excluded from many priviledges that Subjects borne enjoy Co. ib. 129. b. 1. yet such a Alien may maintaine personall actions for an Alien may trade and trafficke buy and sell and therefore of necessity he must be of ability to have personall actions and an Alien that is condemned in an Information shall have a Writ of Error to relieve himselfe Et sic de similibus for otherwise they should be without remedy A Monk canâ— sue c. 9. If a Monk or other spiritual person profest were beaten wounded Co ib. 132. b. 3. or imprisoned he is prohibited to sue as Lit. saith S. 200. because he is a dead person in Law but here the Law gives a remedy for in that case the Abbot and Monke shall joyne in an Action against the wrong doer and if the Writ be Ad damnum ipsius Priores the Writ is good or if it be Ad damnum ipsorum it is good also yet in this case the Abbot or Pryor in his person was not wronged Also if a Monk were by Conspiracy falsely and maliciously indicted of Felony and Robbery and afterwards was lawfully acquitted his Soveraign and he should have joyned in a Writ of Conspiracy and the like There is the same Law also of a Nunne Sanctimonialis mutatis mutandis And if the Law did not provide such a course they might have been injured and left without remedy â— Feme Coâ—â—â— may sue â— be sued 10. A Feme Covert is disabled to sue without her Husband Co ib. 132. b 4. 2 H 4. s 7. a. and yet we read that in somâ— cases a Wife hath had ability to sue and to be sued without her Husband for the Wife of Sir Rob. Belknap one of the Iustices of the Court of Common Pleas who was banished beyond Sea did sue a Writ in her own name without her Husband he being alive whereof one said Ecce modo mirum quod foemine fert breve Regis Non nominando virum conjunctim robore Legis Also E. 3. brought a
Quare Impedit against the Lady Maltravers Co ib. 10 E. 3. 53. and she pleaded that she was Covert of Baron whereunto it was replied for the King that her husband the Lord Maltravers was put in exile for a certain cause she was ruled to answer Vide more examples hereof in Coke ubi supra where this difference is put that if the Husband be condemned to perpetuall banishment his wife in his absence and in her own name shall sue and be sued but if it be but Relegation for a time it seems to be otherwise And all this least the parties that have cause of Action should remain without remedy for when he is condemned to perpetuall banishment he is as a Monk profest dead in Law There is the same Law also of perpetuall abjuration 〈◊〉 person â—ll be chargâ—â— with an anâ—ity though â—harged by â—â—â—oes 11. If a man grant a Rent-charge out of his Land Co ib. 146. b. 1. Co. L. 7 39 b. 2. in Lillingstons case with Proviso that the Grantee shall not charge his person in such case regularly the Land shall be onely charged and his person free And yet in some case where there is such a Proviso in the Grant that the person of the Grantor shall not be charged neverthelesse the person of the Grantor shall be charged As if a man grant a rent charge out of certaine Lands to another for life with such a Proviso the rent is behind the grantee dyeth in this case the Executors of the Grantee shall have an action of debt against the Grantor and charge his person for the arrearages due in the life of the Grantee because the Executors have no other remedy against the Grantor for the arrearages Vide infr 32. Litt. 252. Co. 169. b. 4. 12. Where in Dower or upon Partition betwixt parcenors Egalty of partition a rent is granted to supply the thirds or for egalty of partition in such case the Law doth give a Distresse lest the Grantee should be without remedy having in liew thereof departed with a valuable recompence in Land Co. ibid. 197. a. 4. 13. For twenty shillings rent Tenants in common shall joyne in Assize or a pound of Pepper payable yearly two tenants in common ought to have severall Assises because they have them by severable titles as one tenant in common may have an Assise of the moity of twenty shillings or of the moity of a pound of Pepper de medietate unius librae piperis but not of ten shillings or de dimidio librae piperis And for that these things are in themselves severable Howbeit for an Hawk Horse or the like which are intire albeit they be tenants in common yet shall they joyne in an Assise because otherwise they should be without remedy for one of them cannot make his plaint in Assise of the moity of a Hawk Horse c. that were against the order of nature which the Law will not suffer and if they should not joyne they should have Damnum injuriam and yet should have no remedy by Law which would be inconvenient for the Law will that in every case where a man is wronged and endamaged that he shall have remedy Aliquid conceditur ne injuria remaneret impunita quod alias non concederetur so also shall they joyne in a Quare impedit in a Writ of right ward or ravishment of ward for the body for the same reason Co. ibid. 198. a. 3. Co. l. 10. 134. b. 3. in Read and Redmans case 14. If there be two Tenants in common of an Advowson The survivor shall recover and a stranger usurps so as the right is turned to an action and they bring a Writ of Quare impedit which concernes the realty the six moneths passe and the one dyeth In this case the Writ shall not abate but the survivor shall recover for otherwise there would be no remedy to redresse this wrong and so it is also of Coparceners Litt. S. 365. Co. ibid. 226. a. 3. 15. It is regularly true A Condition need not be shewed forth that a man shall not plead or take advantage of a Condition without shewing forth the proofe thereof in writing And yet if land be mortgaged upon condition and the Mortgagee letteth the Lands for years reserving a rent the condition is performed the mortgagor re-enters In an action of debt brought for the rent the Lessee shall plead the condition and the re-entry without shewing forth any Deed so in an Assise the tenant pleads a Feoffment of the Ancestor unto him c. the Plaintiff saith The Feoffment was upon condition and that the condition was broken and pleads a re-entry and that the tenant entred and tooke away the Chest in which the Deed was and yet detaineth the same the Plaintiff shall not in this case be inforced to shew the Deed Also if a woman give Lands to a man and his heires by Deed or without generally shee may in pleading aver the same to be Causa matrimonij prelocati albeit shee hath nothing in writing to prove the same And the reason of these cases and the like is lest the parties that should prove the conditions should upon failer thereof be utterly left without remedy Litt. S. 391. Co. ibid. 240. a. 3. 16. If the Feoffee of Land in fee upon condition dye seised Right and title a diversity this discent if the condition be broken shall not take away the entry of the Feoffor or his heires but if the Feoffee upon condition be disseised and the disseisor dye whereby a descent is cast this shall take away the entry of the Feoffee because he hath a right to the land and therefore his entry may be taken away for that he may recover his right by action But the Feoffor that hath but a Condition his title of entry cannot be taken away by any descent because he hath no remedy by action to recover the land and therefore if a descent should take away his entry it should barr him for ever And the Law in this case is all one whether the descent were before the condition broken or after Also he that hath a title to enter upon a Mortmaine shall not be barred by a descent because then he should be without all remedy So it is also where a Woman hath a title to enter Causa matrimonii prelocuti no descent shall take away her entry because shee hath but a title and no remedy by action If a man be seised of lands in Fee and in writing deviseth the same to another in Fee and dyeth and the Heire before any entry made by the Divisee entreth and dyeth seised this descent shall not take away the entry of the Devisee for if the descent which is an act in Law should take away his entry the Law should barre him of his right and leave him utterly without remedy So it is also of him that entreth for
will not suffer But in such cases one of the Coparceners hath it and the rest are satisfied otherwise or if there be nothing but such intire Inheritances that will not admit severance then they are to have the profit thereof by turnes c. vide pl. ibid. Warranty continues after partition 12. If two hold joyntly certaine Lands with warranty Co. ibid. 165. a. 4. and make partition in this case the Warranty is gone because they are not compellable by the Common Law to make partition but if Coparceners hold Land with Warranty and make partition yet shall the Warranty still remaine for they are compellable by the Common Law to make partition and therefore the Law preserves their Warranty The estate preserved by construction of Law 13. If Tenant for life make a Lease generally Co. ibid. 183. a. 4. this shall be taken by construction of Law to be an estate for his own life that made the Lease for if it should be a Lease for the life of the Lessee it would work a wrong to him in the Reversion So it is likewise if Tenant in tail make a Lease generally the Law shall contrive this to be such a Lease as he may lawfully make and that is for terme of his owne life for if it should be for the life of the Lessee it would be a Discontinuance and consequenty the estate which should passe by construction of Law should worke a wrong which the Law will not permit because Legis Constructio nunquam facit injuriam Descent tels Entry 14. In case of a Descent cast Co. ibid. 237. b. 4. there is a Diversity betwixt corporall Inheritances as Houses Land c. which do lye in Livery and Inheritances incorporall as Advowsons Rents Commons c. which lye in Grant for a Descent cast of these shall not put the Disseisee to his Action but he may claim them notwithstanding such Descent Howbeit a Descent cast of the other puts the Disseisee to his Action because Houses serve for the habitation of men and Land to be manured for their sustenance and therefore an heire shall not after a Descent of them be molested or disturbed in them by Entry Continuall claime 15. If a man for feare of Battery mayhem or death Co. ibid. 254. a 4. Litt. S. 421. dare not go to the Land to make his Entry the Law to prevent danger givee him leave in such case to go as neare the Land as he dare although he be not within the view thereof Feme Obligee and Execution 16. If a Feme Obligee take the Obligor to Husband Co. ibid. 264. b. 4. this is a release in Law the like Law is if there be two Femes obliques and the one take the Obligor to Husband this is also a release in Law of the whole debt But if a Feme Executrix take the Debtor to Husband this is no release in Law for that should be a wrong to the dead and in Law worke a Devastavit which an act in Law shall never worke And so it was adjudged in the Kings Bench M. 30 31 Eliz. Co. Inst pars 1. 269. b. 3. 17. If there be Lord and Tenant Lord and Tenant Lord Mesne and Tenant and the rent is behind by divers years and the Tenant make a Feoffment in fee if the Lord accept the service or rent of the Feoffee due in his time he shall lose the arrearages due in the time of the Feoffor for after such acceptance he shall not avow upon the Feoffor nor upon the Feoffee for the arrearages incurred in the time of the Feoffor But in that case if the Feoffor dye albeit the Lord accept the rent or service by the hand of the Feoffee due in his time he shall not lose the arrearages for now the Law compelleth him to avow upon the Feoffee and that which the Law compelleth him unto shall no way prejudice him So if there be Lord Mesne and Tenant and the rent due by the Mesne is behind and after the Tenant fore-judge the Mesne and the Lord receive the services of the Mesne which issue out of the Tenancy he shall not be barred of the arrearages which issued out of the Mesnalty so likewise if the rent be behind and the Tenant dye the acceptance of the services by the hand of the heir shall not bar him of the arrearages causa qua supra for in all these cases albeit the persons be altered yet the Lord doth accept the services of him who only ought to do them which being caused by act in Law it will not suffer him to be prejudiced thereby Co. ibid. 285. a 3. 18. If Tenant pur anter vie bring an Assize and Cestuy que vie dyeth Assise Waste Ejectione fiâ—me hanging the Writ here albeit the Writ were well commenced yet the Writ shall abate because no Assize can be maintainable for damages only but where an Action is begun and part of the Action determineth by Act in Law and yet the like Action for the residue is given there the Writ shall not abate but proceed As if an Action of Waste be brought against Tenant per anter vie and hanging the Writ Cestuy que vie dyeth the Writ shall not abate but the Plaintiff shall recover damages because if Cestuy que vie had dyed before any Action brought the Lessor might hade had an Action of Waste for the damages and the Act in Law shall not prejudice him So in an Ejectione firme if the terme incur hanging the Action yet shall the Action proceed for damages because an Ejectione lyeth after the terme for damages which he shall recover notwithstanding the terme be by Law determined If a Conspiracy be brought against two Co. ibid. a. 4. and one of them dye hanging the Writ neverthelesse it shall proceed Co. ibid. 309. a. 3. 19. Albeit a man may by the Law grant away a Seigniory Rent Atturnment Reversion Remainder c. yet such Grant shall not be good without Attornement that is the consent of the present Tenant of the land for which the old Books render this reason Si dominus attonnare possit servitium tenentis contra voluntatem tenentis tale sequaretur inconveniens quod possit eum subjugare capitali immico suo per quod teneretur sacramentum fidelitatis facere ei qui ei damnificare intenderet Co. ibid. 327. a. 2. 20. When Tenant in tail makes Feoffment or Entry taken away c. the Entry of the Donor who hath the Reversion and also of him in Remainder is taken away and they are put to their Action viz. A Formedon in Reverter for the one and in Remainder for the other And the reason why these alienations in these severall cases do make a discontinuance and put him in Reversion or Remainder that right had to his Action and take away his Entry is to the end that every mans
right may be preserved viz. to the Demandant his ancient right to the Feoffee or Purchasor the benefit of his Warranty which course is founded upon great reason and equity for the benefit of Warranty would be prevented and avoyed if the Entry of him that right had were lawfull hereby also the danger that many times happeneth by taking of Possessions is warily prevented by Law â—rant of the next avoyâ—â—nce 21. If a man seised of an Advowson in fee by his Deed granteth the next presentation to A. and before the Church becometh void Co ibid. 378. b. 4. by another Deed grants the next presentation of the same Church to B. the second Grant is void for A. had the same granted to him before and the Grantee shall not have the second avoydance by construction to have the next avoydance which the Grantor might lawfully grant because the Grant of the next avoydance doth not import the second presentation but if a man seised of an Advowson in fee take wife now by act in Law is the wife intitled to the third Presentation if the Husband dye before her And in this case if the Husband grant the third Presentation to another and dye the heire shall present twice the Wife shall have the third Presentation and the Grantee the fourth for in this case it shall be taken the third Presentation which he might lawfully grant And so note a diversity between a title by act in Law and by act of the party for the act in Law shall work no prejudice to the Grantee Warranty 22. If a man doth warrant Land to another without this word Heires his heires shall not vouch Co. ibid. 384. b. 4. And regularly if he warrant Land to a man and his heires without naming assignes his Assignee shall not vouch but if the Father be enfeoffed with warranty to him and his heires the Father enfeoffeth his eldest son with warranty and dyeth the Law giveth to the son advantage of the warranty made to his Father because by act in Law the warranty betwixt the Father and the son is extinct which act in Law shall not prejudice him Aâ—signment of Dower 23. An Assignment of Dower by a Disseisor Abator Intrudor Co. ibid. 35. a. 3. c. if there be no covin is good unlesse where it is prejudiciall to the Disseisee c. As if the Husband enfeoff the younger son with warranty and dyeth the eldest disseiseth the younger son and endowes the widow In this case the younger son shall avoid this Assignment for otherwise he shall lose his warranty But a Disseisor Abator Intrudor c. cannot assigne a rent out of the Land to her for her Dower to bind the Disseisee c 24. Vide 33. 5. Disagreement â—â—st be in presence 25. The Law gives favour to an agreement Co. l. 2. 69. a. 1. in Tookers case which tends to the advantage of the party for that may be done in his absence as well as in his presence but so it is not of a dis-agreement for that ought to be done in his presence because the Law conceives the party interessed may use perswasions to the other party and so induce him to agree so Attornement is good though the Grantee be absent Wardship 26. If there be Tenant for life Co. l 2. 93. b. 2. in Binghams case the Remainder in fee of Land holden by Knight-service and the Lord grants his Seigniory for life and after he in the Remainder in fee dyes his heir within age and after the Grantee for life of the Seigniory dyes and then the Tenant for life dyes he in Reversion of the Seigniory shall have the Ward So likewise if he in the Remainder dye his heire within age ut supra and after the Lord dye and then the Tenant for life dyes the heire of the Lord in this case shall have the Ward for the act in Law shall not prejudice any and his Executâ—r cannot have it because it was not a Chattell vested in the Testator Co. l. 3. 65. b. 3. in Penants case Acceptance of â—ent Bar â—â—tra 27. If a man having Rent-service or Rent-charge accept the Rent due at the last day and thereof make an acquittance thereby all the arrearages due before are discharged as it was adjudged in Hopkins and Mortons case Hill Rot. 950. in C. B. Vide 10. Eliz. 271. Dyer but if a man make a Lease for life rendring Rent or if there be Lord and Tenant by Fealty and Rent and the Rent is arreare by 2. years and after the Lessor or Lord disseise the Ter-tenant and then the Tenant recovers in an Assize and the rent which incurred is recouped in damages yet the Lord or Lessor shall recover in Assize the arrearages incurred before the Disseisin and the bar of the last years rent shall not be a bar of the former arrearages Ibid. b. 4. 28. If there be Lord and Tenant and the Rent is arreare Idem and the Tenant makes Feoffment in fee In this case if the Lord accept the Rent or service of the Feoffee he shall lose the arrearages in the time of the Feffor albeit he made him no acquittance for after such acceptance he shall not avow upon the Feoffor at all nor yet upon the Feoffee save onely for the services which incurred in his time as appears in 4 E. 3. 22. 7 E. 3. 8. 7 E. 4. 27. 28 H. 8. Br. Avowry 111. Howbeit In such case if the Feoffor dye although the Lord accept the Rent or Service by the hand of the Feoffee yet shall he not lose the arrearages for now the Lord can avow upon none but the Feoffee and that whereunto the Law compells a man shall never prejudice him So if there be Lord Mesne and Tenant and the Rent due by the Mesne is arreare and after the Tenant fore-judges the Mesne and the Lord receives the Services of the Mesne which now issue immediately out of the Tenancy yet shall he not be barred of the arrearages which issue out of the Mesnalty likewise if the Rent be arreare and the Tenant dye the acceptance of the Services by the hand of the Heire shall not bar him of the arrearages causa qua supra For in all these cases albeit the person be altered yet the Lord accepts the Rent and Services of him who onely ought by the Law to doe them Vide 4 E. 3. 22. 7 E. 3. 4. 7 E. 4. 27. 9 H. 8. Br. Avowry 111. before cited Neither shall acceptance of Rent bar a releife because that is as a blossome fallen from the Tree and a fruit or improvement of the Services Co. l. 3. 72. b. 2. in Westâ—ieâ— case 29. If a Sheriff dye and before another is made Escape one in execution breaks the Goale and goes at large this is no escape for when a Sheriff dyes all the Prisoners are in the custody of the Law
regularly a condition is not available without Deed shewed and although the lessor shew no Deed. Co Inst pars 1. 294. b. 4. 3. In an action of Debt the better to discover the truth Wager of Law is allowed Wager of Law that is to take an oath for example that he â—weth not the Debt demanded of him nor any penny thereof It is called Wâ—ger of Law because of ancient time the Defendant put in suertie to make his Law at such a day It is also called Making of his Law because the Law for the discoverie of the truth doth give such a speciall benefit to the Defendant to barre the plaintiff for ever in that case Howbeit for the further manifestation of the truth the Defendant ought to bring wiâ—h him eleven persons of his neighbours that will avow upon their oaths that in their consciences he saith truth so as he himselfe must be sworne De fidelitate and the eleven De credulitate Co ibid 303. 4. 3. 4. A Count or Declaration Truth and certainty in Pleadings which anciently and yet is called Narratio ought to containe two things viz. certainty and verity for that it is the foundation of the suite whereunto the adverse pertie must answer and whereupon the Court is to give judgment Certa debet esse intentio narratio certum fundamentum certa res quae deducitur in Judicium Bract. lib. 2. 140. Howbeit it must be understood that there are three kinds of certainties First to a common intent and that is sufficient in a Barre which is to defend the partie and to excuse him Secondly a certaine intent in generall as in Counts Replications and other pleadings of the Plaintiff Co. ibid 352. b. 1. that is to convince the defendant and so in Indictments c. Thirdly a certaine intent in every particular aâ— in Estoppels because in respect they conclude a man ta alleadge the truth they ought to be certaine to every intent and not to be taken by argument or inference Co. ibid 352. b. 2. 5. Where the verity is apparent upon Record Estoppel there the adverse partie shall not be estopped to take advantage of the truth for he cannot be estopped to alleadge the truth when the truth appeareth of Record So if a Fine be levyed without any originall it is voydable but not voide howbeit if an originall be brought and a Retraxit entred and after that a concord is made or a Fine levyed this is voide in respect the veritie appeareth of record Likewise an Impropriation is made after he death of an Incumbent to a Bishop and his successors the Bishop by Indenture demiseth the Parsonage for 40 yeares to begin after the death of the Incumbent the Deane and Chapter confirme it the Incumbent dieth this demise shall not conclude for that it appeareth that he had nothing in the Impropriation till after the death of the Incumbent Certainty and verity in Counts 6. If a man declare upon a Statute he must recite it truly P. C. 84. a. 4. in Partridges case against Strange and Croker for mentioning the Statute and mis-reciting it causeth error albeit as to the substance of his declaration he might have omitted it because a Declaration ought to have 1. Certaintie so as the defendant may know to what to make answer And therefore when of necessitie a thing must be shewed in certaine in the Declaration it must by no meanes be omitted 2. Verity which ought to be joyned with certainty for if it appeare to the Court that falsehood is produced in stead of truth the partie that shewes it hath confounded and annoyed himselfe Wast Plea 7. If the tenant do or suffer wast to be done in houses Inst 1. 53. a. 3. yet if he repaire them before any action brought there lyeth no action of wast against him Howbeit in such case he cannot plead Nul wast fait for that is not true but he ought to plead the speciall matter as the truth of his case doth import Vide M. 166. Variance F. N. B. 104. Audita querelâ— 8. If a man comprehend two severall matters in an Audita querela to extinguish the execution yet the Writ is good Howbeit to reduce that double matter to some certainty the Plaintiff shall hold himselfe to one matter onely and the Defendant shall be put to answer onely to that Co. l. 10. 92. a. 4. in Docter Leyfeilds case Co. Inst part 1. 226. a. 1. Shewing Letâ—ers and other Deedâ— 9. The lessee or assignee of a Patentee shall not justifie his estate by producing onely his lease or assignement but he ought to shew the originall letters Patents or a true copie thereof proved upon oath to the end the Iudges and Iury severally as it belongs to them may give certaine Iudgment of the sufficiencie or insufficiencie thereof vide Dyer 28 H. 29. b. pl. 199. And so it is also of other originall Deeds which are not Letters patents Vide Dyer 171. 9. Dyer 35. 26. 29. H. 8. Feoffment to divers 10. It was agreed by the Iustices of the C. B. If a man enfeoffe divers and make livery to one in the name of all this is not good without Deed of feoffment because as it seemes their names being exprest in a Deed of feoffment it may be certainly knowne who are the feoffees unto whom the feoffor intended to convey the estate Artaint 11. In an Attaint the Plaintiff shall not give more in evidence nor produce more witnesses then he gave or produced to the Pettie Iury Dyer 54. b. 14. 34. H. 8. but contrariwise the Defendant is allowed to give and produce more in affirmance of the first verdict vide supra 1. Shewing Lett. pat 12. In nono of H. 8. A Merchant obtaines a licence to him and his assignes to import Wines in any vessel besides English Dyer 54. a. 17. 34. H. 8. notwithstanding the Statute of 4 H. 7. 10. the assignee of the Patentee upon an Information brought against him pleads the Letters Patents of licence and his assignement but produceth not the Letters Patents into Court for want whereof his Plea was adjudged insufficient Dyer 87. a. 100. Averment 13. If the King grant all his lands which he had by the Attainder of I. S. and a man will convey the lands unto himselfe by such a grant he ought to averre that I. S. had such lands So in case of a Common person who makes a release of all such Lands as discended unto him on the part of his mother in D. there ought to be an averment what lands descended unto him there on his mothers part for otherwise the release is voide by reason of the generaltie and uncertainty thereof c. Dyer 229. 51. 6. Eliz. 14. In Debt upon an Obligation to ratifie confirme Pleading a Deed. and allow at all times the estate of the Obligee
hinders a Remittâ—r and the Discontinuee is disseissed and after the Disseisor lets the Land to the Baron and Feme for life this is a Remitter to the Feme but if the Baron and Feme were of covin and consent that the Disseisin should be made then is it no Remitter to the Feme because she is then a Disseiseresse and particeps criminis Howbeit if the Baron were onely of covin and consent to the Disseisin and not the Feme in that case the Feme shall be remitted So as here covin and consent of Baron and Feme doth hinder the Remitter of the Feme Co. ibid. 357. a. 4. and so covin doth in many cases choake a meer Right and the ill manner doth many times make a good matter unlawfull Co. ibid. b. 1. Co. l. 3. 78. a. in Farmers case 11. If a Disseisor Intrudor or Abator do endow a woman that hath lawfull title of Dower this is good and shall bind him that right hath but if a woman be lawfully entitled to have Dower and she is of covin and consent that one shall disseise the Tenant of the Land against whom she may recover her lawfull Dower all which is done accordingly In this case the Tenant may lawfully enter upon her and avoid the Recovery in respect of the covin Co. ibid. b. 2. 12. In all cases The like where a man hath a rightfull and just cause of Action yet if he of covin and consent do raise up a Tenant by wrong against whom he may recover the Covin doth suffocate the right that the Recovery though upon good title shall not bind or restore the Demandant to his right So if Tenent in tail and his Issue disseise the Discontinuee to the use of the Father and the Father dyeth and the Land descendeth to the Issue in this case the Issue is not remitted against the Discontinuee in respect he was privy and party to the wrong but in respect of all others he is remitted and shall deraigne the first Warranty And so note a man may be remitted against one and not against another The like 13. A. and B. Ioint-tenants are intitled to a reall Action against the Heire of the Disseisor A. causeth the Heire to be disseised Co. ibid. against whom A. and B. recover and sue execution In this case B. is remitted for that he was not party to the Covin and shall hold in common with A. but A. is not remitted causa qua supra False Plea 14. He that will have the benefit of the Statute of Glocester Co. ibid. 366. a. 3. Co. l. 8. 53. a. 3. in Sims case cap. 3. 6 E. 1. must plead the truth of his case viz. the Warranty acknowledge the title of the Demandant and pray that the advantage of the Statute may be saved to him and then if afterwards assets descend the Tenant upon this Record shall have a Scire facias c. But if the Tenant plead the Warranty and plead further that assets descended c. and the Demandant taketh Issue that assets descended not c. which Issue is found for the Demandant whereupon he recovereth In this case the Tenant albeit assets do afterwards descend shall never have a Scire facias upon the said Iudgment for that by his false Plea he hath lost the benefit of the Statute Outlawry by 〈◊〉 15. Imprisonment is a good cause to reverse an Outlawry Co. Inst pars 1. 259. b. 2. if it be by Processe of Law in invitum but if it be by consent and covin such Imprisonment shall not avoid an Outlawry because upon the matter it is his own act Attornment 16. Where the Tenant hath notice Co. l. 2. 68. a. 2. in Tookers case that the Seigniory was granted but to one or that the Reversion was granted but of one Acre or that the Reversion was granted for fewer years or that the Reversion was granted for life onely with no Remainder over whereas it was in any of the cases otherwise in such case generall Attornement without true notice of the Grant is void for the usuall pleading which intent is the oracle of the Law is to which Grant he attorned and therefore if he hath not notice of the Grant or which is all one true notice thereof the assent which he gives to it which in truth is but part of the Grant the Law which abhors falsehood will not construe to be Attornment to the true Grant Fine by covin to bar 17. A man possessed of divers parcells of Land within the Mannor of D. whereof some he held for years others at will others by copy Co. l. 3. 77. b. 2. in Farmers case in Margaret Podgers case Co. l. 9. 105. b. 1. and some also in fee demiseth the whole to another for life and then levies a Fine to the Tenant for life and his Heires of so many Acres as amount to the whole Land continues Possession and payes the rents to the Lord five years passe yet in this case the Lord is not barred by the Statute of 4 H. 7. cap. 24. For the makers of that Statute did never intend that such a Fine levyed by fraud and practice of Tenant for years at will or by copy which pretend no title to the Inheritance but intend the disherison of their Lessors or Lords should bar them of their Inheritance and this appeares by the preamble of the said Act where it is said that Fines ought to be of greatest strength to avoid strifes and debates but when Tenant for years at will or by copy make Feoffment by assent and covin that a Fine should be levyed this is not to avoid strife and debate but by assent and covin to begin and stir them up And therefore that Statute did not intend to establish any such estate made and created by such fraud and practice which being fraudulent is upon the matter no estate at all c. vide pl. ibid. A fraudulent â—â—e of goods 18. The grant of goods albeit it be made upon good consideration Co. l. 3. 80. b. 4. in Twines case yet if it be not bona fide but hath trust in it or other badges of fraud as if the Grantor keep them still in his own Possession useth them as his own in disposing of them or otherwise or if they be Sheep and the Grantor brand them with his own mark or when he grants all his Goods and doth not except so much as his wearing apparrell or the like such a Grant is within the Statute of 13 Eliz. 5. and upon a Fieri facias at anothers Suit the Sheriff may seise them as if no Grant at all had been made thereof Vide pl. in that case to the like purpose Queritur ut crescunt tot magna volumina Legis In promtu causa est crescit in orbe dolus Co. l. 4. 26. a. 1. in Kite and Quientons case 19. Pretenced titles of
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
of a clause in the Roll which were expressed in the Writ and Returne Hob. 128. Pie and Coke 82. Two Informations exhibited the same day against the same party for one and the same offence Iudgement shall be given for neither for the uncertainty Vide Hob. ibid. for an Inrolment of a Deed 129. Wilton for an Amerciament in a Leet 163. Impersonalitas non concludit nec ligat Co. Inst 1. 352. b. 1. Pl. Co. 398. a. 1. 1. An Estoppell shall not be spoken impersonally as to say ut dicitur An Estoppell or the like but it ought to be a precise affirmation of that which maketh the Estoppell neither yet doth a recitall conclude any thing because it is no direct affirmation The Earle of Leycesters case in Plowd 164. Generale nihil certi implicat Generall words 1. Co. Inst 1. 33. a. 3. Dodingtons case If the King or a common person grant omnia illa messuagia in tenura l. B. scituate in W. whereas in truth they lye in D. In this case because the grant is generall and is restrained to a certaine Towne the Patentee or Grantee shall not have any Lands out of that Towne unto which the generalty of the Grant refers Slander 2. If one saith to another that he is perjured Co. l. 4. 15. a 4. Stanhop and Bilths case or that he hath forsworn himselfe in such a Court such words of slander are actionable for by these words it appeares that he hath forsworne himselfe in a judiciall proceeding but if one say to another that he hath a Mannor and hath gotten it by swearing and forswearing these words will beare no Action because they are too generall and words which shall charge any with an Action in which damages shall be recovered ought to have convenient certainty So if one call another Villain Rogue Varlet or the like or tels him that he is forsworn such words are not actionable because they are accounted words of heate and passion and benignior sententia in verbis generalibus seu dubijs est praeferenda for Actions of slander shall not be maintained by any strained construction or argument because they are more frequent now-a-dayes then in times past Schisme 3. Co. l. 5. 58. a. 4. Spâ—cots case It is not a sufficient allegation for the Bishop who refuseth to present to a benefice to say that the Presentee is a Schismatick in generall but he ought to accuse him of some Schisme or heresie in certaine to the end the Court may consult with Divines to know whether if be Schisme or no and thereupon make Iudgement whether the originall cause of refusall be just or no. Arrests 4. When the Sheriff Bayliffs or Serjeants arrest one C. l. 6. 54. a. 4. The Countess of Rutlands case it is not sufficient for them to say in generall words I arrest you but they ought upon the arrest to shew at whose Suit out of what Court for what cause they do it and when the Processe is returnable to the end that if it be upon an Execution he may pay it and free his person from Imprisonment and if upon a meane Processe either to agree with the party or to put in bail according to Law Errors 5. In Assignment of Errors a generall Assignment is not good F. N. B. 20. h. as to say in omnibus erratum est for that expresseth no certainty but the Assignment ought to be speciall and certaine as to say in hoc erratum est c. and to shew the certainty of the things and againe to say in hoc erratum est and to shew another thing sic de singulis in which he will assigne Errors Arbitrement 6. The submission to an award betwixt A. and B. was generall Co. l. 8 98. a. 2. Baspoles case viz. of all Actions Demands c. And the Award was that A. should pay B. twenty pounds And in this case it was objected that it did not appeare that the matter of the Arbitrement was the matter onely that was betwixt them because the submission was generall of all Actions Demands c. And therefore if the Arbitrement were not made of all the matters in controversie the award was void Howbeit the award was adjudged good because when the submission is generall of all Actions Demands c. Generale nihil certi Implicat and therefore it stands well with the generalty of the words that there was but one cause depending in controversie betwixt them 165. Dolosus versatur in generalibus Co. l. 3. 80. b. 4. Twines case 1. P. being indebted to T. in foure hundred pounds A fraudulent Deed. and to C. in two hundred pounds C. brings an Action of debt P. possessed of goods to the value of three hundred pounds makes a gift to T. in part of payment by the name of all his Goods and Chattells but continues the Pessession and imployes them to his own use to prevent the execution of a Fieri facias at the Suit of C. Here one of the badges of Fraud alleadged in that Grant was for that it was generall viz. of all his Goods c. Co. l. 5. 57. b. 4. Specots case 2. Schismatiquâ— It is not a sufficient allegation for a Bishop upon refusall of a Clerk to say in generall that he is a Schismatique Heritique or the like but he ought to accuse him of some crime or Error in particular because if such generall allegation shall be admitted Bishops at this day might at their pleasure deprive all Patrons of their Presentations Vide 164. 3. for Dolosus versatur c. 166. Variance Co. Inst 1. 131. a. 4. 1. A materiall Variance between a Protection Protection and the Record doth avoid it Co. ibid. 53. a. 3. 183. a. 1. 2. If the Tenant do or suffer waste to be done in Houses Waste yet if he repaire them before any Action brought there lyeth no Action of Waste against him Howbeit he cannot in such case plead Non wast fait for by reason of the Variance between the Evidence and such a Plea the Issue wil be found against him but he must plead the speciall matter according to the truth of his case Co. ibid. 282. b. 4. 3. In Battery Not guilty is a good Issue Battery where the Defendant committed no Battery at all but regularly at the common Law if the Defendant hath cause of Iustification or excuse then can he not plead not guilty for then upon the Evidence it shall be found against him because by such a Plea he confesseth the Battery and upon the Issue cannot justifie it but he must plead the speciall matter and confesse and justifie the Battery for otherwise the Variance of the Evidence from his Plea will cause the Iury to find him guilty The like Law is in many other cases and therefore it is a learning necessary to be
sold Tamen Quaere if there be no difference for the Issue is Quod nullum Denarium inde debet So in Detinue of a chain of three ounces where it weighed but two ounces the Law lay 22 E. 4 Dyer 299. 34. 13. Eliz. 19. Issue was joyned that T. West Issue Miles dominus de la Warre non demisit and in truth he was then Dominus but at the time of the demise he was but Knight yet it seemed to three Justices that the dignity was parcell of the Issue so it could not be found with him that pleaded his Lease Dyer 338. 14. 18. Eliz. 20. In an appeal of the death of a Brother against I. S. of M. c. Appeal as principall and one F. as accessory whereas the name of the principall was T.S. The accessory appears and pleads Nul tiel in rerum natura as I.S. the day of the Writ purchased nor at any time since In this case the two Cheif Justices held That albeit there were another I.S. in another County if it were not in the same County where the Town of M. is or if he were dead before the Writ purchased the Plea sufficeth and there also it was held that in Favorem vitae a man might traverse the Sheriffs Return Hob. 38. 21. In Wast Wast if more Townes be mentioned in the Declaration then in the Writ where the Wast is supposed to be done the Writ shall abate The Earl of Cumberlands case Hob. 118. the Bishop of Yorks case 22. In a Quare Impedit for the Vicaridge of Leeds Amendment the word Vaccariam was inserted instead of Vicariam and exception being taken thereunto it was amended by the Cursitor in open Court Vide 40. 53. 167. Contrariety and Repugnancy And therefore Libera Eleemosina Co. Inst 1. 97. a. 1. If Lands were given to hold In libera Eleemosina reddendo a Rent the Reservation of the Rent seemeth to be void because it is repugnant and contrary to the former grant In libera Eleemosina Co. ibid. 142. a. 3. 2. A man upon his Feoffment or Conveyance cannot reserve to himselfe parcell of the annuall profits themselves Profits cannot be reserved as to reserve the Vesture or Herbage of the Land or the like for that would be repugnant to the Grant Non debet enim esse reservatio de profieiris ipsis quia ea conceduntur sed de redditu novo extra proficia Lit. S. 220. Co. ib. 146. a. 2. 3. When in a generall grant the Law doth give two remedies Proviso repugnant the Grantor may provide that the Grantee shall not use one of them and may leave him to take the other as upon the Grant of an annuity the Grantor may provide that the Grantee shall not charge his person but where the Grantee hath but one Remedy there that Remedy cannot be barred by any Proviso for such a Proviso would be repugnant to the Grant Co. ib. â— 3 4. The like If a man by his Deed granteth a Rent charge out of the Mannor of D. wherein the Grantor hath nothing with a Proviso that it shall not charge his person Here albeit the Repugnancy doth not appear in the Deed yet the Proviso taketh away the whole effect of the Grant and therefore is in Iudgement of Law repugnant for upon the matter it is but a Grant of an Annuity provided that it shall not charge his person The like 5. If a man by his Deed grant a Rent-charge out of Land Co. ib. a. 4. provided that it shall not charge the Land Here albeit the Grantee hath a double Remedy as above is sayd exam 3. yet the Proviso is repugnant because the Land is expressely charged with the Rent but the Writ of unity is but implyed in the Grant and therefore that may be restrained without any repugnancy and sufficient Remedy besides left for the Grantee Condition repugnant 6. If a man give Lands to another Co. ib. 164 a. 2. and to the Heires males of his body upon Condition that if he dye without heire female of his body that then the Donor shall re-enter this Condition is utterly void for he cannot have an heir Female so long as he hath an heir male The like 7. If a man make a Feoffment in Fee upon Condition that he shall not alien this Condition is repugnant and against Law Co. ib. 206. b. 3. 222. b. 4. Litt. S. 360. and the Estate of the Feoffee is absolute But if the Feoffee be bound in a Bond that the Feoffee and his Heirs shall not alien this is good for he may notwithstanding alien if he will forfeit his bond that he himself hath made So it is also if a man make a Feoffment in Fee upon Condition that the Feoffee shall not take the profits of the Land this Condition is repugnant and against Law and the Estate conveyed is absolute But a Bond with a condition that the Feoffee shall not take the profits of the Land is good If a man be bound with Condition to enfeoff his wife the Condition is void and against Law because it is against a Maxime of Law yet such a Bond is good so if he be bound to pay his wife money that is good also Et sic de similibus whereof there be plentifull Authorityes in our Bookes Devise Release c. 8. If a man devise Land upon Condition Co. ibid. 223. a. 1. that the Devisee shall not alien the Condition is void And so it is of a Grant Release Confirmation or any other Conveyance whereby a Fee-simple doth passe for it is absurd and repugnant to reason that he who hath no possibility to have the Land revert to him should restraine the Feoffee Devisee or Grantee in Fee-simple of all his power to alien Chattells 9. If a man be possest of a Lease for yeares or of an House Co. ibidem or of any other Chattell reall or personall and give or sell his whole Interest or Property therein upon Condition that the Donee or Vendee shall not alien the same this is a void Condition because his whole Interest and Property is out of him so as he hath no possibility of a Reverter and it is also against Trade and Traffick and bargaining and contracting betwixt man and man Iniquum est ingenius hominibus non esse liberam rerum suarum alienationem Again Rerum suarum quilibet est moderator arbiter Take also this Rule Regulariter non valet pactum de re mea non alienanda Seigniory in Rent c. 10. If a man be seised of a Seigniory Rent Advowson Common Co. ib. a. 3. or any other Inheritance that lyeth in Grant and by his Deed granteth the same to a man and to his Heires upon Condition that he shall not alien this Condition is also void for the repugnancy Howbeit some have sayd
and then shall take their remedy over Detinue for writings 24 Regularly Co. l. 1 2 3 in the Lord Buckhursts case the writings that concern land belong to the owner of the land and are to be kept by him yet if I am infeoffed to me and my heirs and I enfeoff another to him and his heirs with warranty my heir shall have a Detinue for the déed by which I was infeoffed and shall Count specially viz. upon the special matter in respect of the special loss and prejudice which he may have for want of the déed in case he should be vouched upon the warranty which I made to my feoffée Vide 10 E. 4. 9. b. Rent extinct 25 Tenant in tail remainder in tail Co. l. 1. 62. b. Caples case he in remainder grants a rent charge out of the land and then Tenant in tail in possession suffers a recovery In this case the rent is extinct and gone for it were inconvenient that the land should be subject to the charges both of the tenant in possession and of him in remainder also as to be charged with the statutes or recognisances of tenant in tail and also of him in remainder simul et semel whereas tenant in tail in possession having power to dock both his own estate and the estate of him in remainder by possibility it might never come in possession to him in remainder Fraudulent Conveyances 26 Where a man conveyes his land to the use of himself for life Co. l. 3. 82. b. 2. Standen Bullocks case in Twines case per Warmsley Just from Sir Ch. Wray Ch. Just per tot cur and after to the use of divers others of his blood with future power of revocation as after such a feast or after the death of such a man and afterwards and before the power of revocation commenced he for a valuable consideration bargains and sells the land to another and his heirs this bargain and sale is within the remedy of the Statute of 27 Eliz. cap. 4. for albeit the Statute saith The said first conveyance not by him revoked according to the power by him reserved which séems by the literal sence to be meant of a present power of revocation for no revocation can be made of a future power until it come in esse yet it was held that the intent of the Act was that such voluntary conveyance which was originally subject to the power of revocation be it in praesenti or in futuro shall not stand against the purchasor bonâ fide for valuable consideration if any other construction should be made the said Act would serve for little or no purpose for then it would be no hard matter to evade it So likewise if A. reserve a power of revocation by the assent of B. and after A. bargains and sells the land to another this bargain and sale is good and within the remedy of the said Act for otherwise the good provision of the Act by a small addition and knavish invention might be defeated The like 27 In 38 Eliz. in C. B. betwixt Lee and his wife executrix of one Smith plaintif and Mary Colshil executrix of Th. Colshil defendant Co. l. 3. 82. b. 4. Colshils case reported in Twines case in debt upon an obligation of 1000 marks Rot. 1707. The case was this Colshil the testator had the office of a Customer by Letters patents to him and his deputies and by indenture betwixt him and Smith the testator of the plaintif and for 600 l. paid and 100 l. per annum to be payd during the life of Colshil makes deputation of the said office to Smith and Colshil covenants with Smith that if Colshil dye before him that then his executors should repay unto him 300 l. and divers covenants were in the said Indenture concerning the said office and enjoyment thereof and Colshil was bound to Smith in the said obligation to perform covenants and the breach was alleged for the non-payment of the said 300 l. for that Smith survived Colshil And albeit the said covenant to repay the 300 l. was lawfull yet in as much as the residue of the covenants were against the Statute of 5 Ed. 6. cap. 16. the obligation was adjudged voyd because if the addition of a lawfull covenant should make the bond of force as to that the Statute would serve for little or no purpose Vide plus ibid. Co. l. 4. 122. b. 4. in Bustards case 28 The Rule of Law is Exchange that exchanges ought to be of equal estates and yet if A. hath a reversion in fée of an acre of land expectant upon an estate for life and makes an exchange with B. by déed indented and gives this acre by name of an acre of land and not by the name of the reversion in exchange for another acre In this case albeit B. expect to have the acre so given to him in possession yet in as much as nothing passes by the grant of the acre of land but the reversion the warranty or condition in Law annexed to the exchange cannot by the Law extend to more than passed by force of the exchange for they are incident and annexed to the estate which is given and cannot extend to the franktenement which was in the lessée because if the Law should be otherwise great mischief would ensue for if an exchange be made of divers Manors and peradventure divers parcels of them are in lease for life In this case if the exchange should be voyd because it was not made as of a Manor in possession that would avoid all such exchanges which would be mischievous and there can be no mischief on the other part for when the tenants for life are in possession of the Land it will be imputed the laches and folly of the purchasor that he did not discover it by Survey or some other enquiry Co. l. 5. 90. a. 2. in Hoes case 29 Regularly all writs directed to the Sherif ought to be returned Executions for so the Sherif is by them commanded to do if a Capias in process be not returned the arrest is tortious so likewise an Elegit because the extent is to be done by an Inquest and not by the Sherif alone if it be not returned it is not valid nevertheless in all writs of execution when the Sherif alone doth it as Capias ad satisfaciendum habere facias possessionem or seisinam fieri facias Liberate c. if the execution be duly made it is valid albeit the writ be not returned for if the non-return of the writ by the Sherif should cause new execution to be had against the defendant and should leave him to his action against the Sherif that would tend much to the prejudice of the defendant whose goods are already sold by the writ and process of Law for the satisfaction of his debt Again if the sale of the goods by force of
Livery where a Forfeiture 370 Copyholds and Copyholders 727. 760. 217. No Fine due upon surrender or discent bâ—fore Admittance 45. May lop Trees 47. Their estate confirmed by Custome 58. Surrenders by Attorney and good 68. In by the Surrender not by the Lord 83. Severed by Custome so continue 133. 328. Grantable by Executors 142. Dominus pro tempore 142. Grantable in fee may be granted for life 216. Their Fines must be reasonable 213. Surrenders before admittance good 327. In pleading may alledge an Admittance as a Grant Copy-hold Customes 759. Extinct 463 Conveniency things respected by reason of their conveniency 428 Cornage 162 Corodies 228 254 Corporations 390. 708. 719. Failing the Lands revert 29. Hold Lands by Knights service 36. Where granted is dissolved upon a Release 52. 53. Translated enjoy their old Priviledges 154. Single and aggregate 150. Altered yet the body remaines 354 Corruption of Blood 161 Coronors their Inquest 244 Costs 564 Covenants joynt and severall 89. What bind betwixt Lessor and Lessee 133. Incident to the Lands and came with it 135. Implyed and expressed 157. Have speciall relation 167 Covin apparent need not be shewed 603. Hinders a Remitter 612. Not presumed unlesse averred 725 Cui in vita 765 Custome Concealed 14. Of goods lost by Tempest not recoverable 591 Customes bindes strangers 145. Of Burrough English 148. 244 313. To have a Fine for marrying the Daughter 352 Cou t s made good by the Bar and Replication 249. Must containe certainty and verity 605. abated by mis-recitall 470 Courts Baron 135. By Commission cannot sit in Terme where the Kings Bench is 223. Remedy for spirituall things in temporall Courts 234 Of Record onely have power to imprison 367 D. DAyes in Court and pleadable 7 Damages severall amongst Parcenors 237. When they shall be layed in the Count 597. And increased e contr 502. Double Writs of Enquiry of them 696 Darriane Presentment 331. 341. 382. Demand of a Rent when to be made 489 490 491 492 493. 495. 474. Of the purchase of a Villaine 495 Deeds must be avoided by Deeds 71 72. In whose custody to remaine 127. In Cases of necessity may be proved without shewing them 425. Made void by rasure c. 590. Fraudulent void 613 614 615. 691. Not to be pleaded without shewing 706 Death Not traversable 603 Delivery Of Goods by the Banckrupt not good 207 Degrees Of worthinesse of the Lands 269 Demise of the King no change by it 145 Demise of goods 151 Debt for rent after a Surrender 144. Extinct 154. 172. Against Executors 157. 161. 288. Against the Heire 556 Denial 596 Deraignment purgeth Profession 73 Deprivation 289 Detinue by the heir of Deeds 691. For Charters 136. Of Charters where no Plea 195 Devise 715. 770. One equall part of Capite Land to discend 209. For Executors to sell 221. Of the third part 327. Of a Reversion sold by Executors 336. Shall make a Fee-simple by Construction in Law 709 Demand the forme of it in a Writ 17. Of rent must be upon the Land and when 52. 245. 460 490. Not to be by the King 295 Demurrer 296 Devastavit 754 756 Dignity forfeited for Treason 138. Restrained to an estate for life 156. Respected for conveniency 428 Discent 293. 311 312. When privity of blood faileth 32. Where shall take away Entry Et e contra 32 134 609. To Daughters and not Parcenors 51. In stirpes in capita 61. By Entry into Region 62. Where not good against the King 62. One out of the Realm not barred by a discent 216. Takes away Entry 577. 591. 683 716. Of the Bastard eigne where it shall bar the Mulier 493 Discontinuance 20 56 57 325 368 270 Removed the Issue may enter 33. Defeated upon a surrender 33. Of an Estate tail 44. 55. Once defeated all that depends upon it is gone 117. Where a Bar Et e contra 185. Of the Lands by the husband 218. By enfeoffing the Donor and a stranger 256. The reason of it 697 Discontinuance of Suit 557 Dispensations 160. To take two livings 22 101 Disseisin 696. Not of a Rent without Attornment 217. Not of a Rent-charge or Seck but at Election 462. In time of warr takes not away Entry 488 Disseisor and Disseisee 235. May be no Tenant of the Land 563 Disfranchisement 107 Disceit 147 596 Disclaimer 364. 368. Where it shall bind e contr 55. In the blood 459 Disability 343. 570. To make a Surrender 602 Distresse for Damage feasant most be upon the Land 31. Of the Lord out of his fee when 42. Of the Lord Paramount without attornement 82. No Distresse is irreplevisible 168. For owelty of Partition 237. In the night 418 Not for certainty in Leet 549. For more rent then is due where justifiable 468 469. In another County 418 Division of Lands in Hotch pot 205. Of the Testators goods 205 Divine service by Prescription 683 Divorce 593. Causa frigiditatis 714. Sentence in case of Divorce repeated after the death of the parties 498 Donative Charges donative may be made Presentative 462 Double Pleas 625 Dower where it lyeth against the Guardian e contr 35. Of a woman at nine yeares of age 37. Ex assensu Patris where not good 73. 622. Dos non de dote 79 According to the improved value 79. of Copyhold 91. 556. Where not of the Rent but of the Land 125 Of intire things 207. Ad ostium Ecclesiae 220. 622. Of Castles where e contr 729. Of the pluis beate parte 730. Of Rent to be delivered by the Sheriff 429 Dutchy of Cornewall 720 Drunkard 570 E. ECclesiasticall persons cannot prejudice their Church 4. Cannot disclaim 4. May resigne to the King 220. Ecclesiasticall Courts may take Recognizance of a debt 239. Where Temporall Courts are to take notice of their Jurisdiction 599. Ecclesiasticall Lawes What are in force 7. Founded by the Common Law 71. Ejectione firmae 141. 727. Of what it lyeth not 18. Not within the Statute of 32 H. 8. of Titles 92. By the Lessee of a Copy-holder 545 506 Estates Deseiable 122. Upon accruer 122 Particular and Remainder one Estate 187. Voidable evicted by Guardian and Bishop 192. In taile cannot drown 201 Two Estates made together of one Land 207. Once void remedilesse 395. Executed and Executory 396. Altered and charged 433 Election 159 473 474 475 477. Of a Writ of Annuity or Distresse 473. Lost by doing wrong 565. By Coparcenors 478. To Corporations 753. Of the Knights of the Parliament 550. Of the Heir and the Lord 475. Of things in grant 475. Of Entry and Actions 476 Enfranchisement 356 459. For a time 161 Enfant May attorne 48. Shall do his Services ibid. Where shall not have his Age 48. Cannot be Guardian 104 Where his plea shall demurr for Enfancy 315. Shall not account 319. Their Acts upon Record not voidable 369. Married before yeares of consent 402. Compellable to attorne 415 Entry congeable 40 44 Entry Taken
performe the effect or consequence of a thing shall not have the thing it selfe fol. 104 XXXVI Non officit Conatus nisi sequatur effectus fol. 107 XXXVII Acta exteriora indicant interiora secreta fol. 108 XXXVIII Inutilis Labor sine fructa non est effectus Legis e contr fol. 110 XXXIX Lex non Praecipit inutilin fol. 112 LX. Debile Fundamentum fallit opus e contr fol. 113 LXI Things incident are adherent to their Superiors or Principalls fol. 127 LXII Quod tacite intelligitur de esse non videtur fol. 137 LXIII Things by reason of another are in the same plight fol. 141 From personall things LXIV Personall things cannot be done by another fol. 150 LXV They cannot be granted or transferred over as matters of pleasure ease trust and authority fol. 153 LXVI They being once suspended or discharged for a time are for ever after Extinct fol. 154 LXVII They dye with the person fol. 155 LXVIII Things do enure diversly according to the diversity of the time fol. 157 LXIX Quod prius est tempore potius est jure fol. 159 L. According to the diversity of the same person fol. 160 LI. According to the diversity of severall persons fol. 162 LII Relation is of great force in Law fol. 165 LIII Verba posteriora propter certitudinem addita ad priora quae rertitudini indigent sunt referenda fol. 167 LIV. No man can do an Act to himself fol. 168 LV. The Law favoureth Privity fol. 172 LVI Equall things cannot drown one another e contra fol. 190 LVII Things are to be construed secundum aequalitatem rationis fol. 190 LVIII In quo quis delinquit in eo de jure est puniendus fol. 202 LIX Omne Majus Continet in se minus fol. 206 LX. Additio probat minoritatem fol. 211 LXI A matter of higher nature determineth a matter of lower nature e contra fol. 212 LXII The more worthy thing draweth unto it things of less worthiness fol. 215 LXIII Accessarium sequitur Principale fol. 218 LXIV Things accessary are of the nature of the Principall fol. 226 LXV A mans one words are void when the Law speaketh as much or otherwise fol. 231 LXVI Expressio eorum quae tacite in sunt nihil operatur fol. 235 LXVIJ Parte quacunque integrante sublata tollitur totum fol. 236 LXVIJJ Ex tota materia emergat Resolutio fol. 238 LXJX Partes simul sumptae componant totum totum comprehendit suas partes fol. 241 LXX Intire things cannot be severed fol. 242 LXXI Argumentum a Divisione est fortissimum in lege fol. 260 LXXII Generalls must go before and the specialls must follow after fol. 261 LXXIII The more worthy shall be set before the lesse worthy fol. 261 LXIV Sicut natura non facit saltum Ita nec Lex fol. 263 LXXV A digniori fieri debet Denominatio Resolutio fol. 265 LXXVI The Law requireth decency and order fol. 267 LXXVII Negatio Conclusionis est Error in Lege fol. 268 LXXVIII The Law respecteth the Bonds of Nature fol. 268 LXXIX Nemo praesumitur alienam posteritatem suae praetulisse fol. 285 The Law LXXX The Law esteemeth and judgeth of all things according to their nature and quality fol. 286 LXXXI In persons the Law looketh at the Excellency of some and giveth them singular priviledges above others as to the King Queen Noble men and Peers of the Realm c. fol. 292 LXXXII The Law giveth greater priviledges to men then to women fol. 313. and LXXXIII It tendreth the weakness and disability of other persons as of those out of the Realme Feme Coverts Enfants c. fol. 313 LXXXIV It tendreth the ignorance of men unlettered fol. 322 LXXXV It favoureth strangers that are neither parties nor privies fol. 323 LXXXVI Res inter alios acta alteri nocere non debet sed quandoque prodesse potest fol. 327 LXXXVII Nemo punitur pro alieno delicto fol. 336 LXXXVIII The Law favoureth things done in anothers right fol. 338 LXXXIX It disfavoureth other persons as Villains Outlawes Exiles Aliens and especially Aliens Enemies fol. 343 XC How the Law tendreth Ages fol. 348 XCI The Law in things respecteth every thing according to worthiness fol. 250 The Law XCII It respecteth life and liberty most and the person above the possessions fol. 353 XCIII it respecteth things in the realty more then those in the personalty fol. 359 XCIV It respecteth Freehold and Inheritance more then it doth Chattels fol. 362 XCV It respecteth matters of Record more then other transactions fol. 368 XCVI It respecteth Conveyances by Livery and which pass Estates of the land then those that pass by Grant or are belonging to or issuing out of land fol. 371 XCVII It favoureth a matter in the right more then a matter in possession fol. 373. yet XCVIII It favoureth possession where the right is equall fol. 375 XCIX It respecteth matters of profit and Interest largely of pleasure skill trust authority and limitation strictly fol. 376. and C. Therefore these may be Countermandants so cannot those fol. 381 CI. It respecteth matter of substance more then matter of circumstance fol. 382 yet CII For memory and solemnity substances are to be exprest under circumstances fol. 393 CIII It respecteth things executed and done more then Executory and to do c. fol. 395 CIV Possibility of things fol. 403. and CV Therefore nothing to be void which by possibility may be made good fol. 406 CVI. Id certum est quod certum reddi potest fol. 408 CVII Res non per se invicem sed per pecuniam estimantur non pecunia per res fol. 411 The Law CVIII It favoureth mutuall recompence fol. 411 CIX De minimis non Curat Lex fol. 418 CX It yeildeth favour in actions when there is no damage of them 1. Necessity fol. 420 CXI 2. Conveniency fol. 428 CXII 3. Conformity fol. 429 CXIII 4. Colour fol. 431 CXIV It prizeth the Acts of God and of the Law more then those done by the party fol. 432 CXV Vtique fortior est dispositio Legis quam hominis fol. 446 CXVI It reputeth that a man will deal for his own advantage best fol. 153 and CXVII Therefore it beleiveth against the party whatsoever is to his prejudice fol. 459 CXVIII When severall remedies are given the party to whom the Law giveth them hath election which he will take fol. 473 CXIX Cujus est divisio alterias est Electio fol. 478 CXX Nemo prohibetur pluribus defensionibus uti fol. 479 CXXI Consensus tollit Errorem fol. 481 CXXII Volenti non fit injuria fol. 482 CXXIII Quilibet potest renunciare juri per se introducto fol. 483 CXIV Omnis Ratihabitio retro-trahitur mandato seu licentiae aequiparatur fol. 485 CXXV Nemo tenetur accusare seipsum fol. 486 CXXVI Nec se infortuniis periculis exponere fol. 487 The Law CXXVII
sorts Latine words Sensible and Insensible the first is good and congruous Latin allowed by Gramarians And this without question is within the Statute of 36 E. 3. 15. which ordaines that all pleas shall be entred and enrolled in Latin The second sort are such words as these Messuagium Tostum Gardinum Bruera Jampna c. These and the like are allowed not only in Pleas but also in originall writs for these are such words as are knowne to the Sages of the Law and are also within the Statute of 36 E 3. such words as are called words of Art and are frequent also in other Sciences as amongst the Civilians Reprisalia Feuda Shopa Sollaria c. who use many times to explaine them by Anglicè c. as Sollaria anglicè Ware-houses The Physicians also use Brothium for broth and the like The third sort is false and incongruous Latin this shall abate an originall writ but shall not make a Iudicial writ count pleading or judgement vicious for false Latin shall in such cases be amended And therefore a fortiori such Latin or false English shall not avoid a grant or déed when the intention of the parties may appeare M. 3 4. El. R. 1350. M. 44 45. R. 1031. 9 H. 6 7. 9 H. 7. 16. 2 H 4 8. M. 11. Jac. as in a bill or bond Octogenta Septungenta Wiginti Sewteene or the like shall be taken for Octoginta Septingenta Viginti Seaventeene c. Also when there is no latin for a word as for a Stirrup Velvet c. Strapedia Velvetum c. may be used because they have the countenance of latin so also Operimentum for a Rugge Howbeit in such case for explanation sake it will be fit also to insert the word Anglice as Operimentum anglice a Rugge Duas virgatas velveti anglice of velvet c. The fourth and last sort are insensible words as in a case of a Replevin P. 36 El. Gawins case Vitrium for Vitrum glasse yet in that case the Court did incline onely to adjudge it false latin because it had the countenance of latin and the Court was sufficiently ascertained that glasse was meant by it P. Co. 85. b. in Partridges Case 7 If I give you a quart of wine you shall not have the quart-pot Phrase of speech but if I give you an Hogshead of wine you shall have the Hogshead for the phrase of the language expresseth the intent so 11 acres belonging to a Messuage will sufficiently declare which 11 acres are meant although land is not properly said to belong to an house but the house to land Co. l. 2. 72. a. the Lord Cromwels Case 8 Note in Docwras case 27 H. 8. 18. a. in Littl. cap. conditions 14. Where a Proviso makes a condition and where not El. Dyer 311. 4. and 5. P. M. Dyer 152 that this word Proviso makes a condition But when the Proviso depends upon another sentence or hath reference to another part of the deed it never makes a condition but a qualification or limitation of the sentence or part of the déed unto which it referres as in 5 El. 22. inter Eyre and Orme a notable case so in 7 H. 6. a lease without impeachment of wast provided that he shall not make voluntarie wast In Littl. Sect. 220. A grant of rent charge provided that the grantée shall not charge his person Tramingtons case in the K. B. P. 16. El. Rot. 273 there a Proviso tending to a qualification and to explaine a precedent sentence makes not a condition And 3 4. P. M. 150. Parkers case a Proviso amounts to a covenant see 28 H. 8. Dyer 13 b. Utrumque 9 Three were bound in an obligation thus Dyer 19. 114. 28 H. 8. Obligamus nos utrumque nostrum per se pro toto in solid The question was whether or no this obligation was several And one of the Iudges was of opinion that it was not several because utrumque is properly of two viz. both And it should have béen quemlibet nostrum c. when more than two are bound Howbeit it séemed to the Court that the obligation was good and several Vide 31. 12. Confirmation 10 If the disseisée confirme the estate of the disseisor Littl. Sect. 519 520. though it be but for an hour he shall have a lawfull estate in fee simple for ever quia confirmare est firmum facere Exposition of illa 11 If the King or a common person grant omnia illa messuagia in tenura Johannis Browne scituat in Wells Co. l. ◠33. a. Dodingtons Case whereas in truth they lie in D. in this case because the grant is general and is restrained to a certaine Towne the Patentée or Grantée shall not have any lands out of that Towne unto which the generaltie of the grant referres and this case is the stronger because of the Pronoune illa for omma illa messuagia c. maketh necessary reference as well to the towne as to the tenure of I. B. so that if either faile the generall grant is void for illa is not satisfied untill the sentence be ended and illa governs the whole sentence to the full point Vide infra max. 10. cap. 5. Commencement of a Lease 12 Indentures of demise were ingrossed bearing date the 26 of May Anno 25. Co. l. 5. 1. a. Claytons Case Eliz. to have and to hold for three yeares from henceforth and the Indentures were delivered at 4 of the clock in the afternoone of the 20 day of June Anno praedicto Eliz. In this case from henceforth shall be accounted from the time of the delivery of the Indentures and not by any compatation from the date for from henceforth is as much as to say from the making or from the time of the delivery of the Indentures or a confectione presentium because the confection or making of the Lease commenceth by the delivery and these words from henceforth or any other words of the Indenture are not of any force or effect untill the delivery Quia traditio facit loqui tantum Vide suprà 2. 9 In Conjunctivis oportet utrumque Bract. l. 2. fol. 19. a. in disjunctivis sufficit alteram partem esse veram Conjunction copulative 1 If lands be given in taile upon condition Littl. Sect. 364 that if the tenant alien in fée fée taile or for terme of life c. and also if all the issues of tenant in tail die without issue that then it shall be lawfull for the donor and his heires to re-enter Taile here the right of the intaile may this way after discontinuance be preserved to the issue in taile if any be so that upon entry of the donor and his heirs the estate taile shall not be defeated for such condition Condition And yet in this case if the tenant in taile or his heires make any discontinuance
general words which are more remote and not to the words of qualification which are néerer unto them Pretended rights 3 The Statute of 32 H. 8. 9. provides Pl. Co. 88. 6. in Partridges case that none shall buy rights of titles in land unlesse such person c. have béene in possession of it or of the reversion or remainder of it or have taken the rents and profits of it by the space of one whole yeare next before Here these words by the space of one whole yeare shall be onely referred to the sentence next before viz. the taking of the rents and profits Abbey Lands Leases 3 The Statute of 31 H. 8. 13. ordaines Pl Co. 107. a Fulmerstons case that farmers of Abbey lands which had then Leases in being should enjoy them for 21 yeares from the time of the making of such leases if so many years were therein limited or else they should enjoy them for so many yeares as in such lease or leases were expressed so that the same lease or leases exceeded not 21 yeares Here this last sentence so that c. relates to the clause next going before it and not to the first Ad proximum antecedens fiat relatio Alienation of an entail 4 Sir Th. Cheyney in 1 El. deviseth c. to H. his sonne Co. l. 5. 68. a. The Lord Cheyneys case and to the heires male of his bodie remainder to Th. Cheyney of D. and the heires male of his bodie upon condition that he or they or any of them shall not discontinue The question was whether or no H. the sonne was included within these words he or they And it was resolved by Wray and Anderson after conference had with other Iudges that those words should not be referred to the grant made to H. the sonne but onely to the grant made to Th. Ch. of D. Tithes 5 Qu. El. grants to I. S. Totam illam portionem decimarum Co. l. 4. 35. a. Bozoms case c. in L. in com N. cum omnibus aliis decimis suis quibuscunque in L. in dict com N. nunc vel nuper in occupatione I. C. Here these last words nunc vel nuper c. referre to the whole sentence and not to the later part of it onely viz. cum omnibus aliis c. 1 Because the first words are Totam illam portionem Decimarum c. So that this pronoune illam sheweth plainly that there ought to be subsequent words to explain and reduced into certaintie what portion by the intention of the Qu. shall be granted The reference of illam viz. that which was in the occupation of I. C. And therefore this pronoune illam is not satisfied untill you come to the full end of the sentence 2 This Conjunction cum omnibus aliis c. couples the last words with the former and makes the subsequent words referre to the whole sentence Vide supra Max. 8 Case 11. Dyer 46. b. P. 31 32. H. 8. 6 An Indictment found in this manner that Eliz. fuit in pace Indictment c. quousque A. vir prefatae Eliz. de D. in com S. yeoman did kill her is good for the addition yeoman must of necessity referre to the husband because a woman cannot be a yeoman But an Indictment Quousque Alicia S. de D. in comit S. uxor I. S. Spinster c. is not good again Alice S. for there Spinster being an indifferent addition both to man and woman must referre to I. S. being the next antecedent and so the woman hath no addition 9 E. 4. 48. so likewise an indictment against I. S. serviens I. D. de D. in com Midd. yeoman is not good for servant is no addion and yeoman referreth to the Master which is the next antecedent Dyer 15. b. 28 H. 8. 7 A man makes a lease for life the remainder in taile In forma pâ—dicta the remainder to I. S. in forma praedicta this shall not referre to the estate which is the next before but to the first estate because there wants the word heires to cause him to have an estate taile Dyer ibid. 8 A man is bound to abide the award of I. S. who awards Relation of time that the one party shall pay before such a feast 10 l. to the other and that then the other shall make him a release This word then shall not be referred to the feast but to the time of payment of the money Dyer ibid. 9 In a Cui in vita brought by a feme the writ is Cui in vita Cui ipsa in vita sua contradicere non c. this word sua shall not be referred ad proximum antecedens viz. ipsa but to the baron 11 The Law delighteth in apt expressions Co. Inst pars 1 302. a. 1 Whensoever a Confirmation doth enlarge or give an estate of Inheritance there ought to be apt words as Littl. expresseth them Sect. 533 used for the same Apt words Co. ibid. 297. a. 2 If a disseisor make a lease for 100 yeares Confirmation the disseisée may confirme parcel of those years but then it must be by apt words for he must not confirme the lease or demise or the estate of the Lessée for in that case though it should be but for an houre it gives the disseisor fee simple for ever as you have it in Littl. Sect. 519 and 520. and then also the addition of parcel of the terme would be repugnant if the whole were confirmed before but the confirmation must be of the Land for part of the terme Co. l. 1 85. a. in Corbets Case 3 Iudges ought to know the intention of the parties by certaine and sensible words Certain and uncertain words which are agréeable and consonant to the Rules of Law And therefore if land be given by déed to two to have and to hold to them haeredibus this is voide for the insensibility and uncertainty And albeit they have a clause of warranty to them and to their heires this shall not make the first words which are uncertain and without sense to be of force and effect in law although his intent appeare for his intent ought be declared by words certaine and consonant to law Co. l. 6. 26. a. Sharps Case 4 If one saith thus unto another Improper words I do here demise unto you my house for terme of your life this is a good beginning if actual livery be made accordingly or if he use apt words which may amount to so much but without livery or such words such a demise doth amount but to a Lease at will Vide Thorough goods case Co. l. 9. 137. b. Co. l. 6. 43. a. 5 In Sir Anthony Mildmayes case it was observed Compendiousness that in the Proviso there to restraine the tenant in tail from alienation found at large by the speceial
rerum Co. Inst 1. 68. b 1 Right Interpretations and Etymologies are necessary for Etymologie Ad rectè docendum primum oportet nomina inquirere quia rerum cognitio à rerum nominibus dependet And herewith agreeth that which is said Primò excutienda est verbi vis ne sermonis vitio obstruatur oratio sive lex sine argumentis Co. ibid. 86. b. 2 By the Etymologie of the word Soccagium Soccage Littleton declareth the nature of tht tenure distinguisheth it from Knight service whereby it appeareth that names of things are diligently to be observed for distinction sake and to avoid confusion Nomina si perdas certè distinctio rerum perditur Co. l. 5. 122. a. 3 In Longs case in the 5. Rep. a wound may be as properly said to penetrate as a bullet quia penetro derivatur à penitùs intrò 13 Mala Grammatica non vitiat chartam Co. Inst pars 1. 146 b. 223. b 1 Sir Edward Cooke observes that Littl. Sect. 220. A double Negative in a grant of an Annuity inserts a Proviso for the discharge of the Grantors person with a double Negative viz. nec aliquid in eo specificatum non aliqualiter se extendat c. Here nec and non do in a Grammatical construction amount to an affirmative for Negatio destruit negationem ambo faciunt affiamativum yet the Law that principally respecteth substance doth judge the Proviso to be a Negative according to the intent of the Parties and not according to Grammatical construction to the end the Proviso may take effect Howbeit observe that in Gréek and French a double negative maketh the negation more forcible And therefore Quere whether Littleton being much acquainted with the Law-french doth not expresse that Latin according to the French Phrases False Latine 2 Falsa Orthographia aut grammatica non viâ—iat concessionem Co. l. 9. 48. a. in the Earl of Shrâ—wsburies case semper ille numerus sensus abreviationum accipiendus est ut concessio non sit inanis And therefore if the King grant Tot. ill Maner de D. C. if it be in truth but one Mannor then those abreviations tot ill Maner shall be taken in the singular number for Totum illud Manerium but if they be in truth two distinct Mannors then they shall be taken in the plural number for Tota illa Maneria for otherwise the grant would be void In 32 E. 32. 3. A Scire facias rehearseth that a fine was levied de maneriis B. H. and the conclusion was Quare praedictum Manerium de B H. ingressus est and it was adjudged good with averment that B. and H. were indéed but one Mannor One Office in two persons 3 Letters Patents made to John Periont and Wâ—llim Tooke de officio unius Auditorum curiae suae Wardorum was adjudged good Co. l. 11. 3. a. Auditor Earls Case for albeit the statute enacts that there shall be two persons which shall be called Auditors of the Lands c. so as there shall be two persons and they called two officers yet it is but one office and they are both but unus officiarius and so the Statute it selfe saith Those two persons called Auditors shall be called the fourth officer of that Court And therefore the grant de officio unius Auditoris or unius Auditorum is good enough The like case is adjudged in 9 E. 4. 1. upon the grant de efficio unius Clericorum de Corona in Cancellaria c. according to the Rule Mala grammatica c. False Latine 4 An Indictment or Count shall not be quasht for false Latin or false Orthographie Co. l. 5 121. a. Longs case so that a proper Latin word may be knowne by it as Praefato Reginae Mamilla Diffamo diffinitio for Praefatae Mammilla Defamo Definitio 14 Qui haeret in littera haeret in Cortice Vide Pl. Co. 109. b. c. 1 Although by the words of the Statute of Westm 2. cap. 4. Co. Inst 1. 356. a. 283. a. upon a recovery by default against baron and feme Recovery by default à quòd ei deforceat is not allowed them because the baron is not properly tenant for life but seised onely in the right of his wife and therefore out of the words of that Statute yet the contrary hath béen often adjudged for Westm 2. 4. the Law of England respecteth the effect and substance of the matter and not every nicitie of forme or circumstance Aspices juris non sunt jura parù differunt quaere concordant 2 A man seised of lands in fée levied a fine to the use of himselfe for life and after to the use of his wife Co. ibid. 365. b. No discontinuance St. 11. H. 7. 20. and of the heires male of her bodie by him begotten for her Iointure and had issue male and afterwards he and his wife levied a fine suffered a Common recovery the husband and wife died the issue male entered by force of the Statute of 11 H. 7. 20. this was no discontinuance to barre the issue male but his entry was adjudged lawfull and yet this case is out of the letter of that Statute for she neither levied the fine c. being sole nor with any other after taken husband but it is by her selfe with her husband that made the Iointure B A man is seised of lands in right of his wife and they two levie a fine and the conusée grants and renders the land to the husband and wife in special taile the remainder to the right heires of the wife they have issue the husband dieth the wife taketh another husband and they two levie a fine in fée and the issue entreth this is directly within the letter of the Statute of 11 H. 7. 20. And yet it is out of the meaning thereof because the state of the land moved from the wife so as it was the purchase of the husband in letter and not in meaning Co. ibid. 381. b. 4 By the letter of the Statute of Glocester 6 E. 1. cap. 3. Discontinuance A fine levied by the husband alone of the wives land shall barre the heire for the statute séemes to intend all alienations except by fine because it is there said whereof no fine is levied in the Kings Court Howbeit by the meaning of that Statute the heire shall not be barred Gloc. 3. for such a fine would worke a wrong to the wife but the fine meant by the Statute is a fine levied by the husband and wife together for such a fine is lawfull and worketh no wrong and a fine by the husband onely would worke the same mischiefe for which the Statute ordaines remedie and therefore shall not barre the heire though it be with warrantie unlesse the heire have assets by descent c. Co. l. 5. 5. b. The Lord
homage Ancestrell again so it is if a Copihold escheat and the Lord maketh a feoffment in fée upon Condition and entreth for the condition broken it shall never be Copihold again because in both these cases the custome or prescription which supported and was the cause of the tenure is interrupted and that being once broken is become remedilesse The land evicted the Annuity is gone The mariage failing the land revests 17 If a man grant an annuitty ppruna acra terrae Co. ibid. 204. a. 2. if the acre of land be evicted by an elder title the annuity shall cease so if it be pro decimis and the grantee be disturbed or pro consilio or quòd praestaret consilium and the grantee refuse to give counsel the annuity shall in these cases cease likewise if a woman give lands to a man and his heires causa matrimonii praelocuti in this case if the man refuse to marry her she shall have the land againe to her and her heires but it is otherwise in case of a man Co. ibid. 238. a. 4. 18 If a disseisor make a gift in taile A dying seised and yet no descent to take c. and the Donee discontinueth the fée and after disseise the discontinuee and dieth seised this discent shall not take away the entry of the diseissée For the discent of the Fée simple is vanished and gone by the Remitter And albeit the issue be in by force of the estate taile yet the Donée died not seised of that estate and of necessity there must be a dying seised Co. ibid. 239. a. 2. 19 When the degrées are past so as a writ of Entry in the Post doth lye yet by event it may be brought within the degrées again A writ out of the degrees may be reduced as if the disseisor enfeoffe A. who enfeoffes B. who enfeoffes C. or if the disseisor die seised and the land descends to A. and from him to B. and from him to C. Now are the degrées past and yet if C. enfeoffe A. or B. now is it brought within the degrées again Co. ibid. 242. b. 1. 20 If the eldest sonne hath issue and dieth A descent when privity of bloud faileth and after his decease the younger sonne or his heire entreth and many descents cast in his line yet may the heires of the eldest sonne enter in respect of the privity of bloud and of the same claime by one title But if the younger sonne make a feoffment in fée and the feoffée dies seised that discent shall take away the entry of the eldest in respect that the privity of bloud faileth Co. ibid. 285. a. 4. 21 If an action of wast be brought by Baron and feme in remainder in special taile Death voidâ— the action and hanging the writ the wife dieth without issue the writ shall abate because every kind of action of wast must be ad exhaeredationem Co. ibid. 291. a. 4. Execut. 7. 22 If the bodie of a man be taken in execution upon a Ca. sa and the Plaintiffe releaseth all actions Release of debt excuseth execution yet shall he still remaine in execution but if he release all debts duties or judgements he is to be discharged of the execution because the debt or the dutie or the judgement which is the cause of the execution is discharged Co. ibid 312 a. 1. 23 The Reason that Littleton giveth of the difference betwéen a rent-service and a rent-charge is Avowry for a rent service upon the person for that in rent-service the avowry shall allwayes be made upon the person but in rent-charge never upon the person but upon the Land charged Now here it may be said that this reason is taken away by the Statute of 21 H. 8. 19. For by that Statute the Lord needs not avow for any rent or service upon any person in certaine and then by Littletons reason there néedeth no privity to the attornment of a Seigniory for say they Cessante causa ratione legis cessat lex As at the Common Law no aide was grantable of a stranger to an Avowrie because the Avowrie was made of a certaine person but now the Avowrie being made by the said Act of 21 H. 8. upon no person therefore the reason of the Law being changed the Law it selfe is also changed and consequently in an Avowrie according to that Act aid shall be granted of any man and the like in many other cases which case is granted to be good Law But albeit the Lord as hath béen said may take benefit of the Statute yet may he avow still at his election upon the person of his tenant and albeit the manner of the Avowrie be altered yet the privity which is the true cause of the said difference remaineth as to an Attornment Littl. § 568. Co. ibid. 316. a. 3. 24 If the reversion of Lessée for life be granted Upon alienation the grantee shall attorn and Lessée for life assigne over his estate the Lessée cannot attorne but the attornment of the Assignée is good because as Littleton saith it behoveth that the tenant of the land do attorne and after the assignement there is no tenure or attendance c. betwéen the Lessée and him in reversion so likewise if Lessée for life assigneth over his estate upon condition he having nothing in him but a condition shall not attorne but the assignée may attorne because he is tenant of the land The assignee of tenant by possession shal â—attorn 25 Tenant in taile after possibility of issue extinct shall not be compelled to attorne for the inheritance which was once in him Co. ibid. 316. a 4. but his assignée shall be compelled to attorne because then that priviledge is lost the assignée having in him onely a bare estate for life Release of quarrels is release of Act. 26 Quaerela being derived à quaerendo properly concerneth personal actions or mixt at the highest Co. ibid. 292. a. 3. for the Plaintiff in them is called Quaerens and yet if a man release all quarrels it is as beneficial as all actions for by it all actions both real and personal are released because by the release of all quarrels all causes of actions are released albeit no action be then depending for the same Where the estate is defeasible the tenant is not compelâ—able to attorn 27 It is a general rule that when the grant by fine is defeasible Co. ibid. 318. a. 4. 36 H. 6. 24. there the tenant shall not be compelled to attorne As if an infant being seised of a reversion levie a fine thereof this is defeasible by writ of error during his minority and therefore in this case the tenant shall not be compelled to attorne so likewise if before the Statutes of 4 H. 7. 24. and 32 H. 8. 36. a tenant in taile had levied a fine the tenant could not have béen
the rent is in nature of coparcenary and after the death of the one grantée the moity of the rent shall descend to her issue in course of copâ—rcenary not survive to the other for that the rent doth come in recompence of the land and therefore shall ensue the nature thereof if the grant had been made to them two of a rent of 20 s. viz. to the one 10 s to the other â—0 s. yet shall they have the rent in course of coparcenary and shall also joyn in action for the same Co. l. 5. 8. a. 2. Cases of Leases Justice Windhams case The like 12 If two Coparceners by deed indented alien both their parts to another in fee Co. ibid. 169. b. 4. 38 E. â— 26. b. rendring to them two and their heires a rent out of the land In this case they shall not be joyn-tenants of that rent but shall have it in course of coparcenary because their right in the land out of which the rent is reserved was in coparcenary Joyn-tenants and tenants in common 13 If two tenants in Common be disseised Littl. § 311. Co ibid. 195. b. 3. each of them shall have a several assize for his moity because they claime and are seised by several titles but if 20 joyn-tenants be disseised they shall have but one assize in all their names because they have but one joynt title The like 14 If there be three joyn-tenants Littl. § 312. Co. ibid. 196. a. 1. and one releaseth to one of his companions all his right c. and after the other two are disseised of the whole In this case the two others shall have one assize in both their names for the two parts because at the time of the disseisin they held them by a joynt title but as to the other third part he to whom the release was made ought to have a several assize of that in his owne name because of that part he is tenant in common and hath title to it by force of the release and not onely by force of the joynture Coparceners 15 If two Coparceners have issue each of them a sonne and die Littl. § 313. Co. Inst pars 1 196. a. 4. and the sonnes before partition are disseised in this case they shall joyn in an Assize for although they claime by several titles in respect of the several descents from their mothers yet in as much as the land intirely descended from their grand-father to their mothers they are in Law accompted Parceners and a writ de partitione facienda lyeth betwixt them and consequently shall have but one Assize Tenants in common 16 In real and mixt actions tenants in common shall sever in action because they have several freeholds and claim by several titles Co ibid. 195. b. 3. 198. a. 2. but they shall have actions personal joyntly in all their names as an action of trespass of accompt against the Bailiff of their Mannor or the like and in this case also the survivor takes place because these actions found in the personalty and not in the realty and the trespass and damage done unto them which indéed is the cause of the action is joynt and therefore ought to be joyntly prosecuted and shall also joyntly survive and the same Law is of Coparceners Moâ—tgage 17 If the feoffée in mortgage before the day of payment Littl § 339. Co. ibid. 209. b. which should be made unto him make his executors and die and his heire enters into the land as he ought c. It séemes in this case that the feoffor ought to pay the money at the day appointed to the executors and not to the heire of the feoffée because the money at the first accrued unto the feoffée in the nature of a duty and it shall be intended that the estate was made by reason of the lending of the money by the feoffée or in respect of some other duty A mad man 18 In criminal causes as felony Co. ibid. 247. b. 1. ubi vid. Pl. an Plowd 19. a. c. the act and wrong of a mad man shall not be imputed to him for that in those causes Actus non facit reum nisi mens sit rea and he is said to be Amens that is sine mente And therefore his madnesse being the cause thereof and not his intention he is excusable C. l. 4. 124. b. 2. Beverleys Case Entry and â—laim 19 Littleton saith that if a man having title to enter into lands Co. ibid. 253. b. 1 2. dare not do it for feare of beating mayming or death that then he ought to approach as néere the land as he dare to make his claime yet in this case every doubt or feare is not sufficient for it must concern the safety of his person not of his houses or goods for the fear of burning his houses or of taking away or spoyling his goods are not sufficient causes to make him forbear to make his entry or claime upon the land because he may recover the same againe or at least damages to the value of them without any corporal hurt And here also though the feare do concerne the person yet it must not be a vaine feare but such as may justly cause a constant man to be affraid by reason of some overt act as if the adverse party lye in wait in the way with weapons or by words menace to beat Bract. lib. 2. 16. b. Brit. 19. 66. c. maime kill or imprison him c. Talis enim debet esse metus qui cadere potest in virum constantem qui in se continet mortis periculum corporis cruciatum Co ibid. 266. a. 3. 20 If the Donee in taile discontinue in fee Discontinuance of an estate tail the reversion of the Donor is turned to a naked right and here if the Donor release to the discontinuee and the Donee die and the issue in taile doth recover the land against the discontinuee he shall recover no more then the estate taile and must then by consequence leave the reversion in the discontinuee for he can recover no more than was due to him by the gift of the Donor which was the cause and ground of his title neither yet in this case shall the Donor have the reversion againe against hâ—s own release Co. ibid. 355. a. 2. 21 Whereas divers hold opinion that upon a recovery had by default in an action of Wast against tenant in Dower or by the courtesie Waste a Quòd ei deforceat lyeth not because the default is not the cause of the judgement For notwithstanding the default there goeth forth a writ to enquire de vafto facto quod vastum predict A. the defendant fecit So as the defendant may give evidence and the jurors may find for the defendant that no wast was done as in an assize albeit it be awarded by
servant unto whom they bare no former malice yet was it adjudged Murder because of their murderous intention which was the cause of his death it is otherwise when one having no malicious intent joynes himselfe with others that commit a murder for that is but Man-slaughter in him that so suddenly joynes with them 44 E. 3. 14. b. 14 Ass Pl. 20. Finch 10. 52 A man makes me sweare to bring him money to such a place Terrour or else he will kill me I bring it accordingly this is felony So if he make me swear to surrender my estate unto him and I do so afterwards this is a disseisin to me 21 E. 4. 68. b. Finch 10. 53 One imprisoned till he be content to make an Obligation at another place and afterwards he doth so being at large The like yet he shall avoid it by dures of imprisonment 3 E. 3. 84. Finch 10. 54 Outlawry in trespass is no forfeiture of land Outlawry in trespass in forfeiture as Outlawry of felony is for although the not appearing be the cause of Outlawry in both yet the force of the Outlawry shall be estéemed according to the heinousness of the offence which is the principal cause and foundation of the processe Villenage 55 A man and a feme sole have a villein Finch 10. and afterwards enter-marry and the villeine purchaseth land they shall not have the land by entierties but by moities Ioyntly or in Common as they had the villein An action for goods bailed 56 If one deliver goods to another 22 H. 6. 1. Co. l. 10. 51. b. Lampets case and after the Bailor release to the Bailée all actions the Bailée dies in a writ of Detinue brought against his executors they shall not take advantage of that release for that determines by the death of the Bailée and the action given against the executors is a new action although of the same nature grounded upon their own deteiner Election of an Annuity or distress 57 If a rent charge be granted to A. and B. and their heires Co. Inst pars 1 146. a. 1. A. distreineth the Beasts of the Grantor who sueth a Replevin A. avoweth for himselfe and maketh Conusance for B. A. dieth and B. surviveth Here B. shall not afterwards have a writ of Annuity for the election and avowry for the rent of A. barreth B. of any election to make it an annuity albeit he assented not to be the avowry because in that case the act of one joyn-tenant barreth the other and the election takes his rise from several causes viz. the land or the person and therefore when the election once fixeth upon the land it cannot afterwards charge the person It is otherwise when a man may have election to have several remedies for a thing that is méerly personal or méerely real from the beginning 28 E. 3. 98 b. 27 E. 3. 89. b. As if a man may have an action of accompt or an action of debt at his pleasure and he bringeth in an action of accompt and appeares to it and after is non-suit yet may he have an action of debt afterwards because both actions charge the person The like Law is of an Assise or of a writ of Entry in the nature of an Assise and the like 15 E. 4. 16. 10 E. 4 5. Co. Inst pars 1 295. a. 3. Wager of law 58 In an action of accompt against a receivour upon a receipt of money by the hand of another person for accompt render unlesse it be by the hands of his Wife or Commoigne the defendant shall not wage his Law because the receipt is the ground of the action which lyeth not in privity betwixt the Plaintife and Defendant but in the notice of a third person and such a receipt is traversable a 33 H. 6. 24. 13 H. 7. 3. a. 22 H 6. 41. 1 H. 6. 1. b. 8 H. 6. 11 c. But in an action of debt upon an arbitrament and in an action of Detinue by the bailment of anothers hand the Defendant shall wage his Law because the Debet and the Detinet is the ground of those actions and the contract or bailment though it be by another hand is but the conveyance and not traversable Descent to Daughters yet no Coparâ—eners 59 Land is given to a man and his wife and the heires of their two bodies and they have issue a daughter the wife dies Littl. § 662 663. the husband takes another wife and hath issue another daughter and discontinues the taile and after disseiseth the discontinuée and so dies seised Here the land shall descend to both the daughters but yet they are not Coparceners because they are in by several Titles viz. the eldest is remitted by force of the intaile to the one moity and the other hath Fée simple by force of the descent from her father but in this case the eldest shall out the youngest by her action of Formedon Recovery in value 60 If the heir of the part of the mother of land Co. Inst pars 1 13. a. 1. Pl. Co. 292. 515 whereunto a warranty is annexed is impleaded and vouch over and judgement is given against him and for him to recover in value and dieth before execution the heir of the part of the mother shall sue execution to have in value against the vouchée for the effect ought to pursue the cause and the recompence shall ensue the losse Co. ibid. 201. b. 3. 61 He that will take advantage of a re-entry for non payment of rent must make demand of the same upon the land Demands upon the land because the land is the principal debtor for the rent issueth out of the land and in an Assise for the rent the land shall be put in view and if the land be evicted by a title paramount the rent is avoided and after such eviction the person of the Feoffée shall not be charged therewith for the person of the Feoffée was onely charged with the rent in respect of the grant out of the land c. Howbeit Homage or any other special corporal service must be done to the person of the Lord and the tenant ought by the Law of convenience to séek him Co. ibid. 210. a. 1. to whom the service is to be done in any place within England for that and the like services are due and issue out of the land in respect of the person c. F. N. Br. 150. d. 62 If a man recover in value against the baron by warranty of the ancestor yet the feme of the baron shall be endowed Dower because the recovery was had by force of the warranty made and not by reason of any eigne title to the land Dyer 13. 62. 28 H. 8. 19 E. 3. 63 If land be given in Frank-marriage Divorce and after the Donées are divorced the party by whom the
that the Lessée shall have sufficient Hedge-boot c. by the assignement of the Lessors Bailiffe Here it was said by Baldwin and Fitzherbert that the Lessée might take such boots by the Common Law and therefore that he might take them without assignement because it is no more than what the Law gives the Lessée priviledge to do but Shelley contrà because it being in the Lessors power to grant the lease upon what termes he pleased the Lessée shall be bound by it albeit the covenant be in the Affirmative and onely on the Lessors part and not in the Negative by way of Covenant or Proviso on the Lessées part For Modus coventio vincunt legem and the Lessée accepted of the Lease upon those termes Quere Dyer 136. Pl. 17. 3 4 P.M. 7 The uses of a fine or recovery may be declared by Indenture or otherwise as well after as before such fine or recovery Uses of a Recovery for so in Arthur Bassets case 3 4. P. M. the uses of a Recovery were by the Indentures declared four yeares after the Recovery and held good enough for Cujus est dare c. 23 Ultra posse non est esse Vice Versa Co. l. 6 58. a. 4. in Bredimaus Case 1 A Right without any estate in Possession A right or remainder after an entall no assets Reversion or Remainder for which good remedie by actionis given is not to be estéemed Assets before it be recovered and reduced into possession So likewise an estate as in rent-seck which descends and for which the heir hath no remedie is not Assets untill he hath gained seisin for want of right want of remedie are in the same equipage and therefore a man shall not be remitted to a Right that is remedilesse as appeares in the Marquesse of Winchesters case in the third Report And in M. 12. and 13. El. betwixt Terling and Trafford it was adjudged that the Reversion expectant upon an estate taile was not Assets because it lay in the Will of the Tenant in Taile to docke and barre it at his pleasure and the Reversioner had no power to prevent it Co. l. 7 8. a. 3. The Earle of Bedfords case 2 In the Earle of Bedfords case in the 7 Report Voidable Leases made good by acceptance it is otherwise of void things ab initio when voydable Leases being void for a time shall be alwayes avoided and when not this diversity was taken and resolved by the Court viz. when the interest of him that makes the avoidance is but for part of the terme So that it appeares there remaines yet a residue and when he that makes the avoidance avoides all the interest so that it appeares no residue can remaine As in the principal case there which was to this effect Tenant in Tail of lands in Capite makes Leases not warranted by the Statute of 32 H. 8. 28. and dies his heire under age Here the King in right of the heir may avoid those Leases during his time onely for after the interest is determined the heire may make them good againe by acceptance of the rent So it is also of a Subject that is Guardian in Chivalry Also if a Bishop since the Statute of 13 El. let voidable Leases and die 2 E. 3. 8. the King during the vacancy may avoid them but the Successor may make them good againe by acceptance of the rent But if the Patron of the Church of D. grant the next avoidance to another and after and before the Statute of 13 El. the Parson Patron and Ordinary make a Lease for yeares rendring rent and the Parson dies the Grantée presents his Clerk who is admitted instituted and inducted and dies this lease was absolutely avoided and could not stand good against the second successor c. Co l. 5. 12. b. 2. Sanders case 3 If a man having land in which there is a Cole mine not open lets the same to another for terme of life or yeares An exception of great timber Mines c. void if the Lessée grant unto another all his interest in the land cum omnibus profic c. except semper reservat sibi haeredibus suis toto benefic profic Miner Angl. Cole mines praedict parcel terrae ac omnibus arboribus Maerearii c. This exception is void for by the exception of the profits of the Mine or of the Mine it selfe the land is not excepted and then by consequent he hath excepted that which he cannot have or take As if a man assigne over his terme except the Timber-trées growing upon the land or the marle or the clay within the ground this is void for he cannot except a thing which doth not by Law belong unto him Where no interest no entry 4 If the Baron within age make feofment in fée of his Wives land and dies his heire shall not enter to avoide this feofment Co. l. 8. 43. b. 1. Whittinghams Case because nothing descended unto him from the Baron for the Law doth not respect what estate the Ancestor granted but what estate he had before the grant and what right or title the Ancestor left to descend to the heire And therefore if an infant being tenant in taile make feofment in fée and die without issue his collateral heire cannot enter to avoide that feoffment for although by his feoffment he granted Fée simple yet when he died without issue nothing descended to the heire in respect of which he might enter So also if lands be given to one and the heires female of his body and he hath issue a sonne and makes feofment in fée and dies within age without issue female the sonne shall not enter for the said infancy because no right in that case descended unto him So likewise if an infant be tenant pur auter vie and make feofment in fée Cestuy quae vie die neither the infant nor his heire shall ever enter upon the feoffée but he in the reversion or remainder c. Discontinuance 5 An estate taile cannot be discontinued but where he Co. Inst pars 1 338. b. 4. that made the discontinuance was once seised by force of the taile except it be by reason of warranty c. according to the Rule in Philosophy Omnis privatio presupponit habitum for he cannot discontinue that which he never had Neither can a person discontinue the Fée simple of his Parsonage because the intire fée and right thereof was never in him Vide M. 52. Ex. 8. Remainder of rent void 6 If I grant a rent out of my land the remainder in fée Pl. Com. 35. 2. this remainder is voide because the rent was newly created by the grant and not in esse before In Colth and Bivishams case Rent not extinct 7 A man makes a Lease for terme of life Dyer 31. a. 210 and afterwards the Lessor makes a
Terre-tenant after the terme determined because ex Etymologia vi termini he who hath not seisin in the land charged cannot give seisin of the rent for Nemo potest plus juris c. And for the same reason a Praecipe lieth not against a Termor because he cannot render seisin 16 The Testator possest of a Mill for 50 yeares deviseth it to M.M. after the death of his wife Acceptance a good barre Co. l. 8. 96. a. 1. Mannings case who in the meane time was to have the occupation of it during her life paying unto M. M. 7 l. per annum and he makes his wife his executrix and dies the wife administers enters and payes the rent Here the payment of the rent by the executrix was sufficient assent to the legacy and then she having given her assent to the first devise it lay not in her power to barre him that was to have the future devise for she could not transferre more to another then she had her selfe because after that by her assent she had executed the second devise she could not afterwards otherwise dispose of it to discharge other Legacies Debts or the like c. Remainder in tail of a lease cannot grant it 17 If A. possest of a terme for 500 yeares deviseth it to B. for life Lampets case Co. l. 10. 47. b. 3 l. 466. b. Fulwoods case the remainder to C. and the heires of his body in this case C. during the life of B. cannot grant the remainder to another because the whole terme is in B. and C. hath but an executory interest depending upon a possibility viz. enjoy it after the death of B. But here B. being executor a release of his interest to him is good Vide suprà 21. 41. Release of a Conisee or heir apparent void 18 If the Conisée of a Statute or Recognisance release to the Terre-tenant all his right in the land yet he shall sue execution Co. l. 10. 50. b. Lampets case 27 E. 3. Execut. 130. 25 Ass Pl. 7. Pl. Co. 72. Sir Thomas Popes case because at the time of the release made he had no interest in the land for that the body is the Debtor and not the land but in respect of the body and the land is not charged with the debt before execution sued So likewise a release of the sonne to the disseisor of the father in the life of the father is utterly void because the sonne hath no right at all in the life of his father Vide supra 1. A joyn-tenant can grant but his moity 19 Albeit Ioyn-tenants are by Littleton said to be seised per my per tout yet can they not singly dispose of more then the part Co. Inst pars 1 186. a. 2. Littl. § 288. that belongs unto them as to enfeoffe give or demise or to forfeit or lose by default in a Praecipe So likewise if my villein and another purchase lands to them two and their heires I can but enter into the moity And where all the Ioyn-tenants joyn in a feofment every of them in Iudgement of Law doth give but his respective part So if an Alien and a Subject purchase lands joyntly the King upon office found shall have but a moity The like 20 If two Ioyn-tenants make a feofment in fée upon Condition Co. Inst pars 1. Ibid. 3. Plowd Brownings case and that for breach thereof one of them shall enter into the whole yet he shall enter but into a moity because no more in judgement of Law passed from him And so it is also of a gift in tail or a Lease for life c. Likewise if two Ioyn-tenants make a feofment in fée and one of the Feoffors dies the Feoffée cannot plead a feofment from the Survivor of the whole because each of them gave but his part A confirmation of a rent void 21 If a man grant a rent charge issuing out of his land to another for terme of his life and after he confirmes his estate in the said rent Littl. § 548. Co. Inst pars 1 308. a. 3. to have and to hold to him in Fée taile or in Fée simple this confirmation is void as to enlarge his estate because he that confirmes had not any reversion in the rent Confirmation by Patron and Ordinary 22 If the Parson of a Church charge the Glebe by his déed Littl. § 528. Co. Inst pars 1 300. b. 3. and after the Patron and Ordinary confirme the same grant in this case if the Patron be Tenant in Fée simple the grant is good but if he hath the Advowson onely for life or in taile then shall the grant stand no longer in force than for his life and the life of the Parson that granted it And in this case if the Bishop be Patron he cannot confirme alone but the Deane and Chapter must confirme also For the Advowson or Patronage is parcel of the possession of the Bishoprick c. Co. Inst pars 1 300. b. 3. 23 A Parson of D. is Patron of the Church of S. as belonging to his Church The like and presents B. who by the consent of A. and the Ordinary grants a rent charge out of the Glebe this is not good to make the rent charge perpetual without the assent of the Patron of A. c. Co. ibid. 266. a. 3. 24 If the Donée in taile discontinue in fée Release by Dower to the discontinuee and the Donor release to the Discontinuée and die and after the issue in taile doth recover the land against the Discontinuée In this case the issue in taile shall leave the reversion in the Discontinuée for the issue in taile can recover but the estate taile onely which descended unto him from his Father and the Donor cannot have the reversion againe against his own grant and therefore by consequent it shall be left in the Discontinuée c. Co. ibid. 8. a. 2 3. 25 If an Alien cometh into England and hath issue two sonnes Betwixt Brothers no inheritable bloud these two sonnes are indigenae Subjects borne because they are borne within the Realme Howbeit 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 can by no possibility be heire to the father the one of them shall not be heire to the other And therefore some have holden that if a man after he be attainted of Treason or Felony have issue two sonnes that the one of them cannot be heire to the other because they could not be heire to the father for that they never had any inheritable bloud in them c. Co. Inst pars 1 a. 3. 26 If Lesse for life make a Déed of feofment Lessor attorney to lessee to make livery and a Letter
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
thereof in futuro being void at the beginning for quod ab initio non valet tractu temporis non convalescet Co. l. 2. 57. Beckwiths case 19 A Feme Inheretrix covenants by Indenture without the knowledge A void sine or consent of the Baron to acknowledge a Fine to certain Conisées and uses in the said Indenture mentioned and afterwards the Baron covenants also by Indenture without the knowledge of the Feme to acknowledge a Fine to other Conisées and uses in that Indenture also mentioned and afterwards the Baron and Feme joyne in a fine to the Conisées in the Indenture of the Feme mentioned Here the Limitations and Declarations of Vses in both the Indentures are void and the said Fine was by construction of Law to the use of the Feme and her heires as if no use at all had béen declared for the Feme alone albeit she be owner of the land yet being sub potestate viri cannot in respect of her Coverture without her Baron limit the use and on the other side the Baron who hath not any estate in his own right cannot against the good liking of the Feme limit any use because he is not owner of the land so that the one is not sui juris and hath the estate and the other is sui juris and hath not the estate And therefore when they differ in limitation all they do must needes be void A void deed or contract 20 When a Déed hath two deliveries Co. l. 3. 35. b. Jennings and Brags case in Butler and Bakers case if the person at the first delivery had power and ability in Law to contract but could not perfect it untill an impediment should be removed before the second delivery in that case the contract is good as if the Disseisée make an Indenture purporting a Lease for yeares and deliver it to a stranger out of the land as a scroul and command him to enter into the land and to deliver it upon the land as his Déed to the Lessée which is done accordingly this is a good Lease But if the person at the first delivery had not power or ability in Law to make the Lease or Contract and before the second delivery he attains to such power there the Lease or contract is not good as if at the time of the first delivery the Lessor be an Infant or Feme covert and at the time of the second delivery they become of full age or sole in both these cases the Déed doth not bind because at the time of the first delivery they were not persons that had ability in Law to make a Contract A void joynture 21 If the Baron make feofment in fée to the use of himselfe for life Co. l. 4. 2. b. 1. Vernons case and after to the use of B. for his life and after to the use of the Feme for life for her Ioynture that is not within the Statute of 27 H. 8. cap. 10. to barre the Feme of her Dower albeit B. die living the Baron So also if the estate be made to A. for life and after to the Feme for her Ioynture neither is that within the Act although A. die before the Baron for in these and the like cases in as much as at the time of the limitation of the estates they were out of the Act for that it was not then certaine that the estate of the Feme should take effect immediately after the death of the Baron as it ought to do by the said Act no subsequent event can make them within the Act For Quod ab initio non valet tractu temporis non convalescet quae malo sunt inchoata principio vix est ut bono peraguntur exitu A failer of Action 22 A. seised of the Mannor of D. in fée had communication with B. of demising the said Mannor unto him C. gives it out Co. l. 4. 18. Sir Gilbert Gerrards case that he had a Lease for 90 yeares in the Mannor whereupon B. desists from taking the Mannor by demise and thereupon A. brings an action of slander against C. And it was adjudged that those words would not beare it And in this case though it appeared by the Defendants barre that he had no title or interest in any such Lease yet because the matter alleadged in the Count did not maintaine the Action the barre could not make it good A grant of tithes not good by misnamer of the tenant 23 Q. Eliz. by Letters Patents grants to I. S. Totam illam portionem Co. l. 4. 35. 4. Bozouns case decimarum garbarum suarum in L. in Com. N. cum omnibus aliis decimis suis quibuscunque in L. in dicto Com. N. tunc vel nuper in occupatione I. C. and grants further that those Letters Patents shall be of force and effect against her selfe and her Successors Non obstante male nominando vel male recitando praedict portionem decimarum c. Et non obstante aliquibus defectis in male recitando vel non nominando alicujus tenentis sive occupatoris c. And all this was found by special verdict and besides that I. C. never had any Tithes in L. in his occupation and thereupon one question was whether the defect of mistaking the Farmer was not supplyed by the non obstante and it was resolved that it was not Because when the words of the grant are not sufficient ex vi termini to passe the thing granted but the grant is utterly void there a non obstante cannot make the grant good for when the Queen grants Totam illam portionem c. nuper in tenura I. C. here the addition of I. C. is of the substance of the grant and in as much as I. C. never had the portion in his occupation the grant must néeds be void ex vi termini and therefore the non obstante cannot make it good Co. l. 4. 62. b. 4. Herlakendens Case 24 If I let my land for life and after give the trées A void grant of trees and after the Lessée dies yet the Donée cannot take them because at the time of the grant the Lessée had the property in them as annext to the land 21 H. 6. 46. d. per totam Curiam Co. l. 4. 90. a. 3. Druries case Stat. 21. H. 8. 13. 25 If a Countesse that by the Statute may retaine two Chaplains capable of dispensations to enjoy two benefices doth first retaine two and after a third Reteiner of a Chaplain void the two first are onely capable of dispensations for they onely are her Chaplains according to the Statute and the other at the Common Law And therefore in this case if the two first die yet is not the other capable of a dispensation because at the time of his retainer he was not capable for he ought to be newly retained again to make him capable
the acquital 7 If the husband alien his land Co. ibid. 33. a. 4. and then the wife is attainted of Felony Where the Feme shall have dower and where not now is she disabled but if she be pardoned before the death of the husband she shall be endowed So if the Sonne endow his wife at the age of 7 yeares ex assensu patris if she before the death of her husband attaine to the age of 9 yeares the Dower is good for in these two cases the right of Dower tooke effect in the life time of the husband hy reason of the capacity which the wives had to take it But otherwise it is of an original absolute disability as if a man take an Alien to wife and after the husband alien the land and after she is made Denizen the husband dieth she shall not be endoweâ— because her capacity and possibility to be endowed came by the Denization otherwise it were if she were naturalized by Act of Parliament for that makes her as absolutely capable as if she were a subject borne 8 If the Father convey his lands holden by Knight-service either of the King or of any meane Lord Wardship to his middle Sonne in taile Co. ibid. 78. a. 3. 14 El. Dy. 308. 3 Mar. Dy. 130. the remainder to the youngest Sonne in Fée and dieth the eldest being within age and the King or Lord seize the body together with part of the land according to the Statute of 32 and 34 of H. 8. in this case if the middle brother die without issue the King or the Lord shall not have any benefit of the Statute against him in remainder for the Statute was once satisfied and the Statute extendeth not to him in remainder Co. l. 2. 93. 94. Binghams case and Northcots case Co. l. 10. 80. b. Loveyes case â—enures in â—occage 9 When Littleton saith Co. ibid. 86. a. 3. 108. b. 2. Littl. § 118. that every Tenure which is not Knight-service is Tenure in Soccage he there speaketh of Soccage as it is largely taken and so called ab effectu that is all Tenures which hath the like effects and incidents belonging to them as Soccage hath are termed Tenures in Soccage albeit originally service of the Plough was not reserved as if originally a Rose a paire of gilt Spurs a Rent or the like were reserved or that the Tenant should hold the lands to be Ultorem sceleratorum condemnatorum ut alio suspendio Ockam 31. a. 6. alios membrorum detruncatione vel aliis modis juxta quantitatem perpetrati sceleris puniat that is to be a Hangman or Executioner It séemes in ancient times such Offices were not Voluntiers nor to be hired for lucre but were to be bound thereunto by Tenure Co. ibid. 90. a. 3. 10 A Tenant holdeth land of a Bishop by Knight-service Chattel vested which Seigniory the Bishop hath in the right of his Bishoprick the Tenant dieth his heir within age the Bishop either before or after seisure dieth neither the King nor the Successor of the Bishop shall have the Wardship but his Executors for albeit the Bishop hath the Seigniory en auter droit yet the Wardship being but a Chattel he hath it in his own right and a Chattel cannot go in the succession of a Sole Corporation unlesse it be in the case of the King Littl. § 350. Co. Inst pars 1 216. b. 1. 217. a. 4. 11 If land be granted to a man for terme of five yeares upon Condition An estate upon condition to have fâ—â— that if he pay to the Grantor within the two first yeares 40 marks that then he shall have fée or otherwise but for the terme of five yeares and Livery of Seisin is made unto him by force of the Grant in this case the Grantée hath Fée simple conditional c. and if he do not pay to the Grantor the 40 marks within the first two yeares then immediately after those two yeares past the Fée and Frank-tenant is and shall be adjudged in the Grantor c. And the reason of this case is grounded upon the effect that the Livery tooke at first for by the rule of Law a Livery of Seisin must passe a present Fréehold to some person and cannot give a Fréehold in futuro as it must do in this case if after Livery of Seisin made the Fréehold and Inheritance should not passe presently but expect untill the Condition be performed And therefore if a Lease for yeares be made to begin at Michaelmas the remainder over to another in fee if the Lessor make Livery of Seisin before Michaelmas the Livery is voide because if it should worke at all it must take effect presently and cannot expect Co. ibid. 217. b. 1. And there is a diversity in the case above put betwéen a Lease for life and a Lease for yeares for in case a Lease for life with such a Condition to have Fée the Fée simple passeth not before the performance of the Condition for that the Livery may presently work upon the Fréehold but otherwise it is in the case of a Lease for yeares There is also a diversity betwéen Inheritances that lie in grant and Inheritances that lie in Livery for if a man grant an Advowson for yeares upon Condition that if the Grantée pay xx s. c. within the terme that then he shall have Fée the Grantée shall not have Fée untill the Condition be performed sic de similibus But otherwise it is where Livery of Seisin is requisite and therefore if the King make such a Lease for yeares upon such a Condition the Fée simple shall not passe presently because in that case no Livery is made Vide 55. 109. 35. 8. Littl. § 359. Co. ibid. 222. b. 3. 227. b. 4. 12 If a man make a Déed of Feofment to another without Condition and when he gives Livery Livery upon condition he clogs the estate with a Condition in this case the estate takes effect by the Livery and not by the Déed of Feofment and therefore shall be subject to the Condition Co. ibid. 228. a. 1. 13 If a Déed be made and dated in a forraigne Kingdome of lands within England yet if Livery and Seisin be made Livery upoâ— forraigne deed Secundum formam cartae the land shall passe for the land passeth and the grant takes effect by the Livery and not by the Déed Co. ibid. 271. b. 3. 14 There is a diversity betwéen a Feofment of land at this day upon confidence or to the intent to performe his last Will A feofment the use of a Will and a Feofment to the use of such person and persons and of such estate and estates as he shall appoint by his last Will for in the first case the land passeth by the Will and not by the Feofment because after the Feofment the Feoffor was seised in Fée
simple as he was before Co. l. 6. fo 17. 18. Sir Edward Cleres case But in the latter case the Will pursuing his power is but a direction of the uses of the Feofment and the estates passe by execution of the uses which were raised upon the Feofment Howbeit in both those cases the Feoffees are seised to the use of the Feoffor and his heires in the mean time â—â—mainder â—od though â—e particular â—â—ate taile 15 If the Lessor disseise A. Lessee for life Co. Inst pars 1. 298. a. 2. and make a Lease to B. for the life of A. the remainder to C. in fee here albeit A. re-enter and defeat the estate for life yet the remainder to C. being once vested by good Title shall not be avoided So it is if a Lease be made to an Infant for life the remainder in Fee the Infant at his full age disagrees to the estate for life yet is the remainder good because it was once vested by good Title And therefore although it be regularly true that when the particular estate is defeated the remainder depending thereupon shall be also defeated yet that rule failes in these and the like cases But in both these cases there was a particular estate at the time of the remainder created An estate sâ—tled by Attornâ—ent 16 If the Lord grants the services of his Tenant to a man Littl. § 552. Co. ibid. 310. a. 3. and after by a Deed bearing a later date he grants the same Services to another and the Tenant attornes to the second Grantee here the last Grantee shall have the Services and albeit afterwards the Tenant will attorne to the first Grantee it is cleerly void c. Devise by Tenant in taile not good 17 If a man seised of lands in taile Littl. § 624. Co. ibid. 334. b. 3. deviseth them to another in fee and die and the other enter c. this is no discontinuance because no discontinuance can be made by Tenant in Tail but such as is made and taketh effect in his life time Severance of Joynture 18 If two Ioyn-tenants within age make a Feofment in Fee Littl. § 634. Co. ibid. 337. a. 3. Co. l. 8. 43. a. 3. and one of them dies and the other survives in as much as both the Infants might have joyntly entred in their lives that right shall wholly accrue to him that survives and he shall enter into the whole c. but in this case if one of the Ioyn-tenants had made a Feofment in Fee and died the right would not have survived because the severance of the Ioynture took effect in both their lives time Whittinghams case Warranty makes a discontinuance 19 In many cases a Warranty added to a conveyance is said to make a discontinuance ab effectu Co. ibid. 339. a. 3. 9 E. 4. 19. 12. E. 4. 11. 21 E. 4. 97. although he that made the conveyance was never seised by force of the estate taile because it taketh away the entry of him that right hath as a discontinuance doth As if Tenant in taile be disseised and dieth and the issue in taile release to the Disseisor with Warranty In this case the issue was never seised by force of the taile and yet this hath the effect of a discontinuance by reason of the Warranty Warranty of an infant void 20 If a man of full age and an Infant make a Feofment in Fee with Warranty this Warranty is not void in part Co. ibid. 367. b. 4. and good in part but it is good for the whole against the man of full age and void against the Infant for albeit the Feofment of an Infant passing by Livery of Seisin be voidable yet his Warranty which taketh effect onely by Deed is meerely void Judge Richels case 21 Iustice Richel in the time of R. 2. Littl. §. 720 722. Co. ibid. 378. 28 29 H. 8. 33 a. Dyer Co. l. 1. 85. b. 4. Corbets case gave his lands to his eldest Sonne upon Condition that if he should alien them in Fee c. that then his estate should cease and be void and that they should remaine to the second Sonne and the heires males of his body c. this was a void limitation because if the eldest Sonne should alien the lands in Fee c. then is the Frank-tenement and the Fee simple in the Alienee and must needs settle and take effect in him and none other and then how can it remaine to the second Sonne c. or how can the second Sonne enter upon the Alienee when he had no right before the Alienation neither since the Alienation could he possibly have any A fine cannot operate doubly 22 If a man make a Lease for life upon Condition Co. ibid. 378. b. 3. that if the Lessor grant over the reversion that then the Lessee shall have Fee here if the Lessor grant the reversion by Fine the Lessee shall not have Fée for when the Fine transferreth the Fée to the Conusée that estate is so setled and takes such effect in him that the same Fine cannot work an estate in the Lessee also for one Alienation cannot vest an estate of one and the same land to two several persons at one and the same time Co. l. 2. 23. b. 4. Balwins case 23 When things that lie in grant Premisses and Habendum dâ—versity and take their essence and effect by the delivery of the Déed without other Ceremony are granted to one and his heires Habendum for yeares or life there the Habendum is repugnant and void as if a man grant rent Common c. out of his land by the premisses of the Déed to one and his heires Habendum for yeares or life the Habendum is repugnant for Fee did passe by the premisses by the delivery of the Déed and therefore the Habendum for yeares or for life is void Againe if one by Déed grant a rent in esse or a Seigniory in the premisses to one and his heires Habendum to the Grantee for yeares or for life Here albeit another Ceremony is requisite viz. Attornement besides the delivery of the Déed yet in as much as they are things that lie in grant and all the estates viz. in Fée for yeares or life ought to have one and the same Ceremony to passe them viz. Attornement for that cause the Habendum is in that case also adjudged void 3. when land is given by Déed in Fee by the premisses Habendum to the Lessee for life there also the Habendum is void because the same Ceremony is requisite to both the estates and it shall be taken most forcibly against the Feoffor 4. When to the estate limited by the premisses a 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 of it but onely the delivery of the Deed
In that case although the Habendum be of a lesse estate then is mentioned in the premisses yet the Habendum shall stand as if land be given to a man and his heires Habendum for yeares here to the Fee simple limited in the premisses it is requisite to have Livery and Seisin and untill Livery be had nothing passeth but an estate at will if the Deed should go no further but by the Habendum for yeares the estate takes effect immediately upon the delivery of the Deed although Livery of Seisin be never given Co. l. 4. 61. Porfe and Hemblings case 2 R. 2. Attornment c. 24 A Feme Sole makes a Lease for life rendring rent Feme Sole Attornement and after by her Deed grants the Reversion to another and after and before Attornement marries with the Grantee here this mariage was not a counter-mand of the Attornement no more than if she had married with any other stranger because in that case when the Feme by her Déed sealed and delivered had granted the reversion to another that grant took such effect against her selfe that she could not by any words which she could use counter-mand it before or after the taking of the Baron Co. l. 4. 70. b. 4. â—indes case 25 If a man bargaine and sell lands to another by Deed indented Fine and Bargaine and Sale and also levy a Fine of the same lands unto the Bargainee and after the Deed is inrolled according to the Statute In this case the Grantee shall be in by the Fine and not by the Deed inrolled for when the Fee simple past by the Fine to the Conusee and his heires the inrollement of the Deed indented afterwards cannot devest and turne the estate out of him which was absolutely established in him by the Fine for then whereas he was in before in the per he shall be now in the post which cannot be And when the Common Law and Statute Law concurre the Common Law shall be preferred Co. l. 4. 89. b. 4. Druries case Co. ibid. 11â— a. Actons case 26 When a Countesse retaines two Chaplains A Countesse but two Chaplains those two are each of them capable of a Dispensation by force of the Statute of 21 H. 8. cap. 13. but when she hath so retained two the Statute is executed for she cannot have more than those capable of a Dispensation and the retainer of a third in the life time of the two first cannot devest the capacity of Dispensation which was at first vested in them by their retainer to make the third capable of a Dispensation within the Statute albeit he should survive both the first because the retainer had an evil commencement to take benefit of the Statute for although a Countesse may have as many Chaplains as she pleaseth at the Common Law yet she can not have more than two capable of a Dispensation by force of the Statute Presentee first and second in E 6 and Qu. Eliz. and Qu. Maries time 27 If two have Title to present by turne Co l. 5. 10â— Winsors case and the one presents his Clerke who is Admitted Instituted c. and after is deprived for crime or heresie c. yet he shall not present againe but this shall serve for his turne So if he present mere laicus which was Admitted Instituted c. although he be declared by sentence to be incapable and therefore void ab initio yet because the Church was full untill the sentence declaratory came that shall serve for his turne because it was but voidable as in the case of Littleton if the Lord marry his ward within age of consent and after he disagree unto it and so was no mariage ab initio yet he shall not marry him afterwards So 27 H. 6. Gard 118. if the Guardian marry his Ward and after they are divorced causa precontractus yet he shall not have the mariage of him againe But when the Admission and Institution are meerly void then without question that shall not serve for a turne 23 Eliz. Dyer Pl. ultimo as if his Presentee had been Admitted Instituted and Inducted but had not subscribed to the Articles c. according to the Statute 13 El. by which in such case the Admission Institution and Induction are all void c. Likewise where two were to present by turne and one presented in E. 6. time his Clerke The principal case in Winsors case who in Queen Maries time was deprived by sentence and then the other presented his Clerke who in 1 Eliz. was also deprived by sentence and by the same sentence the first Presentee was restored and after died in this case the Patron of the second Presentee shall not loose his turne For although the second Presentee was person for the time to all purposes and the first Presentee during the first deprivation was not Incumbent yet when the second sentence came the first Presentee was Incumbent againe by force of his first Presentation Admission c. and there needed no new Presentation c. and therefore when this first Presentee dies who was then in course the last Incumbent the Patron of the second Presentee must needs present in the next turne but if the first Presentee had died before the second sentence or had not reversed the first sentence then the Patron of the last Presentee had enjoyed his turne and could not have presented againe Tender of money c. 28 As concerning the tender of money upon a Mortgage Bond Co. l. 5. 114. b. 2 Wades case c. upon a certaine day therein limited although the last time of payment of the money by force of the Condition be such a convenient time before sun-set as that the money may be told before the Sun be set yet if tender be made unto him that ought to receive it at the place specified in the Condition at any time of the day and he refuse it the Condition is saved for ever and the Mortgager or Obliger need not to make tender of it againe at the last instant of the day as aforesaid for by the expresse letter of the Condition the money is to be paid upon the day indefinitely and the Law assignes the last instant to the end neither of the parties should lose their labour in attending the payment c. Plea of non est â—actum or â—udgement si â—ction 29 In all cases when a Deed is onely voidable at the time of the Action brought as for Infancy Dures Co. l. 5. 119. Whelpdales case or the like the Defendant ought to plead Judgement si Action and not non est factum 1 H. 7. 15. So also when the Déed is void by Act of Parliament he ought not to plead non est factum but in construction of Law the Deed is to be avoided by special pleading taking advantage of the Act of Parliament for albeit the Act saith the Obligation
good delivery For in traditionibus scriptorum non quod dictum est sed quod gestum est inspicitur It is otherwise when it is delivered to a stranger Dyer 98. b. 56. 1 Mar. 8 If two or more conspire to commit treason as to levie war Treason or the like and some of them afterwards put it in execution this is Treason in all and so it was at the Common Law before the Statute of 25 Edw. 3. Dyer 192. 26. 2 3 Eliz. 9 A. caused an Obligation to be written and sealed it Delivery of a Bond. which writing was to the use and behoof of B. whom he intended to marry and upon the day of Marriage and before it he delivers the writing to B. saying these words This will serve and B. presently delivers it over to the Obligée then present This was adjudged a good Obligation for Acta exteriora c. Dyer 224. 30. 5 Eliz. 10 An offence shall not be adjudged Robbery Robbery unlesse the Thiefe doth not onely take some-what from the person but likewise put him in feare of death and therefore in 5 Eliz. where a thiefe tooke 40 s. from the person of another in the high way without putting him in feare of death it was adjudged onely bare felony for which he had his Clergy for by not putting him in such feare the Court adjudged it no more Howbeit by the Statute of 8 Eliz. 4. Clergy is taken away from such an offender yet that Statute being an act of Continuance and the long Parl. being suddenly broken up it hath been doubted whether or no that act and all other acts of Continuance were expired for want of farther continuance but by an Act made in 17 Car. for the farther reliefe of his Majesties Armie in the Northern parts that Act and all other Acts of continuance are to continue in force untill some farther Act of Parliment be made for the continuance or discontinuance of the same 38 Inutilis labor sine fructu non est effectus Legis contra And therefore nothing can be given to a man which he had before 1 If the Lord mayhem his Villain he shall be indicted for it at the Kings suit Littl. § 194. Co. Inst pars 1. 126. a. 4. 127. b. 1. The appealâ—y a Villaine against his Lord. but in that case he shall not have an appeale of Mayhem against his Lord because he cannot enjoy the damages recovered in that suit for that upon recovery and execution for the damages the Lord may immediately take them from him again Vide supra 35. 6. 2 In an action brought by a man or a woman that are professed in Religion in Normandy Co. ibid. 132. b. 2. or any other Forreign Country Forreign profession not pleadable the Defendant shall not plead in disability of their person because that profession will want tryall here in England It is otherwise if they were professed in England for that might be tryed by the Certificate of the Ordinary 3 If a man enfeoffeth another of an acre of ground with warranty The heire and youngest son vouched togâ—ther hath issue two sons Co. ibid. 376. a. 3. dieth seised of another acre of land of the nature of Borough English and the feoffée is impleaded Here albeit the warranty descendeth onely upon the eldest son yet may he vouch them both the one is heire to the warranty and the other as heire to the land For if he should vouch the eldest sonne only then should he not have the fruit of his warranty viz. a recovery in value and the youngest sonne only he cannot vouch because he is not heire at the Common Law upon whom the warranty descendeth 4 Counts and such as be in nature of Counts as an Avowry wherein the Defendant is an Actor need not to be averred Co. ibid. 303. a 4. Negative pleas not to bâ— averred but all other pleas in the affirmative ought to be averred thus Et hoc parat est verificare c. Howbeit pleas méerly in the negative ought not to be averred because it were in vaine to aver them in regard they cannot be proved The issue after discontinuance cannot enter 5 If Tenant in taile release to his Disseisor Co ibid. 318 a 4. and binde himselfe and his heirs to warranty and die and this warranty descends upon the issue this works a discontinuance so that the heire cannot enter but is put to his action for if the issue in taile might enter the warranty which is so much favoured in Law would serve for no purpose but would be utterly destroyed whereas being put to his action the Disseisor may make use of his warranty by vouching the issue and shall thereupon recover in value if other lands descended unto him in fee-simple c. Vide 15. 9. It is vaine to give a man what he had before 6 It is a vaine thing to give that to a man which he had before Littl. §. 625. Co. ibid. 335. a. 2. because nothing can operate thereupon As if land be given in taile saving the reversion to the Donor and after the Tenant in taile by his déed infeoffs the Donor in fee this is no discontinuance of the estate taile because the reversion is not discontinued but remains in the Donor as it was before So if Tenant for life make a lease for his owne life to the Lessor the remainder to the Lessor and a Stranger in fee In this case forasmuch as the limitation of the fee should worke the wrong it enureth to the Lessor as a surrender for the one moity and a forfeiture as to the remainder of the stranger for he cannot give to the Lessor that which he had before c. So likewise if there be two Ioyntenants and one of them enfeoffe his companion and a stranger and make livery to the stranger this shall vest onely in the stranger because the livery cannot enure to his companion who was before possest of the land per my per tout c. Remainder granted for the life of the Tenant in tail void 7 If there be Tenant in taile remainder in taile Co. lib. 2. 51. a. 3. Sir Hugh Cholmleys case and the remainder in taile bargains and sells the land and all his estate c. by Indenture inrolled c. to I. S. to have for the life of the Tenant in taile and to his heirs males the remainder to the Queen c. Here the remainder to the Queen is voyd because the Grantee for the life of the Tenant in taile takes nothing for the Grantee shall never have any benefit thereby And the remainder to the Qu ought to take effect when the particular estate ends but that having no beginning can neither have ending Quod non habet principium nec habet finem And Vana est illa potentia quae nunquam venit in actum
Wardship of an use 8 In a writ of Ward the case was this before the Stat. of 27 H. 8. Dyer 12. 28 H. 8. 54. c. a man enfeoffs I. S. of Knight-service land to the use of the Feoffor and his heirs after I. S. enfeoffs I. N. to the use of the Feoffor and his wife and the heirs of the Feoffor the Feoffor dies living the wife having a sonne within age In this case the sonne shall be in Ward in the life of the Feme by the Stat. of 4 H. 7. as heire of Cestuy que use because the ancient use doth still remain in the sonne notwithstanding it be in some sort altered in respect of the Feme for by the last feofment the sonne had no more conferred upon him then he had before so as notwithstanding the last Feofment there was still a reversion of use in the sonne and not a new remainder because a thing cannot be given to a man which he hath already Vide plus ibidem vers fine So Cestuy que use of two acres one holden by priority the other by posteriority makes a Feofment of both to his own use this makes no equality of tenure Recovery Feoffment because the ancient use which he had before still remains The Lord Rosses case 9 If one recover against me by a common recovery Dyer 18. 105. 28 H. 8. and after I infeoffe the recoveror he shall be still seised to my use for he shall be adjudged in by the recovery and not by the Feofment 39 Lex non Praecipit inutilia Vide M. 177. 5. Co. Inst pars 1. 389. b. 3. Littl. § 743. 1 If Tenant in taile enfeoffe his Vncle in fée Warranty destroyed who aliens to a stranger with warranty to hold to him and his heires or to him his heires and assignes and the Vncle afterwards takes again an estate of the land in fée in this case the warranty is destroyed because it were néedlesse for the Vncle to warrant the land to himselfe and the Law will not command or suffer things that are in themselves uselesse and unprofitable Co. l. 5 89. a. 4. Frosts case 2 When a man is in the custodie of the Sheriffe by process of Law A prisoner in custodie needs not be formally arrested and after another Writ is delivered unto him to take the bodie of him that is so in his custodie he is immediately by judgement of Law in his custody by force of the second Writ albeit he make no actuall arrest of him for to what purpose should he arrest him when he is already in his custodie Et lex non praecipit inutilia quia inutilis labor stultus c. Co. l. 6. 29. b. 2. Greens case 3 When a Parson is admitted instituted and inducted to a Church An Incumbent not reading the Articles is out without sentence and doth not read the Articles according to the Statute of 13 Eliz. 12. the Benefice is thereupon void by force of that Statute without procuring a sentence declaratory to deprive him for it will be néedlesse to obtaine such a sentence when the Living is already voyd and open for the Patron to present another Co. l. 8. 61. a 3. Beechers case Co. lib. 8. 126. a. b. 4 In judicial processe In a Judiciall writ the plaintiff shall not find pledges the Plaintiffe shall not be enjoyned to finde pledges de prosequendo for in those processe although the Plaintiff be barred nonsuited or that the Writ abate yet shall he not be amercied because such processe are grounded upon a judgement and record And it is a needlesse and vaine thing to binde the Plaintiff to finde pledges in such cases where he cannot be amercied Vide supra 35. 20. The case of the City of London 5 That which appears plainly to the Court That which appears need not be averred ought not to be averred by the party So in the City of Londons case the Constitution there made appearing to be agréeable to and warranted by their Charter néeded not to be so averred So also no price of money shall be expressed in the Writ because it appears of it selfe 46 E. 3. 16. Likewise 12 H. 4. 17. The sonne within age brings an Assise of Mortdancester he ought not to aver that it is within time of limitation for it appears Co. l. 10. 67. b. 4. The case of the Church-warden of St. Saviour c. 6 In a speciall verdict concerning a Bargain and Sale Demise The consideration not to be found by a Jury or the like the Iurors shall not be constrained to finde the payment of the money mentioned amongst the other considerations for it shall be néedlesse to finde that which is affirmed to be already payd and satisfied in time before the Grant and is a personall consideration already executed And this is true as well in the Kings case as in the case of a Subject F. N. B. 38. l. 7 Where in a writ of right of Advowson Parson imparsonee shall not have a writ to the Bishop c. the Defendant claims the same Advowson as Parson imparsonée albeit the title be found for the Defendant yet shall he not in that case have a Writ to the Bishop ad admittendum Clericum For in construction of Law he is already in the Benefice F. N. B. 106. g h. 8 If a man recover in a Praecipe quod reddat against a Tenant by false Verdict No attaint before execution the Tenant cannot have an attaint before execution bée had against him because in an Attaint the judgement is that he shall be restored c. and it were improper and néedlesse to give such judgement when the Tenant still retains the possession of the land Note that this is put as a quere in Fitz but hee seemes rather to favour this opinion c. 〈◊〉 tenants 〈◊〉 need not â—verred â—nced 9 In an action upon the Statute of 32 H. 8. 9. Pl. Co. 87. b. 3. Partridges case against buying of pretenced Titles if the Plaintiff sheweth by his count that neither the Defendant nor any of his Ancestors nor any other by whom he claims c. were in possession of the land c. nor of the reversion or remainder c. nor received the rents or profits c. by the space of a yeare c. The Plaintiff néed not aver the title to be pretenced for the Statute it selfe maketh the right of him which hath not béen so in possession to be pretenced and therefore to aver that which appears plainly by the Statute it selfe and the Declaration is néedlesse and impertinent So if it be pleaded â—eed of â—nment that the Lessée surrendred to the Grantée of the reversion there is no néed of pleading attornment for attornment is included in the surrender 40 Where the foundation faileth all goeth to the ground Debile fundamentum fallit opus
viris religiosis Judaeis If By-lawes made in inferiour Courts be barred by the Common Law in some Statute Law or warranted by some lawfull and reasonable Custome of the place or are good for the Common-wealth although there be but a few of the Iury that make them yet those Orders or By-lawes will bind all the rest of the inhabitants within that Iurisdiction by reason of the firme foundation upon which they are grounded c. So likewise if Tenements be given in taile upon Condition the Tenant shall not discontinue the tail Littl. § 362. this is a good Condition because warranted by the Statute of Westm 2. cap. 1 c. Release to one having onely a right or upon grant without attornement void 11 Of a Disseisor make a Lease for life Co. ibid. 266. a. 1. the Disseisée may releâ—se to the Lessée and such a release shall stand good but if the Disseisor make a Lease for yeares a release by the Disseisée to such a Lessée is not good because he hath no estate of Freehold upon which the release may enure Howbeit if the Disseisor make a Lease for life Co. ibid. 267. a. 1. the remainder to another for life in Taile or in Fée a release by the Disseisee to him in remainder is good because of the remainder of the estate that is in him upon which the release may worke Co. ibid. a. 4. It is otherwise in the last caâ—e if the Tenant for life in possession be disseised for then a release by the Disseisee to any of them in remainder having but a bare right in the land hath not good ground upon which it may worke c. And therefore if lands be given to a man in taile Litl §. 455. reserving to the Donor and his heires a certaine rent if the Donée be disseised and the Donor release unto the Donee all his right albeit the rent is extinct by that release yet is the reversion still in the Dâ—nor because at the time of the release made the Donee had but a bare right in the land So that if the Donee afterwards enter upon the Disseisor although he shall hold the land discharged of the rent yet shall he be Tenant in taile as he was before So likewise if there be Lord and Tenant and the Tenant makes a Feofment in Fee of the land Littl. Sect. 457 but the Feoffee never becomes Tenant to the Lord in this case a release to the Tenant is void because at the time of the release made the Tenant had no right at all in the land c. Releases good and void 12 If a man let his land for terme of yeares Litâ—â— Sect. 459. Co. ibid 270. a. 3. and the Lessor releaseth to the Lessee all his right c. before the Lessee entreth into the land by force of the Lease such a release is void because before entry he hath but interesse termini and no possession and therefore a release which enures by way of enlarging an estate cannot work without a possession for before possession there is no reversion And yet if a Tenant for twenty yeares in possession make a Lease to B. for five yeares and B. enter a release to the first Lessee is good because he had an actual possession and the possession of his Lessee is his possession So it is if a man make a Lease for yeares the remainder for yeares and the first Lessee doth enter a release to him in the remainder for yeares is good to enlarge his estate Co. ibid. b. 2. But concerning a release before entry there is a diversity betwixt a Lease for life and a Lease for yeares for before the Lessee for yeares enter a release made to him is not good as aforsaid but if a man make a Lease for life the remainder for life and the first Lessee dieth a release to him in the remainder and to his heires is good to enlarge his estate before he make any actual entry because he hath an estate of a Freehold in Law in him which may be enlarged by release before entry c. Release voiâ— 13 If an Infant make a Lease for life Co. ibid. 273. a. 2 3. and the Lessee granteth over his estate with Warranty the Infant at full age bringeth a Dum fuit infra aetatem the Tenant voucheth the Grantor who entreth into Warranty the Demandant releaseth to him and his heires Albeit here is privity in Law and a tenancy in supposition of Law yet because he to whom the release is made in rei veritate hath no estate it cannot enure to him by way of enlargement for how can that release worke upon an estate that is not or how can his estate be enlarged that hath not any So if a Tenanthy the curtesie grant over his estate he is still Tenant as to an Action of Wast Attornement c. and yet a release to him and his heires cannot enure to enlarge his estate that hath no estate at all c. Release for a time good for ever 14 When a man is seised of any lands in Fée simple Littl. Sect. 467. Co. ibid. 274. a. 3. Littl. Sect. 473 474. a release to him of all the right that another hath in the same lands is good without the word heires because he had Fée simple at the time of the release made Littl. §. 519 520. and therefore a release unto him in that case for a day or an hour is a release for ever to him and his heires c. as if there be Disseisor and Disseisée a release by the Disseisée to the Disseisor is good without the word heires to establish the estate to him and his heires c. There is the same Law of a Confirmation Co. ibid. 276. b. 4. 15 If the Disseisor make a Lease for life and the Lessée maketh a Feofment in Fee and to Disseisée releaseth he the Feoffee that release is good to prevent the entry of the Disseisor upon the Feoffee because the Disseisee had power to enter upon the Feoffee before the release made It is otherwise where the entry of the Disseisor is not congeable as if a man make a Lease for life and the Lessee for life is disseised and that Disseisor is also disseised and he in the reversion releaseth to the second Disseisor the first Disseisor shall enter upon the second Disseisor and his entry is lawful and if the lessee for life re-enter he shall leave the reversion in the first Disseisor and the cause is for that the entry of the Disseisee during the life of the Tenant for life and by consequent at the time of the release made was not lawfull Littl. § 475. Co ibid. 277. a. 2 16 A man that hath a Sonne within age is disseised and die Release to aâ— Abator good and bad and after the Son being within age the Disseisor also dies and
141. a. 4. in Beamonts case 7 H. 4. fol. 16. 56 Baron and Feme being Tenants in special taile A marriage dissolved anâ— so an intaile grounded thereon are divorced viz. by such a divorce which dissolves the marriage ab inito and the Baron and Feme à vinculo matrimonii in this case they have ever after but an estate for their lives because the marriage which was the onely means whereby they might have had heirs inheritable of the estate taile being dissolved the estate taile it selfe is thereby also determined and extinct Co. l. 10. 76. a. 4. the case of the Marshalsea 57 When a Court hath jurisdiction of the cause Erroneous proceeding in Court and procéeds inversa ordine or erroneously there no action will lie either against the party that sues or against the Officer that executes the precept or processe of the Court But when the Court hath not jurisdiction of the cause there all the procéeding is coram non judice and actions will lie against them without any regard of the precept or processe c. for the rule is Judicium à non suo judice datum nullius est momenti See the booke at large Co. l. 10. 96. a. 〈◊〉 Edw. Seyâ—â—ors case 24 E. 3. 28. in Caloys case 58 Tenant in taile Dower detâ—â—mined the remainder in taile to A. the reversion in fée to himselfe bargains and sels the land to B. and his heirs Here by the déed indented and inrolled c. the Bargainée hath an estate descendable to his heirs but determinable upon the death of the Tenant in taile and hath also the reversion in fée exepctant upon the estate in remainder in taile and here likewise the Feme of the Bargainée will be endowed but in this case if the Tenant in taile die the Dower which depended upon that estate shall determine also Co. l. 10. 96. b. 1. Edw Soymors case 59 Tenant in taile Warranty dâ—termined the remainder in taile to A. the reversion in fée to himself bargains and sells the land to B. and his heirs and afterwards also levies a fine to B. his heirs with warranty c. In this case albeit A. be the next heir to the Tenant in taile yet shall not this warranty bar his remainder For every warranty ought to be knit and annexed to an estate for that a warranty hath his essence by dependancy upon some estate Now in this case at the time of the fine levyed the warranty was annexed to the Fée-simple determinable upon the death of the Tenant in taile without issue and also to the reversion in fée but doth not extend to the estate of A. in the remainder for that was not displaced nor devested but did still continue in him because A. at the time of the fine levyed and after was seised of his remainder Now then if the warranty at the time of the creation of it were annexed to an estate the Conusée by his Feoffment or other act cannot extend if farther than it was at the time of the creation of it And therefore when the estate taile unto which the warranty was annexed is determined by the death of the Tenant in taile without issue the warranty which hath his essence by dependancy is also determined because then there is no estate left to support it c. 30 E. 3. casu ultimo in Henry Pigots case Co. l. 21. 27. b. 60 In Assise before Stouffe and others in the Countrey A man unlâ—tered not bound the Tenant pleads feoffment of the Plaintiff to him by déed of the land in plea to have and to hold to him and his heirs comprehending a letter of Attorney to deliver Seisin Warranty void as welâ— the deâ—d c. and in truth the Plaintiff was a lay man not lettered and the déed with the warrant of Attorney was read unto him according to the form of an estate tail and upon the same intent he sealed and delivered the déed with the letter of Attorney in it to deliver Seisin In this case the déed did not binde the man unlettered but was adjudged void And therefore albeit the déed and the warrant of Attorney were two several clauses and that the said warrant was well and truly read unto him yet because the same warrant did depend upon the feoffment and had relation unto the estate in fee that warrant of Attorney was adjudged void also c. Warranty defeated 61 If a man enfeoffe another of land with warranty by deed F. N. B. 135. g. if the Feoffee make feoffment over and take back an estate in fee Here the estate unto which the warranty was annexed being destroyed the warranty it selfe is also destroyed and in this case he shall not have a warrantia cartae because he is in of another estate The father in by tort the heire by remitter the Feme not endowed 62 If a man hath title of action to recover land and after he enters F. N. B. 149. f. and disseiseth the Tenant of the land and dieth seized by which his heir enters here the heir is remitted to the title that his Ancestor had and the Feme of the Baron that so dieth seized shall lose her dower because that estate which the Baron had is determined for that was an estate of fee by tort and the heire hath an estate of fee which was in his Ancestor by right c. Feme not endowed of the rents but of the land 63 If a man make a gift in taile reserving rent to him and his heirs F. N. B. 149. g. and after the Donor taketh Feme and dieth and the Tenant in taile also dies without issue Here the Feme of the Donor shall not be endowed of the rent because the rent is extinct for it was reserved upon an estate taile which is determined But in this case albeit the estate taile of the rent is determined yet shall the Feme be endowed of the land because that doth still continue and is not determined as is the rent A remainder must have an estate to support it 64 By the rule of the Law a remainder ought to have a preceding estate to support it And if that preceding estate faile Pl. Co. 35. a. in Colthrists case the remainder fails also As if a lease for life had been made to a Monk the remainder in fee this remainder had been void because the Monk had no capacity to take the estate for life and so the estate preceding the remainder is void and then ex consequente the remainder is void also Appropriation disappropriate Ancient Demesn restored 65 A Church appropriated to a spiritual Corporation 3 E. 3. 74. b. becometh disappropriate if the Corporation be dissolved Finch 14. 66 A dissesor of Lands in ancient Demesn 49 E. 3. 8. the Lord confirms unto him to hold at the Common Law the Dissesee re-entreth Now shall
the land be ancient Demesn again for the estate whereupon the confirmation should enure is defeated Finch 14. Absque impetione vasti determined 67 The priviledg of Absque Impetitione vasti is annexed to the privity of the Estate 3 E. 3. 44. per Shard and Stove so that if the estate Co. l. 11. 83. b. 3 Bowles case unto which that priviledg is annexed be changed the advantage of that priviledge is lost 5 H. 5. 9. a. And therefore if a man make a lease for years without impeachment of wast and after confirms the land to him for life he shall be ever after chargeable with waste 28 H. 8. Dyer 10. b. If a lease be made to one pur auter vie without impeachment of wast the remainder to him for the term of his own life Now is he punishable of wast for the first estate unto which the advantage of Absque impetitione vasti was annexed is drowned and gone and therefore that priviledge is gone also So it is likewise of a Confirmation c. Priviledge of 〈◊〉 by the courâ—â—sie lost by aâ—â—nation 68 It was adjudged in the case of one Ewens M. 28. Co. ibid. 29 Eliz. that where the Tenant in taile after possibility of issue extinct granted over his estate the Grantée was forced in a Quid juris clamat to attorn because by the assignment that priviledge was lost And this judgement was affirmed in the Kins Bench in a Writ of Error and with it also agrees 27 H. 6. tit Aide in Statham No prohibition of wast by the alienee of the heire against tenant in dower 69 The heire at the Common Law shall have a prohibition of wast against Tenant in Dower but if the heire grant over the reversion Co. ibid. his Grantée shall not have it for it appears in the Register fol. 72. that such an Assignee in an action of Wast against Tenant in Dower shall recite the Statute of Glocester and then by consequent he shall not have prohibition of Wast at the Common Law for then he should not recite the Statute Vide F. N. B. 55. 14 H. 4. 3. 5 H. 7. 17. b. Co. Inst pars 1 12. b. 4. 70 If a man be seized of lands as heire of the part of his mother Priviledg 〈◊〉 by a purchaâ—â— of the land and maketh a feoffment in fee and taketh back an estate to him and his heirs this is a new purchase and if he die without issue the heirs of the part of the father shall first inherit because the estate unto which the property of descending to the heirs of the part of the mother being by the change of the same estate destroyed that property it selfe is also destroyed So likewise if a man so seized makâ—th a feoffment in fee reserving a rent to him and to his heirs this rent shall goe to the heirs of the part of the father c. Co. ibid. 83. a. 2. Co. l. 4. 88. in Luthrels case 71 If there be Lord and Tenant by Castle-guard Castle-guard gone by aâ—â— nation and the Lord granteth over his Seignory to another In this case the Castle-guard is gone because the Grantee hath not the Castle which is the ground of the service For the same reason it is that if one holdeth of me as of my Mannor of D. by fealty and suit of Court if I grant over the services of this Tenant the suit is gone because the Grantée hath not the Mannor But if the Castle be wholly ruinated Si castrum sit penitùs dirutum yet the tenure remaineth by Knight service and it goeth in benefit of the Tenant as to the guarding of the Castle untill it be re-eedified but ward and marriage belongeth unto the Lord in the meane time Co. Inst pars 1. 53. b. 4. 72 After Waste done Wast made dispunishable there is a special regard to be had to the continuance of the reversion in the same state that it was in at the time of the Waste done for if after the Wast committed the reversion granteth it over though he taketh back the whole estate again yet is the Wast dispunishable So likewise if he grant the reversion to the use of himselfe and his wife and to his heirs yet the Wast is dispunishable and so of the like because the estate of the reversion continueth not but is altered and consequently the Action of Wast for Wast done before which consists in privity is gone also Co. l. 5 28. a. 3. in Middletons case 73 An Executor before probat may release an action Executor may release befoâ—â— probat not the Administrator albeit before probat he cannot bring an action for the right of action is in him So also if two Executors prove the Will and the third refuse yet he may release It is otherwise of an Administrator for if A. release and after take administration that shall not barre him because the right of action was not in him at the time of the release made Co. Inst pars 1 76. b. 3. 74 If there be Lord and Tenant A conditional wardship devested and the Tenant maketh a feoffment in fée of Lands holden by Knight service to the use of the Feoffée and his heirs untill the Feoffor pay unto the Feoffée or his heirs 100 l. at a time and place limited the Feoffée dyeth his heire within age Here the Lord shall have the wardship of body and lands conditionally For if the Feoffor pay the money and enter into the land the wardship of both body and lands is divested Vide pro ibid. Dyer 155. Pl. 20 4 5. P. M. 75 A. by Indenture enrolled in Chancery in consideration of money Use upon an use bargains and sels to B. the Mannor of D. to have and to hold to B. and his heirs to the use of A. for life the remainder to the use of B. in taile Here because the first grant to B. is an use by the Statute of 27 H. 8. and one use cannot be engendred out of another the limitation of the two last uses was adjudged void Dyer 186. 1. 2 3 Eliz. 76 A man gives land to two habendum eis pro termino vitae eorum Cestuy que 〈◊〉 eorum alterius diutiùs viventis ad usum A. B. pro termino vitae suae without more and the two Lessées die In this case it seemed to the Court of Common Pleas that the estate was determined because the estate upon which the use was created and raised was gone c. But Quaere if such an estate had béen made before the Statute of 27 H. 8. of uses Dyer 205. 7. 3 4 Eliz. 77 A writ of extent was awarded in the time of Quéen Mary Extent returnable Quindena Martini and the Writ is executed in the life of the Qu but before the return she dies and yet it was returned and a liberate was thereupon
Déed but other things notwithstanding the said confirmation the tenant shall yield to the Lord as reliefe aide pur file marier and aide pur faire fitz Chivalier because these are incidents to the tenure which do still remaine and shall not be discharged without special words by the general words of all actions services and demands The like 31 If a man hold of me by Knight-service Rent-suit Co. ibid. c. and I release to him all my right in the Seigniory excepting the Tenure by Knight-service or confirme his estate to hold of me by Knight-service onely for all manner of services exactions and demands yet shall the Lord have Ward Mariage Reliefe Ayde pur file marier pur faire fitz Chivalier for these be incident to the Tenure which doth still remaine â—he rent pasâ—th with the â—version but â—t è converso 32 Where a Lease for terme of yeares or life Co. ib. 317. a. 1. Littl. § 572. or a gift in taile is made to a man reserving rent c. if the Lessor or the Donor grant the reversion to another and the Tenant attornes the rent passeth to the Grantée albeit the Deed of the grant of the reversion make no mention of the rent because the rent is incident to the reversion but not è converso for if a man in this case will grant the rent saving the reversion albeit the Tenant attorne yet that rent is but a rent-secke c. Co. ibid. 319. a. 3. 9 H. 6. 16. The Deane of Pauls case 20 Eliz. 33 If the Lessor disseise Tenant for life A rent incident or not incident to a reversion Diversity or ouste Tenant for yeares and maketh a Feofment in fée by this the rent is reserved upon the Lease for life or yeares is not extinguished but by the regresse of the Lessée the rent is revived because it is incident to the reversion And so it hath béen adjudged But if a man be seised of a rent in fée and disseise the Tenant of the land and make a Feofment in Fée the Tenant re-entreth this rent is not revived And to note a diversity betwéen a rent incident and a rent not incident to a reversion c. Littl. §. 590 591. Co. ibid. 324. 34 If I be seised of a Mannor parcel in demesne and parcel in service and I give certaine acres of land Rent incident to the reversâ—on A Donor cannot be ousted of it parcel of the demesnes to another in taile rendring rent in this case if I be disseised of the Mannor and all the Tenants attorne and pay their rents to the Disseisor and the Tenant in taile also pay to him the rent by me reserved and after the Disseisor dies and his heir is in by descent yet in this case I may well distraine the Tenant in taile and his heires for the rent so by me reserved because the rent reserved is incident to the reversion and the reversion of the land given in taile is still in me notwithstanding the disseisin and descent for as long as the Donée in tail is in possession he preserves the reversion in the Donor and so long as reversion continues in the Donor so long do the rents and services as incident thereunto belong to the Donor neither can the Donor be put out of his reversion unlesse the Donée be put out of his possession and if the Donee be put out of his possession consequently is the Donor put out of his reversion But if the Donee make a regresse and regaine his estate and possession thereby doth he ipso facto revest the reversion in the Donor c. There is the same reason of a Lease for life or yeares rendring rent c. 35 He that hath a remainder expectant upon an estate taile Error may bâ— brought by 〈◊〉 Reversionâ—â— or remâ—indâ—â— shall have a writ of Error upon a Iudgment given against the Tenant in taile Co. l. 3. 3. b. 4. The Marquess of Winchesters case albeit there was no such remainder at the Common Law For when the Statute de donis conditionalibus enabled the Donor to limit a remainder upon an estate taile all actions which the Common Law gave to privies in estate are by the same act as Incidents implicitely given also according to the rule of the Common Law And therefore as those in reversion or remainder expectant upon an estate for life shall have a writ of Error by the Common Law of a judgement given against Tenant for life although they were not made parties by aide prayer voucher or receipt So also since the Statute de donis conditionalibus shall he have that hath a reversion or remainder expectant upon an estate taile Co. l. 4. 8. b. 3. Bevils case 36 The seisin of a superiour service is seisin of all inferior services Superiour sâ—â—vice seisin oâ— inferiour incident unto it as seisin of Escuage is seisin of Homage and Fealty and seisin of Homage is seisin of Fealty and seisin of Rent is seisin of Fealty where the Seigniory is by Fealty and Rent Co. l. 4. 23. a. 1. Deal Rigdens case 37 Where by the custome of a Copihold Mannor plaints have béen made in the Court of the Mannor in the nature of reall actions Plaints in 〈◊〉 copihold 〈◊〉 to bar the 〈◊〉 in taile if a recovery in such a plaint be had against Tenant in taile admitting that Copihold land may be intailed that recovery shall work a discontinuance and shall take away the entry of the issue in taile for in as much as plaints in the nature of reall actions are warranted by the custome this is an Incident which the Law annexeth to the said custome viz. that such a recovery shall make a discontinuance which agrees with the reason of the principall point in Browns case Co. l. 4. 21. a. And the like judgement was given in B.R.M. 36 37 Eliz. betwixt Clun and Peale Rot. 1417. Copihold seâ—ered by cuâ—ome contiâ—ue severed â—lbeit surrenâ—red together â—n one copy 38 If a Copiholder is seised by force of several Copies Co. l. 4. 27. a. 4. Taverners case per Cur. Co. ibid. 28. a. 2. viz. of Black acre by 4d rent of White acre by vj d. and of Gréen acre by xij d. rent and he makes waste in part of Black acre or makes feoffment of it or denies the rent of it whereupon Black acre is forfeited This is no forfeiture of White acre or Gréen acre for although they are all in one and the same hand yet every of them is severally holden and to every acre there is a severall condition as an incident implicitely annexed unto it so that the forfeiture of one cannot be the forfeiture of any of the other because the severall conditions in Law do insue the severall tenures So likewise if the Copiholder of the said thrée acres surrender them altogether in one surrender to the use of A.
and his heirs and the Lord admit A. accordingly Tenendum per antiqua servitia inde prius debita de jure consueta or to the like effect and A. commits forfeiture in Black acre he shall forfeit onely that and neither of the other For the said Tenendum reddendo singula singulis continues the severall tenures In like manner if divers several Copiholds escheat to the Lord and he re-grant them to another Tenendum per antiqua servitia c. they shall be severally holden as they were before the Escheat c. Several times for several copies 39 If a man hath severall Copihold lands holden by several services Co. l. 4. 28. a. 1. Hubbert and Hamonds case the Lord ought to assesse and demand fines severally for each parcell so severally holden For the Tenant may refuse to pay the fine for one parcell and forfeit it and may pay the fines for the other because every severall tenure hath a severall condition in Law as an incident tacitè annexed unto it And therefore the Lord ought for every severall tenure to assesse and demand a severall fine The office of Shire-clerk incident to the Sheriffs office 40 Quéen Eliz. grants to one Mitton the office of Clerk of the County Court or the Shire-Clerk of the County of Somerset with all fées Co. l. 4. 33. a. 3. Mittons case c. for terme of his life and after the Quéen makes Arthur Hopton High Sheriffe of the same County who interrupts Mitton claiming that which was granted to him as a thing incident to his office of Sheriffe c. And it was adjudged that the County Court and the entring of all the proceedings in it are so incident to the office of Sheriffe that they cannot by Letters Patents be divided from it and albeit the said grant was made to Mitton when the office of Sheriffe was void yet when the Queen makes a new Sheriffe he shall avoid it c. Exigenter incident to the chief Justice 41 Tempore vacationis Co. ibid. 2 El. Dyâ—r 175. of the office of Chiefe Iustice of the Common Banke Queen Mary grants the office of the Exigenter of London to one Scrogges and it was holden void because it was incident to the office of Chiefe Iustice of the County which the Queen could not have And therefore the next Chiefe Iustice shall avoid it c. Gaoles incident to Sheriffs 42 Grants made by the King of the custody of the Gaoles of Counties are void Co. l. 4. 34. a. 1. in Mittons case per touts les justices because the custody of Gaoles of Counties of right do belong are by the Law annexed incident to the office of Sheriff as doth very well appeare by the judgement in Parliament Anno 14 E. 3. cap. 10. by which it is ordained that all Gaoles of Counties shall be rejoyned to the Sheriffs and that the Sheriffs shall again have the custody of the same Gaols as in times past was used and that they should put in such Gaolers for which they would answer c. Where a covenant binds and where not betwixt Lessor and Lessee 43 In a demise of Land when a covenant extends to a thing in esse Co. l. 5. 16. a. 4. Spencers case parcell of the Demise the thing to be done by force of the Covenant is quodam-modo incident and appurtenant to the thing demised and shall runne with the land and shall also binde the Assignée although he be not bound by expresse words But when the Covenant extends to a thing which hath not essence at the time of the Demise made that which hath not essence cannot be said to be incident or annexed to the thing demised and therefore in that case the Assignée shall not be hound to it unlesse specially named As if the Lessée covenant to repaire the houses c. this is parcell of the contract and extends to the supportation of the thing demised and therefore is quodam-modo incident and annexed to the houses and shall binde the Assignée although he be not expresly bound by the covenant But if the covenant be to build a brick-wall upon parcell of the land demised or the like which was not in esse at the time of the demise made but was to be done afterwards this covenant may binde the Covenantor himselfe and his Executors or Administrators but shall never binde the Assignâ—e because the Law will never annex a covenant to a thing which hath not essence c. It is otherwise Co. ibid. b. 3. if the Covenantor for himselfe and his Assignes covenant to do it for then the Assignes are specially named c. Co. 5. 24. a. 4. The Deane and Chapter of Windsor's case Co. ibid. 17. a. 4. 44 If a man demise or grant land to a Feme for years The like and the Lessor covenants with the Lessee to repaire the houses during the terme the Feme takes Baron and dies the Baron shall have an action of Covenant as well upon the covenant in Law by force of these words Demise and grant as also upon the expresse covenant because such a covenant runs with the land and is incident unto it There is the same Law of a Tenant by Statute Merchant or Statute Staple Elegit or of a terme sold by force of an Execution for in that case also the Vendée of the terme shall have an action of Covenant as a thing incident to the land albeit all these come to the terme by act in Law c. So likewise if a man grant to his Lessee for years that he shall have so many Estovers as shall serve to repaire his house or to burn within his house or the like during the term this covenant is as an incident and appertinent that runs with the land in whose hands soever it falls Co. l. 5. 47. a. 2. Franklins case 45 In a general pardon when an offence is excepted all the incidents and dependants thereupon are also excepted whether they be corporall or pecuniary c. Co. lib. 6. 7. a. 1. Wheelers case 46 If the King grant lands in fée Tenendum de nobis Fealty incident thougâ— not named c. per servitiuÌ„ unius rosae rubae annuatim c. solummodo pro omnibus omnimodis aliis servitiis c. This tenure is soccage in chief and in as much as fealty is incident to every Rent-service the Law annexeth fealty unto the said rent and then these words pro omnibus aliis servitiis are to be understood of other services which the Law doth not imply or add unto the rent so that then the tenure shall be by a Rose and fealty c. Co. l. 6 70. a. 3 Sir Moyle Finches case 47 If there be Lord and Tenant by Fealty and Rent Seigniory eâ—tinct and the Lord disseises the Tenant of the land and makes feoffment in fée by this the Seignory is
was enfeoffed to the end he may have the advantage of the warranty c. Co. l. 7. 9. b. 1. Calvins case 63 Ligeance and obedience on the Subjects part to his Prince Ligeance inseparably incident in all places to the subject is an inseparable incident to that power and protection whereby the Prince may command and ought to defend his Subject And this ligeance and obedience which that power and protection thus draweth after them cannot be locall or confined to any certain place or Kingdom but follows the Subject whethersoever he goeth And therefore it is truly said Qui abjurat regnum amittit regnum sed non Regem amittit patriam sed non patrem patriae c. for notwithstanding the abjuration he still oweth the King his ligeance and still remaineth within his protection because the King if he please may pardon and restore him to his Countrey again c. Littl. §. 366. Co. Inst pars 1. 227. b. 4. 64 If a man seised of lands in fee lets them for life without deed A condition incident to as estate for life rendring rent with clause of re-entry upon non-payment of the rent whereupon if the Lessor enter and the Lessée bring an Assize of Novel Disseisin the Iurors may finde the matter at large and the Iustices ought to adjudge it for the Tenant albeit regularly a condition is not valid without deed shewed in Court and that the Lessor shew no deed for they that have conusance of a thing are to have conusance also of all incidents and dependance thereupon and in this case the condition is an incident necessarily depending upon the estate for life which was perfected by livery Vide supra 28. Dyer 2. 1 2. 6 H. 8. 65 Emson avows for Rent-charge granted to him by a stranger Rent land incident to the person who was seised of the land where c. pro consilio impendendo the Plaintiffe pleads in barre that the Defendant was attainted of Treason and committed to the Tower yet the Grantor had néed of Counsel and could not have accesse c. and upon demurrer the Iudgment was that the Avowant should have return because the rent being incident to the person of Emson could not be granted over or forfeited So likewise land given by the King to a Duke to support his dignity cannot be granted over See Max. 45. Dyer 45. 35. 36. 30 H. 8. 66 The King can by no way grant or sever the tenure and seigniory in Chiefe from the Crown Tenure in Capite for no Subject can take it of his grant with such a prerogative And therefore if the King make a release to his Tenant in Capite to hold by a penny and not in Capite this is a void release for that tenure is méerly incident to the person and Crown of the King and hath such a prerogative that it cannot be held of any Subject as the Tenant in Frankalmoigne cannot hold of any other than of the Donor and of his person because it is a speciall tenure Also if the King at this day make a gift in taile to hold of him in Capite and after he grant the reversion of that land to another in fée neither the tenure nor service passe to the Grantée but remain in the King because they are not incident to the reversion but to the person of the King Dyer 175. 25. 132 Eliz. 67 The office of Exigenter of London being void Exigenter of London and Coke Chief Iustice of the C. B. being then also dead Quéen Mary during the vacation of the said places conferred by her Letters Patents the Exigenters office upon Colshil and then made Brown Chiefe Iustice of that Court But Brown refuseth Colshil and admits Scrogges thereunto And in this case it was resolved by all the Iudges and others save the Iustices of the Common Bench that the said office did not appertain to the Qu. to grant but onely in the dispose of the Chiefe Iustice for the time being as an inseparable incident to his person and place and that by reason of common usage and prescription â—ase of Deâ—esnes 68 A Prior makes a lease of the Demesnes of a Mannor rendring rent Dyer 233. 10. 7 Eliz. the King after the dissolution makes a lease for years of the Mannor And it was adjudged that by the name of the Mannor the rent and reversion of the Demesnes passed â—hattel vestâ—â— 69 A wardship fell to the Bishop of Durham by a tenure of him in Capite who dies before seisure yet his Executors shall have it Dyer 277. 57. 10 Eliz. and not the King or Successor for it was incident to his person and a chattel vested in him before his death 42 Quod tacitè intelligitur deesse non videtur V. 64. 11. â—opiholds 1 When custome hath once created Copiholds of Inheritance Co. l. 4. 22. a. 3. in Brownes case and that the land shall be descendable then the Law doth also direct the descent according to the Maximes and rules of the Common Law as incidents to every estate descendable So 5 E. 4. 7. when uses have gained the eeputation of Inheritances descendable the Common Law shall direct the descent of them and that there shall be Possessio fratris of an use as well as of other Inheritances at the Common Law â—ontract imâ—orts an Asâ—umpsit 2 Every contract executory imports in it selfe an Assumpsit Co. l. 4. 94. a. 4. Slades case For when one agrées to pay money or to deliver any thing he doth thereby assume and promise to pay or deliver it and therefore when one sells any goods to another and agrées to deliver them at a day to come and the other in consideration thereof agrées to pay so much money at such a day In this case both the parties may have an action of Debt or an action upon the case upon Assumpsit For the mutual executory agreement of both the parties imports in it selfe as well a reciprocal action upon the case as an action of debt And with this agrées the Iudgment in Reade and Northwoods case Pl. Co. fol. 128. â—xchange imâ—orts warranâ—â— and a conâ—ition 3 In every exchange rightly made Co. l. 4. 121 a. 4. Bastards case this word Excambium imports in it selfe tacitè a condition and also a warranty the one to give re-entry the other Voucher and recompence and all in respect of the reciprocal consideration the one land being given in exchange for the other but that is onely a special warranty for upon Voucher by force thereof he shall not recover any other land in value but that only which was so given in exchange c. And as it is in case of warranty so is it also in case of the condition which the Law implies upon the exchange for if the exchange be betwixt A. and B. and A. aliens his exchanged land to
purlew and that the clause of Ita quòd c. was not to be intended against the Queens Kéepers but other Subject onely So that whereas Fortescues servant killed the servant of the Kéeper for chasing there it was not justifiable by the Statute de Malefactoribus in paâ—cis Warrennis 44 Personal things cannot be done by another Co. Inst pars 1. 66. b. 3. 1 A single Corporation consisting of one person onely may do Homage as a Bishop in right of his Bishoprick Corporationâ— single and aggregate an Abbot or Prior in right of his Monastery c. But no Corporation aggregate of many persons capable be the same Ecclesiastical or Temporal can doe Homage as a Deane and Chapter Major and Cominalty and the like because Homage must be done in person a Corporation aggregate of many cannot appeare in person for albeit the bodies naturall whereupon the body politique consists may be seen yet the body politique or corporate it selfe cannot be seen nor do any act but by attorney and homage must ever be done in person c. Littl. §. 92. Co ib. 68 a. 2 The Steward or Bailiff of a Mannor may take fealty for the Lord Homage peâ—sonal but Homage cannot be made save unto the Lord himselfe in person and therefore Bracton saith lib. 2. fol. 80. Sciendum est quod non per procuratores nec per literas fieri poterit homagium sed in propria persona tam Domini quam tenentis capi debet fieri Câ— ibid. 1â—4 b. 4. 3 The service of Homage is so néerly annexed to the person Homage personal as well of the Lords side as of the Tenants that the Tenant ought to séek the Lord to the end he may do him Homage if the Lord be within England And therefore Bracton saith lib. 2. 8. Et sciendum est quod ille qui homâ—gium suum facere debet obtentu reverentiae quam debet Domino suo adire dâ—bet Dominum suum ubicunque inventus fuerit in regno vel alibi si possit commodè adiri non tenetur Dominus quaerere suum tenentem sic debet hâ—magium eâ— facere c. There is the same law of Fealty It is otherwise of rent for that is not personal but may be paid and received by another or tendred upon the land c. Lâ—ttl §. 153. 157. Co. ib. 107. 2. 3. 4 Grand Serjeancy is a service to be done to the royal person of the King and therefore cannot be performed by a Deputy Grand Sâ—râ—ancy without the Kings special licence or in some special cases because the high and great offices whereof that tenure doth for the most part consist ought to be performed in proper person Yet he that holdeth to serve him in his warre or by Cornage may make a Deputy c. â—nfants joynâ—enants 5 If two Ioyntenants within age make feoffment in fée Co. ib. 337. a. 4. they may enter joyntly in their lands or may joyne in a writ of right but they cannot joyne in a Dum fuit infra aetatem because the nonage of the one is not the nonage of the other Livery 6 If A. is to make a feoffment to B. and C. and their heirs without déed and A. makes livery to B. in the absence of C. in the name of both Co. Inst pars 1. 49. b. 3. and to their heirs this livery is void to C. because a man being absent cannot take a Fréehold by a livery but by his Attorney being lawfully authorized by déed to receive livery unlesse the feoffment be made by déed and then the livery to one in the name of both is good Demise of goods 7 If a man demise shéep or other stock of Cattle Co. l. 5. 16 b. 4. Spencers case or any other personall goods for a time and the Lessée covenants for him and his Assignes at the end of the time to deliver such like cattle or goods as good as the things demised were or such a price for them and the Lessée assignes the shéep or c. over This covenant shall not binde the Assignée because it is but a personal contract and there wants that privity which is betwixt the Lessor and Lessée and his assignes of land in respect of the reversion for in case of a lease of personal goods there is not any privity nor any reversion but méerly a thing in action in the personalty which cannot bind any but the covenantor himselfe and his Executors and Administrators which do represent him So it is also if a man demise an house and land for yeares with a stock or a sum of money rendring rent and the Lessée covenants for him his Executors Administrators and Assignes to deliver the stock or sum of money at the end of the terme yet the Assignée shall not be charged with this covenant for albeit the rent reserved were increased in respect of the stock or the sum yet the rent doth not issue out of the stock or sum but out of the land onely and therefore as to the stock or sum the covenant is personal and shall only bind the Covenantor his Executors and Administrators and not the Assignée c. Revocation under a mans own hand personal 8 There is a diversity betwixt conditions Co. l. 7. 13. a. 1. Englefields case which are personal and individual and cannot be performed by any other and conditions which are not so inseparably annexed to the person but that they may be performed by any other as it was resolved in the case of Thomas Duke of Norfolk who in Anno 11 Eliz. conveyed his land to the use of himselfe for life and after to the use of Philip Earle of Arundel his eldest sonne in taile with divers remainders over with Proviso that if he should be minded to alter and revoke the said uses and signifie his minde in writing under his owne hand and seale subscribed by thrée credible witnesses that then c. And after the said Duke was attainted of High Treason c. In that case the proviso or condition was not given to the Quéen by the Act of 33 H. 8. because the performance of it was personal and inseparably annexed to the person viz. to signifie his minde by writing under his own hand which none could do but the Duke himselfe It is otherwise of payment of money delivery of a ring or spurs of gold or the the like for they may be paid delivered or tendred by others c. Vide 55. 109. 〈◊〉 Retraxit â—ersonal 9 A Retraxit cannot be entred Co. l. 8. 58. 2. Beechers case unlesse the Plaintiff or Demandant be in Court in proper person for the entry is quòd quaerens in propria persona sua venit dicit quòd ipse placitum suum praedictum ulterius prosequi non vult sed ab inde omnino se retraxit c. And therefore a
in the Law in two significations Damages 〈◊〉 the Wronâ— relata the one properly and generally the other relative and strick properly as when costs of suit are also included in it c. But when the Plaintiff sheweth the wrong done unto him to the damage of such a sum this is to be taken relative for the wrong which is past before the Writ brought and they are then to be assessed occasionis transgressionis praedictae and cannot extend to Costs of suit which are future and of another nature viz. to expences in Law whereof no certainty can then be known Co. Inst pars 1. 338. b. 4. 8 An Estate-tail cannot be discontinued but where he Discontiâ—â—ance Vidâ— M. 23. 5. that made the discontinuance was not once seised by force of the Tail except it be by reason of Warranty c. according to the Rule in Philosophie Omnis privatio praesupponit habitum Co. ibid. 341. b. 3. for he cannot discontinue that estate which he never had Neither yet can a Parson discontinue the Fee-simple of his parsonage Co. ibid. 359. 24. because the intire and Fee-right thereof was never in him 9 If a Feofment be made to two Livery to 〈◊〉 enures to both and livery is made onely to one of them but yet according to the deed In this case the livery shall enure to both because the deed whereunto the livery referreth is made to both Verba relata hoc maximè operantur per referentiam ut in eis inesse videntur Pl. Co. 70. b. 2. in Kedwellies case against Brand. 10 Where Rent is reserved to be paid out of the Land at Dale upon Michaelmas day if it be behind 40 dayes after Place of pâ—â—ment of Râ—â— that then it shal be lawfull for the Lessor to re-enter In this case it ought to be tendred at Dale a convenient time before Sun-set upon the last of the 40 dayes for albeit it be not by expresse words that if the Rent be behind and unpaid at Dale by the space of 40 dayes c. yet it shall have Relation to the place first named and so the Law saith that the Rent shall be paid at Dale the last of the 40 dayes although it be not so expressed by plain words Vide 131. 5. Dyer 14. 69. 28 H. 8. per Shelley and Fitz-herbert 11 The Termor-covenants by Indenture to build an House without words of Executors the Term expires and he dies In this case Executors chargeable without naming theâ— the Executors shall be charged for they are co-relatives with him and represent his person it is otherwise of the heir unlesse he be named It is so likewise of an Obligation because it is a present duty See also Dyer 22. b. 139. 28 H. 8. Per curiam 12 Two have a Term as Executors Executors intirely possest and one of them grants all that he hath in the Land Dyer 23. b. 146. 28 H. 8. In this case the whole Lease passeth because each Executor representing the person of the Testator hath an Intire authority Howbeit the Law is otherwise of other Iointenants 13 A. by Indenture inrolled demiseth the Mannor of D. to B. and his Heires in fee farm rendring Rent with clause of distresse Dyer 157. Pl. 28. 4 5. P. M. Rent not â—tinct by a Fine and upon non-payment a re-entry by the same Indenture Covenants to make such assurance c. according to the true intent purport and meaning expressed in the same Indenture and by another Indenture bearing date the same day A. covenants to levie a Fine of the said Mannor c. before such a feast c. which Fine should be to the onely use intents effects and conditions expressed in the former Indenture and to none other and livery of Seisin was made upon the same Indenture accordingly and after the Fine was also levied viz. come â—eo quae B. habuit ex dono A. with release and warranty according to the course of Fines c. In this case the Rent was not extinct or touched by the Fine because the Fine had relation to the former Indenture Challenge 14 If a Iuror be but a suitor to the Leet of the Plaintiff or Defendant this is a principal Challenge Dyer 176. 27. 2 Eliz. in respect of that relation betwixt them which may procure favour Covenant 15 A Feme hath the third part of the Land of a Termor delivered unto her by the Sheriffe in Dower the Termor gives grants Dyer 240. 43. 7 Eliz. and assignes all the Land comprised in his Lease to A. and covenants that he had not done any act but that the Assignée may enjoy it against every one and he was also bound by Obligation to perform the Covenants In this case the Obligation is not forfeited for the words but that have Relation to the words of the Lessee viz. that he hath not done any Act and are not absolute words as if the Assignee should enjoy it against all men 53 Verba posteriora propter certituâ—inem addita ad priora quae certitudine indigent sunt referenda 1 Sir Adam de Clydrow Knight 6 E. 3. 12. Co. l. 8. 119. a 1. in Dr. Bonhams case brings a praecipe quod reddat against John de Clydrow Reference of words and the Writ was quod justè c. reddat manerium de Wicombe duas crucat terrae cum pertinentiis in Clydrow In this case the Town of Clydrow shal not relate to the Mannor quia non indiget for the Mannor may be demanded without making mention that it lyeth within any Town but cum pertinentiis although it cometh after the Town yet doth it relate to the Mannor quia indiget c. Vide 3 E. 4. 10. The like 2 If a man grant Rent in manerio de praecipiend in C. Acres of Land parcel of the same Mannor with clanse of distresse in the C. Acres Co. l. 8. 154. b. 2. Sir Edw. Althams case In this case the Rent shall onely issue out of the C. Acres and the general words shall be construed according to the special words according to the Rule in Margery Mortimers case 7 E. 3. fol. 10. a. Quando carta continet generalem clausulam posteaque descendit ad verba specialia quae clausulae generali sunt consentanea interpretanda est carta secundum verba specialia Rent 3 If a man grant Rent and go no farther Co. ibid. these words shall create an estate for life but if the habendum he for yeares that shall qualifie the general words â—ail 4 If a man give Lands to one and his Heires Co. ibid. habendum to him and the Heires of his body he shall have but an Estate-fall and no Fée expectant for the habenâ—um qualifies the general words Precedent 5 A Feme hath title of Dower in Lands in Wethersfield Gosfield Co. l. 8. 154.
Lord Cromwel and one Andrews Mich. 14 15 Eliz. But if the Tenant maketh a lease for life or a gift in tail this is a continuance of the privity and estate in the Tenant in respect of the reversion that remaineth in him because in that case the sée was never out of him c. Co. l. 8. 75. b. 3. The Lord Staffords case Co. ib. 103. b. 2. 8 If the Tenant by Homage Ancestrel alien his land The like and the Alienée is impleaded and vouch the Alienor albeit he cometh in by fiction of Law to many purposes in privity of his former estate yet to this purpose he cannot come in as Tenant by Homage Ancestrel because of the discontinuance of the estate and privity for that the tenancy was not continued in the bloud of the Tenant And therefore Britton saith Britt 170. a. Et come ascun soit vouche per homage le Seignior tende à averrer que le tenement dount il est vouche fuit translate hors del sanke del primer purchassour per feoffment ou per ascune autre translation en tiel cas soit le tenant charge de voucher son feoffor ou ses heires c. Howbeit if the land were recovered against the Tenant upon a faint title and the Tenant recover the same again in an action of an higher nature Here the Homage Ancestrel remains because in that case the right was a sufficient mean to preserve the privity and continuance So it is also if he had reversed it in a writ of Errour Co. ib. 103. a. 4. 9 If Cestuy que use after the Statute of 1 R. 3. 1. Cestuy qâ—â— use and before the Statute of Uses 27 H. 8. 10. had made a feoffment in fée upon condition and entred for the condition broken he should have detained the land against the Feoffées for ever for that the estate and privity was for the time taken out of the Feoffées and thereby dissolved for ever Co. ib. 117. a. 2. 10 The Lord shall not take advantage of any obligation covenant Things in action or other thing in action made to the Villein because they lie in privity and cannot be transferred to others Neither shall the Lord have a thing in action by Escheat for the same reason Co. l. 10. 48. a. 3. Lampets case Co. Ibid. Neither yet shall the Lord by voucher or otherwise take advantage of a warranty made to a Villein his heirs and assigns because it is in liew of an action and consists in privity c. Co. Inst pars 1. 130. b. 1. 11 Albeit the Vouchee Tenant by resceit Prayée in aide A protectiâ—â— cast for vâ—â—chee c. or Garnishée be no Parties to the Writ yet before they appear a Protection may be cast for them because when the Demandant grants the Voucher or resceit in judgement of Law they are made privie And although the Demandant counterplead the Voucher or resceit yet if it be adjudged for them and so they made privy in Law a Protection may be cast for them as aforesaid And so it is of the Garnishée a Protection may be cast for him at the day of the return of the Scire facias c. Co. ib. 146. a. 1. 12 If a Rent-charge be granted to A. and B. and their Heires Joyntenants in Avowry A. distraineth the beasts of the Grantor he sueth a Replevin A. avoweth for himself and maketh conusance for B.A. dieth and B. surviveth In this case B. shall not afterwards have a Writ of annuity because the election and Avowry for the rent by A. barreth B. of any election to make it an annuity albeit he assented not to the Avowry and this is by reason of the privity of their estate c. Co. ib. 170. b. 1. 13 Husband and Wife Tenants in special Tail have issue a daughter the Wife dieth Coparcenâ—â— the Husband by a second Wife hath issue another daughter both the daughters enter where the eldest is onely inheritable and make partition here the eldest daughter is concluded during her life to impeach the partition or to say that the youngest is not Heir and yet the youngest is a stranger to the Tail but in respect of privity of their persons the partition shall conclude for a petition between meer strangers in that case is void Howbeit the issue of the eldest shall avoid this partition as issue in Tail The like 14 I. S. seised of Lands in Fee hath issue two daughters Co. ib. 170. b. 2. viz. Rose bastard eigne and Anne mulier puisne and dieth Rose and Anne do enter and make partition In this case Anne and her Heirs are concluded for ever and this is by force of the Privity that is betwixt them â—ccompt 15 An action of Accompt must he grounded upon Privity Co. ib. 172. a. 4. for without Privity no Action of Accompt can be maintained viz. either a Privity indeed by the consent of the party as in such an action against a Receiver or Bailife for against a Disseisor or other wronged doer no account doth lie or a privity in Law ex provisione legis made by Law as against a Guardian in soccage c. â—lienation of 〈◊〉 property in 〈◊〉 â—â—parcenary 16 In coparcenarie if one of the parts be evicted by an eigne title Co. ib. 173. b. 2. Littl. Sect. 262. she that so loseth her part shall enter upon the rest to have recompence c. because yet the Privity which the Law creates betwixt them doth still remain but if one of the parceners sell her part and then the part which the other parcener hath is evicted c. In that case the parcener that so loseth her part shall not enter upon the Alienée for that by the alienation the privity is dissolved Littl. §. 260 And therefore if a man hath land in taile and also as much in Fée-simple and hath issue two Daughters and die and the Daughters make partition so that the entailed land is allotted to the eldest and the Fée-simple land to the youngest Here if the youngest Daughter alien the Fee-simple land to another in fée and hath issue and die the issue may well enter into the entailed land and shall hold it in property with her Aunt Yet shall not the eldest sister enter into half of the lands in Fee-simple upon the Alienee because by the alienation the privity of the estate was destroyed c. So it is also Co. ib. 172. b. 4. if the youngest Daughter had made a gift in tail because the reversion expectant upon an estate tail is of no account in Law for that it may be cut off by the Tenant in tail at his pleasure Exchange It is otherwise of an estate for life or years c. And what is said of parcenary is also true of exchange in point of eviction c. â—oparceners 17 If a man is
seised of a Carve of land by just title Littl. §. 262. Co. ib. 173. b. and disseiseth and Infant within age of another Carve and hath issue two daughters and dies and the Carve by good title is allotted to the eldest and the other to the youngest who alieneth it to another in fee and after the Infant at full age enters upon the Alienee In this case the youngest daughter hath excluded her self from having any part of the Carve by good title for that by her alienation the privity was destroyed Howbeit if the youngest daughter before the entry of the Infant had onely granted it for years or life or in tail saving the reversion there peradventure it were otherwise because in that case the privity is not utterly destroyed she having reserved to her self the reversion and fee. â—viction in â—â—parcenary 18 In coparcenary Co. ib. 173. b. 4. if the whole estate in part of the purparty be evicted that shall avoid the partition in the whole be it of a Mannor which is intire or of acres of ground or the like that be several for in that case the privity remains and the partition implyeth for this purpose both a warranty and a condition in Law and either of them is intire and therefore doth give in this case an entry into the whole And so hath it been resolved in Bastards case Co. l. 4. fol. 121. both in the case of partition as also of an exchange There is likewise the same reason when any estate of Free-hold is evicted from the Coparcener in all or part of her property for then it shall be also avoyded in the whole As if A. be seised in fee of one acre of land in possession and of the reversion of another expectant upon an estate for life and he disseise the Lessee for life who makes continual claim A. dieth seised of of both acres having two daughters partition is made so as the one acre is allotted to the one and the other acre to the other the Lessee enters the partition is avoyded for the whole and so likewise was it resolved in the case abovesaid Vide infrà 100. Co. ib. 186. b. 2. 19 If there be two Ioyntenants of an Advowson Joyntenants of an advoâ—son and the one presenteth to the Church and his Clerk is admitted and instituted this in respect of the privity shall not put the other out of possession but if that Ioyntenant that presented dieth it shall serve for a title in a Quare Impedit brought by the Survivor Littl. Sect. 304. Co. ib. 193. b. 1. 20 If there be thrée Ioyntenants Joyntenantâ— Release and one of them releaseth to another of his companions all his right in the land without the word Heires this shall enure to that companion and his heires to hold that part in common with the other Ioyntenant and this is by reason of the privity of their estate and for that he to whom the release is made is seised per my per tout of the fée and inheritance Co. ib. 193. b. 2. 21 If there be two Coparceners Coparceners Release and the one hath issue twenty daughters and dieth the other may release to any one of the daughters her whole part And here albeit she to whom the release is made hath not an equal part Neverthelesse by reason of the privity and the intirenesse of the estate the release is good although it be made without the word Heires But if there be two Ioyntenants of twenty acres and the one maketh a feoffment of his part in eightéen acres Ioyntenants release the other cannot release his intire part but onely in two acres because the Ioyntenant is severed for the residue Littl. Sect. 334. Co. ibid. 205. b. 4. 207. a. 1. 22 If a feoffment be made in Mortgage upon condition Privity betâ—â— Ancestor anâ— Heir Testâ—â— and Execâ—â— Intestate and Administrator Ordinaâ—â— that the Feoffor shall pay such a summe at such a day albeit the Feoffor die before the day of payment yet may the heire redéem the Mortgage by the payment or tender of the money So also may the Executor or Administrator or in their default the Ordinary although there be no mention in the déed of payment by any of them And all this by reason of the privity betwixt the Ancestor and heir which is and the Testator and Executor and the Intestate and Administrator or Ordinary for the heire is privy in bloud and the Executor Administrator and Ordinary are privies in right Littl. Sect. 336. Co. ib. 207. b. 4. 208. a. 2. 23 If a feoffment be made upon condition Feoffee upâ—â— condition may redâ—â—â— that the Feoffée shall pay xxl. unto the Feoffor upon such a day c. And if payment be not made that then it shall be lawful for the Feoffor c. to re-enter If the Feoffée sell the land to a stranger payment or tender made by either of the Feoffées shall be effectual to settle the estate in the last Feoffée for the first Feoffée may do it because he was privy to the condition and the last may also do it because he was privy in estate and in judgment of Law hath an estate and interest in the condition for the salvation of his tenancy Co. ib. 208. b. 3. 24 There is a diversity betwéen a condition of an Obligation Condition from Oblâ—â— or Feoffee or a condition upon a feoffment where the Act that is local is to be done to a stranger and where to the Obligée or Feoffor himself As if one make a feoffment in fée upon condition that the Feoffée shall infeoff a stranger and no time limited the Feoffée shall not have time during his life to make the feoffment for then he should take the profits in the mean time to his own use which the stranger ought to have and there is no privity betwéen the Feoffée and the Stranger and therefore he ought to make the feoffment as soon as conveniently he may and so it is also of the condition of an Obligation But if the condition be that the Feoffée shall re-enfeoff the Feoffor there the Feoffee hath time during his life by reason of the privity of the condition that is between them unlesse the Feoffee in this case be hastned by request c. Co. ib. 209. a. 3 25 For the redemption of an estate in Mortgage Privies in 〈◊〉 the Executors or heire may make the tender For albeit the heire be a third person yet is he no stranger but he and the Executors also are privies in Law c. Vide Littl. Sect. 337. Privies by deed 26 If a man enfeoff another upon condition Co. ib. 213. a 4. Littl. §. 345. that he and his heirs shall render unto a stranger a yearly rent c. This is not rent properly so called and the reservation is meerly void because there wants privity But if
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
a difference when one cometh to a particular estate in land by the act of the party and when by act in Law for if the Guardian hold over he is an abator because his interest came by act in Law c. Privies their several kinds 51 Privity in the understanding of the Law is four-fold Co. ib. 217. a. 3. 1 Privies in estate as betwéen Donor and Donée Lessor and Lessee which privity is ever immediate 2 Privies in Bloud as the heir to the Ancestor or between Coparceners c. 3 Privies in Representation as Executors c. to the Testator 4 Privies in tenure as the Lord and Tenant c. which may be reduced to two generall heads Privies in Deed and Privies in Law To these also may be added Privies in right as Prececessor and Successor unlesse you may ranke them with Privies in Representation Release withâ—â—t privity â—oid 52 A release shall not enure by way of enlarging of an estate Co. ib. 272. b. 4. c. Little Sect. 547. unlesse there be privity of estate as between Lessor and Lessee Donor and Donee for if A. make a lease to B. for life and the Lessee maketh a lease for years and after A. releaseth to the Lessee for years and his heirs this release is void to enlarge the estate because there is no privity between A. and the Lessee for years So likewise if a man make a lease for 20 years and the Lessee make a lease for 10 years if the first Lessor doth release to the second Lessée and his heirs that release is void Likewise if the Donee in tail make a Lease for his own life and the Donor release to the Lessee and his heirs this release is void to enlarge the estate c. Co. ib. 273. a. 4. 53 If a man make a Lease for yeares the remainder for life Release to privies in estate good a release by the Lessor to the Lessee for years and to his heires is good for that he hath both a privity and an estate and a release also to him in the remainder for life and his heires Doct. Leyfields case is good also for these are privies in estate c. But they ought to have the Deed ready in their fist to plead Co. l. 10. 93. a. 4. Littl. §. 470 471. Co. ib. 275. a. 4. 54 If my Tenant for terme of life lets the land to another for terme of the life of the Lessee the remainder to another in Fee The like Here if I release to my Tenants Lessee for life I am barred for ever albeit there be no mention of Heires because at the time of the release I had no reversion but onely a right to have a reversion for by such a Lease and the remainder over which my Tenant made my reversion was discontinued or rather devested c. And such release shall also enure to him in remainder to take advantage thereof as well as the Tenant for life because he and my Tenants Lessee for life are privies in estate c. being as it were but as one Tenant in Law solely seised in his Demesne as in fee at the time of the release made c. So likewise if a Disseisor make a Lease for life Co. ib. 275. b. 2. and the Disseisee doth release all his right to the Lessee this release shall enure to him in the reversion c. Co. ib. 279. b. 2. 55 If there be Lord and Tenant The like and the Tenant maketh a lease for life the remainder in Fee if the Lord release to the Tenant for life the rent is wholly extinguished and he in the remainder shall take benefit thereof So also if the heire of the Disseisor be disseised and the Disseisor make a Lease for life the remainder in fee if the first Disseisee release to the Tenant for life that shall enure to him in remainder c. Co. ib. 285. b. 4. 56 A release of actions shall onely extend to such as are privies to the Deed of release and to none other A release of actions extends onely privies and therefore if the Disseisee release unto the Disseisor all actions real and the Disseisor maketh a feofment in Fee and an Assise is brought against them the Feoffee shall not plead the release to the Disseisor for that he is not privie to the release So likewise if a Disseisor make a Lease for life the remainder in Fee and the Disseisee release all actions to the Tenant for life after the death of the Tenant for life he in the remainder shall not plead that release Also if the Disseisee release all actions to the Disseisor and die this is onely a barre to the Disseisee during his life for after his decease his heir may have an action as some have said 19 H. 6. 23. a. And hereby may appear a manifest diversity between a release of a right Co. ib. 286. a. 4. and a release of actions c. If the heir of the Disseisor make a Feofment in Fee to two and the Disseisée releaseth to one of the Feoffées all actions and that Feoffee dieth the Survivour shall not plead that release c. Co. ibid. 297. b. 1. 57 If the Disseisor make a Lease for life to A. and B Disseisee â—â—firmes to jâ—â— tenant of Dâ—seisor and the Disseisee confirme the estate of A. B. shall take advantage thereof because of the privity for the estate of A. which was confirmed was joynt with B. and in that case the Disseisee shall not enter into the land and devest the moity of B. So likewise if the Disseisor enfeoffe A. and B. and the heires of B. if the Disseisee confirme the estate of B. for his life this shall not onely extend to his Companion but also to his own whole Fee-simple c. â—elease from Disseisee 58 If a Feme Disseisoresse make a Feofment in Fee to the use of A. for life and after to the use of her selfe in taile Co. ib. 297. b. 4. and the remainder to the use of B. in Fee and then taketh husband the Disseisée who releaseth to A. all his right this shall eâ—â—are to B and to his own wife also for they are all privies in estate c. A Confirmation works not â—ithout priviâ—ie 59 A Confirmation shall never enlarge an estate Co. ib. 296. a. 2. 305. a. 4. b. 2. Littl. Sect. â—38 but when there is privity neither yet shall it regularly abridge Services but where there is privity As if there be Lord and Tenant and the Tenant holds of the Lord by Fealty and 20 s. rent the Lord may by his Déed confirme the estate of the Tenant to hold by 12 d. or by a penny or by an halfe penny and in this case the Tenant is discharged from all other Services but what are contained in the said Confirmation and this is in
c. â—laim within â—â—e years by â—â—urdance â—c 112 Vpon a fine acknowledged of lande according to the Statute of 4 H. 7. cap. 24. Co. lib. 9. 106. a. Margaret Podgers case The Guardian by nurture or in soccage may enter in the name of the infant who hath right to enter into the same lands and this shall vest the estate in the infant without any commandment or assent because there is privity betwéen them So likewise he in the reversion expectant upon an estate for life or years or the Lord of a Tenant by copy c. may well enter within that Act in the name of the Tenant for life Lessée for years or Tenant by Copy and also in their own right as well to save their own Franktenement and Inheritance as also the said particular interests for the Lessor or the Lord are not Strangers because they are privies in estate And as the entries of those particular Tenants shall availe the Lessor and the Lord in those cases in respect of the privity of their estates So the entry of the Lessor or the Lord in the like cases in the names of the particular Tenants shall availe the same Tenants in regard of the privity of their estates and for the salvation of their several rights without any request precedent or assent subsequent for in these cases the Lessor and the Lord pursue the title and claime which they have to the inheritance by lawfull entry within the five years according to the saying contained in the said Act Howbeit he that is a méer stranger and hath no right shall not by his entry within the 5 years in the name of him that right hath avoid such a fine unlesse he have some request or commandment precedent or assent subsequent to authorize him to do it because the said Act hath appropriated the pursuit thereof by way of action or lawfull entry unto him that right hath either by interest or privity or else by request or Commandment precedent or assent subsequent c. Co. l. 10. 43. b. 4. Jennings case 113 At the Common Law recovery against Tenant for life with Voucher upon true warranty and recovery in value shall bind him in remainder as the books are in 19 E. 3. Recovery in value 20. 23. E. 3. Recovery against Tâ—â— for life ibid. 13. 44. Ass pl. 35. 5 E. 4. 2. And the reason hereof is because the particular estate and the estate in remainder in respect of the privity make but one estate and one warranty may extend to both and therefore the recompence in value shall also enure to both Co. l. 10. 48. a. 3. in Lampets case 114 Albeit the wisedome and policy of the Sages of our Law hath provided that no possibility right title Right and title may be released 〈◊〉 not transfered or thing in action shall be granted or assigned to strangers to avoid multiplicity of suits oppression of the people principally of the Terre-tenants and the subversion of the due and equal execution of Iustice Neverthelesse all rights titles and actions by the prudence and policy of the Law may be released to the Terre-tenant for the same reason of his repose and quiet and for the avoidance of suits and contentions and to the end every one should live in his calling with peace and plenty And therefore a right or title to the Frank-tenement or Inheritance be it in presenti or futuro may be released in five manners 1 To the Tenant of the Frank-tenement in Déed or in Law without any privity 2 To him in remainder 3 To him seised of the reversion without any privity but an estate cannot be enlarged without privity 4 To him that hath right onely in respect of privity As if the Tenant be disseised the Lord may release his Services in respect of the privity and right without any estate 5 In respect of privity onely without right As if Tenant in tail make Feofment in fée the Donée after the Feofment hath not any right and yet in respect of the privity onely the Donor may release unto him the rent and all services saving the fealty So also the Demandant in a precipe may release to to the Vouchée or to the Tenant after feofment c. Vide suprà 44. Co. l. 10. 92. a. 4. 93. a. b. Doct. Leyfields case 115 It is a Maxime in the Law that when he Release 〈◊〉 not plead 〈◊〉 where theâ—â— is privity without â—â—â—ing it that is party or privy in estate or interest or he that justifies in the right of him who is party or privy is forced to plead a Déed albeit he that is privy claimes but parcel of the original estate yet in that case he ought to shew the original Déed to the Court As if the King demiseth land to B. for life B. demiseth the same land to C. for years here if C. be impleaded he ought to produce in Court the Letters patents of the demise granted to B. because B. and C. are privies in estate Vide William Poles assise 3 H. 6. 20 21 22. which was in effect this A. by indenture enfeoffes B. of the Mannor of Dale rendring unto A. and his heirs 5 marks rent per annum with clause of distresse A. grants to C. for life xxvi s. viii d. per annum parcel of the same rent who being first seised and then disseised brings an Assise of the said parcel granted to him and because in the same Assise the Plaintife produced not the original indenture of the reservation of the whole rent made to his Grantor Iudgement was given against him albeit he claimed but parcel of the said rent and the reason thereof was in regard William Pole the plaintife was privy in the estate of the rent and claimed by the first grant And in the case above put the reason holds against the stranger in regard the Lessée might have bound the Lessor by Covenant to have shewed forth the Déed when occasion should have required In 35 H. 6. it was agréed that Guardian in Chivalry shall not plead a release made to his Tenant without shewing it forth So in 14 H. 8. 4. It was agréed by all that he who is privy in estate as Feoffée Lessée for years c. or that justifies as servant to him that is privy ought to shew the Déed to the Court which they plead c. And in Debt against the heir he shall not plead a release made to the Executors without shewing it for there is privity betwixt them and with this agrées the 13 E. 2. Monstrans des faits 4â— Howbeit on the other side where a man is a stranger to the Déed and claimeth not the thing comprised in the grant nor any thing out of it nor doth any thing in right of the Grantée as Bailife or Servant there he shall plead the Patent or Déed without shewing it If the Tenant plead the grant of the Lord with
attornment Co. ib. 94. 2. he shall not shew it sic de simlibus But when he that claimes the thing or any right or interest out of it or justifies in right of the Grantée there he ought to shew the first grant as the second Grantée of a rent charge shall shew the first grant and so shall his Bailife and the Grantée of a rent charge shall not plead the release of the Disseisée to the Disseisor without shewing it for albeit he claime not the land of which the release is made yet he that hath rent out of land hath also right in the land which by a release of all his right shall be extinct and therefore in such case he ought to produce the Déed And with this agrées the 20 H. 7. 6. 14 H. 8. 5. The Disseisée shall not plead a release to the Disseiser neither of right in the land nor of rent issuing out of the land without shewing it for where one claims the thing unto which the release is made or right or interest out of it the Law creates a privity in respect of his estate or right in the land viz. to this intent that he shall not have benefit of the Déed without shewing it Impeachment â—f wast is gone â—y altering the â—â—tate 116 If an estate of land be granted without impeachment of wast Co. l. 11. 83. b. 3. Lewis Bowles case that priviledge is individually annexed unto that estate 3 E. 3. 44. per Shard and Stone If one that hath a particular estate without impeachment of wast change his estate he loseth that advantage 5 H. 5. 9. a. If a man make a Lease for years without impeachment of wast and after he confirmes the land to him for his life he shall be afterwards chargeable for wast 28 H. 8. Dyer 10. b. If a Lease be made to one pur auter vie without impeachment of wast the remainder to him for terme of his own life here he is punishable of wast for the first is estate drowned and gone and so it is also of a Confirmation The heir at the Common Law shall have prohibition of wast against the Tenant in Dower but if the heir grant over the reversion his Grantée shall not have prohibition of wast For it appears in the Register fol. 72 that such an Assignee in an action of wast against Tenant in Dower shall recite the Statute of Glocester and therefore he shall not have prohibition of wast at the Common Law for then he should not recite the Statute Vide F. N. B. 55. 14 H. 4. 3. 5 H. 7. 17. b. suprà 1 4. â—ouchee c. â—y have a â—rit of Erâ—â— c. 117 If a man be vouched and enter into warranty and leaseth F. N. B. 21. c. he may have a Writ of Error and shall assigne the errors which hapned between the Demandant and the Tenant or between the Demandant and himselfe as Vouchee And so he in reversion that prays to be received for default of the Tenant for life or for his faint pleading if he be recovered and plead and lose he shall have a Writ of Error and shall assigne the error that hapned betwéen the Demandant and Tenant or betwéen the Demandant and himselfe that so prayed to be received So also if Tenant for life lose by default he in the reversion shall have a Writ of Error albeit he neither was received nor prayed to be received And he shall assigne for error any matter that hapned betwéen the Demandant and Tenant that so lost by default And all this is in respect of the privity and interest which the Vouchee and Reversioner had in the land so recovered by the Iudgement F. N. B. 21. l. m. n. 118 In a plea of land against the Tenant if the Tenant die Who may bring writs 〈◊〉 Error he that is heir to the Tenant for that land shall have a Writ of Error and not he that is heir at the Common Law as in Borough English if the Tenant lose the land by erronious Iudgement the youngest sonne shall have the Writ of Error and so shall he that is heire in special tail And this in respect of the special privity and interest which they have in the land And for the same reason it is that in case land be lost by erronious Iudgement the Tenant may have a Writ of Error and so also may the Vouchee have another Writ of Error upon one and the same Iudgement and so may the Tenant and the Tenant by receit and all at one time hanging Executors also or Administrators shall have a Writ of Error upon a Iudgement given against their Testator for debt or damages So likewise the heir shall have a Writ of Error to reverse an out-lawry of Felony pronounced against his father to restore him to the privity of bloud betwéen his father and him F.N.B. a. 22. b. The Successor of an Abbot Prior Parson or such like bodies politique shall have a Writ of Error upon a Iudgement given against their Predecessor of all things which touch the Succession or Corporation but if a man recover against a Parson Bishop or the like debt or damages by judgement or action personal their Executors shall have a Writ of Error upon such Iudgement and not their Successors because their Executors or Administrators have interest in such things and not the Corporation c. If a man sue execution erroniously against the recongnisor upon a recognisance the Feoffée of the recognisor shall have a Writ of Error c. F. N. B. 22. c. 119 In a praecipe quod reddat of land if the Tenant disclaime No writ of Eâ—ror upon diâ—claime whereby the Demandant recovers in that case the Tenant shall not have a Writ of Error against his own Disclaimer because by that plea he hath waved all the privity and interest that he had in the land but if the Tenant onely plead non-tenure and thereupon it is found against him so that the Demandant recovers in that case the Tenant shall have a writ of Error c. F.N.B. 98. q. r. 120 If a man lose land by default in a praecipe quod reddat and die Heir and â—â—cutor privies the heir shall have an action of deceit as well as the father and shall have restitution for he is privy in bloud So likewise if a man have execution by default upon a recognisance in a Scire facias sued against one and that Defendant die his Executors shall have a Writ of deceit and shall be restored for they are privies in right c. F.N.B. 108. a. 121 The Vouchée or Tenant by receit or he in the reversion Reversione shall have â—taint or Eâ—â— where he joyns to the Tenant for terme of life by aid prayer shall have an attaint if they lose by false verdict And if the Tenant for life lose by false verdict he in the
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
K. Bench sits 10 At the Common Law the Court of Marshalsie had jurisdiction of Pleas of the Crown and had a general authority in effect Co. l. 10. 71. a. 73. b. in the case of the Marshalsie as Iustices in Eire had for they were in part the Vicegerents of the Chiefe Justice of England within the Vierge Howbeit after that by the Statute of 28 E. 1. cap. 5. the Iustices of the Kings Bench were enjoyned to follow the Court the general authority of that Court as to those purposes vanished because they being onely the Vicegerents of the Chief Justice in his presence their authority ought to cease for in presentia majoris cessat potestas minoris c An entaile extinct in a Fee-simple 11 Sir Thomas Wyat being seised of divers Mannors in taile Dyer 115. 65 66. 1 2 P. M. the remainder in H. 8. in fee in the beginning of Quéen Maries reign forfeits them for treason whereby they escheat to the Quéen In this case the estate tail was utterly extinct and the Quéen is in of her ancient Fée-simple executed for she cannot be in of the Fée-simple determinable upon the entaile because then there would be two Fee-simples in the Qu which is absurd And therefore rather than so the entaile shall be merged in the Quéens ancient Fée-simple Errour 12 An Exigent is returnable by the roll Octabis Mich. but the writ of Exigent was returnable Mense Dyer 211. 32. 4 Eliz. and the Defendant was out-lawed betwixt Octabis and Mense and this was adjudged error because the roll is of more credit than the writ and determines it 62 The more worthy thing draweth unto it things of lesse worthinesse Finch 23. 1 The body of a man is more worthy than land The bodie more worthy than land therefore land shall follow the nature of the person as a Villein shall make frée land to be Villein-land but Villein-land shall not make a frée man to be a Villein So likewise the Kings land which he hath in his natural capacity Co. Inst pars 1. 15. b. 3. shall be demeaned according to the priviledge and prerogatives of his body royal As if the King hath issue a sonne and a daughter by one Venter and a son by another Venter and purchaseth lands and dieth and the eldest son enters and dies without issue the daughter shall not inherit those lands nor any other Fée-simple lands of the Crown but the younger brother shall have them Where note that neither possessio fratris doth hold of lands which are the possessions belonging to the Crown neither yet doth Half-bloud make any impediment to the descent of lands of the Crown as it fell out in experience after the decease of E. 6. to Quéen Mary and from Quéen Mary to Quéen Eliz. both which were of the halfe blood and yet inherited not onely the lands which King Edward and Quéen Mary purchased but also the ancient lands parcel of the Crown A man that is King by descent on the part of his mother purchaseth lands to him and his heirs and dies without issue this land shall descend to the heir of the part of the mother whereas in the case of a Subject the heire of the part of the father shall have them So King Henry the eighth purchased lands to him and his heirs having issue two daughters Quéen Mary and Quéen Eliz. and after the decease of E. 6. the eldest daughter Quéen Mary did inherit onely all the lands in Fée-simple for the eldest daughter or sister of a King shall inherit all his Fée-simple lands So it is also if the King purchaseth lands of the custome of Gavelkind and die having issue divers sons the eldest son shall onely inherit those lands And the reason of all these cases is as afore is said for that the quality of the person doth in these and many other like cases alter the descent so as all the lands and possessions whereof the King is seised in jure Coronae shall secundum jus Coronae attend upon and follow the Crown And therefore to whomsoever the Crown descends those lands and possessions shall descend also For the Crown and the lands whereof the King is seised in jure Coronae are Concomitantia And the lands and possessions belonging to the Crown do follow and attend upon the Crown as upon the more worthy c. Co. ib. 43. a. 4. 2 When the Royal body politique of the King doth méet with the natural capacity in one person The King no minor the whole body shall have the quality of the Royal politique which is the greater and more worthy For Omne majus trahit ad se quod minus est And therefore in judgement of Law the King Co. ib. 16. a. 1. as King cannot be said to be a Minor because in the Royal body politique there can be no minority So likewise if the right heire of the Crown be attainted of Treason yet shall the Crown descend to him and eo instante without any other reversal the attainder is utterly avoided as it fell out in the case of H. 7. c. Co. ib. 87. b. 3. 3 If a man be seised of a Rent-charge Rent-seck Things in grant follow land Common of pâ—sture or such like inheritance which do not lie in tenure and dieth his heire being within the age of 24 years In this case the heire may choose his Guardian but if he hold lands in soccage together with such like inheritances Then shall the Guardian in soccage not onely take into his hand the lands holden in soccage but such inheritances also because he hath the custodie of the heir c. Co. ib. 114. b. 2. 4 Albeit a man cannot prescribe to have bona catalla proditorum Of felons goods no perscription faelonum c. yet may they or the like priviledges be had obliquely or by a meane by prescription For a County Palatine may be claimed by prescription and by reason thereof to have bona catalla Proditorum felonum c. â—he grant of a â—annor pasâ—eth services 〈◊〉 5 Whatsoever passeth by livery of seisin either in déed or in Law Co. ib. 121. b. 2 may passe without déed and not onely the rents and services parcel of the Mannor shall with the demesnes as the more principal and worthy passe by livery without déed but likewise all other things regardant appendant and appertinent to the Mannor as incidents and adjuncts to the same shall together with the Mannor passe without déed and all these shall so passe without saying cum appertinentiis Priviledges â—â—nct 6 If A. be seised of a Mannor Co. ib. 121. b. 4. whereunto the franchise of waife and stray and the like are appendant and the King purchaseth the Mannor with the appurtenances Now are these Royal franchises remitted to the Crown and not any longer appendant to the Mannor c. Common
Law and Franchise 7 When a matter alleaged extendeth into a place at the Common Law and likewise into a place within a Franchise Co. ib. 125. b. 3. it shall be tried at the Common Law An Assise in Confiâ—io Comiâ—tus at the Common law 8 Before the Statute of 7 R. 2. cap. 10. Co. ib. 154. a. 1. no Assise in confinia Comitatus lay at the Common Law for the recovery of rent issuing out of lands that lay in several Counties but for a Common of Pasture Turbary Piscary Estovers and the like in one County appendant or appurtenant to land in another County an Assise in confinio Comitatus did lie at the Common Law because the land as the more worthy drew them to it But land could not be appendant or appurtenant to land And so it is of a Nusance done in one County to lands lying in another County For in that case also the like Assise did lie at the Common Law c. â—elease of one â—ynter shall â—â—e prejudice â—â—e other 9 If thrée Ioyntenants be disseised and they arraign an Assise Co. ib. 285. a. 4. Co. l. 2. 68. a. 4. in Tookers case 30 H. 6. Barr. 59. 45 E. 3. 10. and one of them release to the Disseisor all actions personal this shall barre that Ioyntenant but it shall not barre the other two Plaintiffs For having regard to them the realty shall be preferred and Omne majus trahit ad se minus dignum And in a writ of Ward brought by two the release of the one shall not grieve the other but shall enure to his benefit For he shall recover the whole Ward and hold his Companion out c. 10 In Law there are thrée kinds of rights Jus proprietatis Co. ib. 266. a. 2. Jus possessionis and Jus proprietatis possessionis and this last is anciently called Jus duplicatum or Droit Droit For example if a man be disseised of an acre of land the Disseisée hath Jus proprietatis the Disseisor Jus possessionis and if the Disseisée release to the Disseisor he then hath Jus proprietatis possessionis And regularly it holdeth true that when a naked right to land is released to one possessionis 〈◊〉 draw jus â—â—â—rietatis that hath Jus possessionis and another by a mean title recover the land from him the right of possession shall draw the naked right with it shall not leave a right in him to whom the release is made For example if the heir of the Disseisor be in by descent and A. doth disseise him and the Disseisée releaseth to A. Now hath A. the méer right to the land but if the heir of the Disseisor enter into the land and regain the possession that shall draw with it the méer right to the land and shall not regain the possession onely and leave the meer right in A. but by the recontinuance of the possession the méer right is therewith vested in the heire of the Disseisor So likewise if the Disseisée enter upon the heire of the Disseisor and enfeoff A. in fée and the heire of the Disseisor recover the whole estate that shall also draw with it the meer right and leave nothing in the Feoffée c. 19. â—â—y must be 〈◊〉 of the â—â—ge 11 The Lessor for years of a Mease a Close Co. l. 2. 31 b. in Bettisworths case and other certain lands in Dale makes a feoffment of all and gives livery in the Close in name of all the Lessée being at the same instant residing in the Mease And it was adjudged that this livery was void as well for the Close as for the Mease and other lands so demised For when the Messuage with the land is intirely demised the Messuage is the principal because that serves for the habitation of man and in a Praecipe shall be first demanded before land as the more worthy and the demand for rent arrear shall be made at the Messuage as at the more principal and notorious place within the Demise So that the Messuage being the more worthy and the Principal and the land but as accessory without question the possession of the Mease by the Lessée for years at the time of the livery made is good possession of the land demised with it c. Co. l. 2. 68. a. 4. in Tookers case 12 In an action of Waste brought by two Waste is 〈◊〉 in the personalty release of all actions personal by one shall barre the other for in Waste the personalty is the principal 9 H. 5. 15. per Cur. Vide suprà 9. Co. l. 11. 48. a. 2. in Lifords case 13 If a man by déed indented bargain and sell Land more worthy thaâ— trees give and grant his Mannor of Dale and all his trées growing thereupon to another and the déed is not enrolled according to the Statute in as much as the Mannor passeth not to the Bargainée neither shall the trées passe albeit they are granted by expresse words and may passe without enrolment and that a mans owne grant shall be taken most strongly against himselfe c. Co. l. 11. 51. b. 4 in Lifords case 14 If after a man hath disseised me The like I regain the possession of the land after my regresse into it the Law shall adjudge that the Franktenement still continued in me ab initio And therefore if the Disseisor or his Feoffor or his Disseisor cut down any trées or grasse or sow any grain and sever them or sell them to another yet after my regresse I may take them wheresoever I shall finde them because the re-continuance of the land as the principal shall regaine my property in them as accessories albeit they be carried from off the land for the carrying of them thence cannot alter my property in them c. Co. Inst pars 1. 8. a. 4. 15 If a man buy divers fishes as Carps Bremes Tenches Fish Doâ—â— c. incidenâ— the free 〈◊〉 c. and put them in his pond and dieth In this case the heire shall have them and not the Executors for they shall goe with the Inheritance and the rather for that they were at liberty and could not be gotten without industry as by Nets and other Ingines Otherwise it is if they were in a trunke or the like Likewise Déer in a Park Conies in a Warren and Doves in a Dove-house young and old shall goe to the heire 11 H. 4. 31. 16 An Adulterer takes away another mans wife Wife withâ—â— clothes and puts her in new clothes the Husband may take the Wife with her clothes Finch 22. 10 El. 323. b. 17 A box insealed with Charters shall go to the heire with the Charters and not to the Executors Finch 22. A box with chaâ—ters Finch 23. 18 A base Myne where there is Ore shall be the Kings A Myne 〈◊〉 the Ore for the
worthinesse of the Ore Littl. §. 478. Co. Inst pars 1. 278. b. 4. 19 If a man be disseised by an Infant who aliens in fée The right lows the pâ—session and the Alienée dies seised and his heir enters the Disseisor being still within age and then the Disseisée releaseth to the heir of the Alienée In this case if the Disseisor enter upon the heir of the Alienée as he may he shall enjoy the land for ever for a bare right shall never be left in the heir of the Alienée but shall ever follow the possession c. So likewise if a man maketh a gift in tail the remainder in fée the Tenant in taile dieth without issue a stranger intrudes and he in the remainder brings a Formedon and recovereth by default and maketh feoffment in fée the Intrudor reverseth the recovery in a writ of deceipt and entreth he shall detain the land for ever So it is also when a Disseisor dies seised and a stranger abates and the Disseisée releaseth to the Abator c. Here if the heire of the Disseisor enter he shall detain the land for ever For Co. ib. 283. b. 3. in all these cases the right to the possession shall draw the right of the land to it neither yet shall any of these be relieved by bringing their writ of right c. And the rule to know when the possession shall draw the right of the land to it and when not is this when the possession is first and then a right cometh thereunto the entry of him that hath the right to the possession shall gain also the right which as appeares in those cases before put followeth the possession and the right of possession draweth the right unto it But when the right is first and then the possession cometh to the right Littl. § 486. 48. albeit the possession be defeated yet the right shall remain As if the Disseisée enter upon the heire of the Disseisor albeit the heire may recover the possession of the land against the Disseisée in an Assise of Novel Disseisin or in a writ of Entry in the nature of an Assise Yet shall the Disseisée afterwards recover the land again from the heire in a writ of Entry en le per of the disseisin made unto him by his Father or otherwise in a writ of Right because the méer right of the land did still remaine in the Disseisée c. Co. ib. 266. a. 3. So if a woman that hath right of Dower disseise the heire and hée recover the land against her yet shall he leave the right of dower in her c. Because when the naked right is precedent before the acquisition of possession upon the defeasible estate then in consideration of Law is the right more worthy than the possession but when the possession is before the right then is the possession more worthy c. according to the Rule Quod prius est tempore potius est jure And this likewise holds true when the méer right is subsequent and transferred by act in Law for there also albeit the possession be recontinued yet that shall not draw the naked right with it but shall leave it in him As if the heire of the Disseisor be disseised and the Disseisor enfeoff the heire apparent of the Disseisée being of full age and then the Disseisée dieth and the naked right descends to the heir and the heire of the Disseisor recovers the land against him yet doth he leave the naked right in the heire of the Disseisée So if the Discontinuée of Tenant in taile enfeoff the Issue in taile of full age and the Tenant in taile die and then the Discontinuée recovers the land against him yet doth he leave the naked right in the Issue For in these cases also as before the right although it séems to be subsequent to the possession yet is it indéed before it in respect of the privity viz. in the first case of bloud betwéen the father and son and in the other case of estate by force of the gift in taile because the right of the father is by construction of law the right of the son and the right of the Ancestor is the right of the issue in the taile 10. â—ujus est soluÌ„ â—us est usque ad â—lum 20 The earth is more worthy than the other elements Co. Inst pars 1 4. a. 3. because it was ordained for the habitation of man and therefore it hath in Law a great extent upwards not onely of water but a aire and all other things even up to heaven for cujus est solum ejus est usque ad coelum c. â—ember of â—arliament 21 The person of a Member of Parliament is frée from arrests Dyer 60. a. 20. because the King and all his Realm have an interest in his person pro bono publico and therefore the private commodity of any particular man is drowned in it and shall not be regarded c. â—ease of an â—use with â—plements 22 A lease for years of an house with divers Implements rendring rent the Lessor enters and makes feoffment the Lessée re-enters Dyer 212. 37. 4 Eliz. and for rent arreare the Feoffée brings debt and adjudged maintainable albeit there was no privity and this per 5 Henry 7. where the Devisée brings Debt And there the rent was not extinct but onely suspended untill the Termor by his regresse revived the reversion Neither yet in this case shall there be an apportionment of the rent for the Implements because Magis dignum trahit ad se minus dignum Vide Dyer 361. 15. 20 Eliz. Dyer 216. 55. 4 Eliz. 23 The Statute of 1 Mar. dissolves the Court of Augmentations Receivers office by this the receivers office of the said Court was also dissolved Sir Robert Chesters case Howbeit the fée continued by a Proviso in the same Statute 63 Accessarium Sequitur Principale Co. Inst pars 1. 49. a. 3. 1 If an house or land belong to an Office An office or Corodie draweth land by the grant of the Office by déed the house or land passeth as belonging thereunto So likewise if an house or chamber belong to a Corodie by the grant of the Corodie the house or chamber passeth c. Co. ib. 56. a. 3. 2 If the Lessée at will by good husbandry and industry Land draweâ— the profits either by overflowing trenching or compassing of the meadows or digging up the bushes or the like make the grasse to grow in more abundance Yet if the Lessor put him out the Lessée shall not have the grasse because the grasse being the natural profit of the earth ought to goe with it So it is also albeit he sowes Hay-séed and thereby encreaseth the grasse c Co. ib. 122. a. 2. 3 If a Mannor be divided betwéen Coparceners An advowsâ—â— after partition remains appendant and
not titheable c. cannot be put in execution upon a recognisance statute c. because the office it selfe being an office of trust cannot 26. El. Molins Finch 23. 4 Tithe is not payable of Oaks usually topped and lopped though it be every seven or eight years for the branches are of the nature of the principal viz. the Oake it selfe for which no tithe is to be paid Co. Inst pars 1. 13. a. 1. 5 A man seised as heire on the part of his Mother The effect ensues the cause and the recompence the losse maketh a feoffment in fée to the use of him his heirs Here the use being a thing in trust and confidence shall ensue the nature of the land and shall descend to the heire on the part of the Mother So likewise if a man hath a Seigniory as heire of the part of his Mother and the tenancy doth escheat it shall go to the heir of the part of the Mother Also if the heir of the Mothers part of land whereunto a warranty is annexed be impleaded and vouch and thereupon judgement is given against him and also for him to recover in value and dieth before execution Here the heire of the Mothers part shall sue execution to have in value against the Vouchée for the effect ought to pursue the cause and the recompence shall ensue the losse Co. ib. 42. a. 4. 6 A man may have an estate for term of life determinable at will An estate for life deterâ—â—â—able at will As if the King doth grant an office to one at will and also grants a rent to him for the exercise of his office for the term of his life this is determinable upon the determination of the office Co. ib. 53. a. 3. 7 If Glasse-windows though glased by the Tenant himself be broken down or carried away it is waste for the glasse is part of the house Waste And so it is of wainscot benches doors windows fornaces and the like annexed or fixed to the house either by him in the reversion or the Tenant Co. ib. 122. a. 1 8 Nothing can be properly appendant or appertenant to any thing Advowson appendent 〈◊〉 Demesnes unlesse the principal or superiour thing be of perpetual subsistance and continuance For example an Advowson that is said to be appendant to a Mannor is in rei veritate appendant to the Demesnes of the Mannor which are of perpetual subsistance and continuance and not to resists or services which are subject to extinguishment and destruction Co. Inst pars 1. 124. a. 4. 9 If an Executor hath a Villein for years A perquiâ—â—â— shall accrâ—â— the Executâ— Termor 〈◊〉 and the Villein purchaseth lands in fée the Executor enters In this case the Executor shall have the whole fée-simple of the lands Howbeit because he had the Villein en auter droit as Executor to the use of the dead it shall be assets in his hands as the Villein is And therefore note a diversity betwéen the quantity of the estate and the quality of it for in this and the lik cases the Law respecteth not the quantity of the estate for not onely Tenant in taile and Tenant for life of a Villein shall have the perquisite of the Villein in fée but Tenant for years and Tenant at will also shall have it in fée but it principally respecteth the quality of the estate For in what right the Executor hath the Villein in the same right shall he have the perquisite So it is also in the case of a Bishop that hath a Villein in right of his Church Also if a man hath a Villein in right of his wife he shall have the perquisite also in her right But if the purchase be after issue had then the Baron shall have the perquisite to him and his heirs because by the issue he is entitled to be Tenant by the Courtesie in his own right c. Distresse for owelty of partition 10 Littleton saith § 219. Co. ib. 144. b. 4. that for a Rent-charge the Grantée hath his election either to bring his writ of Annuity or to distrain c. Howbeit of a rent granted for owelty of partition a writ of Annuity doth not lie because it is of the nature of the land descended and therefore for that the Grantée shall onely distrain c. Assise redisseisin 11 If a man recover land in an Assise of Novel disseisin Co. ib. 154. b. 3. whereunto there is a Common appendant or appertenant and after is re-disseised of the Common he shall have a re-disseisin of the Common for it was tacitely recovered in the Assise Coparcenary of rent for owelty c. 12 If there be thrée Coparceners and they make partition Co. ib. 169 b. 2. and one of them grant 20 s. per annum out of her part to her two sisters and their heirs for owelty of partition Here the Grantées are not Ioyntenants of this rent but the rent is in nature of Coparcenary and after the death of the one Grantée the moity of the rent shall descend to her issue in course of coparcenary and shall not survive to the other for that the rent doth come in recompence of the land and therefore shall ensue the nature thereof And if the grant had béen made to them two of a rent of 20 s. viz. to the one ten shillings and to the other ten shillings yet shall they have the rent in course of coparcenary and joyne in action for the same Coparcenary of rent 13 If two Coparceners by déed indented alien both their parts to another in fée Co. ib. 169. b. 4. rendring to them two and their heirs a rent out of the land they are not Ioyntenants of this rent but they shall have the rent in course of coparcenary because their right in the land out of which the rent is reserved was in coparcenary Joyntenancy for life and several Inheritances 14 If land be given to two men and the heirs of their two bodies Co. ib. 183. b. 4. they have joynt estates during their lives and afterwards several Inheritances and therefore if one of them have issue and die the other shall have all the land during his life by right of Survivor but after his death that issue shall enjoy his fathers part and if that issue die without issue the Donor shall enter into that moity and not the issue of him that survived For in as much as originally the inheritance was several the reversion is also several And therefore upon the several determination of the estate in tail the Donor may enter for as upon one joint and intire gift or lease there is one joint and intire reversion so upon several gifts or leases there be several reversions c. Rent reserved enures to both the Joyntenants 15 If two Ioyntenants make a lease for life Co. ib. 192 a. 3.
shall put the plea without day for all and therefore in former times the Plaintiff used to sue out several Venire facias in those cases for feare of a protection c. But in every action or plea real or mixt against two where a protection doth lie or in debt detinue or accompt a protection cast for the one doth put the plea without day for all for these actions are in their nature intire in respect of the joint privity and interest that atttend them c. The like 4 If a real action be brought by several Praecipes against two or more if the Demandant be non-suit against one Co. ib. 139. a. 4. he is non-suit against all For as to the Demandant it is but one intire writ under one Teste c. â—n Annuity â—â—de a Rent-â—harge 5 A man grants a Rent-charge to another and his heirs Co. ib. 144 b. 4. the Grantée dies and his wife recovers dower thereof against the heire In that case the heir cannot after such endowment bring a writ of Annuity for the other two parts for either the whole must be a Rent-charge or the whole must be an Annuity because otherwise it would not be according to the déed of the grant which is intire without fractions c. A rent-charge â—â—tinguished â—â—y purchase of â—art of the â—and 6 If a man which hath a Rent-service purchase parcel of the land Littl. § 222. Co. ib. 147. b. 4. out of which that rent is issuing that shall not extinguish the rent save onely for the parcel For Rent-service in that case is severable and may be apportioned according to the value of the land because it issueth out of the profits of the land and is due by common right But if a man hath a Rent-charge to him and his heirs issuing out of land and he purchaseth parcel of that land to him and his heirs the whole Rent-charge is extinct and the Annuity also because a Rent-charge is intire and issuing out of every part of the land against common right Co. ib. 149. a. 1. So likewise if one holds his land of his Lord by the service of rendring to his Lord yearly at such a Feast an Horse a Spur of gold a Clove-gilliflower or the like if in that case the Lord purchase parcel of the land such service is gone because such things are in their nature intire and cannot be severed or apportioned Vide Bruertons case Co. l. 6. 1. A rent-charge â—ecomes a â—ent-seck 7 It is said that if a man grant a rent out of thrée actes Co. ib. 147. b. 1. and Co. l. 7. 24. b. 2. Buts case and grant over that if the rent be behind the Grantée shall distrain for the rent in one of the acres this rent is intire and cannot be a Rent-seck out of two acres and a Rent-charge out of the third acre and therefore it is a Rent-seck for the whole and yet he shall distrain for it in the third acre So if a rent be granted to two and their heirs out of an acre of land and that it shall be lawful for one of them and his heirs to distrain for it in the same acre this is a Rent-seck For in as much as they stand jointly seised of one intire tent it cannot be as to one a Rent-seck and as of the other a Rent-charge And this distresse is as an appurtenant to the rent And therefore in that case the Survivor or their Grantée of the rent may distrain for it c. â—n intire rent-â—harge multiâ—lied 8 If the service of the Tenant be to render unto the Lord yearly at such a Feast an Horse a Red-rose or the like intire annual service Co. ib. 149. a. 1. and Co. l. 6. 1. Bruertons case which cannot be severed and the Tenant alien part of the land to a stranger In that case because the rent cannot be apportioned it shall be multiplyed and both the Feoffor and Feoffée shall pay each of them a Horse Red-rose c. And therefore if the Tenant which holds by such service enfeoffs the father of the Lord of part of the land and that land afterwards descends to the Lord Yet that shall not extinguish that annual intire service but the Feoffor shall still hold by a horse c. because the service was multiplied and each of them viz. the Feoffor and the Feoffée held by a horse c. Co. ib. 149. a. 2. 9 A. hath a Common of pasture certain as for ten beasts in forty acres of land and twenty of those acres descend unto him in that case Common 〈◊〉 certain shall remain 〈◊〉 descent of parcel the Common certain shall be apportioned It is otherwise if it be common of pasture sans number for that being intire and uncertain cannot be apportioned but shall still remain So it is also of common of Estovers Turbary Piscary c. Co. ib. Co. l. 6. 2. Bruertons case 10 If thrée Ioyntenants hold by an intire yearly rent as a horse Rent intire extinct by â—â—covery of part a grain of wheat or the like and the Tenants cesse by two years and the Lord recovers two parts of the land against two of them and the third saves his part by tendring of the rent c. and finding surety Albeit the Lord comes to the two parts by lawful recovery grounded upon the default and wrong of the two Ioyntenants yet shall the intire annual rent be extinct Vide infrà r. 114. c. 45. Co. ib. Co. l. 6. 1. Bruertons case 11 If the Tenant holdeth by fealty and a bushel of wheat Extinctly purchase of part or a pound of Pepper or of Comyn or such like and the Lord purchaseth part of the land there shall be an apportionment as well as if the rent were in money because such services will admit separation and division But if the rent were by one grain of wheat or one pepper-corn or one séed of comyn by the purchase of part the whole shall be extinct because these things are intire and will not admit division or severance Co. ib. 149. b. 1. 2. and Co. l. 6. 1. in Bruertons case 12 If there be Lord and Tenant by Fealty and Heriot service Heriot serviâ—â— and Heriot â—stome and the Lord purchase part of the land the Heriot-service is extinct because it is intire and also of such value that peradventure the land still remaining in the Tenants hand will not for the future be able to discharge it It is otherwise where the Tenant holds by Heriot-custome for there purchase of part shall not extinguish the service yet in that case also the Heriot is intire but Consuetudo vincit communem legem Littl. § 223. Co. ib. 149. a. 4. 13 If the Tenant holds of his Lord by Homage Fealty Escuage Fealty Homage remiâ— after purchase and Rent and the Lord purchase parcel of
the land In this case the Rent and Escuage shall be apportioned but the Homage and Fealty shall still remain intire for the residue of the land still remaining in the Tenants hand because he still holds the residue of the land of him and then he must hold it by some service or other and therefore those services being in their nature unseverable and intire they shall totally remain being indéed the fréest and least chargeable services that the Tenant can hold by c. Co. ib. 150. a. 1. 14 Albeit in some cases a Rent-charge The charge of a stature not apportionable which is in his nature intire may by act in Law be apportioned as when the Grantée of the rent comes to the land by descent or the like Yet in such cases the writ of Annuity faileth because that writ being grounded upon the grant by déed which is intire must be sued for the whole and cannot be sued for part Also a rent in respect of the realty may be apportioned but the personalty is indivisible and shall not be severed no not by act in Law As if execution be sued of body and lands upon a Statute Merchant or Staple and afterwards the inheritance of part of those lands descends to the Conusée In this case all the execution is avoided for the duty being intire and personal cannot be divided c. Annua nec debitum judex non separat ipsum Co. ib. 15â— b. 2. 15 A Rent-service is of its own nature apportionable Rent-service becomes rent-seck Howbeit if it be changed from Rent-service to a Rent-seck by severance thereof from the Seigniory it thereupon becomes intire and unsevâ—â—able according to the nature of a Rent-secke And therefore if there be Lord and Tenant by fealty and certain rent and the Lord by déed grant the rent in fée fée-taile or for life saving the fealty the rent which before was Rent-service is by that severance of it from the Seigniory made a Rent-seck and then if the Grantée purchase part of the land out of which that rent is issuing the whole rent is extinct 16 If a man be seised of two acres of land in two several Counties Co. ib. 153. b. 4. and maketh a lease of both of them reserving two shillings rent In this case albeit several liveries be made at several times yet is it but one intire rent in respect of the necessity of the case and he shall distrain in one County for the whole rent and make one avowry for the whole c. A County intire for livery 17 Every County is as it were an intire body of it selfe Finch 79. Littl. § 418. so that upon a feoffment of lands in many Towns in one County livery of seisin made in one parcel in any one of those Towns in the name of all sufficeth for all the lands in all the other Towns within the same County but upon a feoffment of lands in divers Counties there must be livery of seisin in every County For entry In like manner Littl. § 417. Co. ib. 252 b. 4. if a man have cause to enter into lands lying in divers Towns in the same County if he enter into one parcel thereof lying in one Town in the name of all the lands in the same County by such entry he hath as good possession of all those lands as if he had entred into every parcel but if they lie in several Counties there must be several entries Co. ib. 153. b. 4. So likewise if a man de disseised of a rent issuing out of lands lying in divers Towns within one and the same County he shall néed to bring but one Assise for the recovery of that rent c. But if the lands lie in several Counties he shall have several Assises in confinio Comitatus and in either County shall make his pliant of the whole rent Howbeit there shall be but one Patent to the Iustice And this Assise in confinio Comitatus is given by the Statute of 7 R. 2. Stat. 7. R. 2. 10. For no Assise lay in that case at the Common Law but the party might distrain for the whole rent in either County The like for â—ervices 18 If a man hold divers Mannors or lands in divers several Counties by one tenure and the Lord is deforced of his services Co. ib. 154. a. 2. he shall have several writs of customes and services viz. For every County one writ returnable at one day in the Court of Common Pleas and thereupon Count according to his case by the Common Law But if the Tenant in that case do cease the Lord shall not have several writs of Cessavit ut suprà For the writ of Cessavit is given by Statute of West 2. cap. 21. and the form and manner of that writ is therein prescribed for which cause it is holden in our books that in that case a Cessavit lay not at the Common Law c. â— Villein adâ—owson c. â—ndivisible 19 Of Inheritances some be intire and some several and of intire Co. ib. 164. b. 3. some be divisible and some indivisible c. If a Villein descend to two Coparceners this is an intire inheritance and albeit the Villein himself cannot be divided yet the profit of him may for one Coparcener may have him one day or wéek and the other another day or wéek c. They may likewise have an Advowson in coparcenary and may present by turns because that is also an intire Inheritance which cannot be divided â—stovers â—â—ots and â—ings uncerâ—in not diviâ—ble 20 If a man have reasonable Estovers as House-boot Co. ibid. b. 4. Hay-boot c. appendant to his Frée-hold they are so intire as they shall not be divided betwéen Coparceners So if a Corodie incertain be granted to a man and his heirs and he hath issue divers daughters this Corodie shall not be divided betwéen them It is otherwise of a Corodie certain for thereof partition may be made Likewise Homage Fealty Piscary uncertain Common sans number and the like cannot be divided betwéen Coparceners and the two last not onely because they are intire but also because it would be a charge to the Tenant of the Soile if such hereditaments should be devisible the interest in them being unlimited c. Co. ib. 190. a. 3. 21 If a Corodie be granted to two men and their heirs In this case Grant of a Corodie to two because the Corodie is incertain and cannot be severed it shall amount to a several grant viz. to each of them one Corodie for the persons be several and the Corodie is personal and the grant shall be taken most strongly against the Grantor Littl. § 314. Co. ibid. 197. 22 If two Tenants in Common of lands in fée make a gift in taile or a lease for life to another rendring to them yearly a certain rent Tenants in common
selleth c. unto A. B. and C. the said Mannor with the Appurtenances and the reversions and remainders thereof c. together with all rents reserved upon any demise c. to have and to hold to them and to their Assignes immediately after the decease of the owner of the Mannor for the terme of seventéen yeares In this case the grant ought to take effect intirely as a demise at the Common Law or intirely by bargain and sale by raising of an use by force of the Statute of 27 H. 8. and not for part by the Common Law and for another part by raising of an use for thereby the Mannor may be dismembred which is against the expresse demise and bargain because both parties agréed that a Mannor should be intirely demised and bargained and also that a Man nor should be accepted by the Lessée without any fraction or division thereof â—â—â—tenancy 〈◊〉 intire Eâ—â—â—te â—â—â—omment by â—e good for â—ll 43 If there bée two Iointenants for life Co. l. 2. 66. b. 4. 67. a. Tookers Case and the Reversioner grants over his estate whereupon one of the Iointenants onely doth attorn Yet this is a good attornment of both to vest the whole reversion in the Grantée because the estate of the joint Lessées being intire for every Iointenant is seised per my per tout the reversion which is dependant and expectant upon such an estate is intire also and therefore the attornment by one of them is attornment for both to convey the whole reversion c. So if the Lessor disseise his two Lessees for life and enfeoff another and one of the Lessées re-enter this act of one of them is attornmenf in Law for both If one Iointenant give seisin of Rent that shall binde his companion as it is agréed in 39 H. 6. 2. If a lease be made to two and after the reversion is granted to one of them this is holden good attornment in Law for both Baldwin 28 H. 8. Dyer 12. b. And all this in the respect of the intirenesse of their estate c. 〈◊〉 condition of â—â—bond to perâ—â—rm to Coveâ—ants is intire 44 A. having an office and power to make Deputies Co. l. 3. 83. b. 4. Colstrits Case by Indenture betwixt him and B. and for a hundred pound paid c. makes deputation thereof to B. and A. covenants with B. that if A. die before B. that then the Executors of A. shall repay unto B. fifty pounds with divers other Covenants in the said Indenture concerning the said office in the enjoyment thereof And A. was bound to B. in two hundred pounds for the performance of Covenants and in debt the breach was alleaged for the non-payment of the said fifty pounds in as much as B. survived A. Here albeit the said Covenant to repay fifty pounds was lawful yet in as much as the rest of the Covenants were against the Statute of 5 E. 6. cap. 16. The bond which was a thing intire being void for those un-lawfull Covenants it was utterly void for all And if the addition of a Law-full Covenant should make the bond of force as to it the Satute would then serve to little or no purpose c. Co. l. 4. 9. a. 3. Bedils Case Ibidem a. 4. 45 Seisin of any part of a service as of part of a Rent A reservatioâ— of a Rent intire of one dayes work when it is done or the like is actual seisin of all to have an Assise because the service in that case is intire c. So if a man make a Lease for life or a gift in taile rendring the first yeares a quarter of wheate and after the yearly Rent of C. S. the seisin of the wheate is the seisin of the Rent whereupon he may have an Assise for all is but one intire reservation c. Co. l. 4. 33. a. 2. in Mittons Case 46 When the King makes a Sheriffe durante beneplacito The Shrâ—ffeâ— Office intire albeit he may determine his Office at his pleasure yet he cannot determine it in part as for a Towne or hundred or any other part nor abridge the Sheriffe of any thing incident or appurtenant to his Office for the Office is intire and so ought he to continue in his Intiretie without any fraction or diminution whatsoever unlesse it be by Act of Parliament or that the King makes any Town c. A County of it self and Constitutes there a Shriffe and all things incident to a Sheriffe within the said Towne but he cannot determine the Office of the Sheriffe or any part thereof without but by constituting a new Sheriffe viz. for the execution and administration of Iustice because the Office is in its nature intire c. Co. lib. 4. 52. Rawlins Case 47 A possessed of an house whereunto a stable was adjoyning A proviso intire for the terme of 30 yeares by deed indented in consideration of 25 l. fine to be afterwards paid demised the same house and stable to B. for 21 yeares rendring unto A. 24 l. per annum quarterly and also 5 l. quarterly at the same feasts untill the saide 25 l. fine should be paid upon condition that if the said summe of 25 l. or the said Rent should be arreare at any Feast c. that then it should be Lawfull for A. to re-enter And afterwards and before any day of payement B. re-demiseth the said stable unto A. for 10 yeares who entred and after the Rent of 24 l. per annum is arreare and Lawfully demanded and also the 5 l. parcell of the summe in grosse was not paid In this case the whole Condition as also the re-entry of A. is suspended For albeit the condition stands upon two parts in the disjunctive viz. Either for the payment of Rent or of a summe in grosse which was collaterall yet in as much as B. re-demised part of the demise to A. viz. the stable whereinto A. entred and the Rent was hereby suspended and hereupon the intire condition both as to the Collaterall summe as also to the said Rent was likewise suspended because although the condition comprehend two severall things in the disjunctive of two severall natures viz. The one a Rent issuing out of the land which is incident to the reversion and may be suspended by the inter-medling with the land the other matter collateral to the land which cannot be suspended by the said re-demise yet here there are not several conditions but one intire condition which referres to two several branches and therefore being suspended in part it is suspended in all And that the condition was intire it appeares by the Conclusion thereof viz. that for the non-payment of the one or of the other it should be Lawfull for the Lessor to re-enter into all the land so that it is but one intire Condition and one intire entry which is not by the Acts of the Parties to be
apportioned or divided c. The like case was adjudged p. 27 El. Rot. 185. inter Brightman and Somerford Co. lib. 4. 94. b. 2. in Slades Case 48 A and B. Bargaine together Annual payment of wheaâ— that A. for a certaine consideration shall deliver unto B. yearly 20 quarters of Barley during the life of B. in this case if A. faile of any one yeares payment B. cannot have an action of Debt for it untill all the yeares be incurred because an Action of Debt is intire and cannot be sued above once How beit he may in that case have an Action upon the case for it c. as it was adjudged in the case between Redman and Pecke 2. 3. P. M. Dier 113. 〈◊〉 condition intire 49 A Condition annexed to an Estate is so intire Co. l. 4. 119. b. 4. in Damports Case that it will not admit any seperance from the Estate unto which it is annexed without the distruction of it and being annull as to some persons or for part it is annulled for all As if A. demise Land to B. and his Assignes with condition that neither B. nor his Assignes shall alien without the Licence of A. If A. give B. Licence to alien the Land to whom he pleaseth and he Assignes the Lease to C neither C. nor any after-assignée is bound by that condition but the Condition is thereby absolutely determined so that no alienation which may be made afterwards shall be a breach of the Condition or give cause of entry to the Lessor for the Lessor cannot dispence with an alienation for one time and yet the same Estate remaine still subject to the condition afterwards And albeit the proviso be that neither the Lessor nor his Assignes shall alien yet when the Lessor licenceth the Lessée to alien he shall never defeate by force of that proviso the term which is absolutely aliened by his Licence for the Assignée and so by consequent every subsequent Assignée afterwards shall retaine it in the same plight that it was in when the Lessee granted it then it was absolute and severed from any condition c. And as the dispensation to one is a dispensation to all other subsequent Assignées so it is also as to persons for in case of Iointure where the Estate is in more then one a Licence of Aliening granted to one shall enure to all as it was adjudged in Crompton and Leeds case T. 28. E. Rot. 256. in the Co. Pl. Likewise if the Lessor Licence the Lessée to alien part of the Land he may alien the rest or any part thereof without Licence because a Condition cannot be divided or apportioned by the Act of the Parties as it was holden by Popham Cl. Instit against the opinion in Dier 16 E. 334. The like 50 A Lease was made by Indenture for 21 yeares of 3 Mannors A. B. and C. rendring per annum for A. 6. l. for B. 5 l. and for C. 10 l. to be paid at a place out of the Land Co. lib. 4. 120. a 4. in Dumports Case with a condition of Re-entry into all the three Mannors for Default of payment of the said Rents or any of them and after the Lessor by deed indented and inrolled bargaines and sels the Reversion of an house and 40 acres of Land parcell of the said Mannor of A. to one and his heirs and afterwards by another deed indented and inrolled bargaines and sels all the residue to another and his heires and whether the second barginee might enter for the Condition broken or not was the Question And it was adjudged P. 14 E. Rot. 1015 that he could not enter for the condition broken because the Condition being intire cannot be apportioned by the Act of the Parties but by the severance of part of the reversion was utterly destroyed c. â—n Exchange â—â—tire being a â—ondition in â—aw 51 If A. give in exchange 3 acres to B. for other three acres Co. l. 4. 121. 4. b. 2. in Bustares Case and after one acre is evicted from B in this case all the exchange is defeated and B. may enter into all his Land for albeit the exchange had been good if A. had given but two acres or one Acre or lesse yet in as much as all the three acres were given in exchange for the other and the Condition which was implyed in the exchange was intire upon the eviction of that one acre the condition in Law is broken and thereupon entry given into all for it is the propertie of a Condition to defeat all and not a part onely except the Condition be restrained onely to a part as it is not in this case And therefore there is no diversitie between an intire thing as a Mannor and a thing that is severable in point of exchange c. There is the same Law also of a Partition as it is agreed in 13 E. 4. 3. f. 42. Ass pl. 22. in the Earle of Pembrooks Case Co. l. 4. 121. a 122. b. Bustards Case 52 Baron seised ef the Mannor of Dale to the use of himselfe and his Feme and of the heirs of the body of the Baron The like levies a fine to A. who enfeoffes B. who enfeoffes C. C. exchanges the said Mannor of Dale with B. for the Mannor of Sale the Baron dies the Feme enters into the Mannor of Dale In this case B. may re-enter into the Mannor of Sale for as when the whole Estate in part is evicted all the exchange is defeâ—ted so here when the Estate of the Frank-tenant for the life of the Feme which is but parcell of the Estate is evicted in all the Land or in part the whole exchange is thereby defeated by reason of the condition in Law annexed unto it for albeit a reversion expectant upon an Estate for life may be given in exchange for Land in possession yet when C. was seised of the Mannor of Dale in his Demesne as of Fée and gives that in possession unto B. in exchange as afore-said after that the Feme enters and evicts the Estate for life c. B. may re-enter into the whole Mannor of Sale which was so given in exchange because the Condition in Law annexed to the exchange being broken for part of the Estate is defeated for all c. So likewise if he in the reversion in Fée disseiseth his Lessée for life and then gives that Land in exchange to another for other Land and after the Lessée for life enters In that case also the other may re-enter into his Land again and hereby defeat the whole exchange because the implied Condition is in his nature un-severable and intire 53 A Lets to B. the Manor of Dale for 30 yeares A surrender intire except all wood and under-wood growing and being upon the Mannor Co. lib. 5. 11. Jves Case after A. le ts to B. all the wood underwood c. for
her consent and the working of it shewes that the Plaintife so conceived it 79 Nemo praesumitur alienam posteritatem suae praetulisse Collaterall Warrantie 1 If the Tenant in taile discontinue the taile and hath issue and die Co Inst p. 1. 373. a. 3. Litt. § 709. and the Vncle of the issue release to the discontinue with Warrantie c. and die without issue this is Collateral Warrantie and shall barre the Issue in taile albeit the Vncle had no right at all to the land intailed because the Law presumeth that the Vncle would not un-naturally dis-inherit his Lawfull Heire being of his owne bloud of that right which the same Vncle never had but came to the Heire by another mean unlesse he would leave him greater advancement some other way For nemo praesumitur c. And in this Case the Law will admit no proofe against that which the Law presumeth And so it is likewise of all other Collateral Warranties no man is presumed to do any thing against nature 〈◊〉 conveyance â—ot within the â—â—at of Wils 2 If a man make a voluntary Conveyance of his Land to the use of any of his collateral bloud who is not his heire apparent Co. l. 6. 77. a. 3. in Sr. Geo-cusrons Case that is not within the Act of 32 H. 8. of Wills For it cannot be intended that he will dis-inherit his heire on purpose to defeat the King of his Ward seeing every one hopes to live to see his heire attaine his full age much lesse to defraud him of his Primer seisin Vide Dier 307. 71. 80 The Law esteemeth and judgeth of all things according to their nature and quality Co. Inst p. 1. 91. b. 4. 1 Where the tenant holds of his Lord by fealty and a pound of pepper or a pound of Cummin or a certain number of Capons Certain services not doâ—bled for relieâ— or hens or a pair of Gloves or certain bushels of wheat or the like the Lord shall have so much for relief as he receives in rent viz. a pound of pepper a pound of Cummin or the like But if the tenant holdeth of the Lord by doing certain work-dayes in Harvest or to attend at Christmas or the like he shall not double the same for of corporal service or labour or work of the tenant no relief is due It being onely payable where the tenant holdeth by such yearly rents or profits which may be paid or delivered c. Co. ib. 92 a. 2. Litt. §. 128 129. 2 When the tenant holdeth by such yearly rents or profits Not to be distrained for presently as may be presently delivered the relief is due to be paid to the Lord immediately upon the tenants death and upon non-payment thereof the Lord may distrain for it presently Howbeit if the tenant holds of his Lord by a Rose or by a bushel of Roses to be paid at the Feast of St. John Baptist if such a tenant die in winter the Lord shall forbear to distrain for the Relief untill the season of Roses for Lex spectat naturae ordinem Lex non cogit ad impossibilia And therefore it is observed by my Lord Cook that Littleton puts a diversity betwéen Corn and Roses for Corn will last and therefore the tenant must deliver the Corn presently before the time of growth and so of saffron c. but Roses and other flowers that are fructus fugaces cannot be kept and therefore are not to be delivered until the time of growing neither is the tenant driven by law artificially to preserve Roses for the Law in these cases respected nature and the course of the year c. Co. ib. 121. b. 4 Co. l. 4. 36. b. 4. in Tyrringhams case Pl. Co. 168. Hill Granges Case 3 Prescription although never so ancient cannot make any thing appendant or appurtenant Things properly appeâ—dant and appurtenant unlesse the thing appendant or appurtenant agrée in quality and nature with the thing whereunto it is so appendant or appurtenant as a thing corporeal cannot properly be appendant to a thing corporeal nor a thing in-corporeal to a thing incorporeal but things incorporeal which lie in grant as Advowsons Villains Commons and the like may be appendant to things corporeal as to a Mannor house or lands so also may things corporeal be appendant to things incorporeal as Lauds to an Office but yet these also ought to agrée in nature and quality for Common of Turbary or Estovers cannot be appendant or appurtenant to Land but to an house to be spent therein nor a Léet which is temporal to a Church or Chappel which is Ecclesiastical Neither can a Noble man Esquire c. claim a seat in a Church by prescription as appendant or belonging to land but to an house for that such a seat belongeth to the house in respect of the Inhabitancy thereof and therefore if the house be part of a Mannor yet in that case he may claim the seat as appendant to the house for the reason aforesaid Co. ibid. 129. a. 4. 4 A man cannot be naturalized either with limitation for life Naturalization or intail or upon condition for that is against the absolutenesse purity and indelebility of natural Allegiance Co. ib. 130. a. 4 5 Corporations aggregate of many are not capable of the Protections of Profecturae or moraturae Corporatiâ—â— because the Corporation it self is invisible and resteth onely in consideration of law Ca. ib. 144. b. 4 6 Littleton saith § 219 that the Grantée of a rent charge hath election to bring a writ of annuity Rent-chaâ—â—â— and so changing the person onely to make it personal or else to distrain upon the land and so to make it real but this is to be understood with some limitation for of a rent granted for owelty of partition a writ of Annuity doth not lie because it is of the nature of the land descended Also of such a rent as may be granted without déed a writ of Annuity doth not lie although it be granted by déed c. 7 If there be two Ioynt-tenants Co. ib. 192. b. 3. Litt. §. 302. and the one lets his moity to another for life â—oynt-tenants In this Case the Ioynture is severed so that if the Ioynt-tenant which still retains the frank-rent of his moity have issue and die the issue shall have that moity by descent because a frank-tenant cannot by nature of Ioynture be annexed to a barâ— reversion c. Divine Serâ—ice frank-almoigne 8 Where the Common or Statute Law giveth remedy in foro seculari Co. Inst p. 1. 96. b. Litt. §. 137. whether the matter be temporal or spiritual the Connusance of that Cause belongs to the Kings temporal Courts onely unlesse the Iurisdiction of the Ecclesiastical Court be saved c. as if an Abbot or Prior hold of his Lord by Divine Service certain and
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
his Jure Regio as it was said in 21 E. 3. 47. in the Earl of Kents Case And this is an high and great Prerogative which the King hath that when he makes any Grant upon such false suggestions those Grants are void in Law So also when upon false insinuations and pretexts he makes any grant as of a Monopoly Monopolies c. which in truth is in the prejudice of the King and Common-wealth the King Jure Regio shall avoid such Grants and such Letters Patents shall be by judgment of Law cancelled And therefore in Legats Case in the 10 Rep. it is wittily said of Perpetuities Monopolies and Patents of concealment Concealmenâ— that they were born under an unfortunate Constellation because as soon as they were drawn in question Perpetuities Iudgment was alwayes given against them and never for them they having alwayes two inseparable qualilies incident unto them viz. to be troublesome and fruitlesse â—ent 60 If rent be payable at the Feast of Easter Co. l. 10. 127. b. 4. in Cluns Case and the tenant pay the rent in the morning and the Lessor die before noon this payment is voluntary and good satisfaction against the Heir but not against the King 44 E. 3. 3. â—he King not â—â—rred by Acts â—f Parliament 61 When the King hath any Prerogative Estate Right Title Co. l. 10. 74. b. 4. in Magd. Coll. Case or Interest by the general words of an Act of Parliament he shall not be barred of them as in case of reasonable aid the King hath an Estate and Interest in it and therefore the general words of the Statute of West 1. cap. 35. shall not extend unto it Also the King hath a Prerogative quod nullum tempus occurrit Regi and therefore the general Acts of Limitations or of Plenarty shall not extend unto him F. N. B. 7. b. 32. c. Likewise the King by his Prerogative may sue in what Court be will and of that Prerogative he is not barred by the general purview of the Statute of Magna Charta cap. 11. Et sic de similibus â—arks â—icence 62 None can make a Park Chase or Warren Co. l. 11. 87. b. 1. in the Case of Monopolies without the Kings licence because that were quodam modo to appropriate such things as are ferae naturae in nullius bonis to himself and to restrain them of their natural liberty which he cannot do without the Kings licence c. â—ossessors of â—â—e Kings â—oods and â—â—eir execuâ—â— c. acâ—â—ptable 63 The Earl of Devonshire being Master of the Ordnance Co. l. 11. 90. a. in the Earl of Devonshire's Case obtained a Privie Seal to convert to his own use c. All the unserviceable Ordnance exprest in a Book in regard the King was informed that the Masters did use to claim and enjoy them as fées and avails belonging to their Office whereupon he sold them made his executors and died And in this Case it was resolved that albeit the Earl claimed them to his own use yet in regard the grant was made upon a false suggestion he was in his life-time accountable to the King for them because in the Kings Case the Law makes a privity for if any take the Kings goods or enter into his Lands by wrong the King may charge him in account 33 H. 6. 2. 4 H. 7. 6. 7 H. 7. 10. 15 H. 7. 17. 1 Eliz. 149. Breretons case and 40 Ass Pl. 75 If goods be devised to the King in whose hands soever they come the possessor shall be charged in accompt to the King and the King shall not be put to his Action of Trespasse for then by the death of the party the King should be without remedy but the King by his Prerogative may have an Action of accompt against the executors of the party as appears in Littleton fol. 28. And the King is not constrained to charge the Defendant as Bailiff or Receiver as a common person ought but the King may alledge in his Information generally that he ad compotum Domino Regi reddend tempore mortis suae tenebatur in such sums of money due to the King c. as appears by many presidents in the Exchequer and in the Kings Bench And therefore if the Earl was in his life-time bound to render an accompt unto the King his executors shall do it after his decease c. If one by Letters Patents or by vertue of his Office hath power to assesse Fines upon grants or admittances made to Copiholders within such a Mannor of the Kings and he assesseth little fines for the King and under-hand takes great summes or other rewards of the Copiholders to his own use in deceit and prejudice of the King In this case he shall be charged to the King in accompt for all for in truth all was due to the King and if he die his executors in the Kings Case shall be charged for it is holden in 39 Ass Pl. 18. that the Officers and Ministers of the King may advantage him but can never do any thing to his dis-advantage Co. l. 11. 90. b. 4. in the Earl of Devonshires Case 64 M. 37. 38 Eliz. None can â—â—pose of the Kings treaâ—â—â—â— without hâ—â— licence An Information was preferred in the Exchequer against Carey and Dodington executors of Sir Walter Mildmay Knight Chancellor of that Court to render an accompt of 1525 l. of the Quéens treasure by him converted to his own use c. the Defendants plead that Sir VValter Mildmay non recepit c. ad computandum nec die mortis tenebatur Reginae in Compoto c. And the special Verdict was that the Treasurer and Vnder-treasurer of the Exchequer made a warrant to four Tellors or two to pay to Sir Walter Mildmay 100 l. per annum for his diet and 40 l. per annum for his Attendance in the Vacation by reason that by the annexing of the Court of first-fruits and Augmentation the Chancellor was constrained to attend more than other Chancellors had formerly done And in 2 Eliz. the Quéen directs a Privy Seal to the Treasurer Chamberlaines and Vnder-treasurer of the Exehequer commanding them or some of them to pay to such as should be imployed by her c. for their labours and expences at their discretions according to their merits in as large manner as any Treasurer Chamberlains or Vnder-treasurer had done before And in this Case it was resolved that no Officer nor all of them together can ex officio dispose of the Kings treasure without the Kings warrant although it be for the honour and profit of the King because the Kings treasure is the ligament of peace and the sinews of war and of so high a nature that the imbezeling of treasure trove although not found in the Kings Coffers was treason And treasure and other valuable chattels are so necessary and incident to 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
fuit infra aetatem but for the moity onely Feofment 14 When an Infant makes a feoffment being within age Co. ibid. 337. b. 2 3. Litt. §. 635. he may enter either within age or at any time after full age and likewise after his death his heire may enter meliorem enim conditionem facere potest minor deteriorem nequaquam Also a special heire shall take advantage of the Infancy of the Ancestor Borough-English as if tenant in taile of an Acre of the Custome of Borough-English make a feoffment in fée within age and dieth the youngest Son shall avoid it for he is privy in bloud and claimeth by descent from the Infant Special taile So likewise if Tenant in taile to him and the heires Female of his body make a feoffment in Fée and dieth within age having issuing a Son and a Daughter the Daughter shall void the feoffment And so note by the way that a cause to enter by reason of the Infancy is not like to conditions Warranties and Estoples which even descend to the heire at the Common Law 15 If Tenant in taile enfeoffe his heire apparent Co. ibid. 350. b. 1. Litt. §. 664. the heire being of full age at the time of the Feofment Feofment reâ—â—â— and after the Tenant in taile dies this is no remitter to the heires Because it was his folly that he being at full age would take such a feofment But such folly cannot be adjudged in the heire if he had béen within age at the time of the feofment made in respect of his tender yeares and want of experience 16 If tenant in taile enfeoffe a Feme in Fée and die and his issue within age takes the same Feme to Wife â—aile â—eme Remitter Litt. §. 665. this is a remitter to the Infant within age and the Feme then hath nothing Because no folly can be judged in him being within age at the time of the Espousals It is otherwise if such heire were of full age at the time of the Espousals For then the heire hath nothing but right of his wife c. There is the same Law Co. ibid. 351. b. 4. where the Tenant in taile Enfeoffes his issue being within age and the wife of the issue in fée and dieth for in this Case also the issue is remitted c. 17 If a Feme seised of lands in fée take Baron Co. ibid. 351. b. 4. Litt. §. 666. who aliens the same lands in fée and the Alienée lets the Lands to the Baron and Feme for life saving the Reversion to the Lessor and his Heirs In this Case the Feme is remitted and is seised of the Lands in her Demesne as of fée as she was before because the reprisal of the Estate shall be adjudged in Law the act of the Baron and not of the Feme so that no folly can be adjudged in the Feme who was covert at the time of making the Lease And in this Case the Lessor hath nothing in the Reversion because the Feme is seised in fée c. And here Litt. §. 648 669. if the Lessor sue an Action of wast for wast committed by the Baron albeit the Baron cannot against his own feofment and reprisal bar the Lessor by shewing the remitter to his Feme c. yet in such an Action if the Baron make default to the great distresse and the Feme pray to be received and is received accordingly she may well shew the whole matter and how she is in her remitter and so shall she bar the Lessor of his Action c. for regularly in every Case where the Feme is received for default of the Baron she shall in pleading have the same advantage that a Feme sole hath c. There is the same Law if the Alienée had made the Lease by Déed indented or by Fine because in taking a thing by Fine the Feme is never examined c. Co. ib. 353. a. 1 18 If a Feme covert be received in an Assise and plead a Record Assise Disseisor and fail she shall not therefore be adjudged a Disseisor as she should be if she were sole c. So if a Feme covert onely levy a Fine executory and a Scire facias is brought against her and her husband if she be received upon the default of the husband she shall bar the Conusée which if she had béen sole she could not do c. Co. ib. 353. a. 3 19 In the acknowledging of a Fine by a Feme covert Fine Examination least she should be deceived or any way abused her examination ought to be secret and to this effect viz. whether she be content to levy a Fine of such lands naming them particularly and distinctly and the state that passeth by the Fine of her own voluntary free will and not by threats menaces or any other compulsory means Litt. §. 677. Co. ib. 356. b. 3 20 If the Baron dis-continue the land of the Feme Remitter and the Discontinuée lets the same land to the Feme for term of her life and gives her seisin thereof accordingly In this Case whether the Baron were out of the Realm when the Lease was made or within the Realm or whether the Baron agrée to the Lease or no neverthelesse the Feme in this Case is remitted It had béen otherwise if she had béen sole at the time of the Lease made for then she could not have béen remitted c. Litt. § 696. Co. ib. 364. a. 4 21 If two Ioint-tenants of lands in fée the one of full age Remitter the other under age are disseised and the disseisor dies seised and his Issue enters one of the Ioint-tenants being still within age and after he attains his full age the heir of the Disseisor lets the Lands to both the Ioint-tenants for their lives this is a remitter as to the moity to him that was within age because his entry was congeable But the other hath but an Estate for life in the other moity because his entry was taken away by the dying seised c. for the Infant being favoured in Law had right of Entry whereas the other had onely right of action c. 22 At the Common Law before the Statute of 11 H. 7. cap. 20. Warrantie if tenant in Dower had aliened the Land in fée with warranty Litt. §. 725 7â—6 Co. ib. 380. a. 3 and thâ—t warranty had descended to the Heir who was to inherit the land in Dower the Heir had béen thereby barred to demand the same land Howbeit if the Heir were within age at the time of the warranty descended upon him In that Case the Heir might enter and avoid the Estate either within age or at any time after his full age but if he were within age at the time of the alienation with warranty and became of full age before the descent of the warranty
Holbornes Case And this is the cause that if Baron and Feme acknowledge a Statute or Recognizance this is void as to the Feme albeit she survive her Baron as it was holden P. 17 Eliz. in the Countesse of Lennox Case So if Baron and Feme acknowledge a Déed to be enrolled and it is enrolled accordingly this also is void as to the Feme Vide 29 H. 8. Faits enroll Br. 14. and 7 E. 4 5. 16 H. 7. 5. and 21 E. 3. 43. And the reason is because no such writ is depending against the Baron and Feme upon which the Feme may by the Law be examined F.N.B. 104. k. But if an Infant acknowledge a Statute or Recognisance it is not void but voidable by Audita quaerela Statute Recognizance during his non-age And the cause of the diversity is for that the Iudge in case of an Infant may by inspection know his age but not know whether a woman be covert or no. And the use is alwayes upon a common Recovery against Baron and Feme to examine the Feme and to grant a Dedimus potestatem to take upon examination her Conusance as in Case of a Fine for in that Case also there is a writ upon which she may be examined Vide 44 E. 3. 28. Howbeit a common Recovery against an Infant although he appear by Guardian Common Recovery shall not binde him for an Infant hath not such a disposing power upon the Land as Baron and Feme have but is utterly disableo by Law to convey or transferre his Inheritance or Frank-tenement to others during his minority And at this day a common Recovery appeares to be a Common Conveyance or Assurance of Lands c. Co. l. 11. 77. a. 4. in Magd. Coll. Case 36 If an Infant had conveyed lands to Quéen Eliz. by déed inrolled that grant had not béen established by the Act of 18 El. cap. 2. 18 El. cap. a. Grant al Roy. Fine which was made for the confirmation of grants made to the Quéen from primo to that time c. because the person of the Infant during his minority was absolutely disabled to make any conveyance at all by the Common Law So likewise if an infant had levied a fine to Quéen Eliz. and afterwards the said Act was made yet the infant notwithstanding the Statute might have reversed such fine by writ of Error And so it was resolved M. 32 33 El. in B. R. per Wray Chief Iust totam Curiam in Vaughans Case Co. ib. 78. a. 3. There is the same Law if Baron and Feme had made a grant of the Land of the Feme to the Quéen Baron Feme for neither had his béen made good by the said Act to have bound the feme after the Coverture or her heires Because the person of the feme covert is dis-abled to convey her Land unlesse it be by fine upon due examination and so also was it holden in the aforesaid Case of Vaughan 37 If an infant hath a Mannor by descent Advowson Usurpation unto which an Advowson is appendant F. N. B. 34. x. and suffers an usurpation to the Advowson when the Church happens to be void and after grants the Mannor in fée at his full age and after that the Advowson happens to be void again In this Case the infant shall present and not the feoffée for the Advowson was severed by the usurpation and yet the infant may present 38 If a Lease be made to Baron and Feme for life or yeares Waste the Feme shall not be punished for wast done by the Baron F.N.B. 59. i. Finch 26. after the Barons death 39 A man may have a Writ of accompt against a Feme Accompt as receptrix denariorum F.N.B. 110. d. or against a Chaplain But a man shall not have a Writ of accompt against an infant 40 Women shall not be compelled nor distrained to come to the Sherifs turne F.N.B. 161. a. b or to Leets and if they be distrained Femes nemy jure in Lees Dit Wayve they may sue the writ de exoneratione sectae c. to excuse themselves of that service and thereupon they may also have alias plura and attachment c. And for as much as Femes shall not be sworne in Léets to the King as men of the age of twelve yeares or upwards shall be when a Woman is out-lawed she is said to be waived and not out-lawed for she was never put nor sworne to the Law but a man is said to be out-lawed because he is or ought to be sworne to the Law and then for contumacy he is put out of the Law and so is said to be ut lagatus quasi extra legem positus And by the Rule of the Register two Women may joyne in such a writ c. 41 If an infant of tender age viz. under the yeares of discretion kill a man Felonie that is not felony in him Pl Co. 19. a. 2. in Fogassues Case because he wanted discretion and understanding and therefore the Law imputes it to his ignorance which he hath at that age by nature and so no default in him and therefore it is called In voluntary ignorance For he cannot be wise and dâ—scréet though he would but is ignorant by compulsion and therefore shall be excused And such an Act is properly said to be ex ignorantia where involuntary ignorance is adjudged to be the cause thereof Felonie So if a man de non sanae memoriae kill another albeit he hath broken the words of the Law yet he hath not broken the Law because he hath not any memory or understanding but mere ignorance which falls upon him by the hand of God and therefore the Law imputes it to involuntary ignorance and not to him so that he shall be excused for the doing of it c. Stat. 11 H. 8. cap 20. 42 The makers of the Statute of 11 H. 8. 20. Pl. Co. 50. b. 3. in Winbish and Talbois Case per Hales in consideration of the frailty and inconstancy of Women ordained that Law to restraine them from the alienation of the Lands of their deceased Husbands and because they did conceive that they might by flattering words be easily deluded and inticed to covin therefore they ordained in that Act a penalty against them as a bridle of their inconstancy to prevent them from being in that manner seduced c. Dower best possession 43 A Woman shall be endowed of the best possession of her Husband Finch 26. as if the Husband holds of Jo. S. per iij. d. who held over of an other by xx d. and Jo. S. release to the Husband so as now the Husband holds by xx d. the wife being endowed of this land shall hold onely by the third part of iij. d. and not of xx d. Dumbe 44 If a dumbe person bring an Action he shall
157. 12. 9. Eliz. the Plaintiff counts that he was bound with the Defendant as his surety and at his request to a stranger by Bill Obligatory and that at the day assigned the Creditor was not paid by the Defendant whereupon at the Creditors Suit the Plaintiff was arrested and imprisoned c. And the Defendant cognovit Actionem whereupon Iudgement was given quòd acquieteâ— the Plaintiff versus the Creditor of the sum and damages assessed by the Court c. Vide F. N. B. 137. c. â—avishment 11 The Statute of West 2. 35. Hob. 93. 7 Jac. Rot. 759 More Hussey against ravishment of Wards hath two aspects in it one civil another criminal for it provides that the Executor shall answer for the value sed non quoad poenam prisonae for Nemo pro alieno facto est puniendus It is so likewise for husband and wife For albeit the wife be onely guilty yet the husband shall answer the dammages but shall not be subject to abjuration or immediate Imprisonment which is to be perpetual Howbeit to the mediate Imprisonment viz. upon a writ of Execution for the dammages and the value of the Marriage he shall be liable as in other trespasses where the wife onely is guilty of the fact 88 The Law favoureth things done in anothers Right Co. Inst p. 1. 52. a. 2. 1 Few or no persons are disabled in Law to be private Attorneys to deliver seisin for Monks Infants Femes covert Attorney to deliver seisin Persons disabled persons attainted out-lawed excommunicated Villains Aliens c. may be Attorneys So a Feme may be an Attorney to deliver seisin to her husband and the husband to the wife and he in the remainder to the Lessée for life And the reason hereof is for that the Attorney doth nothing in his owne right but in the right of another Co. ib. 52. a. 3. 2 If Lessée for life make a déed of Feoffment Attorney to deliver seisin and a Letter of Attorney to the Lessor to make Livery and the Lessor maketh Livery accordingly notwithstanding such making of Livery he shall enter for the forfeiture because he doth it in anothers right and the Lessée for life had Fréehold whereof to make Livery It is otherwise of Lessée for years because in that Case the Fréehold being in the Lessor and not in the Lessée the Lessor cannot do it as Attorney to the Lessée c. Co. ib. a. 4. 3 If the Lessor make a déed of Feoffment Lessee for years Attorney to deliver seisin and a Letter of Attorney to the Lessée for years to make Livery and he doth it accordingly this shall not drown or extinguish his Term because he did it as a Minister to another and in anothers right And that is accounted in Iudgement of Law the act of the Feoffor and not of the Lessée neither yet doth the Feoffée claim any thing from the Lessée c. Co. ib. 4 If the tenant devise that the Lord shall sell the Land Devise and dieth and the Lord selleth it accordingly yet the Seigniory doth still remain because the Lord selleth the Land in anothers right c. Co. ib. 88. b. 4. 5 A Guardian in soccage shall not forfeit his Interest by Outlawry or attainder of Felony or Treason Guardian is Soccage because he hath nothing to his own use but onely to the use and in the right of the heir whose Guardian he is Co. ib. 112. a. 4. 10 H 7. 20. 6 If after the Statute of 1 R. 3. cap. 1. Sale by Feâ—â— to Baron and before the Statute of Vses in 27 H. 8. cap. 10. Cestuy que use had devised that his Wife should fell his Land and had made her Executrix and died she had taken another husband In that Case she might have sold the Land to her husband for she doth it in auter droit and her husband would have béen in by the Devisor c. Co. ib. 113. a. 3 7 If a man devise that his Executors shall sell his Land Devise of a Reversion tâ— be sold by eâ—ecutor In this Case the Executors have no Estate or Interest in the Land but onely a bare and naked power yet this Feoffment amounteth to an alienation to vest the Land in the Feoffée for they do it in auter droit And the Feoffée shall be in by the Devisor So likewise if a man deviseth that a Reversion or other thing that lieth in grant shall be sold by his Executors they may sell the same without Déed for the Vendée shall be in by the Devisor and not by the Executors Causa qua suprà Co. ib. 117. a. 2 124. a. 4 c. 8 If a man be Lessée of a Villain for life for years or at will Villain the Villain purchaseth the lands in fée if the Lessée entreth into the lands he shall hold the Lands as a perquisite to him and his heires for ever For the Law respecteth the quality and not the quantity of his Estate But if a Bishop hath a Villein in right of his Bishoprick and he purchaseth Lands and the Bishop entreth the Bishop shall have his perquisite to him and his Successors and not to him and his heires Bishop for it came into his hands as in anothers right So if Executors have a Villein for yeares Executors and the Villein purchaseth Lands in fée and the Executors enter they shall have a fée-simple but it shall be assets in their hands For they have it in right of the Testator c. Villein Executor Lord Debt Trespas 9 A Villein may as Executor have an Action of debt against his Lord because it is not to recover a debt to his owne use Lit. §. 191 192 Co. ibid. 124. Finch 27. but to the use of the Testator neither yet shall the Lord take out of the possession of such Villein who is Executor the goods of the deceased because he is possessed of them in anothers right And if the Lord do take them the Villein shall maintain an Action of Trespass against him and therein recover damages against him to the use of the Testator c. for they shall be assets in his hands c. Oâ—t-lawry no â—is-ability 10 If an Executor or Administrator sueth an Action Co. ibid. 128 a. 3 Finch 27 out-lawry in the Plaintiffe shall not dis-able him because the sute is in auter droit viz. In the right of the Testator and not in his owne right And for the same a Mayor and Cominalty shall have no Action though the Mayor be out-lawed c. So it is also of one excommunicated â—bbot c. â—lien 11 An Abbot Prior or Prioresse Alien shall have Actions reall Co. ibid. a. 4. b. 1. personal or mixt for any thing concerning the possessions or goods of his Monastery here in England although he be an Alien borne
is found for him yet the other issue shall be tried and he shall not take advantage of the others Plea But in a Plea personal against divers Defendants it is otherwise for in such an action if one Defendant pleads that which extendeth onely to himself and the other pleads a Plea which goeth to the whole viz. to both Defendants this last Plea shall be first tried and if that be found for the Defendant that pleaded it it shall discharge both for in a personal Action a Discharge of one is a Discharge of both For example If one of the Defendants in Trespasse plead a Release to himself which in Law extends to both and the other pleads not guilty which extends but to himself the Plea which goeth to the whole and dischargeth both shall be first tried for if that be found it maketh an end of all and the other shall take advantage of it 94 Freehold and Inheritance more then it doth Chattels Co. Inst p. 1. 3. a. 2. 1 The Parishioners or Inhabitants or probi homines de Dale Parishoâ—â—â— purchase or the Church-wardens c. are not capable to purchase Lands unlesse it were in ancient time when such Grants were allowed But Goods and Chattels they may purchase c. Seigniories suspended 2 If an Estate of Fréehold in Seigniories Rents Commons Co. ib. 29. b. 2. or the like be suspended a man shall not be tenant by the Courtesie but if the suspension be but for years he shall be tenant by the Courtesie As if there be Feme Seignioresse and Tenant and the Tenant makes a Lease for life of the Tenancy to the Seignioresse who taketh an husband and hath issue the wife dieth he shall not be tenant by the Courtesie Howbeit if the Lease had béen made only for years then should he have béen tenant by the Courtesie c. An Estate for life and years 3 In the eye of the Law any estate for life Co. ibid. 46. a. 1 Co. l. 8. 70. b. 4. in Whitlocks Case being as Littleton saith an Estate of Fréehold against the tenant whereof a Praecipe quod reddat doth lie is an higher and greater estate then a Lease for years though it be for a thousand years or more which is a Chattel and if so long never without suspicion of fraud And they have béen alwayes the lesse valuable for that at the Common Law they were subject unto and under the power of the Tenant of the Fréehold c. Claim by the Lord of the Villeins goods 4 Claim by the Lord inter vicines c. of the Villeins goods Co. ib. 118. b. 4 and Lit. §. 177 shall not onely vest the goods which the Villein then hath but also which he after that shall acquire and get Howbeit it is otherwise if an Estate of Frée-hold or Inheritance in lands for there such a general Entry or Claim extends onely to such lands as the Villein hath at that time and not to any other which he shall purchase afterwards Rent 5 If a man grant a Rent out of Black-Acre to one and to his heires Co. ib. 147. b. 1 Co. l. 7. 24 a. b. 3. in Buts ca. and also grant to him that he may distrain for it in the same Acre for the term of his life this is a Rent-charge for his life and a Rent-seck afterwards diversis temporibus but if the Distresse be onely limited for certain years in the same land In that Case it remains a Rent-seck intirely for that the Fée and the Fréehold is seck in such Case c. Joynt-tenants Partition 6 At the Common Law before the Statutes of 31 H. 8. cap. 1. Litt. § 290. Co. ibid. 187. a. 1. and 32 H. 8. cap. 32. Ioynt-tenants by consent might have made partition and if they had béen possest of a Lease for yeares they might have done it by Parol but if they had béen seised in an Estate of Inheritance or for life they could not have made partition without Déed Words conditional to make a Lease void 7 If a man maketh a Feoffment in fée or Lease for life Co. ib. 204. â— 4 ad faciendum or faciendo or ea intentione or ad effectum or ad propositum c. that the Feoffée or Lessée shall do or shall not do such an Act none of these words make the state in the land conditional for in the Case of a common person and not of a will they are in judgment of Law no words of Condition and so it was resolved H. 18 Eliz. in Com. Banco Howbeit for the avoiding of a Lease for years no such precise words of condition are required as in Lease of Fréehold or Inheritance for if a man by Déed make a Lease of a Mannor for years in which there is a clause And the said Lessée shall continually dwell upon the Capital Messuage of the said Mannor upon pain of forfeiture of the said Term these words amount to a Condition So it is also if such a Clause be in such a Lease Quod non licebit to the Lessée dare vendere vel concedere Statum sub poena foris-facturae this amounts to make the Lease for years defeasible And so it was also adjudged H. 40. Eliz. Rot. 1610. inter Brown Ayel And the reason of the Court was because a Lease for years was but a Contract which may begin by word and by word may be dissolved Litt. §. 365. Co. ib. 225. 8 A man in any Action real personal or mixt cannot plead Pleading of a Condition that an Estate of Fréehold or Inheritance was made upon condition without vouching a Record thereof or shewing a writing under seal that proves the same but a man may plead a condition that concerns Chattels either real or personal without shewing forth any writing purporting the same c. Littlet § 388. Co. ib. 239. ib. 2 9 If a Disseisor make a Lease for years Discent a tolle entry and die seised of the Reversion this descent shall take away the entry of the Disseisée because he died seised of the Fée and Frank-tenement like Law it is if the Land be extended upon a Statute Iudgement or Recognizance and so it is likewise in case of a Remainder Howbeit if he had made a Lease for life either for his own or for anothers life and then had died seised of the Reversion this descent shall not take away the Entry of the Disseisée for albeit he had the Fée yet he had not the Frank-tenement and the Law doth ever give great respect to the Estate of Fréehold though it be but for term of life And therefore there is the same Law also where the Disseisor makes an Estate in tail mutatis mutandis Lit. § 525 526 Co. ib. 299. b. 4 10 If I let Land to a Feme sole for life who takes Baron Joynt confirmation to Baron and Feme
Executors or assignes alien that it shall be lawfull for the Lessor to re-enter and after makes his Wife his Executrix and dies the Feme takes a new Baron who aliens and the lessor makes a new lease before entry In this Case the new lease is not good being made before entry for albeit entry be but in the nature of a ceremony or circumstance yet in such Case and others of like kind it is necessary for the Lessor to make his entry before he can be capable of making a new Lease â—ornment 13 If a Villein purchase a reversion Co. Inst p. 1. 119. b. 2 Lit. §. 179. his Lord may not claime it before attornment be made by the Tenant of the land to the Villein for if he make his claime after the grant and before attornment such claime is void yet attornment is upon the matter but a bare ceremonie â—iâ—e poenae 14 A nomine poenae is not recoverable without an actual demand of the Rent for the non-payment whereof it became forfeited Hob. 133. Howel and Samback 103 Things executed and done more then executorie and to do Vide 40. 51. â—ery in 〈◊〉 without â—y void 1 A livery in view otherwise called a livery in Law is good to convey the Estate to the feoffée c. if he make entry Co. Inst p. 1. 48 b. 3 and so the Estate be executed during his life and the life of the feoffor but if either of them die before entry the livery is void â—ange not â—â—ed void 2 In exchange of Land the parties have no fré-hold in them in déed or Law before they execute the same by entry Co. ib. 15. b. 2. and therefore if one of them die before the exchange be executed by entry the exchange is void for the heir cannot enter and take it as a purchasor because he was named onely to take by way of limitation of estate in course of descent Co. ib. 51. b. 4 3 If a man let lands to another for term of yeares Interest in a Lease for yeaâ—â—â— good without entry c. albeit the Lessor die before the Lessée enter yet he may well enter into the same lands after the Lessors death because in case of a Lease for yeares the estate is executed and the interest of the term doth passe and vest in the Lessée before entry And therefore the death of the Lessor cannot devest that which was vested before Co. ib. 52. b. 4. 4 If the Lessor by his Déed licence Licence to alien good after the Lessors death the Lessée for life or yeares who is restrained by Condition not to alien without licence to alien and the Lessor dieth before the Lessée doth alien yet is his death no countermand of his licence but that he may alien for the licence exempteth the Lessée out of the penalty of the Condition and it was executed on the part of the Lessor as much as might be And so it was resolved M. 3. Jac. in Com. Ba. So likewise if the King licence to alien in Mortmaine and dieth the licence remaineth good notwithstanding the Kings death c. Co. Inst p. 1. 76. b. 3. 5 If one levie a Fine executory as sur grant and render to a man and his heires and he to whom the land is granted and rendred Upon a fine executory no Wardship dieth before execution and his heir being within age entreth In this case he shall not be in Ward For his auncestor at the time of his death was not tenant to the Lord because the Fine wos not executed c. Co. ib. 128. b. 1. 6 Vpon plea in disability of the person by reason of Out-lawry Out-lawry 〈◊〉 perfect befâ—â—â— the return of the Exigent before the Defendant can disable the Plaintiffe the Out-lawry must be perfectly executed and appear upon Record for the judgment after the Quinto exactus given by the Coroners in the County Court is not sufficient but the Writ of Exigent must be returned because before the Return of that Writ it is not perfectly executed nor doth appear upon Record c. Co. ib. 130. a. 4 7 A man in execution in salva custodia shall not be delivered by a protection for then the suit is executed and the Law hath her end c. After execâ—â—â—an no protection Writs of execution admit no protectioâ— Co. ib. 131. a. 3 8 In judicial Writs which are in nature of actions where the party hath day to appear and plead and therefore yet somewhat to doe a protection doth lie as in Writs of Scire facias upon Recoveries Fines Iudgments c. Albeit by the Statute of W. 2. cap. 45. essoignes and other delayes are ousted in Writs of Scire facias yet a protection doth lie in the same so it is in a Quid juris clamat and the like But in Writs of execution as Habere facias seisinam Elegit execution upon a Statute Capias ad satisfaciendum fieri facias and the like no protection can be cast for the Defendant for then the suit is ended Neither hath the Defendant then any farther day in Court and the protection extendeth onely ad placita quaerelas and must be allowed by the Court which cannot be but upon a day of apparance Co. ib. 139. a. 2. 9 In a Quare Impedit if the Plaintiffe be non-suit after apparence In a Quaâ—e Iâ—pedit non-sâ—â—â— or discontin a good barrâ— the Defendant shall make a title and have a Writ to the Bishop And this is peremptory to the Plaintiffe and a good barre in another Quare Impedit And the reason is for that the Defendant had by judgment of the Court a Writ to the Bishop which is a judicial Writ and in the nature of an execution And therefore the Incumbent that cometh in by that Writ shall never be removed which is a flat barre as to that presentation And of this opinion is Littleton in our Books And the same Law and for the same reason it is in case of a discontinuance Co. ib. 139 a. 3 10 In an Attaint if the Plaintiffe after apparence be non-suit In Attainâ— non-suit peremptory it is peremptory but if the processe in the attaint be onely discontinued the Plaintiffe may have another Writ of Attaint because upon the non-suit there is a judgment given but not upon the discontinuance c. Account Nâ—n-suit 11 After an award to accompt the Plaintiffe may be non-suit Co. ib. 139 b. 2 because that is onely an interlocutory award of the Court and no final judgment Recognisance c. executory not binding executed conâ—â—â— 12 If there be two joyntenants of an estate in Fée-simple Co. ib. 184 b. 2. and one of them acknowledgeth a Recognisance or a Statute or suffereth a judgment in an action of Debt c. and dieth before execution had it shall not be executed
Earle of Bedfords Ca. yet the Law in many Cases hath consideration of him in respect of the apparent expectation and possibility of his birth for which sée the opinion of Sanders and Browne in Stowells Case for the avoyding of a fine Pl. Co. fol. vide temps E. 1. Tit. Guard 153. 31 E. 1. Tit. briefe 873. for the Guard of such an infant vide 38 E. 3. 7. 41 E. 3. 11 E. 3. Tit. voucher that he shall be vouched in ventresa mere 3 El. Dier 186. An adulterer counsels the Feme to murder the Infant when it should be borne who doth it accordingly in this Case the adulterer is accessory yet at the time of the counsel given the Infant was in ventre sa mere c. Feofment of Cestuy que use good 17 If Cestuy que use after the Stat. of 1 R. 3. and before the Statute of 27 H. 8. had disseised the Disseisor of his feoffées Co. l. 10. 49. in Lampets Case here the use is suspended and depends in possibility to be revived by the entry of the feoffées and yet if he make feoffment in Fée that is good and shall bind in respect that the Law hath consideration of that possibility of the use A possibility â—ay have a â—eing and be â—â—â—feitted 18 H. possessed of an house for 31 yeares deviseth the profits thereof to I. durante viduitate and after deviseth the term to R. and dies Co. l. 10. 52. a. 3. in Lampets Case viz. Tr. 28 El. Rot. 1674. Harrington Rudyards Case I. by the assent of the Executor enters and purchaseth the house in Fée of L. who covenants with I. that the house shall be frée from all former bargaines c. And in an Action of Debt upon an Obligation for the breach of covenants the defendant pleads covenants performed the Plaintiffe assignes for breach the devise to I. and afterwards to R. and that after I. entring into that covenant I. had maried O. upon whom R. entred and thereupon the Plaintiffe demurres And the great Question in the Case was whether R. at the time of the making of the covenant having onely a possibility the covenant did extend unto it or no And it was resolved that the covenant did extend to that possibility and that the possibility had being for that purpose and might be forfeited 19 Vide infra M. 105. in all â—ands may be â—tailed â—â—gh given â— persons unâ—aried 20 If tenements be given to a man and to a woman Co. Inst p. 1. 25. b 4. which is not his wife and to the heires male of their two bodies they have an Estate taile albeit they be not maried at that time and so it is if lands be given to a man which hath a Wife and to a woman which hath a husband and to the heirs of their two bodies they have presently an Estate taile for the possibility that they may marry c. â—eare-say 21 Such thing as one hath by credible heare-say by the example of Litt. â— 720 are not be neglected but are worthy of observation Co. ib. 377. b. 4 for the apparent possibility that they may be true 105 And therefore nothing to be void which by possibility may be good 1 Vide supra R. 104. e. 1. Co. Inst p. 1. 25. b. 4. Co. l 50. b. in Lampets Case 2 If Lands be given to two husbands and their wives Lands intailed to more than two good and to the heires of their bodies begotten this is not a void Grant for the uncertainty but they shall take a joynt estate for life and several inheritances viz. the one husband and his wife the one moity and the other husband and wife the other moity So if lands be given to a man and two women and the heires of their bodies begotten they have a joynt estate for life and every of them several inheritance because they cannot have one issue of their bodies neither shall there be by any construction a possibility upon a possibility viz. that he shall marry the one first and then the other So it is also when land is given to two men and one woman and to the heires of their bodies begotten c. Co. ib. 45. b. 3. 3 Regularly in every Lease for yeares the term must have a certaine beginning and a certaine end for so Bracton saith A Lease for yeares good though uncertain when it shall begin Terminus Annorum certus esse debet determinatus And Littleton also hath these words Pur terme de certaine ans Neverthelesse although before the time it should take effect in possession or interest it do depend upon an incertainty viz. upon a possibile contingent before it begin in possession or interest or upon a limitation or condition subsequent yet is it not void for that uncerrainty as if A. seised of lands in fée grant to B. that when B. payes to A. xx shillings that from thenceforth he shall have and occupy the land for 21 yeares and after B. payes the twenty shillings this is a good Lease for 21 yeares from thence-forth notwithstanding that uncertainty because it was at first possible the twenty shillings should be paid and that being paid the Lease had from thence-forth a certaine beginning and therefore was not void but good ab initio c. So if A. leaseth his land to B. for so many yeares as B. hath in the Mannor of Dale and B. hath then a term in the Mannor of Dale for 10 yeares this is a good Lease by A. to B. of the land of A. for 10 yeares for albeit there appear no certainty of yeares in the Lease yet because by reference to a certainty it may be made certaine it sufficeth If the Parson of D. make a Lease of his Glebe for so many yeares as he shall be Parson there this cannot be made certaine by any-meanes for nothing is more uncertaine than the time of death Terminus vitae est incertus licet nihil certius sit morte nihil tamen incertus est hora mortis but if he make a Lease for three yeares and so from thrée yeares to thrée yeares so long as he shall be Parson this is a good lease for 6 years for it is possible he may so long continue Parson there and then it is good for so long viz. first for thrée yeares and then for thrée yeares more but for the residue it is uncertaine If a man maketh a Lease to I. S. for so many yeares as I. N. shall name this is not void for the uncertainty for when I. N. hath named the yeares then is it a good Lease for so many yeares A man maketh a Lease for 21 yeares if I. S. shall so long live Here albeit the end of his Lease depends upon an uncertainty viz. upon the time of the death of I. S. which is uncertaine yet because it is possible at last to know the certaine
frée-hâ—lds and inheritances incorporeal which lie in grant as advowsons and to Rents Commons Estovers and the like which Issue out of Lands or Tenements And not onely to such inheritances in esse but also to Rents Commons Estovers c. newly created As a man some say may grant a Rent c. out of the land for life in taile or in fée with Warranty for albeit there can be no title precedent to the Rent yet there may be a title precedent to the Land out of which it issueth before the grant of the Rent which Rent may be avoyded by the recovery of the Land in which Case the grantée may help himselfe by a warrantia cartae upon the special matter and so a Warranty in Law may extend to a Rent c. newly created as in Case of a Rent granted upon exchange or for owelty of Partition â—arranty â—es bind the â—eg 17 King H. 3. gave a mannor to Edmond Earle of Corne-wal Ibid. â—70 b. 1 Pl. 134. and 553 554. and to the heires of his body saving the possibility of Reverter and died The earle before the Statute of W. 2. de donis c. by déed gave the said Mannor to another in fée with Warranty in exchange for another Mannor and after the said Statute in the 28 of E. 1. dieth without Issue leaving assets in fée-simple which warranty and assets descended upon E. 1. as Cosin and heire of the said Earle viz. Son heire of H. 3. brother of Rich. E. of Cornewal father of the E. Edmund And it was adjudged that the King as heire to the Earle Edmund was by the Warranty and assets barred of the possibility of Reverter which he had expectant upon the said gift albeit the Warranty and assets descended upon the natural body of E. 1. as heire to a subject and E. 1. claimed the said Mannor as in his Reverter in Jure Coronae in the capacity of his body Politique in which right he was seised before the Gift Ibid. 372. b. 4 Co. lib. 2. 16. Wisemans Ca. 18 If Prince Henry Son of H. 7. had made a Gift in tail An intaile â—â—mainder in the King cannot be barredâ— the Remainder to H. 7. in Fée which Remainder by the death of H. 7. had descended to H. 8. so as he had the Remainder by descent yet might Tenant in tail barre the Estate tail by a common Recovery notwithstanding the Statute of 34 H. 8. 20. But if H. 7. in consideration of money or of assurance of Land or for other consideration by way of Provision had procured Prince H. by déed indented and enrolled to have made a Gift in tail to one of his Servants and subjects for recompence of service or other consideration the Remainder to H. 7. in Fée and all this appear upon Record This is a good provision within the said Statute and the Tenant in tail cannot by a common recovery barre the Estate tail Ibid. 384. b. 2 19 In a formedon in descender it is a good plea to say Warranty 〈◊〉 assets a good plea against the Issue in tail that the Ancestor of the demandant exchanged the land with the Tenant for other lands taken in exchange which descended to the demandant whereunto he hath entred and agréed or if the demandant hath not so entred and agréed then may the Tenant plead the Warranty in law and other assets descended for in such Cases there ought to be quid pro quo Ibid. 390. a. 4. 20 Tenant in tail maketh a feofment in Fée with warranty Remitter suspended by warranty anâ— assets and disseiseth the discontinuée and dieth seised leaving assets to his Issue some hold that in respect of this suspended warranty and assets the issue in tail shall not be remitted but that the discontinuée shall recover against the Issue in tail and he take advantage of his Warranty if any he hath And after in a Formedon brought by the Issue the discontinuée shall barre him in respect of the Warranty and Assets and so by such mutual recompence every mans right is saved Ibid. 23. 2. 21 If one make a feofment in Fée without valuable consideration to divers particular uses Use remaiâ—â— in the Feoffor so much of the use as he disposeth not is in him as his ancient use in point of Reverter It is otherwise if he make such a feofment for money or other valuable consideration Co. l. 1. 24. 2. 3 Porters Case 22 If a feofment be made to superstitious and unlawful uses A consideration makes thâ— feoffees seiseâ— to their own use the Statute of 23 H. 8. 10. makes the uses void but the feofment remaines good and the feoffées shall stand seised to the use of the feoffor and his heires but if in that Case the Feoffor shall reserve 1 d. Rent or receive from the Feoffées 1 d. consideration upon the feofment the Feoffées shall be seised to the use of themselves and their heires Co. ib. 106. a 4. 23 In Shelleys Case albeit the Recoverée died before execution Recovery iâ— value yet the judgment being to recover in value the Issue is thereby barred because he is thereby to have recompence Cited in the Rector of Chedingtons Case Co. l. 1. 154. a. 2 24 The Lord Paget An use must have good consideration being seised of the Mannor of A. B. c. covenants with I. S. and others that in consideration of the discharge of his funerals and payment of his debts and legacies out of the profits of his land and for the advancement of his Sonne and others of his bloud he and his heires would stand seised of the said Mannors to the use of the said I. S. c. for the life of the said Lord Paget and after his death to the use of Ch. P. and others for the term of 24 yeares and after the expiration or end of that term then to the use of Sir William Paget his Son in taile with divers remainders over and after the Lord Paget was attainted of treason In this Case it was adjudged that the term to Ch. P. c. was void because there wanted good consideration in as much as Ch. P. c. were strangers to the consideration aforesaid But if he had made them executors so that they might have béen chargable towards the payment of his debts and so made privy to the consideration then had such consideration béen good and the Estate made to them had also béen good â— general â—â—sideration 〈◊〉 good 25 An use cannot be raised by any covenant or Proviso C. l. 1. 176. a. 1. Mildmays Case or by bargaine and sale upon a general consideration and therefore if a man by déed intended and inrolled according to the Statute for divers good considerations bargaine and sell his land to another and his heires nihil inde operatur for no use shall be raised upon such general consideration
the issue had 〈◊〉 recompence for the moity of the entailed Land and such Partition made no Discontinuance because in that Case it passed not by Livery of Seisin which is an act in Law but the Partition is in truth lesse then a Grant for that it maketh no degrée but each Copercener is in by discent from the Common Auncestor Littl. §. 263. Co. ib. 174. b. 3 27 If there be three or four Perceners who make Partition The Parceners part evicted and the part of one of them is evicted by lawfull entry in this Case she shall hold the other Lands with her other Sisters and so it is also betwéen the surviving Perceners and the Heires of the other or with the Heires of Perceners all being dead It is otherwise of Ioyntenants that make Partition by Déed for that is by act of the parties Littl. §. 290. Co. ib. 187 a. 3. and then the Warranty is destroyed but if Ioyntenants make Partition by Writ upon the Statutes of 31 or 32 of H. 8. the Warranty continues because that is by Act and in Course of Law but Perceners and their Heires coming in by Act of Law viz. by Discent have the same Priviledg above Ioyntenants after Partition as aforesaw Co. ib. 81. b. 2. 28 There is a Diversity betwéen Authorities created by the parties for private Causâ—â— and Authority created by Law Authorities 〈◊〉 do a thing for Execution of Iustice As if a man make a Letter of Attorney to two to do an Act if one of them die the Survivour shall not do it but if a Venire Facias be awarded to four Coroners to impanel and return a Iury and one of them die yet the other shall execute and return the same 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 thrée 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 because it is for the Execution of Iustice Co. ib. 192. a. 2 Littl. §. â—02 29 If there be two Co-perceners in Fée Partition of Parceners anâ— Joyntenants and the one makes a Lease for life this is no severance of the Co-percenery for no withstanding that Lease the Lord shall make one Avowry upon them both but if there be two Ioyntenants and one of them makes a Lease for life this is a severance of the Ioynture and several Avowries shall be made upon them And here the Reason is because Co-perceners come in by Discent but Ioyntenants by purchase the first â—â—ing the Act of Law and the other the Act of the Party Co. ib. 215. a. 1. 30 At the Common Law before the Statute of 32 H. 8. 34. Conditions iâ— Deed and 〈◊〉 Law the Grantée of a Reversion after an Estate for life or yeares could not take advantage of a Condition in Déed as if Land were let for life or yeares rendring Rent upon Condition that if the Rent were not paid at the day the Lessor and his Heires might re-enter here if the Grantée of the Reversion could not before that Statute take advantage of Entry upon the breach of that Condition for the non-payment of the Rent at the day limited by the Lease Littl. § 384. Co. ib. 236. b. 3. But before that Statute and since the Grantée of a Reversion may take advantage of a Condition in Law As if a man make a Lease for life there is a Condition in Law annexed unto it that if the Lessée doth make a greater Estate c. that then the Lessor may enter if this and the like Conditions in Law which do give an Entry to the Lessor the Lessor himself and his Heires shall not onely take benefit of it but also his Assignée and the Lord by Escheat every one for the Condition in law broken in their own time Condition apportioned 31 Since the making of the said Statute of 32 H. Co. ib. 215. a. 3 the Grantée of part of the Reversion shall not take advantage of the Condition as if a Lease be made of three acres reserving a Rent upon Condition c. 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 Dumpors case Co. l. 4. 120. a. 4. But by act in law a Condition may be apportioned as if a lease for yeares be made of two acres one in the Nature of Borough English and the other at the Common Law and the lessor having issue two Sonnes dieth each of them shall enter for the Condition broken for the Reversion Rent and Common are divided by act in Law In the King Case also the Condition in such Case shall not be destroyed but shall still remain in the King â— Condition â—â—possible by 〈◊〉 act of God 32 If Feoffment be made upon Condition Co ib. 219. a. 1. Littl. § 352. that the Feoffée shall give the land to the Feoffor and his Wife to have and hold to them and the heires of their two Bodies the Remainder to the right heirs In this Case if the Feoffée die before any Feoffment made then is the Condition broken because he made not the Estates c. within the time prescribes by the law for when no time is limited for the doing of it then the Feoffée at his peril may perform the Condition during his life although there be no request made or else the Feoffor or his heires may enter but if the feoffment be made upon Condition that the Feoffée before the Feast of S. Michael next coming shall give the Land to the Feoffor and his Wife in tail ut supra and before the day the Feoffée dieth the State of the Heir of the Feoffée shall be absolute because a certaine time is limited by the mutual agréement of the parties within which time the Condition becometh impossible by the Act of God And therefore it is necessary in such Case when a day is limited to add to the Condition that the Feoffée or his Heires shall performe the Condition The Mortgaâ—â—â— dies beâ—â—t the day 33 If a man morgage his Land to another Co. ib. 219. b. 3 upon Condition that if the Mortgageor and I. S. pay 20 s. at such day to the Mortgagée that then he shall re-enter Here if the Mortgageor being in full life will not pay the Money but refuse to pay it and I. S. alone tenders it the Mortgage may refuse it But if the Mortgageor die before the day and I. S. payes the Money to the Mortgagée this is a good performance of the Condition and yet the Letter of the Condition is not performed
hominis and it is as true Fortior aequior est dispositio Legis quà m hominis â—nt-tenants â—enants in Common Coperceners â—resentation â—dvowson 19 A joint-tenant or Tenant in common shall not have a Quare Impedit for the advowson which they have in jointure or in common F.N. B. 34. v. in Case one of them present alone against his companion that so presents but if two Coperceners cannot agrée in presenting the eldest sister shall have the first presentation and so shall also he have that hath her Estate and if either of them be disturbed by the other Copercener either of them shall have a Quare Impedit against the other sister And Coperceners and those who have their Estates shall present as Coperceners ought to do viz. the eldest first and then the second after her the third and so the rest in order according to their ages and the diversity betwéen joint-tenants or tenants in common and Coperceners ariseth from this ground because they are in by grant which is the act of the party but these are originally in by act in law 20 If an Abbot make waste in the Lands which he hath in ward F.N.B. 60. m. and dies the Successor shall not be charged therewith because his death is the Act of God it is otherwise if he be deposed for then the Successor shall be chargable with it because that is the Act of the party â—â—d Mesne 〈◊〉 Tenant â—rnment 21 If there be Lord Mesne and Tenant Co. Inst p. 1. 221. b. 4. Litt. §. 583. and the Lord grant by fine the services of his Tenant to another in fée here if the services of the Mesne be arreare the grantée shall not distraine the Tenant before attornment Howbeit if the grantée die without heire whereby the mesnalty escheats to the Lord Paramount in that Case if the services of the Mesnalty be arreare the Lord Paramount may distraine the Tenant without attornment because the grantée came to the mesnalty by the act of the party but the Lord Paramount comes to it by Act in Law 〈◊〉 entry in 〈◊〉 more adâ—tageous 〈◊〉 an entry 〈◊〉 Deed. 22 An actual entry into land is meerely the Act of the party Co. ib. 253. b. 4 and therefore is called an entry in déed and albeit a claime be also an Act of the party yet it is also mixt with force of Law and therefore it is called an Entry in Law and is not onely as forcible as an Entry in Déed but because it is as well an Act of Law as of the party it giveth the party a greater priviledge then an Entry in Déed doth for a continual claime of the Disseisée being an Entry in Law shall vest the possession and seisin in him for his advantage but never for his disadvantage and therefore if the Disseisée bring an Assise and hanging the Assise he make continual claime this shall not abate the Assise but he shall recover damages from the beginning but it is otherwise of an Entry in Déed â—â—nce in 〈◊〉 23 Vpon a Lease for yeares by indenture Dier 6. 28 H. 8. 1. c. the Lessée covenants and grants that if he his Executors or Assignes alien it shall be lawfull for the Lessor to re-enter and after he makes his Wife Executrix and dies the Feme takes a new husband who aliens In this Case some hold there is no breach of the Condition because the Baron is in by the Law and not Assignée of the Lessee as it is of Tenant by the Courtesie or Lord of a Villein but others hold the contrary ideo quaere Dier 45. 3. 31 H. 8. 24 A lease is made for term of yeares Devise of a Lease upon Condition that if the Lessée during his life assigne the term to any other without the Assent of the Lessor that then the Lessor may re-enter and the Lessée devised his term by his will to another without Assent c. And by Brooke and Hales this is a forfeiture because the Devisée shall be said to be in by the assignement that the Divisor made during his life but if the Executors had enjoyed the term that had béen no forfeiture because in that Case the Law makes the assignement Tamen quaere Co. Inst p. 1. 310. b. 3. 25 If a reversion of land be granted to an Alien by déed Attornment and before attornment the Alien is made denizen and then the attornment is made In this Case the King upon office found shall have the land for as to the Estate betwéen the parties it passeth by déed ab initio it is otherwise where land is granted to a mâ—n and a woman and they intermarie and then attornment is had for which Vide suprà Pl. 1. Dier 60. 22 23 36 H. 8. 26 There is a diversity Seisure of a villein where the body of a man in execution is set at liberty by authority of Law and when without authority as by the voluntary escape in a Sheriffe or the like For the Law saves all rights as in Case of a Villein to whom the Kings presence is a Sanctuary where the Lord cannot seise him howbeit afterwards out of his presence he may because the Law gives the Villain that priviledge pro tempore but if the Lord himselfe enfranchise him by manumission in déed or in Law for one hower he is frée for ever in favorem libertatis because that is the Act of the Lord himselfe So if a man be taken in execution and be suffered to escape by the Sheriffe this is an absolute discharge of the debt and the Plaintiffe is to have his remedy against the Sheriffe by action of debt Arrest of a Member of Parliament But if a Member of Parliament be arrested by a Sheriffe upon an execution and be afterwards fréed by the priviledge which the law gives him that is no discharge of the debt but that when he ceaseth to be a Member he may be arrested again upon the same judgement c. Dier 68. 24. in Kidwelleys Case 4 5 E. 6. 27 Where demand of Rent is to be made by the law as when no place is assigned for the payment thereof Demand of Rent the law it selfe is the place there it is not sufficient for the party to come to the land ad petendum redditum but he ought to bring witnesses with him and in their presence ought to make an expresse demand of the Rent upon the land as to say here I am and do demand such a Rent or the like albeit none be there present to pay the Rent But when the Rent is by the agréement of the parties payable out of the land the Lessor is not bound to demand it but the lessée is to tender it at his peril Dier 140. Pl. 39. 3 4 P. M. 28 A thing or action personal being once suspended though it be but for an hower is
his Office is to determine secundum allegata probata and the duty is to acquaint him with their grievances and with all the Causes of their differences which if they or either of them omit to do the Law presumes it is for their own advantage to conceal them And therefore such Concealment shall not annul the award that is made albeit it be made onely of part Co. l. 8. 120 b. 3. in Doctor Bonhams Case 24 It is presumed that every one will make the best of his own Case And therefore in any suit or action Pleading when the Plaintiff makes Replication Surrender c. whereby it appeares that upon the whole Record the Plaintiff hath no cause of Action he shall never have Iudgment albeit the Barre Rejoynder c. be insufficient in Matter for the Court ought to judge upon the whole Record and will suppose that the Plaintiff hath managed his own Cause as well as he can Co. l. 8 133. a. 4. in Turners Case So in an Action of Debt brought against an Executor he pleads two Recoveries against him in a Court of Record which amount to the whole in his hand but sheweth not that the Corporation had jurisdiction to hold Court either by Prescription or by Patent And it did also appear by the Count in that Court that the Action of Debt was brought for 100 l. without mentioning any Obligation and therefore it was to be intended that there was no Obligation and then the Executor was not chargeable in an action of Debt upon a single Contract And in this Case albeit the Defendant in his Barre acknowledged that the Debt was by Obligation yet that shall not make the Count good which the Law presumes the Plaintiff hath made as full as he could Co. ibid. b. 2. 25 In Debt upon an Obligation with Condition to perform Covenants in an Indenture Pleading the Defendant pleads performance of all the Covenants generally and it appeares to the Court that divers of them are in the Negative or Disjunctive and so the Plea being in the general Affirmative is insufficient yet if the Plaintiff reply and shew a breach of one of the Covenants which by his own shewing is not any breach upon which the Defendant demurres In this Case judgment shall be given against the Plaintiff because upon the whole Record it appeares that the Plaintiff had no Cause of Action and it will be alwayes intended that every one will make the best of his own Cause Co. l. 8. 135. a. in Sir John Nedhams Case 6 In Debt to Administrators upon Administration committed by the Bishop of R. the Defendant pleads Administration committed to himselfe by the Arch-Bishop of Canterbury Administraâ—â—on because the Intestate had bona notabilia the Plaintiff replies that that Administration was repealed In this Case because the Defendant did not shew in his barre that the Intestate had bona notabilia in certaine It shall be intended that he had not bona notabilia in divers Diocesses yet the Administration committed by the B. of C. is not in this case void but onely voidable â—â—ving a 〈◊〉 27 It is not expected that Tenant by Statute or Elegit c. should a déed of the land because they come to the possession thereof by execution of Law and against the will of the terre-tenant Co. lib. â—â—4 b. 4. in Doctor Leyfeilds Case but Tenant by the courtesie ought to shew a release made to his wife for the law presumes he hath both that and her in his power 〈◊〉 Paâ—â—â—â—â— â—â—gestion 28 The suggestion of the party being inserted in Letters Patents raiseth alwayes suspicion Co. l. 10. 110. a. 2. c. in Legats Case because the Law presumes it is inserted to work him some advantage So if the King by his Letters Patents grant White-acre and Black-acre to I. S. with this clause quae quidem praemissa c. à nobis concelata detenta fuerunt c. This in judgement of Law is the suggestion of the Patentée and shall make the grant void So in 19 E. 3. tit Grant 58. the King by his Letters Patents grants licence to appropriate the Advowson of D. to the Prior of C. quae quidem advocatio non tenetur de nobis and in truth the Advowson was held mediately of the King here the licence was held void for the Booke saith the suggestion was falfe vide plus ibid. â—â—son 〈◊〉 Christian 29 If a Parson or Vicar hath a pension out of another Church F. N B. 51. B. and the pension is with-drawne or another parson takes or claimes it in this case the Parson or Vicar that ought to have may sue for it in the Court Christian and he shall not be stopped by a prohibition but shall have consultation Also upon the prescription he may have a writ of Annuity for it at his Election but if he once bring a writ of Annuity for it he shall never after sue for it in the Court Christian 〈◊〉 â—â—change 30 If the Baron exchange land and after die F. N. B. 149. n. if the Feme hath dower of the land taken in exchange she shall not have dower also of the land given in exchange â—â—â—t-charge â—â—â—y 31 Vpon grant of an Annuity out of land for yeares for life F.N.B. 152. a. or in fée which clause of distresse the grantée hath his Election if it be behind whether he will distraine or bring his writ of Annuity for it Howbeit if once he do either he is for ever after concluded for doing the other for the Law supposeth he will make choise of that which tends to his best advantage The time is â—im that 〈◊〉 benefit 32 Where a man is to have benefit upon an act Pl. 16. a. 4. in Fogassaes ca. which is first to be done by himselfe and no time is limited when it shall be done the Law saith that he may do it at his pleasure as if a man make a feofment upon Condition that if he pay the Mortgagée 20 l. that then he shall re-enter here in as much as no day of payment is limited the Mortgager may pay it when he pleaseth for he is to have the benefit viz. the land again So if one grant to another that when he shall take his daughter to wife he will give him 20 l. in this Case because no time is limited for the taking of his daughter to wife he may take her when he will So in Fogassaes Case in the Comentaries in as much as the payment of the subsidie was to be made unto the Collector upon the weying of the woad and a time is limited for the weying the Law referres the time thereof to the will of the Collector â—â—â—antages â—â—lected â—â—â—covin 33 In Wimbish and Tabbois Case in the Comentaries one argument to prove covin in the Feme there was Pl. 55. b. 2. in Vimbish
he may have an Action of Trespass against the Lord or Bailiff F.N.B. 9. g. 10 Vide sup Max. 118. R. 24. Parceners where parceners or heires in Gavel-kind may have a writ de rationabili parte or a Nuper obiit being ousted by one of their Coparceners Sée also suprà Maxime 118. Rot. 25. F.N.B. 21. c. 11 If a man be vouched and enter into Warranty and loseth Vouchee and Tenant by receit may havâ— a writ of Error he may have a writ of Error and assigne the Errors which have hapned betwixt the Demandant and the Tenant or betwixt the Demandant and the Vouchée So likewise he in reversion who prayes to be received for default of the Tenant for life or for his faint pleading here albeit he be received and plead and lose yet may he have a writ of Error and assigne the Errors that have hapned betwéen the Demandant and Tenant and the Demandant and him that so prayed to be received F.N.B. 99. b. 12 In a praecipe quod reddat against Baron and Feme Baron and Feme may have error at the Grand Cape the Baron appeares in proper person and the Feme by an Attorney who hath not sufficient warrant and thereupon judgment was given upon the default of the Feme against Baron and Feme c. yet if they were not duely summoned they may bring their writ of Error to reverse that judgment F.N.B. 135. d. 13 A man may have a Warrantia Cartae Recovery in value albeit he may vouch in the Action that is brought against him and if he recover in the Warrantia Cartae and afterwards lose in the Action brought against him in which he hath vouched him against whom he hath recovered the warranty then shall he have a writ of habere facias ad valentiam c. maintainable within a yeare after the recovery to recover in value according to his losse Plow 96. a. 1. 14 For Heriot-service the Lord may either distraine or seise Heriot-service and so he hath two several means to come by it 121 Consensus tollit Errorem When by consent no challenge 1 When in a writ of right the Iury that are to trie the méere right Litt. §. 514. Co. Inst p. 1. 294 a. 2. are once impanelled by the four Knights with the consent of both parties none of the 12 so chosen can be challenged because it is by consent of parties â—â—ebe may be â—â—rged 2 If the Parson of a Church charge the Glebe of his Church by his Déed Litt. §. 528. Co. ib. 300. a. Litt. § 648 Co. 34 3. a. Co. 301. a. 4. and the Patron having fée-simple in the Advowson and the Ordinary confirme that grant such grant shall stand in force according to the purport thereof Because done by the joynt consent of all the parties that can claime any interest in the Advowson So likewise may the Patron and Incumbent of a Chantery donative charge the land upon the same reason because the whole interest resides in them and the Ordinary is not to medle therewith Attornment 3 To avoid many inconveniencies Co. ib. 309. a. 3 Attornment was appointed by the Law which is nothing else but the consent of the particular Tenant to the reversioners grant And therefore it is said in the old Books Si Dominus attornare possit servitiam tenentis contra voluntatem tenentis tale sequeretur inconveniens quod possit eum subjugare Capitali inimico suo per quod teneretur sacramentum fidelitatis facere ei qui eum damnificare intenderet For such consent of the Tenant is conclusive and binds the Tenant to pay the purchaser the Rent and to performe all other services due for or in respect of the land 〈◊〉 facias 〈◊〉 â—â—nsent 4 In a Ejectione firmae upon the issue joyned the Plaintiffe makes suggestion to the Court that he the Sheriffe Co. l. 5. 36. b 4. in Baynehams Case Vide Dier 367 Pl. 40. 21 22 Eliz. and one of the Coroners were of the liveries of the Earle of Worcester and therefore that he had caused the Venire facias to be directed to the other Coroner and the Defendant also confessing the suggestion the venire facias was allowed accordingly and upon the trial the Verdict passed for the Plaintiffe Howbeit afterwards the Court was moved to arrest judgment because the suggestion did not containe principal challenge sed non allocatur because the venire facias was awarded ex assensu partium â—y things â—nsent 〈◊〉 5 A Common Recovery differs from the judgment and procéeding in other real actions Co. l. 5. 40. b 2 in Dormers Case for this reason amongst others because it is had by the mutual consent of the parties 39 E. 3. 1. The Demandant and Tenant consent that two of the four in a writ of right shall be Esquires albeit by the Law they ought to be all Knights and well because by consent 44 E. 3. 3. Trial of Villanage altered from natural trial by consent 7 H. 6. 7. Pleader of feofment in fée upon Condition without Déed and re-entry is good if the other part confesse the Condition 34 E. 3. Title Office de Court 12. If 12 be sworne and one departs another of the Panel by consent may be sworne and with the 11 give the Verdict 11 H. 6. 13. The Court in a Quare Impedit may by consent give longer day then is limited by the Statute of Marlebridge H. 4. The Statutes of 2 E. 3. 20 E. 3. provide that neither for the great Seal nor little Seal Iustice shall be delayed yet when the matter concernes the King onely if he command it it may be stayd F. N. Br. 21. b. 27 H. 8. A Tenure may be created at this day by consent of all notwithstanding the Statute of quia emptores terrarum 6 E. 6. Dier 78. By special consent of the Parties re-entry may be for default of payment of Rent without demand thereof 〈◊〉 by conâ— none 6 In a writ of Error to reverse a fine Co. l. 5. 45. b. Gages Case the Error assigned was for that the writ of Covenant bare Teste the 24 of April returnable 15 Paschal which in truth was 15 of April and so returne before the Teste And it was resolved that per totam Curiam that it should be amended because fines and common recoveries are but common assurances had by the mutual consent of the parties and therefore such mis-prisions may be amended Howbeit in other actions no amendment shall be in such Case So in 18 El. inter Norreys and Braybrooke A writ of Error was brought to reverse a recovery in 19 H. 8. and the Teste was a day after the return neverthelesse because it appeared to be but a mistake of the Clerke and was in the Case of a Common recovery which passeth by consent it was amended Co. l. 6.
seisin or Rent although it shall not enure by way of satisfaction yet it shall give sufficient seisin to an Assise or other remedy for the Rent For the 2 if the Rent be payable at Easter in that Case if the Tenant pay the rent in the morning and the lessor die two houres before noone of the same day this payment was voluntary and yet is good satisfaction against the heire but not against the King 44 E. 3. 3. As to the third the legal time is a convenient time before the last instant of the day and is the most extreme time and is satisfactory and not coercive for until the end of the day no remedy by Law is given 21 H. 6. 40. As to the fourth that is when the Rent being due and arreare is recovered by order of Law and this is satisfactory but coercive withall concerning all which several times the Poet saith Judicis officium est ut res ita tempora rerum Quaerere quaesito tempore tutus eris 12 Vide 183. 1. Dier 354. 32. 19 El. 13 A. levies a Fine to B. to the uses in a certain indenture mentioned wherein there is a proviso Notice of pâ—ment that if A. pay or tender 20 l. during his life to B. at the Font-stone of the Church of Sarum that it shall be to the use of A. in Fée In this Case because no day is limited the tender will not be to purpose unlesse A. give notice to B. when he will pay it to the end B. or his Assignée may be there to receive it 133 The third offence is esteemed most heynous 2 E. 4. 1. 1 The third writ not returned by the Sheriffe is a contempt Sheriffes returne where an attachment lieth Finch fol. 10. b. 134 The place also ought to be convenient Litt. §. 180. Co. Inst p. 1. 120. a. 1. 1 If a Villain purchase an Advowson full of an Incumbent At the Chuâ— the Lord may immediately come to the Church and claime the Advowson and by this claime it vests presently in him because if he should stay till an avoydance the Villein might alien the Advowson and so out the Lord of his presentment And in this Case albeit the Advowson is a thing incorporeal and not visible yet because the principal duty of the presentée of the Patron is to be done in the Church the claime of the Villains Lord must be made there and by that claime the Inheritance of the Advowson shall be vested in the Lord For every claime or demand to devest any Estate or Interest must be made in the place which is most apt for that purpose Co. ib. 153. a. 4 b. 3. 201. b. 4. Litt. §. 341. 2 When Rent is issuing out of Land and no place limited Upon the land at which it shall be payd the land is the debtor and the Rent must be demanded upon the land howbeit if there be house and land a demand upon the land is sufficient unlesse it be for a Condition broken for then it ought to be at the house Co. ib. 201. b. 1 3 If the King maketh a lease for yeares rendring a Rent payable at his receipt at Westminster The like and after the King granteth the reversion to another and his heires In this Case the grantée shall demand the Rent upon the land and not at the Kings receipt at Westminster For as the Law without expâ—esse words doth appoint the Lessée in the Kings Case to pay it at the Kings receipt so in Case of a subject the Law appoints the demand to be on the land Co ibidem 15 El. Dier 329 4 If there be a house upon the land Fore-door the Rent must be demanded at the house and that not at the back-doore but at the fore-doore thereof because the demand must be ever made at the most notorious place and it is not material whether any person be there or no and albeit the Feoffée or Lessée be in the hall or other part of the house yet the Feoffor or Lessor néed come no farther then to the fore-doore for that is the place appointed by Law although it be open â— Wood. 5 If a Feoffment be made of a Wood onely Co. ib. 202. a. 1. and Dyer ibid. the demand must be made at the gate of the Wood or at some high way leading through the Wood or other most notorious place 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 Et sic de similibus â—void deâ—and 6 If the Feoffor demand the rent on the ground at a place which is not most notorious as at the back Doore of a House c. Co. Inst p. 1. 202. a. 1. And in pleading the Feoffor alledge a demand of the rent generally at the House the Feoffée may traverse the demand and upon the Evidence it shall be found for him for that such a demand is void and indeed no demand at all 〈◊〉 another â—lace 7 If rent be reserved to be paid at any place from the land Co. Ibid. yet it being in Law a rent the Feoffor or Lessor must demand it at the place appointed and agréed upon by the parties observing the former Rule concerning the most notorious place â—t any place 8 When the Feoffée or Lessée are absent Co. ibid. a. 28 then the most notorious place is to be observed as hath béen said before But if the Feoffée commeth to the Feoffor at any place upon any part of the ground at the day of payment and offer his rent Albeit they be not at the most notorious place nor at the last instant of the day yet the Feoffor is bound to receive it or else he shall not take any advantage of any Demand of the Rent for that Day â—aim of a Remainder 9 Claim of a Remainder by force of a Condition ought to be upon the Land Co. l. 2. 54. a. 2 and a Claim thereof made out of the Land is not sufficient So if a Villain purchase a Reversion the Claim of the Lord ought to be upon the Land Sée Littl. fol. 40. and the Book in 15 Ass Pl. 12. is good Law that a Distresse upon the Land after the Condition broken amounts to a Claim of the Seigniory unto which it was annexed â—xre actions â— to be â—aght 10 A. recovers 20 l. against B. Co. l. 7. 1. Bulwers Case Vide Ho. 195. Hall Winkfield in the Common Pleas by Action laid in Norfolke and dies C. in the Name of A. upon the judgment before Execution out-lawes B. in London and afterwards takes him upon a Capias Utlagatum in Norfolke and imprisons him there two Moneths Hereupon B. brings his Action of the Case against C. in
Norfolke and counts that to out-law him Maliciosè de captivè machinatus est And the doubt in this Case was whether or no the Action of the Case were rightly laid in Norfolke or should have rather béen laid in London where the Out-lawry was had which caused the imprisonment and a forfeiture of all the Goods of B. But it was resolved that it was well laid in Norfolke because the first Action was brought there and there also was the visible tort viz. the Imprisonment For it is a Maxime in Law Quod ibi semper debet fieri triatrem ubi Juratores meliorem possunt habere facti notitiam When matter in one County dependeth upon matter in another County the Plaintiff hath Election to bring his Action in which of the two he pleaseth except the Plaintiff upon the general issue pleaded may be prejudiced in his trial as if two conspire in one County to indict another in another County and do it an Action may be brought in either Howbeit if any other but the Conspirators indict him it shall be brought where the Conspiracy was If Manasse be mad in Essex whereby my Tenants recide in London I shall have my Action in Essex and not in London for I have nothing in London If an action be founded upon two things material and traversable in two several Counties an Action may be brought in either of them An Annuity granted in one County to be paid in another the action shall be brought where the Grant was He that is robbed may have an Appeal of Felony for it in every County where the Goods but an Appeal of Robbery will lye onely where the fact was done a Lease for yeares made in one County of Land in another Debt shall be brought where the Lease was made and waste also where the Land lyeth Every Action which concerns the life of a man shall be brought where the offence was committed Every issue which ariseth upon an action in which Land shall be recovered shall be brought where the Land lyeth as in right of Ward of Land or Body intrusion of Ward forfeiture of Marriage valore maritagii and Quare Impedit But Ravishment of Ward where the Ravishment was and a Quare non admisit where the refusal was Before the Statute of 7 R. 2. cap. 10. An Action for Land in divers Counties or for Common in one County appendant to Land in another was brought by several Writs n both Counties but since that Statute by on Writ in Confinio Comitatum A per que servitia shall be brought where the note of the fine was levied Dier 46. 8. 31 H. 8. 11 At the Common Law if a man had been wounded in one County and had died in another The Venire where the Venire to try the Issue should have been out of both Counties except in London and Middlesex because such a Iury there could not joyne and in such case the Issue was onely tryable in the K. B. but this Law is altered by 2 3 E. 6. 24. Dyer 38 50. 29 H. 8. 12 An appeal was brought against two accessaries for abetting in London to a Robbery committed in the County of Wilts Appeal wheâ— brought and the appeal was brought in the County of Wilts but by the better opinion it séemes it ought to have béen brought in London where the Abetment was because the Iury there might have best notice thereof but this is now also setled by 2 3 E. 6. 24. Dyer 51. b. 18. 33 H. 8. 13 If a man maks a Lease for yeares rendring rent Demand of rent and if the rent be behind by the space of a Moneth after the day of payment that then the term shall cease In this case if the rent is reserved to be paid at some place out of the Land upon failer of payment or due tender of the rent at that place the Lessor may enter without making any Demand upon the Land but if the rent were payable upon the Land or no place named where it should be paid upon such failer the Lessor cannot enter without demanding the rent upon the Land because the rent is payable there of right Co. l. 5. 83. b. in the Case of Market overt 14 If Plate be stolne and sold openly in a Scriveners Shop upon the Market day for every day in London is Market day Market overâ— except Sunday such Sale shall not alter the property but the party shall have restitution for a Scriveners Shop is not a Market overt for Plate because none will look there for any such thing Et sic de similibus c. but if the Sale had béen openly in a Goldsmiths Shop in London so as every one that should stand or passe by the Shop might have séen it such sale shall alter the property Howbeit if such Sale be in a Goldsmiths Shop behind a curtain hanging cubbord in a Ware-house or some other part of the House So as passengers cannot observe it such Sale shall not alter the property for such places are no Market overt And observe that the reason of this case extends to all the Markets overts in England Vide Max. 186 32. 191 3. Dyer 270. 25. 10 Eliz. 15 In Debt upon an Obligation to perform Covenants brought in London the Issue was Place of triaâ— whether or no the Defendant was verus possessor of certaine Lands in the County of Bedford at the time of the Indenture and it was the opinion of the Court that the most apt place for that trial was in Com. Bedford and not in London Vide Dyer 305 58. Trial in Ireâ—â—nd 16 If a Peer of Ireland commit Treason in Ireland Dyer 360. b. 20 Eliz. he cannot be tried in England by the Statutes of 26 H. 8. 13. 35 H. 8. 2. 5 6 E. 6. 11. for he is not a Subject of England but of Ireland and the trial in Ireland is by Parliament and not per Pares â—ender of â—ent 17 If a Rent be reserved upon a Lease Hob. 8. Bakers Case and the Lessee bound by Obligation to pay it In this Case the Lessée is bound to pay it without demand Howbeit he is not bound to seek the Lessor but to tender it onely upon the Land for he hath bound himself to pay it but still as a Rent and at the place which the Law assignes â—â—bt for Arâ—arages 18 In Debt brought by an Executor for Arrearages of a Rent-charge due in the life of the Testator Hob. 37. Pines Case the action ought to be brought in the County where the Land lyeth out of which it issueth 19 Vide Hob. 78. Don Diego c. concerning Causes triable in the Admiralty c. 79. Palmer against Pope Maximes of Reason taken out of Morality 135 The Law favoureth Charity â—â—nder by any 〈◊〉 an Ideot 1 Vpon a Mortgage if the Mortgageor die Co. Inst p. 1. 206.
it out of her and so to revive the discontinuance and revest the wrongful Estate in the discontinuée because Remitters tending to the advancement of ancient rights are very much favoured in Law so likewise if lands be given to a man and the heires females of his body and he maketh a feofment in Fée and taketh back an Estate to him and his heires and dieth having issue a Daughter and leaving his wife Grossement enseint with a Sonne in this Case also the Daughter is remitted and albeit the Sonne be afterwards borne he shall not revest the Remitter Litt. §. 678. Co. ib. 357. a. 3 20 If the Baron discontinue the land of the Feme The like and the discontinuée is disseised and after the disseisor demiseth the land to the Baron Feme for term of their lives this is a Remitter to the Feme for Remitters that restore ancient right are so much favoured in Law that the Estate made by the disseisor who cometh to the land by wrong and upon whom the entry of the discontinuée is lawful doth remit the wife and devesteth all out of the discontinue albeit he hath a warranty of the land Litt. §. 693. Co. ib. 363. b. 1 21 When the entry of a man of full age is congeable Right of entry if he take an Estate of the land for life in taile or in fée he is thereby remitted unlesse it be by Indenture matter of record or otherwise whereby he may be concluded or estopt It is otherwise where he hath but right of action for in that Case by taking such an Estate she shall not be remitted and so observe a diversity betwixt right of action and right of entry when his entry is lawful Co. l. 3. 86. a. 4. in the cases of Fines Iustice Windams Ca. 22 Where alienation was made in mortmaine 17 E. 3. 7. El. 20. Tenant not compellable to attorne A fine is levied of land holden in ancient demesne 31 E. 3. Tit. Ancient demesne 16. an infant levied a fine 36 H. 6. 24. Pl. 19. A fine levied of the reversion of land holden in Capite without licence 45 E. 3. 6. or where Tenant in taile of a reversion or remainder before the Statutes of fines 4 H. 7. 32 H. 8. had levied a fine thereof in all these cases and the like the Tenant was not compellable to attorn because the Estate that passed by the fine was not lawful but either prohibited by the Common Law or by some Statute and for the most part were voidable Co. l. 4. 26. a. 4. in the Copihold cases in Melwiches Case 23 The Lessée of a Copi-holder An Ejectione firmae gâ—anted to a Copiholder for a yeare may maintaine an Ejectione firmae for in as much as his term is warranted by the Law by force of the general Custome of the Realme it is reason that if he be ejected he should have an Ejectione firmae for that it is a spéedy course for a Copi-holder to gaine the possession of the land against a stranger being no more then what right requires to be yielded unto him for the recovery of his Estate Co. l. 5. 28. a. in the cases of Executors in Middletons Case 24 An Executor before probat may release an Action Release by Executor before probat good albeit before probat he cannot bring an Action because of the right of Action that is in him at the Common Law it is otherwise of an Administrator for if A. release and after take administration this shall not barre him for the right of Action was not in him at the time of the release made Vide 18 H. 6. 43. b. Greysbrockes Case Plowd 277 278. 21 E. 4. 24. To Executors prove the will and the third refuseth yet he may afterwards release for the ancient right that remaines in him Litt. fol. 117. If one be bound to pay a summe at the day to come before the day he cannot bring an Action of debt yet a release of all actions before the day barres him because of the present right and duty that he then had in him Co. l. 6. 1. b. in Bruertons ca. 25 If a man hold land by the service of ayding the Sheriffe Tenure for Justice not extinct or to be High-Constable of England which are for the advancement of Iustice for the determination of divers cases belong to the Court of the Constable and Marshal and the Sheriffe is a Minister of Iustice or if the tenure be ad custodiendum Recorda Domini Regis as the Abbot of St. Barthelm in Smithfield held as appeares in the Records of the Tower in 7 R. 2. membr 15. in Dorss in these and the like cases if the Lord purchase parcel of the tenancy yet the whole service remaines quia ista concernunt administrationem Justitiae Co. l. 6. 62. a. 3. in Catesbies Case 26 In Catesbies Case in the 5 Rep. the single point in question was A yeare for laps whether the six moneths of laps to give the Bishop power to collate should be accounted by 28 dayes for each moneth or by the halfe yeare and one of the reasons there alleadged for the account by the halfe yeare was this when a computation in such case is ambiguous it is always requisite to determine it for the reliefe remedy of him that right hath viz. of the Patron and for the preservation of his right to allow him the longest time of the two to the end he may not lose his right 〈◊〉 â—5 H. 8. 6 27 Vpon the Stat. of 35 H. 8. 6. to return a Tales Co. l. 10. 103. b. 2 in Alfrid Denbawds ca. albeit the title thereof is usually decem Tales yet the Sheriffe although there be but one Iuror appeare or all be challenged but one may at first return 11 to that one because it is for the spéeding of trials and that Statute being ordained for the furtherance and advancement of expedition in Iustice shall have a benigne and favourable interpretation â—â—ssisee 〈◊〉 28 If a man be disseised of a Mannor F.N.B. 33. q. to which an Advowson is appendant and the Advowson happen to be void the disseisée may present and have a Quare Impedit albeit he hath not entred into the Mannor by reason of the ancient right that is in him â—â—ers â—â—owson 29 If a man traverse an Office found of a Mannor F.N.B. 34. p. to which an Advowson is appendant and upon the traverse the King demiseth the Mannor to him without making any mention of the Advowson and after the Church is void here he that tenders the traverse shall have the presentment if the traverse be found for him â—â—â—ntment de Bishop 30 If a man recover an Advowson and the six moneths are past F.N.B. 38. f yet if the Church be void the Patron may pray a writ to the Bishop and shall have it and if the
350. if he may enter he must enter and when he cannot enter he must make a claime for that a Freehold and Inheritance shall not cease without entry or claime And yet if Land be granted to a man for terme of five yeares upon condition that if he pay the Grantor within the first two yeares fourty pounds that then he shall have fee or otherwise but for the terme of five yeares and livery of seisin is made unto him by force of the Grant In this case if the Grantee pay not unto the Grantor fourty pounds within the first two yeares then immediately after the first two yeares the Fee and Frank-tenement shall be adjudged in the Grantor without entry because the Grantor cannot presently after the two yeares enter upon the Grantee Co. ibid. 21 a. 4. for that the Grantee hath yet a terme of three yeares in the Land and in as much as hee cannot enter hee shall not be driven to make any claime to the Reversion For seeing by construction of Law the Freehold and Inheritance if the Condition had beene performed was to passe Maintenant out of the Lessor by the like construction the Freehold and Inheritance by the default of the Lessee shall be revested in the Lessor without entry or claime There is the same Law of a Grant by Devise Lease and Release Bargaine and Sale by Deed indented and inrolled c. or whether it be of an Advowson Reversion Remainder Rent Condition or any other thing that lyes in Grant Feme recovered without Baron 53. The Husband is the Wives head Co. ibid. 352. b. 4. Litt. S. 668. and regularly shee can do nothing without him and yet in an action of Waste if the Baron make default to the great Distresse the Feme upon prayer shall be received and shall shew the whole matter and how shee is in her Remitter and shall barre the Lessor of his Action And albeit this priviledge be given the Feme by Westm 2. cap. 3. yet ancient Authors who wrote before that Statute do speake of such a kinde of receipt at the Common Law for otherwise the Feme would be without remedy Judgement upon a dead â—an 54. It seemes irregular Co. ibid. 390. b. 4. that Iudgement should be given upon a man already dead And yet in 8 Ed. 3. Judgement 225. the Defendant in an appeale of death did wage Battell and was slaine in the Feild yet Iudgement was afterwards given that he should be hanged and the Iustices sayd such Iudgement was necessary because otherwise the Lord could not have a Writ of Escheate and so would be without remedy Co ibid. 393. a. 4. 55. Regularly Two Recoveries upon one warranty there cannot be two recoveries in value upon one warranty and yet in some speciall cases rather then a man shall be without remedy there shall be two such recoveries for if a disseisor give lands to the Husband and Wife and to the heires of the Husband the Husband alieneth in fee with warranty and dyeth the Wife bringeth a Cui in vita the Tenant voucheth and recovereth in value if after the death of the Wife the Disseisee bring a Precipe against the Alienee he shall vouch and recover in value againe Co. l. 8. 61. a. 3. in Beechers case 56. In all actions reall and personall No amerciament against the Plaintiff if part be found for the Demandant or Plaintiff and part against him or all or part against the one Tenant or Defendant and nothing or but part against the other the demandant or Plaintiff shall be amerced Howbeit in Trespasse of Battery against Baron and Feme supposing the battery to be done by them both and the Feme is onely found guilty c. and the Baron acquit yet in this case the Plaintiff shall not be amerced because the Plaintiff in such case can have no other Writ and therefore he shall be excused Vide Max. 149. 41. 57. Vide 143. 15. Dyer 8. a. 28. H. 8. Pl. 11. 16. 58. In a Writ of Ward the Writ supposeth that B. held the land c. Variance inter writ and count no error and the Count declareth that B. was but Cestuy que use so as the Feoffees held the land and not B. Here this variance is no Error because the Statute of 4 H. 7. which gives the wardship of Cestuy que use appoints no speciall Writ for it and therefore the generall Writ and speciall Count suffiseth for otherwise the Lord should be without remedy which the Law will not permit So in a Warrantia Cartae the words of the Writ are Unde cartam habet and yet the Count may be upon warranty for Homage Ancestrel Dyer 56. 17. 35 H. 8. 59. A Writ of Right Quia Dominus remisit Curia Feme Covert c. was brought by Baron and Feme the Feme being under age the Feme appeares by Procheine amie who was admitted by the Court and upon the Tenants voucher and default of the Vouchee shee had judgement finall c. without her Husbands appearing in the action Vide supra 10. Dyer 206. 11. 3 4. Eliz. 60. A man makes a Lease for yeares to begin at a day to come Waste and before the day the reversion is granted over divers times afterwards the Termor enters and makes waste and the fourth Assignee bring waste and counts of the assignment and tenure of each of them to whom the Land came after the Lease albeit there was no tenure before the commencement of the Lease and it was held good and so it is also in the Regester Hob. 3. Pincombes case 61. Albeit regularly a warranty ought onely to be annexed to a freehold and not to any lower estate Warranty is a covenant yet when the breach or impeaching is not of a Freehold but of a chattell Viz. of a Lease for yeares for which there can neither be Voucher Rebutter nor Warrantia Cartae an action of Covenant may be grounded upon such a Warranty As if A. demiseth the Monnor of D. to B. for one and thirty yeares and afterwards grants it to C. in possession for life with warranty against him and his Ancestors C. may bring an action of Covenant upon that Warranty and shall recover damages thereupon See the Book at large Hob. 48. Coxes case 62. Lands in Ancient demesne where the possession is stirred Ancient demesne cannot be recovered but within their owne Franchise or Iurisdiction and this is regularly true yet actions at the Common Law upon which no remedy can be had in ancient demesne do lye in the Kings Court though they stir the possession as in a Quare impedit 7 H. 6. 35. because they cannot write to the Bishop And the reason is because the Common Law being as ancient as their priviledge is will not endure that by pretence of Priviledges there should be a Failer of Originall Right as that
case is Howbeit of new rights or remedies brought in by Statutes which are not presumed to intend their prejudice it is otherwise 146. It hateth Wrong Disparagement of the heir punished 1. Co. Inst pars 1. 80. b. 2. The Law doth hate and abhorre the odious and corrupt dealing of any man and never lets it go unpunished And therefore in case of a Ward where he is disparaged by his Guardian the Law doth so abhorre the odious dealing of the Guardian to whom the custody of the Heire is committed and his horrible profanation of honourable Marriage the onely ligament of mens Inheritances that albeit â—he Heire at the age of fourteen may discent to it and so dissolve it by such his disagreement yet the Law inflicted upon the Guardian for his attempt the losse of the wardship from such disagreement according to the Statute of Merton cap. 6. being but an affirmance of the Common Law No breaking of Inclosures for rent 2. If a Lord of a Mannor or c. Co. ibid. 161. a. 3. come to his Tenants land to distraine for rent arreare and he finds the doores or gates shut so that he cannot take the Tenants goods or cattell without breaking open the doores gates or other inclosures In this case albeit the Law gives him power to distraine it doth not licence him to break open any doores gates or other inclosures to distraine for by so doing he becomes a wrong doer Howbeit if he were before actually seised of the rent if they be shut on purpose to prevent him to distraine it amounts to a disseisin of the rent A Disseisor â—ay be no Tenant of the Land 3. If diverse persons disseise another to the use of one of them Co. ibid. 280. b. 3. or of another that assents in this case albeit he onely to whose use the disseisin is made is the sole Tenant of the land yet the Law doth so abhorre wrong that the Coadjutors Councellors Commanders c. thereunto are all Disseisors and therefore albeit the Tenant whether he be a Disseisor or no dye yet an Assise lyeth against the Coadjutor Councellor Commander c. 50 E. 3 2. The Demandant and others in a Precipe did disseise the Tenant to the use of the others and the Writ did not abate for the Demandant was a Disseisor though not Tenant of the land but onely a Coadjutor and therefore an Assise lyeth against him in respect of the wrong done by him as aforesaid A man disseiseth Tenant for life to the use of him in the reversion and after the Reversioner agreeth to the disseisin In this case it is sayd That the Reversioner is a Disseisor in fee because by the disseisin made by the stranger the reversion was devested which say they cannot be reversed by the agreement of the Reversioner for that makes him a wrong doer and therefore no relation of an estate by wrong can helpe him Release to one Disseisor 4. A man seised of Lands is disseised by two Litt. S. 306. Co. ibid. 194. a. 3. Litt. S. 472. S. 522. and releaseth all his right to one of the Disseisors in this case the Releasee shall hold out his companion because the two Disseisors being in by wrong and against the Law when one of them hath a lawfull interest by the release of the Disseisee the wrong vanisheth and is utterly extinct for the Releasee being seised per my per tout is thereby capable of the whole estate It is so also of two joynt Abators or Intruders which come in meerely by wrong for by operation of Law presently upon the delivery of the Release the whole Freehold and Inheritance is vested in the Releasee and all the estate that the other Disseisor Abator or Intruder hath who hath devested because right and wrong cannot consist together but the wrongfull estate giveth place to the rightfull Vide 141. 13. Co. ibid. 239. a. 1. 5. No estate gained by wrong makes a degree An estate by wrong in degree whereupon to ground a Writ of Entry in the per cui but it ought to be upon a lawfull descent or alienation And therefore an Abatement intrusion or disseisin upon disseisin make no degree Co. ibid. 245. a. 4. 6. If an Infant make a Feoffment in fee By entry of a stranger an estate gained by wrong devested a stranger of his owne head cannot enter to the use of the Infant for the estate is upon lawfull conveyance though voydable but where an Infant or a man of full age is disseised an Entry by a stranger of his own head is good and vesteth presently the estate in the Infant or other disseisee So if Tenant for life make Feoffment in fee albeit that be a lawfull Conveyance yet because such a Feoffment is a wrong to the Reversioner by the Entry of a stranger of his own head for a Forfeiture in the name of the Reversioner the estate shall be immediately vested in the Reversioner Co. ibid. 257. b. 1. 7. In a Writ of forcible Entry upon the Statute 8 H. 6. 9. Treble costs by the Stat. of 8 H. 6. cap. 9. Albeit the Statute gives onely treble damages to the party greived yet he shall also have treble costs allowed him if he recover for although the Statute be penall and in that respect should be favourably expounded yet in as much as it is a wrong of a high nature treble costs are also interpreted to be given by it Co. ibid. 278. b. 2. 8. If an Alien be a Disseisor and obtaine Letters of denization Aliens feoffment not good and then the Disseisee releaseth to him in this case the King shall not have the Land for the release hath altered the estate and it is as it were a new lawfull purchase It is otherwise if the Alien had been the Feoffee of a Disseisor for in such case he claimes under one that gained the estate by wrong Litt. S. 697. Co. ibid. 365. a. Co. ibid. 366. b. 2. Litt. S. 698. Co. ibid. 366. b. 367. a. 9. Before the Statute of Glocester cap. 3. 6 E. 1. Warranty commencing by disseisin abatement or intrusion no barr All legall warranties both lineall and collaterall were a bar to the heire but at the common Law before that Statute warranties that did commence by disseisin were never any bar to the heire because they did commence by tort viz. by disseisin For regularly the Conveyance whereunto such warranty is annexed doth worke a disseisin As if the Father or other Ancestor be Tenant of the Sons or Heires Land for years at will by Elegit Statute-merchant or Statute-staple and the Father or other Ancestor makes a Feoffment in fee of the Land to a stranger with warranty this warranty shall not bar the Heire unlesse he have other Lands that may be assets by descent from the same Father or other Ancestor respectively in all which
transferred and the Law will not in this case suffer the Disseisor to have it because right and wrong cannot cohabit together and therefore it shall rather extinguish So likewise if the Disseisee disseise the heire of the Disseisor here he gaines the estate by wrong viz. by Disseisin having the ancient right in this case if he make Feoffment in fee to another he thereby passeth away the estate which he gained by Disseisin and extinguisheth his ancient right so that the heire when he re-enters shall retaine the Land as well against the Feoffor as against the Feoffee A Disseisor â—â—e onely â—â—ong-doer 20. If a Disseisor make Feoffment in fee Co. l. 11. 51. a. 4. in Rich. Lifords case and the Feoffee cuts down Trees Grasse grain growing upon the ground c. if the Disseisee re-enter he shall not have an Action of trespass vi armis against the Feoffee that came in by title so it is also if he had made a gift in tail or a lease for life or years of the Land because they come in by title but in such case the Disseisee shall recover all the meane profits against the Disseisor as the Disseisee in such cases should have recovered damages against the Disseisor in an Assise at the common Law before the Statute of Glocester cap. 1. There is the same Law also if the Disseisor be disseised an Action of Trespasse doth not lye against the second Disseisor for he may come in by title and if he should be charged he might then be doubly charged viz. both by the Disseisee and also by the first Disseisor and this fiction of Law that the Frank-tenement hath alwayes continued in the Disseisee which ought to be the ground of the Action of Trespass shall not have relation to make him that comes in by title or upon a second Disseisin to be a wrong-doer against whom an Action of Trespass may be brought Howbeit if one disseise me and during the Disseisin he cuts down the Trees Grass graine c. and after I re-enter in this case I shall have an Action of Trespass vi armis against him for the Trees Grass Graine c. for after my regress the Law by fiction as to the Disseisor and his Servants supposeth that the Frank-tenement hath alwayes continued in me and he onely by construction of Law shall be adjudged the wrong-doer which fiction cannot extend to him that comes in by title or upon a second Disseisin c. Co. l. 11. 72. b. 4. in Magdalen Colledge case 21. The Statute of West 2. cap. 5. The King bound The law preserves right Quod quotiescunque aliquis jus non habens tempore hujusmodi custodiarum c. presentaverit c. which was made to suppress wrong shall bind the King And therefore it is well said in 24 E. 3. 41. That the Law is reason and equity to doe right to all and to preserve men from wrong and mischeif for the Law will never make construction against Law Equity and Right Pl. Co. 64. b. 3. â—in Dive and Maninghams case 22. Albeit the Statute of 23 H. 6. 10. Obligation made to defend one for a wrong void which prohibits Sheriffs to take security of persons taken in execution to the end to let them goe at large had not been made yet a Bond had been void at the Common Law For such a Prisoner by the Common Law is not main parnable and then the letting of him goe at large by Mainprise is a wrong and a thing done against the Law and by consequent the Obligation is made to ayde the Sheriff for a wrong done by him in which case even by the order and course of the Common Law the Obligation is void So if an Obligation be made to save one harmless for killing such a man or to commit such a Trespass c. in such cases the Obligation is void by the Common Law And therefore if the Plaintiff in a Replegiare hath a Withernam out of the Common Pleas by force whereof one of the Sheriffs Bayliffs takes foure beasts in the name of Withernam and after delivers them againe to the Defendant and the Defendant is bound to save the Bayliff harmless for the fource beasts who afterwards being damnified brings his Action of debt upon the Obligation In this case as it held by the better opinion in M. 2. H. 4. fol. 9. Fitz. Obligation 13. and Br. 20. the Obligation is void for the Writ of Withernam is Capias in Withernam c. et ea detineas quousque c. so as the Sheriff ought to have kept the Cattell and not to have delivered them to the party for that was a wrong and therefore the Obligation made to defend him for that wrong is void 147. So as none shall take benefit or advantage of their own wrong Litt. S. 19. Co. Inst pars 1. 23. a. 3. 1. Vpon a gift in tail the Rule of Law is Tenure by Knight-service that the Donees and their issues shall do to the Donor and his heires such services as the Donor doth to his Lord Paramont And yet if a man seised in right of his wife of Land holden by Knight-service in tail that Land generally the Donee shall not hold of him by Knight service because his wife held the land and he had nothing but in her right and in that case the Baron having gained a new Reversion by wrong shall not take advantage of his owne wrong but such a Donee shall only hold by Fealty which is incident to all tenures Rent-charge apportioned 2. Regularly a whole Rent-charge is extinct by the purchase Co. ibid. 148. b. 4. or otherwise gaining of the Possession of part of the Land out of which it is issuing And yet in some cases a Rent-charge shall not be wholely extinct where the Grantee claimeth from and under the Grantor As if B. maketh a Lease for life of one Acre to A. and A. is seised of another Acre in fee A. granteth a Rent-charge to B. out of both the Acres and doth waste in the Acre which he holdeth for life B. recovereth in waste In this case the whole Rent is not extinct but shall be apportioned and yet B. claimeth the one Acre under A. and the reason hereof is for that no man shall take advantage of his own wrong Nullus commodum capere potest de injuria sua propria for seeing the waste was committed by the act and wrong of the Lessee he shall not take advantage thereof to extinguish the whole Rent And the whole Rent cannot issue onely out of the other Acre because the Lessor hath the one Acre under the estate of the Lessee and therefore in such case it shall be apportioned So it is also if A. had made a Feoffment in fee and B. had entred for the Forfeiture in that case also the Rent shall be apportioned and not wholely extinct causa qua
descent cast because then his drunkennesse would be an advantage to him or his heir which ought not to be but doth aggravate his offence he being indeed to be reputed rather Voluntarius Daemon then non compos mentis Profession makes no descent 14. Profession in Religion shall not make a descent to take away Entry because it is the Disseisors owne act Litt. S. 410. Co. ibid. 248. b. 4. whereof neither he nor his heire shall take advantage So if a man be Tenant or Defendant in a reall or personall Action and hanging the Suit the Tenant or Defendant entreth into Religion by this the Writ shall not abate Causa qua supra there is the same Law of a Resignation c. but not of a Deposition or Deprivation because he is expelled by Iudgement and yet his offence c. was the cause thereof Sed in presumptione legis Judicium semper redditur indivisum Baron and Feme waste 15. If Land be given to a Feme sole for life Litt S. 525. Co. ibid. 299. b. 3. and after shee take Baron and the Reversioner confirmes the estate of the Baron and Feme to hold for their two lives here the Baron hath an estate for life in the Land by way of Remainder as Littleton termes it S. 525. or as others call it by way of Reversion but however it enures to him by way of encrease or inlargement of estate or otherwise he is seised of an estate for life in the Land And yet in this case if the Husband commit waste an Action of waste shall lye against Husband and Wife notwithstanding the meane Remainder because the Husband himselfe committeth the waste and doth the wrong and therefore shall not excuse himselfe for his committing of waste in respect he himselfe hath the Remainder no more then if a man leaseth to A. during the life of B. the Remainder to him during the life of C. if he commit waste an Action of waste shall lye against him Forfeiture 16. A. Tenant for life the Remainder to B. for life Co. ibid. 302. b. 3. the Remainder in tail the Remainder to the right heires of B. A. and B. joyne in a Feoffment by Deed here albeit it may be said that this is the Feoffment of A. and the confirmation of B. and consequently he in the Remainder in tail cannot enter for the forfeiture during the life of B. yet because B. joyned in the Feoffment which was tortious to him in the Remainder in taile and is particeps criminis they have both forfeited their estates and he in the Remainder in tail shall enter for the forfeiture Covin with a Diseisor on â—â—mitter 17. If the Baron discontinue the Land of the Feme Litt. S. 678. Co. ibid. 357. b. 2. and the Discontinuee is disseised and after the Disseisor lets the Land to the Baron and Feme for life in this case the Feme is remitted albeit the Baron were in this case of covin with the Disseisor but if the Baron and Feme were of Covin that the Disseisin should be done in that case the Feme is not remitted for she shall not any way take advantage of her own wrong So if Tenant in tail and his issue disseise the Discontinuee to the use of the Father and the Father dyeth and the Land discendeth to the issue In this case the issue is not remitted against the Discontinuee in respect he was privy and party to the wrong whereof therefore he shall not take any advantage but in respect of all other he is remitted and shall deraigne the first warranty Covin 18. A. and B. Ioynt-tenants are entitled to a reall Action against the Heire of the Disseisor A. causeth the heire to be disseised Co. Inst pars 1. 357. b. 3. against whom A. and B. recover and sue execution In this case B. is remitted for that he was not party to the Covin and shall hold in common with A. but A. is not remitted because he was of Covin and shall not take advantage of his own wrong Condition broken by demise 19. A. deviseth Land to his Wife Co. l. 1. 25. b. 3. Porters case upon Condition that shee convey them in convenient time to certaine persons in trust for the maintenance of a Free-schoole the Testator dyes and his Wife demised the Land to a stranger for yeares in this case the Condition is broken and the next Heire shall enter because by the demise shee hath disabled her selfe to convey them according to the Condition viz. in the same plight she had them and therefore shall not take advantage of her own wrong Co. l. 3. 29. b. 4. in Butler Bakers case 14 H. 4. 38. 1 H 5. Tit. Grants 43. 20. If Donee in tail make a Feoffment in fee in this case Donee still Tenant after discontinuance the Donee hath neither Jus in rei veritate nor Jus ad rem for by his own act he hath departed with all the estate that was in him and yet after this the Donee may extinguish or diminish his rent by release or confirmation made to him by the Donor because as to the Donor the Donee shall still remaine Tenant and of necessity for the rent the Donor shall avow upon the Donee for he cannot avow upon the Discontinuee because then by his own shewing the Reversion to which the rent is incident should be deâ—ested out of him by the Feoffment and by consequent he could not then maintaine his Avowry for the rent and therefore of necessity he shall avow upon the Donee notwithstanding he hath devested himselfe of all his estate for it is no reason that the Feoffment which is the Donees own act and by which wrong is done should availe the Donee to bar the Donor of his rent for then the Donee that made the discontinuance should take advantage of his own wrong Co. l. 3. 44. b. 2. in Baytons case Co. l. 3. 52. a. 4. in Rigewayes case 21. If one in execution escape of his own wrong be re-taken Escape of Prisoners he shall not have an Audita Querela to discharge himselfe of his Imprisonment because he shall not take advantage of his own wrong and in such case it is lawfull for the Gaoler to re-take him in what place soever he finds him And albeit the Prisoner in the pursuit be out of view at the turn of a corner or the like yet the Sheriff or Gaoloer may re-take him and although it be in places without their jurisdiction but the Plaintiff may bring an Action against the Sheriff before he can re take him and he shall be answerable for an escape albeit the Sheriff re-take him afterwards Howbeit the Sheriff may then justifie to retaine the Prisoner untill he save him harmlesse from the Plaintiffs Action or may bring an Action of Trespasse upon the case against him for the damages he shall suffer by the Plaintiffs
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
588 589. Co. ibid. 323. b. 3. 3. If my Tenant who payes me a Rent-service in grosse Rent paid to a stranger atturnes and payes it to a stranger this shall not put me out of possession of the Rent albeit the stranger die and a Descent is cast for still I may distraine my Tenant for all in arreare and Nemo redditum alterius invito Domino precipere aut possidere potest Release of warranty 4. If one enfeoff two with warranty Co. ibid 393. a. 1. and the one release the warranty yet the other shall vouch for his moyety A Donative 5. If the Patron of a Church Prebend Chantery Chappell c. Co. ibid. 344. a. 2. Donative doth once present to the Ordinary and his Clerk is admitted and instituted it is now become presentable and shall never be Donative after and then also Laps shall incur to the Ordinary as it shall of other Benefices presentable but a Presentation to such a Donative by a stranger and admission and institution thereupon is meerly void Debt Execution 6. If the Defendant in debt dye in execution Co. l. 5. 86. b. 4. in Blumfeilds case the Plaintiff may have a new execution by Elegit or Fieri facias because the Plaintiff shall not be prejudiced nor the Defendant take benefit by the act or tort of the Defendant in not paying his debt when no default was in the Plaintiff he having pursued the due and ordinary course of Law Lord Mesne and Tenant 7. The King is Lord A. Mesne Co. l. 6. 6. a. 1. in Sir Jo. Molyns case and B. Tenant of the Mannor of D. B. commits treason and after Attainder an Office is found and the Mannor seised into the Kings hand afterwards the King grants the Mannor to C. and his heirs Tenendum de nobis heredibus successoribus nostris aliis capitalibus dominis feodi illius per servicia vide debita de jure consueta These are sufficient words to create a tenure in the Mesne as it was before the Attainder and Forfeiture and the tenure of the Mesne is thereby preserved for it is against reason and equity that the Mesne who did no wrong should lose his services Seisin of rent 8. Where payment of a rent by a Bayliff or Tenant for life Co. l. 6. 59. a. 4. in Bredimans case for years or at will workes a speciall prejudice to the Master or Lessor it shall not be accounted suffcient Seisin thereof as if the Lord hath not had Seisin of his rent within sixty years and the Tenant makes one his Bayliff generally of his Mannor In this case the Bayliff cannot without expresse command of his Master pay this remedilesse rent to the Lord or if he do it otherwise it worketh no Re-seisin thereof so it is also if the Tenant for life for years or at will pay such a rent without order of the Tenant of the Frank-tenement A grant without Attornement 9. If a man be seised of a Mannor part in Lease for life Co. l. 6. 68. a. 1. in Sir Moyle Finches case and other part in Lease for years and he levy a Fine to A. to the use of B. in taile with divers Remainders over In this case B. shall avow for rent or have an Action of Waste without Attornement for when a Reversion is setled in any in Iudgement of Law and he hath no possible meanes to compell the Tenant to atturne and no Laches or default in him in such case he shall avow or have Action of Waste without Attornment for the Rule is Quod remedio destituitur ipsa re valet si culpa absit Quare Impedit abate 10. A Quare Impedit against the Bishop and Incumbent Co. l. 7. 25. b. 4. in Halls case without naming the Patron shall abate for otherwise the Patronage shall be in that case recovered against him who hath nothing in the Patronage and it is against reason that he who is Patron should be dispossest and ousted of his Patronage when he is a stranger and no party to the Writ No damage without notice 11. A. by a writing purporting his Will Co. l. 8. 92 a. 3. in Frances case deviseth Land to B. and his Heires but afterwards without the knowledge of B. enfeoffs C. to the use of B. for life with divers Remainders over provided that B. disturbe not the Executors of A. from carrying away the goods A. dyes B disturbs the Executors the next in Remainder enters upon B. into the Land In this case albeit B. had made disturbance against the words of the Proviso yet he shall not thereby forfeit his terme without notice of the Condition for none shall lose any Estate or Interest which he lawfully hath without some act or default in himselfe and therefore in this case in as much as B. was a stranger to the Feoffment he shall not lose his estate without notice given him of the Proviso Quod nostrum est sine facto sive defectu nostro amitti seu in alium transferri non potest which accords with the opinion of Pophani in Mallories case in the 5. Report 113. b. that the Feoffee of Land or bargaine of a Reversion by Deed indented and inrelled shall not take advantage of a Condition for non-payment of rent reserved upon a Lease upon Demand thereof Co. l. 5. 113. in Mallories case without giving notice thereof to the Lessee The like 12. Co. l. 8. 92. a. 4. in Fraâ—ces case If the estate of the Lord of a Mannor cease by Limitation of an use whereby the use and estate thereof is transferred to another the demand of the rent of a Copy-holder who denies to pay it to him causeth no Forfeiture without giving notice to the Copy-holder of the alteration of the use and estate And so it was adjudged Hill 1. Jac. in Trespasse inter Beconshaw Plaintiff and Southcote and others Defendants So likewise the Bargainee of a Mannor by Deed indented and inrolled shall not take advantage of a Forfeiture of a Copy-holder for denyall of payment of rent without notice to him given of the bargaine and sale for the Law will never compell a man to take notice of acts done amongst strangers Co. ibid. 93. a. 1. or of any uncertainty upon paine of forfeiting a mans Estate or Interest but in such cases notice ought to be given to those that are to suffer the losse It is otherwise when a man binds himselfe to do a thing as to performe an Arbitrement to pay the ovus which such an Auditor assigned shall charge him withall or the like for in such case he takes upon him to doe it Error in a Fine 13. A Fine was levyed of a Mannor and other Lands Co. l. 5. 43. Bohuns case to the value of twenty Marks per annum so as the Kings-silver was forty shillings which was paid but in
with his attornement to the said Duke and after the Duke grants it over to E. 6. in fee by deed enrolled and doth not alleadge expressely that Sir Richard Sackvile granted the reversion by deed but generally quod concessit reversionem hadendam in feodo ad quam quidem concessionem idem querens se inde Atturnavit And in this case the Count per Dyer was good without saying per cartam and without producing it into Court because the Farmer was a stranger to the deed or grant and had not the power of it for that it belonged not to him neither did he convey any title to him under it T. 17. H. 6. Rot. 121. So in an Assise the Plaint was made of Land and rent and the tenant conveyed them unto him by the grant of A. in taile the remainder to the King in fee and prayed Aide of the King without shewing the deed and without saying concessit tenementum per cartam habuit Auxilium c. Feomedon 28. In a Formedon in Reverter the doner need not shew the pedigrees of the issues of the donee nor who was last seised Dyer 216. 56 4. Eliz. because he is a stranger to the pedigree and by intendment cannot come to the knowledge of it It is otherwise in a Formedon in discender Quaete in Remainder Appeal 29. The Lessee of a Parson brings an Ejectione firmae Dyer 240. 46. 7. Eliz. the defendant pleads that the parson was deprived the Plaintiff saith that the parson hath appealed to the Arch-Bishop of Canterbury in Curia sua prerogativa de Arcubus and because the words of the Statute of 24. H. 8. 12. are the appeal that shall be to the Arch-bishop of the Province or c. without limiting any Court in certaine the Defendant demurred And these words to the Arch-Bishop of Canterbury were held sufficient because of substance c. And in this argument although it appeared by the Civilians that the Arches were not the Praerogative Court yet because the Defendant did not shew it but demurred generally the Temporall Iudges were not bound to take notice of their Iurisdictions Formedon in Rem 30. In a Formedon in Remainder brought upon a Remainder in use after the Statute of 27. H. 8. It was held by the Justices Dyer 277. 58. 10. Eliz. that the demandant need not shew the deed of the remainder 1. because in this case the remainder might be created without deed 2. for that the deed did appertaine to the feoffees and not to Cestuy que use and therefore might not be in his power to produce Hob. 51. Holmes and Twist 30. A. being possest of 10 tunne of woad sels to B. one tunne thereof Assumpsit for which B. promiseth to pay him according to such rate as he should sell the rest for A. sels the rest after the rate of 23 l. the tunne In this case A. shall not recover the 23 l. of B. before he hath acquainted B. at what rate he sold the rest because the price is a secret thing betwixt A. and his other chapmen whereof B. is not bound to take notice as it was adjudged upon a Writ of Error in the Exchequer Chamber T. 12. Jac. Rot 1758. 152. Nor to do that which were in vain for him to do Litt. S. 103. Co. Inst pars 1. 79. a. 2. 1. If an heire female be married within the age of 14. in the life of her ancester and the ancester die she being still within the age of 14 Tender of marriage the Lord shall have but the ward of the land untill her age of 14 and shall not within the two years after tender her marriage according to the Statute of Westminster 1. cap. 22. for that is without the case of the Statute it being in vaine for the Lord to tender her marriage when she is already married Natura non facit vacuum nec Lex supervacuum Litt. S. 179. Co. ibid. 119. a. 3. 2. If a villaine purchase a reversion Claime by Lord. the Lord after attornment ought to claime it upon the land to entitle himselfe thereunto so it is also of a rent common or other inheritance issuing out of land but if a villaine purchase the seigniory or a rent common or c. issuing out of the land of the Lord himselfe it is said that the seigniory rent common c. are extinguished in the Lords possession without any claime for it is needlesse to claime them upon the Land when he himselfe is possessed of the land out of which they are issuing Co. ibid. 123. b. 3. 3. A villain shall not have an appeal of Robberie against his Lord Appeal Lord and Villain for that the Lord may lawfully take the goods of the villain as his owne and then it would be in vaine to bring an appeale against the Lord for taking his owne goods Litt. S. 194. Co. ibid. 126. b. 3. 4. If the Lord mayhem his villain Appeale of mayhem he may be indicted for it at the suite of the King and thereupon make Fine for his offence but the villain shall not have an appeale of mayhem against his Lord because in such appeale he shall recover onely damages which the Lord after execution may take againe and so the Iudgement would become inutile and illusorie and sapiens incipit a fine And the law never giveth an action where the end of it can bring no profit or benefit to the Plaintiff Litt. S. 273 Co. ibid. 178. b. 4. 5. A man seised of 30 acres of land of equall value Hochpot and having two Daughters gives 15 acres with one of them in frankmarriage and dies and the other 15 acres descends to the other Daughter In this case there shall be no casting into hochpot because the lands were of equall value at the time of the partition for it were in vaine to put them into hochpot being equall no alteration since by the act of God or otherwise whereby the lands are bettered or impared being to be had in consideration Co. ibid. 19â— b. 1. 6. If there be two tenants in common of a rent as money graine Tenants in common or any severable thing and they be disseised thereof they shall bring severall assises for the recoverie thereof because they have it by severall titles Howbeit if the rent be a Hawke horse or any other intire thing which cannot be severed they shall joyne in an assise for it because the Law will never enforce a man to demand that which he cannot recover and a man cannot recover the moitie of an Hawke horse or the like Lex neminem cogit ad vane seu inutilia Co. ibid. 218. a. 4. 7. If I grant a rent charge in fee out of my land upon condition Claime not needfull there if the condition be broken the rent shall be extinct in my hand because I that am in
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
and put to a right because he that hath the estate in him cannot be put to his Action Entry or Claime for that he hath already that which Action Entry or Claime can vest in him or give him And therefore in vaine was the bargaine and sale and Fine when they could not alter the estates of them in Remainder Co. l. 10. 90. a. 4. in Doctor Leyfields case 19. Colour shall not be given in any Action Colour to the Plaintiff where the Plea goes in bar of the right for it were in vaine to give colour of right and to bar it after As in Assize or Writ of Entry in nature of an Assize if collaterall Warranty be pleaded and the Defendant relye upon it or if an Estoppell be pleaded or Fine levyed with Proclamations c. there is no need of any colour to be given because the Plaintiff is barred albeit he had right So it is also where the Plaintiff conveys the title unto him by Letters Patents of the King or by Act of Parliament for that bars the right c. it is otherwise where the Possession is onely barred c. vide pl. ibid. P. C. 8. b. 3. in Fogassaes case 20. When a man is not bound to doe a thing Not tyed to answer in a Plea concerning it he need not make answer thereunto as in Fogassaes case exception was taken for that the suerty was not named that was bound for answering the custome and it was said that because the Statute speaks of no surety and the agreement might be good without surety it had been in vain to speak of it or to make answer thereunto and thereupon that exception quasht Death not traversable 21. In a Formedon in Reverter or Remainder P. C. 32. b. 1. Colthrist versus Bevishin a man shall not shew the death of the particular Tenant because it is but a Conveyance and not traversable nor issuable So in Colthrist and Bevishins case the Defendant shall not shew the deaths of Henry and Elenor Bevishin because the Plaintiff Colthrist should have traversed it and said that they were alive he should confesse that he had not title to the Land before their lives and would have destroyed his own Action And therefore in regard their deaths were not traversable it was in vaine for the Defendant to shew it by consequent he shall not be compelled to do it Covin 22. A man need not shew any speciall cause of Covin when it is apparent P. C. 49. b. 2. in Wimbish and Talboies case Ibid. 55. b. 3. as when Feme Tenant in tail for her Ioynture by Covin appeares in a Formedon in Remainder brought against her by one that pretends title in Remainder and she appeares the first day without Essoine View c. and Iudgement is had against her by nihil dicit here the Covin is apparent and need not be specially shewed for it is in vaine to shew that which is apparent of it selfe So it is a vaine thing to aver that an Horse bought which wants eyes is blind when it is apparent that he must be blind when he wants eyes If the Tenant enfeoff his Son within age by collusion the Lord shall seise him for his Ward and shall not be forced to shew this Collusion in speciall causa qua supra Pretenced titles 23. In an Action upon the Statute of 32 H. 8. 9. against buying pretenced titles P. C. 81. a. 4. in Partridges case against Strange and Croker the Plaintiff need not aver the title or right to be pretenced because the Statute declares and intends the title to be pretenced when neither his Ancestors nor those from whom he claimes have injoyed the Land in Possession Reversion or Remainder nor received the rents or profits thereof for a yeare before the purchase thereof and therefore because it were in vain for him to aver the pretenced title because the Statute makes it so he shall not doe it 153. Non licet quod dispendio licet Surrenders 1. M. Leases for twenty one years to S. and is bound to make a new Lease to S. upon surrender of the old Co. l. 5. 21. a. 4. in Sir Antohny Maines case M. Leases to another for eighty years by Fine and S. brings an Action of debt upon the Bond In this case albeit S. may surrender and ought to do the first act viz. to surrender yet M. hath forfeited his Bond although S. never surrender for S. shall not now be forced to surrender because if he should surrender M. cannot now make him a new Lease which w s the effect and end of the Surrender for by such Surrender S. will lose his old terme without possibility of having a new one And Non licet quod dispendio licet Parson not to â—esigne 2. I. Parson of the Church of G. was bound in an Obligation to the Prior of E. to resigne his Church to the Prior for a certaine Pension Co. l. 5. 21. b. 1. ibid. 14 H. 4. 19. a. as it should be agreed the Parson and Prior agree for a Pension of C. s. yet the Parson refused to resigne And 14 H. 4. 19. a. it was the opinion of all the Court that albeit they were agreed of the Pension yet the Parson was not bound to resigne untill he might be sure of his Pension and that could not be without Deed And therefore in such case the Parson was not bound to resigne untill the Prior should â—ender a Deed of the Pension whereby he might be sure 〈◊〉 it 154. It favoreth Truth Faith and Certainty Vide Max. 41. â—9 Co. Inst pars 1. 139. a. 3. 1. Regularly upon a nonsuit the Demandant or Plaintiff may againe commence an action of like nature c. Howbeit in an Attaint Nonsuit in Attaint peremptoria if the Plaintiff after apparance be nonsuit it is peremtorie and he is thereby barred from ever bringing an attaint against the first iury againe and the reason is for the faith that the Law gives to the verdict and for the terrible and fearefull judgment that should be given against the first jury if they should be convicted and therefore upon the nonsuit the Plaintiff shall be imprisoned and the pledges amercied Vide infra 11. Co. ibid 227. b. 3. Co. ibid b. 4. L. S. 366. 2. A speciall verdict or at large may be given in any action A speciall verdict and upon any issue be the issue generall or speciall because the truth of the cases may be the better discovered and discussed and justice and right donâ— so if a man seised of lands in fee le ts them for life without Deed rendring rent upon condition of re-entry upon non-payment of the rent whereupon if the lessor enter and the lessee bring an assise of Novel Disseisin the jurors may find the matter at large and the Iudges ought to adjudge it for the tenant albeit
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
made twenty moneths after yet this Warranty begins by Disseisin so the intent maketh the act to enure otherwise then it would do for when covin is mixt with the truth it makes all unsavory So in Wimbish and Talboies case in the Com. Eliz. Talbois joyning by covin with W. Talbois in being taken by nihil dicit he was to lose her estate by force of the Stat. of 11 H. 7. and the Issue in tail might before that Statute falsifie a feined Recovery by covin 38. The 11 H. 7. 20. Pl. Co. 59. b. 1. ibid. and all other Statutes made for the suppressing of fraud shall be extended by equity the words of the Statute of Marlebridge cap. 6 are de his qui primogenitos haeredes suos infra aetatem existentes feoffare solent and yet if the first be dead and he enfeoff his second Son which is his heire that is within the equity of the Statute or if he levy a Fine to him which is matter of Record that is also within the equity of the Statute albeit the Statute speaks of Feoffment And the reason is because covin is alwayes abhorred in our Law and Statutes made for the suppression thereof are made for the publick good and therefore shall be extended by equity In like manner 1 H. 7. cap. 1. which gives a Writ of Formedon in Remainder against the perner of the profits was made for the suppression of covin for a Feoffment made to persons unknown to defraud those that right had Pl. Co. 81. b. 4. in Partridge and Stranges case was great covin and deceit in the Law and therefore a Scire facias to execute a Remainder shall be maintainable against the pernor of the profits as it is adjudged in 14 H. 7. fo 31. And to these Statutes and the like made for the suppression of fraud and covin are alwayes to be extended by equity and to have a favourable interpretation and construction And therefore the Statute of 32 H. 8. cap. 9. shall be also extended by equity Co. l. 5. 80. a. in Fitzharberts case being ordained for the suppression of fraud and covin in buying of pretenced titles so that Leases for years as well as higher estates shall be intended by it Warranty 39. The Father Tenant for life the Remainder to the Son and Heire apparent in tail Leases to A. for years with intent that A. should enfeoff B. unto whom the Father should release with Warranty all which is done accordingly This is a Warranty that commenceth by Disseisin for albeit the Warranty be not made at the time of the Disseisin which was upon the Feoffment to B. yet by construction of Law it shall be adjudged to be Warranty that begins by Disseisin by reason of the practice and covin betwixt the confederates for if the Father had made the Feoffment to B. with Warranty and had dyed this Warranty had barred the Heire c. vide pl. ibid. â—ttaint 40. A false Verdict is a contradiction in it selfe Co Inst parâ— 1. 128. 4. and so odious in the Law that in an Attaint Outlawry in the Plaintiff cannot be pleaded in disability of the person 41. The Statute of 31 Eliz. 6. Hob. 75. to prevent Simonie is to be largely expounded though penall The King against the Bishop of Norwich 158. Jus Fraus numquam Cohabitant Co. l. 10. 45. a. 4. in Jennings his case 1. The Statute of 14 Eliz. cap. 8. Recovery by Tenant in taile doth not extend to preserve any Reversion or Remainder expectant upon an estate taile or where the Tenant for life is impleaded and Tenant in tail is vouched for the title of the Act is For avoiding of Recoveries suffered by collusion by Tenant for life c. but a Recovery cannot be said to be by collusion where Tenant in tail is in the Recovery either Tenant in Fait or Tenant in Law as Vouchee for the Law as an incident to his estate hath made the Land and all Remainders and Reversions subject to his pleasure and he hath right and power to bar them all and Jus Fraus numquam Cohabitant And therefore the title of the Act being For avoyding of Recoveries by collusion c. it cannot extend to a Recovery where Tenant in tail is party or privy Pl. Co. 51. a. 2. in Wimbish and Talboies case 2. When truth is mixed with covin that wicked hearb or covin with truth Truth Covin that conjunction and mixture makes all bitter and unsavory and goodnesse is perverted into wickednesse for they cannot continue together no more then fire and water Dyer 55. 9. 35 H. 8. 3. A Verdict is said to be veri dictum Verdict Error which ought to have truth in it and no semblance of fraud or partiality to either party And therefore if a Iury before their agreement eat or drinke at the charge of either of the parties it is good cause of Error to reverse the Iudgement upon such a Verdict for there cannot be truth in such a Verdict which hath such a badge of fraud and falsehood because such practice implyes partiality and suspition 159. Quando aliquid prohibetur fieri ex directo prohibetur per obliquum Litt. S. 361. Co. Inst pars 1. 223. a. 4. 1. If a Feoffment in fee be made upon Condition A Feoffment upon Condition that the Feoffee shall not alien that the Feoffee shall not enfeoff I. S. or any of his Heires or Issues c. this is good for he doth not restraine the Feoffee of all his power howbeit if he enfeoff I. N. with intent and purpose that he should enfeoff I. S. some held that it is a breach of the Condition So if a Feoffment be made upon Condition that the Feoffee shall not alien in Mortmaine this is good because such alienation is prohibited by Law and regularly whatsoever is prohibited by Law may be prohibited by Condition but in this case if the Feoffee enfeoff I. S. with intent that he shall alien the Land in Mortmaine it seemes to be a breach of the Condition In ancient Deeds of Feoffment in fee there was usually this clause Quod licitum sit donatorio rem datam dare vel vendere cui voluerit exceptis viris religiosis Judaeis Co. ibid. 282. a. 3. 2. In an Action upon the case Innovation prohibited the Plaintiff declared for speaking of slanderous words which is transitory and laid the words to be spoken in London the Defendant pleaded a Concord for speaking of words in all the Counties of England save in London and traversed the speaking of the words in London the Plaintiff in his replication denyed the Concord whereupon the Defendant demurred and Iudgement was given for the Plaintiff for the Court said if the Concord in that case should not be traversed it would follow that by a new and subtile invention of pleading an ancient Principle in Law that for
transitory causes of Action the Plaintiff might alledge the same in what place or County he would should be subverted which ought not to be suffered and therefore the Iudges of both Courts allowed a Traverse upon a Traverse in that case And the wisdome of the Iudges and Sages of the Law have alwayes suppressed new and oblique inventions in derogation of the common Law whereupon it is said by the Iudges in one Book 38 E. 3. 1. we will not change the Law which hath been alwayes used and another saith 2 H. 4. 18. it is better that it be turned to a default then the Law should be changed or any innovation made Warranty that begins by Disseisin by an oblique grant 3. The Father Tenant for life Co. l. 5. 80. a. 1. Fitzherberts case the Remainder to the Son and Heire apparent in tail Leases to A. for years with purpose that A. should enfeoff B. unto whom the Father should release with Warranty all which is done accordingly this is a Warranty that begins by Disseisin for albeit the Warranty be not made at the time of the Disseisin which was upon the Feoffment to B. yet by construction of Law it shall be adjudged to be Warranty that begins by Disseisin this Warranty binds not because of the covin An oblique Grant of Colledge Lands void 4. The Master and Fellowes of Magdalen Colledge in Cambridge Co. l. 11. 73. b. 1. in Magdalen Colledge case grant an House in London to Queen Eliz. upon Condition that she within three moneths should convey it to Benedict Spinola and his Heirs who doth so accordingly this Grant of the Colledge is void by the Statute of the 13 Eliz. 10. and was not helped by the Statute of Confirmation of the 18 Eliz. 2. for it appeared that the intent of the Master and Fellowes was that they should convey the said House to Benedict Spinola and his heires and therefore that which they could not do de directo they attempt to do ex obliquo to grant it to the Queen and her Successors but upon Condition contained in the same Grant that the Queen within three moneths should grant the House to B. Sp. and his Heires so as it was by this device endeavoured that the Queen who was the Fountaine of Iustice should be made an Instrument of injury and wrong and of the violation of a pious and excellent Law which she her selfe had made for the maintenance of Religion advancement of learning and sustenance of poore people The like In 17 E. 3. fo 59. Co. ibid. b. 4. The Fryers Carmelites who had not then any place of habitation obtaine of one John Merite who was seised of ten Acres of Meadow holden of the Bishop of Winchester to have the said ten Acres of Meadow for a place of habitation for them and because John Merite could not grant unto them the ten Acres by reason of the Statute of Mortmaine by covin contrived betwixt Merite and the Fryers to oust the Bishop of his Seigniory Merite to evade the Statute of Mortmaine grants the ten Acres to the King his Heirs and Successors whereby the Bishops Seigniory might be extinct to the end that the King should grant them over to the Fryers which he did accordingly Howbeit because here there was a practice betwixt Merite and the Fryers to take away the Bishops Seigniory it was adjudged that the Charter should be repealed and that the Carmelites should be distrained to deliver it to be cancelled Lands purchased with the Kings money 6. In Term. Trin 24. E. 3. Rot. 4. in the Exchequer Co. l. 11. 92. b. 4. in the Earle of Devonshires case one Walter Chirton the Kings Customer had purchased certaine Lands with the Kings money and by covin had caused the Vendor to enfeoff his freinds in fee to defraud the King and yet neverthelesse took the Issues and profits of the Land to his own use and those Lands were by inquisition returned with the values into the Exchequer and there by Iudgement were seised into the Kings hands untill c. for albeit the estate of the Land was never in Chirton yet the taking of the estate in the name of others and he in the meane time receiving the profits thereof was all one as if he had taken the estate in his own name especially in the Kings case and the lands being bought with the Kings money Fraudulent Indictment 7. One Verney in the 34 H. 6. Dyer 245. 65. 8. Eliz. being in execution in the Fleet for divers debts as also for Fines to the King returned into the Exchequer caused himselfe to be indicted of Felony with an intent to confesse it and to have his Clergy and so to be out of the temporall Law and then to have his purgation and all this with purpose to defraud his Creditors c. And upon a Corpus cum causa all was removed into the Kings Bench Howbeit the King having notice of the Fraud by a privy Seale commands the Iustices to stay the Araignment c. 160. Rectum est index sui Obliqui Co. l. 10. 24. b. 2. 1. In the Case of Suttons Hospitall Sir Edward Coke excuseth himselfe from answering the Objections in that case at large being Excuse to answer objections as he saith for the most part of no great moment by producing manifest and fallible proofs of the validity of that Incorporation alleadging this Maxime for the ground thereof Rectum index sui obliqui Dyer 234. 16. 7. El. 2. In a Formedon in Descender Formedon a Fine with Proclamations levied in 30 H. 8. was pleaded in Bar and the issue being upon Nul tiel Record at the day the Tenant had the Record but in the Proclamations viz. 5 6 7 8. made in Trin. Terme the yeare of the King was omitted Howbeit because in Easter Terme before and Michaelmas Terme after 30 H. 8. was exprest of necessity it did follow that the said foure Proclamations were also made in the same yeare for they being right by consequence the others were right also And thereupon it was held that he had not failed of the Record 161. It disfavoureth Improbabilities Co. Inst p. 1. 25. b. 4. Co. l. 10. 50. b. 1. in Lampets case 1. If Lands be given to a man and a woman being not his wife Lands intailed and to the Heires males of their two bodies they have an Estate Taile albeit they be not married at that time so it is also where Lands are given to a man which hath a wife and to a woman which hath a husband and the Heires of their two Bodies they also have presently an Estate Taile for the possibility that they may marry But if Lands be given to two Husbands and their Wives and to the Heires of their Bodies begotten they shall have a joynt Estate for life and severall Inheritances viz The one Husband and Wife the one Moiety
uncertainty Bract. fo 5. fo 400. Fleta l. 6. cap. 35. whereof Bracton and Fleta speak notably Sicut Actor una actione debet expediri saltem illa durante sic oportet tenentem una exceptione dum tamen peremptoria quod in dilatorijs non est tenendum quia si liceret pluribus uti exceptionibus peremptorijs simul semel sicut fieri poterit in dilatorijs sic sequetur quod si in probatione unius defecerit ad aliam probandam possit habere recursum quod non est permissibile non magis quam aliquem se defendere duobus bacalis in duello cum unus tantum sufficiat Vide pl. ibid. per totam paginam for departure double Pleas c. Attornement 22. If the Lord first grant the Services of his Tenant to one Co. ibid. 310. b. 1. and afterwards by another Deed of a later date grants the same services to another In this case if the Tenant attorne to the last Grantee it makes his Grant good and albeit he afterwards attorne to the other Grantee yet cannot that make the first Grant good because the Attornement took effect in perfecting the last Grant Howbeit in the same case if the Tenant attorn to them both the Attornment is void to both for the uncertainty so if a Reversion be granted for life and after it is granted to the same Grantee for years and the Tenant attorneth to both the Grants this is also void for the uncertainty A Fortiori if the Lord by one Deed grant his Seigniory to I. Bishop of London and to his heirs and by another Deed to I Bishop of London and to his Successors and the Tenant attorne to both Grants this Attornment is void for both Grants for albeit the Grantee be but one person yet he having severall capacities and the Grants being severall the Attornment is not according to either of the Grants and by consequent void for the uncertainty An uncertaine Deed. 23. If Land be given by Deed to two to have and to hold to them Co. l. 1. 85. a. 1. in Corbets case heredibus it is void for the insensibility and incertainty And although it hath a clause of Warranty to them and their heires this shall not make the first words which are incertaine and insensible to be of force and effect in Law albeit his intent appeare but his intent ought to be declared by words certaine and consonant to Law 24. In an Indenture of bargaine and sale for twenty pounds Dyer 6. 26 H. 8. 3. there are divers Covenants An uncertain Plea and in the end there are these words Ad quas conventiones perimplendas obligo me in 40 l. c. Here in debt brought for the 40 l. payment of the 20 l. is no Plea without an Acquittance albeit proofe may be made of the payment of the 20 l. yet without an Acquittance it remaines uncertaine whether the Covenants were performed and what other agreements there were betwixt the parties by Spilman Fitzherbert and Shelley and 28 H. 8. 25. accords Tamen Quaere for Dyer seemes to be of another opinion Dyer 14. 71. 28 H. 8. 25. If a Feoffment be made to four by Deed Livery without Deed. Livery to one is good for all It is otherwise if it be without Deed for the uncertainty Dyer 17. 95. 28 H. 8. 26. A negative pregnant is disfavoured in Law for the uncertainty A negative pregnant as in a Writ of Entry in consimili casu supposing the alienation to be in fee the Tenant saith that the Tenant for life did not alien in fee which implies that he did alien though not in fee for notwithstanding that Plea the Tenant for life might alien for another life or in tail and therefore no good Plea for the uncertainty Dyer 22. b. 138. 28 H. 8. 27. If a man buy twenty quarters of Graine No Detinue for graine of mony and is to have them delivered at such a place upon such a day and the contract is not performed by the Vendor In this case the Vendee cannot have an Action of Detinue for the Graine for the uncertainty because one quarter of Graine cannot be known from another quarter of the same Graine there is the like Law of Coine Dyer 25. 156. 28 H. 8. 28. An Inquest remained pro defectu hundredorum Defect of Jurors and the Plaintiffs Councell made suggestion to the Court that there were no Freeholders in the Hundred but all Copy-holders and Tenants in ancient Demesne and thereupon prayed Processe de proxim hundred adjacente non potuit habere for the Court are not to beleive the Councels suggestion for the uncertainty thereof but ought to have it ascertained by the returne of the Sheriff who is a sworn Officer Co. l. 1. 84. b. 4. in Corbets case 29. If Land be given to A. in tail the Remainder to B. in tail A perpetuity not good with other Remainders over upon Condition that if any of these shall offer to bar the said estate his estate shall cease as if he were naturally dead and then it shall be to the next in Remainder This is a void Proviso for the uncertainty for Iudges ought to know the intention of the parties by certaine and sensible words which are agreeable and consonant to the rules of Law Co. l. 1. 155. a. 3. in the Rector of Chedingtons case 30. A man possest of certaine Land for sixty yeares in consideration of a marryage to be had betwixt his Son and the Daughter of another Leases void for the uncertainty demiseth the Land to his Son for seventy years to begin after his death and after the Lessor dyes in the case the Lease is good because when the Land is demised Habendum after the death of the Lessor for seventy years there was sufficient certainty and no apparent uncertainty in the Deed as it was agreed in Locrofts case M. 34. 35 Eliz. But if a man possest ef a Lease for forty years grants to B. so many of the yeares as shall be behind tempore mortis suae this is void for the uncertainty as it is agreed in 7 E. 6. Br. Grants 154. and in Pl. Com. 520. b. So if a man have a Lease for life by Deed indented with Proviso that if the Lessee dye within sixty yeares that the Executors of the Lessee shall have it for so many years as shall be behind at the time of his death this is but a Covenant and not a Lease for the uncertainty Vide 3 4 P. M. Gravenors case Dyer 150. a. 22. Ass Pl. 37. Co. I. 2. 3. Mansers case 31. In debt by P. against M. the Defendant pleads the Bond was upon Condition that P. should enjoy the Land An uncertaine Plea which he held by Feoffment from M. discharged and indemnified and that M. and his Son should performe such Acts for further
that a man may grant a Rent charge newly created out of Lands to a man and his Heires upon such a Condition and that in such case it shall be good because the Rent is of his own Creation but this is against the reason and opinion of Littleton Sect. 360. and also against the height and purity of a Fee simple Howbeit the examples aforesaid are to be understood of Conditions annexed to the Grant or Sale it self Condition not repugnant in respect of the Repugnancy and not to any collaterall thing As if A. be seised of Black acre in fee and B. enfeoffeth him of white Acre upon Condition that A. shall not alien black acre the Condition is good because the Condition is annexed to other Land and ousteth not the Feoffee of his power to alien the Land whereof the Feoffment is made and so no Repugnancy to the State passed by the Feoffment And so it is of gifts or Sales of Chattells reall or personall Again A man before the Statute of Quia Emptores terraum might have made a Feoffment in Fee and added further that if hee or his Heires did alien without Licence that then he should pay a Fine this had been good And it is said that then the Lord might have restrained the Alienation of his Tenant by Condition because the Lord had a possibility of Reverter so it is in the Kings case at this day because he may reserve a Tenure to himself Co. ib. 223. b 4. Co. l. 10. 38. b. 4. Mary Portingtons case Co. l. 5. 40. Sir Anthony Mildmayes case 11. If a gift in Taile be made upon Condition that the Donee c. Condition repugnant upon grant of an estate in taile shall not alien this Condition is good to some intents and void to other some for as to all those alienations which amount to any discontinuance of the Estate Taile as Littleton speaketh Sect. 362. or are against the Statute of Westminster 2. the Condition is good without question but as to a common Recovery the Condition is voyd because this is no discontinuance but a Bar and this common Recovery is not restrained by the said Statute of Westminster 2. and therefore such a Condition is repugnant to the Estate Taile for it is to be observed That to this Estate Taile there be diverse incidents First To be dispunishable of Wast Secondly The Wife of the Donee in Taile shall be endowed Thirdly That the Husband of the Feme Donee after Issue shall be Tenant by the Curtesie Fourthly That Tenant in Taile may suffer a common Recovery And therefore if a man make a gift in Taile upon condition to restraine him of any of these incidents the condition is repugnant and void in Law And it is further to be observed That a collaterall Warranty or lineall without assets in respect of the recompence is not restrained by the Statute De donis no more is a common Recovery in respect ot the intended recompence And Littleton ubi supra to the intent to exclude the Common Recovery saith Tiel alienation discontinuance joyning them together Inst pars 1. Co. 224. a. 2. 12. If a man before the Statute Do donis had made a gift to a man The like and to the Heires of his Body upon Condition that after Issue he should not have power to sell this Condition had beene repugnant and void Pari ratione after the Statute a man makes a gift in Taile the Law Tacite gives him power to suffer a common Recovery therefore to add a Condition that he shall have no power to suffer a common Recovery is repugnant and void Co. ibidem 13. If a man make a Feoffment to Baron and Feme in Fee Feoffment to Baron and Feme upon Condition that they shall not alien to some intent this is good and to some other intent it is void for to restraine an alienation by Feoffment or alienation by Deed it is good because such an alienation is tortious and voidable But to restraine their alienation by Fine is repugnant and void because it is lawfull and unavoidable 14. It is sayd that if a man enfeoff an Infant in Fee upon condition Infant that he shall not alien Co. ibid. this is good to restraine alienations during his minority but not after his full age Co. ibid. 15. It is likewise sayd Spirit Corpor. that a man by Licence may give Land to a Bishop and his Successors or to an Abbot and his Successors and add a Condition to it that they shall not without the consent of their Chapter or Covent alien because it was intended a Mortmain that is that it should for ever continue in that Sea or House for that they had it En autor droit for religious and good dses And note That whatsoever is prohibited by the intent of any Act of Parliament may be prohibited by Condition and shall cause no repugnancy Confirmation 16. A Disseisor makes a Lease for one hundred years Co. ibid. 297 a. 2. and the Disseisee confirmes the estate of the Lessee for fifty of those years this is a confirmation of the whole terme for when he had once confirmed the Lessees estate the whole estate was thereby confirmed and therefore afterwards to limit the terme to fifty years onely when the whole terme was confirmed before is repugnant and void but the Confirmation ought to have been of the Land for part of the terme so likewise might the Disseisee confirme part of the Land for part of the terme c. Vide infra 32. Habendum 17. In a Deed or other Conveyance of Land Co. ibid. 299. a. 2. when the Habendum doth either agree in substance with the Premisses or enlarge them the Habendum is good but when it abridgeth the Premisses it is repugnant and void Vide Dyer 272. 30. Repugnant covenant 18. John de Marre made a Charter to John de Burford of Fee-simple and the same day it was covenanted between them Co. ibid. 217. b. 3. 12 E. 2. Voucher 265. that John de Burford should hold the same Tenements for eight years and if Jo. de Marre did not pay to Jo. de Burford one hundred markes at the end of the terme that then the Land should remaine to Jo. de Burford and his heires In this case the subsequent Covenant was repugnant and void for first the Charter of the Fee-simple was absolute and the Covenant being made after the Charter could neither alter the absolute Charter nor upon a Condition precedent give him a Fee-simple that had a Fee-simple before A saving Repugnant 19. I.S. being seised of certaine Land in Fee Co. l. 1. 47. a. in Alton Woods case the same Land is given by Act of Parliament to the King in Fee saving the Estates Rights c. of all persons In this case the Estate of I. S the owner of the Land is not
ceremony is requisite to the perfection of the Estate and to the Estate limited by the Habendum nothing is requisite to the perfection and essence thereof but only the delivery of the Deed there albeit the Habendum be of a lesse Estate then is mentioned in the premisses yet the Habendum shall stand and the premisses are repugnant and void as it fell out in the principall case in Baldwins case for A. covenants grants and lets to farm to B. and C. and to the heires of C. to have for ninety nine years c. here the Estate for yeares limited by the Habendum took effect by the delivery of the Deed whereas the Estate mentioned in the premisses could not take effect without Livery and for that cause was adjudged repugnant and void Indictment repugnant 30. Where a Wound was given the fourth of August Co. l. 4. 42. b. 2. Heydons case and the party dyed the nineteenth of December after An Indictment against A. and B. as Abbettors to the Felony was drawn in these words Et praed A. B. tempore feloniae murdri praed fact viz. 4 Aug. c. Felonice fuerunt presentes c. ad feloniam murdrum praed in forma praed faciend And this Indictment as to A. and B. the Abbettors was adjudged insufficient for the Repugnancy because no Felony was committed untill the death of the party and none shall be adjudged a Felon by relation which is but a Fiction in Law The like 31. In an Appeale of Murder Co. l. 4. 42. b 4. Humes case the Wound was layd in the Count to be given at Weetwood and the death to be at Westliborne and then he concludes Et sic praed L.O. apud Weetwood praed modo forma praed the said A. H. Felonice c. Murdravit And it was resolved that the Count was repugnant and insufficient for it cannot be said that he murdred him at the place where the wound was given but where the party dyed The like is adjudged in Wrotes case Co. l 4 a 4. Confirmation 32. A Prebend leases for seventy yeares Co. l. 5. 81. a. 4. Foords case the Deane and Chapter being the Patron confirme dimisionem praed in the Forme aforesayd for one and fifty yeares and no farther this confirmes the entire Terme for after the Terme is confirmed one and fifty yeares are repugnant and void It had been otherwise if they had recited the Lease for seventy yeares and then confirmed the Land for one and fifty yeares vide supra 16. Conditions repugnant 33. It hath beene sayd Co. l. 6. 42. b. 4. Sir Anthony Mildmayes case If a man make a gift in Taile upon Condition that he shall not make Feoffment this is a good Condition but if the Condition be that he shall not make a Charter of Feoffment this is not good for this without Livery as Littleton saith fo 15. amounts but to a Tenancy at Will which Tenant in Taile cannot be restrained to do So if a man make a gift in Taile upon Condition that he shall not make a Lease for his owne life this is void and repugnant for when a man makes a gift in Taile which is an Estate of Inheritance and by possibility may continue for ever and thereby makes the Donee the Principall owner of the land he cannot restraine him from doing any lawfull Act or making any Estate which is no Wrong to any and which by the Law he may lawfully do or make Howbeit if a man make a Lease for Life or Yeares with Condition that he shall not alien or demise this is good because the Lessor hath the Reversion whereby he hath power to restraine the Lessee so if a man demise a Copy-hold Mannor for Life or Yeares with Condition that hee shall make no voluntary Grant of any Copy-hold Lands according to the Custome of the Mannor this is good but if a man grant in tail a Copy-hold Mannor with such a Condition the Condition is void for the repugnancy Co. l. 6. 61. a. 3. Gatewards case 34. It was alleadged that the custome of the Towne of S. was Common that every Inhabitant within it had used c. to have Common by reason of Commonancy within a place in the Towne of H. which was another Towne and it was adjudged insufficient for the repugnancy Co. l. 7. 25. a. 2. Buts case 35. A. seised of black Acre in fee Rent Avowry and possessed of white Acre for years grants a Rent-charge to B. for life out of both of them A. distrains and avows in white Acre concluding thus in his Plea Virtute cujus he was seised in dominico suo ut de libero tenemento pro termino vitae suae and the Avowry was adjudged insufficient and repugnant because he could not have a Frank-tenement out of a terme for years Derivata potestus non potest esse major primitiva Max. 26. Co. l. 8. 118. a. 2. in Doct. Bonhams case 36. When an Act of Parliament is against common right and reason Cessavit Act of Parliament repugnant or repugnant or impossible to be performed the common Law shall controle and adjudge such an Act to be void as the Statute of West 2. cap. 21. gives a Writ of Cessavit heredi petenti super heredem tenementum super eos quibus alienatum fuerit hujusmodi tenementum and yet it is adjudged in 33 E. 3. Tit. Cessavit 42. that the Heire should not have a Cessavit The case was this there were two Coparceners Lords and Tenant by Fealty and certaine Rent the one Coparcener hath Issue and dyes in this case the Aunt and the Neice shall not joyne in a Cessavit because the heire cannot have it for the Cesser in the time of her Ancestors in regard the arrearages do not belong to her c. See F. N. B. 209. F. Pl. Com. 110. besides in a Cessavit the Tenant before Iudgement may render the arrearages and damages c. and retaine the Land and that cannot be done when such an heire brings a Cessavit for the Cesser in the time of his Ancestor because the arrearages then incurred belong not to him as aforesaid Co. l. 8. 127. a. 1. The City of London case 37. Where there is a Market overt and correction in any Prescription repugnant a Prescription to sell commodities in private houses or other places out of the open Market is repugnant and void because so the Seller may use deceit and is not subject to search Qui male agit odit lucem omnia delicta in aperto leviora sunt See 11 H. 6. 19. The Prior of Dunstables case Co. l. 9. 58. b. 3. William Aldreds case 38. When a man hath lawful easement or profit by prescription time out of mind another Custome which is also time out of mind Prescription for a way cannot take it away because that were repugnant
clamat the Termor claimes fee this is a Forfeiture because the Condition was repugnant And note the Iudgement there that the terme shall be forfeit the Conuses might enter and the Fine shall be engrossed Vide Plowd Sanders against Freeman and Plesintons case 6 R. 2. Dyer 264. 40. 9 El. 49. Repugnant Lease Baron and Feme being Termors of the three Conyes in Fleet-street the Baron leaseth part of the terme by these words the Messuage called the three Conyes with all the Chambers Sellars and Shops except to the Baron the Shops ad proprium opus usum the Feme enters into the Shops and then brings Ejectione firmae and per Curiam the exception is but temporary to the Baron himselfe there being no mention of Executors or Assignes and also the exception is void for the Shops because repugnant to the demise of the Shops Dyer 288. 54. 12 El. 50. Exception repugnant If a common person grant the Mannor of D. except the Courts and perquisites the exception is void for the repugnancy and the Grantee shall keep Courts and have the perquisites notwithstanding such exception Howbeit it is otherwise in the Kings case Vide Max. 81. 103. Hob. 13. Sir Daniel Nortons case 51. If an Vnder-Sheriff covenant with his High-Sheriff Sheriff and Under-Sheriff that he will not execute any Writ of execution for any debt above twenty pounds without speciall Warrant from the High-Sheriff This Covenant is void for the repugnancy for albeit he may chose not to make an Vnder-Sheriff at all or may make him at his will and remove him also if he please yet he cannot leave him an Vnder-Sheriff and yet abridge his power no more then the King may in case of the Sheriff himselfe Vi. 65. 25. Hob. 39. John Ion's case 52. An Office was found Office that A. being seised of the Mannor of D. in fee enfeoffed B. in fee to the use of himselfe for life the Remainder to C. in fee and that A. being so seised of the Premisses dyed thereof so seised And this Office was adjudged void for the repugnancy 168. It will not drive a man to justifie or shew that which he goeth about to defeate or which makes against him Co. l. 7. 10. a. Vghtreds case 1. The Marquesse of Winchester grants the Captainship of a Fort Condition subsequent not to be averred and for the exercising of that Office and for finding a Gunner and six Souldiers he grants him an Annuity of two and thirty pounds yearly upon Suit for this Annuity exception was taken to the count for that the Plaintiff had not therein averred his exercising of the Office but the exception was over-ruled by the Court because in all cases when an Interest or Estate commenceth upon a Condition precedent be the Condition or Act to be performed by the Plaintiff or Defendant or any other and be the Condition in the affirmative or negative there the Plaintiff ought to shew it in his Count and to aver the performance thereof for then the Interest or estate commenceth in him by the performance of the Condition and is not in him untill the Condition be performed but it is otherwise when the Interest or Estate passeth presently and vests in the Grantee and is to be defeated by matter ex post facto or Condition subsequent be the Condition or Act to be performed by the Plaintiff or Defendant or any other and be the Condition in the affirmative or negative In such case the Plaintiff may count generally without shewing the performance thereof and it shall be pleaded by him that will take advantage of the Condition or matter ex post facto for every one ought to alleadge that which makes for him and which is for his advantage and no man shall be forced to alleadge that which makes against him Vide plus ibidem The like 2. If I grant to one that when he shall be promoted to a benefice Pl. Com 25 b 4. Colthrist and Bevish that then he shall have an Annuity In this case if he demand the Annuity he ought first to shew that he is promoted to a Benefice in such a case he shall have a Writ of Annuity and shall not shew that he is yet promoted because the annuity precedes and the promotion is subsequent and goes in defeasance of the annuity and therefore ought to be shewed on the contrary part and not by the Plaintiff because it makes against him Vide 15 H. 7. fol. 1. Br. Annuity 22. Count 43. Co. l. 7. 10. b. Vghtreds case The like 3. In Colth and Bevishams case Pl. Com. ibid. 26. b. 4. 30. a. 3. 32. b. 2. 34. a. 2. Pl. Com. The Grange was to remain to Peter Bevisham for life Si vellet inhabitare c. durante termino which was the whole Terme and immediatly after the death of Henry and Elianor and therefore it was alleadged that he should have shewed in his bar the time of his entry and his abode thereupon but it was resolved that the bar was good notwithstanding that exception because by common intendment it shall be taken that his entry was immediatly after the Remainder fell and if it were not so the Plaintiff ought to have shewed it and not the Defendant in his Bar because it made against him being in Defeasance of his Estate c. Condition subsequent 4. If I grant to one that when he shall do such an Act Pl. Com. 30. a. 2. Colthirst and Bevish that then he shal have a Rent charge out of my Land in this case he shall not avow for the Rent unlesse he first shew the performance of the Condition for that enables him to the Rent but if I grant to one out of my Land a Rent-charge upon Condition that he shall do such a thing here he shall avow for the rent without shewing the thing to be done for the Condition is subsequent and goes in defeasance of the estate which he that would have the estate to continue ought not to shew because it makes against him Copy-hold 5. A Copy-hold Lord in suing for a Fine upon admittance Ho. 135. Denny and Lemman need not aver that the Fine set upon the Copy-holder was reasonable because that might perhaps make against him if it should be adjudged by the Court unreasonable but the unreasonablenesse of the Fine ought to be pleaded on the Copyholders part 169. Non potest adduci exceptio ejusdem rei cujus petitur dissolutio Taile discontinued 1. If Tenant in tail of Lands make a gift in tail or a Lease for life Co. Inst pars 1. b. 2. rendring a rent and dyeth and the Issue bringeth a Formedon in the Descender in this case the Reversion and Rent shall not bar the Demandant because by his Formedon he is to defeate the Reversion and Rent Et non potest adduci c.
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
lessee that he shall not be impeached of waste the lessee may plead this in barr of the action of waste without bringing his action of Covenant Finch ibid. 5 Vpon the grant of a ward with warranty the defendant in a writ of right of ward may rebut the plaintif by that warranty and shall not be driven to bring an action of Covenant upon the grant to avoid circuit of action Finch fo 14. Fr. Edi. 6 One that hath rent issuing out of land disseiseth the terre-tenant Recouper in an Assise by the disseisee the disseisor shall recoup the rent in the damages and the reason is for avoiding circuit of action for otherwise when the disseisee re-enters the action for the arrerages of rent shall be received but Circuitus est evitandus boni Iudicis est lites dirimere ne lis ex lite oriatur Vide Co. l. 5. 31. a. 2. in Coulters case 180 Matter of Vexation And therefore Co. Inst part 1. 127. a. 1. 1 If the demandant or plaintif be non sute Plaintif amerced or judgement given against him he shall be amerced pro falso clamore for vexing and troubling the tenant or defendant without just cause Co. l. 5. 73. b. The case of Orphans 2 If any Orphan of London Oâ—phans which by the custom of that City is under the government of the Maior and Aldermen there sue in the Ecclesiastical Court or in the Court of Requests c. for any goods money or chattels due unto them either by the custom of London or by any devise or legacy in the will of their Ancestor or to have accompt c. In such case a prohibition lyeth because the government of the Orphans of London belongs to the Maior and Aldermen of that City and they have Iurisdiction of them And per Popham if the Lord of a Manor hath probate of testaments within his Manor if any will prove such a will in the Ecclesiastical Court a prohibition lies because the jurisdiction thereof belongs to another And the reason of this is for that otherwise the party might have double vexation and trouble Iudgement drowns a â—oâ—d 3 Where a man hath judgement upon an Obligation Co. l. 6 45. a. 3. Higgens case he shall not afterwards bring an action of debt upon the same obligation against the same party not only because the judgement hath drowned the bond by changing it into a matter of record but likewise for that if he that so recovers might have another new action and another new judgment he might also by consequent have infinite actions and infinite judgements to the perpetual vexation and charge of the defendant and infinitum in lege reprobatur Co. ibid. 46. a. 2. And therefore if a man brings an action of debt upon an Obligation and is barred by the judgement as he so long as that judgement stands in force cannot have a new action Pari ratione when he hath judgement in an action upon the same Obligation so long as that judgement stands in force he shall not have a new action Sure in two Courâ—s 4 If any use the Countenance of Law which was instituted to prevent Co. l. 8. 60. a. 3. in Beechers case and make an end of controversies and vexation for double vexation he shall be fined As if a man sue in the Common pleas and afterwards for the same cause sue the defendant in London or any other Court the plaintif shall be fined for this unjust vexation 9 H. 6. 55. 14 H. 7. 7. And in a Recaption the plaintif shall recover damages and the defendant shall be fined and imprisoned for his double vexation Vide F. N. B. 71. f. m. infra 181. 7. 5 In good discretion no melius inquirendum shall be awarded after office found against the King without view of some Record Co. l. 8. 169. a. 4. in Paris Stroughters case or some other pregnant matter for the King to avoid further vexation of the subject And therefore where upon a Diem clausit extremum it was found that the land was held of the Quéen Dyer 292. pl. 71. 12 Eliz. sed per quae servitia Iuratores ignorant and thereupon a melius inquirendum awarded whereby the tenure was found of a subject and all other points certainly found In this case the first office was adjudged void by the sence of 2 3 E. 6. and the rather because it should give no further occasion of vexing the subject for that the usual course was upon a double Ignoramus to adjudge a tenure for the King in Capite 181 Pendente Lite nihil innovetur Quarâ— Impedâ—t 1 At the Common Law Co. Inst part 1. 344. b. 3. if hanging a Quare Impedit against the Ordinary for refusing the Patrons Clerk and before the Church were full the Patron had brought a Quare Impedit against the Bishop and hanging the sute the Bishop had admitted and instituted a Clerk at the presentation of another In this case if judgement were given for the Patron against the Bishop the Patron might have had a writ to the Bishop and removed the Incumbent that came in pendente lite by usurpation for pendente lite nihil innovetur And therefore at the Common Law it was good policy to bring the Quare Impedit against the Bishop as spéedily as might be Co. l. 115. b. Foliambs case F.N.B. 60 a. 2 In Real actions depending as Formedon dum fuit infra aetatem Estrepment writ of right or the like the demandant shall have a writ of Estrepment to inhibit the tenant from committing waste or estrepment hanging the sute the like writ also may be had after judgement and before execution Vide the Statute of Glocester 6 E. 1. cap. 13. It lyeth also in an action of waste and the words of the writ are Tibi praecipimus quod ad messuagium praed personaliter accedens totaliter ordinari facias quod vastum seu estrepamentum de eodem messuagio contra formam Statuti praedict non fait pendente placito praed indiscusso Co. l. 6. 29. b. 3. 3 In Dyer 339. 17 Eliz. A presentation obtained of the Queen Presentation hanging a Quare Impedit in deceit of the Queen was adjudged void In Greens case F. N. B. 20. c. 4 In a writ of Error after errors assigned and scire facias awarded against the defendant upon such assignment Error the plaintif shall not assign any error in fact as to allege that the plaintif in the other action was dead at the time of the judgement or before the judgement or the like And when the plaintif may assign errors in fact he shall assign but one error of that kind but he may assign as many errors as appear in the record because this shall be tried by the Iustices in Court but that by a Iury which innovation will much delay and prejudice
Law because they are not criminal The reason of discontinuance 7 The reason why alienations in fée in tail or for life Co. ibid. 327 a. 2. by tenant in tail Abbot Bishop husband of his wives land and the like doe make a discontinuance and put the issue in tail him in the reversion or remainder successor or wife that right had to their action and took away their entry was for that he was privy in estate and for the benefit of the purchasor and for the safeguard of his warranty so as every mans right might be preserved viz. to the demandant for his antient right and to the feoffee for the benefit of his warranty which was founded upon great reason and equity because the benefit of the warranty would be prevented and avoided if the entry of him that right had were lawfull and thereby also the danger that many times hapneth by taking of possessions was warily prevented by Law Stat. of Gloc. Warranty Assets 8 By the express purview of the Statute of Glocester Co. ibid. 366. a. 2. cap. 3. where the baron aliens his wives Inheritance with warranty if assets do after descend from the father then the tenant shall have recovery and restitution of the lands of the mother But in a Formedon for lands intailed if at the time of the warranty pleaded no assets be descended so as the demandant recovereth the land if afterwards assets descend there the tenant shall have a Seire facias for the assets and not for the land intailed And the reason hereof is for that if in this case the tenant should be restored to the land intailed then if the issue in tail should alien the assets his issue in a Formedon would again recover from the tenant the land intailed And therefore the Sages of the Law to prevent future occasions of sutes have heretofore resolved the said diversity in the cases abovesaid upon consideration and construction of the Statute of Glocester and of the Statute de donis West 2. cap. 1. Vide supra 15 9. 157 14. 178. 22. Co. Inst part 1. 392. a. 4. 9 The punishment which the Law inflicts upon a felon is very severe for he is not only punished in his own person Punishment of Treason and Felony but likewise in his relations The judgement against his person is that he shall be hanged by the neck until he be dead he is punished also implicative in his relations as 1. In his wife for she shall lose her Dower 2. In his children for they shall become base and ignoble 3 In his Posterity for his bloud is stained and corrupted so that they shall not inherit either to him or any other Ancestor 4. In his real estate for he shall forfeit all the lands that he hath in feesimple feetail or for life 5. In his personal estate for he shall forfeit all his goods and chattels both real and personal Thus heavy was his punishment at the Common Law And the reason thereof was to the end men should fear to commit felony ut poena ad paucos metus ad omnes perveniat And it is truly said Etsi meliores sunt quos ducit amor tamen plures sunt quos corrigit timor And so it is a fortiori in case of High Treason Howbeit after the Statute de donis 13 E. 1. cap. 1. Intailed lands could not be forfeited for felony or treason but only during the life of tenant in tail but since by the Statute of 26 H. 8. cap. 13. Intailed lands shall be also forfeited for Treason Also by the Statute of 1 E. 6. c. 12. the wife was to be endowed albeit her husband were attainted convicted or outlawed for treason or felony but afterwards by the Statue of 5 6 E. 6. cap. 11. The wife shall lose her dower where the husband is attainted of Treason so long as the attainder continues in force There are also divers offences made felony by special Statutes wherein dower corruption of bloud and disherison of the heir are by special provision saved Co. ibid. 171. b. 3. 10 The Law hath provided for the safety of a mans Infants age or a womans estate that before their age of twenty one yeares they cannot bind themselves by any déed or alien any lands goods or chattels Co. l. 2. 44. a. 4. in the Bishop of Winchesters case 11 A meer Layman Prescription for tithes which was not capable of tithes in perancie was yet capable of discharge of tithes at the Common Law in his own land as well as an Ecclesiastical person for by the Common Law the Parson Patron and Ordinary might have discharged a parishioner of tithes in his own land or the parishioner might have given part of his land to the Parson for the discharge of tithes in the residue as appears in 8 E. 4. 14. and in the Reg. fol. 38. Howbeit this was alwayes by grant or composition but he could never be discharged of tithes by prescription for albeit such prescription might have lawful commencement yet the Law in favour of holy Church would never suffer such prescription to be put to the trial of lay-men lest they should rather strain their consciences for their private benefit than render the Church the Duties due unto it Vide supra 2 5. Feofment per fait not devested by parol 12 The Law to prevent sutes and troubles will not permit Co. l. 3. 26 b. 2. in Butler and Bakers case that a franktenement shall be lightly devested by bare words in pais to the end the tenant to the praecipe may be the more certainly known therfore if there be Lord and tenant and the tenant by déed enfeoffs the Lord and a Stranger and make livery to the stranger in the name of both In this case if the Lord by parol disagree to the estate this is not valid to devest it or if he enter into the land and distrain for the services of his Seigniory this shall amount to a disagreement of the feoffment and shall not devest the franktenement out of him but if he enter into the land generally and take the profits this act shall amount to an agreement to the feoffment as it is adjudged per tot Cur. in 10 E. 4. 12. For then it is not left uncertain who are tenants to the praecipe c. Attornment 13 If a reversion of two tenants for life Co. l. 2. 67. a. 4. in Tookers case or the rent or seigniorie of two Iointenants be granted by fine here in a Quid juris clamat Quem redditum reddit or Per quae servitia against such Iointenants the Law will not permit the one to attorn without his Companion because the one making attornment without the other may prejudice his companion as in not claiming to be dispunishable of waste a Condition to have fee a future term or the like for upon a general attornment in Court
cases agitur civiliter and not criminaliter and verba accipienda sunt in mitiori sensu Also the Innuendo will not serve when the words themselves are not slanderous Co. l. 6. 6. a. Sir Iohn Molyns case 5 E. 3. is Lord the Abbot of Westm Mesne Tenure and C. tenant of the Manor of D. the tenant is attainted of treason and office thereof found E. 3. grants the Manor to Sir Iohn Molyns and his heirs Tenendum de nobis haeredibus successoribus nostris et aliis capitalibus dominis feodi illius per servitia inde debita de Iure consueta In this case the question was of whom and how this Manor was holden And here albeit it was objected that the Tenendum being by the services inde thence due at which time nothing was due to the Mesne the Mesnalty continued still extinct and therefore that it was holden immediately of the King yet it was adjudged that by those words of the Patent the Mesnalty was revived for when those words may be interpreted two manner of wayes viz. either immediately of the King or mediately by the Mesne reason requires that the words should be understood in the milder sence especially when that appears to be the Kings intention and tends more to his honour and it is not reasonable that the Mesne who offended not should lose his tenure Co. l 6. 6. b. Wheelers case 6 H. 8 grants land Tenure Tenendum de nobis et haeredibus nostris per servitium unius Rosae Rubeae Annuatim ad festum Nativitatis Sancti Iohannis Baptistae solummodo pro omnibus omnimodis aliis servitiis And this was adjudged tenure in soccage in Chief and not tenure in Capite by Knightservice for albeit it was objected that the patentée could not hold onely by the Rose because homage or at least fealty was incident to every tenure and therefore that the King was deceived in his grant yet it was resolved that for as much as fealty is incident to every rent service the Law annexeth fealty to the rent and these words viz. Pro omnibus aliis servitiis are to be understood of other services which the Law doth not imply or add to it so as the tenure shall be by a Rose and fealty and this is the benign construction of Law as near the Kings intention as may be by which construction the said words pro omnibus aliis servitiis have some effect and shall not be rejected as vain and of no force Co. l. 6. 66. b. Sir Moyle Finches case 7 When a Manor hath once had the reputation of a name Name in reputation by which it hath been commonly known albeit the demesnes be afterwards severed from it so as it ceaseth to be a Manor yet in grants fines or other amicable conveyances it may pass still by the name of a Manor but not in Adversary writs c. so if I have a Park by the license and grant of the King and by the name of a Park it is commonly known and after I surrender my patent to the King by which in Law it remains no longer a Park yet it having once obtained the name of a Park in truth it is a good ground for the reputation and continuance of the name of a Park afterwards and by that name may pass in conveyances And all this by a favourable construction of Law c. Remainder vests 8 If land be granted to A. for life the remainder to B. for life Pl. Co. 32. a. 2. in Colthrist Beinshâ—ns case and if B. die living A. that then it shall remain to C for life In this case this word then shall not be intended presently during the life of A. as these words prima facie do seem to import but they shall have a beneficial construction viz. that then it shall remain as a remainder ought to doe that is to say to vest then and to be executed after the death of A. So if a gift in tail be made upon condition that if he doe such an act that then the land shall remain to his right heirs this word then is not so to be understood as if it should avoid the estate tail and to be executed presently upon the act performed but it is to be intended that upon the act performed the remainder shall vest and after the estate ended shall be executed and not before 189. Construeth things according to Common possibility or intendment And therefore Judges 1 Regularly Iudges ought to adjudge according to common intendment of Law Co. Inst part 1. 78. b. 1. Parson 2 By intendment of Law every Parson or Rector of a Church is supposed to be resident on his benefice unlesse the contrary be proved Vide 2 3. Manor 3 By common intendment one part of a Manor shall not be of another nature than the rest A Will. 4 By common intendment a Will shall not be supposed to be made by collusion BonuÌ„ Vicinus Possibilia 5 In facto quod se habet ad bonum malum magis de bono quam de malo lex intendit Lex intendit vicinum vicini facta scire Nulla impossibilia aut inhonesta sunt praesumenda vera autem et honesta et possibilia Guardian Ward 6 Lex semper intendit quod convenit rationi As in this case the Guardian shall have the custody of the land until the heir come to his full age of one and twenty years because by intendment of Law the heir is not able to do Knight service before that age which is grounded upon apparent reason Iurors 7 By the Common Law in a plea real mixt or personal Co. ibid. 157. a. 1. 158. b. 2. there ought to be 4. of the Hundred where the cause of action ariseth returned for their better notice of the cause for vicini vicinorum facta praesumuntur scire Howbeit by the Statute of 27 Eliz. 6. In a plea personal if two Hundreders appear it suffiseth And in an Attaint albeit the Iury is double yet the Hundreders are not double Fee-simple 8 When a man is said to be seised in fee without more Co. ibid. 189. a. 2. Littl. §. 293. it shall be intended in fee simple and it shall not be intended by this word in fee that a man is seised in fee tail unless this addition be put to it fee tail for fée shall be taken secundum excellentiam for the highest and best fee and that is fee simple Verdict 9 If a verdict find that a man hath duas partes Manerii Co. ibid. 190. b. 3. c. in tres partes divisas this shall not be intended to be in common but if the verdict be in tres partes dividendas then it séems that they are tenants in Common by the Intendment of the verdict Co. ibid. 226. a. 1. 10 The Lord by escheat albeit his
Lease for life or a gift in tail by déed reserving a rent this shall enure to the tenant for life only during his life and after to him in the reversion for each of them grants that which he may lawfully grant and if at the Common Law they had made a feoffment in fee generally the feoffee should have holden of the tenant for life during his life and after of him in reversion And so it was holden Mich. 36 37 Eliz. in B. R. Release 5 If a man make a lease to A. for term of the life of B. and after release to A. all his right in the land Co. Inst part 1. 273. b. 1. ◠by this A. hath an estate for the term of his own life for a lease for term of his own life is higher and better in judgement of Law than an estate for the term of another mans life So if a release be made to tenant by Statute Merchant or Staple or tenant by Elegit or to Guardian in Chivalry who holdeth in for the value of the marriage by him in reversion of all his right in the land by this a fréehold passeth for the life of him to whom the release is made for that is the best and greatest estate that can pass without apt words of Inheritance viz. heirs Accruer 6 Queen Eliz. being seised of a Reversion in fee upon an estate tail in the Lord Stafford grants it to Tindal in tail Co. l. 8 77. a. 2. in the Lo. Staffords case upon condition to have praedictam reversionem in fee Here these words praedictam reversionem shall not be construed to extend to the estate tail granted before to Tindal but to the reversion in fee. Feoffments 7 The heir of the disseisor being in by descent Co. Inst part 1. 302. b. 1. Littl. §. 534. the disseisee and he jointly enfeoff another in fee by deed and livery of seisin is had thereupon In this case as to the heir the land passeth and the deed enures by way of feoffment and as to the disseisee by way of Confirmation for by construction of Law the land shall ever pass from him that hath the estate of the land in him as if Cestuy que use and his feoffees after the statute of 1 R. 3. 1. and before the Stat. of 27 H. 8. 10. had joyned in a feoffment it had been the feoffment of the feoffees because the estate of the land was in them So it is likewise if the tenant for life and he in the remainder or reversion in fee joyn in a feoffment by deed the livery of the freehold shall move from the lessee the inheritance from him in the reversion or remainder from each of them according to his estate for it cannot be adjudged by Law that the feofment of tenant for life doth draw the reversion or remainder out of the lessor or him in remainder or doth work a wrong because they joyned together So if there be tenant for life the remainder in tail the remainder in tail c. and tenant for life and he in the first remainder in tail levy a fine this is no discontinuance or devesting of any estate in remainder but each of them pass that which they have power and Authority to pass The like 8 If the disseisor and disseisee joyn in a charter of feoffment Co. ibid. 302. b. 4. and enter into the land and make livery it shall be accounted the feoffment of the disseisee and the confirmation of the disseisor because the entry of the disseisee was then lawfull It is otherwise when the heir of the disseisor and the disseisee join as in Littletons case supra 7. for in such case the disseisees entry is not congeable But if he in the reversion in fee and tenant for life ioin in a feoffment by parol this shall be as some hold first a surrender of the estate of tenant for life and then the feoffment of him in the reversion for otherwise if the whole should pass from the lessee then he in the reversion might enter for the forfeiture and every mans act ut res magis valeat c. shall be construed most strongly against himself 9 Words are alwaies taken best for the Speaker Hob. 77. Adrian Coote so as there is one Rule for deeds or pleading and another for words 194 Every Act to be lawfull when it standeth indifferent whether it should be lawfull or not Co. Inst part 1. 42. a. 4. 1 A. tenant in fee simple makes a lease of lands to B. to have and to hold to B for term of life Estates for life without mentioning for whose life it shall be This shall be deemed for term of the life of the lessee because in this case it shall be taken most strongly against the lessor an estate for a mans own life being as to him better and higher than for the life of another But if tenant in tail make such a lease without expressing for whose life this shall be taken but for the life of the lessor for two reasons First when the construction of any act is left to the Law the Law which abhorreth injury and wrong will never so construe it that it may work a wrong And in this case if by construction it should be for the life of the lessee then should the estate tail be discontinued and a new reversion gained by wrong but if it construed for the life of the tenant in tail then no wrong is wrought And it is a general Rule that whensoever the words of a deed or of the parties without deed may have a double intendment and the one standeth with Law and right and the other is wrongfull and against Law the intendment that standeth with Law shall be taken 2. The Law respecteth more a lesser estate by right than a larger estate by wrong as if tenant for life in remainder disseise the tenant for life in possession in this case the disseisor hath a fee-simple but if tenant for life in possession die now is the disseisors wrongful estate in fee by Iudgement of Law changed to a rightfull estate for life So if tenant in tail make a lease to another for term of life generally and after releaseth to the lessee and his heirs Here albeit between the tenant in tail and the releasee a fee-simple passed yet after the death of the lessee the entry of the issue in tail is lawfull which could not be if it were a lease for the life of the lessee for then by the release it had been a discontinuance executed In like manner if I retain a servant generally without expressing any time the Law shall construe it to be for one year because that retainer is according to Law Vide Stat. 5 Eliz. cap. 4. Co. Inst part 1. 55. b. 3. 2 If lessor at will without the consent of the lessee enter into the land and cut
down a tree where the trees are not exempted this is an implyed determination of the will Lease at will for that it would otherwise be a wrong in the lessor to do it So if a man lease a Manor at will whereunto a Common is appendant and the lessor puts in his beasts to use the Common this is also a determination of the will for otherwise he should be a trespassor Co. ibid. 78. b. 2. 3 By common intendment a will shall not be supposed to be made by collusion for In facto quod se habet ad bonum malum A Will. magis de bono quam de malo lex intendit Co. ibid. 119. a. 3. Littl. §. 179. 4 If there be tenant for life of land the reversion in fee Villein a Villein purchase the reversion and the tenant for life attorns In this case the Lord may justifie to enter upon the Land and claim the reversion and yet shall be no trespassor to the tenant for life for the Law will make construction that he entred to make his claim and not to commit trespass The like Law is also of a reversion after an estate in tail Statute Merchant or Staple Elegit and for years and of the reversion of a Seigniory rent common and any other freehold or inheritance issuing out of any lands or tenements of another Co. ibid. 170. b. 4. If Partition be made by the two Barons in the life-time of their femes coperceners albeit such partition be unequal yet it is not void Pa râ—tion but voidable for it shall be déemed good and lawfull until it be defeated by the entry of either of the femes if she happen to survive her husband There is the like Law of an Infant copercener Co. ibid. 171 a. 4. for it remains good if he defeat it not at his full age Feoffment upon condition 6 If a feoffment be made by deed poll upon condition Littl. §. 376. Co. ibid. 232. and the feoffor haps the deed poll and afterwards the condition is broken wherupon the feoffor re-enters In this case having the deed en poigne albeit it doth not properly appertain to him but to the feoffée yet he may make use of the deed and thereby plead the condition in justification of his entry and title for it will be rather intended that he came to the déed by lawfull Joint trespass than by tortious means Littl. §. 3â—7 So if there be two joynt trespassors and the party trespassed releaseth to one of them In this case also if the other trespassor be sued and have the release en poigne he may plead it in discharge of the trespass causa qua supra Bastard 7 If the husband be within the 4. seas viz. within the Iurisdiction of the King of England if the wife hath issue Co. ibid. 144. a. 2. no proof is to be admitted to prove the Child a Bastard for the question being whether he is legitimate or no the Law will rather deem him legitimate than Proles spurius a bastard And in this case Filiatio non potest probari The like 8 If a man hath issue two daughters the eldest being a Bastard Co. ibid. 244. a. 4. and they enter and enjoy the land peaceably together Here the Law in favour of legitimation will not adjudge the whole possession in the Mulier who indeed hath the only right but in both so as if the Bastard hath issue and dieth her issue shall inherit And in the same case if both daughters enter and make partition this partition shall bind the Mulier for ever The like 9 If the Bastard invite the Mulier to see his house Co. ibid. 245. a. 2. and to see pictures c. or to dine with him or to hawk hunt or sport with him or such like upon the land descended and the Mulier cometh upon the land accordingly this is no interruption because he came in by the consent of the Bastard and therefore the Law will not adjudge the coming upon the land in such case to be any trespass but if the Mulier cometh upon the ground upon his own head and cutteth down a tree or diggeth the soil or take any profit these shall be interruptions For rather than the Bastard shall punish him in an action of trespas the act shall amount in Law to an entry because he hath a right of Entry so it is if the Mulier put any of his Cattel into the ground or command another to do it these do amount to an entry for albeit in these cases the Mulier doth not use any express words of Entry yet these and such like acts do without any words amount in Law to an Entry for acts without words may make an Entry but words without an act viz. Entry into the land c. cannot make an Entry Vide infra 28. M scon inuance 10 If one process be awarded instead of another or a day is given which is not legal this is a miscontinuance of the sute Co. ibid. 325. a. 4. and if the tenant or defendant make default it is good cause of Error but if he appear then is the Miscontinuance salved for albeit in truth his appearance is not legal yet when he appears the Law shall construe it to be lawfull because there is a sute depending against him in Court Dâ—scontinuance of estates 11 If there be tenant for life the remainder in tail Co. ibid. 332 a. 4. and he in the remainder grants it to another in fee by deed and the tenant for life attorns this is no discontinuance of the remainder in tail So it is likewise of a rent charge Advowson in gross Common in gross or the like for the Rule is that a grant by deed of such things as do lie in grant and not in livery of seisin do work no discontinuance and the reason is because the Law makes construction that of such things the grant of tenant in tail worketh no wrong either to the issue in tail or to him in reversion or remainder for in such case the Law adjudged nothing to pass from the tenant in tail but that which he may lawfully grant viz. an estate for his own life Co. ibid. 335. a. 2. 12 If tenant for life make a lease for his own life to the lessor the remainder to the lessor and a stranger in fée Surrender Forfeiture In this case for as much as the limitation should work a wrong by construction of Law it rather inureth to the lessor as a surrender for the one moiety and a forfeiture as to the remainder of the stranger for he cannot give to the lessor that which he had before and as to the remainder to the stranger it is a forfeiture for his moiety and when the lessor entreth he shall take benefit thereof Co. Inst part 1. 381. b. 1. 13 The words of an Act
certain of their friends to make partition between them who make partition of the Rooms and Chambers of the Castle assigning some to one and some to another c. this Partition is void because a Castle which is to be kept intire pro bono publico and for the safeguard of the Commonwealth will not admit of any such division albeit such a partition of other lands that are partable had been good in Law and binding to the Coparceners after election of their several Parts Co. ibid. 31. b. 3. Dower Neither shall such a Castle be assigned for Dower albeit the parties consent thereunto because the publique shall be preferred before the privat Co. l. 7. 23. a. 3. Buts case 2 A. seised of black acre in fee Rent out of a lease for years and also possessed of white acre for years grants a rent charge out of both to B. for his life with Clause of Distress c. In this case the estate of the rent being a Franktenement according to the purport of the deed cannot issue out of the term for years but out of the land only which the grantor had in fee-simple because the Franktenement of the rent cannot issue out of a Chattel and the intire rent cannot be Franktenement out of black acre and a chattel out of white acre and to make two rents when one only is granted would be injurious Neither yet can the contract and mutual agreement of the parties charge such a thing with a rent which is not chargeable by Law as out of an Hundred or Advowson 30 Ass Pl. 5. or out of a Fair 14 E. 3. Scire facias 122. The Earl of Kents case Neither can a rent be granted or reserved of any estate of Franktenement out of any other Franktenement which is not mainourable either in possession reversion or by possibility but is only haereditamentum incorporeum for Pacta privata non derogant juri communi And in an Assise they cannot be put in view neither can any distress be taken in them And in the case above albeit white acre be haereditamentum corporeum and mainourable yet in respect of the exility and incapacity of the interest which the grantor hath in it that rent of Franktenement cannot issue out of it but out of the land in fee simple And in that case also in an Assise brought for the rent the land in fee shall be only put in view And if the Grantee should accept a lease or grant of white acre that will not suspend his rent Co. l. 9. 128. a. 4. in Sondayes case 3. Term. Hill 8. Iac. it was resolved by the two Chief Iustices Recovery Title the Chief Baron and the Court of Wards that no condition or limitation be it by act execute or limitation and use or by devise in a last will can barr tenant in tail to alien by a Common recovery for the causes and reasons reported at large in Sir Anthony Mildmayes case in the 6. Report Co. l. 9. 141. b 3. in Beaumonts case 4 If there be Lord and tenant of a Carue of land Confirmation and the tenant hath issue and is attainted of felony and the King pardons him and after the Lord confirms the estate of the tenant and the tenant dies In this case the Lord shall have the land against his own confirmation for the confirmation cannot add to the estate of the tenant a descendible quality to him who was disabled to take the land by descent For Pacta privata juri publico derogare non possunt The like 5 Baron and feme being tenants in special tail Co. ibid. 138. b. 141. b 4. the remainder to the heirs of the Baron the Baron levies a fine to E. 6. who grants to the Earl of Hunt in fee the Baron dies and the Feme enters and the E. of H. confirms her estate Habendum to her and the heirs of the body of the Baron then the Feme dies having issue a son In this case the confirmation is void for it cannot add a descendible quality to the issue in tail who was disabled by the fine to take by descent Again if that confirmation should add to the estate of the feme a descendible quality it would in effect as to that point repeal no less than two Acts of Parliament viz. 4 H. 7. 24. and 32 H. 8. 36. by which the estate in tail is barred as to the issues and the issues are disabled to claim the Land by force of the said estate tail Sed Pacta privata c. Common Recovery 6 Tenant in tail cannot be prohibited by any condition or limitation to barr the issues in tail as also the reversions or remainders Co. l. 10. 38. b. 1. 4. Mary Portingtons case by suffering a Common Recovery much less can he be prohibited to prevent by any such condition or limitation a going about conclusion or agréement to suffer such a recovery for to suffer such a recovery to the purposes aforesaid is an incident so inseparably annexed to an estate tail that it cannot possibly be prohibited by any such condition limitation or other agréement whatsover between the Parties Conventio privatorum non potest c. So likewise Dower or tenancy by the Curtesie cannot be restrained by condition because they are annexed to the estate tail by Law no more than a tenant by the Curtesie or tenant in tail after possibility can be by condition made punishable for waste Also things ordained by Statute cannot be restrained by condition c. as that the tenant in tail shall make no leases according to the Statute of 32 H. 8. 28. or levy a fine according to the Statutes of 4 H. 7. 24. 32 H. 8. 36. to barr the issues for none of these which are incident to his estate by Act of Parliament can be restrained by condition or limitation Auditors of the Wards 7 The King himself cannot do any thing against an Act of Parliament when the subject hath also an interest in it Co. l. 11. 3. b. 4 in Auditor Curles case And therefore albeit the words of the grant to the two persons ordained by the Statute of 32 H. 8. 46. to be Auditors of the Court of Wards be conjunctim divisim et alterius eorum diutius viventis yet that being an office of trust there shall be no survivor thereof for that it being enacted by that Statute that there should be two persons c. which should have a judicial voice the King cannot constitute one only for the Subject by the Act hath interest therein Et securius expediuntur negotia commissa pluribus Howbeit the King may constitute one at one time by one patent and another at another time by another patent And albeit he may so do yet he who is first constituted hath not any judicial voice until the other be constituted also for it is provided by the Statute
be a default or defect than that the Law should be changed 13 Albeit the King hath a prerogative above others F. N. B. 7. b. Finch 84. that he may sue in what Court he pleaseth as to bring a Quare Impedit or a writ of Escheat of Lands in London retornable in the Kings Bench yet he cannot change the nature of the writ otherwise than the Law gives power to him and others or hath been formerly used Assise of Fresh force in London 14 In an Assise of Fresh force in London before the Maior and Aldermen against Foxley and Agnes his wife and 11 others Pl. Co. 90. b. 4. 10 of them appear by Bailiff and plead No such woman as Agnes the wife of Foxley in rerum natura and demand judgement of the Plaint and that it should be inquired by the Assise c. and the others plead the same plea by Attorney And it was adjudged that the Plaint should not abate but should stand good against all the rest save only Agnes And this resolution was given upon the advice of Iustice Hales to Southcote then Iudge of the Hustings where the sute was brought because as Hales said all the books went that way and not one the other way And therefore he advised Southcote to follow the judgements formerly given Trial of accessory 15 An accessory shall not be arraigned as accessory before all the principals be attainted Pl. Co. 99. b. because it had béen alwaies the usual course in such cases so to procéed and therefore it seemed the best way to the Court to pursue the same order that the Sages had formerly used and the rather for that he may not be accessory to one and yet may be found accessory to another Common Recâ—very 16 In the case of a Common Recovery Co. l. 2. 74. a. 3. in the L. Cromwells case he that enters into the warranty may if he please save his rent issuing out of the land yet if he enter into the warranty generally it may be saved by covenant and agréement in the Indenture made before the recovery as may be agreed betwixt them and this in favour of Common Recoveries which are the Common assurance of land the usual form whereof shall not be altered by any special matter of Entry saving his rent or condition but they ought to be saved by the Indenture dehors For Conveiances which are used for Common assurances of land shall be expounded and construed according to common allowance without prying into them with Eagles eyes And therefore Pasch 35 Eliz. in Dormers case it was adjudged in the Kings bench that a Common Recovery may be had of an advowson So was it also adjudged in the Exchequer in Sir Will. Pelhams case that if a Common Recovery be suffered by tenant for life it is a forfeiture of his estate and the reason of both these Iudgements was because that a Common Recâ—very is by usage a Common conveyance as a fine feoffment c. And it is said in Trevilians case 514. that in Common Recoveries the common usage and the intent of the parties are to be respected for a Common Recovery had against Baron and Feme shall barr the feme of her dower and yet the feme shall not have any recompence in value and therefore in strictness of reason it is strongly to be maintained that Common usage and the intent of the parties make this barr according to these rules Non recedendum est a Communi observantia Minime mutanda sunt quae certam habuerunt interpretâ—â—onem And these Rules hold not only in a Common Recovery but much strongger in a fine which is also a Common assurance of land for in case of a Recovery the Vouchée may enter into the warranty saving his action rent condition c. and yet because Common usage hath allowed it herâ—tofore they may be better saved by covenant and agréement as aforesaid Howbeit in a fine no saving can be contained therein and therefore by necessity and according to common usage alwayes allowed they ought to be saved by the direction and Rule of a precedent covenant and grant Vpon which ground it was adjudged in 6 E. 2 tit Estoppel 2. that if a man and his wife enfeoff two by déed to have and to hold to them and their heirs and after the feoffor and his wife levy a fine sur conusance de droit to them and the heirs of one of them yet this is no conclusion but that both of them may have the fée-simple as they had it before 203 A Communi Observantia non est recedendum Littl §. 371. Co. Inst pars 1. 229 b 4. Vide Max. 203. 1. 1 The making of an Indenture in the third person is the most sure way because it is most commonly used whereby it appeareth Indentures in the third person that the form which is most commonly used in conveyances is the safest Magister Rerum usus It is provided by the Statute of 38 E. 3. 4. that all Penal bonds in the third person be void and holden for none wherein some Books viz. 40 E. 3. 1. 2 H. 4. 10. 8 E. 4. 5. seem to differ but they being rightly understood there is no difference at all for the Statute is to be intended of Bonds taken in other Courts out of the Realm and so it appeareth by the preamble of that Act being indéed principally intended of the Courts at Rome and so it appeareth by Iustice Hankford in 2 H. 4. In which Courts bonds were taken in the third person so as such bonds made out of the Realm are void but other bonds in the third person are resolved to be good as well as Indentures in the third person by the opinion of the whole Court in 8 E. 4. Co. ibid. 303. a. 3. 2 The antient forms of Courts are to be duly observed Pleading as Cum dimisit or Cum dedit and not to say that he was seised and demised c. and yet if he say so it maketh not the Count vitious But in a barr replication or other kind of pleading the party must allege a seisin in the Lessor or Donor and antient forms of pleading are also to be observed Co. l. 1. 24 b. 3. in Porters case 3 The Statute of 23 H. 8. 10. ordains that if any grant of land Charitable uses c. shall be made in trust to the use of any Churches Chapels Church-wardens Guilds Fraternities Commonalties Companies or Brotherhoods c. all such uses shall be void they being no corporations but erected either of devotion or else by common consent of the people yet this Statute doth not make good and charitable uses not savouring of any superstition to be void as to find a Grammar-school to sustain poor people or any other such good use but only superstitious â—ses because that Statute hath been alwayes by the Common opinion so taken to be for almost
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
away by Corruption of blood 37 Revived 38. Is not good where is no Interest 55. Taken from the Issue in taile 57 After Entry the party Trespassor Ab initio 108. Given to the King withouâ— demand 275. When may be for non-payment of Rent without demand Et e contra 496. By a stranger devests not an estate 485 Encroachment of Rent avoided in Avowry or by Nuper obijt 477 Emblements 85 466 587. 730 442 583. Equity What it is 202. Upon certaine statutes 204 295 210 211 212 213. Error Not after a Release 105 In Court 124. By him in the Reversion or Remainder 132. In Law not reversable in the same Court 170. By the Vouchee 197. Who may have Error 198. 546. Not upon Disclaimer 198. 647. No Writ before the Judgemennt be compleated 247. 274. 545. 693. In fact and in Law 682. In London 701. Upon a Plaint in Inferiour Courts 709 Escheat 294 Escape 36. 95. 572. 585. 685 772. 645. By marriage of the Keeper 36. Against a Goaler 561 Estrepment 700. In what case it lyeth 682 Estovers 135 194 Estoppell 186. 566. The heire where not estopped 573. No Estoppell to alledge the truth which appeareth on Record 604 Executors where they shall not recover Arreares but lose them 66 67. May release before Probate 125. Chargeable without naming of them 166. Not chargeable where the Testator might wage his Law 590. Of his owne wrong 466 Execution 400. Where against the Kings Debtor e contr 40. Of the Land onely which the party had at the time of the Judgement 42. Where returneable e contr 93. What Execution was at the common Law upon a Recognizance 214. 215. Cannot be of the profits of an Office in Trust 236. Discharged by purchase of parcell of the Land 240. Sheriff may breake open doores to do it 290. Where not against an heire Enfant 350. Valuable or without satisfaction 350. No protection after it 394. Of the body not valuable 587. Prisoners are in Execution till delivered over to the new Sheriff 699. Of Processe 699 Excomengment 688. Where a good Plea to abate a Writ e contr 38. Where it shall disable e contr 170 Exchange Imports Warranty and Covenant 137 Not equall void 242. Intire being a condition in Law 259. Not executed void 393 Exigent 122 Extent 480 Exposition of words 13 18 96 217 705 Construction of them must referr to the next Antecedent 15. In forma predicta 15. Of Sentences and words 21 23 Exception 165 Extinguishment Taile extinct in a fee-simple 223. Of a Rent charge barrs an annuity 434 Ex gravi querela to whom granted 550 F. FAiler Of Action 75. Of the Record 620 Falsifier of Recovery Not by Tenant in taile in Remainder 67 False Latine 19. Shall not quash a Count nor a judiciall Writ 21 Fealty 129 581. Incident though not named 134 Fee-simple Without words Heirs 409 passeth out of the King without Office 421 Fees Barons and Knights Fees 203 Feoffments To uses 148. To the use of his Will the use is in the Feoffor 53 Conditionall 285. Makes not extinguishment of Rent 482. Not to an Alien 618. By Deed not devefted by words 699 Feme covert 562. After coverture a Neife againe 31. disabled to bring Actions 551 Felony 50 420 Felo de se Shall not forfeit to the King a debt upon a simple Contract 694 Fines levied of Lands 93 214 400. Void 74 75 400 Cannot operate double 96 Barr an intaile 154 188 330 For yeares within the Statute of 11 H. 7. 209 Levyed by Covin shall not bar 586. 613. Reversed 715 Fines upon copy-hold Estates 434. Excessive or unreasonable no Forfeiture to deny them 685 Fine In a Leet to be distinct and not joynt 49 334 557. For an unjust vexation 68â— Eor disturbance in a Court of Record 741 Forejudger 371 Folly where attributed to the party and so bind them 666 667 Forfeiture of marryage not paid after Knigthood 34. Of a Dignity entailed 93 Not without some overt act done 108. Of an office for waste 214 For saying Masse 245. By Attornement upon Record 366 Foâ—cible Entry 91 Foundation of a Colledge where void 76 Formedon 41 599 Frankalmoigne 410 720 Frank-marriage Hotchpot 31. 62. Who shall have the Land after a Divorce 52. Out of use 158 Fractions in Conditions estates 256 257 Franchises shall not dye 64 65 Fraude 613 614 615 Fraudulent Grants 747 G. GArnishment 123 Gavelkind 148 Goales 133 Guardian the body of the Ward severed from the Land the Lord shall have the benefit of the two years 30. In Socage cannot present to a Benefice 104. Accountable 142 576. In Socage 235. 351. 371. Of what discharged upon his Account 583. Must account of the marryage of the heir 665 Goods too high apprised to be delivered the Apprisors 215 Grand Serjeancy 150 687 Grants of the King 206. Grants to the King restrained by generall words of Statutes 26. Of an office and after of a Rent for the exercise of it the office determined 41. Made upon false suggestions of the parties are void 302. 616. 457. Construed for his honor and the releife of the Subjects 741 Grants of an estate of Free-hold in futuro void 24. Not to be expounded against the expresse Letter 25. Of a Villaine for years not good without Deed 42. Of a Reversion not good without Attornment 67. Of Monopolie void 68. Of a Rent where void 74. Of the office of Auditor 77. Of a Surveyorship 77. To a Colledge where void 77. Of Glebe Lands void to Children before birth void 78. Made upon good grounds è contr 128. of Services Quid operatur 129 of the next avoydance 160. 164 245. 579. of a Seigniory 169. of Pawnage 245. of copyholds 252. In pais not good without Attornment 366. Joynt where they enure severally 608. 609. By Ecclesiasticall persons 762. Where good without Attornment 455 Made Concurrentibus his how they operate 484 Guifts to Husband and Wife how to be taken 62. Causa Matrimonii prolocuti 275 H. HAbendum and Premisses their difference 100 Heire a mans heir remaines in him during his life 241 Heresie 8 Heriot service and custome 254 Homage by Husband and Wife 767. Auncestrell gone after Alienation 30. 410. May be seperated and twice done 113. Personall 150 Extinct 173. Auncestrell implyes Acquitaile 607. Hotchpot 205 600 Hospitalls 407 Huy and Cry 588 Hundred not chargeable to a Felony done in a mans house 668 I. IDiots examined in Chancery 123 Imprisonment 320 356 743 Indictments Not void by Nicity or Curiosity 26. 27. Good though not pursued in the Circumstances 386. Where the wound must be left out è contr 602. Fraudulent 620. Auterfoits acquite where a good Plea 501 Incidents 131. Incident services not discharged without speciall words 131. Fish and Doves to the Free-hold 226. To a Deed 321. To Corporations 135. Inseperable 135. A Judgement distroyes a Bond 222 Intire things 262 263 264 265 266. 498. Intire Inheritances
suits and demands shall not barre him An award 13 A. is bound to B. to stand to the award of C. A. before the day of giving up the award dischargeth C. to make any award Co. l. 8. 82. Vivyors case In this case the Bond is forfeit For how can A. stand to the award when by revoking the Authority which he had given to C. he hinders C. to make the award c. Joyn-tenants 14 If there be two Joyn-tenants in fée Co. l. b. 79. a. The Lord of Aburgavenies case and one grants a rent charge in fée and after releaseth to his Companion In this case albeit he to whom the Release was made survive the other yet shall he not avoide the charge because he which survives by the acceptance of the Release hath deprived himselfe of the way and meanes of avoiding the said charge for jus accrescendi the right of survivour-ship was the onely meanes to have avoided it and the right of survivour-ship is utterly taken away by the release 15 Dyer 170 b. 1. 1 and 2 El. 15 H. 8. Demise of a Forrest in the 33 yeare of his Reigne demiseth to Sir Richard Cromwell the Forrests of Waybridge and Sapley in Com. Hunt with the appurtenances for 80 yeares at the yearely rent of twenty nobles with this clause viz. that Sir Richard Cromwell his Executors and Assignes should during the terme maintaine 100 Deere there and them or the like should leave there at the end of the terme Now the Lord North who had the Fée simple of the said Forrests attempted to take the Déer and give warrants there but most of the Iudges Seâ—jeants of both houses were of opinion he could not do it for all the Game was included in the word and name of the Forrest aâ—d the hundred Deer were not reserved to be killed or any of them becaâ—se then tâ—e Lord North would have debarred the Lessée of the meanes of preserving the Game and by consequent of performing his Covenant the end of preserâ—ing them being onely for the maintenance of the Game and Forrests Dyeâ— 240. 45. 7 El. 16 To build a new house upon the Wast or several grounds within a Forrest is a Parpresture and Nusance to the Game Forest Nusanceâ— and finable at the discretion of the Iustices of the Forrest to suffer it to stand or otherwise they may demolish it at their pleasure because it is a prejudice to the food of the Déer for the preservation whereof the Forrest wâ—s ordained 34 According to the effect 1 H. 6. 4. Finch 59. 1 A Déed delivered by an Infant Delivery of a deed cannot be delivered againe at his full age for it took some effect before and was but voidable But a Deed delivered by a Feme Covert or a Release delivered to one that hath nothing in the land may be deliâ—ered againe viz. when she commeth to be sole or the party to have somewhat in the land For the first delivery was meerly void and took no effect at all Co. Inst pars 1 46. b. 4. Co. l. 5. 1. Claâ—â—ns case 2 If a lease be made by Indenture bearing date 26 Maii When a lease shall commence c. to hold for 21 years from the date or from the day of the date it shall begin on the 27 day of May but if the Lease beare date the 26 day of May c. to hold from the making hereof or from henceforth it shall begin on the day in which it was delivered for the words of the Indenture are not of any effect till the delivery and thereby from the making or from henceforth take their first effect So also if the habendum befor the terme of 21 yeares without mentioning when it shall begin it shall beâ—in from the delivery for there the words take effect but if it â—e a die confectionis then it shall begin on the next dâ—y after the delivery Vide Max. 8. 2. Co. Inst pars 1 48 a. 4. Ibid. 56. b. 4. Thorough goods case â— If a man deliver a Deed of Feofment upon the land in name of â—eisin of all the lands contained in the Déed this is a good Liâ—ery Livery of seisin but if a man onely deliver the Déed of feofment upon the land without mentioniâ—g that it is in name of Livery c. this amounts to no Livery of the land for it hath another operation to take effect as a Déed Co. l. 6. â—6 Shaâ—ps casâ— l. 9. 137. Co. ibid. 48. b. 3 4 If a mâ—n be disseised and make a Déed of feofment Livery of seiâ—â—â— by Attorney and a Letter of Attorney to enter and take possession and after to make Livery secundâ—m fo mam cartae Co. l. 3. 35. Jennings and Braggs case this is a good feofment albeit he was out of possession at the time of the Charter made for the Authority given by the Letter of Attorney is executory and nothing passed by the delivery of the Deed till Livery of Seisin was made And in ancient Letters of Attorney power is given to others to take possession for the Feoffor But if a man be disseised and make a writing of a Lease for yeares and deliver the Deed and after deliver it upon the ground A void Lease the second delivery is void for the first delivery made it a Déed and in as much as the Lease for yeares must take effect by the delivery of the Déed therefore the Déed delivered when he was out of possession was voide but so it is not of a Charter of Feofment for that takes effect by the Livery and Seisin And in the other case if the Lessor had delivered it as a Scrowle to be delivered as his Déed upon the ground this had béen good 5 A man hath issue a Sonne and dieth and the wife dieth also Co. Inst pars 1 13. a. 2. Then lands are letten for life Vesting c. as a purchaser rhe remainder to the heires of the wife the Sonne dieth without issue In this case the heires of the part of the Father shall inherit and not the heires of the part of the Mother because it took effect and vested in the Sonne as a purchaser 6 If there be Lord Feme mesne and Tenant Co. ibid. 38 E. 3. 12. and the mesne bind her selfe and her heires by her Déed to the acquittal of the Tenant Acquital of Services the mesne takes husband the Tenant by his Déed granteth to the husband and his heires that he and his heires shall not be bound to acquital the husband and wife have issue and die this issue being bound as heire to his mother shall not take benefit of the said grant of discharge for that extends to the heires of the part of the father and not to the heires of the part of the mother and therefore the heire of the mothers part was bound to
Kings licence â—â—shops Court 〈◊〉 Rec. certif 13 A Bishop being an Ecclesiastical Iudge Co. ibib 134. b. 2. and sometimes a Lord of Parliament by reason of the Barony annexed to his Bishopricke the Law giveth much Honor and Reverence unto him And therefore none but the Kings Courts of Record as the Court of Common Pleas the Kings Bench Iustices of Goale-delivery and the like can write to the Bishop to certifie Bastardy Mulierty Loyaltie of Matrimony and the like Ecclesiastical matter For it is a Rule in Law that none but the King can write to the Bishop to certifie And therefore no Inferiour Court â—â—feriour â—ourt as London Norwich Yorke or and other Incorporation can write to the Bishop but in those Cases the Plea must be removed into the Court of Common Pleas and that Court must write to the Bishop â—â—are Impeâ—â— Wales and then remand the Record again and this is the reason why a Quare Impedit did lie of a Church in Wales in the County next adjoyning for that the Lordships Marchers could not write to the Bishop Neither shall Conusance be granted in a Quare Impedit because the Inferior Court cannot write to the Bishop And herewith agréeth Antiquity Bract. l. 3. 106. Fleta l. 5. c. 24. Britton 248. b. Nullus alius praeâ—er Regem potest Episcopo demandare Inquisitionem faciendam And another speaking of Loyalty of Mariage Nec alius quà m Rex super hoc demandaret Episcopo quod inde inquireâ—et Episcopus alterius mandatum quà m Regis non debet obtemperare And herewith also agréeth Britton Co. ibid. 137. b. 3. F. N. B. 79. a. If a Villain remaine in the Ancient Demean of the King a year and a day without clayme or seisure of the Lord Villein Ancient Demesne no 〈◊〉 the Lord cannot have a writ of Nativo habendo or seise him so long as he remains and continues there And the reason of this was in respect of the service he did to the King in Plowing and tillage of the Demeanes and other labours of Husbandry for the Kings benefit Glanv l. 5. c. 5. Fleta l. a. c. 44. Britton fol. 79. Mirr cap. 2. And herewith agrée old books which say that his Immunity was sometimes granted by common consent to the King for his profit and for the helpe and ease of his Villains So likewise Priest Chappel if a Villain be a Priest of the Kings Chappel the Lord cannot seise him in the presence of the King for the Kings presence is a priviledge and protection for him 27 Ass Pl. 49. Co. ibidem 15 If a Villain be professed a Monke or a Wife a Nun Villein the Lord cannot seise them c. Co. ibid. 156. a. 3. 16 If a Peere of the Realme or Lord of Parliament be demandant or Plaintiffe Tenant or Defendant Lord Knight Jury there must a Knight be returned of his Iury or else the Array may be quashed but if he be returned albeit he appeare not yet the Iury may be taken of the residue And if others be joyned with the Lord of Parliament yet if there be no Knight retured the Array shall be quashed against all So also in the like case in Attaint there ought to be a Knight returned of the Iury Note That this present Parliament which commenced Anno 16. Can. Bishops were by Act of Parliament excluded the house of Lords Bishops and therefore Quere whether at this day this Law holds in their Case or no Howbeit it seemes still to hold because they still retaine their Baronies in respect whereof they enjoyed Places and had votes in that house and doublesse shall still retaine divers other Priviledges which of right belong to Temporall Peeres that have Baronies Tamen quaere Co. ibid. 156. l. 6. b. 3. 17 At the Common Law Challenge peremptory any subject under the degrée of a Peere of the Realme upon an Indictment or Appeale of Treason or Felonie against him might in favorem vitae challenge peremptorily viz. 35. or any other number under thrée Iuries But a Lord of Parliament that being a Peere of the Realme is to be tryed by his Peeres shall challenge none of them because they are not sworne as other Iurors be Peere 〈◊〉 Challenge but find the partie guilty or not guilty upon their faith or allegiance to the King and they are Iudges of the fact and every of them doth separately give his Iudgement beginning at the lowest c. How the Common Law hath been altered concerning peremptorie Challenges see Co. ubi in margine Co. ibidem 18 A Péere of the Realme or a Lord of Parliament as a Baron Peere no â—â—ror Viscount Earle Marquesse and Duke propter honoris respectum in respect of honor and Nobility are not to be sworne on Iuries and if neither party will challenge him he may challenge himselfe For by magna Carta it is provided Quòd nec super eam ibimus Lords Commoâ— nec super eam mittemus nisi per legale judicium parium suorum aut per legem terrae Now the Common Law hath divided all the subjects into Lords of Parliament and into the Commons of the Realme Trial per pares The Péeres of the Realme are divided into Barons Viscounts Earles Marquesses and Dukes The Commons are divided into Knights Esquires Gentlemen Citizens Yeomen and Burgesses and in judgement of Law any of the said degrées of Nobility are Péeres to another as if an Earle Marquesse or Duke be to be tryed for treason or felonie a Baron or any other degrée of Nobility is his Péere In like manner a Knight Esquire c. shall be tryed per pares and that is by any of the Commons as Gentlemen Citizens Yeomen or Burgesses So as when any of the Commons is to have a triall either at the Kings suit or betwéen partie and partie a Péere of the Realme shall not be impanesseâ— in any Case Words of conâ—â—son bind in â—he Kings case â—nd of a wil. 19 If a man maketh a Feoffment in Fée ad faciendum or faciendum Co. ibid. 204. b. 4. or ea intentione or ad effectum or ad propositum that the Feoffée shall do or not do such an Act none of these words make the State in the Land conditional For in judgement of Law they are no words of Condition and so was it resolved Hill 18 E. in Co. Banco But this is to be understood in the Case of a common person for in the Kings case these or the like words do create a Condition and so it is also in the Case of the will of a Common person c. Condition not â—estroyed in â—â—e Kings case 20 A Common person being grantée of part of a reversion of Land Co. ibid. 21â— a. 3. shall not take advantage of a Condition by force of the Statute of 32 H. 8. cap. 34. As if