case Recovery or other assurance to certaine persons and within a certaine time and to certaine uses are but directory and do not bind the estate or interest of the land yet if the Fine Recovery or other assurance be pursued according to the Indentures no naked averment shall be taken against those Indentures viz. that after the making of the Indentures and before the assurance it was concluded and agréed by mutual consent of the parties that the assurance should be to other uses But if any other agréement or limitation of uses be made by writing or by any other matter as high or higher then shall the last agréement stand for every contract or agréement ought to be dissolved by matter of as high nature as that by which such agréement was contracted because Nihil tam conveniens c. Outlawry reversed by error upon an Indictment 19 One Eaton was indicted in B. R. for the death of a man Eatons case 18 H. 7. Co. l. 5. 111. a. Foxleyes case whereupon an exigent was awarded into the County of Lincolne Eaton dies and was never convict or attainted yet his executors being a writ of Error to reverse the award of the exigent For in as much as the King was entitled by matter of Record it ought to be avoided by matter of as high nature Co. l. 7. 45. Kâ—rns case 20 If two claim as heirs to one man of one and the same Land No traverse without office holden of the King and one is found by office the other cannot traverse that office without first finding another office which finds him heire also Co. l. 8. 25. b. 4. The Princes case 21 The Charter of E. 3. The Duchy of Cornwal Anno 11 Regni sui by which lands were annexed to the Duchy of Cornwal being past by the consent of the Lords and Commons in Parliament retained the force of an Act of Parliament and therefore those lands cannot be disannexed but by Act of Parliament Co l. 9. 79. a. b. 12. H. 4. 23. 9 H. 7. 4. 4 H. 8. Dyer 1. c. Henry Petoes case 22 If a man be bound in a Statute to do any collaterall Act Writing discharged by writing as to make a feofment to render a true accompt or the like here accord with execution by money or any other thing is not satisfaction to save the forfeiture of the Condition for the contract being made by writing to performe such a collateral Act it cannot in that case be altered without writing But if a man by contract or Assumpsit without Déed be to deliver a horse or to build an house or to do any other collaterall thing there money may be paid by accord in sasatisfaction of such Contract for as a Contract upon consideration may begin by parol so by accord by parol for any valuable consideration it may be dissolved Co. l. 10. 86. b. 4 Leonard Loveis case 23 Vses and Powers in contingencie and possibility may be by mutual assent of the parties revoked and determined for Uses and powers revoked c. as they may be raised by Indenture So by proviso or limitation annexed unto them in the same Indenture they may be extinguished and destroyed either before or after their being Co. Inst pars 1 115. a. 3. 24 Albeit a man cannot prescribe or alleadge a Custome against a Statute A prescription saved because it is matter of Record being indéed the highest proofe and matter of Record in Law yet a man may prescribe against an Act of Parliament when his Prescription or Custome is saved or preserved by another Act of Parliament c. Dyer 25. b. 160 28 H. 8. 25 A man is bound by Indenture to pay a summe of money Payment no plea without an acquittance and in an action of debt upon that Déed the Defendant saith he hath paid the summe but sheweth no acquittance In this case the plea is not good for this Indenture is like a simple Obligation where payment is no plea without an acquittance It is otherwise where the Obligation hath a Condition per Mountagu Vide suprà 6. Co. Inst pars 1. 131. a. 4. 26 By the Statute of 13 R. 2. 16. Protection If after a protection is allowed by Innotescimus the party stay in the Country without going to the Service for which he was retained above a convenient time after he hath such protection or repaire from the said Service upon information thereof to the Lord Chancellor he shall repeal such protection by another Innotescimus Howbeit such a protection shall not be avoided by a bare averment of the party in that case because the Record of the protection must be avoided by a matter of as high a nature 28 Things grounded upon an evil void beginning cannot have good perfection Co. Inst pars 1 19 a. 4. 30 E. 1. Form 65. Temps E. 1. 1 Before the Statute of West 2. cap. 1. Alienation by tenant in tail before issue no barre to the donor Alienation by the Donée in taile after issue had did barre the Donor of his reversion but if he had aliened before issue had and had after had issue although that alienation would have barred the issue because he claimed a Fée simple yet in that case if the issue had died without issue Dower of a Ibid. 62. 19. E. 2. Form 61. Plowd 246. Co. 7. 35. Nevils case Co. Inst pars 1 35. a. 3. the Donor might re-enter for that he aliened before any issue at what time he had no power to alien to barre the possibility of the Donor 2 Tenant for life of a Carve of land the reversion to the father in fée reversion ex assensu patris not good the sonne and heire apparent of the father endoweth his wife of this Carve by the assent of the father the Tenant for life dieth the husband dieth here the reversion was a tenement in the father and yet this is no good endowment ex assensu patris because the father at the time of the assent had but a reversion expectant upon a Fréehold whereof he could not have endowed his own wife and albeit the Tenant for life died living the husband yet quod initio non valet tractu temporis non convalescet â—imony makes the Presentation c. void 3 A Villein at this day purchaseth an Advowson in fée Co. ibid. 120. a. 2. the Church becomes void the Lord for 100 l. given by A. B. Clerke presents him to the Church and his Clerke is admitted instituted and inducted yet this gaineth not the Advowson to the Lord for by the Statute of 31 El. cap. 6. the presentation admission institution and induction in that case are made void and not onely voidable as they were before the Statute And so it is also if any other on the behalfe of A. B. had given or contracted with the Lord in
their heirs because the tenancie was originally charged with the Condition which is paramount the descent for the Condition remaines in the same essence that it was in at the time of the creation of it and the estate of the Tenant is conditional in whose hands soever the tenancie comes c. So it is likewise if such a Tenant upon Condition be disseised and the Disseisor die thereof seised and the land descends to the heire of the Disseisor In this case albeit the entry of the Tenant upon Condition that was disseised is taken away yet if the Condition be broken then may the Feoffor or Donor that made the estate upon Condition or their heires enter Causa qua suprà and also for that a Condition cannot be devested or put out of possession as Lands and Tenements may â—ower paraâ—ount a desâ—nt 13 If a Disseisor die seised and his heire enter who endoweth Co. Inst pars 1 240. b. 4. Littl. § 393. the Feme of the Disseisor of the third part of the Tenements c. In this case as to this third part which is so assigned to the Feme in Dower presently after the Feme entreth and hath the possession of the same third part the Disseisee may lawfully enter upon the possession of the Feme into the same third part because albeit the heire entred yet when the wife is endowed she shall not be in by the heir but immediately by her husband being the Disseisor for her life and that by a Title paramount the dying seised and dscent And therefore in judgement of Law the descent as to the Free-hold and Possession which the heire had is taken away by the endowment for that the Law adjudgeth no mean seisin between the husband and the wife â—wer paraâ—unt the â—â—or title 14 A man makes a gift in taile reserving twenty shillings rent Co. Inst pars 1 241. a. 4. and dies the Donee takes wife and dieth without issue the heire of the Donor entreth and endoweth the wife Here the wife is not in by the heir of the Donor but by title paramount of the estate of her husband And therefore albeit the estate taile be spent and the rent reserved thereupon determined yet after she is endowed she shall be attendant to the heire in respect of the said rent 15 If there be Lord Mesne and Tenant and the Mesne grant by Fine the Services of his Tenant to another in fée Co. Inst pars 1 321. b. 1. Littl. § 583. Co. l. 5. 113. a. Mallories case Temps E. 2. Attorn 18. 39. H. 6. 38. per Prisot The Lord Paramount may distrain without attornment after the Grantee dies without heir here the Services of the Mesnalty shall escheat to the Lord paramount and in this case if the services of the Mesnalty be afterwards behind the Lord Paramount shall distraine the Tenant although the Tenant did never attorne because the Lord Paramount commeth to the Mesnalty by a Seigniory paramount and therefore there needs no Attornement As if there be Lessee for life of a Mannor and he surrenders his estate to the Lessor there needeth no Attornement of the Tenants because the Lessor is in by a Title Paramount Co. Inst pars 1 327. b. 4. 16 A Discontinuance made by the husband Discontinuance of the wives land takes not away the entâ—â— of him that hath a title paramount did take away the entry onely of the wife and her heires by the Common Law and not of any other which claimed by Title Paramount above the Discontinuance as if lands had been given to the husband and wife and to a third person and to their heires and the husband had made a Feofment in fee this had been a Discontinuance of the one moity and a Disseisin of the other moity And if the husband had died and then the wife had died the Survivour should have entred into the whole for he claimed not under the Discontinuance but by Title Paramount from the first Feoffor And séeing the right by Law doth survive the Law doth give him a remedie to take advantage thereof by entry for other remedy for that moity he could not have Co. Inst pars 1. 338. b. 2. 17 If a Bishop be seised of a rent charge in fée A title paramount avoid rent and charges the Tenant of the land enfeoffes the Bishop and his Successors the Lord enters for the Mortmaine he shall hold it discharged of the rent for the entry for the Mortmaine affirmeth the Alienation in Mortmaine and the Lord claimeth under his estate But if Tenant for life grant a rent in fée and after enfeoffe the Grantée and the Lessor enter for the forfeiture the rent is revived because the Lessor doth claime above the Feofment Co. Inst pars 1 351. a. 3. 18 If a Feme Sole possest of a Lease for yeares takes Baron Chattels real returns to the feme if she survived who deviseth it by his Will or disposeth not of it at all in his life time the Feme if she survive shall have it againe because her estate is paramount the interest of the Executor And there is the same reason of estates by Statute Merchant Statute Staple Elegit Wardships and other Chattels real in possession So likewise if the husband charge the Chattel real of his wife 7 H. 6. 2. it shall not bind the wife if she survive him causa qua supra Co. Inst pars 1 385. a. 3. 19 If lands he given to two brethren in Fée simple Title paramount by â—â—â—vivorship with a warranty to the eldest and his heires the eldest dieth without issue the Survivour albeit he be heire to him yet shall he neither vouch nor rebate nor have a Warrantia cartae because his Title to the land is by relation above the fall of the Warranty and he commeth not under the estate of him to whom the Warranty is made Co. l. 2 68. a. 1. Tookers case 20 If the Lessée for life or yeares attorne upon any condition subsequent the condition is void Attornment paramount condition for if the reversion or remainder be once vested it cannot be devested by any condition annexed to the Attornement because the Grantée thereof is not in by the Lessée but by the Grantor but if one Attorn upon a condition precedent there it is no Attornement before the condition be performed Co. l 3. 83. a. 3 Vpton and Bassets case in Twines case 21 In Upton and Bassets case in 3 Report fol. 83. it was agréed An ancient right not â—â—red that by the Common Law an estate made by fraud shall be avoided onely by him that hath a former Right Title Interest Debt or Demand as in the 33 of H. 6. Sale in market overt by Covin shall not barre a more ancient Right neither shall a covenous Grant defeat an execution in respect of a former Debt as it is
contrà â—e shall be endowâ— 1 If a man be Tenant in fée taile generall Co. Inst pars 1 31. b. 4. F.N.B. 149. f. and makes a Feofment in fée and takes back an estate to him and his heires in fée and then takes wife and hath issue and dies his wife shall not be endowed for that her title of Dower is grounded upon the estate in fée which her Husband had during the coverture Now that Fée-simple vanished by the remitter of the heire in taile and therefore her title of Dower must néeds vanish also For her issue hath not the land by the descent of the Fée-simple but by force of the intaile There is the same law where the Tenant in taile disseiseth the discontinuee c. â—ery voyd 2 When a déed of Feoffment is void in it selfe Co. ibid. 48. b. 1. if livery be made according to the forme and effect of that déed the livery is also voyd As if A. by déed give land to B. to have and to hold after the death of A. to B. and his heirs this is a voyd déed because he cannot reserve to himselfe a particular estate and if livery be made according to that déed the livery is likewise voyd because the livery referreth to a deed that hath no effect in Law and therefore cannot worke Secundam formam effectum of that déed c. 〈◊〉 action of â—st gone 3 Regularly none shall have an action of Wast Co. ibid. 53. b. 3. unlesse he hath the immediate estate of inheritance and therefore if hanging an action of Wast an estate taile determines and the Plaintiff becomes Tenant in taile after possibility c. the action of Wast is gone â—cting of â—ses shall 〈◊〉 now forâ—the the land 4 In ancient time Co. ibid. 92. b. 4. amongst divers wayes that lands might escheat or be forfeited to the Lords of whom they were holden this was one if the Tenants did erect Crosses upon their Houses or Tenements in prejudice of the Lords to the end the Tenants might claim the priviledge of the Hospitalers and so defend themselves against their Lords by such erecting of Crosses they were subject to forfeit their tenancies but now since it hath pleased God by the light of the Gospel to banish out of our Church and Common-wealth all such superstitious reliques the danger of forfeiting Lands that way is also banished â—mage may â—epealed 5 Regularly it is true which Littleton saith Co. ibid. 103. b. 3. Littl. §. 148. that when a Tenant hath once done homage to his Lord he is excused for term of his life to make homage to any other Alienée or heirs of the Lord Howbeit it faileth in this case following A. holdeth of B. as of the Mannor of Dale whereof B. is seised in taile B. discontinueth the estate taile and taketh back an estate in Fée-simple A. doth homage to B. B. dieth seized and the Issue in taile entreth In this case A. shall do homage again to the heire in taile of B. because he is remitted to the estate tail and the estate in fée that his father had in respect whereof the homage was done is vanished and therefore the homage it selfe is also vanished for the heire in taile is in of a new estate in respect whereof A. ought to doe a a new homage So likewise it is when the Tenant hath done homage and the Mannor is afterwards recovered from the Lord in a Praecipe quod reddat c. by a Stranger In this case also the Tenant shall do homage againe to the Stranger because the estate of him that received the first homage is defeated by the recovery c. It is otherwise when the Mannor is aliened to a Stranger or descends to the heire without defeasance as aforesaid of the original estate Co. ibid. 128. b. 3. 6 When the ground or cause of an Action faileth Where tâ—â— ground oâ— action faâ— all is gooâ— there must néeds the Action it selfe also faile as if an out-lawed person brings an Action the ground and cause of which Action is forfeited by the Out-lawry as in an Action of Debt Detinue or the like there the Defendant may plead the Out-lawry it selfe in barre of that Action and shall thereby conclude the Plaintife It is otherwise in real or personal Actions where the damages are uncertaine as in trespasse of Battery of Goods of breaking his Close and the like and are not forfeited by the Out-lawry for there the Out-lawry must be pleaded in disability of the person Co ibid. 138. a. 4. 7 Tenant in Taile of a Mannor whereunto a Villain is regardant No maâ—sion by 〈◊〉 brought 〈◊〉 Lord. enfeoffeth the Villaine of the Mannor and dieth Here the issue after recovery of the Mannor in a Formedon against the Villaine may seise the Villaine and the bringing of that Writ in this case shall worke no manumission because at the time of the Writ brought he was no Villaine and the estate by reason whereof he might claime the priviledge of manumission being defeated the manumission it selfe is also defeated Co. ibid. 147. a. 4. 41 E. 3. 13. per Finchden 8 A man by Déed grants a rent of 40 s. to another out of the Mannor of D. to have and perceive to him and his heires Rent oâ— land erâ—â— and grants over by the same deed or by another that if the rent he behind the Grantée shall distraine in the Mannor of S. Here both the Mannors are charged the one with the rent the other with a distresse the one issuing out of the land the other to be taken upon the land And in this case if the Mannor of D. be evicted by an eigne Title all the rent is extinct and so by consequence both the Mannors discharged but if the Mannor of S. be onely evicted all the rent doth still remain c. Co. ibid. 158. a. 4. 9 If a Pannel upon a Venire facias be returned and also a Tales Challeâ— and the array of the Principal is challenged if the Triors quash the array of the Principal they shall not trie the array of the Tales for now it is as if there had been no apparance at all of the Principal Pannel but if the Triors affirme the array of the Principal then shall they also trie the array of the Tales c. Co. ibid. 223. b. 1. 224. a. 3. 10 If a Feofment be made upon Condition that the Feoffée shall not alien in Mortmaine this is good Good coâ—ons because the Condition is backed by a Statute Law for such Alienations are prohibited by the Statute of Mortmaine And regularly whatsoever is prohibited by Law may be prohibited also by Condition be it malum prohibitum or malum in se In ancient Déeds of Feofment in Fée there was most commonly a clause Quòd licitum sit donatorio rem datam dare vel vendere cui voluerit exceptis
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.
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
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
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
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
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
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
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
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
he had been admitted and instituted to a Church whereof any subject had béen lawful Patron the Patron in that case 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 Cōmon Law if an usurpation had béen had upon an Infant or a 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 the Incumbent could not be removed And plenarty generally was a good plea in a Quare impedit or an Assize of Darrein presentment And the reason of all this was to the intent that the Incumbent might quietly intend and apply himselfe to his spiritual charge F. N. Br. 36. k. 143. a. Stat. 35. E. 3. 3. 13. R. 2. 1. 4 H. 4. 21. Howbeit at the Common Law also 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 and been restored to his Presentation for therein he hath a prerogative Quod nullum tempus occurit Regi neverthelesse in that case also he could not present for the pleanarty barred him of that neither could he remove him any way but by Action to the end the Church might be the more quiet in the meane time neither yet did the King recover damages in his Quare impedit at the Common Law But now the Statute of Westm 2. cap. 5. hath altered the Common Law in these cases And by that Statute the King is bound though not named 35 H. 8. 60. because it concerns the Church and Religion A Juris utrum taken against one tenant 6 Where a Juris utrum is brought against several tenants by several summons in the writ F. N. Br. 50. m. it may be taken against one tenant onely for that parcel and after against the others but it is otherwise in an Assize of Novel disseisin if it be not in some special case In a Quare Impedit a Non-suit peremptory 7 In a Quare impedit if the Plaintiff be non-suit after apparence Co. Inst pars 1 139 a. the defendant shall make title and have a writ to the Bishop and this is peremptorie to the Plaintiffe and is also a good barre in another Quare impedit and the reason of this is for that in this case the defendant in favorem Ecclesiae hath the said writ by judgement of the Court And therefore the Incumbent that cometh in by that writ upon such non-suit shall never be removed that being a flat barre as to that presentation And the same Law and for the same reason it is in case of a discontinuance c. A general accusation against a Parson or Vicar not good 8 In a Quare impedit against the Bishop it is not a good plea to alledge that the presentée is a Schismatick in general Co. l. 5. 58. b. Specots case but he ought to express Schisme in particular because it concerning the cure of souls is traversable and requireth more care and circumspection It is otherwise for the putting a Coroner out of his office for there a general suggestion in the writ that he is persona minus idonea is enough and not traversable But the reason is because this is but the keeper of the Rolles of the Crowne the other hath the cure and guard of souls Intire services remains after purchase of part by the Lord. 9 There is a diversitie concerning intire services to be reduced to the Lord as a spurre horse or the like Co. l. 6. 1. b. in Bruertons case Co. Inst pars 1. 149. a. for when they accrue to the sole benefit of the Lord and to the charge of the tenant if the Lord purchase part of the land the whole service is thereby extinct But when such intire services are reserved for works of devotion piety or charity as to marry a poor virgin yearly as you have it in 24 H. 8. Br. tenures 53 or to find a Preacher in such a Church or to provide ornaments for such a Church which tenure is in 35 H. 6. 6. In such case albeit the Lord purchase part yet the intire service remaines Protection 10 A spiritual person shall have a protection cum clausula nolumus to protect him his goods his farmers Co. Inst pars 1 131. b. and their goods from the Kings purveyors and carriages See the Stat. of 14 E. 3. Priviledge of Clergie 11 Before the Statute de articulis cleri cap. 15. Co. l. 11. 29. b. Alex. Poulters case he that confessed the felonie could not have the priviledge of Clergie because he could not make his purgation And although the Statute speakes onely of Abjuration and of an Approver yet the Iudges in favorem Ecclesiae extend it to all other confessions upon the Arraignement of the offender Tithes not extinct by unity of possession 12 If the Parson of a Church purchase a Mannor within his Parish here by this purchase and unity of possession the Mannor Dyer 43. p. 21. 30 H. 8. which was tithable before is now made non decimabilis because he cannot pay tithes to himself but if the Parson make a lease of his Parsonage and Rectorie to a stranger in this case the Parson himselfe shall pay tithes of his Mannor to the Lessée of the Rectorie or if the Parson make feofment of the Mannor the feoffée shall pay tithes to the feoffor being Parson because tithes cannot be extinct by any unity of possession as rent charge may which is issuing out of land but tithes are due by the law of God ex debito for the manurance and tillage of the occupier in whosoever hands the land comes unless it be in the hands of the Parson himselfe And therefore if the Parson let part of his Glebe land for yeares or life reserving rent the lessée shall pay the Parson tithes because they are due of common right vide Br. dismes 17. 2 Nunquam prosperè succedunt res Humanae ubi negliguntur Divinae Humane Affairs never succeed well where Divine Rites are neglected Co. Inst pars 1 246. a. 1. 1 Laches shall not prejudice an Infant in point of descent Laches shall prejudice an Infant c. but it shall be adjudged in him if he present not to a Church within six moneths for the law respecteth more the priviledge of the Church that the Cure may be served than the priviledge of Infancy F. N. Br. 160. c. d. 2 Men of Religion ought not to appeare at the Sheriffes turnes Clergy men not subject to personal charges nor the leet of any other without great cause and
whereof it is not possible for one to discharge and yet none can be presented to any of them which would be inconvenient Co. l. 4. 81. b. Sir Andrew Corbets case 2 Sir Andrew Corbet deviseth some of his lands to Richard Corbet and others Devise of Profits to raise a summe untill 800 l. shall be levied and received out of the profits of them besides all charges to be imployed for the preferment of his two daughters Marg. and Mary Robert Corbet sonne and heire conceals the will enters into the lands and enjoyes them fiâ—e years and dies after whose death the will being discovered Richard Corbet enters into the lands and raiseth 640 l. and imployes them according to the will but the question here arising was whether the profits taken by Robert Corbet and which the devisees might have taken shall be accounted parcel of the summe of 800 l. And in this case it was resolved that albeit the words be until the summe of 800 l. shall be levied c. yet it is as much in Law as if the words had been shall or may be levied And it was also held in case of a lease or limitation of use untill such a summe shall be levied that was as much to say as untill such a sum may be levied for otherwise great mischief would insue because in as much as he in reversion or remainder shall not enter untill the sum be levied it shall be in the power of those who are appointed to levie it to deferre the levying of it and so to exclude him in the reversion or remainder from taking the profits of the land for ever which would be inconvenient Co. l. 4. 9â— a. Dâ—uries case 3 If a Baron retaines two Chaplains according to the Statute of 21 H. 8. 13. and they purchase dispensation Chaplains and are advanced according to the Statute Here if the Baron discharge one of them from his service he cannot retaine another during the life of the Chaplain discharged for by that meanes he may advance as many Chaplains as he will even without number by which the Statute would be defrauded A like case to this was adjudged in C. B. 28 El. and after affirmed in B. R. in a writ of error Co. l. 5. 10. a. Housteads case 2 A feme sole makes a lease at will and after takes Baron Tenant at will Here the will is not determined by the intermariage for albeit the feme by taking the baron hath submitted her felfe to the will of her husband as her head yet in as much as it may be prejudicial to the husband to have the lease determine for then he should lose the rent payable at the next rent day after the mariage and because it will rather tend to the benefit than to the prejudice of the feme if the lease continue And also for that it may be a great prejudice to husbands who marie women that have tenants at will for the lâ—sse of their rents for these causes it was resolved that without expresse matter done by the husband after the mariage to determine the will it shall not determine Co. l. 5. 68. The L rd Cheyneyes case 5 Sir Th. Cheyney 1 El. deviseth Devise c. to H. his sonne and the heires male of his bodie the remainder to Th. Ch. of D. and the heires male of his bodie with condition that he or they or any of them shall not discontinue c. the question was whether T. Ch. should be received to prove by witnesses that it was the intent of the divisor to include his sonne within these words he or they And it was resolved by Wray and Anderson upon conference with other Iudges that he shall not for the construction of wills ought to be collected out of the words of the will in writing and not by collateral averment without because that would be subject to much inconvenience in as much as it would not then be possible for any man to know by the written words of the will what Construction to make or what advise to give when whatsoever shall be in that case done may be controled by collateral averments out the will â— 1 H. 6. 41. Co. Inst 1. 275. b. 6 If a man be disseised by two and releaseth to one of them Transmutation of estates he shall hold his Companion out but if tenant for life be disseised by two and he releaseth to one of them this shall enure to them both for he to whom the release is made hath a longer estate than he that releaseth and therefore the release cannot enure to him alone to hold out his Companion Descent 29. 13 E. 4. for then should the release enure by way of entry and grant of his estate and consequently the disseisor to whom the release is made should become tenant for life and the reversion revested in the Lessor which strange transmutation and change of estates in this case the Law will not suffer The l ke 7 If a man grant lands to A. in fée Littl. 720 722. Co. Inst 1. 377. Justice Richels Case Temps R. 2. upon condition that if he alien in fée his estate shall cease and be voide and that immediately from thenceforth the estate of the land shall remaine to B. and his heires here the estate to A. is good and he may lawfully alien notwithstanding the condition for his estate being an estate of Inheritance in lands and tenements it cannot cease or be voide before it be defeated by entry and then if this remainder should be good it must give an entry upon the alienée unto him that had no right before which would be inconvenient and against the expresse rule of Law because an entry cannot be given to a stranger to avoide a voidable act as appeares by Littleton in his Chapter of Conditions An Infants will 8 Because Littleton saith Sect 123 that the Guardian in Soccage shall render an account of the mariage money to the heire or his executors Here from this word executors some have collected Co. Inst 1. 89. b that an Infant of the age of 14 may make a will but the meaning of Littleton in that place is that if after the mariage he accomplish the age of 18 yeares he may then make a will and constitute executors to administer his goods and chattels for at that age he hath power by the Law to make a will and these words are to be understood as they may stand with Law and Reason Subsequent statutes expounded by the equity of former 9 The Statute of Glocester in 6 E. 1. cap. 3. ordaines Co. l. 8. 52. b. 4. in Syms case Pl. Co. 110. in Fulmerstons case that where the tenant by the Curtesie aliens his wives Inheritance with warrantie if assets descend to the heire he shall be barred for the value of the Inheritance so descended and if lands after descend that then the
tenant shall recover against the heire of the seisin of his mother viz. out of the residue of his mothers lands so much as the assets afterwards descended shall amount unto Here albeit at the making of the said Act being in 6 E. 1. there were no entailed lands for all Inheritance was then viz. before Westm 2. being 13 E. 1. fée simple absolute or conditional yet entailed lands are since taken to be within the equitie of the said Act of Glocester but not to retaine or recover as in case of fée simple lands the lands entailed but onely the lands which should so descend because otherwise there would be occasion of new suits and contention which would be inconvenient for if the tenant after assets descended might retaine or recover the lands entailed then if the assets were aliened the issues inheritable to the estate taile might by writ of Formedon in Descender recover the entailed lands againe which would beget a new suit and no way answer the intention of the said Act being indeed a good provision for fée simple lands but not for lands entailed without such a Construction by equity as aforesaid And therefore in case of entailed lands so aliened with warrantie the tenant shall have a Scire facias out of the rolles of the Iustices before whom the suit depends to recover the lands descended according to the provision of the said Act of Glocester which prevents the aforesaid inconvenience and in just and proportionable equity agrées with the case of Fée simple lands and the Intention of the same Act. Vide infrà 178. 22. and 38. 5. Interpretation of statutes 10 For the sure and true interpretation of all statutes in general be they penal or beneficial Co. l. 3. 7. b. 3. in Heydons case restrictive or inlarging of the Common Law four things are to be considered 1 What the Common Law was before the making of the Statute 2 What was the mischief and defect for which the Common Law did not provide 3 What remedie the Parliament hath resolved and appointed to cure that disease of the Common-wealth 4 The true reason of the remedie And then it is alwayes the office of the Iudges to make such construction as may represse the mischief and advance the remedie and also to suppresse such subtile inventions and evasions as may continue the mischief pro privato commodo and to adde force and life to the cure and remedie according to the true intention of the makers of the Act pro bono publico And upon this ground in Heydons case in the 3 Report the statute of 31 H. 8. Co. l. 3. 8. a. 3. cap. 13. of Monasteries was by all the Barons of the Exchequer adjudged by the general words thereof to extend to Copihold or Customarie estates and by them this Rule was then also agréed That when an Act of Parliament alters the service tenure interest of the land or other thing in prejudice of the Lord or of the Custome of the Mannor or in prejudice of the tenant there the general words of such an Act shall not extend to Copiholds but when the Act is generally made for the common good and no prejudice may accrue by reason of the alteration of any interest service tenure or custome of the Mannor In such case many times Copihold and Customarie estates are within the general purview of such Acts. 16 Quoties in verbis nulla est ambiguitas ibi nulla expositio contra verba expressa fienda est Co. Inst 1. 147 a. Co. l. 7. 24. a. Buts case 1 If a rent be granted out of the Mannor of Dale Rent and the grantor grant over that if the rent be behind the grantée shall distraine for the same in the Mannor of Sale this is no grant of rent only but a penaltie in the Mannor of Sale one reason thereof is because the Law néeds not to make construction that this shall amount to a grant of a rent for here the rent is expresly granted to be issuing out of the Mannor of Dale and the parties have expresly limited out of what land the rent shall issue and upon what land the distresse shall be taken and the Law will not make an exposition against the expresse words and intention of the parties when this way stands with the Rule of Law Co. l. 2 55. a. Bucklers c. se 2 A grants land to B. Habendum tenementa praedicta from Christmas next for life Here this grant is void Grant in futuro for an estate of franktenement cannot commence in futuro and the Law will make construction upon the whole grant And therefore albeit the habendum be void and so in effect is no habendum and thereupon the estate should passe by the premisses as in case of repugnancie or the like yet here no estate shall passe by implication of Law against the expresse limitation of the partie although his limitation be void Co. l. 5. 118. Edriches case 3 A seised of Land in fée Rent grants a rent out of it with clause of distresse to B. for the life of C. and dies the heire lets the land thus charged to D. for life the remainder to E. in fée the rent is behind for divers yeares in the life of D. who dies and also C. B. distrains him in the remainder for all the arrearages incurred in the life of D. In this case he in the remainder shall be charged with them by the last branch of the Statute of 32 H. 8. 37. by which an action of debt is given to the tenant pur auter vie after the death of Cesluy que vie against the tenant in demesne who ought to have paid the rent when it was first due and against his executors and administrators and also that he shall distraine for the same arrearages upon such lands c. out of which the said rents c. are issuing in such manner and forme as he ought or might have done if Cesty que vie had been alive Here I say the latter part of this branch doth expresly charge him in the remainder with the payment of the arrearages And the Iudges in that case said that they ought not to make any interpretation against the expresse letter of the Statute for nothing can so well expresse the intent of the makers of an Act as the direct words themselves for index animi sermo and it will be dangerous to give libertie to make construction in any case again the the expresse words when the intent of the makers appeares not to the contrarie and when no inconvenience may happen upon it And therefore in such cases A verbis legis non est recedendum Devise 4 Land was devised to A. for life Co. l. 6. 6. b. Wildes case the remainder to B. and the heires of his bodie the remainder to C. and his wife and after their discease to their children C. and his wife having
by making of him Knight he is out of the ward and custodie of the Lord because after he is Knight he ought to be sui juris and to imploy himselfe in feats of armes to defend the Kingdome c. And none shall pay the forfeiture of mariage but he that after refusal marrieth himselfe during the time that he is in wardship Howbeit the Lord shall immediately after his Knighthood have a writ de valoremaritagii such as in like case is used to be had after the heires full age of 21 years No protection for Wales 40 Since the Statute of 12 E. 1. Calvins case Co. l. 7. 21. b. 3. which incorporateth Wales into England and makes it parcel of England in possession no protection Quia moratur in Wallia will now lye because Wales is now within the Realm of England No wardship after attainder 41 Sir Everard Digby by act executed in his life conveyed his lands to the use of himselfe for life with divers remainders over Digbies case Co. l. 8. 165. b. 4. Co. l. 10. 85. a. 11. and then was attainted and executed for the Power-Treason The question was whether ward of the body or of the third part of the lands should accrue to the King by force of the Statutes of the 32 and 34 H. 8. And it was resolved that their could be neither wardship nor primer seisin in that case because there could be no heire for although there may be wardship and primer seisin where there is no descent as in case when a man grants all his lands holden by déed executed in his life yet there can be no wardship or primer seisin but where there is an heire by reason of whom alone those rights accrue to the King No dower by Guardian 42 During the minority of the heire a writ of Dower lyeth against the Guardian or he may endow the feme without suit if he please Co. l. 9. 16. b. 4. in Anne â—edingfields case but after full age although he hold the land over for the value of the mariage yet no writ of Dower lyeth against him neither can he endow her because after the full age of the heir he is no longer guardian Nusance removed 43 In Assise de nusans or Quod Permittat prosternere Co. l. â— 55 a. 1. in Baltens Case Co. l. 10. 84. b. 4. in Lovers Case c. it is a good plea that the Plaintiff himselfe either before the writ purchased or hanging the writ hath abated the nusance All Soccage Land devised 44 If there be tenant in tail to him and the heires males of his body the remainder in fée to another of land holden by Knight-service in Capite and that is also seised of other lands in soccage in fée and by his will in writing he deviseth all his soccage lands and dies without issue male in this case the devise is good for all the soccage land for the estate of the land holden determines by his death so that there was not any cause of ward at the Common Law so it is likewise 13 El. Dyer 3. if the estate of the land holden be defeated for a condition broken after the death of the tenant Wood or trees excepted 45 If I. grant the Mannor of D. except the wood Co. l. 11. 49. b. 3. Liffords case by this the soil it selfe is excepted but if I. except all my trées growing upon land or pasture out of any wood there by the exception of the trées the soil it selfe is not excepted But sufficient nutriment is reserved out of the land to sustaine the vegetative life of the trées for without that the trées which are excepted cannot subsist But if the Lessor cut them and by the licence of the Lessée root them up in this case the Lessee shall have the soil for cessante causa cessat effectus After pardon no conspiracy 46 If a man be falsely indicted of felonie Fitz. 115. g. and after by Act of Parliament a general pardon is granted of felonies c. Here the party shall not have a writ of conspiracie although he will plead to the indictment and is acquit and will not plead the Act c. because his life was never put in jeopardie which indéed ought to be the cause and ground of the action of conspiracie the felonie being pardoned by the Act. No attaint 47 If a man recover outragious damages by verdict Fitz. 107. b. and release parcel of the damages before Iudgement and hath onely Iudgement of the residue the defendant shall not have attaint for those damages which are so released Goods bailed 48 If a man have goods delivered unto him to deliver over to another and afterwards a writ of detinue is brought against him by him Fitz. 138. m. that hath right to have the goods c. here if the defendant hanging the action deliver the goods over to him unto whom they were given to be delivered this is a good barre of that action Fitz. 139. a. Mich. 34. E. 1. 49 After a divorce made betwixt Baron and feme Divorce the feme shall have a writ of detinue for the goods given with her in mariage not spent Dyer 13. 62. 28 H. 8. Fitz. 152. â— 50 The heire shall be charged by a writ of annuity upon grant of his father if he have assets by descent Annuity but an Annuity shall not be maintainable against the heire by prescription because it cannot be known whether he had any thing by descent from the same ancestor by whom the annuity began c. Plowd 37. a. The Sheriff of Londons case 51 If a prisoner in execution in Ludgate be suffered to go over the Bridge into Surrey though he have a kéeper with him Escape yet that is an escape for being in Surrey which is another County he was without gard and so consequently out of prison c. Plowd ibid. per Chomley 52 If a woman be Warden of the Fleet Prisoners enlarged by mariage or descent and one imprisoned there marieth the woman which is Warden this shall be judged an escape in the woman and the law adjudgeth the prisoner to be at large because he cannot be lawfully imprisoned but under a Warden and he cannot be properly conceived under the ward of his wife And therefore in that case the law adjudgeth him to be at large So if the Warden of the Fleet who hath his office in fée die seised his sonne and heire being then prisoner there and the office descends upon him being in prison here the law will adjudge him out of prison although he hath fetters upon his legs he being then without gard it being impossible that he should kéep himselfe in prison P. 13. E. 4. 8. Plowd ibid. 53 If a Iustice of Peace of one County pursue one into another County for felony comitted in the
writ of Formedon during the life of the tenant for life because of this collaterall warranty descended upon him but after the death of the tenant for life the issue may have that writ if he please Remainder 11 If there be tenant for life the remainder for life Co. l. 5. 76. b. Pagets case 9 Eliz. the remainder in fée and the tenant for life make wast in the trées and after he in the remainder for life die an action of wast is maintainable by him in the remainder for the wast done in the life of the tenant for life So it is likewise where he in the remainder for life after the wast committed surrenders his estate to him in the remainder or reversion in fée For Remoto impedimento Lease by tenant in tail 12 If tenant in taile of lands in capite makes Leases Co. l. 7. 7. b. 8. a. The Earl of Bedfords case not warranted by the Statute of 32 H. 8. 28. and dies his heire under age in this case although the King in right of the heire may avoid those Leases for his time yet if after the Kings interest determined the heire accepts the rent they shall be thereby made good againe So it is also of a subject that is guardian in chivalry Co. ibid. 13 If a Bishop make a Lease By a Bishop not warranted by the Statute so that his successor may avoid it and dies the King shall avoid the Lease during the vacancy of the Bishoprick but after the Kings interest determines if the successor accepts the rent the Lease is made good again Co. l. 8. 71. b. 4 Grerebeyes case 14 Land is given to Baron and Feme and to the heires of their two bodies the Baron makes a feoffment in fée Entry congeable and having issue of the Feme dies the Feme also before entry dies here the estate taile is discontinued so that the issue cannot enter but in this case if the Feme had entred and recontinued the estate taile then had the discontinuance béen purged and the estate tail had béen thereby revested in the Feme and would have from her descended upon the issue and so his entry had béen congeable Fitz. 28. b. 15 A man shall not have execution against the Kings debtor The Kings debtor that hath a Protection because the King ought to be paid first yet if the Plaintiff will undertake to pay the Kings debt he shall have Iudgement and execution for both the debts Co. Inst pars 1 33. a. 4. 16 If the husband alien his land Dower and then the wife is attainted of felonie now is she disabled but if she be pardoned before the death of the husband then is she again entitled to her writ of Dower Co. ibid. 46. a. 4 17 If tenant in fée take wife Dower and make a Lease for yeares and dieth the wife is endowed she shall avoid the lease but after her decease the Lease shall be in force again Co. ibid. 138. a. 4. 18 Regularly Lord and Villain if the Lord sue against his villaine a Praecipe quòd reddat c. that is a manumission yet if tenant in tail of a Mannor whereunto a villain is regardant enfeoffe the recovery of the Mannor and dieth the issue shall have a Formedon aganst the villein and after the recovery of the Mannor he shall seise the villain and the bringing of the Formedon shall work no manumission for that he could not seise him till he had recovered the Mannor which was the principal and at the time of the writ brought he was no villain Co. ibid. 59. a. 2 19 If lands holden by Knight-service be given to an Abbot and his successors albeit he holdeth the lands by Knight-service Wardship revived and shall find a man conveniently arrayed for the warre c. yet upon his death no ward mariage or reliefe is due to the Lord Howbeit if the Abbot with the consent of his Covent alien the lands to a man and his heires there is then ward mariage and reliefe revived c. Littl. § 632. Co. ibid. 336. a. 20 If the baron be seised of land in right of his wife Entry congeable and makes feoffment in fée upon condition and die if the heire do afterwards enter upon the feoffee for the condition broken the entry of the feme is congeable upon the heir because by the entry of the heire the discontinuance was defeated Co. ibid. 174. a. 4. 21 If there be two Coparceners To deraign warranty paâ—â— ramount and one of them makes feoffment in fee of her part to a stranger with warranty if the feoffee be afterwards imlpeaded he cannot have aide of the other Coparcener to deraigne the warranty paramount but he may vouch the feoffor and she may have aide to deraigne the warranty paramount And yet if there be two Coparceners and they make partition and the one of them enfeoffees her sonne and heire apparent and dieth in this case if the sonne be impleaded albeit he be in by the feoffment of his mother yet shall he pray in aide of the other Coparcener to have the warranty paramount for upon the descent the warranty betwixt the mother and the sonne is by Law annulled and then he is in the same condition as if the tenements had descended upon him 22 Vide M. 28. ca. 4. 3. 5. Entry 23 If there be grand-father father and sonne Co. ibid. 265. a. 4. and the father disseise the grand-father and make a feoffment in fée the grand-father dieth the father against his own feoffment shall not enter but if he die his sonne shall enter for remoto impedimento c. Protection 24 Albeit a Protection be allowed by the Court for a yeare Co. ibid. 131. b. 1. yet if it be repealed by an Innotescimus the Re-summons or Re-attachment shall be granted upon the repeal within the yeare for Remoto impedimento c. And albeit some books hold the contrarie yet the later books are of that opinion for otherwise the repeale would serve for little purpose if the Law should not be so taken No accessory without a principal 25 A. was indicted for felony Co. l. 9. 119. b. 2 in the Lord Sanchiars case Temps E. 1. Tit. Mortdancester 46. and B. of the receit of A. A. Essoignes himselfe and is outlawed B. was taken and putting himselfe upon the Inquest was found guilty whereupon B. was attainted and hanged and the Lord entred as in his escheate and after A. came and reversed the outlawrie and pleading to the felony was found not guilty and so was acquit whereupon the heire brings a Mortdancester against the Lord by escheat who comes and shewes all this matter unto which it was demurred in Law whereupon it was awarded that the heire of B. should recover seisin of the land for if B. had béen then
nec è converso for the original cause of this condition by reason of vicinage was not for profit but to prevent suits in Champion Countries for the reciprocal escapes of the one Town into the other Condition precedent and subsequent 36 In all cases when an interest or estate commenceth upon a Condition precedent Co. l. 7. 10. a. 1. Ughtreds case be the Condition or Act to be performed by the Plaintife or Defendant or any other or be the condition in the affirmative or the negative there the Plaintife ought to shew it in his Count and averre the performance of it for there the interest or estate commenceth in him by the performance of the Condition and is not in him till the Condition be performed but it is otherwise when the interest or estate passeth presently and vests in the grantée and is to be defeated by matter ex post facto on Condition subsequent be the Condition or Act to be performed by the Plaintife or Defendant or by any other and be the Condition in the affirmative or the negative there the Plaintife may count generally without shewing the performance of it and it shall be pleaded by him that will take advantage of the Condition or matter ex post facto for every one ought to alleadge that which makes for him and is for his advantage but none shall be compelled to produce that which makes against him Vide infra 25. 20. A Copiholder may lop trees 37 The Lord of a Copihold Mannor Co. l. 8. 63. Swaynes case within which the Copiholders might by custome lop the timber trées for estovers and necessary repaire of fences c. makes a Lease thereof to A. for 21 years excepting the timber trées A Copihold tenant having lands upon which such timber grew surrendred his estate to another who was admitted by A. the Lessée of the Mannor and lops the trées for necessary repair of fences Now the question was whether the Copihold tenant being admitted by A. who had no interest of the trées by reason of the exception Co. l. 4. 21. a Browns case fol. 23. b Clark and Pennyfathers case fol. 24. a. P. 26. Eliz. 29. b. 2. Buntings case had power to lop them because Nemo potest plus juris ad alium transferre quám ipse habet And it was resolved that he might lawfully lop them because the estate of a Copiholder is not derived out of the estate or interest of the Lord of the Mannor for the Lord is but as it were an Instrument to convey the grant of the Copihold but the Custome of the Mannor after the grant is made is that which establisheth and makes it firme to the Grantée So that although the grant be new yet the title of the Copiholder to the profit of the trées is ancient and so ancient that by force of the Custome it excéeds the memory of man Vide Co. 4. 27. b. Taverners case 28 b. Westicks case Vide 30. 22 23. Co. l. 9. 81. Agnes Gores case 38 Gore the husband of Agnes being sick It may be murder though not intended Roper the father of Agnes procures an Electuary of Martin the Apothecary by the advise of Doctor Grey into which Agnes secretly puts Rats-bane to poison her husband and the 18 of May gives part thereof to her husband who thereupon became very sicke Roper also and another eating part thereof became very sick at last Martin being taxed for making the Electuary in that manner the 21 of May stirres it and also eats part thereof and dies the next day And it was resolved by all the Iudges of England that this was murder in Agnes and that this case did not differ from Sanders case in the Commentaries Plowd 474. although Martin by stirring it made the poison more forcible for the stirring c. without putting in the poison could not be the cause of his death and the Law joynes the murderous intention of Agnes in putting the poison into the Electuary to kill her husband with the event which insued thereupon viz. the death of Martin for the putting in of the poison was the cause and the poisoning and death of Martin was the event Quià eventus est qui ex causa sequitur dicuntur eventus quià ex causis eveniunt So if A. puts poison into wine with an intention to kill B. and C. conceiving it to be sugar stirres it drinks it and dies this is murder in A. It is otherwise where Rats-bane is layd with an intention to kill rats and one takes it eats it and dies for there was no felonious intent c. Co. l. 9. 85. a. Connyes case 39 Vpon grant of a Mannor An Infant shal do his services c. attornement of an infant being tenant of the same Mannor is good and in a Per quae servitia against an infant that hath the tenancy by descent he shall not have his age because at first the Lord departed with the land in consideration that the tenant should hold of him performe services pay a yearely rent c. and the tenant is in Law called tenant paravaile because the Law presumes that he hath benefit and availe above the services which he doth and the rent which he payes to the Lord And therefore it is against the reason and purpose of the creation of the tenure that when the heire hath the tenancy paravaile by descent he should not pay the annual rent c. which was reserved upon the Creation of the tenancy And this is the reason that the heire of the tenant who hath the tenancy by descent may be distreined for the rent c. arrere during the minority and shall not therefore have his age c. Co. l. 9. 113. a. Maryes case 40 For every féeding of the Cattle of a stranger upon a Common Trespass for common contrà the Commoner shall not have an Assise nor action upon the case as his case lies but the depasturing ought to be such per quòd le Commoner c. Common de pasture c. for his Cattle c. habere non potuit sed proficium suuminde per totum idem tempus amisit c. So that if the trespasse be so little that he hath not any losse but that still sufficient remaines for him to depasture his cattle In that case the Commonor shall not take the Strangers Cattle damage fesant neither shall he have any action for it but the tenant of the soile may in that case have an action So if a servant be beaten the Master shall not have an action for that battery except that by reason thereof he loseth his servants service but the servant for every slight battery may have an action and the cause of this diversity is for that the Master receiveth no damage by the personal battery of his servant but by reason of a per quod per quod
a man and a woman and their heires before mariage the husband and wife have moities betwéen them Lands given to Batre and feme but if it be after mariage each of them taketh the whole And therefore in this last case if the husband be attainted of Treason or selleth away the land after her husbands death she shall recover the whole as it fell out in the case of William Ocle who was attainted for murthering E. 2. Finch 41. Co. ibid. 209. b. 2. 18 E. 4 18. 19 H. 6. 54. 20 E. 3. account Pl. 70. 8 In a Mortgage the agréement precedent ought to guide the payment subsequent and therefore in case the feoffée die The conditio◠of a mortgage must be performed and it is agréed betwéen the feoffor and the executors of the feoffée that at the day and place the whole sum shall be paid and that afterwards some part thereof shall be restored this is no performance of the Condition for hereby the state shall not be devested out of the heire which is a third person without a true and effectual payment and not by a shadow and colour of payment Co. l. 5. 96. Goodales case Co. ibid. 248. b. 1. Littl. § 410. Pl. Co. Dame Hales case 6 E. 3. 41. c. 9 Littleton saith that a descent Descent by entry into Religion which happens upon the disseisors entring into Religion shall not take away the entry of the heire yet his entry into Religion is not the cause of the descent but his profession for albeit he enter into Religion yet before he be profest no descent can happen But in this case the Law doth respect the original act and that is his entry into Religion which was his own act and whereupon the profession followed by which profession the descent hapned for Cujusque rei potissima pars principium est And againe Origo rei inspici debet and therefore Littleton attributeth the cause of the discent rather to the deisseisors entring into Religion which was the first act to procure a descent than to his profession which followed thereupon Co. ibid. 372. b. 3. T. 23 El. in the Court of Wards 10 To prevent the barring of an estate taile An entail and the reversion in the King when the reversion is in the King according to the Stat. of 34 H. 8. 20. it is necessary that the estate tail should be created by a King and not by any Subject albeit the King be his heire to the reversion And therefore if the Duke of Lancaster had made a gift in taile and the reversion descended to the King yet was not that estate restreined by that Statute and so of the like Co. l. 5. 15 16. in Wisemans case Vide 21. 8. 33 Ass Pl. 7. 11 If a servant departed out of his Masters service kill his Master upon a malice that he bare him whilest he was his servant Malice prepence it is petty Treason Finch 10. 10 El. Dyer 266. b. 12 A erects a Shop upon the Kings Fréehold No possession against the King the King grants the land to B. in fée A. before entry or seisure of the Shop by the Kings Patentée continueth the possession and dieth seised This is no descent to toll the Patentées entry For by his first erecting of the Shop he could gaine nothing against the King Finch 11. Co. lib. 2. 93. a. 3. Binghams case 6. E. 3. 410. 13 It was said in Binghams case in the 2 Report The original act considerable that when divers accidents are requisite to the consummation of a thing the Law in many cases respects rather the beginning and original cause then any thing else As in 6 E. 3. 41. if a man present to another mans Church in the time of warre and thereupon the presentée is admitted instituted and inducted in time of peace Here the Law gives such regard to the original act viz. the presentation that all which followes thereupon although it be done in time of peace Co. l. 1. 106. Shelleyes case shall be avoided And upon the same reason was Shelleys case adjudged in the 1 Report fol. 106. Grant by baron without feme not good 14 If land be given to Baron and Feme Co. l. 3. 5. b. 3. Owen and Morgans case Co. l. 3. 34. b. 4. Butler and Bakers case and to the heires of their two bodies engendred and the Baron alone suffers a common recovery this shall not bind the estate taile And albeit in this case the Baron which suffers the recovery survives the Feme that is not material for the Law shall adjudge upon the case as it was at the time of the recovery Tenure according to limitation 15 If Land be given to a man and his heires to hold by Soccage during his life and after his decease to hold by Knight-service Littl. § 698 699 700. Here shall be no ward because the tenure by Knight-service begins in the sonne and the Father during his life holds by Soccage And è converso if lands be given to a man and his heires to hold by Knight-service during life and after his decease in Soccage Here likewise shall be no ward because immediately upon the death of the tenant the Knight-service determines and then also the tenure in Soccage begins in the sonne Warranty that begins by disseisor not good 16 If the sonne purchaseth land Co. l. 4 37. a. Tirringhams Case and letteth the same to his father for terme of yeares the father enfeoffes another in fée and binds himselfe and his heires to warranty the Father dies by which the warranty descends to the sonne this warranty shall not barre the sonne from his entry or recovery by assise c. because this warranty begins by disseisin In like manner is it if the father or any other Ancestor be tenant at will by Elegit by Stature Merchant or Statute Staple and make feofment with warranty as aforesaid c. Such warranty shall not barre because it begins by disseisin c. There is the same reason of Guardian in Knight-serice or in Soccage which make such feofment with warranty So also if the father and sonne be Ioyn-tenants in fée and the father make feofment with warranty c. and dies this shall not barre the sonne of his moity causa quae suprà Common appendant due of common right 17 The beginning of common appendant by the ancient Law was in this manner 37 H. 9 34. per totam curiam 29 H. 8. 4. when the Lord of a Mannor did enfeoffe a man of arable land to hold of him in Soccage viz. per servitiam Socae as every such tenure at the beginning as Littleton saith was the feoffée ad manutenendum servitium Socae was to have Common in the Lords wastes for such necessary beasts as were to plow and compasse his land and therefore such Common appendant is
contraria voluntate c. Co. l. 8 48. a. John Webbes case Co. Inst pars 1 131. a. 4. Ibid. See more authorities 2 If after a Protection is allowed by Innotescimus A Protection must be disallowed by the Chancellor the Defendant tarry in the Countrey without going to the service for which he was retained above a convenient time after he had the Protection or otherwise repaire from the same service upon information thereof to the Lord Chancellor he shall repeale the Protection in that case by another Innotescimus but a Protection shall not be avoided by a bare averment of the party in that case because the record of the Protection must be avoided by matter of as high nature Co. Inst pars 1 204. a. 4. 3 E. 6. Dyer 65 66. 4 Mar. 138. 3 If a man maketh a feofment in fée or for life ad faciendum or faciendo or ea intentione or ad effectum or ad propositum What words make a condition and what not that the Feoffée shall do or shall not do such an act none of these words make the estate of the land conditional for in judgement of Law they are no words of Condition to make an estate of inheritance or Freehold defeâ—sible which took effect by Livery except it be in the Kings case or in the case of a will But if a Lease for yeares be made with such a clause or thus Quod non licebat to the Lessee dare vendere vel concedere statum sub poena forisfacturae H. 40. Elizabeth Brown Ayers case Plowd Co. 142 Browning and Bestons case Co. ibid 214. b 3. 1. ibid. per auth this amounts to make the Lease for yeares defeasible and so was it adjudged in Queen Elizabeths time in the Court of Co. Pl. and the reason of the Court was That a Lease for yeares was but a contract which may begin by word and may also by word be dissolved 4 If a man make a gift in taile or a Lease for life upon Condition Where an estate shall cease upon condition where not that if the Donee or Lessee goeth not to Rome before such a day the Gift or Lease shall cease or be void the Grantee of the reversion shall never take advantage of this Condition because the estate cannot cease before an entry but if the Lease had been but for yeares there the Grantee might have taken advantage of the like Condition because the Lease for yeares ipso facto by the breach of the Condition without any entry was void for a Lease for yeares may begin without Ceremony and so may end without Ceremony but an estate of Freehold can neither begin nor end without Ceremony Co. l. 3. 64. b. 4. and 65. a. 1. Pennants case Things that lie in grant not surrendred without deed 5 Rents Advowsons Conditions Reversions Remainders Co. ibid. 338. a. 3. and all other things that lie in grant as they cannot be granted without Deed so shall they not be surrendred without Deed. 6 An Obligation or other matter in writing cannot be discharged by an agreement by word Finch 11. Doct. and Stud. li. 1. cap. 12. 19 E. 4. 1. b. Vide infrà 25. An annuity by prescription 7 In an Annuity growing by prescription rien arrere is a good plea for this prescription is a matter in fait 5 H 7. 33. Finch 12. 4 H. 7. 7. b. but in an Annuity by Deed it is no good plea without shewing an Acquittance Matter pleaded against the King 8 When a man avoides the Kings Title by as high a matter of Record as the King claimeth he may have it by way of Plea without being driven to his Petition though the King be intitled by double matter of Record As one is attainted of Treason by Parliament and an office finds his lands whereby the King seiseth them the party may alleadge restitution by Parliament and a repeale of the former Act. Finch 12. Co. l. 4. 57. a. 4. In the Sadlers of Londons Case Power of revocation annulled by feofment or release 7 A. by Indenture enfeoffs B. of two acres to the use of A. for life remainder in taile to C. remainder to D. in fee with proviso Co. l. 1. 113. a. Albanies case that if E. die without issue A. by Indenture sealed c. in the presence of 4 witnesses may alter the uses c. A. of one acre enfeoffes F. and for the other acre A. by Indenture renounceth surrenders releaseth c. unto B. C. and D. the said Power Condition Authority c. E. dies without issue A. by Indenture revokes the first uses and limits new ones And it was resolved that A. had by the said feofment and release barred himselfe of limiting other uses for as the Proviso and Covent aforesaid did commence by Deed so by Deed may they be annulled and defeated because in all cases when any thing executory is created by a Deed the same thing by consent of all persons which were parties to the creation of it may be againe by their Deed annulled And therefore Warranties Recognisances Rent-charge Annuities Covenants Leases for yeares uses at the Common Law and the like may by a Deed of Defeasance with the mutual consent of all those that were parties to the creation of them be annulled discharged and defeated for it would be strange and unreasonable that a thing which is created by the act of the parties shall not be againe by their act with their mutual consent dissolved Bloud no valuable consideration against the Statute of 13 El 5. 10 Nature and bloud are not valuable considerations to satisfie the Statute of 13 El. 5. Co. l. 3. 81. a. 4. Twines case and therefore if he that is indebted to five several persons to each of them in 20 l. in consideration of natural affection gives all his goods to his sonne or cofin in this case in as much as the other shall lose their due debts c. which are things of value the intention of the act was that the consideration in such case should be valuable for equity requires that such a gift which shall defeat others of their due debts shall be upon as high and as good a consideration as those debts are which are so to be defeated A right cannot be transferred 11 By the Rule of the Common Law a right or title Co. l. 4. 1. a. Vernonâ— case which any hath to any Lands or Tenements of inheritance or Frank-tenement cannot be barred by acceptance of any manner of collaterall satisfaction or recompence As if A. disseise B. Tenant for life or in fée of the Mannor of Dale and after gives the Mannor of Sale to B. and his heirs in full satisfaction of all his right in the Mannor of Dale which B. accepts yet B. may neverthelesse enter into the Mannor of Dale or recover it in any real action for the
several Warranties in regard they are severally seised the one of part of the land and the other of the residue in severalty 6 E. 2. Covenant Br. 49. So also a joynt Covenant taketh severally in respect of the several interests of the Covenantées Vide 16 Eliz. 337 338. Dyer inter Sir Anthony Cook and Weston in Justice Windhams case Co. l. 5. 7. b. 4. Co. ibid. Justice Windhams case Sometimes also joynt Words or Grants shall enure severally in respect of the incapacity or impossibility of the Grantées to take joyntly as a Lease made to an Abbot and a secular man or to two men or two women and to the heires of their two bodies engendred for in these and the like cases the inheritance is several Vide 19. Co. l. 5. 103. a. Hungares case 12 In Debt upon an Obligation brought by Hungate against Mese and Smith A joint obligation whereof the Condition was to performe an Arbitrament betwixt the Plaintife on the one part and the Defendants on the other part Ita quod Arbitrium praedictum fiat deliberetur utrique partium praedictarum before such a day And the Defendants pleaded that the Arbitrament was indéed made before the day agréed upon and was also delivered unto the Plaintife and unto Mese one of the Defendants but not unto Smith whereupon the Plaintife demurred and Iudgement was given against the Plaintife for in that case it was resolved that sometimes the word uterque is discretive and hath the quality of severing and sometimes collective and hath the property of joyning together as if two or thrée be bound in an Obligation utrumque eorum this word utrumque makes the Obligation several but in the abovesaid case it shall be taken collective And the Rule alwayes to know in which of these two sences it shall be taken is to consider the Subject matter and to make construction according to the congruity of Reason Dyer 28. H. 8. 19. b. ut evitetur absurdum as in the case of the 39 H. 6 7. the Condition of an Obligation was si uterque eorum viz. the Obliger and the Obligée Steterit arbitrio Roberti Bozom c. And it was adjudged that each of them was bound pro parte sua and not the one for the other for that would be absurd and against the congruity of Reason And in the said case of Hungate in as much as both the parties were equally subject to the penalty and danger reason requires that the Arbitrament should be delivered to both the parties to the end they may performe it and avoid the danger of breaking it c. Vide suprà 8 9. Co. l. 62. a. 2. Catesbyes case 13 The time for the Bishop to collate by lapse is Tempus semestre Tempus Semestre halfe the yeare according to the Kalender and is not to be accounted according to 28 dayes for each Moneth for verba sunt accipienda secundum subjectam materiam and therefore because this computation of moneths concernes those of the Church it is great reason that the computation shall be according to the computation of the Church wherewith they are best acquainted 8. 4. Vide Dyer 327. 7. Co. l. 7. 10. a. 3. Calvins case 14 In regard the King albeit he be but one person Allegiance due to the natural capacity yet hath two several capacities in him the one natural as he is a man the othe other politique so called because framed by the policy of man if it be demanded to which of these capacities ligeance is due The answer is that it is due to the natural person of the King which is ever accompanied with the politique capacity and the politique as it were appropriated to the natural capacity and is not due to the politique capacity onely that is to his Crowne or Kingdome distinct from his natural capacity For every Subject is presumed by Law to be sworne to the King which is to his natural person and likewise the King is sworne to his subject as it appeareth in Bracton l. 3. de actionibus cap. 9. fol. 107. which oath he taketh in his natural person because the politique capacity is invisible and immortall nay that capacity hath no soul being framed by the policy of man And therefore in all indictments of Treason when any do intend or compasse mortem destructionem Domini Regis which must néeds be understood of his natural body his body politique being immortal and not subject to death the indictment concludeth contra ligeanciae suae debitum by which it plainly appeares that ligeance is due to the natural body of the King that capacity being indeed the onely subject matter capable thereof Co. l. 8. 85. b. 3. Sir â—ichard Pexhul case 15 If A. deviseth to B. ten bullocks and ten pounds issuing and payable out of his lands and tenements quarterly at the most usual Feasts c. Here these in words payable quarterly Ten Bullocks and ten pound rent ought to be understood Secundam subjectam materiam and to have reference to the rent for ten bullocks per annum cannot be delivered quarterly â—ffices of â—â—st personal 16 The Office of Marshall of the Marshalshey cannot be granted for yeares Co. l. 9. 96. b. 4. Sir George Keynels case because it is an Office of great trust annexed to the person and concernes the administration of Iustice and the life of the Law which is to kéep such as are in execution in salva aâ—cta custodia to the end they may the sooner pay their debts and this trust is indjviduâ—l and personal and shall not be transferred to executors or administrators for the Law will not confide in persons unknown for the ordering of matters which concerne the administration of Iustice c. Bond taken by the Sheriff 17 In debt brought by Dyve against Maningham upon an obligation of 40 li. with condition to save Dyve bring then high Sheriffe of the County of Bedford harmelesse and to be ready at his command Plowd 65. b. 2. Dyve against Maningham as his true prisoner c. the Defendant pleades the Statute of 23 H. 6. cap. 10. by which such bonds taken by the Sheriffe colore officii are made void and farther saith that one Thomas Palley purchased a Liberari fac out of a recognisance to him made by the said Defendant and procured it to be directed to the said Sheriffe of Bedford to be served and certified and shewed farther that the King had sent to the Sheriffes of London Middlesex and Hertford other writs in forme aforesaid and that the same Sheriffe returned the writ into the Chancery c. In this case one exception taken to the Defendants plea was for that there were diâ—ers Sheriffes named in it and at last it is said that the same Sheriffe returned the writ c. which was said to be uncertaine but it was resolved to be certain enough
have one Attaint for the false verdict upon the forcible entry and A. shall have another single Attaint for the finding of the detainer Contract by a â—ervant 26 A servant makes a bill Dyer 230. 56. 6. El. testifying the buying of ware to the use of his Master and this without Seale in which he binds himselfe to pay the debt yet In this case debt lyeth not against the servant but onely an Action upon the case for it is the debt of the Master and the Assumpsit of the servant Copihold Dower 27 The Custome of a Mannor is that the Lord the Surveyor Dyer 251. 89. 8 Eliz. or his deputy may demise by copy the Lord deviseth authority to two fo make Customary estates for payment of his debts and dies they hold Court in their own names and grant copies in reversion according to the Custome the Feme of the Lord hath one of the Copiholds assigned by the Sheriffe upon recovery of the third part of the Mannor in Dower And it was held that she should avoid the grant made by the two assigned because she claimes by Title of Dower which is paramount the devise 32 According to the end Knight-service the defence of the Realm 1 The Tenant in Knight-service Co. Inst pars 1 70. b. 2. that is able to performe the Service himselfe may neverthelesse if he please performe it by another as well as he that is sick or an Infant or a Corporation aggregate of many c for Sapiens incipit a fine and the end of this Service is for defence of the Realme And therefore if it be done by an able and sufficient man and the end for which the Law ordained it be effected it is duly performed as it ought to be Tender to the heir female 2 If the Lord tender a comoenable mariage to the heire female within the two yeares Co. Inst pars 1 79. a. 1. 35 H. 6. tit gard 71. and she marry elsewhere within those two yeares the Lord shall not have the forfeiture of the mariage because the onely end which the Statute of West 1. cap. 22. giveth those two yeares is for the Lord to make his tender Co. l. 6. 71. a. The Lord Darcies case or rather that he should not lose the advantage of making his tender And the benefit of those two yeares are given unto him as it were in lieu of the forfeiture in case the heire female should refuse his tender for if he make tender within the two yeares and she accept the same and marry immediately after mariage she is out of ward Errour sued against a villain 3 If Villanage be pleaded by the Lord in an action real mixt Co. Inst pars 1 127. b. 4. 18 E. 4. 6. 7. or personal and it is found that he is no Villaine the bringing of a Writ of Error is no enfranchisement because the end of bringing that Writ against the Villaine is not to commence any new suit against him but onely to defeat the former Iudgement 4 If a Castle that is used for the necessary defence of the Realme Co. Inst pars 1 165. a. 4. Bract. l. 2. fol. 76. Fleta l. 5. c 9. Britton 186 187. Co. ibid. 31. b. 3 descend to two or more Coparceners Castles for defence and others this Castle might be divided by Chambers and Roomes as other houses be but yet for that it is pro bono publico pro defensione regni it shall not be divided for as one saith Propter jus gladii dividi non potest And another saith Pur le droit del esche que ne foeffre division en aventure que la force del Realme ne defaille par taut But Castles ordained for another end viz. for habitation and private use and not for the necessary defence of the Realme ought to be parted betwéen Coparceners as well as other houses and wives may also be thereof endowed but cannot be of Castles for defence c. Co. ibid. 268. b. 2. 5 It is ordained by the Statute of 21 H. 8. cap 19. That Avowry upoâ— distress for rent if the Lord shall distraine upon the lands and tenements holden c. he may then avow c. upon the same lands c. as in lands c. within his Fee or Seigniory c. without naming any person certaine and without making Avowry upon any person certaine c. Here albeit the purview of this Act be general yet all necessary incidents are to be supplied and the Scope and end of the Act to be taken And therefore though he néed not to make his Avowry upon any person certaine yet he must alleadge Seisin by the hands of some Tenant in certaine within forty yeares for otherwise rent and other annual payments are not recoverable by the expresse limitation of the Statute of 32 H. 8. cap. 2. Co. Inst pars 1 288. b. 1. Littl. § 503. 6 If a man be out-lawed in a personal Action by Process upon the Original and bring a Writ of Error if he Release of aâ— actions no plea in erroâ— at whose suit he was out-lawed will plead against him a Release of all manner of Actions personal that séemes to be no plea for by that Action he shall recover nothing in personaltie But the end of the Writ of Error is onely to reverse the out-lawry Co ibid. 368. a. 3. Plowd Com. 91. The Parson of Honylanes case Co. ibid. 369. a. 4. 7 If the Tenant in an Assise of an house desire the Plaintife to dine with him which the Plaintife doth accordingly Licence no seisin and so they be both in the house together and in truth one pretendeth one Title and the other another Title yet the Law in this case shall not adjudge the possession in him that right hath because the Plaintife came not thither to claime his right but onely to dine there at the instance of the Tenant And it would be to his prejudice if the Law should adjudge him in possession and doubtlesse a Trespasser he cannot be for that he came thither upon the Tenants invitation Co. ibid. 369. a. 4. 8 A Lease for yeares to another to the intent to trie the Title in an Ejectione firma is out of the Statute of 32 H. 8. cap. 9. An ejectione firma no bought title which prohibits the buying and selling of pretenced Rights or Titles because it is directed to a lawful end and is in a kind of Course of Law but if it be made to a great man or any other with purpose to sway or countenance the cause that is to be taken within the same Statute being chiefly intended for the suppression of such abuses in the Common-wealth Co. Inst pars 1 381. b. 3. 9 Such construction must be made of a Statute that the end Stat. of Gloc. 6 E. 1. 3. for which it was ordained may be alwayes
32 H. 8. 5. the Plaintife could not have had a new execution for the execution of lands was valuable and accounted in Law for a satisfaction and to avoid infinitenesse there could be but one valuable satisfaction or execution with satisfaction at the Common Law but execution of the body is not a valuable execution and therefore the Plaintife after the Defendants death may have new execution untill he be fully satisfied for that is the end and fruit of his suit Et finis rei attendendus est fines mandatorum Domini Regis per rescripta sua viz. brevia diligenter sunt observandi 22 Hob. 8 case of Essoines 33 Qui adimit medium di rimit finem Littl. § 237. 1 Rescous Replevin Dissesin of reâ—â— and Inclosure are thrée sorts of Rent Service because as Littleton saith the Lord is by them disturbed of the meanes to come by his rent Co. Inst pars 1. 161. a. 4. 2 The turning of the whole streame that runnes to a Mill is a disseisin of the Mill it selfe 9 Ass 19. Mirr cap. 2. Sect. 15. Britt 108. 114. Turning a water-course 118. 141. Co. ibid. 3 If a man be disturbed to enter and manure his land Disturbance this is a Disseisin of the land it selfe for Qui obstruit additum destruit commodum 26 Ass 17. 3 E. 4. 2. per Littl. 49 E. 3. 14. b. And therefore where it is said that a man shall not be punished for suing of Writs in the Kings Court be it of right or wrong it is regularly true Replevin but it faileth in the special case of the Writ of Replevin for the cause aforesaid Fitz. N. B. 42. S. 22 E. 3. 15. 43. Ass 40. 43 E. 3. 20. Faux judgement 10. 8 E. 4. 15. per Moile 2 R. 3. 19. Littl. § 240. Co. ibid. 162. a. 3. Bract. l. 2. 16. Brit. 19. 88. Fleta l. 3. 5. 7. If the Lord of a rent Service Terrified from distraining or the Grantée of a rent charge or Seck be going upon the way to distraine for the rent and the Tenant hearing it forestalls his way and threatens him in such sort that he dare not procéed for feare of the losse of life or member this is also a Disseisin of the rent causa qua supra But this must not be vagus vanus timor sed talis qui cadere possit in virum constantem and not in hominem vanum meticulosum talis enim debet esse metus qui in se continet mortis periculum corporis cruciatum Co. ibid. 172. b. 1. 13 E. 3. Leg. 50. 5 An Infant cannot make his Law of non summons for Infant shal â—â—wage according to the Maxime in Law Minor jurare non potest And therefore in that case the default shall not grieve him for séeing the meane to excuse the default is taken away by Law the default it selfe shall not prejudice him Co. ibid. 233. b. 3. 15 E. 4 3. 5 E. 4. 26. 6 If the Kéeper of a Parke fell or cut any Trées Woods The Keeper 〈◊〉 a Park making wast or Vnder-woods and convert them to his own use this is a forfeiture of his office for destruction of the vert is by a meane destruction of venison So it is also if he pull down any house wherein the hey wherewith the Déer are fed is usually put for that also tendeth to the destruction of the Déer 28 H. 8. Beudloes enter evesque de Londres Hieron Co. l. 9. 50. 95 96. 99. Escape 7 If a Gaoler that hath a prisoner in his custodie upon execution Co. ibid. 260. a. 3. Boytons case suffereth him to go at large though it be with a Keeper he is liable to an escape for he ought to kéep him in salva arctà custodia to the end he may the sooner pay his debt Co. l. 3. 43. b. 4. Entry Release of all actions 8 Where a man may enter Co. Inst pars 1. 286. a. 3. Co. l. 8. 152. a 1. Sir Edward Althams case a release of all Actions doth not barre him of his right because he hath another remedie viz. to enter But where his entry is not lawfull there a release of all actions is by consequence a barre of his right because he hath released the meane whereby he might recover his right As if the Disseisée release all Actions to the heir of the Disseisor which is in by descent he hath no remedie to recover the land because he had no other meanes to recover it but by Action and of that he is barred by his Release An Alien hâ—ndred of Trade 9 To hinder an Alien from getting into his hands by Gift Trade Co. l. 7. Calv. case 17. a. or other lawfull meanes any treasure or other personal goods whatsoever as also an house for his necessary habitation and conveniencie of trading and from maintaining any Action for the same were in effect to denie unto him Trade and Traffick which is the life and support as of every Island so more especially of this Kingdome Release of all demands 10 The reason Co. l. 8. 154. a. 3. Sir Edward Althams case why a Release of all Demands doth barre a man of all his Right Title and Interest in any Lands Tenements Gâ—ods Chattels c. is because by such a Release the meanes and remedies of recovering them are utterly extinct and so by consequence the right and Interest in the things themselves Nusances 11 If a man by erecting a Building or a Wood-pile doth stop up or hinder the light of his neighbours house Co. l. 9. 58. a. 2. Aldreds case or if by building an Hogs cote néer his neighbours dwelling-house he much annoyes the same or makes the aire infectious or unholsome an Action upon the case will lie in either of these cases for hereby he hinders and interrupts the peaceable dwelling of his neighbour which is the principal end for which the house was at first erected A Legacie of a Lease 12 A. possest of a Lease for 500 yeares deviseth it to B. for life the remainder to C. and his heires and dies Co. l. 10. 51. b. 3. Lampets case here albeit the whole terme be in B. and C. hath nothing but a possibility or a future Interest and therefore cannot grant it over yet in as much as the Legacie or Devise to C. is in esse and present and therefore may be discharged the Interest also which springs from the Legacie may likewise be discharged for Qui distruit medium distruit finem And therefore if oâ—e devise to another 20 l. when he comes to the age of 24 yeares and die the Legatorie after the age of 21 yeares may release this Legacie and devise and although he afterwards attaine to the age of 24 yeares he shall be barred to recover it and yet in this case a Release of all
of his own right heirs the reversion of the fée had béen in him because the use of the fée continued ever in him And the Statute doth execute the possession to the use in the same plight quality and degrée as the use was limited Co. Inst pars 1 22. b. 4. 7 If a man make a gift in taile or a lease for life Void remainder the remainder to his own right heires this remainder is void and he hath the reversion in him for the Ancestor during his life beareth in his body in judgement of Law all his heirs and therefore it is truly said that haeres est pars antecessoris And this appeareth in a common case for if Land be given to a man and his heirs all his heirs are so totally in him that he may give the land to whom he will Co. ib. 23. a. 4. 8 Albeit Tenant in Frankmarriage is estéemed in Law a frée tenure till the fourth degrée be past Frankmarriage Fealty yet the Donées in Frankmarriage shall immediately make fealty because fealty is incident to every tenure except Frankalmoigne and cannot be separated from it Co. ib. 47. a. 3. 9 If a man make a lease for years Rent incident to the reversion and reserve a rent to him and his Executors the rent shall end by his death because the heire hath the reversion and the rent is incident to the reversion Co. ib. 68. a. 1. 10 Fealty is incident to Homage because it is a part of Homage Fealty all the words of Fealty being comprehended within Homage Mirror cap. 3. Co. ib. 69. a. 1. 11 As fealty is incident to Homage Fealty Homage c. so Homage and Knight service are incident to Escuage and by the grant of services Escuage passeth with the rest â—dship of Donee inâ—nt to the â—or 12 If Tenant by Knight service maketh a gift in taile Co. ibid. 77. a. 1. in Sir Thomas Wiats case T. 18 Eliz. in C. Ba. per Cur. and the Donée maketh a Feoffment in fée and the Donée dieth his heire within age the Donor shall have the Wardship of him because he is his Tenant in right But if the Feoffée die his heire within age the Donor shall not have the Wardship of his heire but the Lord paramount because he is Tenant in fait to him Neither shall the Donor avow upon the Feoffée or his heire for the services due unto him because he must in his Avowry shew the reversion in fée to be out of him by the Feoffment and consequently the services incident to the reversion are also out of him but he shall avow upon the Donée and his issue And thus are all books that séem to be at variance either answered or reconciled â—ure 13 There can be no tenure without some service Co. ibid. 92. b. 1. because the service maketh the tenure and is incident unto it 〈◊〉 services 〈◊〉 Fealty seâ—able 14 Of Incidents there be two sorts viz. separable and inseparable Co. ib. 93. a. 1. Separable as rents incident to reversions c. which may be severed Inseparable as fealty to a reversion or tenure which cannot be severed For as all lands and tenements within England are holden of some Lord or other and either mediately or immediately of the King so to every tenure at the least fealty is an unseparable incident so long as the tenure remains and all other services except fealty are severable â—ident teâ—res c. 15 The tenure in Frankalmoigne is an incident to the inheritable bloud of the Grantor Co. ibid. 99. a. 4. and cannot be transferred or forfeited to any other no more than a foundership of an house of Religion which is intended to be in Frankalmoign or Homage Ancestrell or the writ of contra formam Feoffamenti or the writ of contra formam Collationis or any other incident to their inheritable bloud but it is no incident inseparable for the Lord may release to the Tenant in Frankalmoigne and then the tenure is extinct and he shall hold of the Lord paramount by fealty as in the case of Littleton Sect. 139. â—stresse inciâ—nt to fealty 16 If rent-service be behind the Lord may distrain for the arreare Co. ibid. 142. a. 3. because fealty is incident to rent-service and where fealty c. is incident to the rent there is a distresse also incident thereunto 〈◊〉 leases Feâ—y insepaâ—le â—nt not inâ—arably inâ—ent â—alty inciâ—nt 17 In the case of a gift in taile lease for life or years Co. ibid. 143. a. 1. the fealty is an incident inseparable to the reversion so as the Donor or Lessor cannot grant the reversion over and save to himselfe the fealty or such like service but the rent may be excepted because the rent although it be incident to the reversion yet is it not inseparably incident 18 If a man maketh a gift in taile without any reservation Co. Inst pars 1. 143. a. 2. the Donée shall hold of the Donor by the same services that he holds over but otherwise it is of an estate for life or yeares for there if he reserveth nothing he shall have fealty only which is an incident inseparable to the reversion â—elease of â—nd except â—e said rent 19 If there be Lord and Tenant by fealty and rent Co. ib. 150. a. 3. 4. and the Lord by his déed reciting the tenure releaseth all his right in the land saving his said rent In this case the Seignory remains and he shall have the rent as a rent service and also the fealty incident unto it for in saying the said rent it is as much as if he had said the rent service whereunto fealty is incident â—ant of serâ—es quid oâ—atur 20 If the Donée hold of the Donor by fealty and certain rent Co. ibid. 150. b. 1. and the Donor grant the services to another and the Tenant attorne some have said the rent shall not passe because the rent cannot passe but as a rent service being granted by the name of services And the fealty cannot passe because it is an incident inseparable to the reversion But it seemeth that the rent shall passe as a Rent-secke because at the time of the grant it was a rent service in the Grantor and therefore there be words sufficient to passe it to the Grantée and it is not of necessity that it shall be a Rent-service in the hands of the Grantée c. Co. ibid. 148. b. 3. 21 If a man maketh a lease for life of Black acre and White acre Accrueâ— Rent appâ—oned reserving two shillings rent upon condition that if the Lessée doth such an act c. that then he shall have fée in Black acre the Lessée performs the condition Here albeit by relation he hath the fée-simple ab initio yet shall the rent be apportioned for that the reversion of one acre
whereunto the rent was incident is gone from the Lessor Littl. §. 225. Co. ib. 150. a. 22 If there Lord and Tenant Distresse iâ—dent to fealâ— and fealty 〈◊〉 homage and the Tenant holds of the Lord by fealty and certain rent and the Lord grants the rent by his déed to another c. reserving the fealty and the Tenant attorns to the Grantée of the Rent Here such a rent in the hands of the Grantée is not Rent-service but Rent-secke because the power of distraining remains still with the Lord as an incident to the fealty which he hath reserved c. So it is likewise where the Tenant holds by homage fealty Littl. §. 226 227. Co. ibid. 150. b. and rent and the Lord grants the rent reserving the Homage c. but in this last case if the Lord grant away the Homage saving unto himselfe the rest of the services and the Tenant attorn c. In this case the Tenant shall hold the land of the Grantée and the Lord shall have the Rent but as a Rent-seck and shall not distrain for it because the power of distraining doth of common right go along with the Homage and Fealty Co. ibid. 68. a. 1. Co. ibid. 151. b. 1. Fealty being an inseparable incident to Homage and Distresse the like to Fealty c. 23 Incidens is a thing appertaining to Definitio or following another as a more wrorthy or principall Littl. §. 228. Co. ib. 151. b. 3 4. 24 If a man let lands to another for terme of life reserving rent Rent sepâ—â—â—bly fealty 〈◊〉 separably â—â—cident to the reversion if he grant the rent c. saving the reversion c. the Grantée hath the Rent as a Rent-seck for which he cannot distrain because the fealty unto which the Distresse is incident doth still remain in the Grantor as an inseparable incident to the reversion for albeit the rent be also incident to the reversion yet it is separably incident whereas Fealty is inseparably incident unto it so that although when the rent was first reserved it was Rent-service and so by consequent had Fealty and distresse incident unto it yet being now by the grant fevered from the reversion and Fealty it hath lost the priviledg of distresse which always inseparably adheres to the Fealty c. Neverthelesse in the said case if the Lessor grant the reversion for life c. the rent shall passe therewith as incident to the reversion and the Grantée shall then have it as a Rent-service whereunto Distresse is incident because it then passeth by the grant of the reversion as with the superiour or principall and that without using these words in the Grant cum pertinentiis c. Co. ibid. 192. a. 3. 214. a. 2. 25 If two Ioyntenants make a lease for life Jointenants reserving a rent to one of them the rent shall enure to them both because the reversion remains in Ioynture and therefore the rent which is incident to the reversion shall also enure in joynture c. unlesse the reservation be by déed indented for then he onely to whom it is reserved shall have it c. so also a surrender to one shall enure to both Littl. 348. Co. ib. 215. b. 3. 26 If there be Lord and Tenant Rent incideâ— to the reveâ—on and the Tenant make a lease for life reserving to him and his heirs an annual rent c. and after the Lessor dies without heire so that the reversion falls to the Lord by way of Escheat and the rent of the Tenant for life is behind In this case the Lord by Escheat may distrain for the Rent arrear Escheat albeit it was reserved to the Lessor and his heirs for both Assignees in Déed Assignees in Law shall have the rent because the rent being reserved of inheritance to him and his heirs is incident to the reversion and goeth with the same Co. ibid. 223. b. 4. 27 Albeit as Littleton saith Sect. 362. Tenant in 〈◊〉 barred by coâ—dition 〈◊〉 not a Tenant in taile may by condition be barred from making any alienation and discontinuance of his estate contrary to the Statute of Westm 2. yet cannot that estate be so clogged by a condition that the incidents which are by Law annexed unto it may be barred or severed from it Co. l. 6. 41. a. 1. Sir Anthony Mildmayes case 42. b. 4. l. 10. 38. b. 4. Mary Portingtons case Now the incidentâ— to an estate taile are 1 To be dispunishable of waste 2 That the Feme of the Donée shall be endowed 3 That the Baron of the Feme Donée after issue shall be Tenant by the Courtesie 4 That the Tenant in taile may suffer a common recovery And therefore if a man make a gift in taile upon condition to restrain the estate from having any of these incidents the condition is repugnant and void in Law And for this cause it is that a Collateral or lineall warranty with assets in respect of the recompence is not restrained by the Statute of Donis conditionalibus no more is a common recovery in respect of the intended recompence And Littleton there to the intent to exclude the common recovery saith Tiel alienation discontinuance joyning them together Descriptio incidentium 28 They that have Conusance of any thing Co. ibid. 227. b. 4. are to have Conusance also of all incidents and dependants thereupon For an incident is a thing necessarily depending upon another Vide 64. Stat. 21. H. 8. 19. 29 By the Statute of 21 H. 8. cap. 19. it is enacted Co. ibid. 268. b. 1. That if the Lord shall distrain upon the Lands and Tenements holden c. that he may avow c. upon the same lands c. as in lands c. within his Seignory c. without naming of any person certaine and without making avowry upon a person certain Here albeit the purview of this act be generall yet all necessary incidents are to be supplyed and the scope and end of the Act to be taken And therefore although he néed not to make his avowry upon a person certain yet he must alleadge seisin by the hands of some tenant certain within forty years c. Incident serviâ—es shal not be discharged without speciâ—l words 30 If there be Lord and Tenant Co. Inst pars 1. 305. b. 3. and the Tenant holds of his Lord by the service of Fealty and xx s. rent if the Lord by his Déed confirme the estate of his Tenant to hold for xii d. or for a penny c. In this case saith Littleton Sect. 538. the Tenant is discharged of all the other services and shall pay the Lord nothing but what is comprised within the same confirmation Neverthelesse these words are thus to be understood that the Tenant shall not render any more rent or annual service to the Lord than is contained in the
extinct but if a man make a gift in taile or a lease for life c. rendring rent and disseise the Tenant in taile or for life c. and make feoffment in fée Here albeit the estate passeth to the Feoffée yet when the Donée or Lessée re-enters he shall revive the rent as an incident to the reversion There is the same Law also of a lease for years c. Co. l. 7 4. b. 3. Calvins case 48 Ligeance is a true and faithful obedience of the subject due to his Sovereign Allegiance 〈◊〉 Incident And this allegiance and obedience is an incident inseparable to every Subject for as soon as he is born he oweth by birth-right ligeance and obedience to his Sovereign Co. l. 7. 18. a. 3. Calvins case 49 There be regularly unlesse it be in special cases thrée incidents to a Subject born The like 1 That the Parents be under the actual obedience of the King 2 That the place of his birth be within the Kings Dominion And 3 The time of his birth is chiefly to be considered for he cannot be a Subject borne of one Kingdome that was born under the ligeance of a King of another Kingdome albeit afterwards one Kingdome descend to the King of the other Co. l. 8. 54. a. 3. Syms case 50 If a man be seised of an house in right of his wife Estovers incident to a house and another grants to the Baron and his heirs to have sufficient Estovers to burne in the house In this case the Estovers are incident and appurtenant to the house and shall descend to the issue of the Baron and Feme So likewise if one hath an house of the part of the Mother and one grant to him and his heires competent house-boot to be burnt in the same house Here those Estovers are incident to the house and therefore albeit that was a new purchase yet it shall go with the house to the heire of the part of the Mother Imprisonment incident to a Fine 51 Vnto every Fine imposed in Court Imprisonment is incident Co. l. 8. 59. b. 3. â—eechers case And therefore in all actions Quare vi armis as Rescous trespasse vi armis c. if the Defendant upon judgement given against him be fined he shall also be imprisoned For when the judgement is quòd defendens capiatur that is as much to say as quòd capiatur quousque finem fecerit c. A rent incident to a reversion 52 If a man make a lease of thrée acres all of equall value per annum Co. l. 8. 79. b. 3. Wiat Weilds case rendring 3 s. rent and the Lessor grants the reversion of one acre and the Tenant attorns the Grantée shall have 12 d. rent For albeit there was but one lease one reversion and one rent yet that rent being incident to the reversion which was severable shall therefore attend upon the reversion and upon every part of it Incidents to Corporations 53 When a body politique is incorporated by prescription by a certaine name then to implead or to be impleaded to grant and purchase Co. lib. 10. 29. b. 4. The case of Suttons Hospital Co. lib. 11. 77. a. 3. Magdalen Colledge case c. are things incident unto it Incidents inseparable 54 If the Donee in taile holds of the Donor by fealty and the Donor by deed inrolled grants the fealty to the King that grant is meerly void because fealty is an incident inseparable to the reversion as it was holden 26 Ass Pl. 66. So also if the founder of a Colledge c. will grant his Foundership to the King by deed inrolled that is void because it is inseparable to the blood as it was holden Co. l. 11. 78. a. 3. the same case Tempore H. 8. B. R. tit And therefore if before the Statute of 18 Eliz. cap. 2. which was to make good all Grants made either by or to the Queen a grant had been made to the Queen of such inseparable incidents as of a Foundership or of such services of Donee in taile as aforesaid that Act would not have made such grants good because such things are not grantable c. Estovers 55 Estovers or wood granted to be burnt in such an house 12 Eliz. 381. Finch 15. shall go to him that hath the house by whatsoever title he hath it for one is inseparably incident to the other Fealty 56 Lord and Tenant by Fealty and Homage 7. E. 3. 11. the Lord releaseth his fealty this is void for Fealty is incident to Homage Finch 15. An office 57 An office of skill and diligence 12 Eliz. 379. or an Annuity pro concilio impendendo cannot be forfeited by attainder of Treason Finch 15. Court Baron Faire 58 A Court Baron is incident to a Mannor 19 H. 8. Br. Incidents 34. and a Court of Pipowders to a Faire And therefore one cannot grant the Mannor or Faire reserving those Courts Finch 15. Castle-guard 59 Where one holdeth of a man to keepe his Castle 31 E. 3. Assise 441. the Lord cannot grant his Castle-guard reserving his Castle Finch 15. Covenant incident to the â—and 60 It hath been adjudged Co. Inst pars 1 384. b. 4. that where two Coparceners make partition of land and the one made a covenant with the other to acquit her and her heirs of a suit that issued out of the land the Covenantee aliened In this case the Assignee shall have an action of Covenant albeit he was a stranger to the Covenant because the acquitall did run with the land and was incident unto it in whose hands soever it should come 42 E. 3. per Finchden Covenant â—â—ns with the â—and 61 A. seised of the Mannor of D. whereof a Chappel was parcell Co. ib. 385. a. 1. a Prior with the assent of his Covent covenanteth by deed indented with A. and his heirs to celebrate Divine Service in his Chappel weekly for the Lord of the said Mannor and his servants c. In this case the Assignees shall have an action of Covenant albeit they were not named for that the remedy by Covenant doth run with the land to give damages to the party grieved and is as it were incident and appurtenant to the Mannor But if the Covenant had been with a stranger to celebrate Divine Service in the Chappel of A. and his heirs there the Assignee shall not have an action of Covenant for the Covenant cannot be annexed to the Mannor because the Covenantee was not seised of the Mannor F. N. B. 138. l. 62 In some case the heire shall have an action of Detinue for Charters albeit he hath not the land as if I be enfeoffed with warranty A detinue for charters and I enfeoff another with warranty in fée Here my heire shall have a Writ of Detinue for the déed by which I
second deliverance is a Supersedeas to the Returno habendo by which it is implyed that the Sheriff ought not to serve the Returno habendo Dyer 135. 13. 3 4 P. M. 24 In a Quare Impedit the Plaintiff entitles himselfe to the next avoydance by the grant of the right Patron to a stranger An administration in Law who made two Executors and died and for that the Executors granted the next avoidance to him Et hoc absqueta ostentione literarum without shewing the testament of the first Grantée And in this case it séems he néed not shew them because albeit the Executors never proved the testament yet their grant of the next avoydance was good for that it was an administration implyed by Law Debt for rent 25 A lease for yeares is made of an house with divers Implements rendring rent the Lessor enters and makes feoffment Dyer 212. â—7 4 Eliz. the Lessée re-enters and for rent arreare the Feoffée brings debt and adjudged mainteinable albeit there wâ—â— no privity Howbeit the regresse of the Lessée is an attornment in Lâ—â— whereupon it seemes the Law creates a privity For in this case the rent was not extinct but onely suspended untill the Termor by his regresse revived the reversion Ejectione Firmae 26 In an Ejectione Firmae of a lease of a Rectory Dyer 304. 52. 14 Eliz. the verdict passed for the Plaintiff and it was moved in arrest of Iudgement that it was not shewed that the Parson was in life Howbeit because it was averred by Implication in the Court by these words Fuit adhuc est seisitus c. the Plaintiff had judgement Quare Impedit 27 A Church was void by the taking of a second Benefice upon the Statute of 21 H. 8. 13. and lapse devolved to the Queen Dyer 360. 7. 20 Eliz. who presents A. who was admitted instituted and inducted and afterwards the Queen presents B. A. dies the Patron brings a Quare Impedit against B. and counts of the avoydance and lapse suprà and that the Queen presented A. who was admitted and instituted and that the Church is now void by the death of A. And the question was whether or no this was sufficient without saying Inducted And it séemed it was because the Plaintiff alleadged that the Church was void by the death of A. which implies Induction and then it was not revocable 28 Vide Hob. 5. Gardiner against Bellingham 8. Yardly against Ellill 43 Things by reason of another are in the same plight Possessio fratris 1 Albeit the Maxime in Law be Co. Inst pars 1 15. b. 3. Possessio fratris facit sororem esse haeredem yet if the Sister die living the Brother her issue shall inherit before the brother of the halfe blood because he personates the Mother and therefore shall succeed the brother in the inheritance Acceptance of Rent 2 Tenant in taile makes a lease for forty yeares reserving a rent Co. ibid. 46. b. 1. to commence ten years after Tenant in taile dies the issue enters and enfeoffs A. the ten yeares expire the Lessee enters if A. accepts the rent the lease is good for he shall have the fame election that the issue in taile had either to make it good or to avoid it c. Coparceners 3 If there be two Coparceners of a reversion Co. ibid. 53. b. 4. and Waste is committed and the one of them die the Aunt and the Niece shall joyne in an action of Waste Courtesie Dower Waste 4 A Tenant by the Courtesie or in Dower Co. ibid. 54. a. 1. 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 heire shall have an action of Waste against them and recover the land against the Assignee Waste 5 If Tenant for life grant over his estate upon condition Co. ib. 54. a. 3. and the Grantée doth Waste and the Grantor re-entreth for the condition broken the action of Waste shall be brought against the Grantée and the place wasted recovered c. 21. Tenant at â—ill â—aron and â—me 6 If a woman make a lease at will reserving a rent Co. ibid. 55. b. 4. Co. lib. 5. 10. Hensteads case and then taketh Huâ—band this is no countermand of the lease at will but the Husband and Wife shall have an action of Debt for the rent And so is it if a lease be made to a woman at will reserving a rent and the Lessée taketh Husband this is no countermand of the lease but the Lessor may have an action of Debt and distrain them for the rent So if the Husband and Wife make a lease at will of the wives land reserving a rent and the husband die yet the lease continueth In like manner if a lease be made by two to two others at will and the one of the Lessors and of the Lessées die the lease at will is not determined in either of these cases c. Co. Inst pars 1. 58. b. 1. 7 Tenant for years Tenant by Statute Merchant Staple Elegit Domini pro tempore at will Guardian in Chivalry c. may be Lords of a customary Mannor as well as those that have fée for â—â—â—eit they be not properly seised but possessed yet are they Domini pro tempore not onely to make admittances but to grant voluntary copies of ancient Copihold lands which come into their hands by forfeiture escheat or otherwise Also admittances made by Disseisors Abators Intruders Tenant at sufferance or others that have defeasible titles stand good against them that right have because it is a lawfull act and they are compellable to do it Howbeit they cannot make voluntary grants of Copies as aforesaid to binde the Disseisées c. because they come in by wrong and have estates that may he defeated Co. ibid. 58. b. 2. 8 In some special case an estate may be granted by Copie by one Copiholds grantable by an Executor that is not Dominus pro tempore nor that hath any thing in the Mannor As if the Lord of a Mannor by his Will in writing deviseth that his Executors shall grant the customary Tenements of the Mannor according to the custome c. for the payment of his debts and dieth the Executor having nothing in the Mannor may make grants according to the custome of the Mannor Co. ibid. 59. b. 3. 9 If the Lord of the Mannor for the time being be Lessée for life Dominus pro tempore coâ—pellable to admit or for years Guardian or any that hath a particular interest or Tenant at will of a Mannor all which are accompted in Law Domini pro tempore do take a surrender into his hands and before admittance the Lessée for life dieth or the years interest or custodie do end or determine or 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
Parson in the same plight condition that he was in upon his first presentation notwithstanding the presentment of the other by the Defendant c. â—nferiour Courts 30 When a writ of right is directed to the Lord of a Mannor Co. l. 6. 11. a. Jentlemans case or his Bayliffs or a Iusticies or other Vicontiel Writs are directed to the Sheriffe c. that shall not change the nature or jurisdiction of those Courts as to make the Lord or Sheriffe to whom those Writs are directed to be Iudges of those Courts respectively which were not so before but the Sutors do still remaine Iudges thereof Neither yet shall the direction of those Writs to the Lord or Sheriffe as aforesaid albeit they are in themselves matter of Record constitute the Lord or Sheriffe to be Iudges of Record or a Court Baron Hundred Court or County Court to be Courts of Record For upon a Iudgment given in any of those Courts a writ of False judgement lies and not a writ of Errour c. No change by â—emise of the â—ing 31 When the King demises his Crown to the next Successor Co. lib. 7. 29. b. 4. Discontinuance of processe per mort de la Roygne upon the general resummons by the Kings writ which begins thus Mandamus vobis quod ad sectam nostram animumque ligeorum populi nostri c. the originall and issue if any be joyned is revived for that is a full record and ought to be entred it is otherwise of the processe before issue joyned voucher garnishment c. yet they shall be also revived upon a special writ reciting all the special procéeding And it appeares by the booke of Entries tit Reattachment 499. that if the Issue be joyned and the Iury returned and a day given for tryall before which day the King dies yet by special resummons all shall be revived for the Iury was returned of record and the record thereof was made full and perfect c. Co. lib. 11. 64. a. 2. Doctor Fosters case 32 It is ordained by the Statute of 1 Eliz. cap. 2. Statutes for going to Church That every person shall resort to their Parish Church or upon let thereof to some other every Sunday and Holiday c. And by the Statute of 23 Eliz. cap. 1. That every person not repairing to Church according to 1 Eliz. 2. being thereof lawfully convict shall forfeit twenty pound for every moneth they so make default and that of the forfeitures aforesaid the Queen c. shall have the two third parts viz. the one to her owne use the other for reliefe of the poore c. and the other third part the prosecutor shall and may recover by action of debt c. And by the Statute of the 29 Eliz. cap. 6. it is enacted That every such offender once convicted shall afterwards in Easter and Michaelmas Termes pay unto the Exchequer twenty pound for every moneths absence from Church c. and if default be thereof made c. the Queens Majestie c. shall and may by processe out of the Exchequer seize all the offenders goods and two parts of his lands c. And lastly by the Statute of 35 Eliz. cap. 1. It is ordained c. that for the more speedy recovering c. of the forfeitures c. payable to the Queen c. by vertue of this Act and of 23 Eliz. 1. all and every such forfeitures c. shall be recovered c. by action of debt c. in the Kings Bench the Common Pleas or Exchequer as other debts may be recovered c. Here albeit the Statutes of the 29 and 35. séems to alter the law of the 23. in respect of part of the penalty given to the prosecutor by the 23. and being all of it mentioned as given to the Quéen in the other two subsequent Acts Yet the Act of the 23. remains in full force according to the tenour of the same notwithstanding the said subsequent Acts because those two Acts do not give the penalty to any new person but to the same person to whom the Statute of the 23. giveth it viz. to the Quéen c. and they are but acts of addition especially that of the 35. to give a more speedy remedy than was given by that of the 23. c. As in a Writ of Mesne the processe at the Common Law was Distresse infinite and although the Statute of Westm 2. cap. 9. gives a more speedy processe and in the end a Forejudger yet the Plaintiff may take which processe he will either at the Common Law or upon the said Statute because both are in the affirmative Vide ibid. many authorities accordant c. Co. ibid. 4. 33 In many cases the designation of one person in a late Act of Parliament Grant of Ward shall not exclude another person which was authorized to do the same thing by an Act precedent It is provided by the Statute of the 8 H. 6. cap. 16. that after office found c. he which found himselfe grieved might within the moneth after traverse and to take the lands and tenements to farm and that then the Chancellour Treasurer and other Officer shall demise unto him to farme untill c. Vide 13 E. 4. 8. And now by the Statute of the 1 H. 8. cap. 16. he hath liberty by the space of three moneths And after the Statute of the 32 H. 8. cap. 40. gives authority to the Master of the Wards with the advice of one of the Council to make a lease of the Wards lands or of an Idiots during the time that they shall remain in the Kings hands Here albeit the last designes another person yet doth it not utterly take away the first For if before any lease made by the Master of the Wards the Chancellour and Treasurer make one according to the Statute of 8 H. 6. then cannot the said Master demise the lands So also if the Master grant them first to another the Chancellour Treasurer c. cannot demise them to the party grieved as Stanford holds Praer fol. 69. a. b. where he mentioneth the rule Leges posteriores prioâ—es contrarias abrogant In 43 Ass Pl. 9. the Statute of 13 E. 3. de Mercatoribus which gives assise to the Tenant by Statute Merchant taketh not away the Assize which the Tenant of the Franktenement had before but both may well stand together So in 33 H. 8. Dyer 50. if it should be enacted that the youngest son should have an appeale of the death of his father that would not exclude the eldest son of his fuit because there are no words of restraint c. â—ncient Deâ—esne 34 In a writ of right Close if the writ of the Demandant abate F.N.B. 19. d. and thereupon he brings a writ of false judgement in the Common Pleas and there the judgement being reâ—ersed the writ is awarded good then shall the Demandant hold
plea there and a judiciall writ shall issue out of that Court in nature of the protestation made in the first writ and if the protestation were in the nature of an assise of Mortdancester the Iustices shall direct a writ to the Sheriff to summon the Iurors to come out of the ancient Demesne to the Common Pl. and the whole matter shall be tryed and determined in that Court And albeit judgement be given of that land in the Common Pleas yet shall the land still remain ancient Demesne as it was before â—resentation â—y lapse 35 If a man present to an Advowson and after the Incumbent dies F.N.B. 31. â— and the Ordinary presents by lapse another Incumbent and after that Incumbent also dies now may the right Patron present again and if he be disturbed he shall have an assise De Darrein presentment notwithstanding those meane presentments Disturbance 〈◊〉 present 36 If a disturber presents to an Advowson F. N B. 32. â— and the Patron brings an assise of Darrein presentment and hanging the Writ the Incumbent dies if the disturber present again another Incumbent and dies yet the Patron shall have an assise of Darrein presentment upon the first disturbance by Journeys accompts against the heire of the disturber And so if the disturber present two or thrée times within the six moneths the true Patron shall have an assise de Darrein presentment upon the first disturbance Presentation â—y Coparceâ—ers 37 If two Coparceners make partition to present by turne F.N.B. 34. i. albeit the one Coparcener usurp upon the other and presents in her turne this presentment shall not put her out of possession but she shall have her turne when it falls again and shall have a Quare Impedit or Scire facias upon the Composition if it be upon record if she be disturbed to present Presentation â—y an Abbot 38 If in the time of the vacation of an Abbey or Priory F.N.B. 34. m. a Church happens to be void which is of the patronage of the Abbey or Priory and a stranger usurps and presents unto it this usurpation shall not prejudice the Successor but that at the next avoydance of the said Church he may present and have a Quare Impedit It is otherwise when the usurpation is made in the time of his Predecessour for that puts the succession out of possession if the six moneths be past â—ction of Deâ—eipt 39 If a man loose land by default in a Praecipe quod reddat and die F.N.B. 98. q. his heire shall have an action of Deceit as well as the father and shall have restitution The like 40 If a man have execution by default upon a recognizance in a Scire facias sued against one and the Defendant dies F.N.B. 98. r. his Executors shall have a Writ of Deceit and shall be restored 〈◊〉 warrantia â—artae 41 If a man hath a Warrantia cartae hanging F.N.B. 135. l. albeit the Plaintiff that hath the Action against him who brings the Writ De warrantia cartae be non-suited in his action that shall not abate the Writ De warrantia cartae For he may have that Writ although he had no action sued against him for the land c. â—ecogniâ—ance â—udita quaeâ—a 42 Rosse was bound in a Recognizance of 1000 Marks to Pope Pl. Co. 72. Rosse Popes case and Curson according to the Statute of the 23 H. 8. cap. 6. and after Rosse and his wife by fine give to the Conisées the fifth part of the Mannor of Burton Constable and other lands in the County of Yorke in fée And after Pope as Survivor sues execution of the said Recognizance in London against Rosse and his body was taken and the said Rosse supposing the said fine of those lands in the County of Yorke would have discharged him of the recognizance brought his Aâ—dita quaeâ—ela containing the whole matter upon which Writ and Declaration Pope demurred in Law And in this case it was adjudged that the Audita quaerela would not lie nor that the purchase by the Conusées of parcell of the land that Rosse had at the time of the recognizance acknowledged could discharge the recognizance because the person was properly charged with it and not the land but in respect of the person c. Finch 15. 43 The custome of Gavelkind is not changed Gavelkind Ancient Demesne though a fine and recovery be had of the same at the Common Law for this is a custome by reason of the land 6 E. 6. Dyer 72. Finch 16. and therefore runneth always with the land But otherwise it is of land in ancient Demesne partable amongst the Males for there the custome runneth not with the land simply but by reason of the ancient Demesne And therefore because the nature of the land is changed by the fine and recovery from ancient Demesne to land at the Common Law the custome of parting it amongst the Males is also gone F.N.B. 21. b. Finch ibid. 44 If an erroneous recovery he had of lands in Burrough English the youngest son shall have a Writ of Errour Burrough â—â—glish because the land it self goeth to him so shall all the sons of lands in Gavelkind 42 E. 3. 3. Finch ibid. 45 Two Coparceners make partition Parceners and one covenants with the other to acquit the land Now if the Covenantée aliens his part the Alienée shall have a writ of covenant Co. Inst pars 1 171. a. 2. 46 If the annual value of the land be equal at the time of the partition and after become unequal by any matter subsequent Partition as by surrendring ill husbandry or the like yet the partition remains good Judicis officium est ut res ita tempora rerum Quaerere quaesito tempore tutus eris Co. inst pars 1. 23. a. 11. 47 Whosoever is seised of land Feoffmentâ— his own 〈◊〉 the old 〈◊〉 maines hath not onely the estate of land in him but the right to take the profits which is in nature of the use and therefore when he makes a feoffment in fée without valuable consideration to divers particular uses so much of the use as he disposeth not is in him as his ancient use in point of Reverter As if a man be seised of two acres the one holden by Knight service in priority and the other by the same service in posteriority and maketh a feoffment in fée of both acres to the use of himselfe and his heirs the old use continued in him and the priority and posteriority remain So it is of lands of the part of the Mother for if one make a feoffment in fée of them to the use of himselfe and his heirs the use shall still goe to the heire of the part of the Mother which could not be if it were not the old use but a thing newly created The like law
of lands of the custome of Burrough English Gavelkind c. Fitz. N. B. 1. 156. b. 48 If Tenant by Receipt upon default of Tenant for life appeare Tenant by â—â—ceipt and to received and pleads and after loseth by action tried c. Yet the Tenant for life may have a Quod ei deforceat upon the Statute of West 2. cap. 4. for the judgement is given against him for his default Dyer 2. 1 2. 6 H. 8. 49 If a Rent-charge be granted out of land pro consilio impendendo Rent chargâ— Prison in 〈◊〉 and the Grantée is afterwards attainted and committed to prison yet he shall not lose the rent for he may give counsel as well in prison as at large Dyer 30. 20â— 28 H. 8. 50 The Feoffées to an use made a lease for life rendring rent Cesty que â—sâ— before the Statute of Vses in this case Cestuy que use who now hath the reversion in possession shall distraine and make Avowry for the rent without attornment So it is if they had granted a rent upon condition the Grantée after the Statute should have holden by the condition in such plight as he did before Law-day Warren 51 There are thrée Coparceners of a Mannor Dyer 30. 203. and the King grants them a Law-day and they afterwards make feoffment of the Mannor yet shall they still retain the Law-day So if a man hath a Mannor and the King grants him frée Warren within his Mannor if he afterwards enfeoff the King of his Mannor without the appurtenances he shall still retain the Warren For a man may have Warren or a Law-day in anothers land per tot Cur. Action upon the case 52 In an action upon the Case the Plaintiff was non sâ—it Dyer 32. 5. 28 29 H. 8. whereupon the Defendant by the Statute of 23 H. 8. 15. had judgement to recover his costs and after the record was removed by Errour in B. R. by the Plaintiff and hanging that suit the Defendant brings an action of Debt in C. B. upon a new original and counts upon the record of an action upon the Case Errour And this matter was pleaded by the Defendant in this action c. And the better opinion of the Court was that the action was maintainable notwithstanding the writ of Errour because it was brought upon a new original Frankalmoign 53 Albeit the Lyturgie or book of Common Prayer was altered by the Statutes of 2 3 Edw. 6. cap. 1. 5 6 Edw. 6. cap. 1. Co. Inst pars 1. 95. b. 2. and 1 Eliz. cap. 2. yet the tenure in Frankalmoign remains the same and such Prayers and Divine Service shall be said and celebrated as in all times shall be authorized by Parliament Câ—mmon Prayer yea although the tenure be as Littleton hath it Sect. 137. A chanter un Messe c. ou a chanter un placebo dirige yet if the Tenant say Prayers in such a form as is lawfully authorized it sufficeth And as Littleton saith Sect. 119. in case of soccage the changing of one kind of temporal services into other temporal services altereth neither the name nor the effect of the tenure so the changing of Spiritual services into other Spiritual services neither altereth the name or effect of the tenure in Frankalmoign For albeit the tenure in Frankalmoigne was reduced by the said Statutes to a certainty contained in the book of Common Prayer and now since to an uncertainty again by extemporary Prayers Yet séeing the original tenure was in Frankalmoigne and the change was and is by general consent in Parliament whereunto as is presumed every man is party the tenure remains as it was at first Tenements devisable 54 Tenements in London divisable by custome come into H. 8. Dyer 155. 21. 4 5 P. M. hands by the dissolution of Abbies and after the King grants them to hold in chiefe by Knights service In this case a Devise of the whole is still good against the heir but quaere whether it be so against the King for wardship or primer seisin by reason of the saving in the Statute of 32 H. 8. cap. 1. Verdicts returned 55 The Clerk of the Assise may Dyer 163. 54. notwithstanding the death of both the Iustices of Nisi prius deliâ—er in Court the Records of the Verdicts taken before the same Iustices in the Circuit c. Death of a Defendant 56 In a Replegiare or an Assise against two Dyer 175. 24. judgement shall not be arrested by the death of one of the Defendants after the last continuance but shall be entred against the Survivor Partition 57 Ioyntenants and Tenants in Common cannot since the Statute of 31 H. 8. 1. make partition by Parol Co. lib. 6. 12. Morrices case no more than they could before for albeit by that Statute they are compellable to make partition yet it alters not the Common Law in that case Assets 58 In debt upon an obligation against the heire it is no plea to say Dyer 179. 43. Dyer 204. 2. that the Executors have assets Vide Dyer 207. 15. Dyer 217. 61. 4 Eliz. 59 A Veniâ—e facias with Proviso was returned served Venire faciaâ— and puâ— upon the file and two hours after a Pluries venire facias which was afterwards pursued by the Plaintiff was also returned and filed each party also pursue their Habeas Corpora which are likewise returâ—ed Howbeit the Plaintiff failed of his Jurat continuand yet this was adjudged no discontinuance because the continuance by the Defendant sufficed Discontinuance and there is no diversity by the entry of the oâ—e or of the other Dyer 229. 49. 6 Eliz. 60 A Feme dies before Livery sued Tenant by courtesie Partition yet in this case the Baron shall be Tenant by the Courtesie and shall sue livery Dyer 243. 55. 8 Eliz. 61 If there be thrée Coparceners and one of them aliens her part another of them brings a writ of Partition against the Alienée and the third Coparcener upon the Statute per Curiam it shall abate because in this case a writ of Partition lyeth at the Common Law as it did before the Statute Dyer 326. 3. 16 Eliz. 62 The Qu. was seised of Whaddon Chase in Com. Bucks De malefactoribus in paâ—â—â— and the Lord Gray was Lievtenant there in fée and he and his Ancestors and their Kéepers had by prescription used to hunt stray Déere in the Demesnes of the Mannor of Salden adjoyning as in Purlewes the Mannor of S. comes into the Quéens hands who grants it to Fortescue in fée wiâ—h frée Warren within the Demesnes thereof Ita quòd nullus intret in warrennam illam ad fugandum fine licentia F. And it was held that the unity of possession in the Quéen of the Chase and the Mannor of S. did not extinguish the
Exchequer Squire of the body c. cannot be assigned over unlesse it be specially limited in his Patent that he may And the reason why regularly he cannot assigne it over to another is because he may grant it to one in whom the King cannot confide or that will be negligent c. Finch ibid. Offices of skil 3 The Kéepership of a Parke Stewardship 12 Eliz. 179. Bailiwick of Husbandry c. for life cannot be granted over because they are offices that require skill and diligence Finch ibid. An act 4 A. licenceth B. to do an act B. cannot grant this licence to another Br. licences 25. Finch ibid. A warrant of â—ttorney 5 A warrant of Attorney is made to one to deliver seisin 12 H. 8. 12. he cannot grant that authority over to another Finch ibid. â—rbitrators 6 Arbitrators cannot assigne their power over Co. l. 5. 78. a. 1. Samons case And therefore they ought to make so certain an end of the difference that they may leave nothing to be further determined either by the parties themselves or others for they being Iudges of the case their judgement ought to be certaine Office of Marshal 7 The office of Marshal of the Marshalsie being an office of trust Co. l. 9. 96. b. 4. in Sir George Reynels case c. cannot be transferred to another but ought alwayes to be granted for life and to be executed by none but the Grantée himselfe And therefore a lease for yeares of that office is void for then it may fall into the hands of Executors or Administrators and in matters concerning the administration of Iustice the Law will not repose confidence in persons unknown c. Vide 44. 16. Dyer 7. b. 8 A Filizers office cannot be aliened Filizer because it is an office of trust and personal Vide 44. 18. Hob. 13. Sir Daniel Norton and Simmes 9 A Sheriffe in making an Vnder-sheriffe doth implyedly give him power to execute all the ordinary offices of the Sheriffe himselfe Sheriffe that may be transferred by Law as serving of Processe Executions or the like Howbeit the Vnder-sheriffe cannot deale in a Writ of Redisseisin because in that the Sheriffe is a Iudge nor in a Writ of Waste where the Sheriffe is commanded to go to the place wasted because these are places of trust and personal to the Sheriffe himself Hob. 134. Coventry and Woodhal 10 The putting of an Apprentice to one man rather than to another Apprentice is a matter of great trust for his dyet health and safety And therefore it séems that trust cannot be transferred without consent of all parties interessed 46 They being once suspended or discharged for a time are for ever after extinct Pl. Co. 36. a. 3. Plats case 5 E. 6. Br. Escape 45. 1 Where the Defendant is once imprisoned upon an execution One in exeâ—â—tion enlargâ— A debtor 〈◊〉 Executor and makes an escape the Plaintiff shall never after have remedie against him again but ought to take his remedie against the Sheriffe For if a personal thing be once in suspence and the person of a man discharged of a personal thing for a time that is a discharge for ever as if the Debtée makes the Debtor and another which survives the Debtor his Executors yet the debt is extinct for ever c. Dyer 140. Pl. 49. 2 A thing or action personal being once suspended though but for an houre is extinct and gone for ever A personal charge extiâ— by suspenâ—â— when it is by the act and conent of the party himselfe who hath the thing suspended as a Rent-secke Rent-charge or the like which are personal duties and against common right So likewise if a Feme Obligor or Obligée marry with the party and after they are divorced Causa praecontractus the debt is extinct as it is ruled in 11 H. 7. So if a man grant to another a Rent-charge of 10 l. out of the Mannor of Dale and the Grantée by his Will deviseth that the Grantor shall retain five yeares rent for a legacy of 50 l. and dies whereby the rent is suspended for those five yeares In Dyer fo 140. it séems to be the better opinion that both the land and person are for ever after discharged thereof Dyer 371. 6. 23 Eliz. 3 In debt upon the condition of an Obligation consisting of divers points if the issue be joyned upon the breach of one point Obligation extinct which is found against the Plaintiff and whereupon he is barred Albeit all the other points of the condition are broken yet he shall never sue the obligation againe Hob. 10. Fryer against Gildridge 4 Where there were an Obligée and two Obligors Debt extinâ—â— the Obligée made the wife of one of the Obligors his Executrix and died the Executrix administred In this case the action of Debt against the other Obligor is at least suspended and then the Rule is A personal action once suspended is for ever after extinct Vide infrà 54. 36. Hob. 131. Robins Barns 5 In a Quod permittat prosternere quandam domum Nusanâ—e that by being new built hindred a light of the next house by over-hanging upon the issue and verdict it appeared that the Defendant had built the said house upon the old foundation of an house which had béen built there before and had béen pulled downe because ruinous by one that was then owner of both houses And it was the opinion of the Court that the unity of possession of both houses in one man did suspend that easement so as the Defendant could not be charged with any damage but for what should be caused by making it hang over more than it did before for that easement being once suspended is gone for ever albeit the houses come afterwards into several hands 47 They dye with the person â—ste 1 If the Tenant doth Waste and he in the reversion dieth Co. Inst pars 1. 53. b. 4. the heire shall not have an action of Waste for the Waste done in the life of the Ancestor nor a Bishop Master of an Hospital Parson or the like for Waste done in the time of the Predecessor So if Lessée for yeares doth Waste and dyeth an action of Waste lyeth not against the Executor or Administrator for Waste done before their time c. â—â—â—ion of acâ—â—pt 2 Albeit in an action of accompt against a Guardian in Soccage Co. ib. 90. a. 2. c. the Defendant cannot wage his Law yet in respect of the privity of the matters in accompt and the discharge resting in the knowledge of the parties thereunto an action of accompt lyeth neither against the Executors of the Accomptant nor at the Common Law for the Executors of him to whom the accompt is to be made but that is holpen by the Statute of West 2. cap. 23. Rot. Parl.
50. E. 3. nu 123. And it hath béen attempted in Parliament to give an action of accompt against the Executors of a Guardian in Soccage but never could be effected â—â—nity and 〈◊〉 charge 3 An annuity is a yearly payment of a certain sum of money granted to another in fée for life or yeares Co. ib. 144. b. 3. and charging the person of the Grantor onely but doth not enure to the Grantée onely for his heire and his and their Grantée shall have a writ of Annuity but if a Rent charge be granted to a man and his heires he shall not have a writ of Annuity against the heire of the Grantor albeit he hath assets unlesse the grant be for him and his heirs â—â—cisor â—ease 4 If a Disseisor make a lease for life the remainder in fée Co. ib. 275. b. 2. and the Disseisée releaseth unto the tenant for life all his right this release shall enure to him in remainder because as to this and some other purposes they are but as one Tenant in Law Howbeit if the Disseisée release all actions to the Tenant for life after the death of the Tenant for life he in the remainder shall not take benefit of this release for it extended onely to the Tenant for life and ended with his life as it was adjudged in Edw Althams case Co. l. 8. 148. So also if the Disseisor make a lease for life and the Disseisée release all actions to the Lessée this enureth not to him in the reversion c. â—taile in an â—cale 5 In a writ of right when the tryall is by Battaile Co. ib. â—94 b. 4. neither the Tenant nor Demandant shall fight for themselves but shall finde each of them a Champion to fight for them because if either the Demandant or Tenant should be slain no judgement could be given for the lands and tenements in question It is otherwise in an appeal for here the Defendant shall fight for himselfe and so shall the Plaintiff also because there if the Defendant be slaine the Plaintiff hath the effect of his suit viz. the death of the Defendant c. â—â—mment in life of â—â—tor and â—â—ntee 6 Vpon the grant of any thing whereunto attornment is necessary Co. ibid. 309. a. 4. as of a Seigniory rent reversion remainder c. the attornment must be made during the lives both of the Grantor and also of the Grantée for if either of them die before attornment the grant is void And the reason hereof is for that every grant must take effect as to the substance thereof in the lifetime both of the Grantor and of the Grantée whereas in this case if the Grantor dieth before attornment the seigniory rent reversion remainder c. descends to his heire and therefore after his decease the attornment cometh too late so likewise if the Grantée dieth before attornment an attornment to the heire is void for nothing descended to him and if he should take he should do it as a purchasor whereas heires were added but as words of limitation of the estate and not to take as purchasors c. Co. lib. 2. 36. a. Sir Rowland Heywards case 7 If a man for good consideration bargain sell Election and demise a reversion of land to the use of another for yeares and the Grantor or Cestuy que use die before attornment or enrollment the grant is in this case void or good at the election of Cestuy que use void if taken at the Common Law by way of grant because then there wants attornment but good by way of Bargain and Sale according to the Statute of Vses 27 H. 8. cap. 10. and because the Statute of 27 H. 8. cap. 16. of Enrolments extendeth not unto it for that no estate of Franktenement pâ—sseth but onely an estate for yeares And notwithstanding the death of the Grantor and Cestuy que use either one or both the Executors or Administrators of Cestuy que use have power as well as Cestuy que use himselfe to choose by which way they will claime whether by way of grant at the Common Law or by way of Bargain and Sale according to the said Statute of Vses because Cestuy que use had immediately upon the grant a present interest in him which hee or in case he had died his Executors before election might have assigned over and for that he claims one and the same thing by two several wayes it being in his or his Executors power to choose which of them they please It is otherwise where the election is to choose one of two several things by one and the same way or title for then nothing passeth before election and that election must be made during the life of the parties And therefore if I have thrée horses and I give unto you one of my horses in this case the election ought to be made in the life of the parties for in as much as none of the horses is given in certain the certainty and therefore the property commenceth by election And with this agrées Bullocks case in the 10 of Eliz. 281. The Bishop of Sarum having a great Wood of 1000 acres called Berewood enfeoffs another of an house and of 17 acres parcell of the said wood and makes livery in the house here nothing passeth of the wood before election and therefore his heire could not make election c. Co l. 8. 6â— a. 1. in Jo Trollops case 8 If the Bishop make Certificate and die before it be received Certificatâ— a Bishop the Certificate is worth nothing but the Successor ought to certifie a new Fitz. 55. Co. lib. 9. 87. a. 4. Pinsons case 9 An action of Debt lyeth not against Executors upon a contract for the eating and drinking of the Testator for that action dieth with him Wager of Law Executors because in that case the Executors cannot wage their Law as the Testator might have done for a man shall never have an action against Executors where the Testator might in his life time have waged his Law because they cannot have the benefit of Law-wager as he might have had c. 15 E. 4. Vide infrà 14. Co. lib. 11. 1. The Lord De la Wares case 10 Of the family of the Lord De la Ware there was Grandfather Dignity restrained foâ— life Father and Sonne the Grandfather 3 H. 8. was summoned to the Parliament by Writ and after in 3 E. 6. it was enacted that the father should be disabled during his life from claiming any dignity but was afterwards by Qu Eliz. called to the Parliament and sate in the House as a puisne Lord and died after whose death the sonne sued in Parliament to be restored to the place of his Grandfather viz. betwixt the Lord Berkley and the Lord Willoughby of Ersby and it was granted him For there was a diversity taken betwixt a disability personal and
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.
privity c. So also it is if the Tenant alien hanging the precipe the release of the Demandant to the Tenant the precipe is good and yet he hath nothing in the land c. Co. l. 1. 87. b. Corbets case per Walmsley Co. Inst pars 1. 266. a. 1. 45 In time of vacation an Annuity that the Parson ought to pay Release to 〈◊〉 Patron good may be released to the Patron in respect of the privity But a release to the Ordinary onely seemeth not good because the Annuity is temporal Littl. § 452. Co. ib. 267. b. 1. 46 A release of a right made to him in reversion or remainder Privies in estate shall aid benefit him that hath the particular estate for years or life or an estate taile So likewise shall a release of a right made to the particular Tenant for life or in tail aid and benefit him or them in the remainder c. because they are all privies in estate c. Littl. Sect. 454. Co. ibid. 268. a. 47 If there be Lord and Tenant and the Tenant is disseised Release to privies goâ—d and the Lord release to the Disseisee all his right in the Seigniory and in the land this is a good release and the Seigniory is thereby extinct and this is by reason of the privity that is between the Lord and the Disseisee And therefore there is an observable difference betwixt a Seigniory or Rent-service and a Rent-charge For a Seigniory or Rent-service may be released extinguished to him that hath but a bare right in the land and the reason of this is in respect of the privity between the Lord and the Tenant in right For the Disseisee is not onely in that case as Tenant to the Avowry but if he die his heire within age the heire shall be in ward and if of full age he shall pay relief and if he die without heire the land shall escheat but there is no such privity in case of a Rent-charge for there the charge onely lyeth upon the land A Seigniory may likewise be released by the Demandant to the Vouchee Co. ib. 269. a. 1. as also by the Donor to the Donee after the Donée hath discontinued in fée and this is méerly in respect of privity without any estate or right c. And therefore if the Donée in taile maketh a feoffment in fee and the Donor release to him and his heirs all his right in the land this shall extinguish the rent because the Lord must avow upon him and yet the Tenant in tail after the feoffment hath no right in the land but the reason is in respect of the privity and for that the Donor is of necessity compellable to avow upon him onely For if he should avow upon the Discontinuée then it should appear of his own shewing that the reversion whereunto the rent is incident should be out of him and consequently the Avowry should abate And so it was resolved Trin. 18 Eliz. in the Common Pleas in Sir Thomas Wiats case Much more then shall a release made by the Donor to the Donée being disseised extinguish the rent reserved upon the gift in tail Littl. §. 455. because in that case the Donée had still a right in him Howbeit this is also in respect of the privity that is betwixt the Donor and Donée yet here by such a release no right of the reversion shall passe to the Donée because at the time of the release he had nothing but a right in the land c. For a release of a right in lands and tenements to one that hath but abare right Co. ib. 267. a. 4. 273. a. 2 c. regularly is void And to make such a release available he to whom it is made must have either frée-hold in Déed or in Law in possession or a state in remainder or reversion in fée or fée-tail or for life c. Release beâ—ore entry â—oid 48 A man lets his land to another for terme of years Littl. Sect. 459. Co. ib. 270 a. 3. 4. and the Lessor releaseth to the Lessée all his right c. before the Lessée enter into the land that release is void as to enlarge his estate the Lessée having onely Interesse termini and not possession of the land but if such a Lessée enter and have possession then such a release unto him after entry shall be avaylable to enlarge his estate according to the limitation of the same by reason of the privity that is betwixt them by force of the same lease Howbeit if a man make a lease for years to begin presently reserving a rent if before the Lessée doth enter the Lessor releaseth all the right that he hath in the land albeit this release cannot enlarge his estate yet it shall in respect of the privity extinguish the rent And so it is also if a lease be made to begin at Michaelmas reserving a rent and before the day the Lessor releaseth all his right c. this cannot enure to enlarge the estate neverthelesse it shall extinguish the rent in respect of the privity as it was resolved in the Exchequer 39 40 Eliz. betwéen Sir Henry Woodhouse and Sir William Paston Release of Joyntenant of an advowson 49 A man granteth the next avoydance of an Advowson to two Co. ib. 270. b. â— the one of them may before the Church become void release to the other For albeit the Grantor cannot release to them to encrease their estate because their interest is future and not in possession yet one of them to extinguish his interest may release to the other in respect of the privity But after the Church becomes void then is such a release void because it is then as it were but a thing in action Pasc 38 Eliz. in Quare Impedit per Denuet vers l'evesque de Norwich in Com. Banco Release to tenant at will good to tenant at sufferance void 50 A release to a Tenant at will is good Littl Sect. 460 461. Co. ib. 276. b. 3. 271. a. 132. because betwéen the Lessor and such a Lessée there is a possession with a privity but a release to a Tenant at sufferance viz. who cometh to the possession first lawfully and then holdeth over is utterly void because he hath a possession without privity As if Lessée for years hold over his terme c. a release to him is void for that there is no privity betwéen them and so are the books that speak of this matter to be understood for if a man entreth into land of his own wrong and take the profits his own words That he will hold it at the will of the owner cannot qualifie his wrong but he must néeds be a Disseisor and then a release to him is good or if the owner consented thereunto then is he a Tenant at will and that way also a release is good Howbeit there is
67. a. Tookers case 67 If two Ioyntenants let their land for life reserving rent Release of one Joyntenant to another c. if one of them release unto the other that release unto the other that release is good to settle the whole estate and rent in him to whom the release is made without any attornment at all of the Tenant for life in respect of the privity betwéen the Tenant for life and them in the reversion So it is also albeit there be thrée or more Ioyntenants and one of them release to one of the other Howbeit there is a difference betwéen these releases for the release in the â—â—e case maketh no degrée but he to whom the release is made is supposed in from the first Feoffor whereas in the other it worketh a degrée and he to whom the release is made is in the per by him that made it yet in neither of these cases is there any attornment requisite by reason of the privity But if one Ioyntenant make a Lease for years reserving a rent and dieth the other Ioyntenant shall have the reversion because he claimes paramount that Lease as by the first Feoffor Howbeit he shall not have the rent for that there is no privity betwéen him and the Tenant for years as there was in the other case betwéen the tenant for life and them in the reversion c. Attornment by â—ne Joynteâ—ant good for â—oth 68 If two joynt Lessées for years Co. ib. 319. a. 4. or for life be ousted or disseised by the Lessor and he enfeoff another Here if one of the Lessées re-enter this is a good attornment and shall bind both in respect of the privity betwéen the Ioyntenants For an attornment in Law is as strong as an attornment in Deed. Co. l. 2. 67. a. Tookers case Grant of a Seigniory by â—ne shall have â—n Assise beâ—ore attornment 69 If there be Lord and Tenant Littl. §. 579. Co. ib. 320. a. 2. Littl. §. 580 581 582. v. Dyer R. 5. 6. and the Lord grants the Services by Fine hereby the Services are immediately in the Grantée by force of the Fine Howbeit he cannot distraine for any part of the Services without attornment because an Avowry is in lieu of an action which he cannot have without privity nor privity without attornment neither yet before attornment can he have an action of wast a writ of entry ad communionem legem or in consimili casu or in casu proviso a Writ of Customes and Services a Writ of Ward c. But if a man make a Lease for years and grant the reversion by Fine if the Lessee be ousted and the Conusee disseised the Conusee without attornment shall maintaine an Assise for that Writ is maintained against a stranger where there needeth no privity And of such things as the Lord may seise or enter into without suing any action the Conusee before any Attornment may take benefit as to seise a ward or heriot or to enter into the lands or tenements of a ward or escheated to him or to enter for an Alienation of Tenant for life or years or of Tenant by Statute Merchant Staple or Elegit to his Disherison Discontinuâ—nce barres entry 70 One of the chiefe reasons why a Feofment in fee gift in tail Co. ib. 327. a. 1. or Lease for the life of the Lessée made by the Tenant in taile doth make a discontinuance to take away the entry of him in reversion or remainder in case the Tenant in tail die without issue is because the Tenant in tail and he in the reversion or remainder are privies in estate c. Where it is no â—ane 71 If Tenant in tail make a Lease for the life of the Lessée Co. ibid. 333. b. 4. Littl. Sect. 620. and afterwards grant the reversion to another and the Tenant for life attorns and dies and the Grantée of the reversion enters in the life of the Tenant in tall and after the Tenant in tail dies In this case the issue cannot enter but is put to his Formedon in respect of the privity between the Tenant in tail and his issue the Grantee of the reversion having seisin and execution of the entailed lands in the life and from the grant of the Tenant in tail himselfe Howbeit if Tenant in taile make a Lease for life and grant the reversion in fee and the Lessee attorn as before and that Grantee granteth it over to another and the Lessee attorneth again to the last Grantee and then the Lessee for life dieth so as the reversion is executed in the life of Tenant in tail yet this is no discontinuance but that after the death of the Tenant in tail the issue may enter because the last Grantee was not in of the grant of the Tenant in tail himselfe but of the first Grantee between whom and the issue in tail there is no privity c. â—iscontinuâ—ce 72 If at this day Tenant in tail make a Lease for life Co. ib. 333. b. 4. and after by Deed indented and inrolled according to the Statute he bargaineth and selleth the reversion to another in fee and the Lessee dieth so as the reversion is executed in the life of Tenant in tail Albeit the Bargainee is not in the per by the Tenant in tail but rather in by force of the Statute yet in as much as he claimeth the reversion immediately from him which is executed in his life time this is a discontinuance And so it is and for the same cause if Tenant in tail had granted the reversion to the use of another and his heirs c. in respect of the privity between the Tenant in tail and his issue c. Co. ib. 351. a. 4. 73 If a woman grant a term to her own use A trust goeth to Executoâ—â— and not to the Baron taketh Husband and dieth the Husband surviving shall not have this trust but the Executors or Administrators of the Wife for it consisteth in privity P. 32 Eliz. in Canc. in Withams case c. Co. Inst pars 1 352. a. 4. 74 In every Estoppel privity is required Estoppels for it ought to be reciprocal viz. ought to binde both parties and therefore regularly a stranger shall neither take advantage nor be bound by an Estoppel But privies in bloud as the heir Privies in estate as the Feoffee Lessee c. Privies in Law as the Lord by escheat Tenant by the Courtesie Tenant in Dower the Incumbent of a Benefice and others that come under by act in Law or in the Post shall be bound and take advantage of estoppels c. Littl. §. 674 675. Co. ib. 356. a. 3. 75 If a man let a house to a woman for life For an actâ—â—â— of wast priâ—â— is requisite saving the reversion to the Lessor and after one sues a feigned action against the woman and recovers the
Inst pars 1 83. b. 3. All Earldoms and Baronies were derived from the Crown and were holden of the King in Capite and the King would not then suffer them to be divided or severed And such intire Earldoms and Baronies are within that Statute to pay relief according to the limitation thereof Howbeit at this day Earls and Barons are without such Earldoms and Baronies of the Kings gift in chief For at the creation of an Earl he hath sometimes an Annuity granted unto him and sometimes nothing at all but rather giveth somewhat for his Honour So as such Earls and Barons so created are cléerely out of the Statute of Magna Carta and are to pay such reliefs as other men that hold of the King in Capite For as the heir of a Knight shall not pay 100 s. relief unlesse he hath a Knights fée c. so neither the Earl nor Baron shall pay any relief by that Statute unlesse he hath an Earldom or Barony intended by the same Statute c. â—xecutors to â—ll lands 14 By the Statute of 21 H. 8. cap. 4. it is provided Co. ib. 113. a. 3. that where lands are willed to be sold by Executors though part of them refuse yet the residue may sell And here albeit the letter of the Law extendeth onely where Executors have a power to sell yet being a beneficial law it is by construction extended also where lands are devised to Executors to be sold Co. ib. 143. a. 4 Littl. Sect. 216. 15 The Law so regardeth equity and equality Tenure of land that it will in divers cases work according to them without any provision or reservation of the party And therefore if before the Statute of Quia emptores terrarum a man had made a feoffment in fée rendring rent to him and his heirs this was Rent-service for which he might distrain of common right And if he had made no reservation at all of any rent or service Yet the Feoffée should then have holden of the Feoffor by such service as the Feoffor held over of his Lord next paramount For the Law in this case did create a tenure Littl. Sect. 222. Co. ib. 148. b. 3. 16 If a man seised of divers lands of some in Fée-simple Rent-servâ—â— apportionable and of the rest in tail make a gift in tail or a lease for life or years of all reserving a rent and die Here if the issue in tail avoyd the gift or lease as to the entailed lands the rent shall be apportioned for seeing the rent is reserved out of and for the whole land it is reason that when part thereof is evicted by an elder title that the Donée or Lessée should not be charged with the whole rent but that it should be apportioned ratably according to the value of the land Co. ib. 154. a. 1. 17 By the Statute of 7 R. 2. cap. 10. it is enacted Equity upâ—â— 7 R. 2. â—â— that an Assise of rents issuing forth of lands in divers Counties shall be taken in Confinio comitatus which séems to be meant onely of Counties that border one upon another Neverthelesse albeit the Counties do not joyn but have twenty Counties lying between them yet the assise in Confinio comitatus doth lye and the Iustices shall sit between the said Counties And where the Statute seems to speak of two Counties onely the like Law is when the rent issueth out of lands lying in more Counties than two Co. ibid. a. 3. 18 The Statute of Merton cap. 2. made 20 H. 3. Equity upâ—â— Merton 20 H. 3. which gives the writ of Redisseisin is as followeth Item si quis fuerit disseisitus de libero tenemento coram justiciariis Itinerantibus seisinam suam recuperaverit per Assinam novae disseisinae vel per recognitionem eorum qui fecerint disseisinam ipse disseisitus per Vicecomitem seisinam suam habuerit fi iidem disseisitores posteà post iter justiciariorum vel infrà de eodem tenemento iterum eundem conquerentem disseisiverint inde convicti fuerint statim capiantur c. Here albeit this Statute seems to intend onely lands and tenements Littl. Sect. 233. yet Littleton § 233. Rent-sec◠〈◊〉 charge expounds it to extend also to a Rent-charge or a Rent-seck For although they are against common right yet a man may have a Free-hold in them And therefore if a man grant omnia tenementa sua a Rent-charge or a Rent-seck will also passe thereby Also by the same Statute the Assise seems to be limited to be taken onely coram justiciariis Itinerantibus Howbeit Littleton there speaketh generally and so is the Statute to be intended viz. before any other Iustices that have authority to take Assises and Justices Itinerant are onely set down there for an example And albeit that Statute saith Recuperavit per Assisam c. by the verdict of the Assise as Littleton in the same Chapter expoundeth it or per recognitionem c. by confession yet if the recovery be upon a demurrer or by pleading of a record and failer of it or by any other manner such recoveries are also within the equity of the same Statute And therefore Littleton in the abovesaid Section speaketh generally Et recovera le seisin del rent intimating that it ought to be understood of all manner of recoveries in an Assise of Novel disseisin Westm 2. â— by equity though peâ— And in that manner is the abovesaid Statute confirmed by Westm 2. cap. 26. And here it is worthy observation that this Statute is expounded by equity notwithstanding it is a penal Law for by the said Statute of Westminst 2. double damages is given upon the recovery Co. ib. 174. a. 3. Co. l. 4. 121. b. 4 Bastards case 19 There is a diversity between a recovery in value by force of a warranty upon an exchange and upon a partition Exchange Partition Recovery for upon an exchange he that loseth shall recover a full recompence for all that he so loseth But upon a partition the patcener that loseth shall onely recover the moity or half of that which is lost to the end that the losse may be equal 48. Equity of 32 H. 8. 32. 20 The Tenant by the Courtesie shall have a writ of Partition upon the Statute of 32 H. 8. cap. 32. Co. ib. 175. a. 4. as well as Ioyntenant or Tenant in common for life or years For albeit he is neither Ioyntenant nor Tenant in common because a praecipe lyeth against the Parcener or Tenant by the Courtesie yet forasmuch as he is in equal mischief as another Tenant for life he shall be intended within the equity of that Statute Division of lands Hotchpot 21 If a man seised of lands in fee hath issue two daughters Littl. Sect. 267. and gives part of them to one of his daughters in Frankmarriage and dies In this case albeit
Fée-simple by purchase because his heirs may inherit him And albeit it be true that the Statute extendeth to an estate in Frankmarriage acquired by purchase yet doth it extend also to all estates in tail as well by descent as by purchase Frankmarriage being put there but onely for an example Littl. §. 738. Co. ib. 387. a. 4. 28 If Tenant in Fée-simple that hath a warranty for life Warranty life either by an expresse warranty or by Dedi be impleaded and vouch he shall recover a Fée-simple in value albeit his warranty were but for term of life because in that case the warranty was annexed and did extend to the whole estate of the Feoffée in Fée-simple But if Tenant in taile let the Tenements for life the remainder to another in fée and a collateral Ancestor confirm the estate of the Tenant for life for the terme of his life onely with warranty and die and the Tenant in tail hath issue and die Here the issue is barred during the life of the Tenant for life by the Collateral warranty And in that case if the Tenant for life be impleaded and vouch he shall onely recover in value but an estate for life because the warranty was annexed and doth extend to that estate onely c. â—wo estates â—ade together â—f the same â—nd 29 If a man make a Charter of feofment of an acre of land to A. and his heirs Co. ib. 21. a. 2. and also another Déed of the same acre to A. and the heirs of his bodie and deliver Seisin according to the form and effect of both Déeds In this case he cannot take a Fée simple onely as some hold because Livery was made according to the Déed in tail as well as to the Charter in fée neither can the livery enure onely to the Déed of estate tail with a Fée simple expectant because livery was made as well upon the Déed in Fée simple as the Déed in tail And therefore others hold that in this case it shall enure by moities viz. to have an estate tail in the one moity with the Fée simple expectant and a Fée simple in the other moity And so the livery shall work immediately upon both Déeds And this last séemes to be the opinion of Coke himselfe being put last according to his own rule which he often delivers in this part of his Institutes â—ower of â—ings intire 30 Albeit of many Inheritances that be intire whereof Co. Inst pars 1. 32. a. 1. no division can be made by metes and bounds a woman cannot be endowed of the thing it selfe yet a woman shall be endowed thereof in a special and certaine manner As of a Mill a woman shall not be endowed by metes and bounds nor yet in common with the heir but either she may be endowed of the third toll-dish or de integro molendino per quemlibet tertium mensem And so of a Villain either the third dayes work or every third wéek or moneth A woman shall also be endowed of the third part of the profit of Stallage of the third part of the profits of a Faire of the third part of the profits of the Office of the Marshalsie of the kéeping of a Park of a Dove-house of a Piscary viz. tertiam piscem vel jactum retis tertium Of the third presentation of an Advowson A Writ of Dower also lieth de tertia parte exituum provenientium de custodia Gaolae Abathiae Westm And herewith agréeth reverend antiquity De nullo quod est sua natura indivisibile secationem sive divisionem non patitur nullam partem habebit sed satisfaciat ei ad valentiam Of the third part of the profits of Courts Fines Heriots c. Also a woman shall be endowed of tithes and then her surest way is to take the third sheaf for what land shall be sown is uncertaine â—ower recoveâ—d by parts 31 Regularly the Feme ought to be endowed of an intire third part in severally by metes and bounds Co. ib. 32. b. 1. Littl. §. 36. And yet if a man solely seised of lands in Fee take a wife and enfeoffe eight persons and dies a Writ of Dower is brought against those eight persons and two confesse the action and the other six plead in barre and descend to issue here the Demandant shall have judgement to recover the third part of two parts of the lands in eight parts to be divided and after the issue is found for the Demandant against the other six the Demandant shall have also judgement to recover against them the third part of six parts of the same land in eight parts to be divided â—nsent of â—iage equal 32 If a man of the age of 14 years marry a woman of the age of ten Co. ib. 79. b. 1. at her age of twelve he may as well disagrée as she may albeit he were of the age of consent because in the contracts of matrimonie either both must be bound or equal election of disagréement given to both and so è conversò when the woman is of the age of consent and the man under â—elivery of â—ods by a â—nkrupt 〈◊〉 good El. 7. 33 Delivery of goods by the Bankrupt to a Creditor after the Commission sealed according to the Statute of 13 Eliz. cap. 7. Co. l. 2. 25. b. 1. The case of Bankrupts shall not be of force to avoid proportionable distribution of the same goods together with all the rest unto the other Creditors which are willing to submit to the order of the Commissioners in that behalfe for the Statute saith that the distribution shall be To every one of the Creditors c. rate and rate like according to the quantity of his or their debt So that one shall not prevent the rest but all may be in equali jure according to that of Cato Ipsae etenim leges cupiunt ut jure regantur Co. ibid. 35 H. 8. tit Testaments Br. 119. 34 A man holds thrée Mannors of thrée several Lords by Knight Service each Mannor of equal value here Devise of 3 Mannors â—â—den by Knigâ— Service he cannot devise two of the Mannors and leave the third to descend according to the generalty of the words of the Statutes of the 32 and 34 H. 8. of Wills For then he should prejudice the other two Lords but by a favourable and equal construction of the said Statutes he hath power to devise onely two parts of each Mannor So that equality amongst them shall be observed 4 E. 3. tit Ass 178 Co. ibid. 35 The Lord of a Mannor shall not approve it all Approvemeâ— albeit he leave sufficient Common in the lands of other Lords according to the Statute of Merton cap. 4. Co. ib. 48. E. 3 5. 36 In Dower Voucher in Dower if the heir be vouched in three several Wards within the same County execution shall be had against one onely but
all shall be equally charged 29 E. 3. 39. there is the like case Co. l. 3. 13. a. 3. Sir Wiliam Herberts case Co. l. 3. 13. a. 4. in Sir William Herberts case But it is Sir John Lanfords case 29 E. 3. 50 37 Four men were bound in a Recognisance of debt to A. and after one of the Conusors dies leaving his heir within age A Recognisance by 〈◊〉 and one diâ— the Conusee brings a Scire facias against the thrée Survivours to have execution who plead that the heir of the Conusor who was dead was within age and in as much as during his minority he could not be charged and the Survivours ought not to be charged onely they demand Iudgement c. And because A. could not gainesay it the Court awarded that the Paroll should stay and this Iudgement was afterwards confirmed in the Kings Bench by a writ of Error Co. ibid. b. 3. 38 If Iudgement be given against two Disseisors in an Assise for the land and damages and one of the Disseisors die Judgement â—gainst two Disseisors 〈◊〉 one dies the execution shall not be awarded against the surviving Disseisor that was party to the wrong but the heir as well as the Disseisor shall be equally charged 19 E. 3. tit execution 81. Co. ibid. b. 4. 39 Albeit at the Common Law no land was subject to an execution for the debt of a Common person Land not chargeable with debt but onely by force of certaine Statutes made for that purpose yet the Iudges and Sages of the Law have alwayes expounded general Statutes of that nature according to the Rule of the Common Law which is alwayes grounded upon the perfection of reason and not according to any private and sudden conceit and opinion And therefore in as much as the said Statutes have subjected a mans land to an execution for his debt the Iudges and Sages of the Law have considered the rule and reason of the Common Law in case of the heir of an Obligor in which case the land was subject to an execution for debt by the Common Law and accordingly do adjudge and resolve the cases which arise upon the said Statutes Co. ib. 1â— a. 1. 40 If two men alien land with warranty Land equâ— charged the land of the one shall not be onely rendred in value neither yet if one of them die the land of the Survivour shall be onely rendred in value but the charge shall be laid equally upon them For a Ioynt bond that binds the land shall not survive or lie onely upon the Survivour as in case of a joynt warranty where two for them and their heirs warrant the land to another and his heirs the Survivour shall not be solely vouched neither yet may the Sheriffe deliver the land to the one or the other at his pleasure for in executions which concerne the realty and charge the land the Sheriffe cannot make execution of the land to one onely So also if two are bound to warranty and both die both the heire ought to be vouched and both of them ought to be equally charged â—equality of third part â—cending â—ands in â—ite requiâ— in a devise 34 H. 8. 41 Willam Barnerds and his wife being seised of the Mannor of Hinton in tail being the wives joynture and holden in Capite Co. l. 3. 32. a. 4. Butler and Bakers case And W. B. being also seised of lands in Fobing both which amounted to the full third part of all his lands And W. B. being likewise seised of the Mannor of Thoby holden also in Capite which amounted to two third parts c. W. B. devised to his wife the Mannor of Th. upon condition that she should waive her former joynture c. W. B. dies the wife in pais refuseth her former joynture In this case W. B. could not by the Statutes of Wills 32 34 H. 8. devise the whole Mannor of Thoby because the Mannor of H. and the lands in F. were not a third part of the cleer yearly value of all his lands as they ought to be according to the provision of the said Statutes for that the cléer title and present possession of the Mannor of H. was but in possibility and depended méerly upon the will and pleasure of the wife and she could not by a bare refusal in pais devest her title to the joynture But in that case W. B. had onely power by those Statutes to devise two third parts of the Mannor of H. and also two third parts of the rest of his lands to the end that the King might have an equal and proportionable third part apparelled with like accidents and circumstances that the other two thirds parts were according to the true intent and meaning of the same Statutes â—fine for â—ars within â—e Statute of 1 H. 7. 20. 42 If a Feme Tenant in taile accept a fine Sur conisance de droit come ceo c. and thereby doth grant and render the land for 1000 years Co. l. 3. 51. b. 2. in Sir George Browns case pretending that this is not within the words of the Statute of 11 H. 7. cap. 20. which prohibits discontinuance alienation release c. Yet that is alienation within the intention of the same act because within the same mischiefe c. â—ses within â—e Stat. of H. 8. 10. â—ough not â—thin the letâ— of that â—at 43 If a man make a feofment to the use of himselfe for his life Co. l. 4. 2. a. 2. Vernons case and after to the use of his wife for her life for the joynture of the wife this estate in remainder is within the intent of the Statute of 27 H. 8. cap. 10. For albeit that Statute doth onely expresse these five forms viz. 1 To the Baron and Feme and to the heirs of the Baron 2 To the Baron and Feme and to the heirs of their two bodies 3 To the Baron and Feme and to the heirs of the bodie of one of them 4 To the Baron and Feme for their lives 5 To the Baron and Feme for the life of the Feme yet many other estates not there particularly exprest are within that act for the said particular forms are but put there for examples and not to exclude any other estate which is to the like effect and accords with the intent of the makers of the same Act So likewise an estate in Fée simple conveyed to the Feme for her joynture Co. ibid. 3. b. 1. per Dyer in Villiers and Beuamonts case 4 5. P. M. 146. and in satisfaction of her Dower is a joynture within the equity of the said Act for that is a competent livelyhood to the Feme of an estate of Frank-tenement to take effect presently after the death of the Baron for all the life of the Feme and more And so it is resolved in Sir Morrice Dennis case 8.
number neverthelesse any one right is within that Statute c. Pl. Co. 83. 86. Partridges case Vide 40. â—anslaughter 13 By a pardon of murther Man-slaugther is also pardoned Finch 21. Finch ibid. â—taint 14 An attaint supposing a Verdict to have passed before two Iustices whereas it passed before four is good enough â—covery 15 A recovery pleaded of thrée acres where it was of six Finch ibid. is good enough â—ndition 16 A condition that I shall not enfeoff I. S. is broken Finch ibid. if I enfeoff I. S. and I. D. â—pihold 17 A Copy-holder of a Mannor Finch ibid. where the custome giveth liberty to demise in fée may demise for any lesse estate without other prescription Vide 3. â—â—ise 18 Where the custome is 18 E. 3. 8. that a man shall not devise his lands for any higher estate than for terme of life Yet if a devise be made in fée and the Devisée claim but for life the devise is good Finch 21. â—iso 19 By the Statute of 32 H. 8. cap. 1. 2 3 P. M. Dyer 150. b. that giveth power to devise two parts of ones land a devise of the whole had béen good for two parts although the Stat. of Explanations 34 35 H. 8. cap. 5. had not béen made Finch 21. â—mes â—ure 20 An estate of Fée-simple conveyed to the Feme for her joynture Co. l. 4. 3. b. Vernons case and in satisfaction of her Dower is a joynture within the equity of 27 H. 8. For if an estate for life be a competent livelihood for her much more an estate in Fée-simple c. Sir Morrice Denurs case Dyer 8 El. 248. â—hold wiâ— estate 21 Where the custome of a Copihold Mannor is to grant Copihold lands for one two or thrée lives Co. l. 4. 29. b. 4. there a grant to a Feme Durante viduitate is good for that is a lesse estate and therefore included in the other c. Downes case â—nt inâ— conâ— 22 This word Attaint of murther in the Statute of 3 H. 7. cap. 1. Co. l. 4. 46. a. 4. in Kath. Wroteâ— case shall not be meant onely of a person that hath judgement of life but also extended to a person convicted by confession or verdict for a person attaint is a person convict and more 36. Co. l. 4 106. a. 4. in Adams Lamberts case 23 Albeit by the expresse words of 1 E. 6. cap. 14. Superstitious uses Estates in Fée-simple given to superstitious uses séem onely to be given to the King for the words are To the finding of a Priest to have continuance for ever c. yet that Stat. by construction extends also to every lesse estate as to an estate in taile for life c. Co. l. 5. pars 1. 6. b. 4. The Kings Ecclesiastical law 24 If by the proviso of 1 Eliz. cap. 2. The high Commission may censure depravers of the Common Prayer the Ecclesiastical jurisdiction of Arch-Bishops Bishops and other inferiour Officers is saved so that they may still punish by deprivation and other Ecclesiastical censures all such as shall deprave the book of Common Prayer notwithstanding by the same Act there is other provision made for the punishment of such offenders before temporal Magistrates Much more shall high Commissioners authorised by another Statute of the same year cap. 1. have power to inflict due punishment for the like offence albeit in the said Act of 1 Eliz. cap. 2. there be no such provision made for them as for Bishops c. Because Cui licet quod majus est non debet quod minus est non licere Co. l. 5. 6. b. 1. The Lord Mountjoys case 25 The words of the Statute of 1 Eliz. concerning leases to be made by Bishops c. are these other then for the terme of 21 yeares Leases by tâ—â— Clergy or three lives without saying or under and yet a lease for a lesse term is good There is also the same exposition of the Stat. of the 13 Eliz. cap. 10. whereof the words as to that point are the same 1. Co. l. 5. 29. b. 4. in Princes case 26 In Princes case in the 5 Rep. it was said Administration of boâ—â— Notabilis that it was adjudged in a case between Vere and Jeffres in tempore Reg. Eliz. That where one had goods onely in an inferiour Diocesse yet the Metropolitan of the same Province pretending that he had bona Notabilia in divers Diocesses committed the administration c. This administration was not void but onely voidable by sentence because the Metropolitan hath jurisdiction over all the Diocesses within his Province But if an Ordinary of a Diocesse commit the administration of the goods when the party hath bona Notabilia in divers Diocesses such administration is méerly void as well to the goods within his own Diocesse as elsewhere because he can by no means have jurisdiction of the cause Co. l. 5. 91. a. 1. in Hoes case 27 A man assignes a debt unto Quéen Eliz. by déed enrolled in satisfaction of a debt due to her from him as Collector of the Fifteens Three include 〈◊〉 with proviso that if the Lord Treasurer and the Barons of the Exchequer or any two of them for some reasonable cause should disallow revoke the same that then it should be void In this case revocation by three of the Barons shall be sufficient for if three doth it two doth it at least c. Co. l 5. 115. a. 1. in Wades case 28 If a man tender more money then he ought to pay Tender 〈◊〉 greater fâ—â—â— that is good enough for Omne majus continet in se minus and the other ought to receive so much thereof as is due unto him Quando plus fit quam fieri dâ—bet videtur etiam illud fieri quod faciendum est Et in majore summa continetur minor 29 In the general pardon of the 28 of Eliz. Burglary was excepted Attainder 〈◊〉 Burglary â—doned and thereupon the Iudges were then moved Co. l. 6. 13. a. 4. in the cases of pardon H. 29 Eliz. whether the attainder of Burglary was thereby also excepted And it was resolved that it was For if Burglary it selfe was excepted while it was yet doubtful whether it would be found Burglary or no and before it did appeare to the eye of the Law to be so à fortiori when Burglary appears upon record by judgement of Law it shall be excepted Co. l. 6. 56. a. 1. in the Lord Chandos case 30 By the grant of the Mannor without this word of the reversion By the 〈◊〉 Mannor 〈◊〉 version pâ—seth the reversion shall passe albeit at that time the Grantor had not the Mannor in possession but in revension for this word Mannor includes all estates and degrees of estates of or
Feme shall be admeasured Howbeit hée may well assigne her lesse Omne majus c. Pl. Co. 83. a. 2. Partridges case Co. Inst pars 1. 369. a. 4. 41 Where the Statute of 32 H. 8. cap. 9. Pretenced title c. prohibiteth the buying or selling of any pretenced rights or titles in the plural number yet the buying or selling of any one right or title is also prohibited by the same Statute for the singular is included in the plural Pl. Co. 86. b. 3. per Hales Partridges case Vide suprà 12. Pl. Co. 86. a. 4. in Partridges case per Hales 42 The Statute of the 1 H. 5. cap. 3. recites Entry into land that some people do of late use to forge divers false deeds and muniments c. And therefore it ordaines that the party so grieved may have his suit in that case c. Here that Statute speaks of false déeds c. in the plural number yet if a man forge one false déed onely he shall incurre the penalty of that Statute So likewise the Statute of 5 R. 2. cap. 7. forbids that none shall make entry into any lands or tenements except in case where entry is given by the Law Yet if one enter onely into one tenement he shall be punished notwithstanding that Statute is in the plural number for the plural number contains in it the singular number and more c. Pl. Co. 87. a. 3. Partridges case 43 Where the Statute of 32 H. 8. cap. 9. prohibits the buying Pretenced 〈◊〉 to a lease c. of any pretenced rights c. a lease for years is prohibited as well as an estate in fée in taile or for life for under the word any the lesse estate shall be conteined in the greater So also the Statute of 23 H. 6. Sheriffs cap. 10. prohibits that no Sheriff shall let to farme in any manner his County c. whereby he is restrained to let to farme any part of his County because the lesse is contained in the greater c. Co. l. 5 pars 1. 34. b. 4. in the K. Ecclesiastical law 44 It was adjudged in the Court of Common Pleas by Dyer Weston Ecclesiastical persons may resign to the King and the whole Court that a Deane or any other Ecclesiastical person may resigne to the King as divers did to King E. 6. because the King hath the authority of the supream Ordinary For Cui licet quod majus est non debet quod minus est non licere Co. Inst pars 1 129. a. 2 45 If the King by his prerogative may make one An alien maâ—denizen that is an alien born an absolute Denizen viz. Quòd ille in omnibus tractetur reputetur habeatur teneatur gubernetur tanquam ligens noster infra dictum regnum nostrum Angliae orâ—undus c. à fortiori he may grant to such an Alien a particular denization viz. Quòd in quibusdam curiis suis Angliae audiatur ut Anglus quod non repellatur per illam exceptionem quòd sit Alienigena natus in partibus transmarinis c. to enable him to sue onely or may grant him a denization sub conditione c. Devise for Executors â—hall sell 46 If a man deviseth his land to A. for life Co. ib. 112. b. 3. and that after his decease it shall be sold by his Executors generally and make thrée or four Executors and during the life of A. one of the Executors dieth and then A. dieth the other two or thrée Executors may sell for the greater number includes the lesse and the plural number of Executors still remains whereby the words of the Will are also satisfied It is otherwise if before the Statute of 21 H. 8. 4. he had made but two Executors and one had died or if he had made I. S. I. N. and I. D. his Executors by name and one of them had died for then the words of the Will had not béen satisfied which in such case giving but a bare power must be thereby observed so also if he had devised it to be sold by his sons in law being thrée and one dies the other two might have sold it but not if there had béen onely two and one die or refuse before sale Vide Rule 110. 21. Isabel Goodcheaps case 49 E. 3. Arbitrament 47 The submission to an award betwixt A. and B. was general Co. l. 8 98. a. 2. Baspoles case viz. of all actions c. and the award was that A. should pay B. 20 pound And in this case it was objected that it did not appeare that the matter of the arbitrament was the matter onely that was betwixt them because the submission was general of all actions demands c. And therefore if the arbitrament were not made of all the matters in controversie the Award was void But the Award was adjudged good because when the submission is general of all actions c. Generale nihil certi implicat and therefore it stands well with the generality of the words that there was but one cause depending in controversie betwixt them And Omne majus continet in se minus But it is otherwise where the submission is of certain things in special c. Waste 48 The Lessée covenants to cut no trées Dyer 115. b. â—7 1 2 P. M. and gives bond to perform covenants the Lessée cuts ten trées and the Lessor sues him upon the bond and assignes for breach the cutting of twenty trées he pleads that he did not cut twenty trées upon which they are at issue and the Iury found that he cut onely ten yet judgement was given for the Plaintiffe for the other tenne trées were but surplusage and omne majus c. Lease by a â—rebend 49 A Prebend of Sarum makes a lease for seventy years the Bishop Dyer 338. 43. 17 Eliz. Deane and Chapter confirm the Bishop being Patron and Ordinary for 50 years and no more In this case the demise and all conteined in the Indenture was adjudged good for 50 years 60 Additio probat minoritatem â—e is Fee-â—â—mple 1 When you finde it said in any Book Co. Inst pars 1. 189. a. 3. that a man is seised in fée without saying more it shall be understood in Fée-simple and not in Fée-taile unlesse there be but unto it such an Addition Fee-taile c. And therefore in Heraldry the younger sonnes give the differences And in France by Monsieur without any addition or other title is to be understood the Kings onely brother and by Madame without more the Kings onely sister and therefore they are said in French to be Monsieur sans queüe and Madame sans queüe viz. without any other addition or title But if there be in France any occasion of naming any other Lord or Lady they are always named with their proper and peculiar title as Monsieur de
every one hath a part of the Mannor without saying any thing of the Advowson appendant the Advowson remains in coparcenary and yet in every of their turns it is appendant to that part which they have and so it is also if they make composition to present against common right yet it remains appendant Co. ib. 131. b. 2. 4 The King by his Prerogative regularly is to be preferred in payment of his duty or debt by his debtor before any subject The Kings debt first pâ—â— except in sâ—â— where a fine 〈◊〉 due to the 〈◊〉 and damages to the party although the Kings debt or duty be the latter and the reason hereof is for that Thesaurus Regis est fundamentum belli firmamentum pacis And thereupon the Law gave the King remedy by the writ of Protection Cum clausula volumus to protect his Debtor that he shall not be sued or attached until he had paid the Kings debt but hereof grew some inconvenience because many times to delay other men of their suits the Kings debts were the more slowly paid For remedy whereof it was enacted by the Stat. of 25 E. 3. cap. 19. That the other Creditors might have their actions against the Kings Debtor and also procéed to judgement but not to execution unlesse that Creditor will take upon him to pay the Kings debt and then he shall have execution for both the debts Howbeit in some cases the Subject shall be satisfied before the King for regularly whensoever the King is entitled to any fine or duty by the suit of the party the party shall be first satisfied as in a Decies tantum against a Iuror or an Embraceor for there the ten-fold damages shall be first satisfied and then the Kings fine because this is as accessary to that So likewise if in an action of Debt the Defendant deny his déed and it is found against him in that case he shall pay a fine to the King but the Plaintiff shall be first satisfied And so it is in all other like cases The like course was also taken in Bils preferred by Subjects in the Starre Chamber For if costs and damages were there recovered by the party they were answered before the Kings fine c. Vide 189. 41. Co. ib. 138. a 4. 5 If Tenant in tail of a Mannor whereunto a Villein is regardant A Mannor drawes the Villein enfeoff the Villein of the Mannor and dieth the issue shall have a Formedon against the Villein and after the recovery of the Mannor he shall seise the Villein Howbeit before the recovery of the Mannor he cannot seise the Villein for that the Mannor was principal c. Littl. § 229 Co. ib. 152. a. 3. 6 If the Donor or Lessor of land grant his reversion to another Rent and â—vice incidenâ— to the reversion c. and the Tenant attorns the rent and service passe by this word reversion because they are incident unto it but by the grant of the rent the reversion shall not passe because the Incident shall passe by the grant of the Principal but not the Principal by the grant of the Incident Accessarium non dâ—cit sed sequitur suum principale Scire facias â—llows the â—cord 7 Where the Statute of 32 H. 8. cap. 5. Co. ib. 290. a. 2. concerning executions of lands c. in case the said lands be evicted giveth a Scire facias out of the same Court from whence the former execution did procéed c. to have execution of other lands c. If the record be removed by writ of Errour into another Court and there affirmed the Tenant by execution that is evicted shall have a Scire facias by the equity of that Statute out of the Court into which the writ of Errour was brought because the Scire facias must be grounded upon the record and Accessarium sequitur principale c. â—illein and â—dvowson apâ—endant to a Mannor 8 Albeit a man cannot at all be put out of possession of his Villein in grosse nor directly of his Villein regardant yet may he per obliquum Co. ib. 306. b. 4. c. and by a mean be put out of possession of his villein regardant to a Mannor For by putting him out of possession of the Mannor which is the Principal he may likewise be put out of possession of the Villein regardant which is but accessory And so it is also of an Advowson appendant to a Mannor And therefore by the grant of a Mannor without saying cum pertinentiis the Villein regardant Advowson appendant and the like do passe For if the Disseisor shall gain them as Incidents to the Mannor whose estate is tortious A multo fortiori the Feoffée who cometh to his estate by lawful conveyance shall have them as Incidents And where the entry of the Disseisée is lawful he may seise the Villein regardant or present to the Advowson c. before he enter into the Mannor But it is otherwise where his entry is not lawful And so are our ancient Authors to be intended and a point much controverted in our books to be resolved Vide Dyer 5 6. 9 If the reversion of Lessée for life be granted Co. ib. 316. a. 3. Littl. § 568. and Lessée for life assigns over his estate Attornment â—ollows the â—and the Lessée cannot attorn but the Assignée for the attornment follows the land So likewise if Lessée for life assigneth over his estate upon condition the Assignée shall attorn because he is Tenant of the land c. The demesns c. follows the Mannor 10 Attornment of the Tenant of a Mannor to a Disseisor of the Demesnes shall dispossesse the Lord of the rents and services Co. Inst pars 1. 323. a. 1. parcel of the Mannor because both Demesns rents and services make but one intire Mannor and the Demesnes are the principal c. A charge follows the land 11 If there be 80 acres of Meadow Co. ib. 343. b. 3. which use to be divided yearly amongst divers persons by lot or otherwise viz. thirtéen acres thereof to A. 10 acres to B c. So as sometime the 13 acres lie in one place and sometime in another and so of the rest In this case if A. being seised of these 13 acres in fée grant a Rent-charge out of those 13 acres generally lying in the Meadow of 80 without mentioning where they lye particularly There as the estate of the land removes the charge shall remove also Advowson â—ollows the Mannor 12 Tenant in tail of a Mannor whereunto an Advowson is appendant maketh a discontinuance Co. ib. 349. b. 2. 5 H. 7. 35. Co. l. 3. 3. a. 4. in the Marq. of Winchesters case the Discontinuée granteth the Advowson to Tenant in tail and his heirs Tenant in tail dieth the issue is not remitted to the Advowson because the issue had no action to recover the Advowson before
be performed because in those cases the Covenantor departed with the whole estate unto which the Condition was annexed c. â—he estate â—ile not barâ—d the reverâ—oÌ„ or remainâ—r not barred â—lso 26 Whereas by the Statute of 34 H. 8. cap. 20. It is provided Co. l. 8. 77. b. 4. in the Lord Staffords case that no common recovery had against Tenant in taile who is party to the recovery shall barre his issues when the King hath the reversion c. by this Inclusivè the act preserves the reversions and remainders in tail of the Kings grant for they cannot be barred but when the estate tail upon which they depend is barred And this is the reason that when Tenant in taile is in of another estate and suffers a common recovery as Tenant this shall not bar any reversion or remainder because it barreth not the estate of the Tenant in taile being party to the recovery and upon whose estate such reversion or remainder depends For quod non valet in principali in accessoria seu consequenti non valebit quod non valet in magis propinquo non valebit in magis remoto Ordinary subâ—ect to an aâ—tion 27 If before the Statute of Westm 2. cap. 19. Co. l. 9. 39. b. 2. Hensloes case an action lay at the Common Law against the Deputies or Committées of the Ordinary by the name of Executors as appears by 38 E. 3. 26. 42 E. 3. 2. A multo fortiori an action shall lie by the Common Law against the Ordinary himself who is the Principal and from whom the Administrators do now derive their power â—rincipal and Accessary 28 Albeit the Principal be attainted erroneously Co. l. 9. 119. a. 4. in the Lord Sanchiers case either for errour in processe or because the Principal being out of the realm c. was out-lawed or because he was in prison at the time of the Out-lawry c. yet shall the accessary be attainted for the attainder of the Principal stands good until it be reversed and with this agrées the resolution of all the Iustices in the Kings Bench 2 R. 3. 12. And in the 18 E. 4. 9. the Principal was erroneously out-lawed for felony and the Accessory was taken indicted arraigned convicted attainted and hanged and afterwards the Principal reversed the Out-lawry and was indicted and arraigned and found not guilty and thereupon was acquit And in this case forasmuch as there can be no accessary but where there is a principal and here there was no principal the heire of the accessary shall be restored to the lands which his Father had forfeited by that unjust attainder either by entry or action at his election For now upon the matter by act in Law the attainder against his Father is without any writ of Error utterly annulled because by reversing the attainder against the Principal the attainder against the Accessary which depended upon the attainder of the principal is ipso facto utterly defeated and annulled And this doth notably appeare in an ancient book de tempore E. 1. tit Mortdancester 46. where the case was this A. was indicted of felony and B. of of the receipt of A. A. eloigns himselfe and is out-lawed B. was taken and put himselfe upon inquest and was found guilty and was thereupon attainted and hanged and the Lord entred as in his escheat After which time A. came in and reversed the Out-lawry and pleaded to the felony and was found not guilty wherey he was acquit Hereupon the heire of B. brings a Mortdancester against the Lord by escheat and therein sheweth all this matter and so upon a Demurrer it was awarded that the heire should recover seisin of the land For if B. had béen living he should have gone quit by the acquital of A. because B. could not be a receiver of a Felon when A. was no Felon 19. 29. 34 35. â—rincipal and â—ccessary 29 The makers of the Statute of 4 5 P. M. cap. 4. Co. l. 11. 35. a. 1. in Alexander Powlters case observing that by the Statute of 25 H. 8. cap. 3. Clergy was taken from the principal offender in the case of house-burning c. and not from any accessary have provided that the accessary before the fact in that and other cases there provided for shall be also outed of his Clergy which was taken to be a good interpretation made by that Parliament of all the Acts which concerned that matter For if the Principal shall have his Clergy it would be absurd to take away Clergy from the accessary because if the Principal hath his Clergy before judgement the accessary shall not be arraigned Vide suprà 19. F. N. B. 32. a. primer 30 If Baron and Feme present to an Advowson in right of the Feme which is appendant to the Mannor of the Feme Advowson appendant to an acre of land and after the Baron alien an acre parcel of the Mannor together with the Advowson in fée to a stranger and dies and after the stranger presents and then aliens the acre to another in fée saving the Advowson to himselfe and after the Church becomes void Here the Feme shall present and if she be disturbed she shall have an Assise of Darrein presentment because the Advowson was severed from the acre but if the Advowson were appendant to the acre then ought the Feme to recover the acre before she can present to the Advowson F. N. B. 47. d. 31 If a man recover in a Quare Impedit in the Common Pleas Quare non admisit out of the Kings Bench. and the record is removed by a writ of Errour into the Kings Bench and there affirmed In that case he shall have a writ to the Bishop there and ought to sue a Quare non admisit against the Bishop there upon that record c. F. N. B. 107. m. 32 An Attaint may be sued in the Common Pleas The like for an attaint if the record be there which is the principal or it may be sued in the Kings Bench upon false verdict given in the Common Pleas if the record be removed into the Kings Bench c. Ibid. 33 A recovery was had in an Assise brought in the Kings Bench The like and afterwards the record was sent into the Common Pleas and the party sued an Attaint upon that record in the Common Pleas For the record is the principal and the Attaint thereupon is accessary which see in tit Assise 8 E. 2. Itinere Canc. F. N. B. 115. f. 34 If the Principal die before verdict given upon the acquital Principal and Accessory or hath a charter of pardon and plead it c. In that case the Accessory shall not have a writ of Conspiracy because he is discharged by the death of the Principal or by the charter of pardon made unto the Principal c. 19. 28 29. Pl. Co.
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
〈◊〉 joyn in an â—sise of an 〈◊〉 thing and a pound of Pepper and an Hawk and an Horse and they are seised of that service and afterwards all the said services being arreate they distrain for it and the Tenant makes rescous In this case as to the rent and the pound of Pepper they shall have two several assises because those rents are severable and the two Tenants in Common claim and hold the reversion unto which the same rents are incident by two several titles But as to the Hawk and Horse albeit they be Tenants in Common c. they shall joyn in the assise because these things are intire and cannot be severed for one of them alone by himselfe cannot make his plaint in Assise for the moity of an Hawke or of an Horse because the Law will never suffer a man to demand any thing against the order of nature or reason as it appeareth by Littleton Sect. 129. Lex enim spectat naturae ordinem Co. ibid. b. 3. 23 Tenants in Common shall joyn in a Quare Impedit In an adâ—â—son ward c. because the presentation to the Advowson is intire Also they shall joyn in a writ of right of Ward and ravishment of Ward for the bodie for the same reason Co. ib. 197. b. 4. § 285. a. 4. 24 If two Tenants in Common be of the Wardship of the body Release â—o prejudice and a stranger ravisheth the Ward and one of the Tenants in common releaseth to the ravisher this shall go in benefit of the other Tenant in common and he shall recover the whole Neither yet shall that release be any bar to him for that the Wardship of the bodie is intire and cannot be severed Co. l 5. 97. b. the Countesse of Northumberlands case So it is also if there be two Ioyntenants of an Advowson and they bring a Quare Impedit and the one doth release yet the other shall sue forth and recover the whole presentment Likewise two Tenants in Common shall joyn in a detinue of Charters and albeit the one be non-suit yet the other shall recover Co. Inst pars 1. 199. b. 4. 25 There is a diversity betwéen Chattels real Tenants iâ— common Ward Villein that are apportionable and severable as leases for years wardship of lands interest of tenements by Elegit Statute Marchant Staple c. of lands and tenements and Chattels real intire as Wardship of the body a Villein for years c. For if one Tenant in Common take away the ward or the Villein c. the other hath no remedie by action but he may take them again Howbeit for the other he that is outed may have remedy against his companion that outs him viz. by Ejectione Firmae Ejectment of Ward Quare ejecit infrà terminum c. Co. ib. 200. a. 3. 26 If two Tenants in Common be of a Mannor Waife Estray to which Waife and Stray doth belong a stray doth happen they are Tenants in common of the same and if one doth take the stray the other hath no remedie by action but onely to take it again unlesse by prescription they claim to have them by turns c. Co. ib. 215. a 3. 27 The Grantée of part of the reversion shall not take advantage of a Condition by the Statute of 32 H. 8. cap. 34. A conditioâ— intire As if a lease be made of thrée acres reserving a rent upon Condition and the reversion is granted of two acres the rent shall be apportioned by the act of the parties but the condition is destroyed for that it is intire and against common right It is otherwise in the Kings case c. â—elease of 〈◊〉 actions 27 In mixt actions as an action of Waste Litt. § 492. c. which are mixed both in the realty and personalty a release of all actions real or a release of all actions personal is a good plea in barre because the action is in its nature intire and therefore a release of part shall annul all c. There is the same reason of an Assise of Novel disseisin a writ of Annuity Quare Impedit c. â—â—heritance â—ehold intire â—erm not so 28 If a Disseisor make a lease for a hundred yeares Co. ibid. 285. a. 4. Co. ib. 297. a. 2. Co. l. 5. 6. in Foords Case the Disseissee may confirm parcel of those yeares viz. Either the whole land for part of the terme or part of the land for the whole term c. So likewise if the Tenant for life make a lease for a hundred years the Lessor may confirm either for part of the terme or for part of the land but an estate of Inheritance or Frée-hold cannot be confirmed for part of the estate â—nfirmation 〈◊〉 part of a â—â—me because those estates are intire and not severable as yeares be And therefore if the Disseisée confirm the estate of the Disseisor Litt. § 519. albeit in the déed of confirmation the limitation be exprest to be in taile for years for a day or onely for an hour yet hath the Disseisor a Fée-simple because his estate was before the confirmation intire and unseverable â—â—eritance â—ehold intire 29 If any Disseisor make a lease for life the remainder in fée Litt. § 525. Co. ibid. 297. a. 4. b. 2. if I confirme the estate of the Tenant for life yet after his decease I may well enter because they are several estates and nothing is confirmed but the estate for life So it is also when the several estates are in one and the same person as if the Disseisor make a gift in taile the remainder to the right heirs of the Tenant in taile or the remainder first for life â—â—nfirmation â—one jointeâ—â—nt shall eâ—â—e to both and then to the right heirs of the Tenant in taile In these cases if the Disseisée confirm the estate of the Tenant in taile it shall not extend to the other estates causa qua suprà But if the Disseisor make a lease for life to A. and B. and then the Disseisée confirms the estate to A. Here B. shall take advantage thereof because the estate of A. which was confirmed was intire and joint with B. and therefore in that case the Disseisée shall not enter into the land and devest the moity of B. So likewise if the Disseisor enfeoff A. and B. and the heirs of B. and then the Disseisée confirms the estate for his life this shall not onely extend to his companion but to his whole Fée-simple also because to many purposes he had the whole Fée-simple in him and the confirmation shall be taken most strongly against him that made it c. 〈◊〉 confirmatiâ—o Baron â—e not good 30 If I let land to a Feme sole for terme of her life Litt. §. 525. Co. ibid. 299. a. 4. who takes husband and after I confirme the estate
properly called a Rent For saith he if it should be a Rent it ought to be either Rent-service Rent-charge or Rent-secke but it is not any of those For if the stranger be once seised of it and after be denyed it he shall not have an Assise for it because it is not issuing out of any Tenements c. So that if it be arreare the stranger hath no other remedie but that the Feoffor or his heirs may enter and yet if they do enter then is the Rent gone for ever And therefore he concludes that such a charge upon the Landis not a Rent but onely a paine layed upon the Tenant of the Land and his heires that in Case payment be not made according to the Indenture they shall lose the Land by the entry of the Feoffor and his heires c. An Estate during coverture 2 Another example hereof you shall find Sect. 380 381. Co. ibid. 235. b. 1. Where to prove that an Estate made to Baron and Feme during the Coverture is an Estate unto them for their two lives he useth this argument Every man saith he that hath an Estate of Frank-tenement in Lands or tenements hath an Estate in them either in Fée or Fée taile or for his owne life or pur auter vie But the Baron and Feme have not by such a Grant Fée nor Fée taile nor an Estate pur auter vie Ergo they have an Estate for the term of their lives Howbeit that is upon a Condition in Law viz. If one of them die or a divorce be sued betwixt them that then it shall be Lawfull for the Lessor or his heires to enter c. And in this Case if they make wast the Feoffor and his heires shall have a writ of wast against them supposing by his writ Quod tenet ad terminum vitae c. But in his Count he shall declare the special manner of the Lease Common ratione commorantiae void 3 In Trespass the Defendant justifies Co. lib. 6. 60. a. 2. in Gatewands Case that all Inhabitants in any ancient mesuage within the Towne of Dale have used to have Common in the place where c. in Sale ratione condonantiae c. And this Custome was adjudged to be against Law Because there are onely four kinds of Commons viz. Appendant appurtenant in grosse and for vicinage and Common Ratione commorantiae is none of them c. 80. 18. The Estate of the Duke of Cornwall 4 Edward 3. Co. lib. 8. 27. a. 2. in the Princes Case gave unto the Blacke Prince the Dukedome of Cornwall c. Habendum tenendum eidem Duci ipsius haeredum suorum Regum Angliae filiis primogenitis dicti loci Ducibus in Regno Angliae haereditariè successoris c. And it was resolved in 3 Jac. in the Princes Case that that the Prince had an estate of Fée-simple in that Dukedome because every Estate of Inheritance is either Fée-simple or Fee-taile but that Estate could not be Fée-taile for it is not limited or restrained either by expresse words or by words which do tout amount to the heires of the body of the Prince because he that is to inherit that Dukedome ought to be the first borne Sonne of the heires of the Blacke Prince be it heir Lineall or Collateral and such heire ought also to the King of England c. Vide infrà 192. 3. 72 The Generals must go before and the Specials must follow after â—enerals beâ—e Specials 1 In a write the General shall be put in demand and in Plaint before the special as Land before Pree Pasture Wood Iuncarie The Rule of the Register Marish c. Wood before Alders Willowes c. Finch 24. 73 The more worthy shall be set before the lesser worthy â—grees of â—hiness of â—d c. 1 An intire thing shall be demanded before the moitie part or parts Co. Inst p. 1. 4. a. 2. Co l. 11. 82. a. 4. Bowles Case the thing of greater dignitie before that which is of lesse as a mesnage before Land for albeit Land be of more esteeme then any of the other elements because it was principally made for man to rest on which he cannot do in any of the other elements yet Land builded upon is more worthy then any other Land because it is for the habitation of man and in that respect hath the precedencie to be demanded in the first place in a praecipe howbeit a Castle shall be demanded before a mesuage or Mannor because it is more worthy then they being ordinarily an habitable for a Noble personage c. Finch 24. and the Rule in the Register Finch 25. 2 In a Replevin if it be of two chattels one quicke Of Chattels and the other dead the living thing shall be first demanded Finch 25. and the Rule in the Register Finch ibidem 3 Where one hath the presentment to a Church two turnes Of present Action to a benefice and another the third turne he that had the third turne bringing a Quare Impedit shall not begin with his owne turne first but with the other two turnes Co. Inst part 18. a. 3. 4 My Lord Cooke well observes Fee-simple the most worthy Estate that Littleton did worthily begin his Booke with an Estate in Fée-simple because all other Estates being derived from that it must needs be the most worthy for saith he A principalioribus dignioribus est inchoandum Co. lib. 2. 46. b. 1. in the Arch Bishop of Canterb Case 5 By the Statute of 31 H. 8. cap. 13. It was enacted Words of inferior rank eâ—clude them of higher degree that all Monasteries c. Colledges c. which after that Act should happen to be dissolved renounced relinquished forfeited given up c. or by any other mean should come to the Kings highness c. should be vested deemed and judged by authoritie of Parliament in the very actual and real possession of the King c. And afterwards by the Act of 1 E. 6. cap. 14. The Colledge of Maid-stone in Kent was given to E. 6. Now the Question was whether by the General words of the Statute of 31 H. 8. That Colledge was not to be deemed in the Actual possession of E. 6. because the Edict of 1 E. 6. was a mean by which it came to the Kings hands and therefore fulfilled these words of that Statute by any other mean But it was resolved per totam Curiam that the Statute of 31 H. 8. could not be so understood For when the Statute speaks of dissolution renouncing relinquishing forfeiture giving up c. which are inferiour meanes by which such Religious houses came to the King then the said last words by any other mean cannot be intended of an Act of Parliament which is the highest manner of conveyance that may be And therefore the makers of that
of good pleading must be observed Co. Inst pars 1. 303. a. 2. which being inverted great prejudice may grow to the party tending to the subversion of Law Ordine placitandi servato servatur jus c. And therefore first in good order of Pleading a man must plead to the jurisdiction of the Court Secondly to the person and therein first to the person of the Plaintiffe and then to the person of the Defendant Thirdly to the Court Fourthly to the Writ Fifthly to the Action c. which order and form of Pleading you shall read in the ancient Authors agréeable to the Law at this day and if the Defendant misorder any of these he loseth the benefit of the former Again the Count must be agréeable and conform to the Writ the Bar to the Count c. and the Iudgment to the Count for none of them must be narrower or broader then the other c. 4 If the King make a Lease for years rendring Rent Co. l. 4. 13. a. 3. in Burroughs Case with condition to be void upon non-payment of the Rent Re-entry giâ—en to the King without demand the King shall take advantage of that condition without any demand For so long as the Reversion and Rent continue in the King the Law dispenseth with the demand as a thing un-decent it being against the dignity of the King to wait upon his subject or to demand any thing of him It is otherwise if the King grant over the Reversion for his grantée shall not take advantage of the Condition without demand of the Rent But in the other Case the Law which alwayes requireth that decorum and conveniencie be observed appoints the subject to attend upon his Soveraign and in that Case to perform the first Act although it be in the case of a Condition which trencheth to the destruction of his Estate Howbeit this is onely a personal Prerogative annexed to the person of the King for order and decencies sake and not in respect of the nature and quality of the Rent c. â—o demand 〈◊〉 the value of â—arriage 5 One Of the reasons which the Lord Cook addes in the Lord Darcies Case Co. lib. 6. 71. b. 2. in the Lord Darcies Case why the fingle value of the marriage of a Ward in Knight-service should be due to the Lord without demand is this If the Common Law saith he would have inforced the Lord to have made tender to his word c. it would also have appointed all necessary circumstances for the performance of such a tender as a certain place c. where it should be done and would not have left the Lord which is the superiour to finde out the Ward which is the inferiour and who may if he will take advantage of his own shifts when there can be no laches at all in the Lord c. 6 Amongst other reasons produced to prove None but of the houshold shall sue in the Marshalâ—â— that in Suits prosecuted in the Marshalsie Co. l. 10. 73. b. 2. in the Case of the Marshalsie one of the parties at least ought to be of the Kings houshold this is one because saith the Book it would not be comely that a Car-man or other Mechanical person should at his pleasure sue another in that Court and upon that occasion take liberty to appear in Aula Regis where that Court was originally kept absque vestimentis aulicis for those that appear in Court use to wear garments suitable to that place And therefore it is recorded by Luke the Evangelist cap. 7. vers 25. Coepit de Johanne dicere ad turbam c. Quid existis visuri hominem mollibus vestibus amictum Ecce qui vestitu magnifico utuntur c. sunt in Palatiis Regis c. And the Common Law regards conveniency and altogether dis-allowes indecorum and every thing done contra bonos more 's 77 Negatio Conclusionis est error in Lege Co. l. 10. a. 4. in Priddle and Nappers Case 1 In Attachment upon a Prohibition the Plaintiffe counts against A. proprietary of Tithes Lands in the Priors handâ— not tithable that heretofore the Prior of Montecute was seised of twenty Acres of Land c. before and at the time of the dissolution and held those Acres and also the Rectory simul semel c. Ratione cujus the Prior held the said Lands discharged of Tithes The Defendant conveys title to the Land c Absque hoc that the Prior held them discharged of Tithes c. Here the plea of the Defendant pro consultatione habenda for he is in a manner an Actor was insufficient because he traverseth a thing not traversable For the prescription of the unity ought to have béen traversed and not the Conclusion viz. Ratione cujus because as in Logick the conclusion of a Syllogisme cannot be denied but either the major or minor Proposition so neither in Law which is the perfection of Reason c. Co. ibid. 2 In a Praecipe Ancient Demesne one that pleads that the Mannor of Dale is ancient Demesne and that the Land in demand is parcel of the Mannor and so ancient Demesne there the Demandant cannot say that the Land in demand is not ancient Demesne because that is the Conclusion upon the two first preceding Propositions viz. 1. That the Mannor is ancient Demesne 2. That the Land in demand is parcel of the Mannor for sequitur conclusio ex praemissis and therefore it cannot be denied and with this agrées 41. E. 3. 22. 48. E. 3. 11. and many other Books 78 The Law respecteth the Bonds of Nature Co. Inst p. 1. 78. a. 2. 1 If before the Statutes of 32 34 H. 8. Wardship the father had infeoffed any of his younger sons or others for the making of his wife a Ioynture or for the advancement of his daughters or for the payment of his debts Co. l. 6. 76. a. 3. in Sir George Cursors Case and after had enfeoffed and conveyed the Land to his heir and had died his heir within age his heir should not have béen in ward neither was it Collusion upon the Statute of Marlbr cap. 6 c. because he was bound by the law of Nature and Nations to provide for them but now by force of those Statutes he shall be in ward for his body and for a third part of the Land c. No wardship â—uring the faâ—hers life 2 A. hath issue B. a daughter and his heir apparent who being married to C. hath issue by him D a son B. dies Litt. §. 114. Co. Inst ibid. a. 3 c. and A. that holds Land by Knights-service dies seised and the Land descends to D as heir unto A. and within age In this Case the Lord shall have the wardship of the Land but not the wardship of the hody of the heir for none shall be in ward for his body to
Case if an Infant Tenant make Feofment and die without Heire the Feofment is un-avoidable here is the same Law of Coverture and non sanae memoriae c. Co. l. 6. 76. b. 4. in Sr. Geo. Cursons Case 19 It is said that one of the Chiefest reasons 32 34 3â— H. 8. of Wilâ— that moved the Parliament in 32 H. 8. and in 34 35 H. 8. to give libertie to dispose of the two third parts of Lands by will or otherwise for a Competent livelyhood of Wives and Children or for payment of Debts was this Because these Cases were ordinary usual and necessary And for that every man is in his life time bound by the Law of God of Nature and of Nations to make provision for his Wife and Children and also for the payment of his Debts c. Co. ibid. 77. a. 2. 20 There is a neerer Relation betwéen Father and Sonne Father neeâ— then Grandfather then betwéen Grand-father and Grand-child And therefore if there be Grand-father Father and divers Sonnes and the Grand-father in the life time of the Father conveys his Land to some of the Sonnes this is out of the Act of 32 H. 8. of Wils For the Father ought to have the immediate care of his Sonnes and Issues But if the Father be dead then the care of them belongs to the Grand-father and then if he convey any of his Lands to any of them that is within the said Statute Co. Inst pt 1. 123. b. 2. Litt. §. 189. 21 It is regularly true A Villein may sue his Lord. that the Villain cannot bring any Action against his Lord yet he may have against his Lord an appeale of the death of his Father or of any other of his Ancestors whose heire he is c. because the villain is both by duty and in nature bound to pursue such an Action Co. lib. 3. 12. b. 2. St. Will. Herberts Case 22 If a man seised of three Acres of Land No contribution to the heire acknowledgeth a recognisance or Statute c. And enfeoffes A. of one Acre and B. of another and the third descends to his heire in this Case if execution be sued onely against the heire he shall not have contribution For he comes in the place of his Ancestor and sits in his State Haeres enim est alter ipse filius est pars patris And as it is said Mortuus est pater quasi non mortuus quia reliquit similem sibi Co. Inst p 1. 174. a. 4. 23 If one Copercener maketh a Feoffment in Fée and after the Feoffée is impleaded and voucheth the Feoffor The heire apparent shall derraigne the warrantie from upon feofâ—â—â— for the mother she may have ayde of her Coperceuer to deraigne a Warrantie per amount but never to recover per rata against her by force of the Warrantie in Law upon the partition For as Littleton saith by her alienation she hath dismissed her selfe to have any part of the Land as parcener but if there be two Coperceners and they make partition and the one of them enfeoffs her Sonne and heire apparant and dieth and after the Sonne is impleaded Here albeit he be in by the Feoffment of his Mother yet shall he pray in ayde of the other Copercener to have the Warrantie per amount and to recover per rata not onely because the Warrantie betwixt his Mother and him is by Law annulled but likewise for that he is alter idem with his Mother Dier 2. b. 1. 19 H. 8. 24 A fine levied by Tenant in taile after the Statute of 4 H. 7. 24. Issue in taile barred by 〈◊〉 fine and before the Statute of 32 H. 8. 36. did bind the issue in taile and his title was not preserved by any of the savings in 4 H. 7. because albeit he claimed per formam doni yet claiming thorough his Father the Land came to him in the nature of a descent Dier 128. b. 61 2 3. P. M. 25 If any of the Kings subjects be beyond Sea and is commanded by the King to return home and in contempt refuseth so to do Allegiance all his Goods and Chattels Lands and Tenements shall be seised for the use of the King And this is by reason of the faith and allegiance which he oweth to the King by the Law of Nature And this was the Earle of Richmonds Case in 19 E. 2. in Scaccario The like 26 If a Bastard were borne at Turney Dier 224. 19. 5. Eliz. when it was under the obedience of H. 8. he was a denizen by the Law of Nature So it is also of the issue of Aliens born within this Realme 27 Vide Hob. Rep. pag. 1. The Earle of Clanrichards Case 10. Grisley against Lother Formedon 28 In a cessavit brought by the Husband and Wife Hob. 1. The E. of Clanrichards Case or in a writ of Escheat a consimili casu or Action or Wast because there is a vested in them already either a Signiory or reversion actually and therefore the Land holden or the present Estate to return is come in possession therefore in these Cases Reverter is to be made to them both and so are the Bookes in 3 H. 6. 2. 20 E. 3. Briefe 372. Register 238. F. N. B. â—10 Also in a Formedon in Reverter wherein nothing is already revested but the right onely returnes there the right may be laid to return either to the Wife alone or to the Husband and Wife as Douby resolves it 33 H. 6. 54. See also 18 H. 8. 20. 5 H. 3. 13. 38 E. 3. 16. and 18 E. 3. 3. where it was sometimes to the Wife sometimes to the Husband and Wife But in a Formedon in descender upon a descent to the Wife there the descent must be made in the writ to the Wife alone because the descent followeth the bloud and to that the Husband is a stranger and so are the Bookes in 19 H. 6. 46. and 53 H. 6. 10. where a Formedon in descender was brought by two Husbands and their Wives and made the descent in bloud to the Wives onely and yet concluded that the right ought to descend to the Husbands and Wives And exception was taken to it and ordered by the Court that it should be amended and the descent made onely to the Wives Assumpsit 29 In an Action upon an Assumpsit Hob. 10. Grisley and Lother that A. would give to B. 100 l. if B. would give her consent that A. might marry her Daughter and it was moved in arrest of judgement that the action would not lie the consideration being to travel or charge but onely a bare consent howbeit it was held by three Iustices against one that the consideration was good because the Mother hath by the Law of Nature a special stroke to incline the Daughters mind either one way or other and the desire of
her consent and the working of it shewes that the Plaintife so conceived it 79 Nemo praesumitur alienam posteritatem suae praetulisse Collaterall Warrantie 1 If the Tenant in taile discontinue the taile and hath issue and die Co Inst p. 1. 373. a. 3. Litt. § 709. and the Vncle of the issue release to the discontinue with Warrantie c. and die without issue this is Collateral Warrantie and shall barre the Issue in taile albeit the Vncle had no right at all to the land intailed because the Law presumeth that the Vncle would not un-naturally dis-inherit his Lawfull Heire being of his owne bloud of that right which the same Vncle never had but came to the Heire by another mean unlesse he would leave him greater advancement some other way For nemo praesumitur c. And in this Case the Law will admit no proofe against that which the Law presumeth And so it is likewise of all other Collateral Warranties no man is presumed to do any thing against nature 〈◊〉 conveyance â—ot within the â—â—at of Wils 2 If a man make a voluntary Conveyance of his Land to the use of any of his collateral bloud who is not his heire apparent Co. l. 6. 77. a. 3. in Sr. Geo-cusrons Case that is not within the Act of 32 H. 8. of Wills For it cannot be intended that he will dis-inherit his heire on purpose to defeat the King of his Ward seeing every one hopes to live to see his heire attaine his full age much lesse to defraud him of his Primer seisin Vide Dier 307. 71. 80 The Law esteemeth and judgeth of all things according to their nature and quality Co. Inst p. 1. 91. b. 4. 1 Where the tenant holds of his Lord by fealty and a pound of pepper or a pound of Cummin or a certain number of Capons Certain services not doâ—bled for relieâ— or hens or a pair of Gloves or certain bushels of wheat or the like the Lord shall have so much for relief as he receives in rent viz. a pound of pepper a pound of Cummin or the like But if the tenant holdeth of the Lord by doing certain work-dayes in Harvest or to attend at Christmas or the like he shall not double the same for of corporal service or labour or work of the tenant no relief is due It being onely payable where the tenant holdeth by such yearly rents or profits which may be paid or delivered c. Co. ib. 92 a. 2. Litt. §. 128 129. 2 When the tenant holdeth by such yearly rents or profits Not to be distrained for presently as may be presently delivered the relief is due to be paid to the Lord immediately upon the tenants death and upon non-payment thereof the Lord may distrain for it presently Howbeit if the tenant holds of his Lord by a Rose or by a bushel of Roses to be paid at the Feast of St. John Baptist if such a tenant die in winter the Lord shall forbear to distrain for the Relief untill the season of Roses for Lex spectat naturae ordinem Lex non cogit ad impossibilia And therefore it is observed by my Lord Cook that Littleton puts a diversity betwéen Corn and Roses for Corn will last and therefore the tenant must deliver the Corn presently before the time of growth and so of saffron c. but Roses and other flowers that are fructus fugaces cannot be kept and therefore are not to be delivered until the time of growing neither is the tenant driven by law artificially to preserve Roses for the Law in these cases respected nature and the course of the year c. Co. ib. 121. b. 4 Co. l. 4. 36. b. 4. in Tyrringhams case Pl. Co. 168. Hill Granges Case 3 Prescription although never so ancient cannot make any thing appendant or appurtenant Things properly appeâ—dant and appurtenant unlesse the thing appendant or appurtenant agrée in quality and nature with the thing whereunto it is so appendant or appurtenant as a thing corporeal cannot properly be appendant to a thing corporeal nor a thing in-corporeal to a thing incorporeal but things incorporeal which lie in grant as Advowsons Villains Commons and the like may be appendant to things corporeal as to a Mannor house or lands so also may things corporeal be appendant to things incorporeal as Lauds to an Office but yet these also ought to agrée in nature and quality for Common of Turbary or Estovers cannot be appendant or appurtenant to Land but to an house to be spent therein nor a Léet which is temporal to a Church or Chappel which is Ecclesiastical Neither can a Noble man Esquire c. claim a seat in a Church by prescription as appendant or belonging to land but to an house for that such a seat belongeth to the house in respect of the Inhabitancy thereof and therefore if the house be part of a Mannor yet in that case he may claim the seat as appendant to the house for the reason aforesaid Co. ibid. 129. a. 4. 4 A man cannot be naturalized either with limitation for life Naturalization or intail or upon condition for that is against the absolutenesse purity and indelebility of natural Allegiance Co. ib. 130. a. 4 5 Corporations aggregate of many are not capable of the Protections of Profecturae or moraturae Corporatiâ—â— because the Corporation it self is invisible and resteth onely in consideration of law Ca. ib. 144. b. 4 6 Littleton saith § 219 that the Grantée of a rent charge hath election to bring a writ of annuity Rent-chaâ—â—â— and so changing the person onely to make it personal or else to distrain upon the land and so to make it real but this is to be understood with some limitation for of a rent granted for owelty of partition a writ of Annuity doth not lie because it is of the nature of the land descended Also of such a rent as may be granted without déed a writ of Annuity doth not lie although it be granted by déed c. 7 If there be two Ioynt-tenants Co. ib. 192. b. 3. Litt. §. 302. and the one lets his moity to another for life â—oynt-tenants In this Case the Ioynture is severed so that if the Ioynt-tenant which still retains the frank-rent of his moity have issue and die the issue shall have that moity by descent because a frank-tenant cannot by nature of Ioynture be annexed to a barâ— reversion c. Divine Serâ—ice frank-almoigne 8 Where the Common or Statute Law giveth remedy in foro seculari Co. Inst p. 1. 96. b. Litt. §. 137. whether the matter be temporal or spiritual the Connusance of that Cause belongs to the Kings temporal Courts onely unlesse the Iurisdiction of the Ecclesiastical Court be saved c. as if an Abbot or Prior hold of his Lord by Divine Service certain and
that Service is not performed the Lord hath his remedy in foro seculari because the Service being certain proof thereof may be made in a temporal Court It is otherwise of tenure in frank-almoigne for that Service being spiritual and uncertain must be deâ—â—ned and recovered in foro Ecclesiastico in an Ecclesiastical Court unto which Court the Connusance of that cause doth properly belong c. Tenants in common for Rent arrear 9 If two tenants in common of Lands in fée make a gift in tail Co. ibid. 197. Litt. §. 314. or a lease for life reserving a yearly rent and a pound of pepper and an hawk and an horse and they are seised of that service and afterwards all the said service being arrear they distrain for it and the tenant makes rescâ—us In this Case as to the rent and pound of pepper they 〈◊〉 have two several Assises because the two tenants in common hold the reversion unto which that service is incident by several titles but as to the hawk and horse albeit they be tenants in common c. they shall joyn in the Assise for one of them above by himself cannot make his plaint in Assise for the moity of an hawk or of an horse because the Law will never suffer any man to demand any thing against the order of nature or reason as it appeareth by Littleton § 129. Lex enim spectat naturae ordinem c. Conditional â—eoffments â—or obligations 10 If A. enfeoff B. of Black acâ—e Co. ib. 208. b. 4 upon condition that if C. enfeoff B. of White acre A. shall re-enter In this Case C. hath time during his life to make the feoffment if B. doth â—oâ— hasten it by request and so likewise of all Obligation Howbeit in some Cases although the condition be collateral as aforesaid and is to be performed to the Obligée and no time limited c. yet in respect of the nature of the thing the Obligor shall not have time during his life to perform it As if the condition of an Obligation be to grant an Annuity or yearly rent to the Obligée during his life payable yearly at the Feast of Easter this Annuity or yearly rent must be granted before Easter or else the Obligée shall not have it at that Feast during his life sic de similibus And so it was resolved by the Iudges of the Common Pleas in Andrews case for which see Dier 14. Eliz. 311. â—he like 11 If a feofment or bond be made upon condition Co. ib. 210. a. 4 that the Feoffor or Obligor shall pay a certain sum of money to the feoffée or obligée at such a day but no place limited for the payment thereof In this case the Feoffor or Obligor ought to séek out the feoffée or obligée to make payment thereof accordingly if he be to be found within England c. for in case of an Obligation the Law was alwayes clear and in case of a feofment although it hath béen sometimes controverted yet at this day that doubt is setled it having béen oftentimes resolved that séeing the money to be paid is a sum in grosse and collateral to the title of the land the feoffor must tender the money to the person of the feoffée and it is not sufficient for him to to tender it upon the land otherwise it is of a rent that issueth out of the land Howbeit if the condition of a bond or feoffment be to deliver twenty Quarters of wheat or twenty loads of timber or the like the Obligor or Feoffor is not bound to carry the same about and to séek the Feoffée or Obligée but the Feoffor or Obligor before the day must go to the Feoffée or Obligée and know where he will appoint to receive it and there it must be delivered And so note a diversity betwéen money and things ponderous or of great weight Likewise if the Condition of a Bond or Feoffment be to make a Feoffment there it is sufficient for him to tender it upon the Land because the State must passe by livery c. Co. ibid. 285. b. 3. 12 Every man shall plead such pleas as are proper for him Pleas of a disseisor and apt for his defence to be pleaded As a disseisor that hath nothing in the land may plead a release of Actions personal because damages are to be recovered against him and therefore for his defence he may plead it But a release of Actions real he cannot plead because he hath no Estate in the land And none shall plead a release of Actions real in an Assise but the tenant of the land Et sic de caeteris Co. ibid. 338. a. 3. 13 A particular Estate of things that lie in grant cannot commence without déed Things that lie in grant and consequently that Estate cannot be surrendred without déed but albeit a particular Estate be made of Lands by déed yet may it be surrendred without déed in respect of the thing demised because the particular Estate might have béen made without déed And so on the other side if one be tenant by the Courtesie or tenant in Dower of an Advowson Rent or other thing that lies in grant albeit there the Estate began without déed yet in respect of the nature and quality of the thing that lies in grant it cannot be surrendred without déed And so if a Lease for life be made of Lands the remainder for life albeit the remainder for life began without déed yet because Remainders and Reversions though they be of lands are things that be in grant they cannot be surrendred without déed c. Co. ibid. 144. a. 3. 14 A Rent cannot be granted out of a Piscarie a Common No rent oâ—â— of things incorporeal an Advowson or such like incorporeal Inhabitants but out of lands or tenements whereunto the Grantée may have recourse to distrain or which may be put in view to the Re-cognitors of an Assise And although it be out of Lands or tenements yet it must be out of an Estate that passeth by the Conveyance and not out of a right as if the Disseisée release to the Disseisor of Land reserving a rent the reservation is void sic de similibus Co. l. 4. 43. b. 4. in Bibithes Case 15 John Goffe the brother and heir of R. Goffe No accessorâ—e before the 〈◊〉 in manslâ—â—â—hter brings an Appeal of murder of the said R. Goffe against Bibithe as principal and against Hoell David as accessarie before and against David Thomas as accessarie after The principal pleads not guilty and by nisi prius in the County of Manmouth he was found guilty of man-slaughter and not guilty of murder and in this Case it was resolved per Popham Chiefe Iustice totam Curiam in the Kings Bench that Hoell David was discharged because there could not be any accessory before the fact in Case of man-slaughter for
in the Case of a common person Co. ib. 31. b. 4. 2 If a Common Person take an Alien to Wife and die An alien albeit he were seised of Lands in Fée or Fée taile yet shall not his Wife be endowed but if the King take an Alien borne and die she shall be endowed by the Law of the Crowne And yet Edmund brother to E. 1. married the Quéen of Navarre Rot. Parl. 26 E. 1. Rot. 1. and died And it was resolved by all the Iudges that she should be endowed of the third part of all the Lands whereof her husband was seised in fee. Co. ib. 90. a. 4. F. N. B. 33. p. q. r. 3 If a Bishop hath an Advowson and the Church becomes void Bishop Advowson and the Bishop dies neither the Successor nor the Executors shall present but the King because it is but a Chose in action Co. ib. 388. a. 2. F. N. B. 33. p. q. r. 4 A man holds the mannor of D. whereunto an Advowson is appendant of the King by Knights-service the Church becomes void Advowson Wardship Eâ—ecutors and then the Tenant dies his heire under age in this Case the King shall present and not the Executors of the Tenant And this is by reason of a prerogative that belongeth to the King to provide for the Church being void for where the tenure by Knight-service is of a Common Person the Executors of the Tenant shall present c. Co. ib. 108. b. 2. 5 Tenure by rendring yearly to the Lord a Bow a Sword Petty Serjeancie Soccage a Dagger a Gantlet or such other small things belonging to warre in Case of a Common Person is nothing else but plain soccage ab effectu because it had such effects and incidents as belong to soccage and neither ward nor marriage c. But in the Kings Case in respect of the dignity of the Kings Person it obtaineth the Name of Petie Serjeancie c. Co. ib. 118. a. 2. Litt § 177 178. 6 If a Villain purchase Land and alien it before the Lord enter Villein pâ—â—chas Land 〈◊〉 goods seisâ—â— the Lord is barred for ever For before the Lord enters he hath neither jus jure nec jus ad rem but onely a possibilitie of an Estate which Estate he must gaine by his entry And therefore if the Villain doth by way of prevention alien before the Lord doth enter the Lord is for ever barred of the possibilitie which he had to enjoy the Land Si autem servus vendiderit feodum Fleta l. 3. c. 13 Britt fol. 98. a. 19 E. 2. Dow. 171. quod sibi haeredibus perquisiverit antequam Dominus seisinam inde caeperit valet donatio Dominus sibi ipsi imputer quod tantum expectavit saith Fleta Howbeit if the Kings Villain purchaseth Land and alieneth before the King upon an Office found for him doth enter yet the King after Office found shall have the Land Quia nullum tempus occurrit Regi And yet after Office found the King shall not have the mean profits because the title commenceth by the seisure Litt. §. 178. It is otherwise of Goods in the Kings Case For if the Kings Villain acquire any Goods or Chattels the property of them is in the King before any seisure or Office And it is well said of an Ancient Author Mirr cap. 3. Britt fol. 88. Al Roy quant al droit de la Corone on á franch Estate ne poet nul temps accurre and another speaking in the Person of the King saith Nul temps nest limit quant á mes droits c. â—â—narty 7 Where a Church is presentative Co. ibid. 119. b. 4. 344 a. 4. it is full by admission and institution against any common Person but against the King it is not full before Induction â—â—een purâ—â—s sue 8 By the Common Law the Wife of the King of England is an exempt Person from the King Co. ibid. 132. a. 4. Co. l. 4. 23. b. 2. Clerke Pennyfathers Case and is capable of Lands and tenements of the gift of the King as no other Feme covert is and may sue and he sued without the King for the wisedome of the Common Law would not have the King whose continuall care and study is for the Publique circa ardua Regni to be troubled and disquited for such private and petty causes So as the wife of the King of England is of ability and capacity to grant and to take to sue and to be sued as a Feme sole by the Common Law Also the Quéen of England hath many other prerogatives viz. She shall find no pledges for such is her dignity as she shall not be amerced â—â—ince Neither she nor the Kings Son are restrained by the Statute of 1 H. 4. c. 6. concerning grants by the King In a Quare Impedit brought by her some say that plenarty is no plea no more then in the Case of the King â—â—enarty Baiâ—â—â—e Hundred If any Bailiffe of the Quéenes bring an Action concerning the Hundred he shall say In contemptum Domini Regis Regiâ—ae The Quéen shall pay no toll c. â—enancie part â—â—iened diâ—â—â—ain in all 9 If the Quéenes Tenant alien a certain part of his tenancie to one Co. ibid. 133. b. 1. and another part to another the Quéen may distraine in any one part for the whole as the King may do but other Lords shall distraine but for the rate Ane therefore where the Quéen so distraineth there lyeth a writ de onerando per rata portione â—rit of right â—â—rected Also the writ of right shall not be directed to the Quéen no more then to the King but to her Bailif otherwise it is when any other is Lord. â—yde counterâ—leaded 10 In case of Ayde prayer of the Quéen Co. ibidem it is Domina Regina inconsulta and the cause of the Ayde prayer shall not be counterpleaded no more then in the Kings Case And see where the ayde shall be granted of the King and Quéen and where of the Quéen onely and she of the King 14 E. 3. Voucher 110. 21 E. 3. 53. 22 E. 3. 3. b. 17 E. 3. 65. 10 E. 3. 17. 5 E. 3. 4. 15 E. 3. Ayde del Roy 66. 10 E. 3. 18. 26 H. 6. Ayde le Roy 24. â—â—otect Marleâ—â— distresse 11 A protection shall be allowed against the Queen Co. ibidem but not against the King neither shall the Quéen be sued by petition but by a praecipe The Quéen is not bound by the Statute of Marlebridge for driving a distresse into another County â—eath treason â—â—wag 12 If any do compas the death of the Quéen Co. ibid. 133. b. 2. and declare it by any over fact the very intent is treason as in the Case of the King No man may marry the Quéen Dowager without the
be in better condition then the subject from whom the claimes and in that case shall have the priority and so shall his grantée also c. as is holden in 24 E. 3. 65. Fitz. tit gard 27 47. Co. l. 5. 91. b. 3. in Semaynes Case 39 In all cases when the King is partie Sheriffe 〈◊〉 open dooreâ— the Sheriffe if no doore be not open may after notice given of the cause of his coming request made to have the door opened break open the house of the partie either to take him or to make other execution of the Kings process if he cannot otherwise enter into it but so it is not in the case of a subject c. So for felonie or suspicion of felonie the Kings officer may breake the house to take the felon because in every felonie the King hath an Interest and where the King hath Interest Felonie the writ is Non omittas propter aliquam libertatem and therefore the libertie or priviledge of an house shall not hold out against the King besides it concernes the Common Wealth that felons be apprehended and in that respect also the King hath a special Interest being the head of that body c. Co. l. 5. 104. a. in Bakers case 40 T. 42 E. in B. R. in Ejectione firmae it was resolved Demurre that if the Plaintiffe shew in evidence any matter in writing Record or Sentence in the Ecclesiastical Court whereupon Question in Law may rise and the defendant offers to demurre c. the Plaintiffe cannot refuse to joyne in demurrer unlesse he will waive his evidence so if the Plaintiffe produce witnesses and the defendant admit their testimonie to be true he may demurre c. So also may the Parliament demurre mutatis mutandis Howbeit upon evidence in an information for the King his Council shall not be compelled to demurre But in that Case the Court may direct the Iury to find the special matter and thereupon they shall adjudge the Law as appeares in 34 H. 8. Dier 53. And this is by reason of the Kings prerogative who may also waive the demurrer and take issue at his pleasure Nota bene Co. lib. 5. 106. a. 4. 108. b. 1. in Sir Henry Constables case 41 Originally the Common Law gave unto the King all such things as were In nullius bonis as Wrecke viz. Goods Things 〈◊〉 liuâ— boâ—i quae naufragio ad terram appelluntur Flotsan viz. When the Ship is drowned or otherwise perished and the Goods flote upon the Sea Wrecke Jetsam as when the Ship is in danger to be drowned and to dis-burden the Ship the Goods are cast into the Sea and after notwithstanding the Ship perisheth Estrayers Lagan vel potius Figan as when the Goods so cast out are so ponderous that they sinke and the Mariners to the end they might find them again fasten a piece of Corke or a Boye to them that will not sinke and therefore this séemes to be called Ligan à Ligando It gave also to the King Estrayes which Bracton calles Animalia vagantia and others Animalia vacantia quia Domino vacari debent Also treasure trove and the like Because by the Rule of the Common Law when none could claime a property in any Goods the King was to have them by his prerogative And therefore Bracton saith Sunt alia quaedam quae in nullius bonis esse dicuntur sicut Wreccum maris Bract. l. 3. c. 3. Grossus Piscis sicut Sturgio Balena aliae res quae Dominum non habent sicut animalia vagantia quae sunt Domini Regis propter privilegium Mare Clausum And note that the King shall have Flotsan Jetsan and Lagan by his prerogative as well as wrecke Albeit they be in or upon the Sea for the Sea is of the Kings Ligeance and parcel of this Crowne of England as it is holden in 6 R. 1. protection 46. and Britton cap. 33. agrées well with the opinion of Bracton that wrecke c. are things in nullius bonis and come into the hands of the subject Originally by Kings grant his words are these Britt c. 33. Et ausi purchas lou per franchise grantee par nous de choses trovves en nulluy biens si come de wrecke de neer bestes estrayantes of Conies Levres pessons Fesants Pertris autres Bestes sauvages par franchise de aver wrecke de meer trouve en son soil waife estray trouve en son fee garrennes en ses demesnes terres c. Lady Peere â—rest 42 A Countesse by descent or mariage cannot be arrested for debt or trespas 1 In respect of her dignity 2 The Law presumes Co. l. 6. 52. b. 3. in the Case of Isabel Countesse of Rutland that she hath sufficient in Lands and Tenements so hereby to be distrained for albeit in respect of her sex she cannot sit in Parliament yet she is a Péere and shall be tried by her Péeres as appeares of 20 H. 6. cap. 9. which was nothing else but a declaration of the Common Law So it is also of a Baron that is a Péere of Parliament 11 H. 4. 15. In homine repligiando against the Lady Spencer it appeares that the said Lady was a Peere of the Realme â—pon account Lady not exâ—ined 43 In 3 H. 6. 48. Co. ibid. 53. a. 1. A Writ of debt upon arrerages of accompt was brought by the Lady of Aburgavenie against another the Defendant pleads Rien luy doit and is ready to make his Law and prayes by force of the Statute of 5 H. 4. cap. 8. that the Parliament might be examined which Act is generall viz. that examination shall be made which is alwayes intended upon oath And there Cokein who gave the Rule said La Dame d'Aburgavenie est un Peere del Realme ne sera bien fait de luy faire venir d'estre examine Car par mesme la reason nous Dames faire venir chescun Duke on Countee d'Angliterre Rolfe Serjeant purquoy nou Sr. Le dit Statute est general est fait pur chescun home haut base A que Cokein dit le ley voit over diversity pur enter Seignior ou Dame c. auter Common Person By which book it may be observed that a Lady which is but the wife of a Baron is a Péere of the Realme and is in equipage as to Nobility and priviledges incident to their dignities with Dukes â—duo Juror Earles c. 44 In 48 E. 3. 30. Co. ibid. 53. a. 3. Sir Ralfe Everden Knight brings a writ to the Chancery and also a writ of the Privy seale to the Iustices rehearsing that he was a Baron and commanding them to discharge him of his oath in juratis accessis recognitionibus quibuscunque because the Barons ought not to be sworne upon Inquests and Recognitions
Also if issue be taken whether the Plaintiffe be an Earl or no it shall not be tried by the Countrey but the Kings writ Also the Defendant shall not have a day of grace against a Lord of the Parliament because he is conceived to attend the publique And all these and many other do appear in our Books 48 E. 3. 30. Regist 179. F. N. B. 247. 48. Ass Pl. c. 23. Ass Pl. 24. 32 H. 6. 27. 35 H. 6. 46. So that as when such an Office descends to an infant or to a man de non sanae memoriae they of necessity ought to exercise it by Deputy so likewise an Earl for the necessity of his attendence which the Law intends upon the King and the Common-wealth that Stewardship of a base Court shall be executed by Deputy Also if a Parkership be granted to an Earl without words to make a Deputy yet he may keep it by his servants And if a Duke have licence to hunt in a Park the Law will allow him attendance suitable to his condition c. Marshalsie Seisure Office Scire facias 56 It was found by Office in 9 Jac. that Sir George Reynel had forfeited the Office of Marshal of the Marshalsie Co. l. 9 95. b. 3. in Sir George Reynels Case by divers voluntary escapes and it was resolved that the King might seise that Office without suing out a Scire facias And in that Case it was observed 1 That the King in some cases shall be in possession by seisure without Office as in 21 H. 7. and Stamf. in case of temporalties of a Bishop and of Priors aliens because the certainty of them appears in the Exchequer 2 He shall sometimes be in possession by Office without seisure as of Lands Tenements Offices c. which are local oâ— whereof continual profit may be taken as upon condition attainder wardship c. Vide 2 H. 7. 8. Stamf. 55. Dowries case in Rep. 3. and the Sadlers Rep. 5. And the Office albeit false yet cannot be avoided without traverse for he cannot traverse the Kings title in the information Traverse Advowson c. 20 E. 4. 10. 3 The King shall be in possession by Office and seisure of an Advowson and thereof he is not in possession until presentment admission and institution And if the King upon refusal bring a Quare Impedit the owner may traverse the Kings title in that Action without traverse of the Office because it is not a manual but an incorporal hereditament also the right to present is casual and not continual 4 The King shall be in possession without office where his tenant died without heir 9 H. 7. 2. 5 When distinct matters amount to an office in that case there ought to be a Scire facias before the King can seise 6 When a common person is put to his Action In that Case the King upon office is put to his Scire facias c. â—o tenure reâ—erved Capite 57 When the King grants any land without reservation of any tenure or absque aliquo inde reddendo or the like Co. l. 9. 123. b. 3. in Anthony Lowes Case the Land by operation of Law shall be holden of the King in capite by knights-service according to the rate and proportion of Land holden by knights-service viz. more or lesse according to the quantity of the Land c. 58 When any thing is due to the King Co. l. 9. 132. a. in Holis Case he ought to have the full and compleat effect of the thing so due unto him As if there be Grandfather Father and Son of Lands whereof some are holden of the King in capite by Knight-service in capite and the residue of other Lords c. And the Grandfather conveys all the Lands holden of other Lords and part of the capite Lands to the Father for life the remainder to the Son in tail the remainder to the right heirs of the Grandfather And the residue of the capite Lands to four younger Sons successively for life the remainer to the right Heirs of the Grandfather the Grandfather dies the Father tenders his livery and dies before livery sued or office found the Son being of full age and all this is found by office and the Son continues the livery the four younger Sons being still in life In this Case albeit by the death of the father before livery sued the King hath lost the priviledge of having primer seisin after the death of the Grandfather as it was adjudged in Northcots case and in Hales case in the 8 Rep. c. for here the Son shall not sue livery nor pay primer seisin because they were due by the Father after the death of the Grandfather and the Son living the Father is not within the Statutes of 32 34 H. 8. for the Lands conveyed unto him Neverthelesse in the same Case the King shall have primer seisin for the Lands conveyed to the younger Sons because they are within the thrée Cases in which wardship and primer seisin are given unto the King by the said Acts viz. Advancement of his wife preferment of his children and payment of his debts And the reason hereof is because when the said Acts give unto the King primer seisin it is intended of an actual and effectual primer seisin and not of one which is onely Mathematical and Imaginary for as before is said the King ought alwayes to have a full and compleat effect of the thing which is due unto him So also if the King hath title to present by lapse hâc vice and he present and his Clerk is admitted and instituted but dies before induction In this Case the King shall present again for he had not the full and compleat effect of his presentation as it was resolved by Sir James Dyer rotam Curiam in Gyles his Case 18 Eliz. in Co. Ba. Likewise if the King marry a daughter Marriage again which he hath inward infra annos nubiles and before the age of consent the Baron dies the King shall have the marriage of the Heir again because the first marriage was not compleat as it was resolved in Ambrosia Gores case in the 6 Rep. fol. 22. King donor not barred And the King donor in tail before the Statute of West 2. de donis c. was not barred by the alienation of the Donée post prolem suscitatam without Assets albeit there were collateral warranty Howbeit in all these Cases a common person shall be barred c. Co. l. 10. 113. b 1. in Legats Case 59 When the King grants any thing upon a false insinuation Grant upon false suggestions void or suggestion such a grant of the Kings is void for in that Case there is a diversity betwéen the King a common person For a Subject that may intend his private affairs shall not in such Case avoid his Grant but the King who intends the Publique good shall avoid
and the six moneths passe and after the Kings tenant dies before the Bishop presents by laps and leaves his heir within age and in ward to the King In this case the Bishop shall not present by laps but the King shall have the presentment by reason of the ward c. F. N. B. 35. p. 75 In a Quare Impedit for the King Not stopt albeit the Defendant hath a writ to the Bishop against the King yet the King may sue a new Quare Impedit against the party of the same avoidance and make another title F. N. B. 37. f. 76 The King may sue a Ne admittas after the six moneths past Ne admittas where he hath a Quare Impedit or an Assise de Darrein presentment depending because Nullum tempus occurrit Regiâ— It is otherwise in the Case of a common person because the Bishop may then present by laps the title of presentment being devolved to him c. F. N. B. 38. e. 77 In a Quare Impedit betwéen two strangers The Kings title if the title appears to the Court for the King they award a writ to the Bishop for the King accordingly F. N. B. 60. i. 78 Vpon grant of a Reversion Wast Attornment although it be by fine the Grantée cannot bring an Action of wast against the tenant before Attornment but if the King grant a Reversion by his Letters Patents the Grantée may have an Action of waste before Attornment F. N. B. 85. a. 79 At the Common Law every man may go out of the Realm for Merchandizing Peregrination Ne exeâ—s regâ— absque lier 〈◊〉 Regis or other Cause whatsoever pleased him without the Kings licence and he was not to be punished for it Howbeit because every man is by Law bound to defend the King and his Realm therefore the King at his pleasure may by his Writ de securitate invenienda quòd se non divertat ad partes exteras sine licentia Regis command that he shall not go out of the Realm without his licence c. And if he doth it he may be punished for dis-obeying the Kings Command And it séems that this Commandement may be made by the Kings Writ under the Great Seal Privy Seal or Privy Signet For in this Case the Subject is bound to take notice of every Seal the King hath as well as of the Great Seal F. N. B. ibid. c. The King may do the like by his Proclamation in Case he cannot be found to have the Writ served upon him which if he obey not it is a contempt for which he shall make fine to the King Note that by the Statute of 5 R. 2. cap. 2. it was ordained that none should go out of the Realm without the Kings licence which continued in force until 4 Jac. and then by the Statute of 4 Jac. cap. 1. that Clause of that Statute was repealed So that at this day it séems that the Subject hath the same liberty that he had at the Common Law Dier 296. 19. yet by the words in the beginning of the writ which are these Rex A. de B salut c. Quia datum est nobis intelligi quod tu versus partes exteras absque licentia nostra clà m destinas te divertere It séems he cannot go out of the Realm unlicensed by the King c. As Dyer observes 165. p. 6. Ideo quaere de hoc Protection 80 If after the King hath granted to one his protection F. N. B. 92. b. c. any man takes his Goods or enters into his Lands c. or beats his Servants c. the partie grieved shall have a special writ directed to the Seriffe to inquire of them and to certifie it before the King c. And it séemes that the King shall make processe against them by venire facias as upon an Indictment and that they shall make fine hereupon Sea-banks Sâ—wers 81 The King ought of Right to have and defend his Realme as well against the brâ—akings in of the Sea F. N. B. 133. a. as against enemies that it be not drowned or wasted and to provide remedy for it And also to provide that his subjects have their passages throughout the Realme by Bridges and safe Wayes And therefore if the Sea-bankes be broken or Sewers and Gutters be not scoured that the fresh waters may have their direct Course the King may and ought to make a Commission to inquire thereof c. And to hear and determine those defaults But now matters that concerne Sewers are regulated by direct late Statute viz. 23 H. 8. 5. 13 El. 9. c. Priority Wardship 82 If a Man hold of the King by Posteriority F. N. B. 142. f. and of another man by priority and after the King grants to the Quéen the Seigniory for terme of life and after the Tenant dies his heire within age In this Case the Quéen shall have the wardship of the body having no regard to the Posteriority Because the Reversion of the Seigniory remaines still in the King It had béen otherwise if the King had granted it in remainder to another in Fée for then it seemes they should not have had the priority c. Annuity 83 If the King grant an Annuity to one for terme of life or yeares F. N. B. 152. k. it ought to be expressed in the grant by whose hands he shall receive that Annuity as to say by the hands of the Sheriffe of S. or by our Baylife of the Mannor of S. and then the Sheriffe or Baylife shall have allowance upon that Patent shewing if he pay it And if there be not such words in the grant of the Annuity then the grant is void For he cannot sue to the King for it and no person is bound to pay it unto him if he be not named and expressed in the Patent c. â—yde â—â—ayer Procedendo 84 If a Man pray in Ayde of the King F. N. B. 253. e. f. and the Ayde is granted then shall it be awarded that he shall sue to the King in the Chancery And the Iustices of the Common Pleas shall cease until a Writ De procedendo in loquela come unto them c. And then they may procéed in the Plea until it go on so farre that Iudgement ought to be given c. For the Plaintiffe And then also the Iudges ought not to procéed to Iudgement until another Writ De procedendo ad judicium be brought unto them And if the King certifie the Iustices by his writ that the Lands are seised into the Kings hands then also shall they surcease until a writ De procedendo loquela be sent into them c. And if it appeare to the Iustices upon Record that the Tenements are seised into the Kings hands or if it appeare to the Court by the pleading and shewing of the Parties that the
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
the warranty did bar him for ever c. 23 Albeit Laches of a man non compos mentis may prejudice him for his entry as if he be disseised Co. l. 4. 125. a. 4. in Beverleys Case and a discent is cast Fine in this case he cannot enter yet it shall not prejudice his right as if a man non compos mentis were disseised and the disseisor had levied a Fine in this Case at the Common Law although the year and day had passed yet he that was non compos mentis was not bound thereby but that he might well enter And this is proved by the Statute de modo levandi Fines made Anno 18. E. 1. which was nothing else but a Declaration of the Common Law There is the same Law of an Infant one in prison or not within the four Seas or of a woman not duly examined for in all these Cases a Fine was not binding at the Common Law although claim was not made within a year and a day as appears by the same Statute c. There is also the like exception of such persons in the later Statute of Fines with Proclamations made 4 H. 7. cap. 24. which proves that the Law-makers had in all Ages a special care to provide for persons that had such defects and imperfections c. Ideots King Tutor 24 In Case of Ideots or fools natural Co. l. 4. 1â—6 a 2. in Beverleys Case because as Bracton saith Non multum distant à brutis qui ratione carent the Law of England as well as the Law Civil hath provided a Tutor for them viz. the King and hath made provision for the preservation both of their Inheritance and also of their goods as appears by Britton fol. 16. and likewise by Prerogativa Regis cap. 9. made 17 E. 2. which was nothing else but a Declaration of the Common Law And albeit that Statute onely saith Quòd Rex habebit custodiam terrarum fatuorum naturalium c. yet the King shall have as well the custody of their bodies and goods as of their lands and also of all other hereditaments as well those which they have by purchase as others which they have by inheritance at the Common Law c. And the reason of this is because as Fitz. N. B. saith 232. the King is bound of right by his Laws to defend his Subjects their Goods and Chattels Lands and Tenements And therefore every Subject being by the Law in the Kings protection an Ideot who cannot defend or govern himself nor order his Estate ought of right to have both his person and estate protected and ordered by the King c. Executor 25 If an Infant be an Executor Co. l. 5. 27. b. 2 in Russels case a Release or Acquittance made by him binds him not unlesse it be in the due pursuit of his Office of Executorship and for so much onely as he really receives Executor 26 An Administrator durante minore aetate cannot sell any of the goods of the dead if it be not of necessity for the payment of debts Co l. 5. 29. b. 3. in Princes case or bona peritura for he hath his Office of Administration pro bono commodo of the Infant and not for his prejudice Also such an Administrator cannot assent to any legacy unlesse there be Assets to pay debts c. and generally he can do nothing to the prejudice of the Infant for the words of the letters of Administration are Administrationem omnium singulorum bonorum ad opus commodum utilitatem executoris durante sua minore aetâ—te non alitèr nec alio modo committimus c. 27 Generally in all Actions real Co. l. 6. 3. b. 1. in Markals Case which the Infant brings of his own possession Pâ—â— Iâ—fancie â—â—tolne deâ—â—r albeit he hath the land by descent and that the tenant plead the déed or warranty of his Ancestor the parol shall not stay for his non-age For by presumption of Law the granting of delay is in favour and for the benefit of the Infant lest by default of good understanding of his estate and of the truth of the matter he might be prejudiced of his right which descends unto him from his Ancestor And therefore in such case the Law will rather suffer a delay then hazard the right of thâ— land the possession whereof his Ancestor hath by negligence or otherwise lost But when the Ancestor dies seised and the land doth descend unto the Infant and he enters and takes the Explees and profits In this Case it will he a prejudice to the Infant if he should lose the possession which he had and shall be thereof delayed until his full age It is otherwise when onely a naked right descends unto him for then he can suffer no such prejudice but rather may run a hazard c. And with this agrées 12 E. 4. 17. in a writ of Entry sur disseisin of a disseisin made to the Infant himself And 41 E. 3. tit Age 39 in a VVrit of Right of a deforcement done to the Infant himself of land which he had by descent So likewise in Escheat and Cessavit and a writ of Right sur disclaimer brought by an Infant because he hath the Seigniory in possession which by Escheat Cesser or Disclaimer he might lose and in that Case also his Ancestor had no right to the land and therefore the Parol shall not stay for his non-age In like manner in a writ of Mesne brought by an Infant because the cause of Action and the wrong begins in the time of the Infant himself the Parol shall not stay c. 21 E. 3. Age 85. Temp. E. 1. Age 119. 7 E. 2. Age 140. Also in a Formedon in remainder albeit the Infant demands Fee-simple yet because his Ancestor whose Heir he is was never in seisin nor took explees and therefore in such Case he shall alledge explees onely in the particular tenant who had the estate upon which the remainer depended for this cause the tenant without plee cannot pray that the Parol may stay in as much as the remainder was never in the possession of any of his Ancestors and the Demandant himself is the first in whom it will vest and that shall have seisin of the land in demand c. It is otherwise in a Form in reverter causa qua suprà Co. l. 6. 8. b. 1 in Ferrers case 28 At the Common Law before the Statute of West 2. cap. 4. if one had suffered a recovery in any real Action against him by default if he were lawfully summoned Recovery by default and that there were no errour in the procéeding he had not any remedy but by writ of Right Howbeit the Law was otherwise in case of an Infant for he was therein excused by reason of his tendernesse of age and want of understanding Co. l. 7. 7. b. 4. in the Earl of
he was a Lay-man and knew not letters and he acknowledged himselfe to be bound to the Plaintife by the said déed in 20 shillings which he hath paid and thereof sheweth an acquitance and as to the residue of the summe in the said Obligation nient son fait And in this Case for as much as the déed consisted upon an intire summe it was adjudged void for all The same is also agréed in 14 H. 8. 26. 30 E. 3. 31. Fee taile read for fee-simple 8 In 30 E. 3. casu ultimo in an Assise before Sheriffe and others in pais Co. lib. 11. 27. b. 3. in Hear Pigots Case the Tenant pleads feoffement of the Plaintifs to him by déed of the Land in plea to have and hold to him and his Heires comprehending a letter of Attorney to deliver seisin c. And in truth the Plaintiffe was a Lay-man ignorant of Letters and the déed with the letter of Attorney was read unto him according to the forme of an Estate taile and for the same intent he sealed and delivered the déed with the letter of Attorney in it to deliver seisin And in this Case the feoffment was adjudged void and the letter of Attorney also albeit it were truly read because it depended upon the feoffment and had relation to the Estate in fée Incidents to a deed And there Thorpe Iustice said that every déed ought to have writing sealing and delivery and when any thing passed from such as have no understanding but by hearing onely there ought also to be reading added to the other three And indéed he that is not lettered is reputed in Law as one that cannot sée but onely heare Blind and all his understanding is by hearing So likewise a man that is learned but cannot sée as to purpose taken in Law as a man not lettered And therefore if a man be learned but blind if the déed be read unto him in another manner c. he shall avoid the déed because all his understanding in such Case is by his hearing as it was resolved in Shuters Case in the Starre-chamber M. 9 Jac. who was a man of 115 yeares of age at the time of his death Vide John Pinchons Case in 37 E. 3. 3. cited in Cooke ubi supra Vide 63. 35. 85 The Law favoureth Strangers that are neither parties nor privies â—ord Tenant â—eofment â—pon Condiâ—â—on 1 Lord and Tenant and the Tenant maketh a feofment in Fée upon Condition the Feoffor dyeth Co. Inst p. 1. 76. b. 1. after his death the Condition is broken and the Heire within age entreth for the Condition broken In this Case albeit the Feoffor had no Estate or right in the Land at the time of his death but onely a Condition and which was broken after his decease yet the Heire shall be in ward for the Lord was neither partie nor privy to the Conditional feoffment and therefore there could be no default in the Lord to barre him of his wardship Mannor â—ondition â—dvowson â—pendant 2 A man seised of Land whereunto Condition is appendant Co. ibid. 122. b. 1. is disseised In this Case the disseisée cannot use the Condition until he entreth into the Land whereunto it is appendant But if a man be disseised of a mannor whereunto an advowson is appendant he may present unto the Advowson before he enters into the Mannor And the reason of this diversity is because in the Case of the Condition it should be a prejudice to the Tenant of the soile for if the disseisée might put on his cattle the disseisor might do so too which would be a double charge to the Tenant It is otherwise of an Advowson c. Co. ibid. 132 b 2. 3 Profession or entring into Religion is a Civil death so that his heire shall inherit howbeit Profession Tolleth not entry this shall work no prejudice or wrong to a stranger that hath a former right And therefore if the disseisor entreth into Religion and is professed so as the Land descends to his heire yet this descent shall not toll the entry of the disseisée c. Co. ibid. 148 b. 3 4 If there be Lord and Tenant of 40 acres of Land by fealty and 20 shillings Rent if the Tenant maketh a gift in tail Rent suspended in all or a lease for life or yeares of parcel thereof to the Lord in this Case the Rent shall not be apportioned in any part but the rent shall be suspended for the whole for a Rent-service saith Litt. § 222 may be extinct for part and apportioned for the rest but regularily it cannot be suspended in part by the Act of the partie and in esse for another part So it is also if the Lessor enter upon the Lessée for life or yeares into part and thereof disseise or put out the Lessée the Rent is suspended in the whole In parts Howbeit a Seigniory may be suspended in part by the Act of a stranger As if two joynt-tenants or coperceners be of a Seigniory and one of them disseise the Tenant of the Land the other joynt-tenant or copercener shall distraine for his or her moity for it is no reason that they being strangers should suffer any prejudice by the Act of another c. Litt. §. 222 Co. ibid. 149 b. 4 5 If a man hath a Rent charge to him and his heires Rent-charge not extinct to a stranger issuing out of certain Land if he purchase any parcel thereof to him and his heirs all that rent-charge is extinct so as the unity of possession of parcel of the Land and of the Rent by the Act of the party extinguisheth the whole Rent Howbeit if the grantée of a Rent-charge grant the Rent to the Tenanâ— of the Land and to a stranger In this Case the Rent shall not be totally extinct but onely for the moity c. Co. ibid. 208 b. 3. Co. l. 2. 75. b. 3. Lord Cromwels Case Co. ib. 128. a. 3 Co. lib 6. 31. a. Bothies Case 6 As concerning a Condition of an Obligation Condition Stranger Feoffee Obligee and upon a Feofment there is a diversity where the Act that is local is to be done to a stranger and where to the obligée or feoffor himselfe As if one make a feofment in Fée upon Condition that the Feoffée shall enfeoffe a stranger and no time limited the feoffée shall not have time during his life to make the feofment for then he should take the profits in the interim to his owne use which the stranger ought to have And therefore in that Case Co. ibid. 218 b. 4. he ought to make the feofment as soon as conveniently he may And so it is likewise of the Condition of an Obligation It is otherwise when the Condition is that the feoffée shall re-enfeoffe the Feoffor for there the Feoffe hath time during his life unlesse he be hastned
Case if the Donée enfeoffe the Donor that is a dis-continuance because so there is a mean Estate that otherwise would suffer wrong and yet would be remedilesse there is the same Law also where the Donée enfeoffes the Donor and a stranger c. for that is also a discontinuance of the whole Land c. â—eme not ouâ—ed 3 If a Feme covert be tenant for life Co. ib. 335. a. 4 and the husband make a feofment in fée and the Lessor enter for the forfeiture this shall not out the woman from her just right for here albeit the reversion was revested yet the dis-continuance did still remain at the Common Law Co. ibid. 369. b. 2 4 If there be tenant for life Statute of 〈◊〉 H. 8. 9. Pretenced rights the remainder in fée by lawful and just title he in the remainder may obtain and get the pretenced right or title of any stranger and shall not thereby incur the penalty of the Statute of 32 H. 8. cap. 9. not onely for that the particular Estate and remainder are all one or that it is a mean to extinguish the séeds of troubles and suits but likewise because by the doing thereof there can happen no prejudice to any stranger Howbeit if a disseisor make a Lease for life lives or years the remainder for life in tail or in fée he in remainder cannot take a promise or covenant that when the Disseisée hath entred upon the Land or recovered the same that then he should convey the Land to any of them in remainder thereby to avoid the particular estate or the interest or estate of any other For the words of the Proviso be buy obtain get or have by any reasonable way or mean and that is not by promise or covenant to convey the land after entry or recovery because that is neither lawful being against the expresse purview of the body of the Act neither yet reasonable because it is to the prejudice of a third person Co ibid. 393 a. 2 5 If one man enfeoffe two with warranty Warranty and the one releaseth the warranty yet the other shall vouch for his moity Co. ibid. 298. a. 2. 6 If a Lease be made to an infant for life the remainder in fée Infant the infant at his full age dis-agrées to the Estate for life yet the remainder good for that it was once vested by gooo title and it is no reason that the practice betwixt the Feoffor and the Infant should prejudice him in remainder who is a stranger c. Litt. §. 636. Co. ib. 338. a. 6 7 If a Feme inheritrix take Baron and have issue a son Feme Inheritrix and the Baron die and she takes another Baron and the second Baron lets the land which he hath in right of his wife to another for term of life and after the Feme dies and after the tenant for term of life surrenders his Estate to the second Baron c. In this Case the son of the Feme may immediately enter which he could not have done if the tenant for life had not surrendred And therefore here Res inter alios acta liberis prodest c. Co. lib. 6. 1. b. Bruâ—rtons case 8 When the tenant holds by an intire service Intire Service as by the payment of an horse or an hawk c. yearly In that Case if the Lord purchase any part of the Land the whole service is extinct but if the tenant alien the Land in parcels to several men that shall give the Lord who is a stranger an advantage and benefit so that every one of the Alienées shall pay an horse hawk or the like For Res inter alios actae nemini nocere debent sed prodesse possent c. Co. lib. 2. 67. a 4. in Tookers Case 9 If the reversion of two tenants for life Attornment or the Rent or Seigniory of two joynt-tenants be granted by fine In a Quid juris clamat quem redditum reddit or a Per quae servitia against such joynt-tenants the one shall not be permitted to attorn without his companion because if the one attorn alone he may prejudice his companion as if he will not claim to be dis-punished of waste or condition to have fée or a future term c. for upon general attornment in Court of Record the Lessée shall lose all advantages which are not claimed upon Record because this question is demanded of him Quid juris clamat c. And therefore he shall have no more then he claims upon Record And for this cause one of the joynt-tenants alone by himself shall not be permitted to attorn upon Record in regard of the manifest prejudice which might happen to his companion in case it should be attornment of both c. Co. lib. 3. 29. a 3. in Butler and Bakers Case 10 It is said that as relations shall extend onely to the same thing Relation and to the same intent so shall they also onely extend betwéen the same parties and shall never be strained to the prejudice of a third person who is neither party nor privy to the said Act And therefore if a man make a feoffment of a Mannor by Déed or without déed and a long time after the livery the tenants attorn to the Feoffée In this Case the attornment by necessity and ut res magis valeat shall have relation by fiction of Law to passe the services ab initio yet this relation shall not charge the tenants for the arrerages in the mean time So if Feoffée upon condition grant a Rent-charge of the land and after the Grantée brings a writ of Annuity here ab initio this was an Annuity betwéen the Grantor the Grantée but as to the feoffor who is a stranger and is entituled to enter for the Condition broken it shall have no relation to his prejudice Likewise in 30 E. 3. 17. in a Dum fuit infra aetatem against Richard Spellow the tenant saith that his father was seised and died seised and so prayeth his age the Demandant counterpleads the age because the tenant and his father were joyntly enfeoffed and to the heirs of the father And it was adjudged that the tenant should not have his age for albeit this refusal of taking the land by purchase shall have relation as to himself yet as to the Demandant who is a stranger it shall not have relation to delay his Action when in truth the tenant had the frank-tenement by purchase Devise of the third part descended 11 W. B. and his wife were seised in tail of the Mannor of Hinton Co. l. 3. 29. b. 2 in Butler and Bakers Case for the Ioynture of the wife holden in Capite and W. B. was also seised of land in Fobbing which Mannor and Lands did amount to a full third part of all his lands he was likewise seised of the Mannor of Thoby
in Capite which amounted to the other two parts VV. B. devâ—seth Thoby to his wife upon condition that she should take no former Iâ—ynture and dies the Feme in pais refuseth the Mannor of H. Here the question was whether the will was good for the whole Mannor of Th. or but for a part by the 32 34 H. 8. And it was adjudged that this refusal shall have onely relation as to the Mannor of H. and not to the Mannor of Th. and to the intent onely that the Feme should not be prejudiced by any thing concerning the Mannor of Hinton Howbeit that relation shall not prejudice the heir which is a third person and upon whom by the death of the devisor part of the Mannor of Thoby descended c. Mesnalty â—ent-seck â—eisin 12 If a â—esnalty become rent-seck by surplussage Co. l. 4 9. a. 4. in Bevils case as if the tenant holds of the Mesne by two shillings and the Mesne holds over of the Lord by 12 d. and the Lord purchase the tenancy In this Case the ancient seisin of the intire rent of 2 s. is sufficient for the surplussage being now changed to a rent-seck of 12 d. because the Mesnalty is extinct by the Act of the Lord and of the tenant peravail and the nature of the rent of the Mesne is not changed by his own Act but by the Act of others And therefore albeit the rent is become seck yet the Mesne shall distrain for it c. as it is said in 2 E. 2. tit Extinguishment 6. â—opihold surâ—â—nd before â—â—mit 13 The heir of a Copihold tenant may surrender to the use of another before admittance as any other Copiholder may Co. l. 4. 24. b. 1 in Browns ca. and fol. 23. a. Fitches Case but this shall not prejudice the Lord of his Fine due unto him by the custome of the Mannor upon the descent So admittance of a Copihold tenant for life is an admittance of him in remainder to vest the Estate in him Howbeit that shall not bar the Lord of his Fine which he ought to have by Custome c. â—â—pihold â—ease â—eisor 14 A Release by déed and not by way of surrender made by one Co. l. 4. 25. b. 3 in Kite and Queintons case that hath right to a Copihold to one that is in possession thereof by lawful admittance shall be effectual to extinguish that right and to establish the possession of the party so admitted because in such Case the Lord cannot suffer prejudice for that he hath his Fine but if a Copiholder be outed by wrong there his release by déed to the disseisor or any other wrong-doer shall not transferre his right nor any way bar him thereof because that would tend to the prejudice of the Lord being a third person for so the Lord might lose his Fine and services c. And therefore a release by déed in such Case is utterly void c. Co. lib. 4. 24. b. in Marrels Case 15 If the Lord of a Copi-hold Mannor Alien the Inheritance of one of the Copi-holds to another Copi-hold severed from the Mannor that shall not alter the nature of the Copi-hold but that it shall still retaine the quality of Copihold land to descend to the next heire c. for Custome having once established and fixed that Estate it cannot be changed by the Act of the Lord neither yet is it reason that the Act of the Lord and the alienée should in that Case prejudice the Copi-holder who is a stranger Howbeit such a Copi-hold after such severance of it from the Mannor can never afterwards be conveyed by surrender or otherwise but must still be left to descend c. Co. lib. 4. 118. a. 3. in Actons Case 16 If a Baronesse in her Widdow-hood retain a Chaplein according to the Statute of 21 H. 8. c. 13. and after marry a Péere of the Realme Retainer of a Chaplain Albeit this séemes to be casus omissus in that Act yet shall not such mariage be a Countermand of the retainer for Res inter alios acta c. Co. l. 5. 99. b. 4. 17 Tenants at Will Act of tenants or other particular Tenants or occupiers of Land cannot by their Act bind him that hath the Inheritance In Rookes Case Co. l. 6. 12. b. 4. Morriâ—â—s Case 18 It is said that if two joynt-tenants be with warranty Joint-tenants Warranty Severalty and one of them disseiseth the other and the disseisée brings an Assise and upon his prayer hath judgement to recover in severalty In this Case the Warranty is gone For albeit he hath partition by judgement yet he that is bound by the Warranty is neither partie nor privy or any way consenting unto it as he is when the partition is made by force of the Act of Parliament Co. l. 6. 50. b. 2. in Boswels Case 19 It is agréed per totam Curiam in 50 E. 3. 14. Presentment by terme Guardian b. that if Tenant for yeares or Guardian bring a Quare Impedit and the Defendant hath a Writ to the Bishop against the termor or Guardian and his presentée is admitted instituted and inducted yet the Tenant of the Franktenement is not put thereby out of possession c. Co. l. 6. 51. b. 4. in Boswels Case 20 No imcumbent shall be removed upon the Statute of West 2. In Quare Iâ—pedit the Iâ—cumbent 〈◊〉 cap. 2. by Quare Impedit or Assise de darrien presentment purchased within the six moneths unlesse the incumbent be named in the writ quia res inter alios acta alteri nocere non debet Although the incumbeâ—t be in by defeasible title And with his accords 9. H. 6. 32. For quicunque aliquid statuerit parte inaudita altera aequum licet statuerit haud equus fuerit Co. lib. 6. 57. Bredimans Case 21 A man deviseth rent for life out of the Mannor of D. and deviseth the mannor for yeares to another Rent paid bâ— the Lessee 〈◊〉 prejudice to the terre-teâ— the termor enters and pays the Rent afâ—er the terme ended the devisée of the Rent brings an Assise against the Terre-tenant And it was adjudged that the payment of the Rent by the Tenant for yeares was not sufficient seisin to bind the Terre-tenant after the term determiâ—ed For there is a diversity betwéen receiving and giving of seisin because it is true that he which hath but a term for yeares may take seisin to the benefit of him that hath the Frank-tenement In 45 E. 3. 26. The grantée for yeares of a Common useth it this gives seisin to him in Reversion 22 Ass 84. accord 11 E. 3. Assise 86. payment to the grantée for yeares of a Rent is sufficient seisin for him in Reversion in M. 39 40. El. the Countesse of Northumberlands Case in the 5. Rep. fol. 97. b. Presentment by the grantée for yeares of
Quare vi armis and since that by sundry Statutes in divers other Actions viz. in Accompt debt detinue annuity Covenant Action upon the Statute of 5 R. 2. Action upon the Case c. Co. ibid. 201. b. 2 4 Villenage is such an exception in any plea brought by the Villein against the Lord that it shall make the writ abate Dis-ability persons so that he shall not have a resummons or Re-attachment as in Case of the Excommunication c. Co. ibid. 158. a. 1. 5 If a man be out-lawed in Trespass debt No Juror or any other Action he is thereby disabled to serve of a Iury for that is a principal Challenge to the Poll viz. propter delictum because he is Exlex and therefore is not legalis homo Co. ibid. 132. b. 4. 6 A man exiled or banished beyond Sea viz. by authority of Parliament Exiled Abjured Dead The Feme may sue or in Case of abjuration upon an Ordinary procéeding of Law is in the nature of a dead man in Law And therefore in such Case his Wife may sue or be sued without him as in Case when a man enters in Religion and is profest a Monk c. Thus it was in the Case of the Wife of Sir Robert Belknap 2 H. 4. 7. a. one of the Iustices of the Court of Common Pleas for during his banishment being yet alive she brought a writ in her owne name whereupon one said Ecce modò mirum quòd foemina fert breve Regis Non nominando virum conjunctim robore Legis So likewise E. 3. 10 E. 3. 53. 1 H. 4. 1. b. Pl. in Parl. 19 E. 1. brought a Quare Impedit against the Lady Maltravers and after that H. 4. brought a writ of Ward against Sibill B. during the exile of her Husband The like was also adjudged at the Parliament holden in Crastinum Epiphanum Ann. 19 E. 1. in the Case of Margery de Mose Wife of Th. of Weyland being the yeare before abjured the Realme for felony c. Howbeit if the Husband by Act of Parliament have judgement to be exiled but for a time which some call a Relegation that is no civil death but abjuration in 8 E. 2. Coron 425. is called a divorce betwéen the Husband and the Wife And therefore in that Case the Wife may sue and be sued c. Co. ib. 2. a. 4. Co. l. 7. 17. a. 2. in Calvins Case 25. a. 4. Calv. Case 7 If an Alien Christian or Infidel purchases houses lands Aliens purchase is the Kings tenements or hereditaments to him and his heires albeit he can have no heires yet he is of capacity to take a fée-simple but not to hold for upon an Office found the King shall have them by his prerogative of whomsoever the land is holden and in that Case the Lord shall lose his Seigniory So it is also if he purchase land and die for in that likewise the Law casteth the fréehold and inheritance upon the King If an Alien purchase any Estate of frée-hold in lands c. upon Office found the King shall have them If an Alien be made denizen and purchase lands and die without issue the Lord of the fée shall have the escheate and not the King If an Alien purchase a lease for yeares upon Office found the King shall have it unlesse it be of an house for habitation to the end he may use Merchandize and Commerce Howbeit such an house also if he return home and leave or die the King shall have it and not his Executors c. â—ne born out 〈◊〉 the Kings â—geance 8 A man seised of land in fée hath issue an Alien Co. ib. 8. a. 1. that is borne out of the Kings Ligeance he cannot be heire propter defectum subjectionis albeit he is borne within lawfull marriage And if he be made Denizen by the Kings letters patents yet cannot he inherit to his father or any other But it is otherwise if he be naturalized by Act of Parliament for he is not then accounted in law Alienigena but Indigena â—ue not inâ—â—ritable 9 When an Alien is made Denizen the issue Co. ib. Co. l. 7. 7. a. 4. in Calvins Casâ— 36 H. 8. dâ—nizen Br. 9 that he hath afterwards shall be heire to him but no issue that he had before So likewise if an Alien commeth into England and hath issue two Sonnes these two Sonnes are Indigenae subjects borne because they are borne within the Realme and yet if one of them purchase lands in Fée and dieth without issue his Brother shall not be his heire for there was never any Inheritable bloud betwéen the Father and them and where the Sonnes by no possibility can be heires to the Father the one of them shall not be heire to another Co. ibid. 129. a. 3. It is otherwise of naturalization by Act of Parliament for if the Father he naturalized by Parliament the Issue had before c. shall Inherit So if an Issue of an English-man be borne beyond Sea and the Issue be naturalized by Parliament he shall Inherit his Fathers Land but so he shall not although made Denizen because no Alien naturalized by Act of Parliament is to all intents and purposes as a naturall borne subject but so is not a Denizen Dower â—enant by Courtesie 10 If a man be seised af an Estate of frée-hold and inheritance in lands c. and take an Alien to Wife and dieth Co. ib. 31. b. 4. Co. l. 7. 25. a. 4. Calv. Case she shall not be endowed neither shall the Baron be Tenant by the courtesie Howbeit it is otherwise in the Kings Case c. And Edmond the Brother of E. 1. married the Quéen of Navarre and died And it was resolved by all the Iudges that she should be endowed of the third part of all the lands whereof her husband was seised fée â—is-ability of â—ing 11 It is a good plea in dis-ability of the person Litt. §. 189. Co. ib. 129. b. 1. Co. l. 7. 16. a. 4. in Calv. Case Co. ib. 17. a. 3. Calv. Case that the Demandant or Plaintiffe is an Alien vee and this exception holds good in all Actions both reall and personal against an Alien enemy but not absolutely against other Aliens for the Law doth distinguish betwéen an Alien that is a subject to one who is an enemy to the King and one that is subject to one who is in league with the King And true it is that an Alien Enemy shall maintaine neither Reall nor Personal Action Donec terrae fuerint communes viz. till both Nations be in peace But an Alien that is in league shall maintain personal Actions For such an Alien may trade and traficke buy and sell And then of necessity he must be of ability to have personal Actions but he cannot maintaine either reall or mixt actions So also an
intailed within the said Statute for that they be not issuing out of Tenements nor annexed to nor exercisable within or concerning Lands or Tenements of Fréehold or Inheritance but concerning Chattels and savour nothing of the realty So it is likewise if I by my Déed for me and my Heires grant an Annuity to a man and the Heires of his body because this onely chargeth my Person and concerneth no Land nor laboureth of the Realty Baron Feme Chattels real and personal 5 If a Feme sole be possessed of an Estate for years Co. Inst p. 1. 351. 185. b. 3. 299. b. 4. and 46. b. 2. or by Statute Merchant Statute Staple or Elegit or of a wardship or other chattels real and taketh Baron the Baron is thereof possessed in her right onely And albeit during the Coverture he may dispose of such an Estate by Grant Demise c. or upon Out-lawry Attainder c. may forfeit it or may subject it to be sold by the Sheriff upon an execution for his Debt and in Case he survive the Feme shall then have a clear interest in it yet he cannot dispose of such an Estate by Will and if she survive him no disposition or forfeiture being thereof made as aforesaid she shall have it and not his executors or administrators because these Estates and Interests savour of the realty and therefore the Feme being thereof once possest her interest cannot be by the Inter-marriage so easily removed as if they were Chattels personal There is the same Law also of Chattels real which being of a mixt nature viz. partly in possession and partly in action happen during the Coverture As if the husband be seised of a rent-service charge or seck in the right of his wife the rent becomes due during the Coverture the wife dieth the husband shall have the arrerages but if the wife survive the husband she shall have them and not the executors of the husband So it is also of an Advowson if the Church become void during the Coverture he may have a Quare Impedit in his own name as some hold but his wife shall have it if she survive him and the husband if he survive her Et sic de similibus But as concerning Chattels personal the inter-marriage is an absolute gift of such goods which she hath in possession and in her own right whether the husband survive the wife or no so that he may at his pleasure dispose of them either by act execute in his life or by will and albeit he make no such disposition of them and die living the wife yet his Executors or Administrators shall have them and not the wife c. Howbeit if they be in action as Debts by Obligation c. the husband shall not have them unlesse recovered during the Coverture neither yet shall he have such goods as the wife hath in auter droit as Executrix or Administratrix c Vide R. 55. ex 129. â—enants in â—â—mmon â—hattels 6 If one Tenant in Common of Chattels take any Chattels real Co. ib. 200. a. z which are not of an intire nature from his companion the other may have his remedy to recover them by Action but if one of them take all the personal goods from the other he hath no remedy by Action or otherwise save onely to take them again by Catch-pole Law And so it is also of intire Chattels real as a Ship Horse Hawk or the like but that is in respect of the Intirenesse and inseverablenesse of their nature c. for which sée R. 70. ex 25. â—reehold or â—â—heritance 〈◊〉 reassumed â—e collateral â—â—sfaction 7 It is said in our Books that Accord with satisfaction is a good plea in personal actions where damages onely are to be recovered Co. l. 4. 1. a. 4 in Vernons case but not in real Actions For a right or title to any Estate of Inheritance or Fréehold cannot be barred by acceptance of any collateral satisfaction or recompence As if A. disseise B. tenant for life or in Fée of the Mannor of Dale after A. gives the Mannor of Sale to B. and his Heires in full satisfaction of all his rights and actions which he hath in or for the Mannor of Dale and B. accepts thereof Neverthelesse B. may enter into the Mannor of Dale or recover it in any real action it is otherwise of things in the personalty Dier 2. 8. 6 H. 8. 8 In real Actions to plead Alien Actions that the Plaintiff is an Alien is a good bar because an Alien can have no land within the Realm but such a Plea in personal Actions is no bar because an Alien may bring personal Actions unlesse he be an Alien Enemy Co. l. 6. 7. a. in Ferrers Case 9 Betwixt real and personal Actions there is a diversity Bar in personal actions binde not so in real for in personal Actions as in Debt Account c. the bar is perpetual because in such Cases a man shall not have an Action of a higher nature But in a real Action if the Demandant be barred by judgment upon Verdict Demurrer Confession c. yet he may have an Action of a higher nature and shall try the same right again because it concerns his Frank-tenement and Inheritance So if a man be barred in Assise of Novel disseisin yet upon shewing a descent or other special matter he may have an Assise of Mortdancestor Aiel Besaiel c. Vide infrà 1. 78 14. Litt. §. 146. Co. Inst p. 1. 103. a. 2. 10 An Abbot Prior Bishop Successor of an Abbot c. bouâ—d or other sole Corporation cannot dis-claim or devest any thing of Fée which is vested in their houses or other spiritual Corporations to the prejudice of the Successor Howbeit if an Abbot or Bishop c. acknowledge the Action in a writ of Annuity or in an action of Debt upon an Obligation Statute or Recognisance this shall binde the Successor so as he shall not prevent execution thereupon albeit they were granted and made without the consent of the Covent Chapter c. because these things being in the personalty the recovery thereof cannot be falsified in an higher action Et res judicata pro veritate accipitur Vide suprà M. 1. cap. 4. Co. ib. 125. b. 3 11 In a Plea real against divers tenants Pleas real and personal if one tenant plead in barre to parcel or which extendeth onely to him that pleadeth it and the other pleads a Plea which goeth to the whole viz. to both the tenants and which indéed would make an end of the business if it were tried yet those several Pleas shall have several trials as if a praecipe be brought by one as heir to his father against two and one of them pleads a Plea which extendeth but to himself and the other pleads a Plea which extends to both as Bastardie in the Demandant and it
shall be void and after the Lessor grants the Reversion over the condition is broken the Grantée shall take advantage of that Condition by the Common Law for the lease is thereby absolutely void But if a lease for life had béen made upon such Condition the grantée shall not take benefit of the breach of the Condition because a frank-tenant whereof a praecipe lies cannot so easily cease but it is voidable by entry after the Condition broken which cannot by the Common Law be transferred to a stranger c. and with this agrées 11 H. 7. 17. Br. Condit 245. 2. Mar. per Bromley Rule 27. Co. l. 9. 135. a 1 in Ascoughs Case 20 If the Lord grant his Seigniory for yeares Seigniory Attornment Lessee for 〈◊〉 for yeares the remainder to the Tenant peravaile for life in this Case the Seigniory is suspended because the Tenant for life hath the frank-tenement of the Seigniory and he is Tenant to every praecipe of the Seigniory as in the Case of Littleton l. 2. cap. Attornment fol. 128. If land be let to a man for term of yeares the remainder to another for term of life and after the Lessor grants over the reversion and he in the remainder for life attornes this is a good attornment and shall binde the Lessée for yeares without any attornment made by him For he was Tenant of the frank-tenement and at the Common Law the termor for yeares was subject and under the power of the Tenant of the frank-tenement for he shall not falsifie a recovery at the Common Law against the Tenant of of the frank-tenement because he hath but a Chattel c. Co. lib. 10. 48. b. 3. in Lampets Case 21 If Lessée for 1000 yeares be ousted by the Lessor Frank-teâ—â—â— cannot drâ—â—â— in a Chattel and he maketh a lease for 2 yeares to another In this Case the Lessée for 1000 yeares may release to the Lessée for 2 yeares but if the Lessor disseise his Lessée for life and make a lease for 1000 yeares yet the Lessée for life cannot release to that Lessée for yeares because a frank-tenement is too high to be drowned in a Chattel Co. lib. 10. 87. a. 4. in Leonard Loveis Case 22 If a term be devised to one and to the heires males of his body A term shall go to the Eâ—ecutors his heire shall not have it but his Executors for the term which is but a Chattel cannot be entailed and such a devisée may alien the term to whom he pleaseth and so it was adjudged Tr. 28 Eliz. in B. R. in Peacocks Case and 21 Eliz. resolved by Anderson and Walmesly being referred unto them out of the Chancery betwéen Higgins and Milles. Sée also Dier 7. 28 H. 8. Pl. 8. F. N. B. 34. f. 23 If a Man make a devise of lands or Tenements Court Christiaâ— the devisée shall not sue for them in the Ecclesiastical Court and if he do the other party shall have a prohibition Otherwise it is of personal goods and also of Chattels real as a term of yeares a ward c. for for such the devisée may sue in that Court c. Co. l. 3. 26. a. 3. c. in Butler Bakers Case 24 An Estate of Inheritance or frée-hold cannot be put out of a man by any verbal wayver disclaimer or dis-agréement in pais Disclaim in pais of interâ— in goods 〈◊〉 so of frechâ— or otherwise then in Court of Record but a man may disclaime or disagrée to Interest in Chattels in pais and no such dis-agréement in a Court of Record is in that Case necessary For example If Lands be given to Baron and Feme in taile or in sée the Baron dies the Feme in this Case cannot divest the frank-tenement out of her by saying she dis-agrées to the grant or that she will have nothing to do with the land So if the Baron aliens his land and takes again an Estate to him and his wife in taile the Baron dies the Lord of whom the land is holden by Knight-service supposing that the Baron died solely seised by parol assignes dower to the Feme which she accepts yet this refusall of the Inheritance and acceptance of the Dower in pais shall not divest the frank-tenement out of her Likewise if a Charter of feofment be made to four and seisin delivered to three in the name of all and after the seisin delivered the fourth comming and séeing the déed dis-agrées to it and saith he will have nothing to do with the land yet it was adjudged in 13 R. 2. Title Jointenance that this dis-agréement by parol in pais could not divest the frank-tenement out of him And Thorpe in 53 E. 3. Tit. Disclaimer saith that in such Case the tenancy remaines in all until dis-agréement in Court of Record But if A. make an Obligation to B. and deliver it to C. to the use of B. this is the déed of A. presently Howbeit if C. offer it to B. there B. may refuse it in pais and by such refusal the Obligation shall be his force There is the same Law of a gift of goods and Chattels if the déed be delivered to the use of the Donée the goods and Chattels are immediately in the Donée before notice or agréement but the Donée may make refusal of such gift in pais and thereby the property and Interest shall be divested and such dis-agréement is not necessary to be made in a Court of Record as in Case of a frée-hold c. Condition to be void 25 There is a diversity betwéen a Condition annexed to a frée-hold and a Condition annexed to a lease for yeares Co. Inst p. 1. 214. b. 3. for if a man make a gift in taile or a lease for life upon Condition that if the Donée or lessée goeth not to Rome before such a day the gift or lease shall cease or be void the grantée of the Reversion shall never take advantage of this Condition because the Estate cannot cease before an entry but if the lease had béen but for yeares there the grantée should have taken advantage of the like Condition because the lease for yeares ipso facto by the breach of the Condition without entry was void for a lease for yeares may begin without Ceremony and also may end without Ceremony And of a void thing a stranger may take benefit but not of a voidable Estate without entry Rent issuing 〈◊〉 of fee and lease hold 26 A man seised of Black-acre in fée Co. 7. 23. a. Buts Case and possest of White-acre for yeares grants a Rent charge for life with clause of distresse in both In this Case the Rent issues onely out of Black-acre for out of White-acre in regard of the meanesse of the Interest thereof a frank-tenement cannot issue neither shall it be put in view and acceptance of the Lease of White-acre by grantée of the
Assurance in the Countrey and to be maiâ—tained for the common good and quiet of the Realm And upon the Feoffment the Fréehold which is so much estéemed in Law doth passe by open livery to the Feoffée but by the release a bare right onely 3 Vide suprà M. 94. Pl. 25. M. â—o Pl. 8. Dier 51. b. 17 33 H. 8. 4 Tenant in tail before the Statute of 27 H. 8. Lease good against Issue iâ— tail of Vses makes a Feoffment in Fée to the use of himself and his heirâ— and after he and his Feoffées make a lease for years rendring rent and after the Statute is made the tenant in tail dies seised and his issue aliens the land by fine before any entry made upon the Termor or any receit of the rent and the alienée accepts he rent In this Case the Alienée shall never avoid the lease whether he accepted the rent or no for the lease was not méerly void by the death of the tenant in tail without actual entry made by the issue but it had béen otherwise of a rent granted out of the land by the Tenant in tail and his Feoffées So likewise in Littletons Case of a Feoffment by tenant in tail to his eldest son within age and when he comes to full age he make a Leasts for years and after the father dies so as the son is remitted yet hâ— shall not avoid his lease as he might have done a rent issuing out of the land Co. Inst p. 1. 332. a. 4. 5 If there be tenant for life the remainder in tail Discontinuance and he in the remainder grants it to another in fée by Déed and the tenant for life attorns this is no discondinuance of the remainder in tail so it is likewise of a Rent-charge Advowson in grosse Common in grosse or the like for the Rule is that a Grant by Déed of such things as do lie in Grant and not in livery of Seisin do work no discontinuance Co. ib. 332. b. 1 6 If tenant in tail of a rent service c. Discontinuance or of a Reversion or Remainder in tail c. grant the same in Fée with warranty and he oweth Assets in Fée simple and dieth This is neither bar nor discontinuance to the issue intail but he may distrain for the rent or service or enter into the land after the decease of the tenant for life But if the issue bringeth a Formedon in descender and admit himself out of possession then he shall be barred by the warranty and Assets It is otherwise 〈◊〉 tenant in tail in possession maketh a Feoffment with livery of Seisin for that worketh a discontinuance And yet if tenant in tail of a rent disseise the tenant of the land and make a Feoffment in Fée with warranty and dieth This is no discontinuance of the rent but the issue may distrain for the same And albeit the warranty exâ—â—â—â— to the rent yet by the Rule of Littleton § 618. it lieth not in discontinuance And where the thing doth lie in livery as lands and tenements yet if to the Conveyance of the Fréehold and Inheritance no livery of Seisin is requisite it worketh no discontinuance as if tenant in tail exchange lands c. or if the King being tenant in tail grant by his Letters Patents the lands in Fée there is no discontinuance wrought Also it is regularly true of a thing that lieth in grant that although it be granted by fine yet it worketh no discontinuance Howbeit it tenant in tail make a lease for yeares of lands and after levy a Fine this is a discontinuance for a Fine is a Feoffment of Record and in such Case the Fréehold passeth But if tenant in tail maketh a lease for his own life and after levy a Fine this is no discontinuance because the Reversion expectant upon a State of Fréehold which lieth onely in grant passeth thereby 97 A matter in the right more then a matter in possession Fore-judger â—f Mesne 1 If the tenant be disseised and the Disseisor in a writ of Mesne Co. Inst p. 1. 100. b. 1. fore-judge the Mesne this shall not binde the Disseisée And so if the Mesne be disseised and a fore-judgment is had against the Disseisor this doth not binde the Disseisée for the words of the Statute of West 2. cap. 9. are Quando tenens sine praejudicio alterius quam medii attornare se potest capitali Domino c. â—â—scription â—â—stome 2 A title once gained by prescripcion or custome Co. ib. 114. b. 2 cannot be lost by interruption of the possession for ten or twenty years but by interruption in the right it may be lost as if a man have had a rent or Common by prescription unity of possession of as high and perdurable estate is an interruption in the right â— Writ of â—â—sne 3 In a writ of Mesne the Plaintiffe made his title by prescription Co. ibid. that the Defendant and his Ancestors had acquitted the Plaintiff and his Ancestors and the Terre-tenant time out of minde c. the Defendant took Issue that the Defendant and his Ancestors had not acquitted the Plaintiff and his Ancestors and the Terre-tenant and the Iury gave a special Verdict that the Grandfather of the Plaintiff was enfeoffed by one Agnes and that Agnes and her Ancestors was acquitted by the Ancestors of the Defendant time out of minde before that time since which time no acquital had béen and it was adjudged and afterwards affirmed in a writ of Error that the Plaintiff should recover his acquital for that there was once a title by prescription vested which cannot be taken away by a wrongful cesser to acquite of late time And albeit the Verdict had found against the letter of the Issue yet for that the substance of the Issue was found viz. a sufficient title by prescription it was adjudged both in Banco M. 4â— 44. El. in a Prohibition betwixt Nowel and â—icks in B. R. and afterwards in a writ of Error in B. R. â—â—las deciâ—â—di for the Plaintiff So a modus decimandi was alledged by prescription time out of minde for tithes of lambs and thereupon issue joyned and the Iury found that before 20 years then last past there was such a prescription and that for these 20 years he had paid tithe-lamb in specie and it was objected first that the Issue was found against the Plaintiff for that the prescription was general for all the time of prescription and 20 years did fail thereof Secondly that the party by payment of tithes in specie had waved the prescription or custome But it was adjudged for the Plaintiffe in the prohibition for albeit the modus decimandi had not béen paid by the space of 20 years yet the prescription being found the substance of the Issue is found for the Plaintiff Common And if a man hath a Common by prescription
Mother shall enter into the lands of the part of the Father c. Tenants in Common Chattels Personal 5 Tenants in Common of Personal goods have an equal right in them Howbeit the one may take them all from the other Co. ibid. 200 a. 2. and shall have them to his owne use if he can hold them but the other if he can re-gaine them by Catch-pole Law he shall have them And so it is also of real Chattels that are intire but not of other Chattels real that are severable c. Rent by incoachment 6 If there be Lord and Tenant by fealty and 2 s. Rent Co. l. 4. 11. b. 2 in Bevils Case and the Lord by incroachment viz. by the voluntary payment of the Tenant happeneth seisin of more Rent then he ought to have In this Case the Law is so great a favourer of seisins and possessions that the Tenant shall not avoid this seisin had by incroachment in avowry unlesse it be in some special Cases which sée ubi suprà 99 The Law respecteth matters of profit and Interest largely Of pleasure skill ease trust authority and limitation strictly Co. Inst p. 1. 46 b. 2. 1 Albeit to divers purposes a Lessée for yeares is not Tenant before entry as a releas made to him is not good to increase his Estate Interest terminate before entry neither yet can the Lessor before entry grant away the reversion by the name of the reversion neverthelesse he before entry hath an Interest inter esse termini grantable to another So that although the Lessor die before the Lessée enters yet the Lessée may enter into the lands So also if the Lessée die before he entred yet his Executors or Administrators may enter because he presently by the lease hath an Interest in him And therefore if the lease be made to two and one die before entry his Interest shall survive c. Co. ibid. 49. b. 2. 181. b. 2. Co. l. 5. 94. b. 4. in Barwiks Case 2 If there be two joynt attorneys to receive livery for another Two joynt â—â—torneys Two joynt Lessees and livery of seisin is made to one of them in the name of both this is cléerly void because they had but a méere and bare authority and they both doe in Law make but one attorney unlesse the warrant be joyntly and severally But if a lease for yeares without déed be made to A. and B. the remainder to C. in fée and livery is made to A. in the absence of B. in the name of both it séemeth in this Case the livery is good to vest the remainder because the Lessée for yeares that tooke the livery hath an Interest c. Co. ibid. 52. a. 4. c. 3 There is a diversity betwéen an authority coupled with an Interest and a bare authority For example Difference between a bare authority and an authority coupled with an interest There was a custome in a Mannor for the Lord to grant copi-hold lands always in fée-simple and never for any lesser Estate and the Lord did grant to one by copy for life the remainder to another and the heires of his body And it was adjudged H. 36. Eliz. Rot. 492. inter Sharton Barns in an ejectione firme in B. R. that the grant and remainder ever was good because the Lord having authority by Custome and an Interest withall might grant any lesser Estate for in this Case the Custome that enableth him to the greater enableth him to the lesser Omne majus continet in se minus c. So also if one as Procurator or attorney to another present to his own Benefice he thereby puts himselfe out of possession because of his Interest coupled with his authority and for that the presentée commeth in by the Institution and Induction of the Ordinary If the Lord or a Grantée of a Rent-charge had béen also Cestuy que use of the land and after the Stat. of R. 3. and before the Stat. of 27 H. 8. Cestuy que use had made a feofment in fée of the land albeit in this Case the land passeth from the feoffées and his feofment is warranted by the power given to him by the Statute yet the Seigniory or Rent-charge is extinct by his feofment for that he had not a bare authority as an Attorny hath but also an interest coupled therewith But he that hath but a bare authority to do a thing is so farre from doing more then which he is expressely authorised to do that if he strictly pursue not his authority the Law adjudged that which he doth to be absolutely void As if a man be disseised of Black-acre and White-acre and a warrant of attorney is made to enter into both and to make livery there if the attorney enter into Black-acre onely and makes livery secundum formam cartae In this Case the livery of seisin is void because he doth lesse then his warrant for the Estate in White-acre cannot be divested without an entry So likewise albeit the warrant be general viz. to deliver seisin yet the attorney cannot deliver seisin within the view for his warrant is intendable in Law of an Actual and expresse livery and not of a livery in Law and so it was resolved in Yarhams Case P. 3. El. in Co. Banco In like manner albeit the warrant of Attorney be indefinite without limitation of any time yet the Law prescribeth a time which the attorney is bound to observe viz. in the life time of the Feoffor and Feoffée for if either of them die before Livery made that is a countermand of the Letter of attorney and also the Déed it self is become of none effect because in that case nothing doth passe before Livery of seisin for if the Feoffor dieth the land descends to the heir and if the Feoffée dieth Livery cannot be made to his heir because then he should take by purchase whereas heires were named by way of limitation And herewith agréeth Bracton Item Oportet quòd donationem sequatur rei traditio etiam in vita donatoris donatorii c. â—ailment of Caâ—el 4 If I bail unto a man my shéep to compasse his land or my oxen Co. ib. 57. a. 4. to aire his land and he kill any of them I may have an action of trespasse or an action of trespasse upon the case against him notwithstanding such bailment because when the Bailée having but a bare use of them taketh upon him as an owner to kill them he loseth the benefit of the use of them which was limited with this caution viz. that he should not misuse them c. Gage of goods 5 If goods be delivered to one as a gage or pledg Co. ib. 89. a. 4. and they be stollen he shall be discharged because he hath a property in them and therefore ought to kéep them no otherwise than his own but if he that gaged them tendred
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
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
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.
Tenant by the Courtesie joyn Also if there be two Ioynt-tenants and to the Heires of one of them and they make a Lease for life they shall joyn in an Action of Waste for the same reason Co. l. 2. 77. b. 1. The Lord Cromwels case 4 B. seised of a Mannor with an Advowson Appendant by Indenture bargaines and sells the Mannor to A. and covenants to suffer a Recovery and levie a Fine to A. in Fee Joynder in a Fine and that the said A. shall render by the Fine to B. 42 l. per annum Rent provided that A. shall grant the Advowson to B. for life and if he die before any avoidance then one turne to his Executors and it was farther Covenanted that all Assurances to be made should be to the said Vses The Recovery is had B. and A. lovie a Fine to P. who renders the Mannor with the Advowson to A. in Fée and the Rent to B. Proclamations passe A. dies before the Grant of the Advowson the Church becomes void in the life of B. E. enters as Heir to A. B. enters and without any request for the Advowson bargaines and sells to the Lord Cromwel for whom it is adjudged And in this Case it was resolved that albeit the Fine was not acknowledged by B. to A. to a stranger was adjudged a good performance of the Covenant because B. and A. joyned in the Fine for conformity to the end by that meanes A. might take the Mannor and B. the Rent but B. had the Mannor again because the Condition was not performed Ibid. 5 Albeit a Fine is of so high a nature Joynder is Fine that the Law doth not suffer any bare Averrement against the purport and Conusance of a Fine yet when the Law requires one for conformity to joyn with another in a Fine it suffers him to shew the truth of the matter for the avoiding of prejudice and conclusion So in 30 and 31 El. in a Writ of Error to reverse a Fine levied by Baron and Feme for the Non-age of the feme the Baron and feme had Restitution presently and the Conusée could not detaine the Land during the Coverture because all the Estate passed from the feme and the Baron onely joyned for conformity Vide Pl. ibid. Co. l. 6. 47. a. 1. Dowdales ca. 6 In Debt against Executors Assets found bâ— any County the Defendant pleads plene administravit the Plaintiff replies that he hath Assets in E. and the Iury finds Assets in Ireland and the Plaintiff recovers For when the place is material as when it is parcel of the issue there the Iurors cannot find the point in issue in any other place because in such case by special pleading the point in issue is restrained to a certaine place For there is a diversity when the place is named onely for conformity and necessity and when it is parcel of the issue as in the Case of 10 El. Dyer 271. In Debt against the Heir he pleads riens per discent generally in this Case the Plaintiff cannot reply in such a general manner for then there could be no trial of it but in such Case for conformity and necessity of a Trial he ought to name a certaine place as he did there in a Parish and Ward in London neverthelesse there the Iurors might find Assets in any other County of England c. 113. 4 Colour â—o discent to 〈◊〉 away enâ—y 1 If a man seised of Land hath issue two Sonnes and die seised Littl. §. 396. Co. Inst p. 1. 242. 2. and the youngest enter by abatement and hath issue and dies thereof seised and the Tenements descend to his issue and the issue enter This is no discent to take away entry because they both claiming by one Title and from the same Ancestor the youngest had colour to enter as heir So it is also if there be two Sisters Litl §. 398. Co. ibid. 243. a. 4. and the eldest enter c. and albeit in either of the said Cases there be never so many discents cast yet may the Heirs the elder Brother or younger Sister enter causa qua supra Howbeit if there be Bastard eigne Littl. §. 399. Co. ibid. 243. b. 4. and Co. 244. a. 3. and mulier puisne if the Bastard enter and is peaceably seised all his life and die and his issue enter the Mulier shall not enter for he hath more colour to kéep it as eldest Sonne then in the aforesaid Cases And therefore the Mulier in such Case is left without remedy and hath lost the Land for ever whereas the other are left in their Action And it is holden that albeit the heir be under age at the time of the discent cast yet that shall not help it for the Law preferres Legitimation before Infancy because there being no Claim all his life-time the Law implies Legitimation And when the Discent is cast Justum non est aliquem post mortem facere bastardum qui toto tempore vitae suae pro Legitimo habebatur See more in the first Part of the Institutes fol. 242 243 244. Littl. § 400. â—o trespasse â—gainst the 〈◊〉 2 If there be Lord and Tenant by fealty onely Littl §. 484. Co. ib. 28. l. b. 4. and the Lord distraines the Tenant for Rent whereupon the Tenant brings an Action of Trespasse against the Lord who justifies for fealty and Rent and the Iury finds that he holds by fealty onely yet the Writ shall aâ—ate because he held of him by fealty and the matter in issue is whether he holds of him or no and it being found he did the Lord had sufficient colour to distraine him and therefore in that case the Action shall abate â—im slaughâ—â— found for â—â—der 3 If A. be appealed or indicted of Murder Co. ib. 282. a. 1 viz. that he of Malice praepense killed I A. pleadeth not guilty modo forma yet the Iury may find him guilty of Man-slaughter without Malice praepense for if in truth it was but Man-slaughter they had colour enough to find it so Inclaiming 〈◊〉 House 4 If two be in all House together the one claiming by one Title Littl. §. 701. Co. ib. 368. a. 2. and the other by another the Law adjudged him in possession who hath right to the House for Duo non possunt in solido unam rem possidere yet if a man hath issue two Daughreas Bastard eigne and Mulier puisne and die seised and they both enter generally the Sole Possession shall not be adjudged onely in the Mulier because they both claime by one and the same Title and the Bastard hath as well colour to claime it as the Mulier â—â—ard shall â—â—â—ch 5 If the Bastard eigne enter and take the profits Co. ib. 376. b. 3. he onely shall be vouched and not both the Bastard and Mulier for there is colour enough to vouch him alone he
esse for the other part for if there be Lord and Tenant of 40 acres of Land by fealty and 20 s. Rent if the Tenant make a Gift in tail or a lease for life or years of partel thereof to the Lord in this Case the Rent shall not be appoâ—tioned for any part but the Rent shall be suspended for the whole So it is also if the Lessor enter upon the Lessée for life or yeares into part and thereof disseise or put out the Lessée here the Rent is suspended in the whole and shall not be apportioned for any part and where outs Books speake of an apportionment in Case where the Lessor enters upon the Lessée in part they are to be understood where the Lessor enters lawfully as upon a surrender forfeiture or the like where the Rent is lawfully extinct in part yet by act in Law a Rent-service may be suspended in part and in esse for part as when the Guardian in Chivalry entreth into the land of his ward within age now is the Seigniory suspended but in this Case if the wife of the Tenant be endowed of a third part of the tenancy she shall pay to the Lord a third part of the tent so it is also where the Tenant gives a part of the tenancy to the father of the Lord in tail the father dieth and this descends to the Lord in this Case also by Act in Law the Seigniory is suspended in part and in esse for part And the same Law is of a Rent-charge which also cannot be apportioned but by Act in Law for if a man hath a rent-charge to him and his heirs issuing out of lands and he purchase part thereof Litt. § 222 224. in this Case the whole rent is extinct but if a man hath a Rent-charge and his father purchase part of the land out of which it issues in fée and die and that parcel descends to the son that hath the rent-charge in that Case the rent-charge shall be apportioned according to the value of the land 〈◊〉 charge 〈◊〉 because the part of land purchased by the father comes not to the son by his own Act but by descent and course of Law Co. ib. 149. b. 4 So also if the Tenant give the father of the grantée part of the land in tail and this descends to the grantée the rent shall be apportioned and so by act in Law a rent-charge may be suspended for one part and in esse for another or vice versa if the father vs grantée of a rent and the son purchase part of the land charged and the father dieth after whose death the rent descends to the son here also the rent shall be apportioned causa quà suprà â—â—nt-charge â—pationed 15 If the father within age purchase part of the Land charged Co. ib. 150. a. 2 and alieneth within age and dieth the son recovereth in a writ of dum flrit infra aetatem or entreth in this Case the Act of Law is mixt with the Act of the party and yet the rent shall be apportioned for after the recovery or entry the son hath the land by descent so it is also where the son recovereth part of the land upon an alienation by his father dum non fuit compos mentis for the cause afore-said 〈◊〉 16 A man seised of lands in fée takes wife Co. ibid. and makes a feofment in fée the feoffée grants a rent-charge of 10 l. out of the Land to the Feoffor and his wife and to the heltes of the husband the husband dieth the wife recovereth the moity for her dower by the custome the Rent-charge shall be apportioned and she shall distraine for five pound which is the moity of the rent and here albeit her owne act doth concurre with the Art in Law yet shall the Rent be apportioned â—d 〈…〉 Tenant 17 If there be Lord Mesne and Tenant Litt. §. 231. Co. ib. 152. and the Tenant holds of the Mesne by 5 s. rent and Mesne holds over of the Lord by 12 d. rent here the Mesne hath 4 s. rent in surplussage Now in this Case if the Lord purchase the tenancy The Mesne shall have the 4 s. yearely as rent secke and yet he shall distraine for it Litt. §. 232. Co. ib. 153. a. 1 vide infrà 40. for séeing the fealty is extinct the Law reserves the distresse to the Rent and the distresse in such Case shall by act in Law vs preserved Quia quando let aliquid a licui concedit concedere videtur id sicut quo res ipsa esse non potest And therefore if a man make a lease for life reserving a rent and bind himselfe in a Statute whereupon the Rent is extended and delivered to the Conusée here the Conusée shall distraine for the Rent because he cometh to it by course of law but if a rent-service be made a rent-seck by the grant of the lord the grantée shall not distrain for it for that the distresse in that case remaines with the fealty So likewise if there be Lord Mesne and Tenant and the mesnalty is a Mannor having divers frée-holders and the Lord purchase one of the Tenancies and there is a Rent by surplussage this rent although it be changed into another nature is parcel of the Mannor yet by purchase of part of the land the whole Rent is extinct albeit the Law did preserve it Co. ib. 163. b. 4 18 There is a diversity betwéen a discent Discent and purchase which is an Act of the Law and a purchase which is an Act of the party for if a man be seised of lands in Fée having Issue two Daughters and one of the Daughters is attainted of felony the Father dieth both Daughters being alive the one moity shall discend to the one daughter and the other moity shall escheate But if a man make a Lease for life the remainder to the right heires of A. being dead who left issue two Daughters whereof the one is attainted of felony In this Case some have said that the remainder is not good for the moity but void for the whole because both the Daughters should have béen as Littleton saith but one heire Co. ib. 164. b. 3 19 A Rent-charge is intire and against Common right Rent-chargâ— dividable and yet it may be divided betwéen coperceners and by Act in law the Tenant of the land is subject to several distresses and in that Case also partition may be made before seisin of the Rent Co. ib. 165. a. 4 20 If there be two Coperceners of lands with warranty Coperceners and they make partition in this case the warranty shall remaine because they are compellable by law to make partition it is otherwise of join-tenants for they were not by the Common law compellable to make partition Co. Ib. 166. b. 3 21 When partition is made betwixt Coperceners Partition by
surrendred and so by consequent if afterwards the Lessée commit waste he is subject to an Action for it â—â—gation 42 If a man be bound to make another before such a time such a release as the Iudge of the Prerogative Court shall devise and appoint Co. l. 52. b. 3. Lambs Case In this Case if the Obligor do not onely the first Act but likewise procure the Iudge to devise and direct the release before the time limited the bond is forfeit for in as much as the Iudge is a stranger to the Condition and the Condition is for the benefit of the Obligor and the performance thereof shall have his obligation he hath undertaken to performe it at his peril â—â—tion 43 If a man be bound to make to another a sufficient and lawful Estate in certain Land by the advise of I. D. Co. ibidem If he make an Estate to him according to the advise of I. D. be it sufficient or not or lawful or not lawful yet he saves the Obligation for if it be in sufficient or unlawful the Obligée may thanke himselfe to make choice of such a man as could give no better direction Fuit dit Co. l. 5. 33. b. 4. in Reades ca. 44 If after the death of a man Execution 〈◊〉 his owne wrong none takes upon him to be his Executor or if he died intestate none takes out letters of administration In such Case if a stranger use the goods of the dead or takes them into his possession which is the office of an Executor or Administrator such stranger may be charged as Executor of his own wrong For the Creditors of the dead person have not in such Case any other Co. ibid. 34. a. against whom they may bring their actions for the recovery of their debts or albeit there be an Executor that Administers yet if the stranger take the goods and claiming to be Executor payes debts and receives debts or pays Legacies and inter-medle as Executor in such Case also by such expresse Administration as Executor he may be charged as Executor of his own wrong Vide Dier 166. 10. 1. El. Co. l. 5. ii5 a. 3 in Wades Ca. 45 If the Lessor demands Rent of his Lessee according to the Condition of re-entry and the Lessée pay the Rent to the Lessor Acceptance counterfeit money and he receives it and put in his purse or pocket and after upon reviewing thereof at the same time he finds amongst the money that he had received some counterfeit pieces and thereupon refuseth to carie away the money but re-enters for the Condition broken In such Case it is said it was adjudged betwixt one Vane and Studley that the entry was not lawful for when the Lessor had once received the money it was at his peril and after such allowance he shall not take exception to it Co. lib. 5. 116. â— 3. Olands Case 46 A Feme Copi-holder of certain land durante viduitate sua Graine sowâ— Durante viduitate according to the Custome of the Mannor sowes the Land and before the severance of the graine takes Baron In this Case the Lord shall have the graine For albeit at the time of sowing the graine the Estate of his wife was uncertain and although her Estate determined by limitation and not by condition either in déed as in Case of re-entry or in Law as by forfeiture yet because it determined by the Act of the Lessée her selfe the Lord shall have the graine and not the Baron So if a Feme seised of land durante viduitate sua make a lease for years and the Lessée sow the land and after the Feme that made the lease takes Baron here the Lessée shall not have the graine for albeit his Estate is determined by the Act of a stranger yet he shall not be as to the Lessor in a better Case then his lessor was and the law imputes it to his folly to depend upon so fickle a thing as the will of a woman especially in point of marriage Co. ib. a. 4. 47 If Tenant at will sow the land Tenant at will sowes graine and after the will is determinned the Lessée shall have the graine but if the lessée himselfe determine the will before the severance of the graine he shall not have them because he hath determined his Interest by his own Act So if Lessor at will be out-lawed whereby the will is determined In this Case the King shall have the profits and the Lessée shall enjoy the graine but if Lessée at will be out-lawed whereby the will is determined in such Case the King shall have the graine Vide 9 H. 6. 20 21. Dier 173. 15. Co. ib. b. 1. 48 If a lease be made to Baron and Feme during the coverture Graine sowâ— divorce and the Baron sow the land and after they are divorced causa praecontractus the Baron shall have the graine and not the Lessor for albeit the suite is the Act of the party yet the sentence which dissolves the marriage is the judgement of law Et judicium redditur in invitum but if a lease be made to one until he make waste and he sow the grain Waste and after make waste he shall not have the graine Vide Max. 30. 34. â—â—faction of â—â—bt by deed 49 In Debt upon an Obligation of 10 l. the Plaintiffe pleades Co. l. 5 117. b. 2 Pinnels Case that one F. was bound by the same Déed with him and each of them in the whole and that the Plaintiffe made an acquittance to F. bearing date before the obligation but delivered after by which acquittance he acknowledged himselfe to be paid 20 s. in full satisfaction of the 10 l. and this was adjudged a good barre for if a man will acknowledge himselfe to be satisfied by Déed this is a good barre without receiving any thing Vide 36 H. 6. Barre 17. 12 R. 2. Barre 243. 10 H. 7. Yet payment of a lesse sum in satisfaction of a greater is not good satisfaction because a lesser sum can by no possibility be satisfaction for a greater â—â—re service â—â—tiplied â—â—â—ct 50 If one hold his land of his Lord by an intire annual service Co. l. 6. 1. b. 3. in Bruertons Case as a Spurre Horse or the like and after sels parcel thereof to another in this Case the alienée shall hold by the same intire service because such intire service cannot be apportioned and the land is severed by his owne Act So also if in such Case the Lord purchase parcel of the tenancy such intire services are gone in like manner as if the Lord had released his Seigniory in part of the tenancy because he hath discharged part of the land by his own Act. â—â—rneys acâ—â—nts 51 When a writ abates by default of the Clerke Co. l. 6. 10. a. 2 in Spencers Case as for false
of debt afterwards because both actions charge the person The like Law is of an Assise and of a writ of entry in nature of an Assise and the like â—â—der of 〈◊〉 2 If a feofment be made of a wood upon Condition to pay a certaine Rent the Demand ought to be made at the Wood-gate Co. ib. 202. a. 1 or at some high way tending through the Wood or other most notorious place there And if one place be as notorious as another the feoffor hath election to demand it at which he will and albeit the feoffée be in some other part of the wood ready to pay the Rent yet that shall not avail him sic de similibus Co. ib. 210. a. 1 Litt. §. 339. 3 If upon a Mortgage the money be limited to be payd to the feoffée Payment of Mortgage money and before the day of payment he make his Executors and die in this Case the Mortgageor shall pay it to the Executors albeit they be not named or if it be limited to be paid to the Mortgagee or his heirs then if he die it ought to be paid to his heire because named but if to his heires or executors the Mortgageor hath election to pay it to either So likewise if the Condition be to pay it to the feoffée his heirs or assignes and the feoffée make feofment over it is in the election of the feoffor to pay the money to the first or second feoffée at his pleasure and so if the first feoffée die the feoffor may pay the money either to the heire of the first feoffée or to the second feoffée at his election for the Law will not enforce the feoffor to take knowledge of the second feofment nor of the validity thereof whether the same be effectual or not but at his pleasure Litt. §. 341. Co. ib. 211. b. 2 4 If feofment in fée be made reserving Rent An Assâ—se oâ— entry and for default of payment a re-entry this is a Rent-secke and in this Case if the feoffor be once seised of the Rent which after is denied him it is at his election whether he will have an Assise of Novel disseisin for the rent arrere or enter for the Condition broken but after a recovery in Assise he cannot have recourse to his re-entry because by bringing the Assise he affirmes the continuance of the Estate Litt. §. 454. Co. ib. 268. b. 1. 312. a. 1. 5 Before the Statute of 21 H. 8. 19. Avowry at laâ— or by Seat the disseisée might compel the Lord to avow upon him but since that Statute if the Lord distraine upon any of the Lands and Tenements holden c. he may avow c. upon the same Lands c. as in Lands c. within his fée or Seigniory c. without naming of any person certaine and without making avowry upon a person certaine and therefore at this day the Lord hath his Election either to avow according to the Common Law or by force of the said Statute as by the word may in the same Statute is imported Littl. § 478. Co. ib. 278. b. 3 6 If a man be disseised by an Infant who aliens in fée Several reâ—dies by acâ— or entry and the alienée dies seised and his heire enters the disseisor being still within age In this Case it is in the Election of the Dissefsor to have a writ of dum fuit infra aetatem or a writ of right against the alienée or otherwise he may make his entry into the land without any suit or recovery And so it is to be observed that many times the Law doth give a man several remedies and of several kinds as in this Case by action and by entry by action either by writ of right or dum fuit infra aetatem Littl. §. 496 497 478. Co. Inst p. 1. 286. b. 1. 7 When a man hath several remedies for one of the same thing A remedy 〈◊〉 remaine aâ— a release be it real personal or mixt albeit he releaseth one of his remedies yet he may use the other So where a man may enter into lands and also have an Action real given him by the Law to recover them In this Case if the Demandant release to the Tenant all manner of actions real yet the Demandants entry is not thereby taken away because nothing is released but the Action And so it is also of thnigs personal as if a man wrongfully takes my goods albeit I release to him all actions personals yet I may by Law take my goods out of his possession In like manner if I have any cause to have a writ of detinue of my goods against another here albeit I release unto him all Actions personals yet I may by Law take my goods out of his custody because no right of the goods is released but onely the Action â—lent diâ— or a◠〈◊〉 8 If one bold of me by Rent-service which is a service in grosse Litt. § 588 589. and not by reason of my Mannor and another that hath no right claimes the Rent and receives it of my Tenant by cohersion of distresse or otherwise and disseiseth me by taking the Rent albeit such a disseisor die so seised in taking the Rent yet after his death it is at my election either to distraine for the Rent or taking him to be a disseisor to have an Assise against the pernor of the profits â—ine or aâ— 9 If an Abbot Bishop or Husband in the right of his Wife Co. ib. 3 27. b. 2 seised of a Rent or any other Inheritance that lies in grant had aliened it was in the Election of the Successor or Wife after the death of her Husband to claime the Rent c. or to bring an Action for such alienation did not worke a discontinuance and so it is also by construction of the Statute of West 2. cap. 1. in Case of Tenant in Taile â—tes waivâ— by Feme â—ert 10 If Lands be given to the Husband and Wife and their heirs Co. ib. 357. a. â— the Husband makes a feofment in fée the feoffée giveth the land to the Husband and Wife and the heirs of their two bodies the Husband dieth In this Case the wife may elect which of the Estate she will for both Estates are waivable and her time of Election and power of waiver accrewed unto her first after the decease of her Husband â—echer of 〈◊〉 heires 11 Inderaigning a warranty against heires in Gavelkind Co. ib. 376. a. 4 the eldest may be vouched as heire to the warranty and the other sonnes also in respect of the Inheritance descended unto them So likewise the heire at the Common Law and the heire of the part of the mother may be both vouched yet in both these Cases the heire at the Common Law may be vouched alone at the election of the Tenant â—nveyance â—y several 〈◊〉 12
â—tion for a â—n a Leet 21 For offences committed in the Léet it selfe Co. l. 8. 41. b. 2 in Grieslies ca. as refusing to take the oath of Constable or the like the Lord may bring his action of Debt distraine goods and sell them or distraine and impound them at his Election â—count to â—ng 22 If the Treasurer and Vnder-Treasurer of the Exchequer give power to one by an un-lawful warrant to receive money of one and more of the Tollers of that Court Co. l. 11. 90. b 4. and 92. b. 4. Sir Walter Mildmayes ca. cited in the E. of Devons Ca. it is in the Kings Election to charge the party that receives them or in Case he die his Executors or otherwise to charge the Treasurer and Vnder-treasurer that issued out such unlawful warrant â—n Office â—wardâ— 23 If a man be ousted of his Steward-ship of a Mannor Co. l. 9. 51. a. 1 the Earle of Shrewsburies Case so as another executes the place taking the profits thereof for his restauration thereunto he may either bring an Action of the Case or otherwise an Assise at his Election â—ers or oâ—s in Gaâ—ed a Raâ— parte â— a Nuper 〈◊〉 24 If the Ancestor die seised F.N.B. 9. g. and one of the Sisters enter into all the Lands and deforce the rest In this Case the other Sisters may sue a writ de rationabili parte or a writ of nuper obiit at their Election So likewise for lands in Gavelkind if one Brother enter into all the lands and oust his Brothers here also if the Ancestor died seised the other Brothers may sue a writ de rationabili parte or a nuper obiit at their Election â—ded in Aâ—y or by â— â—juste 〈◊〉 25 If there be Lord and Tenant F.N.B. 10. h. and the Lord incroacheth other services then such as are due to him as Homage Escuage or the like In this Case the Tenant may avoid such incroachment in Avowry made by the Lord for such services because the Tenant may traverse the manner of the Tenure as to say that he holds of the Lord by fealty and xx s. Rent onely without that that he holds by Homage Fealty and Rent in manner and forme as the Avowry is made Or otherwise he may bring a writ of Ne injustè vexes if he please at his Election â—t of right â—urowson â—n scire faâ— 26 If a man recover in a writ of Right of Advowson F.N.B. 36. a. at the next avoidance he may present and shall have a Quare impedit without assigning any presentment in himselfe or his Ancestors but shall declare upon the Record or otherwise he may have a scire facias upon such recovery â—it utrum â—â—aint 27 If a man recover by an Action tried against a Parson F.N.B. 48. r. lands and Tenements by verdict and the Parson pray not in Ayde of the Patron and Ordinary In this Case if it was a false Verdict the Successor may have a Juris utrum or an attaint at his Election â—r or atâ— 28 If a Parson lose by action tried or by default F.N.B. 49. g. his Successor may have a writ of Error or an attaint at his Election 〈◊〉 in Court â—ristian or a 〈◊〉 of annuiâ— 29 If a Parson Vicar Master of an Hospital or the like F.N.B. 51. b. have a pension out of another Church which they and their Predecessors have had time out of minde it is at the Election of such Parson Vicar c. to sue for such pension in the Court Christian or by writ of annuity at the Common Law for in that case if they sue for it in Court Christian and the other party purchase a prohibition c. upon the matter shewed they shall have consultation F.N.B. 82. d. â—sse or â—de auxilio 30 For Ayde ad filium suum militem faciendum vel ad filiam maritandam the Lord may distraine his Tenant and make avowry or bring a writ auxilio at his Election F. N B. 98. c. 31 If Baron and Feme lose by default the land of the Feme here Deceit or in vita if the Baron die the Feme may have a writ of defeit or a Cui in vita at her Election F.N.B. 99. g. 32 A writ of deceit may issue out of the Common Pleas or Chancery at the Election of the Plaintiffe A writ of ceit our oâ— Com. Plâ— Chaâ—cery as if a man lose by default land in a praecipit quod reddat in the Common Pleas the Tenant shall have a writ of deceit alleadging that he was not summoned or the like out of the Common Pleas or out of the Chancery at his Election F.N.B. 104. f. 33 Where the Recognisor purchaseth a Mannor Audita 〈◊〉 or seisâ—t unto which the Recognisée is Villain regardant In this Case the Recognisor may have an audita quaerela or otherwise may enter and seise the Recognisor without any such suit at his Election F.N.B. 122. d. 34 A man may sue a writ of debt upon a Statute Merchant Debt or eâ—cution Statute Staple or Recognisance or otherwise he may sue execution upon those Statutes at his Election F.N.B. 155. d. 35 If Tenant in Taile Dower by the Courtesie Deceit or Quod ei dâ—ceat or for life lose by default where they were not summoned or the like they may have a writ of deceit or a Quod ea deforceat upon the Statute of W. 2. c. 4. at their pleasure Dier 162. 51. 4 5. P. M 36 If a man condemned in debt or damages have lands in divers Counties Elegit Fieri faâ—â— the Plaintiffe may pray an Elegit in each County for the whole debt or damages or he may make divisions of his debt viz. Quoad decem libras c. quoad alias decem libras c. sic deinceps at his election Vide M. 17 E. 3. in debt against Executors two writs of fieri facias were awarded into several Counties for the whole debt And in waste in 29 H. 6. Rot. 103. the Plaintiffe for the treble damages had thrée writs of Elegit in thrée several Counties for the whole Dier 344. 2. 18 Eliz. 37 A man grants a Rent-charge without these words per se haeredibus and dies Annuity the grantée brings a writ of Annuity against the Heire and after discontinues his suit and distraines and iâ— it was adjudged well done because the Election to make it an Annuity was determined by the death of the Father 119 Cujus est divisio alterius est Electio Co. Inst p. 1. 166. b. 2. Litt. §. 245. 1 Vpon partition amongst Coperceners Election by Coperceneâ— the eldest shall have the Election for she shall have Civitiam partem but if she herselfe make the partition she loseth her priviledge of Election and shall take last Hob. 107.
66. b. 4 in Sir Moyle Finches Case 7 There is a diversity betwixt brevia adversaria Diversity betwixt brevia adversaria 〈◊〉 brevia amiâ—â— bilia vix brought as adversary to recover the land c. And brevia amicabilia viz. brought by consent and agréement amongst friends for true it is in brevibus adversariis the processe of the Common Pleas shall not pursue the custome or reputation of the Country as in 6 E. 3. 11. the Demandant in a writ of Entry demands the Mannor of C. the Tenant saith that the tenements put in view are a Messuage and a Carve of land called c. and not a Mannor c. whereby it appeares that if it were not a Mannor in truth albeit it was so in Common Appellation the writ should abate but it was adjudged in Sir Jo. Bruyns case in the beginning of Quéen El. Raigne that in Common Recovery which is had by the consent and agréement of the parties of acres of land they shall be accounted according to the accustomable and usual measure of the Country and not according to the Statute de terris mensurandis made in 33 E. 1. So likewise it is agréed in 47 E. 3. 18. if a man bargaine and sell so many acres of wood that shall be measured according to the use of the County viz. according to 20 foot to the Pole and not according to the said Act for in such Case consuetudo loci est observanda also if a fine be acknowledged of a Mannor which in déed is a Mannor in reputation onely and not in truth yet is the fiue good because done by consent of parties F. N. B. 38. t. 8 In a Quare Impedit if the Defendant plead to issue and after make default Precepartum a writ shall be awarded for the Plaintiffe to the Bishop ad admittendum Clericum but if to the distresse returned against the Defendant he comes and takes day per praece partium and then makes default the Plaintiffe shall not have a writ to the Bishop but a new distringas Dier 33. 13. c. 28 29 H. 8. 9 A lease for yeares is made rendring Rent Termors câ—sent and the lessor makes feofment of the land the termor being also upon the land and without his consent in this Case the Rent is extinct but if the feofment be made by the agréement of the termor that workes no extinguishment of the Rent or surrender of the terme c. 122 Volenti non fit injuria Co. Inst p. 1. 368. a. 2. Litt. §. 701. Pl. Com. 91. the Parson of Hony Lanes ca. 1 If the Tenant in an Assise of an house desire the Plaintiffe to dine with him in the house which the Plaintiffe doth accordingly Dyning in a house no entry but doth not clame the house at that time this is no entry or possession to cause the Assise to abate because if he had béen a stranger he had béen no trespasser for volenti non fit injuria Dier 275. 46. 10 El. 2 The Marshall suffers one in execution to go at large by licence of the Chiefe Iustice the Plaintiffe also agréeing thereunto in this case Prisoner in ecution after he returnes he is in execution again so as if he afterwards escape the Gaolor is subject to an action of Debt Dier 359. 1. 20 El. 3 The Tenant peravaile who held of a Mesne Tenure as of his Mannor of D. in soccage which Mannor of D. was held over of the King by Knight-service in capite purchaseth a release of the Mesualty in this Case the Tenant peravaile shall now hold of the King in capite for volenti non fit injuria 123 Quilibet potest renunciare juri per se introducto â—â—main 1 Land may be amortified by Licences granted by the King and all the Lords immediate and mediate of whom the land is holden Co. Inst p. 1. 98. b. 4. 99. a. 3. 99. b. 2 For it is a Rule in Law Alienatio licet prohibeatur consensu tamen omnium in quorum favorem prohibitum est potest fieri and quilibet potest renuntiare c. And the Licence of Lords immediate and mediate in this Case shall Enure to two intents viz. to a dispensation both of the Statute of Quia emptores terrarum and also of the Statute of Mortmaine Condition 〈◊〉 restraine â—â—ful liâ—â— 2 If a man make a gift in taile upon Condition Co. ib. 223. b. 3 that he shall not make a Lease for his owne life or if a man make a lease for life or years upon Condition that they shall not grant over their Estate or let the land to others In these Cases and the like albeit Tenant in taile hath power by the Law to make a lease for his owne life and the Lessee for life or yeares to grant and let yet by the Condition and their owne agréement they have restraindd themselves of the liberty which the Law gives them So likewise if a man make a gift in tail upon Condition that he shall not make a lease for thrée lives or 21 yeares according to the Statute of 32 H. 8. In this Case also the Condition is good to restraine the Tenant in taile from making such leases For albeit the Statute doth give him power to make such leases yet that power may be restrained by Condition and his own agréement because this power is not incident to the Estate but given to him collaterally by the Act according to that Rule of Law Quilibet potest renunciare c. â—eires â—â—ged 3 If there be Lord and Tenant Litt. §. 538. Co. ib. 305. a. 4 which Tenant holds of his Lord by fealty and 20 s. Rent here if the Lord by his Déed confirme the Estate of his Tenant to hold by 12 d. or by a penny or a halfe penny In this Case the Tenant is discharged of all the other services and shall render nothing to the Lord but what is comprised in the same confirmation For the Lord by his confirmation to hold by lesse services hath abridged himselfe of the power and interest which was before legally due to him â—â—e all 〈◊〉 all pasâ—â— 4 By the Common Law if Patron Ordinary Litt. §. 648. Co. ib. 343. Note that this law is altered by stat 13 El. cap. 10. and Incumbent had joyned in a grant of the Rectory or Vicarage they might have charged it or conveyed it to whom they pleased because they all together had the whole right in them viz. the Patron to present the Ordinary to admit institute and induct and the Incumbent to enjoy the glebe tithes and other profits And all these had liberty to depart with their several rights and interests at their pleasure â— good right â—â—de pretenâ—â— 5 If A. be lawful owner of land and in possession Co. ib. 369. a. 3 and be afterwards disseised in this Case A.
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
cases the disseisin is immediately to the heire Howbeit in some cases albeit the disseisin be not done immediately to the heire yet the warranty shall not bar him As if the Father be Tenant for life the Remainder to the Son in fee the Father by covin and consent maketh a Lease for years to the end that the Lessee shall make a Feoffment in fee to whom the Father shall release with warranty and all is executed accordingly the Father dyeth this warranty shall not binde albeit the disâ—eisin was not done immediatly to the Son for the Feoffment of the Lessee is a disseisin to the Father who is particaps criminis So it is if one brother make a gift in tail to another and the Vncle disseise the Donee enfeoffeth another with warranty the Vncle dyeth and the warranty descendeth upon the Donor and the Donee dyeth without issue here albeit the disseisin was done to the Donee and not to the Donor yet the warranty shall not bind him The Father the Son and a third person are Ioynt-tenants in fee the Father maketh a Feoffment in fee of the whole with warranty dyeth the Son dyeth the 3. person shall not only avoid the Feoffment for his own part but also for the part of the son he shall take advantage that the warranty commenced by disseisin though the disseisin be done to another If a man commit a disseisin to the intent to make a Feoffment in fee with warranty albeit he make the Feoffment many years after the disseisin yet because the warranty was done to that intent and purpose the Law shall adjudge upon the whole matter and by the intent couple the disseisin and warranty together And all this because such disseisins commence by wrong So it is also of a warranty that commenceth by abatement or intrusion that is when the abatement or intrusion is made of intent to make a Feoffment in fee with warranty for neither shall that bind the right heire no more then a warranty that commenceth by disseisin because they do also commence by wrong Likewise if the Tenant dyeth without heire and the Ancestor of the Lord enter before the entry of the Lord and make a Feoffment in fee with warranty and dyeth this Warranty shall not bind the Lord because it commenceth also by wrong being in the nature of an Abatement Et sic de similibus An unlawfull Fine not suffered to passe 10. This exception in the Statute of Glocester cap. 3. 6 E. 1. Litt. S. 729. 730 731. Co ibid. Co. ibid. 383. a. 3. whereof no Fine is levied in the Kings Court are to be understood lawfully levied And therefore if the Baron will levy a Fine of the Femes Land without the Feme the Iudges being conusant thereof ought not to take it because it worketh a wrong to the Feme and if it be with warranty to the heire also Neither indeed ought the Iudges to take a Fine which worketh a wrong to a third person Dâ—â—â—ni pro teâ—pore difference 11. Domini pro tempore of a Copy-hold Mannor Co. ibid. 58. b. 1. Co. l. 4. 24. p. 29. Eliz. inter Rouse and Arteis who are in by lawfull title though it be onely for years by Statute Merchant Staple or Elegit at will for wardship in Chivalry c. may hold Courts make admittances and grant voluntary Copies of antient Copyhold lands which come into their hands and such voluntary grants by Copy made by such particular Tenants as aforesaid shall bind him that hath the Freehold and Inheritance because all these be lawfull Lords pro tempore Also Disseisors Abators Intrudors Tenants at sufferance c. of such Mannors who come in by tort and hold by defeasible titles may hold Courts and make admittances of ancient copyhold-Copyhold-lands which shall stand good against them that right have because these are lawfull acts and they are compellable to do them But voluntary Grants by Copy made by Disseisors Abators Intrudors Tenants at sufferance or others that have defeasible titles shall not bind the Disseisee or others that right have because they come in by tort as aforesaid Livery of part not good 12. If Feoffment be made of a Messuage cum pertinentijs Co. l. 2. 32. a. 1. in Beltisworths case the Lessor de parts with nothing thereby but onely that which is parcell of the house viz. the buildings curtilage and garden Howbeit the keeping of the possession of a house or any parcell of the thing demised against tortious entry and expulsion by the Lessor is not onely possession of all that may passe by the name of Messuage or of such parcell but of all the lands c. which are demised therewith by one intire demise in the same County And therefore if a Lease for years be made of an house a close and divers other Lands and the Lessor makes Livery of the Close in the name of the whole in Lease the Lessee being then in the house and no body for him in the close In this case the Livery is void for the possession of the house by the Lessee at the time of the Livery made is possession also of all the Lands c. contained in the demise because it is to preserve the first right and interest of the Lessee against force and the tortious entry of the Lessor It is so also albeit the Lessee had then demised that close by will but otherwise if he had demised it for years for that had made a severance of it from the rest of the Messuage and Lands demised Election lost by wrong doing 13. If one enfeoff another of two acres Co. l. 2. 37. a. 4. in Sir Rowland Heywaâ—ds case to have and hold the one for life and the other in tail In this case the Feoffee hath election to chose which he shall have for life and which in tail Howbeit if before his election he makes Feoffment in fee of both the acres In such case the Feoffor shall enter into which of the acres he pleaseth for the Forfeiture for the Feoffee by his own act and the wrong done to the Feoffor hath lost his election Co. l. 2. 55. b. 4. in Bucklers case 14. Tenant for life leases for years and then grants to A. Estopell to plead partes finis nihil habuerunt for life from a day to come the Lessee for years atturnes after the day the terme expires and A. enters and leases at will the Lessee for life levies a Fine Come ceo c. to the Tenant at will and then the Remainder enters for the Forfeiture In this case the Fine levyed to the Tenant at will is a Forfeiture and the Remainder may thereupon well enter upon the Tenant at will and thereby charge the disseisin And here albeit neither the Tenant for life nor the Tenant at will have any thing in the Land for the interest of the Tenant for life is past away to A.
untill a new Sheriff be made and albeit they in the interim fled out of the walls of the Goale yet the Law hath the custody of them and preserves them in execution without any fresh Suit in what place soever they be and therefore they may in such case be againe taken in execution at any time after for no escape can happen in prejudice of the party but when some body may be charged therewith and the Law deceives none 30. If since the Statute of 31. H. 8. 1. Ioynt-tenants make partition with consent by Deed the Warranty annexed to their estate is gone Co. l. 6. 12. a. Morrices case Writ of partition but if they sue a Writ of Partition according to that Act they may vouch as before and such partition will not prejudice them being founded upon a Statute Law whereunto all persons give consent So if there be two Ioynt-tenants with Warranty and the one disseiseth the other and the Disseisee brings an Assize In this case it seems to be the better opinion that the Disseisee shall not recover in severalty but generally neither is the Warranty gone by such Recovery as it was adjudged in 28 lib. Ass Pl. 35. because the Recovery is an Act in Law which prejudiceth none albeit some Books are against it as 10 E. 3. 40. 10. lib. Ass 17. Co. l. 6. 27. b. 4. Viscount Montagues case 31. No Fine for alienation Stat. 27 H. 8. Vicount Montague with licence of the Queen suffers a Recovery to B. and D. to uses with power of revocation and limitation of other uses he revoks and limits new uses in this case no Fine shall be paid to the Queen for alienation For when licence is granted to alien to A. and the alienation is to the use of B. here no Fine is to be paid for the alienation to the use of B. because the use is executed by the Statute of 27 H. 8. which can wrong no man Co. l. 9. 106. b. 2 Margaret Podgers case 32. P. Copy-holder for life Remainder for life An act of Parliament doâ— no wrong the Lord bargains and sels and levies a Fine with Proclamations to P. five yeares passe without any claime by those in Remainder yet are they not barred because P. the Bargainee was in by force of the Statute of 27 H. 8. upon a bargaine and sale by Deed indented and inrolled and an act of Parliament can never do wrong See there also the Lady Greshams case where an Act of Parliament excused a Fine for alienation of Land in Capite without licence upon the same reason The like 33. Plow 59 a. 2. in Wimbish and Talboies case Where a Feoffment was made to Feoffees to the use of another before the Statute of 27 H. 8. of uses and then that Statute was made which transfers the Possession to Cestuy que use In this case the gift passes from the Feoffees to Cestuy que use by the Parliament because the consent of the Feoffees is involved in that Act of Parliament and it cannot be said that the Parliament gave it to Cestuy que use for if it should be said the gift of another then of the Feoffees then should the Parliament do the Feoffees wrong in taking a thing from them and making another the Donor thereof which an Act of Parliament cannot doe See there also the Rector of Edingtons case 19 H. 6. 62. Fitz. Grant 10. Br. 40. Parl. 88. to the like purpose Stat. W. 2. c. 39. Ravishment of Gard. 34. A woman covert is not within the Statute of West 2. cap. 39. Co. l. 9 73. a. 1. in Doctor Husseys case Concerning ravishment of Ward for part of the words are Si haeredem post annos nubiles maritaverit de maritagio satisfacere non potuerit abjuret regnum vel habeat prisonam imperpetuum c. for a Feme covert being by Law disabled to satisfie she shall not be by Law punished with banishment or perpetuall imprisonment and the Husband being innocent ought not to be punished because the punishment is personall Vide pl. ibid. infra Max. 156. Fealty 35. Co. Inst pars 1. 98. a. 3. Where an Abbot holding in Frankalmoigne together with his Covent aliens the Land to a secular man he cannot hold as they held viz. in Frankalmoigne and of necessity he must hold of some body and by some service for that the Law will enjoyne him to do to avoid the inconvenience of holding of none And therefore in regard the Law is in this case to create him a new tenure it shall be the lowest viz. in Socage and with the least service that can be done and nearest to the freedome of the former service Vide 184. 4. Parol demur non-age 36. Co. l. 9. 85. a. 4. in Connies case In a Writ of Mesne the Parol shall not demur for the non-age of the Plaintiff because it is not reason that the Infant should be distrained for the services of the Mesne during his non-age and yet he to have no remedy untill his full age but in regard his non-age shall not priviledge him from the payment of the Rent during his non-age the Law will also give him remedy during that time 149. Vide M. 150. Ex. 9. Especially for things that cannot be imputed to their own folly or neglect Tenant by the curtesie Things that lye in Grant 1. Tenant by the Courtesie shall have after his Wives death a Rent Co. Inst pars 1. 15. b. 2. Co. ibid. 29. a. or Advowson albeit the Rent day was not then come nor the Church then void and by consequent he not actually seised thereof before his Wives death because there was no Laches or default in him nor possibility to get Seisin and therefore the Law in respect of the issue begotten by him will give him an estate by the curtesie of England therein albeit he was not thereof actually seised as aforesaid It is otherwise where he hath in right of his Wife title of Entry into Lands and in her life neglects it for that is imputed to his own laches and folly Neither shall a man be Tenant by the curtesie of a bare right title use or of a Reversion or Remainder expectant upon an estate of Free-hold unlesse the particular estate be determined or ended during the Coverture Curtesie Dower 2. Co. ibid. 31. a. 3. A man shall not be Tenant by the Curtesie of a Seisin in Law without Entry but he ought to be actually seised in the life of his Wife Howbeit a woman shall be endowed of a Seisin in Law as where Lands or Tenements descend to the Husband here before Entry he hath but a Seisin in Law and yet the Wife shall be endowed thereof albeit it be not reduced to an actuall Possession for it lyeth not in the power of the Wife to bring it into an actuall Seisin as
tail enfeoff his Son and another of Land in tail by his Deed in fee Litt. S. 684. Co. ibid 359. a. 4. and Livery of Seisin is made to the other according to the Deed and the Son knowing nothing thereof agrees not to the Feoffment and after he that takes the Livery of Seisin dyes and the Son doth not occupy the Land nor take the profits thereof during the life of the Father and then the Father dyes Here this is a Remitter to the Son because the Frank-tenement is cast upon him by the Survivor and no default was in him for that he never agreed to the Feoffment No damages against the Tenant 21. If a man be disseised Litt. S. 685. Co. ibid. 359. b. 2. and the Disseisor makes Feoffment to A. B. and C. and Livery is made to A. and B. but C. was not at the Livery nor agrees to the Feoffment nor takes any profit of the Land and after A. and B. dyes and C. survives them and the Disseisee brings his Writ Sur disseisin in the per against C. who shewes all the matter how he never agreed to the Feoffment and so he shall be discharged of the damages albeit he was Tenant of the Frank tenement of the Land and that the Statute of Glocester will that the Disseisee shall recover damages in a Writ of Entry grounded Sur disseisin against him that is found Tenant yet here because C. was in no default the Disseisee shall not recover damages against him Release of â—arranty 22. If two make a Feoffment in fee Co. ibid. 393. a. 1. and warrant the Land to the Feoffee and his heires and the Feoffee release to one of the Feoffors the warranty yet he shall vouch the other for the moyety So likewise if one enfeoff two with warranty and the one release the warranty yet the other shall vouch for his moyety causa patet Condition Acceptance Confirmation 23. If a Lease be made rendring rent at a certaine day Co. l. 4. 64. a. 4. Pennants case with clause of Re-entry upon non-payment thereof and the rent is behind two years in this case if the Lessor accept the last halfe years rent all the arrearages are discharged and by such acceptance the Lease is confirmed but if the Condition be that if he alien any part of the Land without the Lessors licence then it shall be lawfull for him to re-enter In this case if the Condition be broken and the Lessor do afterwards accept the rent this is no confirmation of the Lease because such assignment may be done so secretly that the Lessor cannot possibly discover it for in the first case the Lessor may know the time when the Condition ought to be performed but not in the other See the like case adjudged in Com. Banco Mich. 39 40 El. which Plea begins Term. Hill 38 El. Rot. 1302. in Trespasse inter March Curteis Escape 24. The Sheriffs of London at the end of their office Co. l. 3. 71. b. 4. Westbies case delivered by Indenture B. in execution to the new Sheriffs and whereas he was in execution at the Suit of C. and D D. was onely named in the Indenture B. after such Delivery makes an escape C. brings an Action of debt against the old Sheriffs upon this escape and recovers because here the default was in the old Sheriffs for that they did omit the execucution of C. in their Indenture and therefore albeit B. was within the Walls of the Prison after such Delivery over by Indenture yet was he not Prisoner to the new Sheriffs but it was an escape from such Delivery Neverthelesse there was no reason that C. should be without remedy in this case for that no default or negligence could be imputed to him in that mis-carryage Co l. 3. 78. b. 4. in Fermers case 25. Fine levyed by Covin A. possessed of divers parcels of Land within the Mannor of S. for years at will and by copy and of others in fee there demiseth the whole to B. for life and then levies a Fine to him and his heirs of so many Acres as amount to the whole Land continues Possession and payes the rents to the Lord as if no such thing had been done In this case albeit five years passed yet the Lord was not barred and yet in the Statute of 4 H. 7. the saving is of such right as first shall grow remaine c. And there the right first accrued to the Lessor after the Fine in the Forfeiture Neverthelesse the Lord in this case shall not be barred because A. having Lands within the same Mannor and still continuing the Possession and paying the Rents the Lord could not possibly take notice of the Covin So if Lessee for life having Lands in the same Towne levy a Fine the Statute shall be construed against the words and the Lessor shall be allowed five years after the death of the Lessee for life and in that case Non-claime shall not prejudice him because he was forced to it by the Lessee whose Conveyance was so close that he could have no notice that any Fine was levied of his Land Co. l. 4. 10. b. 4. in Bevils case 26. Rents and Services Statute 32 H 8. 2. Limitation The Statute of 32 H. 8. c. 2. for limitation of Rent or Service to have actuall Seisin thereof within forty years c. extends not to such a Rent or Service as by common possibility cannot happen or become due within sixty years as if a Seigniory consists of Homage and Fealty onely for the Tenant may live above sixty years after they are made So if the Service be to cover the Lords Hall or to go with him when there shall be a Warre betwixt the King and any of his Enemies such casuall Services as by common possibility cannot happen within sixty years are not within that Statute neither is the Lord bound by it because it is not his default or neglect that he cannot prove himself seised of the Services within forty years according to the limitation of that Statute There is the same Law of a Formedon in descender for the Tenant in tail may live sixty years after the Discontinuance So likewise if the Lord release to the Tenant so long as I. S. hath heire of his body and sixty years passe and I. S. dye without heire of his body in this case also albeit the sixty years passe yet the Lord may distraine for them when he pleaseth because they are not within the purview of the Statute causa qua supra Co. l. 4 27. a. 2. in Chifton and Molineux case 27. Where a Feme Tenant for life of a Copy-hold takes Baron Waste by Baron Copy-hold and the Baron commits Waste against the custome of the Mannor and dyes the estate of the Feme is in this case forfeited by the act of the Baron because it was her folly to take
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
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
False plea in Dower 2. In a Writ of Dower Co. ibid. 33. a. 1. if the Tenant being in by discent plead a false Plea he shall answer all the damages from the time of the Husbands death albeit for some part of that time he enjoyed not the Land nor received any profit thereof As it appeares in a notable Record between Belfeild and Rowle Mich. 8 9. Eliz. Rot. 904. in Com. Ba. In which Suite the Tenant as to parcell pleads non tenure and for the residue detainer of Charters upon which Pleas they were at Issue and both Issues found by the Iury against the Tenant and found further that the Husband dyed seised such a day and yeare and had Issue a Son and that the Demandant and the Son for six yeares after the decease of the Husband together took the profits of the Land and after the Son such a day and yeare dyed without Issue after whose decease the Land discended to the Tenant as Vncle and Heire to him by force whereof he entred and took the profits untill the purchasing of the Originall Writ and found the value of the Land by the yeare and assessed damages for the detaining of the Dower and costs of Suit upon which Verdict after much debating the Demandant had Iudgement to recover her damages for all the time from the death of her Husband without any defalcation And this was cheifely caused by his false Plea whereas he might have avoyded the answering of the damages for the six yeares if he had truly pleaded according to the truth of his case Assignment of Dower by a wrong-doer voidable 3. If assignment of Dower be made by any Disseisor Abator Co. ibid. 35. â— 2. in Bredi mans case Co. l. 6. 58. a. 1. Intrudor or any wrong doer in Lands and Tenements if they came to that estate by collusion and covin between the Widow and them albeit the Widow hath just cause of Action and the Assignment be indifferently made after Iudgement by the Sheriff of an equall third part yet shall the Disseisee c. avoid it for covin in this case shall suffocate the right that â—â—pertained to her and so the wrongfull manner shall avoid the matter that is lawfull See Pl. Co. 51. a. Rent-charge extinct by covin 4. If a man grant a Rent-charge out of two acres Co. ibid. 148. b. 3. and after the Grantee recovereth one of the Acres against the Grantor by a title Paramont the whole rent shall issue out of the other Acre but if the Recovery be by a faint title by Covin then the rent is extinct for the whole because he claimeth under the Grantor Forfeiture 5. If Tenant for life plead covinously Co. Inst pars 1. 252. a. 1. to the disherison of him in the Reversion this is a Forfeiture upon Record Avowry Stat. 11 H. 8. 19. 6. The Stat. of 21 H. 8. 19. which gives to the Lord Avowry upon the lands without naming any person certain being made to suppress fraud Co. ibid. 268. b. 2. in the case of Avowry Co. l. 9. 22. a. shall be taken with equity And therefore where the words of the Statute be If the Lord distraine upon the Lands and Tenements holden yet if the Lord come to distrain and the Tenant chase away his Beasts which were within view out of the Land holden and there the Lord distraine Albeit the Distresse be in that case taken out of his fee and Seigniory yet it is within the said Statute for in Iudgement of Law the Distress is lawfull and as taken within his fee and Seigniory because that Statute being made to prevent fraud and covin admits an equitable interpretation as aforesaid So it is also if his Bayliff do it tamen quaere de hoc but for Damage-feasant the Distresse must be taken upon the Land c. Attaint 7. Perjury which is a falsehood or fraud in a high degree is greivously punished by the common Law Co. ibid. 294. b. 2. And therefore in an Attaint which is a Writ that lyeth where a false Verdict in Court of Record upon an Issue joyned by the parties is given if the petty Iury be attainted of a false oath they are stained with perjury and infamous for ever for the Iudgement at the common Law importeth 8 greivous punishments 1. Quod amittat liberam legem imperpetuum viz. that they shall be infamous for ever and never be received to be a witness or of a Iury 2. Ferisfaciant omnia bona catalla sua 3. Terrae tenementa in manus domini Regis capiantur 4. Uxores liberi extra domos suas ejicerentur 5. Domus suae prostrentur 6. Arbores suae extirpentur 7. Prata sua urentur 8. Corpora sua carceri mancipentur And the Law esteemed perjury in this kind the more odious and afflicteth the greater punishment thereupon because the tryalls of all Actions reall personall and mixt depend upon the oath of twelve men and prudent Antiquity inflicted a strange and severe punishment upon them if they were attainted of falsehood and perjury ut poena ad paucos metus ad omnes perveniat for there is miserecordia puniens and there is also crudelitas paucens But this punishment is altered by the Statute of 23 H. 8. cap. 3. Co. ibid. b. 3. 8. The Statute of 23 H. 8. cap. 3. made to prevent perjury and false Verdicts shall be taken with equity for 1. where the Statute saith Attaint Stat. 23 H. 8. 3. that the party greived shall have an Attaint against the party who shall have Iudgement upon the Verdict yet the Attaint shall be maintained upon that Statute against the Executors of that party Howbeit it must be between party and party 2. In the Kings Bench or Common Pleas 3. Consider what Pleas may be pleaded in an Attaint by force of that Statute and what not Litt. S. 675. 9. If a man let Land to a Feme for life A false Recovery and afterwards one sues a feined and false Action against the Feme and recovers the Land against her by default so as the Feme may have a Quod ei deforceat according to the Statute of West 2. cap. 4. The Law gives so much respect to a Recovery Co. ibid. 356. a. 4. 362. a. 1. Co. l. 1. 15. b. 3. that it workes a Discontinuance so as the Reversioner shall not have an Action of Waste c. Howbeit if Tenant for life suffer a common Recovery or any other Recovery by covin and consent between the Tenant for life and the Recoveror this is a Forfeiture of his estate and he in the Reversion may presently enter for the Forfeiture See the Statute of 14 Eliz. cap. 8. concerning this matter and Co. l. 1. 15. Sir William Pethams case l. 3. 60. c. Litt. S. 678. 10. If the Baron discontinue the Land of the Feme Covin
copyhold-Copyhold-lands are within the Statute of 32 H. 8. 9. for the Statute saith If any bargaine buy or sell c. Pretenced titles of Copiholds any right or title in or to any Lands or Tenements c. and Copyholds are Lands in and to which right or title may be had and made and they are included in that act to avoid Suites Maintenance and Champerty and by consequent fraud and deceit per Wray And note that in Partridge and Crokers case in Pl. Co. 76. A Lease for years is adjudged within that Act. Co. l. 5. 14. b. 2. 20. By all Statutes made to prevent and suppresse fraud Fraud The king bound the King is bound albeit he be not especially named because Truth Iustice and Religion are the Supporters of his Crowne and Diadem In the case of Ecclesiasticall persons Co. l. 5. 60 a Gooches case 21. In Debt upon an Obligation against the heire Fraudulent conveyance void the Defendant pleads riens per descent the plaintiff maintaines assets in Com. S. the Defendant saith that before the action commenced he had enfeoffed A. of those lands against which the Plaintiff alleadged and proved that the feoffment was by fraud unto which it was urged that the fraud ought to have been specially pleaded and could not be brought in evidence but it was adjudged per totam Curiam that it might be given in evidence and needed not to be specially pleaded 1. because the Statute of 13. Eliz. 5. provides generally that the estate as to the creditor shall be void and Acts of Parliament made for prevention and Suppression of fraud ought to have a benigne interpretation 2. If that matter ought to be pleaded it would prove mischievous to Creditors and would tend much to the mainteinance and increase of fraud and covin for fraud and covin because they are odious are so privily hatched in an hollow tree in arbore cava opaca and so artificially contrived and concealed that the partie grieved hath no meanes to find or know them and then to force the Plaintiff who is a stranger to it to plead the feoffment whereof he hath no notice and that it was done by fraud c. would be mischievous and against Law and reason and thereupon Iudgment was given for the Plaintiff Co. ibid b. 22. A. seised of land in fee makes a fraudulent conveyance to the intent to deceive and defraud purchasers contrarie to the stat of 27. The like Eliz. 4. continues in possession and is reputed as owner B. enters into communication with A. for the purchase thereof and by accident B. hath notice and intelligence of the fraudulent conveyance and notwithstanding that concludes with A. and takes his assuranre from him In this case B. shall avoyde the said fraudulent conveyance by the said Act notwithstanding such notice for the Act hath by expresse words made the fraudulent conveyance void as to the purchasor and in as much as it is within the expresse purview of that Statute it ought to be so taken and expounded in suppression of fraud per Wray but see the like case agreed and resolved per totam Curiam P. 3. Jac. in the case of one Standen Co. l. 5. 69 b. 4. in Burtons case 23. If A. lend 100 l. to B. upon the first of July 1653 and B. Usury grants to A. 20 l. per annum out of the Mannor of D. to begin to be paid at Christmas twelve Moneths after upon Condition if B. pay 100. pounds to A. the first of July 1654. that then the Annuity shall ceâ—se This is not within the Statute of usury but if it had been agreed betwixt them that notwithstanding such power of redemption the 100 l. should not be paid the first of July 1654. and the clause of redemption was inserted on purpose to evade the Statute that had been an usuriâ—us bargain and contract within the Statute Usury 24. A. lends B. 100 l. to pay 20 l. for the Loan of it for one yeare Co. ibid. per Popham if the Son of A. shall be then living this is Vsury within the Statute for if this shall be out of the Statute by reason of the uncertainty of the life the Statute will be of little effect because by the same reason that hee may add one life he may adde more and so he may evade the statute at pleasure that Liberty being like a Mathematicall line viz. Divisibilias in indivisibilia False deed 25. If a Deed be pleaded and shewed in Court and denyed Co. ib. 74. b. 4. in Wymarkes case then it shall alwaies remaine in Court to the end that if it be found not his Deed it should be damned for the falsity thereof Fraudulent conveyances 26. The statute of 11 H. 8. 5. Co. ibid. 77. a. 4. in Boothes case being made to suppresse Fraud and Deceit shall be taken and interpreted beneficially And therefore whereas the words of that Act are that where Tenant for life or yeares have demised or granted to the intent that those in Reversion viz. their Lessors their Heires or Assignes should not know their names and afterwards the first Tenants continually occupy the Lands c. and make Wast c. It is ordained c. that he in Reversion in such case shall maintain a Writ of Wast against the said Tenants for life or yeares yet every Assignee of the first Lessee mediate or immediate is within the sayd Act albeit not therein mentioned Also he in Remainder is within the Act as well as he in Reversion albeit both in the Preamble and Body of the Act there is only mention made of him in Reversion Profits 27. In Formedon the Tenant pleads non-tenure Co. ibid. b. 2. the Demandant saith that he hath made a Feoffment to persons unknown with purpose to defraud him of his Tenancy and still takes the profits In this case the pernancy of the profits and not the Feoffment is traversable 4 H. 7. 9. Warranty 28. The Father Tenant for life Remainder to the Son Co. l. 5. 80. b. 2 leases for yeares to A. with a designe to bar the Son A. enfeoffs B. to whom the Father releaseth with Warranty and dies In this case the Son is not barred by this Warranty being a Warranty that begins by disseisin for albeit it is said in our bookes and true it is that Warranty is much favoured in Law because it extends to establish him that is the Ter-tenant in possession yet when Warranties are mixt with Covin which is so odious and so much abhorred in Law they loose not only their favour but force also for Covin is like poyson that infects every good thing with which it is mixt c. Feigned arrest 29. The entring of feigned Actions in the Counter Co. l. 6. 54. b. 2. in the Countesse of Rutlands case upon pretence afterwards when the Serjeants have the Prisoner in
and the other Husband and Wife the other Moiety and no crosse Remainder or other possibilitie for the improbability thereof shall be allowed in Law where it is once setled and takes effect so likewise if Lands be given to a man and two women and the Heires of their bodies begotten in this case they have a joynt Estate for life and each of them a severall Inheritance because they cannot have one Issue of their bodies neither shall there be by any construction a possibility upon a possibility for the Improbability thereof viz. that he shall marry the one first and then the other The same Law it is also when Land is given to two men and one woman and to the heires of their Bodies begotten Co. l. 2. 51. a 4. in Sir Hugh Cholmelies case in Magdalen Colledge case Co. l. 11. 70. b. 3. 2. A remote possibility is never intended by Law Remainders improbable to take effect And therefore where A. was Tenant in Taile Remainder in Taile to B. B. grants all his Estate to C. for the life of A. this Grant is void because it is impossible it should ever take effect and whereas in that case it was objected that A. might enter into Religion and be profest whereupon the Grantee might enter and enjoy the Land during the naturall life of A. it was answered and resolved That that was a Forraigne possibility and not probable nor imaginable in Law for a possibility which makes a Remainder good must be Potentia propinqua a common possibility and not Potentia remota And therefore a Remainder will not vest in a thing or person that is not in Esse at the time of the Grant made unless at the same time there be Potentia propinqua or a pregnant probability that it may take effect as a Remainder granted to a Corporation not in being at the time of the Grant made is void albeit the Corporation be erected afterwards during the particular Estate because that is Potentia remota and improbable But if a Lease be made for life the Remainder to the right Heires of I. S. this is good for by common possibility that I.S. may dye during the life of Tenant for life and untill he dye his Heires are in him Howbeit if at the time of the limitation of the Remainder there be no such person as I.S. but during the life of Tenant for life I.S. is borne and dyes his Heir shall never take it 2 H. 7. 13. 10 E. 3. 46. as it is agreed in 2 H. 7. 13. So likewise in 10 E. 3. 46. upon a Fine levied to R. he grants and renders to I. and Florence his Wife for life the Remainder to G. the Son of I. in taile the Remainder to the right Heires of I. and in truth at the time of the Fine levied I. had not any Son named G. but after had issue named G. and dyed In this case G. could not take the Remainder in Taile because he was not borne at the time of the Fine levied for when I. had not then any Son named G. the Law doth not expect that he shall have a Son named G. after for that is improbable and Potentia remota c. Obligation payable before statutes 3. Debt due by Obligation shall be payd by an Executor before a Statute acknowledged for the performance of Covenants Co. l. 5. 28. b. Harrisons case when none of them are or perhaps will ever be broken but are things in contingency Futuro and therefore such a possibility which peradventure will never happen shall not barre present and due debts by Obligation or other specialties Contingency 4. When a man by Indenture limits Lands to himselfe for life Co. l. 10. 85 a. 2. in Leonard Lovies his case Remainder to another in taile Remainder to his right Heirs with power to make Leases for Life Lives or Yeares without any restraint of Lives or Yeares and further to the uses to be exprest in his last Will or to the use of such person or persons unto whom he shal by his last Will devise any Estate or Estates thereof In this case the Estate in Taile is incontingency for by those or the like words he may devise the Land to any person in Taile or in Fee And therefore because it is very improbable that the Estate tail may ever take effect it shall not in this case presently vest by the statute of 27 H. 8. but shall be said to be in contingency so as if he by such power alter not the Estates so limited it may happen to take effect but if otherwise it will vanish and come to nothing Vide pl. ibidem Bar to an avowry 5. In Bar to an Avowry for Trespasse in 300 acres of common field Land or Downe Dyer 171. 9. 1 2. Eliz. the Plaintiff to frame himselfe a Title alledgeth in his Barr that A. from whom he derived his Estate was seised of the scite of the Mannor of Dale whereof the said 300 acres were parcell and this Barr was adjudged insufficient for the Improbability that so much Land should be parcell of the scite 162. Uncertainties by which the truth may be inveigled Villain 1. If a man do enfranchise a Villain Cum tota sequela sua Co. Inst pars 1. 3. a. 4. that is not sufficient to enfranchise his children borne before for the uncertainty of the word Sequela Heires 2. If a man gives Lands to one to have and hold to him or his heirs Co Ib. 8. b. 3. 22 H. 6. 15. he hath but an Estate for life for the uncertainty so if a man give Land to two to have and to hold to them two Et heredibus omitting Suis they have but an Estate for life for the uncertainty Co. ibid. 9. a. 2. and Co. ibid. 20. b. 1. 3. To avoid uncertainty Vocabula artis which is commonly the Mother of contention and confusion the Law doth appropriate to it selfe certaine words which may be termed Vocabula artis to expresse diverse things which cannot significantly be expressed by any other words or by any Periphrasis or circumlocution without them as the word Heires for the discent of Inheritance which doth not only extend to his immediate heirs but to his heires remote and most remote born and to be borne Sub quibus vocabulis heredibus suis omnes haeredes propinqui remoti nati nascitari And Haeredum appellatione veniunt haeredes haeredum in infinitum saith Fleta lib. 3. cap. 8. So likewise the Law useth peculiar words for Tenures Persons Offences Formes of Originall Writs Warranty Exchange c. and all this to procure certaine expressions and to prevent uncertainty for the reason aforesaid Co. ibid. 20. b. 1. 4. If a man give Lands to A. Et haeredibus de corpore suo A grant void the Remainder to B. In forma predicta this is a good Estate Taile to
saved for that would be repugnant and make the expresse gift void and vaine Act of Parliament repugnant 20. It appeares in our Books that a saving in an Act of Parliament which is repugnant to the body of the Act is void Co. l. 1. 47. in Alton Woods case as in Plowdens Commentaries fol. 563. b. where the supposed Attainder of the Duke of Norfolke was by Act of Parliament in primo Mariae declared to be void and null ab initio saving the Estates and Leases made by E. 6. This saving was void for when the Attainder was declared to be void the said saving was against the body of the Act and therefore repugnant and void The like 21. It is enacted by the Statute of 31 H. 8. cap. 13. that all Houses of Religion Co. ibid. a. 3. and their Possessions then or afterwards to be dissolved shall be the Kings in the same estate and condition as they were at the time of the making of the said Act saving to all strangers their Interests c. After the said Act the Abbot of Ramsey grants the next avoydance of a Church of his Patronage and after the Abbey is dissolved and it was adjudged Mich. 6. 7. Eliz. Dyer 231. that the Grant was void and the saving repugnant to the body of the Act for if the Advowson were in the King in the same estate and condition as it was at the time of the making of the Act then a Grant made after cannot be saved 22. If Land escheat to the King by Forfeiture of Treason Co. ibid. Co. l. 8. 118. b. 3. Doctor Bonhams case and after this Land is given to another by Act of Parliament The like saving to all others their Rents Services c. This saving is repugnant and void for they were extinct by the Forfeiture 14 Eliz. Dyer 313. The like 23. By the Statute of 1 E. 6. of Chanteries all Services Rents Co. Inst ibid. a. 4. c. are saved yet this saving as to Services is repugnant and void for the King cannot hold of any as it is held 14 Eliz. Dyer 313. a. 24. In the case of Alton Woods Co ibid. 52. b. 1. the Mannor of Abbottesley being expressely given to the King by the Statute of 28 H. 8. the generall saving cannot extend to save the estate The like c. of him that was seised of the Land for that would be repugnant to the body of the Act and would make the Act vaine and idle Co. l. 1. 84. a. 3. Corbets case Co. l. 6. 40 b. Sir Anthony Mildmayes case 25. C. covenants to stand seised to his own use for life Perpetuities the Remainder to R. in tail the Remainder to A. in tail c. upon this Condition or Proviso that if any of these shal resolve to bar the said estate that then his estate shall cease as if he were naturally dead and be to the next Remainder Here this Proviso is repugnant and against Law for an estate taile cannot cease by the onely death of the Tenant in tail but by his death without Issue and death naturall or civill is requisite to every Descent Reversion or Remainder upon the determination of an estate taile Vide pl. ibid. Co. ibid. b. 3. 26. In 8 Assis Pl. 33. A man gives Land to Mary and Johan his Sisters Joynt estate repugnant Et haeredibus de corporibus earum legitime procreatis whereby they had a joynt estate for life and severall Inheritances and the Donor intending that neither of them should breake the Ioynture but that the Survivor should have all per jus accrescendi added this clause Sub hac forma quod illa quae illarum diutius vixerit tenebit terram illam integram Howbeit in as much as his intent is contrary to Law if the Ioynture were severed by Fine levyed the Survivor shall not have the part so severed by the said clause which he had so inserted of his owne cenceit and imagination repugnant to Law and reason Co. ibid. b. 4. 27. In Plesintons case in 6 R. 2. which see tit Quid juris clamat Condition repugnant 20. A man makes a Lease upon Condition that if the Lessor grants the Reversion that then the Lessee shall have fee In this case if the Lessor grant the Reversion by Fine the Lessee shall not have fee for the Condition is repugnant and void Vide Pl. Com. 32. a. 4. Colthirst and Bevish Co. l. 1. 176. b. 1. Mildmayes case 28. When an use is raised in consideration of Fatherly love Proviso repugnant c. with a Proviso to make Leases the Proviso is repugnant and void because when the Indenture is once sealed and delivered his power of making Leases is taken away it is otherwise where uses are raised upon a Fine Recovery or Feoffment for there needs no consideration Co. l. 2. 23. b. 4. in Baldwins case 29. In Baldwins case in the 2 Report Premisses and Habendum repugnant these Resolutions were agreed for Law 1. As to things which take their essence and effect by the Delivery of the Deed without other ceremony and which lye in Grant when there is variance between the Premisses and the Habendum In such case the estate which so passeth by the Delivery of the Deed and is most advantagious to the Grantee shall stand and the other shall be void for the repugnancy So if a man grants rent on Condition c. out of his Land by the Premisses of the Deed to a man and his Heirs Habendum to the Grantee for years or life in this case the Habendum is repugnant for fee passed in the Premisses by the delivery of the Deed and therefore the Habendum for years or life is repugnant and void 2. If a man by Deed grant a Rent in esse or a Seigniory in the Premisses to one and his Heires Habendum to the Grantee for years or for life albeit it another thing or ceremony is requisite viz. Attornement besides the delivery of the Deed yet in as much as the thing lyes in Grant and both the estates viz. as well the estate in fee as the estate for years or for life ought to have one and the same ceremony viz. Attornement to passe it for that cause in such case the Habendum is also repugnant and void 3. When a man gives in fee by the Premisses Habendum to the Lessee for life in this case the Hebendum is repugnant and void for one and the same ceremony viz. Livery is requisite to both the estates and therefore when Livery is made according to the forme and effect of the Deed it shall be taken most forcibly against the Feoffor and most for the advantage of the Feoffee and the Habendum in such case is repugnant and void and untill Livery the Feoffee hath but an estate at will 4. When to an estate limited by the Premisses a
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
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
the writ should by the non-return of the writ be tortious then the Sherif will never find buyers to whom he may sell any defendants goods by force of any writ of execution which would be inconvenient and great delay of executions which are the fruit and life of every sute 30 If a rent be granted out of the Manor of Dale Rent charge and the grantor grant over Co. l. 7. 24. a. 3. Buts case that if the rent be behind the grantee shall distrain for the same in the Manor of Sale this is no grant of the rent but only a penalty in the Manor of Sale for if the grantée should bring a writ of Annuity that would only extend to the Manor of D. for upon the grant of the distress in the Manor of Sale no writ of Annuity lyeth because the Manor of S. is only charged and not the person of the grantor as to that And therefore the bringing of the writ of Annuity cannot discharge the Manor of S. of any rent And so the Law by construction against the words and intention of the parties shall doe an injury to the grantor to charge him twice which were inconvenient Co. l. 9. 85. a. 4. in Connys case 31 In a writ of Mesne the Paroll shall not demurr for the nonage of the plaintif because it is not reason Parol demur nonage that the Infant should be distrained for the services of the Mesne during his nonage and yet he to have no remedy until his full age but in regard his nonage shall not privilege him from the payment of the rent during his nonage the Law will also give him remedy during that time Writ of Error 32 These two Rules in Law are regularly true Co. l. 11. 41. a. 1. in Metcalfs case 1. That a writ of Error lyeth not upon an award until the principal judgement be given 2. That it lyeth not until the whole matter in the original be determined yet each of these have exceptions For as to the first in Trin. 18 H. 7. in B. R. Rot. 3. E. was indicted for the death of M. before Iustices of Peace in the County of Lincoln whereupon a Capias was awarded and thereupon also an Exigent after which E. dies before any Attainder upon which award of the Exigent his executors bring a writ of Error and it was adjudged that the writ of Error did well lie because by the award of the Exigent his goods and chattels were forfeit and of such awards which tend ad grave damnum of the party a writ of Error lyeth sic de similibus As to the second you shall find in 36 H. 6. Fieri fac 3. That in debt against divers by several praecipes if there be error in the Iudgements against one of them he shall have a writ of Error for in Originals wherein there are several Counts and Error is against one he shall have a writ of Error and the record of his Count and the pleading c. shall be severed from the original and removed into the Kings Bench and yet the Original shall still remain in the Common Place for it would be inconvenient and prejudicial in that case to stay until judgement be given upon the whole original Howbeit where there is one original and one Count he cannot have a writ of Error untill all be determined for the record cannot be in the Kings Bench and the Com. Pl. all at one time Collusion 33 It is provided by the Statute of Marlebridge cap. 6. that the Lord by Knight service shall not lose his custody by feoffment made by Collusion Co. l. 11. 77. b. 3. in Magdalen Colleges case veruntamen non licet eis hujusmodi feoffatos sine Iudicio disseisire fed brevia habeant de hujusmodi custodia sibi reddenda yet if the tenant enfeoff the Villein of the Lord upon collusion the Lord may enter and expell him and shall not be put to his action as it is held in 33 H. 6. 16. for the general words of the Act shall not enable the Villein who is disabled against his Lord by the Common Law and if the Lord should bring an action against him according to the letter of the Act he shall be thereby enfranchised which would be a prejudice to the Lord and was never intended by the Makers of that Act. Intent of the Law performed no breach 34 In every Law there are some things which when they happen Pl. Co. 18. a. 4. in Fogassaes case 19 b. 1. a man may break the words of the Law and yet not break the Law it self and such things are exempt out of the penalty of the Law albeit they are done against the letter of the Law for the breaking of the words of the Law is not the breaking of the Law so as the intent of the Law is not broken and when the words of the Law are broken for the avoiding of greater inconveniences For example it is against the Law for any man to assault bind or beat another yet in the 22. Book of Assises pl. 56. If a man be mad and out of his wits whereby he doth or is likely to do great hurt other men may assault bind and beat him too and justifie it by Law to prevent the hurt and mischief which he may do in that condition So the Statute of Marlebridge cap. 4. prohibits generally that none shall convey a distress out of one County into another yet it is adjudged in 1 H. 6. Tit. Distress 1. that if one hold land of a Manor in another County the Lord may distrain and bring the distress from the land holden of the Manor into the County where the Manor is and this is for the avoiding of a mischief inconvenience for it would be great damage to the Lord if he might not bring the distress to his Manor for the avoidance whereof the Law is not offended albeit the letter of the Law is not observed In like manner there was a Law amongst the Romans that whosoever scaled the walls in the night should be condemned to die yet in the time of warr one scaled the walls in the night to discover the approach of the Enemy and he was by the Senate not only discharged of death but besides was well rewarded for that his service to the Commonwealth for although he thereby infringed the words of the Law yet the grave Senators expounded it to be no breach of the intent of the Law because that Law was made to prevent hurt and danger and not to inhibit benefit and safety to the City So likewise in Fogassaes case the incertainty of the word being caused for the avoiding of a great inconvenience viz. the loss of many mens lives shall excuse the incertainty of the agreement with the Collector Pl. Co. 100 b. in matters of the Crown 35 In an appeal of murder against five Trial. if one Venire
c. hereupon C. brings a writ of Error c. and for one of the Errors assigns that albeit Ludlow be a Court of Record yet it is not such a Court as is intended by the Statute for causes of that nature for that the antient usage in all such popular actions or informations hath been that albeit the Informer tam pro domina Regina quam pro ipso exhibits the Information yet if the defendant pleads a special plea the Quéens Attorney shall reply alone and it was intended by the makers of the said Act that the sute should be in such a Court where the Kings Attorney may attend for the benefit which the King may have by such a sute and that is in the four Courts at Westminster And thereupon the Iudgement was reversed Vide Dyer 236. 24. Admission and Institution 32 He that comes in by Admission and institution Co. l. 6. 49. b. 1. in Boswels case comes in by a judicial act and the Law presumes that the Bishop who hath the cure of the Souls of all within his diocess for which he shall answer at his fearfull and final account in respect whereof he ought to defend them from all Schismatiques Heretiques and other Instruments of the devil will not do or assent to any wrong to be done to any Parsonage within his diocess but if the Church be litigious will inform himself of the truth de Iure Patronatus and so do right Peer agâ— 33 The person of a Peer of the Realm or a Countess Baroness Co. l. 6. 52. b. 3. in the Countess of Rutlands case c. by marriage or descent ought not to be arrested for debt or trespass because the Law presumes that they have sufficient in lands and tenements whereby they may be distrained and therefore in such cases issues only shall go out against their lands And albeit a Countess Baroness c. in respect of her sex cannot sit in Parliament yet she is a Peer of the Realm and shall be tried by her Peers as appears by the Statute of 20 H. 6. cap. 9. which is but a declaration of the Common Law Vide plus ibidem Cestuy que use 34 If Cestuy que use had granted his use by his will Co. l. 6. 76. a. 3. in Sir Geo. Cursons case no collusion could have been averred upon such a will to obtain the wardship of his heir for Nemo praeâ—umitur esse immemor suae aeternae salutis et maxime in articulo mortis et omne testamentum morte consummatum est And therefore the Statute of 4 H. 7. 10. which gives the wardship of Cestuy que use makes exception when any will is by him declared Vide 27 H. 8. 14. Divorce 35 Ch. and Eliz. were divorced in the Court of Audience ratione aetatis minoâ—is et impubertatis Eliz. after they had lived ten years together and had issue a daughter Co. l. 7. 43. b. Kennes case and afterwards Ch. marrying another woman by another Sentence in the Ecclesiastical Court the first marriage was declared void the second good and liberty given them ad exequenda conjugalia obsequia The second wife dies and Ch. marries a third wife and hath issue another daughter The last daughter is found heir by office the first traverseth the office by bill in the Court of Wards And in this case it was resolved that albeit the first was in truth a lawfull marriage yet the Sentence of divorce being in force no averment could be admitted against it because the Spiritual Iudge having jurisdiction thereof before the Sentence were repealed it was intended by Law to be Iust and our Law gave credence thereunto for Res Judicata pro veritate accipitur See Dyer 13. pl. 62. Co. l 9. 52. b. 4 in Hickmols case 36 If the Obligee confess himself to be discharged of all bonds betwixt him and the Obligor Release of bonds this by intendment of Law is a release or discharge of all bonds betwixt them for albeit the word discharge is not properly said of the part of the Obligee but of the Obligor for the Obligor is to be discharged yet in judgement of Law such an acknowledgement amounts to a discharge of the Obligor of all such duties Co. l. 9. 109. Meriel Treshams case 37 In debt against an executor he cannot plead quod ipse non habet c. aliqua bona c. praeter bona Plea of Executor c. quae non sufficiunt ad satisfacienda debita praedicta but he ought to plead quod non habet c. bona c. praeterquam bona catalla ad valentiam of a certain summ non ultra quae eisdem debitis obligata onerabilia existunt for the first plea is insufficient for the uncertainty vide Max. 162. pl. 61. and the other he ought to plead because he being privy and representing the person of the testator hath by intendment of Law notice of the certainty and certain value of the goods and therefore in such case ought to plead certainly as aforesaid The like Law is of an administrator for the goods of the Intestate Co. l. 11 13. a. 1. in Priddle and Nappâ—rs case 38 Of Impropriations formerly given to Monasteries Appropriations not only those which were truly Impropriate but likewise such as had been and were so in reputation were given to H. 8. by the intendment of the Statutes of Dissolution for albeit in those Statutes there is a saving of rights yet the Founders Donors c. are excepted out of that Saving so as they are bound by the body of the Act. Co l. 11. 16. a 4. in Doct. G anâ—s case 39 A Prescription Tites that every Inhabitant in the parish is to pay 2 s. in the pound according to the value of their houses yearly instead of Tithes is a good prescription because by intendment of Law the commencement thereof might be lawfull for it might be so by composition for the land before the houses were built 40 It is a Principle in Law that a barr is good if it be certain Plea in barr to a common intent good to a common intent Pl. Co. 28. a. 4. Colchrist Bernshin Vide ibid. 31. a. 33 a. 4. â—6 a. 3. as if a Messuage be demised to A. for life the remainder to B. for life si ipse B. vellet inhabitare in messuagio praedicto c. Here in an Action brought by the lessor for the recovery of the Messuage c. upon the condition broken it is a good barr for B. to say that after the death of A. he entred without averring the time of his entry viz. immediately after the death of A. because by intendment of Law it will be presumed he did so enter So if one plead in barr that A. died seised and that B. entred as son and heir to A. this is a good barr
down a tree where the trees are not exempted this is an implyed determination of the will Lease at will for that it would otherwise be a wrong in the lessor to do it So if a man lease a Manor at will whereunto a Common is appendant and the lessor puts in his beasts to use the Common this is also a determination of the will for otherwise he should be a trespassor Co. ibid. 78. b. 2. 3 By common intendment a will shall not be supposed to be made by collusion for In facto quod se habet ad bonum malum A Will. magis de bono quam de malo lex intendit Co. ibid. 119. a. 3. Littl. §. 179. 4 If there be tenant for life of land the reversion in fee Villein a Villein purchase the reversion and the tenant for life attorns In this case the Lord may justifie to enter upon the Land and claim the reversion and yet shall be no trespassor to the tenant for life for the Law will make construction that he entred to make his claim and not to commit trespass The like Law is also of a reversion after an estate in tail Statute Merchant or Staple Elegit and for years and of the reversion of a Seigniory rent common and any other freehold or inheritance issuing out of any lands or tenements of another Co. ibid. 170. b. 4. If Partition be made by the two Barons in the life-time of their femes coperceners albeit such partition be unequal yet it is not void Pa râ—tion but voidable for it shall be déemed good and lawfull until it be defeated by the entry of either of the femes if she happen to survive her husband There is the like Law of an Infant copercener Co. ibid. 171 a. 4. for it remains good if he defeat it not at his full age Feoffment upon condition 6 If a feoffment be made by deed poll upon condition Littl. §. 376. Co. ibid. 232. and the feoffor haps the deed poll and afterwards the condition is broken wherupon the feoffor re-enters In this case having the deed en poigne albeit it doth not properly appertain to him but to the feoffée yet he may make use of the deed and thereby plead the condition in justification of his entry and title for it will be rather intended that he came to the déed by lawfull Joint trespass than by tortious means Littl. §. 3â—7 So if there be two joynt trespassors and the party trespassed releaseth to one of them In this case also if the other trespassor be sued and have the release en poigne he may plead it in discharge of the trespass causa qua supra Bastard 7 If the husband be within the 4. seas viz. within the Iurisdiction of the King of England if the wife hath issue Co. ibid. 144. a. 2. no proof is to be admitted to prove the Child a Bastard for the question being whether he is legitimate or no the Law will rather deem him legitimate than Proles spurius a bastard And in this case Filiatio non potest probari The like 8 If a man hath issue two daughters the eldest being a Bastard Co. ibid. 244. a. 4. and they enter and enjoy the land peaceably together Here the Law in favour of legitimation will not adjudge the whole possession in the Mulier who indeed hath the only right but in both so as if the Bastard hath issue and dieth her issue shall inherit And in the same case if both daughters enter and make partition this partition shall bind the Mulier for ever The like 9 If the Bastard invite the Mulier to see his house Co. ibid. 245. a. 2. and to see pictures c. or to dine with him or to hawk hunt or sport with him or such like upon the land descended and the Mulier cometh upon the land accordingly this is no interruption because he came in by the consent of the Bastard and therefore the Law will not adjudge the coming upon the land in such case to be any trespass but if the Mulier cometh upon the ground upon his own head and cutteth down a tree or diggeth the soil or take any profit these shall be interruptions For rather than the Bastard shall punish him in an action of trespas the act shall amount in Law to an entry because he hath a right of Entry so it is if the Mulier put any of his Cattel into the ground or command another to do it these do amount to an entry for albeit in these cases the Mulier doth not use any express words of Entry yet these and such like acts do without any words amount in Law to an Entry for acts without words may make an Entry but words without an act viz. Entry into the land c. cannot make an Entry Vide infra 28. M scon inuance 10 If one process be awarded instead of another or a day is given which is not legal this is a miscontinuance of the sute Co. ibid. 325. a. 4. and if the tenant or defendant make default it is good cause of Error but if he appear then is the Miscontinuance salved for albeit in truth his appearance is not legal yet when he appears the Law shall construe it to be lawfull because there is a sute depending against him in Court Dâ—scontinuance of estates 11 If there be tenant for life the remainder in tail Co. ibid. 332 a. 4. and he in the remainder grants it to another in fee by deed and the tenant for life attorns this is no discontinuance of the remainder in tail So it is likewise of a rent charge Advowson in gross Common in gross or the like for the Rule is that a grant by deed of such things as do lie in grant and not in livery of seisin do work no discontinuance and the reason is because the Law makes construction that of such things the grant of tenant in tail worketh no wrong either to the issue in tail or to him in reversion or remainder for in such case the Law adjudged nothing to pass from the tenant in tail but that which he may lawfully grant viz. an estate for his own life Co. ibid. 335. a. 2. 12 If tenant for life make a lease for his own life to the lessor the remainder to the lessor and a stranger in fée Surrender Forfeiture In this case for as much as the limitation should work a wrong by construction of Law it rather inureth to the lessor as a surrender for the one moiety and a forfeiture as to the remainder of the stranger for he cannot give to the lessor that which he had before and as to the remainder to the stranger it is a forfeiture for his moiety and when the lessor entreth he shall take benefit thereof Co. Inst part 1. 381. b. 1. 13 The words of an Act
just cause the Mulier is barred for ever for the possession of the King when he hath no just cause of seisure shall be adjudged the possession of him for whose cause he seised But if after the death of the Father the Mulier be found heir and within age and the King seiseth In such case the possession of the King is in right of the Mulier and vesteth the actual possession in the Mulier and consequently the Bastard eigne is foreclosed of any right for ever so it is likewise when the King seiseth for a contempt or other offence of the father or of any other ancestor In that case if the issue of the Bastard eigne upon a Petition be restored for that the seisure was without just cause the Mulier is not barred because the bastard could never enter and consequently could gain no estate in the land but the possession of the King in that case shall be adjudged in the right of the Mulier Vide 2 Ass pl. 9. Copyhold 2 If a Copihold estate fall into the Lords hands by escheat Co. l. 4. 31. a. 2. in Frenches case forfeiture or the like and the Lord make a lease thereof for years life or other estate by deed or without deed or if the Lord make a feoffment thereof in fee upon condition and enter for the condition broken or if the Copyhold so forfeited or escheated before any new grant thereof made be extended upon a Statute or Recognisance acknowledged by the Lord or if the feme of the Lord in a writ of Dower hath that land assigned to her In all these cases and albeit these last impediments are by acts in Law yet for as much as all these interruptions are lawful the lands can never after be granted by Copy because after such disposition thereof it was not demised or demisable But if the interruption be tortious as if the Lord be disseised and the disseisor die seised or if the land be recovered against the Lord by a false verdict or erronious judgement In these cases until the land be recovered or the judgement nulled or reversed by the Lord of the Manor the land was not demised or demisable and yet after the land is recontinued it is again grantable by Copy because the interruption was tortious for Non valet Impedimentum quod de jure non sortitur effectum quod contra legem fit pro infecto habetur Restraint to alien 3 If a man make a gift in tail upon condition that the donee shall not alien yet in such case if the donee suffer a Common recovery Co. l. 6. 41. b. 2. in Sir Anthony Mildmayes case that is no breach of the Condition because it is a Conveyance allowed by Law in respect of the intended recompence but if he make a feoffment in fee or any other estate whereby the reversion is tortiously discontinued the donor may enter for the Condition broken for every act which is prohibited by Law or is a tort may be prohibited by condition vide 10 H. 7. 11. So if a feoffment be made to Baron and feme upon condition that they shall not alien yet that doth not restrain their joint alienation by fine because it is lawfull and incident to their estate But their feoffment or alienation by deed is restrained by such a condition for that is tortious and against Law Also if a man enfeoff an Infant in fee upon condition that he shall not alien this cannot restrain him to alien at his full age but during his minority it doth because that is tortious and prohibited by Law Co. l 7. 6 a. 3. in Sendâ—ls case 4 One of the reasons Robbery why the robbing of an house either in the day or in the night is not within the Statute of Winchester for the Hundred to satisfie the damages is for that it is not lawfull for any man to enter into the house of another for the safeguard thereof Co. l. 11. 74. a. 3. Magd. Coll. case 5 Albeit the Friers Carmelites were of a Profession of Religion Carmelites and had not any habitation so as it seemed to be a work of piety and charity to provide an habitation for them yet non facias malum ut inde fiat bonum F.N.B. 36. f. 6 If a man be disseised of a Manor to which an Advowson is appendant Usurpation and the disseisor suffers an usurpation by a stranger to the advowson and after the disseisée re-enters into the Manor he shall present to the advowson when it happens to be void notwithstanding such usurpation Dyer 168. 19. 1 Eliz. 7 Bronker Sherif of Wiltshire to prevent perjury in his office Sheriffs oath did neglect to be sworn in incepto officii which he ought to have done by the antient Common Law of the Realm for which contempt he was fined and imprisoned by decrée in the Star-chamber Dyer 219. 10. 5 Eliz. 8 A man is bound to deliver the key of an house Livery of seisin and quiet possession to the Maior of London to the use of the obligee no person being in the house he locks the door and delivers the key to the Maior out of view A stranger pretending title enters into the house This séems to be no delivery of possession yet verdict was given for it which was afterwards affirmed in Attaint And the reason séems to be for that the impediment was unlawfull 196 Praetextu liciti non debet admitti illicitum Co. l. 11 88. b. 1 in the case of Monopolies 1 The Charter of making and importing Cards being adjudged in the 11 Rep. a Monopoly had a glorious preamble and pretext Monopolies yet was repealed as derogatory to the Kings honor and very pernicious to the Commonwealth And indeed it is true Quod privilegia quae revera sunt in praejudicium Reipublicae magis speciosa habent frontispicia et boni publici praetextum quam bonae et legales concessiones but Praetextu liciti non debet admitti illicitum Dyer 35 6. 33. 29 H. 8. 2 If a lessée hath liberty to fell trées to repair the house Waste and he fells 4. Oaks for that purpose and sells them and buyes 4. other Oaks as good and imployes them towards the repair of the house yet that is waste for the cutting of them down and selling them was a tort so if a man sell the distress which he hath caken and impounded and afterwards finding his error buyes them again and impounds yet their sale is a tort and the impounding of the Cattel afterwards shall not excuse it Dyer 36. b. 38. 29 H. 8. 3 If the lessor be bound to a man in 100 l. and the lessée cuts down 20 Oaks sells them and payes the obligée for the lessor Waste yet an action of waste lyeth against the lessee for felling the trees albeit the money arising upon the sale was converted to the
such protections must be therein expressed to the end it may appear to the Court that they are granted pro negotiis regni et pro bono publico And these protections are not allowable only for men of full age but for men within age and for women as necessary attendants upon the Camp and that in thrée cases Quia Lotrix seu Nutrix seu Obstetrix Co. ibid. 131. b. 2. 12 Treasure is one of the chiefest supports of a Commonwealth Protection And therefore the King who is the Head of the Commonwealth is regularly by his prerogative to be preferred in payment of his duty or debt by his debtor before any subject albeit the Kings debt or duty be the later upon which ground it is that the King may grant his debtor a protection cum clausula volumus to protect him from the sutes and actions of other Creditors And the reason hereof is for that Thesaurus Regis est fundamentum belli firmamentum pacis But this Law is somewhat altered by the Statute of 25 E. 3. cap. 19. quod vide Co. ibid. 132. b. 3. If a Monk be a farmer of the King yielding a rent Monk he shall have an action concerning that farm because the Kings revenue is also the revenue of the Commonwealth Co. ibid. 133. a. 4. 13 By the Common Law the wife of the King of England is an exempt person from the King Queen and is capable of lands or tenements of the gift of the King as no other feme covert is and is of ability and capacity without the King to grant and to take to sue and be sued as a feme sole at the Common Law for the wisdom of the Law would not have the King whose continual care and study is for the publique circa ardua regni to be troubled and disquieted with such private and petty causes Co. ibid. 149. a. 2. Co. ibid. 149. b. 2. 14 If the tenant holdeth by fealty and a bushel of wheat Service Tenant or a pound of Cumin or pepper or the like and the Lord purchaseth part of the land there shall be an apportionment as well as if the rent were in money yet if the rent were by one grain of wheat one séed of Cumin one pepper Corn a horse or any other intire service by purchase of part the whole should be extinct Howbeit if such an intire service be pro bono publico as Knight service Castle-guard Cornage c. for the defence of the Realm or to repair a bridge or way to keep a Beacon or to keep the Kings Records or for avancement of Iustice and peace as to aid the Sheriff or to be Constable of England albeit the Lord purchaseth part yet the intire service remains See Bruertons case Co. l. 6. 1. b. 4. Jo. Talbots l. 8. 105. b. 4. Authority 15 If a man make a Letter of Attorney to two to do any act Co. ibid. 181 b. 3. if one of them die the survivor shall not do it but if a Venire facias be awarded to four Coroners to impannel and return a Iury and one of them die yet the other shall execute and return the same because it is for the execution of Iustice and by consequent pro bono publico so if a charter of feoffment be made and a Letter of Attorney to four or thrée joyntly and severally to deliver seisin two of them cannot make livery because it is neither by them four or three joyntly nor by any of them severally But if the Sheriff upon a Capias directed to him make a warrant to four or thrée joyntly or severally to arrest the defendant two of them may arrest him for the reason aforesaid and for the same reason such an act shall be more favourably expounded than a private one for Iura publica ex privato promiscua decidi non debent Tenants in Common and Joyntenants 16 If there be two tenants in Common of a Manor Co. ibid. 200. a. 3. c. to which waif and stray doth belong a stray happens they are tenants in Common thereof And yet if one of them take the stray the other hath no remedy by action but to take it again unless they have a prescription to take strayes by turns Howbeit if there be two tenants in Common of a Dove-house and the one wholly destroyes the flight or of a folding and one disturbs the other to erect hurdles In these cases an action of trespass lyeth against the other because they are offences committed in prejudice of the Commonwealth If two several owners of houses have a River in common betwéen them and the one corrupts the River the other shall have an action upon his case against his companion So if there be two tenants in Common or Iointenants of an house or Mill and it fall into decay and the one is willing to repair it and the other will not he that is willing shall have a writ de reparatione facienda and the writ saith Ad reparationem et sustentationem ejusdem domus teneantur whereby it appeareth that owners are in such case bound pro bono publico to maintain houses and mills which are for the habitation and use of men Offices 17 Non-user of it self without some special damage is no forfeiture of Private offices as the Kéepership of Park or the like Co. ibid. 233. a. 4. But Non-user of Publique offices which concern the administration of Iustice or the Commonwealth is of it self a cause of forfeiture Repair by the lessee 18 In many cases a tenant for life or years may fell down timber to make reparations albeit he be not compellable thereunto Co. ibid. 54. b. 2. and shall not be punished for the same in any action of waste As if an house be ruinous at the time of the lease made if the lessée suffer the house to fall down he is not punishable for he is not bound by Law to repair the house in that case and yet if he cut down timber upon the ground so letten and repair it he may well justifie it And the reason is for that the Law doth favour the supportation and maintenance of houses which were ordained for the habitation of Mankind and are by consequent beneficial to the Commonwealth And therefore if the lessor by his Covenant undertake to repair the house yet the lessee if the lessor doth it not may with the timber growing upon the ground repair it though he be not compellable thereunto In like manner if a man make a lease of an house and land without impeachment of waste for the house yet may the lessée with the timber upon the ground repair the house though he may utterly waste it if he will and so it is in many other cases for the reason above alleged Co. l. 4. 14 b. 1. Cutle◠and Dixons case 19 If a man exhibit articles to Iustices of
H. 4. 43 44. Escape Statutes extendible by equity 33 Albeit the Statute of 1 R. 2. 12. be penal Pl. Co. 56. b. Plats case and gives an action of debt only against the Warden of the Fléet yet is extended by equity against all other persons who have the Custody of prisoners in execution because it is good for the Commonwealth for although it is penal against the Warden yet being also extended against all others so chargeable with prisoners it is beneficial to the Common-wealth And indeed every Statute is penal against some man but in as much as the taking of it by equity is more beneficial than prejudicial to the greater number of men and so by consequent to the Commonwealth it is good reason that it should be by the Rules of Law extended by equity So likewise the Statute of Circumspecte agatis in 13 E. 1. is Pl. Go. 59. b. in Wimbish and Talbois case Vide Pl. Co. 82. a. the Stat. of 32 H. 8. 9. of pretenced titles extended also by equity viz. Circumspecte agatis de negotiis tangentibus Episcopum Norwicensem ejus Clerum and yet it is extended to all other Bishops Likewise the Statute of 9 E. 3. cap. 5. which ordains that the executor who comes in first by distress shall answer is extended by equity to Administrators Also the Statute of Westm 2. cap. 3. 13 E. 1. which gives a Cui in vita upon a recovery by default is extended by equity to a Cui ante Divortium And the Statute of Marlbridge cap. 6. which makes mention only de hiis qui primogenitos suos infra aetatem existentes feoffare solent and yet if his first son die and he enfeoff his second son who is his heir this is within the equity of that Statute or if he levy a fine to him which is a matter of Record that is also within the equity of the same Statute and yet the Statute speaks only of a feoffment But regularly all Statutes which are for the advancement of Iustice or beneficial to the Commonwealth are extendible by equity Torts justifiable 34 In some cases a man may justifie to do a wrong Dyer 36. Pl. 40 29 H. 8. which tends to the good of the Commonwealth as in time of warr a man may justifie to make Bulwarks in another mans soyl without license So may he justifie to pull down an house that is on fire for the safeguard of the neighbouring houses also if the Sheriff pursue a felon to an house he may justifie to break open the house door to take him for all these and the like sound to the good of the Commonwealth Co. Inst pars 1. 165. a. 4. 35 If a Castle that is used for the necessary defence of the Realm Coparceners descend to two or more Coparceners this Castle might be divided by Chambers and Rooms as other houses be but yet for that it is pro bono publico pro defensione Regni it shall not be divided Propter jus gladii dividi non potest Fleta l. 5. cap. 9. And another saith Britton 186 187. Pur le droit del espee que ne souffree division en aventure que la force del Realm ne defaille pas tant But Castles of habitation for private use that are not for the necessary defence of the Realm may be parted amongst Coparceners as well as other houses and wives may be thereof also endowed as before hath been said supra 2. Co. Inst pars 1. 14. a. 36 In King Alfreds time Knights fees descended to the eldest son Knight service Socage for that by division of them between Males the defence of the Realm might be weakned but in those dayes Socage-fee was divided between the heirs male and therewith agreeth Glanvile lib. 7. cap. 1. 3. Cum quis haereditatem habens moriatur si plures reliquerit filios tunc distinguitur utrum ille fuerit Miles sive per feodum militare tenens aut liber Sockmannus quia si miles fuerit aut per militiam tenens tunc secundum jus regni Angliae primogenitus filius patri succedit in toto c. si vero fuerit liber Sockmannus tunc quidem dividetur haereditas inter omnes filios c. 198 Publique Commerce Vide supra 198 31. Co. Inst pars 1. 2. b. 2. 1 If an Alien take a lease for years of Lands Meadows Alien Trade c. or being no Merchant taketh a lease for years of an house for habitation upon office found the King shall have them for albeit he be capable to take such a lease or lands tenements or hereditaments to him and his heirs yet upon office found the King shall have them by his prerogative Howbeit he being a Merchant may take a Lease for years of an house for habitation as incident to Commercery for without habitation he cannot merchandise or trade But if he be no Merchant or being a Merchant depart the Realm the King shall have the Lease or if he die possessed thereof neither his executors or administrators shall have it but the King for he had it only for habitation as necessary to his trade or traffique unto which the Common Law giveth much favour Co. ibid. 129. b. 1. 2 An alien enemy shall not maintain any action real personal Alien Actions or mixt donec terrae fuerint communes Howbeit in favour of trade an alien in league may maintain personal actions because such an Alien may trade and traffique buy and sell And therefore he must of necessity be of ability to have personal actions or being condemned in an information he may have a writ of Error to relieve himself but he cannot have either real or mixt actions Co. ibid. 172. a. 3. 3 Regularly Merchants accompt a Receiver upon his accompt shall not be allowed his expences and charges yet in some case in an action of accompt against one as Receptor denariorum he shall have allowance of his expences and charges and also shall accompt for the profit he received or might reasonably receive And this was provided by Law in favour of Merchants and for advancement of trade and traffique As if two Ioint Merchants occupy their stock goods and merchandize in common to their common profit one of them naming himself a Merchant shall have an accompt against the other naming him also a Merchant and shall charge him as Receptor denariorum ipsius B. ex quacunque causa contractu ad communem utilitatem ipsorum A. B provenientium sicut per legem Mercatoriam rationabiliter monstrare poterit Merchants 4 Survivorship holdeth not betwixt two Ioint-merchants Co. ibid. 182. a. 2. for the wares merchandizes debts or duties which they have as Ioint-merchants or Parceners shall not survive but shall go to the executors of him that deceaseth And this is per legem Mercatoriam which is part of the Laws of this Realm
uses that the honor of the Law be not prejudiced nor any way blemished And therfore in Porters case in the 1. Rep. one of the reasons why good charitable uses ought not to be expounded to be within the Statute of 23 H. 8. cap. 10. was because it would be dishonourable to the Law of the Land to make such good uses void and to restrain well-minded people to give lands to good and charitable uses And if that or any other Statute should be made directly against the Law of God Doct. Stud. lib. 1. cap. 6. as if it should be ordanied that none should give Alms to any in what necessity soever they were or the like the Iudges in point of Honor to the Law ought to adjudge such a Statute void Libel 6 In a setled state of Government if an injury be offered Co. l. 4. 125. b. 1. In the câ—ses of Libels the party grieved ought not to revenge himself by the odious Course of libelling or otherwise but ought to make complaint thereof to the Magistrate in an ordinary Course of Law Kings grant 7 It hath been alwayes the gravity of the antient Sages of the Law to construe the Kings grants beneficially for his Honor Co. l 6 6. a. Sir John Molins case Co. l. 9. 131. a. in Bewleys case and the relief of the Subject and not to make any strict or literal construction in subversion thereof And therefore E. 3. being Lord an Abbot Mesne and the Tenant attainted of Treason the King grants to I. M. to be held of us and other chief Lords of the fee by the services c. In this case the Mesnalty was adjudged to be revived for that the words were sufficient to create a tenure in the Mesne as it was before the Treason because that seemed to be the Kings intention and was also consonant to equity viz. that the Mesne who offended not should not lose his services And therefore in such case the grant shall be taken beneficially for the Honor of the King and for the relief of the Mesne neither yet can the words Tenendum c. have any other reasonable construction Arrest of Peers 8 The person of one who is in Law a Countess by mariage Co. l. 6. 52. b 3. The Countess of Rutl. case or by descent is not to be arrested for debt or treâ—pass for albeit in respect of her sex she cannot sit in Parliament yet is she a Péer of the realm and shall be tried by her Péers as appears by the Statute of 20 H. 6. 9. which was but a declaration of the Common Law And there are two reasons why her person shall not be arrested in such cases the one in respect of her dignity and the other in respect that the Law presumes that she hath sufficient lands and tenements in which she may be distrained There is the same reason for a Lord that is a Péer of Parliament Oath of Allegeance 9 To preserve the Kings Honor and Safety Co. l. 7. 6. b. 3 in Calvins case and good order in the Government of the Commonwealth the Oath of Allegiance was invented and enjoyned as it is said in Lamb. 135 136. by King Arthur to be taken in Folkmotes now called Turns and Leets Hujus legis authoritate expulit Arthurus Rex Saracenos et inimicos a Regno c. Et hujus legis authoritate Etheldredus Rex uno et eodem die per universum regnum Danos occidit Homage fealty 10 Homage and Fealty Co. l. 10. 108. b. 2. in Humfry Lofields case were at first ordained for the preservation of order in the Common wealth and being servicces of fidelity do require multiplication And therefore if a man seised of two acres the one at the Common Law and the other in Borough English and make a gift in tail of both and the donée having issue two sons dies both the sons shall make fealty There is the same Law also of Homage whether it be reserved by the party or created by the Law so likewise if the donor die having two sons both the s os shall have homage and fealty King 11 In a writ de Cautione admittenda these words F.N.B. 66. a. De gratia nostra speciali are not words of necessity but of form only for the Honor of the King for he ought of right to make restitution of the goods of the Clerk before seised by the Sheriff Fines in Courts 12 For the better preserving of order in the Commonwealth Co. l. 8 38 b. 3. in Grieslyes case if any contempt or disturbance be committed in any Court of record the Law giveth the Iudge or Iudges thereof power to impose upon the offenders a reasonable fine And this holds not only for the Superiour Courts at Westm but likewise for all inferiour Courts which are of Record And therefore in a Léet being a Court of Record and the Steward Iudge there if any contempt or disturbance to the Court be committed before the Steward there he may impose a reasonable fine upon the offendors as if the Bailiff there refuse to execute his office the Steward may assess upon him a reasonable fine and with this agrées 7 H. 6. 12. b. So if a Tithingman refuse to make presentment in a Leet the Steward may impose a reasonable fine upon him as it was held 10 H. 6. fo 7. Also if one of the Iury in a Léet depart without giving up his verdict he shall be fined by the Steward as appears in the book of Entries fol. 149. Et sic de similibus Dyer 107. b. 27. 13 When a Peer of the Realm is party to a sute Challenge there ought to be one Knight at least impannelled of the Iury otherwise it is a good Challenge for the Peer 200 Publique quiet Co. Inst pars 1. 5. a. 3. 1 No Subject can build a Castle or house of strength imbattelled Fortresses c. or other fortress defensible without the Kings license for the danger which might ensue in disturbance of the peace and quiet of the Realm if every one at his pleasure might do the like Co. ibid. 72. a. 4. 2 Albeit Escuage incertain was due by tenure Escuage yet because the assesment concerned so many and so great a number of the Subjects of the Realm lest it might disturb the publique quiet thereof it could not be assessed by the King or any other but by the Parliament only Co. ibid. 130. b. 3. 3 Britton treating of an Essoin beyond the Grecian Sea amongst other things saith thus None shall go beyond sea Nul grand Seignior ne Chivalier de nostre Realm ne doit prender chemin sans nostre conge car issint poet le realm remainer disgarny de fort gente because if many others should do the like and by that means the Realm be left unfurnished of able and powerfull
§. 209. as if a Lord of a manor will prescribe that every Tenant who matieth his daughter to any man without the Lords licence shall make fine This prescription is void being against reason because none shall make such fines but only villeins for a freeman may fréely mary his daughter to whom he pleaseth And albeit that it hath been objected by some that such a custom may have a lawful beginning because Littl. in the beginning of the chapter of villeinage § 174. alloweth that a freeman may take lands of the Lord to be holden of him viz. to pay a fine for the mariage of his son or daughter and therefore some have thought that such a custom generally with in the manor might be good but the answer is that although it may be soln a particular Case upon such a special reservation of such a fine upon a gift of land yet to claim such a fine by a general custom within the manor is against the fréedom of a freeman that is not bound thereunto by particular tenure howbeit a custom may be alleged within a manor that every tenant albeit his person be free that holdeth by bondage or native tenure the freehold being in the Lord shall pay to the Lord for the mariage of his daughter without licence a fine And this is termed Marchet of two french words Mariage and achecter to buy Co. ibid. 140. a 4. b. 1. Littl. §. 210. 6 The custom of Gavelkind in Kent where all the sons inherit equally Gavelkind hath been alwayes allowed a good custom because every son is as well a gentleman as the eldest and having means may attain to as great honor and preferment as the eldest which by want and penurie may be obstructed according to that of Horace Haud facile emergunt quorum virtutibus obstat Res angusta domi Co. ibid. 140. b. 3. Littl. §. 211. The like custom is used and allowed as reasonable in other parts of England within divers manors and seigniories although it be not called Gavelkind in any Country but Kent And as it is said of sons so likewise by custom when one brother dieth without issue all the other brethren may inherit There is also another custom allowed within divers manors called Borough-English Borough-English where the youngest son or youngest brother inherits and in the manor of B. in Berkshire where the sisters shall not be Parceners but the eldest sister shall have the inheritance all which do hold good because consonant to reason Co. inst pars 1. 141. a. 3. 7 Malus usus abolendus est and every usage is evill Malus usus that is against reason Quia in Consuetudinibus non diuturnitas temporis sed soliditas rationis est consideranda And by this rule at the Parliament holden at Kilkenny in Ireland Lionel Duke of Clarence being then Lieutenant of that Realm the Irish custom called there the Brehon-law was wholy abolished for that as the Parliament said it was no law but a lewd custom et malus usus abolendus est as is said before Co. ibid. 155. a. 2. 8 Albeit the writ of Assise be that the Sheriff Assise Faceret duodecim liberos et legales homines de vicineto c. videre tenementum c. Yet by antient course the Sheriff must return 24. and this is for expedition of justice for if 12. should only be returned no man should have a full Iury appear or be sworn in respect of challenges without a Tales which would be a great delay of trials so as in this case usage and antient course maketh a Law Co. l. 2. 17. a. 4. in Lanes case 9 Severance of the frank-tenement and inheritance of land holden by copy of Court-Roll Copyhold doth not extinguish or determine the Copy-hold estate for albeit his estate is taken to be but an estate at Will yet the custom hath so established the estate of the Copyholder that he is not removeable at the Will of the Lord so long as he performs the customs and services And by the same reason the Lord cannot determine his interest by any Act that he can do and so hath it been oftentimes adjudged in the Kings Bench. Co. l. 4. 21. a. 3. in Browns case 10 Albeit a Copyholder hath in judgement of law but an estate at Will yet custom hath so established and fixed his estate Copyhold that it is by the custom of the manor descendable and his heirs shall inherit it And therefore his estate is not meerly ad voluntatem domini but ad voluntatem domini secundum consuetudinem manerii so as the custom of the manor is the very soul and life of Copyhold estates for without custom or if they break their custom they are subject to the Will of the Lord And by custom a Copyholder is as well inheritable to have his land according to the custom as he who hath a franktenement at the Common Law for Consuetudo in this case est altera lex and being an usage time out of mind may create and consolidate Inheritances Alienation presented 11 A Custom within a Manor Co. l. 5. 84 a. 3. in Penimans cas◠that every alienation of lands holden of the same Manor whether it be by writing or feoffment thereof made or by will shall be presented at the next Court holden for the said Manor in pain that upon failer of such presentment such alienation shall be void is a good and reasonable Custom But a Custom that none shall use his Common in such a place until the Lord enter with his beasts is void for the unreasonableness for if the Lord will not enter it is no reason that the Commoners should lose their Common Vide 2 H. 4. 24. Common of Shack. 12 Common called Shack which at the beginning was but in nature of a féeding together by reason of Vicinage for avoiding of sutes is in some places by Custom altered to the nature of Common appendant or appurtenant Co. l 7. 5. a. Sir Miles Corbets case and in some places it retains the original nature and the Rule to know it is the Custom and usage of every several Town or place for Consuetudo loci est observanda And therefore if in the Town of Dale one hath gotten divers parcels of land together in which the Inhabitants have used to have Shack and long since did enclose it and nevertheless alwayes after harvest the Inhabitants have had Shack there for their Cattel This shall be taken for Common appendant or appurtenant and the Owner cannot exclude them from Commoning there albeit he will not Common with them but hold his own lands so enclosed in severalty And this is well proved by the usage for notwithstanding the antient enclosure the Inhabitants have had Common there But if in the Town of Sale the Custom and usage have béen that every Owner in the same Town hath enclosed his own land