Countenanceth things done more in the time of Peace then in the time of War fol. 487 CXXVIII It countenanceth things done in the day more then in the night fol. 488 Things are to be streightened according to the nature of them CXXIX 1. Sometimes a whole day is sufficient fol. 481 CXXX 2. Sometimes a whole yeare fol. 489 CXXXI 3. Sometimes to the last part of the day fol. 490 CXXXII 4. When no time is limited the Law appointeth the most convenient time fol. 491 CXXXIII The third Offence is esteemed most heynous fol. 494 CXXXIV The place ought to be convenient fol. 494 Maximes Taken out of Morality CXXXV The Law favoureth Charity fol. 497 CXXXVI De mortuis nil nisi bonum fol. 498 CXXXVII It hateth malice and oppression The Law fol. 499 CXXXIX It hateth Vice fol. 499 CXL Interest Reipublicae ne maleficia remaneant impunita fol. 501 CXLI It favoureth Justice and Right fol. 502 CXLII That which is not tortious in it self cannot be tortious to any fol. 508 CXLIII Interst Reipublicae ne Curia Domini Regis deficeret in Justitia fol. 545 Law CXLIV It favoureth common Right fol. 547 CXLV It suffereth things against Principles of Law rather then the party be without remedy fol. 549 CXLVI It hateth wrong fol. 563 so as CXLVII None shall take benefit or advantage of their own wrong fol. 568 CXLVIII The Law of it self prejudiceth no man fol. 575 CXLIX Especially for things which cannot be imputed to their owne folly or neglect fol. 581 CL. Nemo debet rem suam sine facto vel defectu suo amittere fol. 592 CLI It driveth not a man to shew take notice of or do that which by intendment he knows not or should or cannot do fol. 593 CLII. Nor to do that which were in vain for him to do fol. 600 CLIII Non licet quod dispendio licet fol. 603 Law CLIV. It favoureth truth faith and certainty fol. 604 CLV It disfavoureth impossibilities fol. 606 CLVI Non cogit ad Impossibilia Impotentia excusat Legem fol. 609 CLVII It disfavoureth falsehood fraud and covin fol. 6â0 CLVIII Juâ frans nunquam cohabitant fol. 680 CLIX. Quando aliquid prohibetur fieri ex directo prohibetur per obliquum fol. 618 CLX Rectum est Index sui obliqui fol. 620 CLXI It disfavoureth Improbabilities fol. 620 CLXII It disfavoureth Incertainties by the which the truth may be inveighed fol. 621 CLXIII Impersonalitas non concludit nec ligat fol. 634 CLXIV Generale nihil certi implicat fol. 635 CLXV Dolosus versatur in generalibus fol. 636 CLXVI 1. Variance fol. 636 CLXVII 2. Contrariety and Repugnancy fol. 638. and therefore CLXVIII 3. It will not drive a man to justifie or shew that which he goeth about to defeat or makes against him fol. 646 CLXIX Non potest adduci exceptio ejusdem rei cujus petitur dissolutio fol. 647 CLXX None shall take exception to an Error or Act which operateth to his own advantage fol. 648 CLXXI. Nemo tenetur armare adversarium suum contra se fol. 665 CLXXII It favoureth diligence and therefore hateth folly and negligence fol. 665 CLXXIII Negligentia semper habet infortunium Comitem fol. 669 CLXXIV Vigilantibus non Dormientibus Lâges subveniant fol. 672 CLXXV It favoureth speedying of mens Causes fol. 673 CLXXVI It hateth Delaies fol. 674 CLXXVII It hateth unnecessary Circumstances And Frustra fit per plura quod fieri potest per pauciora fol. 675 CLXXVIII Expedit Reipublicae ut sit finis Litium fol. 676 CLXXIX Circuit of Action fol. 680 CLXXX Matter of Vexation fol. 680 CLXXXI Pendente Lite nihil innovetur fol. 681 CLXXXII Unfitnesse and multiplicity of Suits fol. 682 The Law CLXXXIII It construeth things with equity and moderation fol. 685 CLXXXIV It restraineth a generall Act or Rule and sometimes a particular Contract if it be mischeivous or inconvenient fol. 687 CLXXXV Nemo bis punitur pro eodem relicto fol. 695 CLXXXVI It flyeth and preventeth all occasions of Evill fol. 696 CLXXXVII It moderateth the stricknesse of the Law it selfe fol. 702 CLXXXVIII Verba semper accipienda sunt in mitiori sensu fol. 705 CLXXXIX It construeth things according to common possibility or Intendment fol. 703 CXC Stabit Presumptio donec probetur in Contrarium fol. 712 CXCI. Ad ea quae frequentius accidunt jura adaptantur fol. 716 CXCII Frequentia Actus multum operatur fol. 719 CXCIII It alwaies construeth things to the best fol. 720 CXCIV Every Act to be lawfull when it standeth indifferent whether it should be lawfull or not fol. 722 CXCV. Non praestat impedimentum quod de jure non sortitur effectum fol. 727 CXCVI. Praetextu liciti non debet admitti illicitum fol. 728 The Law CXCVII It favoureth things for the Common-wealth fol. 729 CXCVIII. It favoureth publick Commerce fol. 738 CXCIX It favoureth Honour and Order fol. 739 CC. It favoureth publick quiet fol. 742 CCI. Conventio seu beneficium privatorum non potest publico juri derogare fol. 746 CCII. Minime mutanda sunt quae certam habuerunt Interpretationem fol. 748 CCIII A Communi observantia non est recedendum fol. 752 CCIV Eventus varius res nova semper habit And therefore it hath new Inventions and Innovations fol. 756 CCV Communis Error facit jus fol. 758 CCVI. So doth a Custome which is reasonable unreasonable e contr fol. 758 CCVII. Licet consuetudo sit magnae Authoritatis nunquam tamen praejudicat manifestae veretati fol. 762 Wife CCVIII The Husband and Wife are one person in Law fol. 763 CCIX. The wife is of the same condition with her husband fol. 764 CCX They cannot sue one another or make any Grant one to another or the like fol. 765 CCXI. Upon a joynt Purchase during the Coverture either of them taketh the whole fol. 766 CCXII. The husband is the womans head fol. 767 CCXIIJ All that she hath is her husbands fol. 768 CCXIV. Her will ought to become his will and to be subject unto it fol. 770 Maximes of Reason OR THE REASON OF THE COMMON LAW OF ENGLAND LAwes are divided into Native and Positive Native are such Lawes as are in us of themselves and are therefore unchangeable and not to be abrogated These are likewise twofold viz. The law of Nature and the Law of Reason The Law of Nature is that Law Co. l. 7. 12. b. in Calvins case Doct. Stud. l. 1. cap. 1â which God at the time of the Creation of the nature of man infused into his heart for his preservation and direction This is that Law which is called Lex aeterna or the Moral Law administreth common principles of good and evil as That men should live peaceably together That we should not do that to another which we would not have another do to us suum cuique tribuere That Justice should be duly âdministred to all and the
juridicus Co. Inst pats 1 135. a. for that ought to be consecrated to divine service Pleas. 2 No plea shall be holden Quindena Paschae F. N. B. 17. f. because it is alwayes the Lords day but it shall be crastino quindenae Paschae Finââ 3. Vpon a fine levied with proclamations according to the Statute of 4 H. 7. 24. if any of the proclamations be made on the Lords day Finches Ley pag. 7. all the proclamations are erroneous for the Iustices may not sit upon that day being a day exempt from such businesses by the Common Law for the solemnitie of it to the intent that all people may apply themselves that day to prayer and serving of God 1 El. Dyer 168 12 E. 4. 8. 3 If a writ of Scire facias out of the Common place beare Teste upon the Lords day it is errour because it is not dies dominicus in Banco Errour 4 No sale upon the Lords day shall be said a sale in Market overt to alter the propertie Sale 6 Gravius est divinam quam Temporalem laedere majestatem Co. l. 11. 29. b. Poulters case 1 Regularly Clergy a man shall by the Common law have the benefit of Clergie for any felonie Howbeit if a felon be also an Heretique Iew Sarazen or Infidel he shall not have it F. N. B. 269. b. Br. Heresie 1. Co. l. â 58. a. Specots case 2 Heresie is an offence committed against the Majestie of God by a presumptuous oppugning of an Article of Faith or the like Heresie And therefore at the Common law this offence was punished by a more terrible and grievous mulct than any other felony whatsoever and indeed than Treason it selfe viz. by fire and faggot Howbeit to determine what is Heresie falls not within the Conusance of temporal Courts but is wholly left to the Ecclesiastical Iurisdiction for it appears by the writ de haeretico comburendo that at the Common law before an heretique could be committed to the Lay-power to be burnt he was to be convicted in a Provincial Synod before the Archbishop and his Clergie and then if he did either refuse to abjure the heresie or having abjured it upon a relapse were convicted again by such a Synod of that or any other heresie he was then delivered to the secular power to be punished by fire and faggot and no Sanctuarie could priviledge him Frowick Lect. Howbeit by the Statute of 2 H. 4. 15. any Bishop had power to do as much within his Diocesse and if the Sheriffe were present at his conviction the Bishop might deliver him to the Sheriffe to be burnt and that without the Kings writ but that Statute was repealed by 25 H. 8. cap. 14. and thereby that offence made presentable at Sheriffes Turnes and Léets and from thânce to be certified to the Ordinarie which Statute the 25 H. 8. was also repealed by 1 E. 6. 12. from which time until 1 2 P. M. 6. which revived 2 H. 4. 15. an heretique was punishable at the Common Law as above is expressed but by 1 El. 1. the Statute of 1 2 P. M. was repealed and then by 1 El. the Quéenes Commissioners heretofore called the High Commission Court had power to judge of heresie but they were thereby also restrained to adjudge nothing Heresie but what was so adjudged by the holy Scriptures the four first General Councils or the Parliament with the assent of the Clergie in their Convocation Howbeit at this day the Iurisdiction of Bishops being taken away and that clause of 1 El. repealed by a later Act it séemes at present there is no law to punish that offence See more concerning heresies in the Statutes of 5 R. 2. 5. 2 H. 5. 7. 31 H. 8. 14. and 34 H. 8. 1. being all repealed by 1 E. 6. 12. See also Li. Intr. 264 and 340. Rast Ph. 319. 10. H. 7. fol. 17. and Doct. and Stud. L. 2. cap. 29. Howbeit observe that the said Statutes made in the raignes of H. 4. and H. 5. were chiefly intended against such as did then begin to discover the Pride Lucre and errors of the Church of Rome and in dirision were termed Lollards as you may read at large in the Book of Martyrs and elsewhere in divers other authors as Sleiden Brightman c. The Kings command against Law not to be obeyed by the Judges Stat. 18. E. 3. Stat. 3. 8. 3 One part of the Iudges oath is that they shall not deny right though it be by command from the King which if they breake they will be found guilty Laesae Majestatis divinae And therefore in such case they ought rather to disobey the Kings commands then thereby incurre the high displeasure of Almighty God for Gravius est divinam c. And to the end that the Iudges might be the better protected from this danger Stat. 2. E. 3. 8. the prudence of former times hath ordained divers Lawes whereby the Iustices have power to procéed Stat. 20. E. 3. 1. notwithstanding any command from the King to the contrarie no though it be under the Great or Privie Seal And therefore if the King write to the Iustices to prorogue an Assize because the defendant is in his service F. N. B. 153. h. yet the Iustices ought to procéed and not to cease for any such letter so likewise in an Assize the Bishop certifies Bastardie 29 E. 3. 14. Judgment 117 and the Kings letter is sent to the Iustices to cease because the certificate was suspicious notwithstanding which letter they tooke the Assize and afterwards albeit the Chancellor reversed the taking of the Assize in the Council because they obeyed not the letter yet notwithstanding that the Iustices gave Iudgement upon the Assize 22 F. 3. 12. Judgment 185 Also in dower the tenant was essoined and had farther day given at which the King sends a letter to excuse the tenants apperance alleadging that he was at Callis in his service Howbeit the Iustices gave no regard to it but proceeded notwithstanding that letter Nor by the Sheriff 4 The Sheriffe also 14 E. 3. Returns del Viscont 8â who is but an Officer or Minister to the superiour Courts of Iustice ought not to desist from the due execution and return of writs directed unto him notwithstanding any command to the contrary from the King least he likewise incurre the like danger by breaking his oath And therefore we read in 14 E. 3. that N. de B. being attainted of disseisin with force An Exigi facias went forth against him to the Sheriff who returned that the King had certified him by writ that he had pardoned the trespasse and imprisonment commanding him that he should desist and that therefore he had not executed the writ whereupon saith Wilby the writ ought first to have béene sent to us that we might have commanded the Sheriffe to cease for the Sheriffe
that which is to be done in that particular wherein the said Commissioners have authority to proceed according to their discretion which neverthelesse is to be limited and bounded with the rule of Law and Reason For discretion is a science or understanding to discern betwixt falshood and truth betwixt wrong and right betwixt shadows and substance betwixt equity and colourable glosses and pretences and not to proceed according to a mans own will and private affections because Talis discretio discretionem confundit c. Common of âiâânage 50 If the Commons of the Town of A. and of the Town of B. are adjacent Co. l. 7. 5. b. 3. Sir Miles Corbets case and that the one ought to have common with the other because of vicinage and in the Town of A. there are 50 acres of Common and in the Town of B. 100 acres of Common In this case the Inhabitants of the Town of A. cannot put more Cattle in their Common of 50 acres than that will féed without having any respect to the Common within the Town of B. nec è converso for the original cause of this Common for cause of vicinage was not for profit but for the preventing of Suits in a Champian Country by reason of the reciprocal escapes out of the one Town into the other And therefore if the Common of the Town of A. will depasture 50 Cattle and that of the Town of B. 100 Cattle it can be no prejudice to the one or to the other if the Cattle of the one Town do reciprocally escape and depasture out of the one Town into the other For if all their Cattle depasture promiscuously together per my per tout that can be no prejudice to the one or to the other c. âan slaughter ãâã the day or âght diversiâ 51 It is a good exposition of a Statute to expound it according to the reason of the Common Law For example at the Common Law Co. l. 7. 6. b. 3. in Milborns case if one had béen slain in a Town in the day-time viz. while there was yet full day-light and the Man-slayer had escaped the Town was therefore amercied and so it is holden in the 21 E. 3. Coronae 238. Dum quis felonicè occisus fuit per diem nisi felo captus fuit tota villata illa oneretur And with this also agrees 3 E. 3. Coronae 293. But if such a murther or homicide had béen committed in the night the Town should not then have béen amercied by the Common Law because then no follie could be imputed to the Inhabitants of the Town for letting him escape c. For the Scripture saith The day is ordained for man to labour in Psal 104. and the night to take his rest And the Poet saith Ut jugulent homines surgunt de nocte latrones And from this resolution of the Common Law the Statutes of Winchester 13 E. 1. and of 27 Eliz. cap. 13. are to be expounded For albeit no time be specified in those Statutes when the robbery should be committed for which damages are to be answered by the Hundred yet it is adjudged in 29 Eliz. in the case between Milborn and the Hundred of Dunmow in Essex that for a Robbery done before day the Hundred shall not answer but onely for that which is committed in the day time betwixt light and light And howbeit at the Common Law as is aforesaid the Inhabitants in great Towns were not to be amercied albeit the Man-slayer escaped when the Murther or Homicide was committed in the night Yet at this day since the said Stat. of Winchester by which it is enacted that in Cities and great Towns that are enclosed the gates shall be shut at Sunne-set until Sun-rising next morning Now the Inhabitants of such Cities and Towns are amerciable if such Man-slayer escape although the Murther or Homicide happen to be committed in the night as well as if it were committed in the day For now that act hath changed the reason of the Law and therefore the Law it selfe is also changed Ratio est anima legis mutata legis ratione mutatur lex For at the Common Law before the Statute if a man were slain in the night as is said before there was no fault to be imputed to the Citie or Town but now if they do not kéep their gates shut according to the Statute by reason whereof the offender escapes then is the fault and negligence in them and this agrées with the book in 3 E. 3. Coronae 299. which see also in Co. pro ut in margine Vide 149. 35. Co. l. 7. 32. The case of a fine per le Roy. 52 Inasmuch as the King is bound by the Stat. De donis conditionalibus as it is adjudged in the Lord Barleys case in Pl. Co. 240. Stat. De dâ binds the Kâ and thereâ he takes bâfit of 4 H. 7. â 32 H. 8. by which Act the King is restrained from alienation for it is provided by the same Act Quod finis ipso jure sit nullus Reason requires that the King shall take benefit of the Acts of 4 H. 7. and 32 H. 8. which enable the Tenant in tail to barre his âââes For it is agréed in all our Books that the King shall take benefit of any Act although he be not named 12 H. 7. 21. 35 H. 6. 60. Pl. Co. ubi supra And it would be hard if the King being issue in tail of a gift made to the Subject should be in worse condition than if he were not King Co. l. 8. 173. b. Virgil Parkers case 53 The Kings Tenant by Knight-service conveyeth half his land for the joynture of his wife that shall be Equality of the third ãâã descending and after marriage he demiseth the other halfe for years for the payment of his debts and legacies and deviseth 1000 l. to his younger Children In this case it was resolved that inasmuch as the advancement of his wife is as well within the Statute of 27 H. 8. Co. l. 10. 84. a. 4. Leonard Leveis case as the payment of his debts and the preferment of his children and for that the operation of that Statute doth principally take effect by the death of the Kings Tenant For that cause albeit the estate of the Feme hath the precedency yet the Kings third parâ shall he taken equally out of both those halfs and not out of the half so demised onely And so it was also resolved M. 41 42 Eliz. betwéen Remington and Savage and the 23 Eliz. in Thynnes case And agrées also with the common experience of the Court of Wards Co. l. 95. a. 4. Connys case 54 In a writ of Mesne the Parol shall not stay for the nonage of the Plaintiff for it is not reason In a writ of Mesne the ârol shall ãâã stay for lâây that the Infant shall be distrained for the services of
the land In this case the Rent and Escuage shall be apportioned but the Homage and Fealty shall still remain intire for the residue of the land still remaining in the Tenants hand because he still holds the residue of the land of him and then he must hold it by some service or other and therefore those services being in their nature unseverable and intire they shall totally remain being indéed the fréest and least chargeable services that the Tenant can hold by c. Co. ib. 150. a. 1. 14 Albeit in some cases a Rent-charge The charge of a stature not apportionable which is in his nature intire may by act in Law be apportioned as when the Grantée of the rent comes to the land by descent or the like Yet in such cases the writ of Annuity faileth because that writ being grounded upon the grant by déed which is intire must be sued for the whole and cannot be sued for part Also a rent in respect of the realty may be apportioned but the personalty is indivisible and shall not be severed no not by act in Law As if execution be sued of body and lands upon a Statute Merchant or Staple and afterwards the inheritance of part of those lands descends to the Conusée In this case all the execution is avoided for the duty being intire and personal cannot be divided c. Annua nec debitum judex non separat ipsum Co. ib. 15â b. 2. 15 A Rent-service is of its own nature apportionable Rent-service becomes rent-seck Howbeit if it be changed from Rent-service to a Rent-seck by severance thereof from the Seigniory it thereupon becomes intire and unsevââable 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 âervices 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 adâowson c. ândivisible 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 âstovers ââots and âings uncerâin not diviâble 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
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 ââder of ãâã 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 Assâse 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 reâdies 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 ãâã 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 âlent diâ or aâ ãâã 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 âine 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 âtes waivâ by Feme âert 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 âecher of ãâã 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 ânveyance ây several ãâã 12
the Bishop of Carliles Case 2 A prescription that if an inhabitant hath five fléeces of wool Titheâ or above that then the inhabitant after the shearing and binding up of the said five fléeces without fraud or deceit shall truly pay unto the Rector after monition c. at the doore of the Mansion house of the said inhabitant c. the tenth part thereof without any sight or touch of the nine parts by the Rector is a void prescription for it is against common reason that any man should judge or divide for himselfe and then take choice of his own division against the Rule of Litt. § 245. for the truth of the tenth depends upon the proportion it holds with the nine parts therefore for the parishioner who is in the nature of an adversary to the Parson in this Case to set out a part of the tenth which he onely affirmes to be just is to give him méerly power to tithe as he lists and the prescription were as reasonable as to say plainly that the parishioners might set out what tithe they please 120 Nemo prohibetur pluribus desensionibus uti âral Pleas ãâã 1 Where the Tenant or Demandant may plead a general issue Co. Inst p. 1. 304 a. 3. thereupon the general issue pleaded he may give in evidence as many distinct matters to barre the action or right of the Demandant or Plaintife as he can âable matâ pleaded 2 Where a special Verdict containes double or treble matter Co. ibidem the Tenant or Defendant may either make choice of one matter and to plead it to barre the Demandant or Plaintiffe or to plead the general issue and to take advantage of all or he may plead to part one of the pleas in barre and to another part another plea and the conclusion of his plea shall avoid doublenes ãâã as admiâator or ââor 3 An Executor brings debt as Administrator Co. l. 5. 33. a. Robinsons Ca. and is barred by plea that he is Executor In this Case he may afterwards bring debt as Executor For he was barred as to the action of the writ to have Debt as Administrator but not to the Action ââtion ãâã satisfaââ 4 Two men were bound jointly and severally in an Obligation Co. l. 5. 96. b. Blumfeilds ca. the one was sued condemned and taken in Execution and so not long after was the other And afterwards the first escaping the other brought an Audita quaerela but it was not admitted for albeit the Plaintiffe might have had his action against the Sheriffe upon the escape yet untill he be satisfied indéed the other shall not be enlarged nor have his Audita querela because the execution upon the first that escaped was not valuable being without satisfaction ãâã of actiââll not ãâã recovery âise 5 If one be barred by plea to the writ Co. lib. 6. 7. a. in Ferreââ Ca. he may have the same writ again if by plea to the Action of the writ he may have his right Action If the plea be to the Action and he be barred by judgment confession or verdict in personal Actions it is a barre for ever but in real actions he may have a writ of an higher nature and shall it is the same right again because it concernes his Frankteneââent and Inheritance So if one be barred in an Assise of Novel disseisin yet upon shewing a discent or other special matter he may have an Assise of Mortdancester Aiel Besaiel a writ of Entry sur disseisin of his Ancestor c. or the like F.N.B. 5. n. And if he happen to fail in any such real action yet may he have last of all his writ of right in which the whole matter shall be tried and determined again Howbeit Recovery or barre in Assise is a barre in every other Assise and in a writ of entry in the nature of an Assise because they are both of his own possession and of the same nature So barre in a writ of Aiel is a haire in a writ of Besaiel Cosinage because they are ancestral and of the same nature yet in a Formedon in descender albeit the Dâmandant be barred by verdict or demurrer yet the issue in taile may have a now formedon in descender But this is by the construction of W. 2. c. 2. So likewise if the Ancestor be barred in a writ of Error upon a release by him made to the Tenant yet the issue shall have a new writ of Error For he claimes in not onely as heire but per formam doni And by the Statute he shall not be barred upon a feined or false plea of his Ancestor so long as the Right of the intaile remaines and with this accords 10 H. 6. 5. and 3 Eliz. 188. Dier Sir Ralfe Rowlets Case âerse 6 In Trespas the Defendant makes title for that A. W. Co. lib. 6. 24. a Reades Case being seised in fée leased to him the Plaintife makes title by discent and traverseth the lease and good for it may be true that A. W. was seised and yet that a discent was cast to the Plaintiffe therefore the lease is most material to be traversed Howbeit it séemes that either the one or the other may be traversed So in Trespas the Defendant pleads that A. was seised who enfeoffed B. who enfeoffed C. who enfeoffed D. whose Estate the Defendant hath here the Defendant may traverse which of them he please Co. l. 8. 15. b. 4 in Edw. Althams Case 7 Where a man releaseth totum Jus generally By release of actions Entry remaines all his rights are thereby released but if the disseisée release to the disseisor omnes actiones viz. recuperandi sive prosequendi in judicio thereby his right of entry is not released for when a man hath divers means to come to his right he may release one of them in special and yet take benefit of the other and with this accords Litt. fol. 115. b. 19 Ass Pl. 3. 19 H. 6. 4. 21 H. 6. 23. 21 H. 7. 23. Co. l. 9. 23. b. 1 in the Case of Avowry 8 Notwithstanding the Statute of 21 H. 8. 19. The Lord ãâã avow as bâfore the Stat. the Lord may at this day avow upon a person certain as upon the utry Tenant according to the Common Law For the Statute taketh not away the Common Law in that Case but giveth liberty to the Lord to pursue the one or the other Co. l. 9. a. 4. in the Case of Avowry 9 If the Lessée or if Tenant peravaile in Case of Mesnalty be present when the Lord and his Bailiff comes to distraine Upon distresâ rescous or trespass if nothing be in arreare he may well make rescous and so release himselfe as it was resolved in Bevils Case in Co. lib. 4. fol. 8. and divers other Bookes which sée in the Case of Avowry Co. lib. 9. 23. a. 4. Or otherwise
performe the effect or consequence of a thing shall not have the thing it selfe fol. 104 XXXVI Non officit Conatus nisi sequatur effectus fol. 107 XXXVII Acta exteriora indicant interiora secreta fol. 108 XXXVIII Inutilis Labor sine fructa non est effectus Legis e contr fol. 110 XXXIX Lex non Praecipit inutilin fol. 112 LX. Debile Fundamentum fallit opus e contr fol. 113 LXI Things incident are adherent to their Superiors or Principalls fol. 127 LXII Quod tacite intelligitur de esse non videtur fol. 137 LXIII Things by reason of another are in the same plight fol. 141 From personall things LXIV Personall things cannot be done by another fol. 150 LXV They cannot be granted or transferred over as matters of pleasure ease trust and authority fol. 153 LXVI They being once suspended or discharged for a time are for ever after Extinct fol. 154 LXVII They dye with the person fol. 155 LXVIII Things do enure diversly according to the diversity of the time fol. 157 LXIX Quod prius est tempore potius est jure fol. 159 L. According to the diversity of the same person fol. 160 LI. According to the diversity of severall persons fol. 162 LII Relation is of great force in Law fol. 165 LIII Verba posteriora propter certitudinem addita ad priora quae rertitudini indigent sunt referenda fol. 167 LIV. No man can do an Act to himself fol. 168 LV. The Law favoureth Privity fol. 172 LVI Equall things cannot drown one another e contra fol. 190 LVII Things are to be construed secundum aequalitatem rationis fol. 190 LVIII In quo quis delinquit in eo de jure est puniendus fol. 202 LIX Omne Majus Continet in se minus fol. 206 LX. Additio probat minoritatem fol. 211 LXI A matter of higher nature determineth a matter of lower nature e contra fol. 212 LXII The more worthy thing draweth unto it things of less worthiness fol. 215 LXIII Accessarium sequitur Principale fol. 218 LXIV Things accessary are of the nature of the Principall fol. 226 LXV A mans one words are void when the Law speaketh as much or otherwise fol. 231 LXVI Expressio eorum quae tacite in sunt nihil operatur fol. 235 LXVIJ Parte quacunque integrante sublata tollitur totum fol. 236 LXVIJJ Ex tota materia emergat Resolutio fol. 238 LXJX Partes simul sumptae componant totum totum comprehendit suas partes fol. 241 LXX Intire things cannot be severed fol. 242 LXXI Argumentum a Divisione est fortissimum in lege fol. 260 LXXII Generalls must go before and the specialls must follow after fol. 261 LXXIII The more worthy shall be set before the lesse worthy fol. 261 LXIV Sicut natura non facit saltum Ita nec Lex fol. 263 LXXV A digniori fieri debet Denominatio Resolutio fol. 265 LXXVI The Law requireth decency and order fol. 267 LXXVII Negatio Conclusionis est Error in Lege fol. 268 LXXVIII The Law respecteth the Bonds of Nature fol. 268 LXXIX Nemo praesumitur alienam posteritatem suae praetulisse fol. 285 The Law LXXX The Law esteemeth and judgeth of all things according to their nature and quality fol. 286 LXXXI In persons the Law looketh at the Excellency of some and giveth them singular priviledges above others as to the King Queen Noble men and Peers of the Realm c. fol. 292 LXXXII The Law giveth greater priviledges to men then to women fol. 313. and LXXXIII It tendreth the weakness and disability of other persons as of those out of the Realme Feme Coverts Enfants c. fol. 313 LXXXIV It tendreth the ignorance of men unlettered fol. 322 LXXXV It favoureth strangers that are neither parties nor privies fol. 323 LXXXVI Res inter alios acta alteri nocere non debet sed quandoque prodesse potest fol. 327 LXXXVII Nemo punitur pro alieno delicto fol. 336 LXXXVIII The Law favoureth things done in anothers right fol. 338 LXXXIX It disfavoureth other persons as Villains Outlawes Exiles Aliens and especially Aliens Enemies fol. 343 XC How the Law tendreth Ages fol. 348 XCI The Law in things respecteth every thing according to worthiness fol. 250 The Law XCII It respecteth life and liberty most and the person above the possessions fol. 353 XCIII it respecteth things in the realty more then those in the personalty fol. 359 XCIV It respecteth Freehold and Inheritance more then it doth Chattels fol. 362 XCV It respecteth matters of Record more then other transactions fol. 368 XCVI It respecteth Conveyances by Livery and which pass Estates of the land then those that pass by Grant or are belonging to or issuing out of land fol. 371 XCVII It favoureth a matter in the right more then a matter in possession fol. 373. yet XCVIII It favoureth possession where the right is equall fol. 375 XCIX It respecteth matters of profit and Interest largely of pleasure skill trust authority and limitation strictly fol. 376. and C. Therefore these may be Countermandants so cannot those fol. 381 CI. It respecteth matter of substance more then matter of circumstance fol. 382 yet CII For memory and solemnity substances are to be exprest under circumstances fol. 393 CIII It respecteth things executed and done more then Executory and to do c. fol. 395 CIV Possibility of things fol. 403. and CV Therefore nothing to be void which by possibility may be made good fol. 406 CVI. Id certum est quod certum reddi potest fol. 408 CVII Res non per se invicem sed per pecuniam estimantur non pecunia per res fol. 411 The Law CVIII It favoureth mutuall recompence fol. 411 CIX De minimis non Curat Lex fol. 418 CX It yeildeth favour in actions when there is no damage of them 1. Necessity fol. 420 CXI 2. Conveniency fol. 428 CXII 3. Conformity fol. 429 CXIII 4. Colour fol. 431 CXIV It prizeth the Acts of God and of the Law more then those done by the party fol. 432 CXV Vtique fortior est dispositio Legis quam hominis fol. 446 CXVI It reputeth that a man will deal for his own advantage best fol. 153 and CXVII Therefore it beleiveth against the party whatsoever is to his prejudice fol. 459 CXVIII When severall remedies are given the party to whom the Law giveth them hath election which he will take fol. 473 CXIX Cujus est divisio alterias est Electio fol. 478 CXX Nemo prohibetur pluribus defensionibus uti fol. 479 CXXI Consensus tollit Errorem fol. 481 CXXII Volenti non fit injuria fol. 482 CXXIII Quilibet potest renunciare juri per se introducto fol. 483 CXIV Omnis Ratihabitio retro-trahitur mandato seu licentiae aequiparatur fol. 485 CXXV Nemo tenetur accusare seipsum fol. 486 CXXVI Nec se infortuniis periculis exponere fol. 487 The Law CXXVII
like This was termed by the Ancient Philosophers Original Justice which in Adams innocencie was cléere and lightsome but since his fall both in himselfe and his posteritie much darkened and incumbred with original sinne This is also the Law whereof Saint Paul makes mention in his Epistle to the Romans where he saith When the Gentiles which have not the Law Rom. 2.14 15. do by nature the things contained in the Law These having not the Law are a Law unto themselves which shew the work of the Law written in their hearts their conscience also bearing witnesse and their thoughts in the mean while accusing or excusing one another The Law of Reason is that Law which deduceth conclusions from known Principles by ratiocination or discourse of sound reason which Principles are termed Rules or Maximes of Reason Positive Lawes are such Lawes as are framed by the light of the two former for the regular Government of some particular Common wealth And therefore these Lawes are sundry and divers according to the several constitutions of particular places and Countries of this sort is the Common Law of England which being the Municipal Law of this Nation and receiving its light principally from the Law of Reason is many times directed and controuled by the Rules and Maximes thereof Now of these Maximes some are taken out of forreigne Sciences as Theologie Grammar Logique Physiques Moral Philosophy Politicks and Oeconomiques The rest are proper to the Law it self as Law-constructions and Fictions in Law All which will more plainly appear by the Precepts and Examples hereafter following I Maximes of Reason taken out of THEOLOGIE 1 Summa Ratio est quae pro Religione facit It is the highe Reason that makes for Religion Statutes which restrain Alienation of Ecclesiastical livings binde the King though not named 1REgularly Statutes binde not the King Co. l. 8. 14. a. In the case of Ecclesiastical persons Co. l. 11. 70. a Magdalen Colledge Case Co. l. 2. 44. b. In the Bishop of Winchesters Case unlesse he be particularly named yet the King is included within the general words of 13 El. 10. which prohibit Ecclesiasticall persons to make grants of their Livings because the Parliament which made that Statute adjudged such grants to be causes of dilapidations and decay of spirituall livings and hospitality and of the utter impoverishment of successors Incumbents in the same whereupon would necessarily follow decay of true Religion and the spirituall worship of God For it is recorded in History that amongst the ten Persecutions which the Primitive Church suffered there were two the most grievous the one under Dioclesian the other under Julian the Apostate the first endeavoured to destroy all the Professors and Preachers of the Word of God occidit omnes Presbyteros but notwithstanding that Religion still flourished for sanguis Martyrum est semen Ecclesiae yet that was a grievous Persecution But the Persecution under the other viz. Julian was much more grievous and dangerous because as the History saith occidit Presbyterium for it robbed the Church and spoiled spiritual persons of their revenues And thereupon ensues great ignorance in Religion and the service of God and therefore great decay of the Christian profession for none will apply himselfe or his children or any other committed to his charge to the study of Divinity when after long and painfull study they shall have nothing to live upon See more in the Books at large Ecclesiastical livings are in Abeyance 2 The Fee simple of a Parsonage or Vicarage is said to be in Aveyance and this was provided by the providence and wisdom of the Law Co. Inst pars 341. a. for that the Parson and Vicar have curam animarum and were bound to celebrate Divine Service and administer the Sacraments and therefore no act of the predecessor should make a discontinuance to take away the entry of the successor and to drive him to a reall action whereby he should be destitute of maintenance in the mean time Co. ibid. 3 Vpon consideration of all the Books of the Law Ecclesiastical persons cannot injure the Church this diversity is well observed by Sir Edw. Cooke that a Parson or Vicar for the benefit of the Church and his successor is in some cases estéemed in Law to have a Fée simple qualified But to do any thing to the prejudice of his successor in many cases the Law adjudgeth him to have in effect but an estate for life Bract. f. 226. Causae Ecclesiae publicis causis aequiparantur And Ecclesia fungitur vice minoris meliorem facere potest conditionem suam deteriorem nequaquam Brit 143. Vide Co. Inst pars 1 2. b. 4. Littl. §. 146. Co. Inst pars 1. 102. b. 40 E. 3. 27. 5 E. 4. 8. 6 E. 3 51 52. 10 E. 4. 2. a. 21 H. 7. 2â 4 An Abbot Prior Bishop Dean Arch-deacon Prebend Ecclesiastical persons cannot disclaim Parson Vicar or other sole Corporation that is seised in auter droit cannot disclaim because they alone cannot devest any fée which is vested in their house or Church For an Abbot and Prior had their Convent the Bishop his Chapter the Parson and Vicar their Patron and Ordinary and the like of other sole Corporations without whose assent they could passe away no Inheritance And the reason of this was because the wisdome of the Law would never suffer one sole person to be trusted with the disposition of the Inheritance of his house or Church Ecclesiae suae conditionem meliorem facere possunt sine consensu deteriorem non possunt sine consensu Vide infra Max. 178. Pl. 1. Co. l. 6 49. b. Boswels Case Co. Inst pars 1 344. a. Glan l. 13. cap. 18 19 20. Mirror c. 5. § 5. Bract. 238. 240 244 c. 291. Fleta l. 83. c. 11 16 17. Britt 222 223 224. 6 E 3. 28. 39. 52. 39 E. 3. 24. 43 E. 3. 25. 45 E. 3. Quare impedit 39. 31 E. 1. Quare impedit 186. 5 By the Common Law there ought to be in every Parish Persona idonea to serve the Cure The Parson or Vicar ought to be Persona idonea for so it appears by the words of the Quare impedit quod permittat praesentare idoneam personam which Epithete idonea includes abilitie in erudition and doctrine honesty in his conversation and diligence in his function and all this to instruct the People of God in true Religion and good conversation and to avoid contention And to the intent that he who hath so great a charge may effectually and peaceably intend it the Common Law provides that after Institution he shall not be subject to actions and so neglect his duty by losing his time in suits and vexations of Law Not to be removed after institution by a common person nor after induction by the King And therefore at the Common Law if a stranger had presented his Clerke and
if they be distrained to come to them they may have a writ out of the Chancery for their discharge All other clerks also within orders though not beneficed have the like priviledge And the reason of this is to the end they should attend their function Co. l. 11. 70. b. in Madg. Col. case M. 10 H. 6. 8. 3 I. S. brings an action of debt against I. Rector of T. in com B. the defendant saith A Parson ought to be resident that before the day of the writ purchased he dwelt at B. in com N. Et non allocatur for a Parson shall be intended by Law to be alwayes resident upon his benefice for the cure of souls which he hath there and the Parson who hath cure of souls and is a non-resident non est dispensator sed dissipator non speculator sed spiculator And therefore no such thing shall be presumed F. N. Br 175. 4 A Parson to the end he may give his continual attendance upon that sacred function is fréed from all personal charges The like that may hinder him in his calling And therefore he shall not be chosen Bailiffe Réeve Beadle or other officer for land annexed to his Church And all this by the course of the Common Law F. N. Br. 34. l. for the same reason it is that if a Parson have a Parsonage and after take another benefice without a dispensation the first benefice is void and the Patron thereof may present for this avoydance is called a Cession because the taking of the last makes him neglect the first F. N. Br. 175. Br. Dismes 16 5 To the end that Religion may not be neglected Tithes due onely to the Parson of common right but preserved and daily increased the Common Law giveth to the Parson of common right the tenth of all manner of yearely encrease which are called Dismes or Tithes the due payment whereof tendeth much to the continuance and establishment of the true Religion and the due worship of God Co. l. 2. 44. b. The Bishop of Winchesters case And therefore albeit a meere lay man may prescribe in modo decimandi yet he cannot so doe in non decimando because he is but in special cases capable of tithes at the Common Law and therefore without special matter shewed it shall not be intended that he hath any lawful discharge And for this cause in favour of holy Church although it may have lawfull commencement the law will not suffer such prescription in that case nor put it to the trial of lay men who will perhaps rather strain their consciences for their private benefit that give the Church the duties that belong to her Vide infra 186. 11. Co. l. 5. 63. a. 44 E. 3. 19. 6 The Inhabitants of a Town without any custome may make ordinances or by-laws for reparation of the Church By-Lawes and in that case the greater part shall bind all the rest without any Custom The Chamberlain of Londons case Prisot 3 To such Lawes as have warrant in holy Scripture our Law giveth credence contra Co. Inst pars 1 128. b. 1 In the raigne of King Alfred Outlawed persons had capita Lupina and untill a good while after the Conquest no man could have been out-lawed but for felonie and then the out-lawed person was said to have Caput Lupinum because he might be put to death by any man as a Wolfe that hateful beast might and in ancient time the head of either of them being brought to the chiefe place of the County or Franchise where they were killed the partie so killing them was to have a Mark for his paines Howbeit in the beginning of the raigne of E. 3. it was resolved by the Iudges for avoiding of inhumanitie and effusion of Christian bloud that it should not be lawfull for any man but the Sheriffe only and that upon lawfull warrant to put to death any out-lawed person though it were for felonie in pain to suffer death as in case of killing another man One attainted of a Praemunire 2 It was lawfull for any man to put to death a man attainted of a Praemunire because he was also without the Kings protection Co. ibid. 129. b and therefore subject to be destroyed as the Kings enemy but this was taken away by the wisedome of Queen Eliz. and her Parliament 5 El. 1. as a libertie not becoming a Christian Common-wealth Lepers 3 The Law of England for removing of Lepers by the writ de leproso amovendo from the societie of men to some solitarie place is grounded upon the law of God Levit. 13.44 45 46. Numb 5.1 2. Co. ibid. 135. b 4 In Cholmeleys case in the 2 Rep. fol. 51. Co. l. 11. 70. b. in Magdel Colledge case where a reversion expectant upon an estate in taile was granted to one for the life of the tenant in taile A Monkish life condemned it was said that by possibilitie this grant for life may take effect for tenant in taile having no issue may become a Monk and enter into religion and then the grantée may have it during his naturall life but it was there resolved that such superstitious and irreligious profession shall not be presumed in law A Law against Charity void 5 If a Statute be made directly against the Law of God Doct. Stud. l. 1. cap. 6. as if it should be ordained that none should give Almes to any in what necessitie soever he were or the like such Statute ought to be adjudged void 6 Such Canons Constitutions Ordinances Co. l. 5. part 1. 32. b. in the case of the Kings Ecclesiastical Law and Synodals provincial Ecclesiastical Laws as have béen allowed by general consent and custome within the Realme and are not contrariant or repugnant to the Lawes Statutes and Customes of the Realme nor to the damage or hurt of the Kings Prerogative royall are still in force within this Realme as the Kings Ecclesiasticall Lawes of the same 4 The Jurisdiction of the Ecclesiastical Law ought to be bounded by the Common Law Spiritual Laws 1 The Spiritual Laws mentioned in Littleton Sect. 648 are such Ecclesiasticall Lawes as are allowed by the Laws of this Realme Co. Inst pars 1 344. a. Co. l. 5. pars 1. 32. b. Jurisdiction Stat. 35 H. 8. 19 33 H. 6. 34. 32 H. 6. â8 viz. which are not against the Common Law whereof the Kings prerogative is a principal part nor against the statutes or customes of the Realme Prerogative and regularly according to such ecclesiasticall Lawes the Ordinarie and other Ecclesiastical Iudges do procéed in causes within their Conisance and this Iurisdiction was so bounded by the Ancient Common Lawes of the Realme and so declared by Act of Parliament 5 Dies Dominicus non est juridicus The Lords day 1 In all the four terms the Lords day is not Dies
ought not for any such writ to have ceased to serve the Exigi facias without commandment from the same Court out of which it issued and thereupon the Sheriffe was amercied Dyer 170. 1 2 Eliz. and another Exigi facias issued out Nor by the Escheator The Escheator also ought not to desist from the execution of his office notwithstanding any such command to the contrarie from the King And therefore we find in 1 Eliz. That after the death of the Lord Powes a Mandamus being directed to the Escheastor of Salop to find the office he takes the presentment of the Iury in p per and adjournes them over to another day to take it in Parchment and by Indenture before which day the Quéen sends a Supersedeas at the suit of one Herbert and his wife And it was adjudged that the Escheator ought not to have obeyed that Supersedeas 7 The Law disfavoureth an excomunicate person Excommunication Jury 1 It is a good plea in abatement of a writ to say Litt. § 201. Co. Inst pars 1 133. b. Co. ibid. 158. a. that the Plaintiffe is excommunicate Doct. Stud. l. 1. cap. 6. 2 The old Bookes have said that if a man be excommunicate he ought not to serve of a Iurie Jews 3 A Iew born in England took wife a Iew borne also in England Co. ibid. 31. b. Rot. Parl. 26 E. 1. Rot. 1. the husband was converted to the Christian faith purchased lands and enfeoffed another and died the wife brought a writ of Dower but was barred thereof and the reason yeelded in the record is this Quia verò contra justitiam est quod ipsa dotem petat vel habeat de tenemento quod fuit viri sui ex quo in conversione sua noluit cum eo adhaerere cum eo converti c. 4 Infidels are accounted in Law to be perpetui inimici Infiels with whom a Christian ought to have no peace but perpetual enmitie and hostilitie according to that of the Apostle 2 Cor. 6.15 Quae autem concordia Christo cum Belial Co. l. 7. 17. a. b. in Calvins case aut quae portio fideli cum infideli And the Law saith Judaeo Christianum nullum serviat mancipium nefas enim est quem Christus redemit Blasphemum Christi in servitutis vinculis detinere Regist 282. Infideles sunt Christi Christianorum inimici and herewith agréeth the book in 12 H. 8. fol. 4. where it is holden that a Pagan cannot have or maintaine any action at all and upon this ground there is a diversitie betwéene the Conquest of a Country of a Christian Prince and the Conquest of a Country of an Infidel The power of a Conquerour for if a Prince obtaine a Christian Country by Conquest seeing that he hath vitae necis potestatem he may at his pleasure alter and change the Lawes of that Nation but untill he do make an alteration the ancient Lawes thereof shall remain Howbeit if a Christian Prince should conquer a Country of an Infidel and bring them under subjection there ipso facto the Lawes of the Infidel are abrogated for they be not onely against Christianitie but against the Law of God and nature contained in the Decalogue And in that case untill certaine Lawes be established amongst them the Prince by himselfe or such Iudges as he shall appoint shall judge them and their causes according to natural equity and original Iustice in such sort as Kings in ancient time did within their Kingdomes before any certaine municipal Lawes were established But where a Prince hath the Government of a Nation by descent seeing that by the Lawes of the Nation he doth inherit that Authority he cannot change the Lawes thereof without the consent of the People assembled in Parliament II Maximes of Reason taken from GRAMMAR 8 The Rules from Grammar are infinite in the Etymologie of words and in the Construction of them what their nature is single what joyned with others c. A Lease with condition to take the profits 1 IF a man make a Lease for yeares reserving a rent with a condition Co. Inst pars 1 203. a. that if the rent be behind the Lessor shall re-enter and take the profits untill thereof he be satisfied in this case the profits shall be accompted as parcel of the satisfaction and during the time that he so taketh the profits he shall not have an action of debt for the rent for the satisfaction whereof he so taketh the profits but if the condition be that he shall take the profits untill he be satisfyed and paid of the rent without saying thereof or to the like effect there the profits shall be accompted no part of the satisfaction but onely to hasten the Lessee to pay it and untill he be satisfied he shall take the profits to his owne use Commencement of a Lease 2 If a lease be made Habendum sibi à die confectionis Col. l. 5. 94. a. in Barwicks Case the day of the making is excluded for a vel ab is dictio significativa primi termini à quo sicut dictio usque termini ad quem a vel ab accipitur excl sivè Vide infra 1â Max. 34. 2. Possession derived 3 Possessio is derived à Pos and sedeo Co. l. 6. 57. b. in Bredimans Case because he that is in possession may sit down in repose and quiet so also seisina is derived à sedendo for untill he hath seisin all is Labor Dolor vexatio spiritus but when he hath seisin he may sit down and rest Howbeit Quaere whether or no possessio be derived of Post and sedeo because he that hath possession sits downe last and seisina seemes to be derived of the French word seiser which signifies to lay hold on Tempus semesââe 4 Tempus semestre being spoken in the singular number as appears in the Dictionaries signifieth half a year or six moneths Co. l. 6. 62. a. in Catesbies Case viz. such six moneths qui conficiunt dimidium anni there is a great diversitie in our coÌmon spéech between a Twelve-moneth being the singular number wch includes a whole yeare according to the Kalender and twelve moneths in the plural number which shall be computed according to 28 dayes for every moneth Vide 31. 13. Co. l. 8 85. b. in Sir Richard Pexhals Case 5 A. deviseth to B. 100 Shéep and ten Bullocks Devise and 10 l. issuing and payable yearely out of his lands here the last and disjoynes the rent from the Shéep and Bullockes It is otherwise if he had devised them thus 100 Shéep ten Bullockes and 10 l. yearely for then the and connexeth them all together and then they are all to be paid yearely out of the lands Co. l. 10. 133. a Osborns Case 6 Words which passe under the name of Latin are of four
Montjoys case 5 Donée in taile is restrained by a particular Act of Parliament Warranty no barre quòd non faceret aliquid in nocumentum c. haered c. nisi pro juntur uxor c. reddend verum antiquum reddit c. Here if the ancient reservation was of gold he cannot reserve silver if two farmes were anciently let to several tenants for several rents he cannot let them both to one man for one intire rent nor demise parcel of the farme rendring rent pro rata nor reserve it payable at two feasts when it was before payable at four Howbeit he may reserve eight bushels of wheat instead of a quarter reserved before for they are all one in qualitie value and nature Co. l. 6 65. b. Sir Moile Finches case 6 The change of the name of a thing cannot alter the thing it selfe Reservation of rent but the new name may be used by the owner in conveyances praecipes c. without prejudice And therefore in Sir Moile Finches case in the 6. Rep. it was agréed that Exceter-house in the Strand and Dorset-house in Fleet-street having then within thrée yeares before gained those names might be well enough known to their neighbours by the same names and distinguished from all other houses and might also by those names be demanded in praecipes c. so in a praecipe brought of a Mannor in com Bedd by the name of the Mannor of Asple whereas it had béene formerly and was still called Asple guise here the tenant after the view demanded judgement of the writ unto which the demandant said the Mannor put in view was also known by the name of Asple 41 E. 3. tit Maint de briefe 49. 8 H. 6. 32. and it was adjudged that such a name gotten by the knowledge of the Country is sufficent Change of names without the true and proper name for in this sense it is true De nomine proprio non est curandum dum in substantia non erretur quia nomine mutabilia sunt res autem immobiles Co. l. 9. 110. b. in Meriel âreshams case 7 Albeit Covina of it selfe and ex vi termini Corin. ought to be betwixt two yet when it is coupled with fraud which may be committed by one alone the Court shall adjudge upon the matter and not upon the strict Etymologie of the word for Plerunquè dum proprietas verborum attenditur sensus verborum amittitur Co. l. 11. 34. a. in Alexander Powlters case 8 The Statute of 23 H. 8. 1. House-burniâ takes away Clergie from the House-burner the Statute of 1 E. 6. 12. gives the benefit of Clergie to all felons save onely for Murder Poysoning Burglary Robberie Horse-stealing and Sacriledge so as House-burning being in this Statute casus omissus such an offender séemeth thereby to be allowed his Clergie Neverthelesse because the Statute of 25 H. 8. 3. takes away Clergie from the House-burner that standeth mute challengeth above 20 or answereth not directly albeit the offence be committed in another County then where the offender is tried And likewise because the Statute of 4. and 5. P. and M. 4. takes away Clergie from the accessories of that offence it is adjudged that according to the intention of the makers of the Statute of 1 E. 6 House-burning is included within the meaning of that Act although it is a penal Law and quite left out of the letter of the same Act. Letters omitted 9 In 17 El. Dyer 342. a. Co. l. 9 48. a. The Earl of Shrewsburies case Co. l. 2. 17. a. Lauds case The four first letters in the name and stile of H. 7. viz. H. R. A. F. for Henricus Rex Angliae Franciae c. were left out of his Letters patents made to Simon Digby yet adjudged good And in the 38 H. 6. 33. A count in which it was alleadged that T. W. resignavit c. in manus J. Episcopi c. loci illius Ordinarii And exception was taken because it was not in manus Johannis Episcopi séeing the Letter J. signified nothing but yet the Count was adjudged good Wast 10 The Statute of Glocester cap. 5. Co. Inst 1. 54. b which gives an action of wast against the Lessée for life or yeares which lay not against them at the Common Law speaketh of one that holdeth for terme of yeares in the Plural number and yet it appeareth by Littleton Sect. 67. that although it be a penal Law whereby treble damages and the place wasted shall be recovered yet a tenant for halfe a yeare being within the same mischiefe shall also be within the same remedie although it be out of the letter of that Law 11 Vide Pl. Co. 109. b. sequent Indictment 11 False latin shall not quash an Indictment or a Count Col. l. 5. 121. a. 4. in Longs case for albeit an original writ shall abate for false Latin as it is holden in 9 H. 7. 16. 2 H. 4. 8. 44. E. 3 18. 10 E. 3. 1. yet Iudicial writs or a fine shall not be impeached for false Latin as is held in 9 E. 3. The same Law of an Indictment as praefato reginae for praefatae mamilla for mammilla c. Vide suprà 13 4. False Latine 12 In the 14 of E. 3. the King grants licence to found in Oxford Co. l. 11. 8. b. Doctor Ayries case an Hall under the name of the Hall of the Scholars of Oxford the Founder calls it the Hall of the Queen They present to a Church by the name of Provost Fellowes and Scholars of the Colledge of the Queen in the Universitie of Oxford The Incumbent devises the Rectorie which they confirme by the name of Provost Fellowes and Scholars of the Hall or Colledge of the Queen in the Universitie of Oxford Misnamer of a Colledge Notwithstanding these variances the presentation and confirmation are both good for a small variance is not to purpose if the description be such that no other can be intended as Abbot Richerd grants by the name of Richard 15 Talis interpretatio fienda est ut evitetur absurdum inconveniens ne judicium sit illusorium Pluralities of Benefices By the Statute of 31 H. 8. 13. Co. l. 4. 79. a. Digbies case if a Parson or Vicar having one benefice with cure of soules being worth eight pounds per annum or above take another and be instituted and inducted in the possession of the same c. the first shall be void Here albeit the Statute saith plainly instituted and inducted yet if he be onely instituted into it he shall lose the first before induction and this is in regard of the great inconvenience that would insue if the first benefice should not be void by institution to the second by force of the said Act for then one may be instituted to divers benefices with cure the great charge
then issue a sonne and a daughter And after the divisor dies also A. dies and B. dies without issue C. also and his wife die and the sonne hath issue a daughter and dies Here the question was whether the daughter of the sonne should have the land or no And it was resolved that she should not because in this case at the Common Law C. and his wife had but an estate for life with remainder to their children for life and then the cause or reason why they by the will should have an estate taile is onely grounded upon the intent of the divisor Howbeit it was resolved that such an intent ought to be manifest and certaine and not obscure and doubtfull because it will not then admit of any strained construction farther than the words themselves do import by a proper and genuine interpretation according to the Rules of Law Devise 5 If I devise lands to my sonne Thomas to hold to him and the heires male of his bodie for the terme of 500 yeares Co. l. 10. 87. a. Leonard Loves Case Dyer 7. pl. 8. 28 H. 8. his heire shall not have them but his executors for this terme is but a chattel and cannot be intailed and such a devisée may alien the terme if he please And Cook Chief Justice held that such a devise is but an estate for years because it is so in expresse words devised and that in this case against expresse words no inference or interpretation shall be admitted Tales 6 Tales de circumstantibus shall not be granted in an Assize by the Statute of 35 H. 8. 6. Co. l. 10. 105. a. Denbawdes Case because by the expresse words of that Act they are onely grantable in every writ of Habeas corpora or distringas with Nisi prius and no exposition can in this case be made against expresse words for viperima est ista expositio quae corrodit ventrem textus 7 If feme tenant for life take husband who makes wast Co. l. 5. 75. b. Cliftons Case and the feme dies Here the husband is not punishable for that wast because the Statute of Glocest 6 E. 1. cap. 5. is thus recited in the writ of wast Wast Quare cum de communi c. provisum sit quòd non liceat alicui vastum c. facere de terris c. sibi demissis ad terminum vitae vel annorum c. So that the land being not demised to the husband but he holding it onely for her life and in her right he shall not be chargeable for wast after the death of the wife by the expresse words of the Act as it is recited in that writ Devise 8 A devise of land by will is good without Probat Dyer 53. b. 11. 34 H. 8. because the Statute of wills ordaines onely that it shall be in writing and enjoynes no Probat and therefore if it be in writing and proved by witnesses it is good without Probat Tail of the King 9 If tenant in tail of the gift of the King Co. Inst pars 1 373. 1. the reversion to the King expectant is disseised and the disseisor levie a fine and five yeares passe this shall barre the estat tail notwithstanding the Proviso in the Statute of the 32 H. 8. cap. 36. So likewise if a collateral ancestor of the Donée release with warrantie and the Donée suffer the warrantie to descend without entry made in the life of the ancestor this also shall bind the tenant in raile because the words of that Statute are had done or suffered by or against any such tenant in taile And in this case he is not partie or privie to any act either done or suffered by or against him 17 Maledicta est expositio quae corrumpit textum Co. l. 2. 24. a. Baldwins Case 1 The Earl of Cumberland demises land to Anne and to one Anthony Baldwin her sonne and to the heires of the said Anthony Demise Habendum to them from the date for 99 yeares Here albeit heires are mentioned in the premisses yet is not the Habendum repugnant unto them but they have a joynt estate for yeares for it cannot be repugnant as to Anthony and yet good to Anne Viperima est ista expositio quae corrodit ventrem textus Co. l. 11. 70. a. Magd. Colledge Case Grants to the King Stat. 13 El. 10. 2 Grants to the King are restrained by the general words of 13 El. 10. for the words are to any person or persons Grants to the King of Church Livings bodie politique or corporate and the King is a person as it is said in 10 H. 7. 18. and a bodie politique as appears in Plowd fol. 213 234. Now therefore if the King be cléerely included in the letter if he shall be excluded out of the Act it must be by construction of Law and in this case the Law will make no such construction for the Quéen Lords and Commons who made the Act have adjudged as in the preamble appears that long leases made by Colledges c. are unreasonable and against reason much more estates in fée simple And the Law which is the perfection of reason will never expound the words of that Act against reason for maledicta est expositio c. 18 Nimia subtilitas in lege reprobatur Co. l. 5. 121. a. Longs case 1 Exception was taken to an Indictment Indictment because it was said to be taken coram W. S. Coronatore Dominae Reginae infra libertatem dictae Dominae reginae villae suae de Cossam praedict super visum corporis c. and doth not alleadge to what places the said libertie doth extend or whether part or any of the towne of Cossam be within the libertie and so it did not appear that the Coroner had any Iurisdiction in the place where the inquisition was taken nor where the murder was committed nor where the dead bodie lay for all is alleadged by the indictment to be at Cossam Howbeit the indictment was adjudged sufficient notwithstanding this exception for although it be true by the Rule of Law that indictments ought to be certaine yet it is to be observed that there are three sorts of certainties 1 To a common intent 2 To a certain intent in general 3 To a certain intent to each particular The first sufficeth in barres which are to defend and excuse the partie the second is required in indictments counts replications c. because they are to excuse or charge the partie the third is rejected in Law as too nice and curious for Talis certitudo certitudinem confundit And in this present case the indictment is certaine enough in general viz. that Cossam is within the libertie of Cossam but to imagine that the libertie may extend out of the town and yet the town it self to be out of the libertie is a captious and strained intendment which the
homage Ancestrell again so it is if a Copihold escheat and the Lord maketh a feoffment in fée upon Condition and entreth for the condition broken it shall never be Copihold again because in both these cases the custome or prescription which supported and was the cause of the tenure is interrupted and that being once broken is become remedilesse The land evicted the Annuity is gone The mariage failing the land revests 17 If a man grant an annuitty ppruna acra terrae Co. ibid. 204. a. 2. if the acre of land be evicted by an elder title the annuity shall cease so if it be pro decimis and the grantee be disturbed or pro consilio or quòd praestaret consilium and the grantee refuse to give counsel the annuity shall in these cases cease likewise if a woman give lands to a man and his heires causa matrimonii praelocuti in this case if the man refuse to marry her she shall have the land againe to her and her heires but it is otherwise in case of a man Co. ibid. 238. a. 4. 18 If a disseisor make a gift in taile A dying seised and yet no descent to take c. and the Donee discontinueth the fée and after disseise the discontinuee and dieth seised this discent shall not take away the entry of the diseissée For the discent of the Fée simple is vanished and gone by the Remitter And albeit the issue be in by force of the estate taile yet the Donée died not seised of that estate and of necessity there must be a dying seised Co. ibid. 239. a. 2. 19 When the degrées are past so as a writ of Entry in the Post doth lye yet by event it may be brought within the degrées again A writ out of the degrees may be reduced as if the disseisor enfeoffe A. who enfeoffes B. who enfeoffes C. or if the disseisor die seised and the land descends to A. and from him to B. and from him to C. Now are the degrées past and yet if C. enfeoffe A. or B. now is it brought within the degrées again Co. ibid. 242. b. 1. 20 If the eldest sonne hath issue and dieth A descent when privity of bloud faileth and after his decease the younger sonne or his heire entreth and many descents cast in his line yet may the heires of the eldest sonne enter in respect of the privity of bloud and of the same claime by one title But if the younger sonne make a feoffment in fée and the feoffée dies seised that discent shall take away the entry of the eldest in respect that the privity of bloud faileth Co. ibid. 285. a. 4. 21 If an action of wast be brought by Baron and feme in remainder in special taile Death voidâ the action and hanging the writ the wife dieth without issue the writ shall abate because every kind of action of wast must be ad exhaeredationem Co. ibid. 291. a. 4. Execut. 7. 22 If the bodie of a man be taken in execution upon a Ca. sa and the Plaintiffe releaseth all actions Release of debt excuseth execution yet shall he still remaine in execution but if he release all debts duties or judgements he is to be discharged of the execution because the debt or the dutie or the judgement which is the cause of the execution is discharged Co. ibid 312 a. 1. 23 The Reason that Littleton giveth of the difference betwéen a rent-service and a rent-charge is Avowry for a rent service upon the person for that in rent-service the avowry shall allwayes be made upon the person but in rent-charge never upon the person but upon the Land charged Now here it may be said that this reason is taken away by the Statute of 21 H. 8. 19. For by that Statute the Lord needs not avow for any rent or service upon any person in certaine and then by Littletons reason there néedeth no privity to the attornment of a Seigniory for say they Cessante causa ratione legis cessat lex As at the Common Law no aide was grantable of a stranger to an Avowrie because the Avowrie was made of a certaine person but now the Avowrie being made by the said Act of 21 H. 8. upon no person therefore the reason of the Law being changed the Law it selfe is also changed and consequently in an Avowrie according to that Act aid shall be granted of any man and the like in many other cases which case is granted to be good Law But albeit the Lord as hath béen said may take benefit of the Statute yet may he avow still at his election upon the person of his tenant and albeit the manner of the Avowrie be altered yet the privity which is the true cause of the said difference remaineth as to an Attornment Littl. § 568. Co. ibid. 316. a. 3. 24 If the reversion of Lessée for life be granted Upon alienation the grantee shall attorn and Lessée for life assigne over his estate the Lessée cannot attorne but the attornment of the Assignée is good because as Littleton saith it behoveth that the tenant of the land do attorne and after the assignement there is no tenure or attendance c. betwéen the Lessée and him in reversion so likewise if Lessée for life assigneth over his estate upon condition he having nothing in him but a condition shall not attorne but the assignée may attorne because he is tenant of the land The assignee of tenant by possession shal âattorn 25 Tenant in taile after possibility of issue extinct shall not be compelled to attorne for the inheritance which was once in him Co. ibid. 316. a 4. but his assignée shall be compelled to attorne because then that priviledge is lost the assignée having in him onely a bare estate for life Release of quarrels is release of Act. 26 Quaerela being derived à quaerendo properly concerneth personal actions or mixt at the highest Co. ibid. 292. a. 3. for the Plaintiff in them is called Quaerens and yet if a man release all quarrels it is as beneficial as all actions for by it all actions both real and personal are released because by the release of all quarrels all causes of actions are released albeit no action be then depending for the same Where the estate is defeasible the tenant is not compelâable to attorn 27 It is a general rule that when the grant by fine is defeasible Co. ibid. 318. a. 4. 36 H. 6. 24. there the tenant shall not be compelled to attorne As if an infant being seised of a reversion levie a fine thereof this is defeasible by writ of error during his minority and therefore in this case the tenant shall not be compelled to attorne so likewise if before the Statutes of 4 H. 7. 24. and 32 H. 8. 36. a tenant in taile had levied a fine the tenant could not have béen
servitium c. amisit So that the original Act is not the cause of his action but the consequent upon it viz. the losse of his service and the same reason holds in the case of a Common as above said A release of remainder of a temr good 41 Quando diversi desiderantur actus ad aliquem statum perficiendum Co. l. 10. 49. a. 14 Lampets case plus respicit lex actum originalem quia cujusque rei potissima pars est principium And therefore if A. possest of a Lease for the terme of 500 yeares demiseth the terme to B. for life the remainder to C. and the heires of his body and makes B. his executor and dies and after B. is possest of the Lease C. releaseth to B. all his right in the terme In this case although it was objected that the release was void because C. at the time of the release had no estate in him but onely a possibility the whole estate and terme of yeeres being in B. so that after the death of B C. might enter upon the Lease againe notwithstanding the release yet it was resolved that C. by that release had extinguished all his right and title in the term and had fixed it in B. because the devise by A. and the assent of B. the executor appearing by his acceptance of the release were as the original and fundamental causes of the interest of C. and the death of B. is but a meane to bring the Lease in possession and gives nothing at all for that the whole interest accrues by the devise and is executed by the assent of the executor and therefore C. had not onely a possibility Fulwoods case Co. l. 4. 66. b. but likewise such an interest as might well be released c. But in that case a grant by C. to a Stranger had béen void The Commissioners of Sewers 42 Every Statute Ordinance and Provision Co. l. 10. 140. a Kigheleyes case which is to be made by force of the Commission of Sewers ought to consist of 4 causes 1 The Material cause which is the substance 2 The Formal cause and that is the manner with convenient circumstance 3 The Efficient cause and that is their authority according to their Commission 4 The Final cause and that is pro bono publico nunquam pro privato The consideration whereof will be as so many Sea-marks to direct the Commissioners how to stéere in the execution of their charge and how to order the liberty which is given them by the Statute of 23 H. 8. 5. viz. to make such Ordinances c. according to their owne wisedomes and discretions c. which words are meant and ought to be interpreted according to Law and Justice For every Iudge or Commissioner ought to have duo grana salis viz. unum sapientiae ne sit insipidus alterum conscientiae ne sit diabolus And discretion is well described to be scire per legem quid sit justum Fine in a Leet ought to be distinct and not joynt 43 In a Léet a fine of 6 li. put upon all the Iurors joyntly Co. l. 11. 42. b. Godfreyes case by the Steward because they would not present a thing which by the custome of the Mannor they ought to present is not duly imposed but ought to have béen assessed upon them severally for that the cause which occasioned the fine is several because the refusal of each of them is several and personal and the refusal of one is not the refusal of another and therefore if some of them refused and the rest be readie to present onely those that refuse are to be fined c. Damage feasant 44 If a man take beasts damage fesant Fitz. 69. g. and the other offers sufficient amends and he refuseth c. Here if he sue a replevin c. for the Beasts he shall recover damages onely for the detinue of them and not for their taking for that the cause of taking them was lawfull Fitz. 79. h. 45 The Peace ought no be granted against any without good cause Binding to the Peace and therefore by the ancient course of the Law the party complaining used to make oath before a Master of the Chancery that he was in feare c. of some corporal damage and did not take that oath for malice against his adversary the like ought to be observed by the Iustices of the Kings-Bench and of Peace Fitz. 95. d. 46 If a man winne anothers money with false dice Cheating at Dice he that is deceived may have an action of Deceit against the party so deceiving him And in this case although the Defendant do not entice the Plaintife to play yet it séemes he may well maintaine that action against the Defendant because the excitation to play at dice is not the cause of the action but the casting of the false dice c. by which he wonne the money c. Fitz. 104. l. 47 If a man acknowledge a Statute Staple Dures or Statute Merchant by dures c. he may have an Audita quarela to avoid it because the imprisonment was the cause thereof Plowd 19. a. Fogassaes case 48 If a man by dures be compelled to seale a bond Dures or other compulsion he shall avoid it So if a mans arme be drawne by compulsion and by that occasion the weapon in his hand kills another that is not felony Likewise if an infant under the yeares of discretion or a man de non sane memory kill a man they shall be excused because their ignorance and not any wicked intention was the cause thereof M. 20. H. 7. 12. per Rede Plowd 26. b. 4. Colthrist and Bivishams 49 If one retaine another to serve a yeare for 20 s. wages here Wages for a years service if the servant demand the 20 s. he ought to shew that the time is past viz. that the yeare is expired and he ought to plead certain because his action is given in respect of the yeare past and of a thing done in time and the time is parcel of the cause of the demand and precedes the demand Plowd 98. a. Matters of the Crown 50 In Olivers case in the Commentaries All principall in Murder those that stood by and abbetted the Murderers were as well principals as those that killed him because the number of them then present and ready to strike him shall be adjudged the cause of his terror and of the abatement of his courage and an occasion to make him despaire of defending himselfe and by consequent that terror was the cause of receiving his wounds and the wounds the cause of his death Plowd 99. b. 101. a. Matters of the Crown 51 Amongst the matters of the Crowne in the Commentaries Murder though the party intended not killed divers persons having a malicious intention to murder Doctor Ellis killed his
cause of the Divorce was first moved shall lose the land as if the feme sued for it the baron shall have it è contrà Tamen quaere for one book saith that the land shall be divided betwixt them per Fitzherbert F.N.B. 121. p. 64 If a man be condemned in trespasse or debt upon an obligation Capias pro fine where he denies his déed at the suit of the partie and after he that is condemned is taken by Capias pro fine at the suit of the King and committed to the Gaole here if the Gaoler suffer him to escape the party shall have an action of debt against the Gaoler for this condemnation and yet he was not committed to him at his suit but at the suit of the King Howbeit within the yeare after the condemnation and judgement given this suit for the King shall serve as well for the party as for the King because the King was entitled to it by the party for his suit and judgement was the cause of the Kings fine It is otherwise after the yeare because it will be intended they are agréed and then the party is put to his Scire facias c. Co. Inst pars 1 245. b. 2. 65 If a Bastard eigne after the deceease of the father entreth Bastard Muââ and the King seiseth the land for some contempt supposed to be committed by the Bastard and the Bastard dies and his issue is upon his petition restored to the possession for that the seisure was without cause In this case the Mulier is barred for ever for the possession of the King when he hath no 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 heire and within age and the King seiseth In that case the possession of the King is in right of the Mulier and vesteth the actual possession in the Mulier for that she was the cause that occasioned the seisure and consequently the Bastard eigne is in such case fore-inclosed of any right for ever So it is likewise when the King seiseth for a contempt or other offence of the father or any other ancestor for in that case also if the issue of the Bastard eigne upon a petition be restored for that the seisure was without cause the Mulier is not barred for the Bastard could never enter and consequently could gaine no estate in the land but the possession of the King shall be adjudged in the right of the Mulier and the rather for that the father or other ancestor of the Mulier was the cause of the seisure Dyer 100. a. 70 1 Mar. 66 If the King grant land by Charter probis hominibus villae de Islington rendring rent Kings Chancâ this is a good and perpetual Corporation for that intent but if the King release or give them the rent and fée-farme it séemes the Corporation is ipso facto dissolved for the rent and farme were the cause of their incorporation 22 Cujus est dare ejus est disponere A proviso imports a condition 1 A. bargaines and sels the Mannors of D. unto which an Advowson was appendant with the appurtenances unto B. and his heires provided alwayes Co. l. 2. 71. b. 2 The Lord Cromwels case that B. regrant the Advowson to A. during his life B. dies not having regranted the Advowson to A. who enters for the Condition broken Here whereas it was amongst other things objected that this Proviso could not import a Condition because the Bargainor did onely covenant with the Bargainée and therefore the Bargainée should also be understood onely to Covenant with the Bargainor and so that Proviso onely to import a Covenant and not a Condition It was resolved that it had the force of a Condition because it was not unjust or unequal that the Bargainor from whom the land moved should annex what Condition soever he pleased to the estate of the land for Cujus est dare c. Feofment to the use of a Will 2 If a man seised of lands in fée makes feoffment to the use of such person and persons and for such estate and estates Co. l. 6. 18. a. 1. Sir Edward Cleres case as he shall apppoint by his will here by operation of Law the use rests in the feoffor and he is seised of a qualified fée viz. until declaration and limitation be made according to his power so also when a man makes feoffment to the use of his last will he is in the mean time seised to the use of himselfe and his heires Legiantia naturalis acquisita 3 Legiantia naturalis may be properly said to be pura indefinita Co. l. 7. 5. b. 4. Calvins case but Legiantia acquisita may be limited according to the will of the King that grants it as to an alien and his heires or to him and the heires of his body or to him for life onely or upon Condition c. for Cujus est dare c. A stranger may take advantage of a condition 4 If A. grants lands to B. for life the remainder to C. for life Plowd 24. b. 4. 31. a. 4. Colthrist and Beinshin ibid. 34. ââ1 and if C. die living B. that then they shall remaine to D. for life here although it was objected that the remainder to D. was void because limited to commence upon a Condition whereof none can take advantage but privies yet it was adjudged good For that God hath committed all wordly things to the order and dispose of men So that when any doth lawfully enjoy such things he may order or convey or give them where when and how he pleaseth according to his intent and meaning so that his intent be not against Law against Reason or repugnant And therefore in this case when the Lessor appoints the remainder to the Defendant ut supra his intent is plainly discovered thereby and reason requires that his intent should be performed viz. that the remainder should take effect in manner and forme as he hath appointed Liberty given to the tenant to pay which he will 5 If there be Lord and Tenant and the Lord holds by a Capon Plowd 96. a. 4. Woodlands case or an Egge or 12 d. rent Here the Lord shall not come to the land and take a Capon and Egge or 12 d. being arrere although he find it there but the onely remedie is to distrein for it Howbeit in that case if the Tenant have 20 Capons 20 egges or 20 s. of Silver it is in the power of the Tenant to give the Lord which Capon Egg or twelve pence he pleaseth So that the liberty is not given to the Lord to take which of them he will but to the Tenant who is to pay the thing Hedgboot c. by assignment 6 The Lessor covenants Dyer 19. 115â 28 H. 8.
thereof in futuro being void at the beginning for quod ab initio non valet tractu temporis non convalescet Co. l. 2. 57. Beckwiths case 19 A Feme Inheretrix covenants by Indenture without the knowledge A void sine or consent of the Baron to acknowledge a Fine to certain Conisées and uses in the said Indenture mentioned and afterwards the Baron covenants also by Indenture without the knowledge of the Feme to acknowledge a Fine to other Conisées and uses in that Indenture also mentioned and afterwards the Baron and Feme joyne in a fine to the Conisées in the Indenture of the Feme mentioned Here the Limitations and Declarations of Vses in both the Indentures are void and the said Fine was by construction of Law to the use of the Feme and her heires as if no use at all had béen declared for the Feme alone albeit she be owner of the land yet being sub potestate viri cannot in respect of her Coverture without her Baron limit the use and on the other side the Baron who hath not any estate in his own right cannot against the good liking of the Feme limit any use because he is not owner of the land so that the one is not sui juris and hath the estate and the other is sui juris and hath not the estate And therefore when they differ in limitation all they do must needes be void A void deed or contract 20 When a Déed hath two deliveries Co. l. 3. 35. b. Jennings and Brags case in Butler and Bakers case if the person at the first delivery had power and ability in Law to contract but could not perfect it untill an impediment should be removed before the second delivery in that case the contract is good as if the Disseisée make an Indenture purporting a Lease for yeares and deliver it to a stranger out of the land as a scroul and command him to enter into the land and to deliver it upon the land as his Déed to the Lessée which is done accordingly this is a good Lease But if the person at the first delivery had not power or ability in Law to make the Lease or Contract and before the second delivery he attains to such power there the Lease or contract is not good as if at the time of the first delivery the Lessor be an Infant or Feme covert and at the time of the second delivery they become of full age or sole in both these cases the Déed doth not bind because at the time of the first delivery they were not persons that had ability in Law to make a Contract A void joynture 21 If the Baron make feofment in fée to the use of himselfe for life Co. l. 4. 2. b. 1. Vernons case and after to the use of B. for his life and after to the use of the Feme for life for her Ioynture that is not within the Statute of 27 H. 8. cap. 10. to barre the Feme of her Dower albeit B. die living the Baron So also if the estate be made to A. for life and after to the Feme for her Ioynture neither is that within the Act although A. die before the Baron for in these and the like cases in as much as at the time of the limitation of the estates they were out of the Act for that it was not then certaine that the estate of the Feme should take effect immediately after the death of the Baron as it ought to do by the said Act no subsequent event can make them within the Act For Quod ab initio non valet tractu temporis non convalescet quae malo sunt inchoata principio vix est ut bono peraguntur exitu A failer of Action 22 A. seised of the Mannor of D. in fée had communication with B. of demising the said Mannor unto him C. gives it out Co. l. 4. 18. Sir Gilbert Gerrards case that he had a Lease for 90 yeares in the Mannor whereupon B. desists from taking the Mannor by demise and thereupon A. brings an action of slander against C. And it was adjudged that those words would not beare it And in this case though it appeared by the Defendants barre that he had no title or interest in any such Lease yet because the matter alleadged in the Count did not maintaine the Action the barre could not make it good A grant of tithes not good by misnamer of the tenant 23 Q. Eliz. by Letters Patents grants to I. S. Totam illam portionem Co. l. 4. 35. 4. Bozouns case decimarum garbarum suarum in L. in Com. N. cum omnibus aliis decimis suis quibuscunque in L. in dicto Com. N. tunc vel nuper in occupatione I. C. and grants further that those Letters Patents shall be of force and effect against her selfe and her Successors Non obstante male nominando vel male recitando praedict portionem decimarum c. Et non obstante aliquibus defectis in male recitando vel non nominando alicujus tenentis sive occupatoris c. And all this was found by special verdict and besides that I. C. never had any Tithes in L. in his occupation and thereupon one question was whether the defect of mistaking the Farmer was not supplyed by the non obstante and it was resolved that it was not Because when the words of the grant are not sufficient ex vi termini to passe the thing granted but the grant is utterly void there a non obstante cannot make the grant good for when the Queen grants Totam illam portionem c. nuper in tenura I. C. here the addition of I. C. is of the substance of the grant and in as much as I. C. never had the portion in his occupation the grant must néeds be void ex vi termini and therefore the non obstante cannot make it good Co. l. 4. 62. b. 4. Herlakendens Case 24 If I let my land for life and after give the trées A void grant of trees and after the Lessée dies yet the Donée cannot take them because at the time of the grant the Lessée had the property in them as annext to the land 21 H. 6. 46. d. per totam Curiam Co. l. 4. 90. a. 3. Druries case Stat. 21. H. 8. 13. 25 If a Countesse that by the Statute may retaine two Chaplains capable of dispensations to enjoy two benefices doth first retaine two and after a third Reteiner of a Chaplain void the two first are onely capable of dispensations for they onely are her Chaplains according to the Statute and the other at the Common Law And therefore in this case if the two first die yet is not the other capable of a dispensation because at the time of his retainer he was not capable for he ought to be newly retained again to make him capable
thereof So likewise if the Son and heir apparent of a Baron retein a Chaplain and give unto him his Letters under his hand and seal and after his father dies and this Chaplain purchaseth a dispensation this retainer and those Letters will do him no good because they were not available at the first to make him capable Et quod ab initio non valet tractu temporis non convalescet Co. l. 4. 107. b. 3. Adams and Lamberts case H. 6. 7. E. 6. Dyer 81. 26 Pope Urbane at the request of Ralph Baron of Greystock A void foundation of a Colledge founded a Colledge of a Master and six Priests to be resident at Greystock and assignes to each of the Priests five marks per annum besides their bed and chamber and to the Master 40 l. per annum And upon the Statute of 1 E. 6. 14. it was certified in the Book of First-fruits and and Tenths Rectoriam Collegium de Greystock But it was resolved by all the Iustices that this reputative Colledge was not given to the King by the said Act because it had no lawfull beginning nor so much as the countenance of a lawfull beginning for the Pope cannot found or incorporate a Colledge within this Realme nor assigne or give Licence to assigne any temporal livings unto it but it ought to be done by the King himselfe and by no other Co. l. 5. 42. Codwels case 27 In appeal of Mayhem betwixt John Codwel Plaintife A void Panel and Thomas Parker Defendant the parties descend to issue and the Iury finds for the Plaintife and now it was moved in arrest of Iudgement that there was variance betwixt the Panel of the Venire facias and the Distringas and Postea in the name of one of the Iury that appeared and gave the verdict for in the Panel of the Venire facias he was named Palus Cheale And in the Distringas and in the Postea it was Paulus Cheale And because the name of a Iuror in the Venire facias was mistaken the Iudgement was arrested But if he had béen well named in the Panel upon the Venire and misnamed in the Distringas or Postea upon examination it might have béen amended because the Venire facias and Panel are the beginning and ground of the other subsequent Processe A void Presentation 28 D. was seised of a Mannor Co. l. 6. 50. a. 4. Boswels case 16 E. 3. Tit. Quare impedit 67. Adams case unto which an Advowson was appendant and dies the Mannor descends to E. an Infant the Church becomes void A. presents during the nonage of E. who at full age enfeoffes F. of the Mannor and after the Church becomes void againe and F. presents whereupon the Assignée of A. brings a Quare impedit And it was adjudged that by the feofment of E. when he had attained his full age the Mannor passed to the Feoffée but not the Advowson because by the usurpation the Infant was out of possession of the Advowson and he had but a right in it the usurpation being onely voidable by action which could not be transferred to a stranger And therefore the Advowson being not at all granted to F. he shall not gaine it afterwards by an usurpation A void grant of the Office of the Auditors of the Court of Wards 29 Quéen Eliz. in the 31 yeare of her Raigne grants unto Walter Tooke and William Curle Officium unius Auditorum Curiae suae Wardorum Co. l. 11. 4. a. 4. Auditor Curles Case c. habend dictis Waltero Willielmo alteri eorum conjunctim divisim pro termino vitarum suarum eorum alterius diutiùs viventis c. And afterwards King James in the 4 yeare of his Reign during the lives of the said Walter Tooke and William Curle grants the Reversion of the said Office to John Church-hill and John Tooke And in this case King James his grant was adjudged void because that Office being partly judicial and partly ministerial could not in respect of the Iudicial part be granted in Reversion for which the Rule is officia judicialia non concedantur antequam vacent And therefore being void at first it shall not be made good afterward for albeit William Curle one of the first Grantees and John Church-hill one of the last Grantees happen to die yet shall not John Tooke enjoy the Office by vertue of King James his grant because quod ab initio non valet c. A void grant of a Surveyorship â0 John Bishop of Sarum grants the office of Surveyour of the Mannor of Sherborne unto Edward Green and John Green for their lives together with the fee of 6. l. 13. s. 4. d. per annum Co. l. 10. 61. b. 4. The Bishop of Sarums case whereas the office formerly used to be granted onely to one Edward Green dies as also the Bishop the fee is behind and John Green distreins for it but could not maintain the Avowry because the grant was void by the Statute of 1 Eliz. not printed which restraineth Ecclesiastical persons from making unusual grants c. and in this case albeit Edward Green being dead and John Green alone had the office when he distrained yet the grant being void at first shall not be made good by any subsequent Act that happens after to bind the Successor to perform it Quia quae malo sunt inchoata principio vix est ut bono peragente exitu quod initio non valet c. A void grant to a Colledge 31 A Grant by the Master and Fellowes of a Colledge to Queen Eliz. contrary to the Statute of 13 El. 10. being thereby made void Co. l. 11. 7â a. 4. Magdalen Colledge case could not afterwards be made good by the Statute of 18 El. 2. for Confirmations of Grants made unto her because that can by no meanes be made good which was meerly void at the beginning Neither shall the general words of 18 El. enable any person to make any conveyance which by the Common Law was disabled as if an Infant had conveyed land to the Queen by Deed inrolled or had levied a Fine to her before the Statute of 18 El. and then that Act had been made yet the estates granted had not been confirmed by that Act because the Infant during his minority was absolutely disabled to make such a Grant and therefore notwithstanding that Statute he might have reversed the Fine by a Writ of Error as it was adjudged M. 32 and 33 Eliz. in B. R. by Wray and all the Court in Vaughans case So likewise if a man seised of land in fee had granted the land after his death Co. l. 11. 78. a. 3 The same case to the Queen her heires and successors the said Statute of Confirmation had not made such a grant good because it was against the Rules of Law 38 H. 6. 33. The Abbesse of Sions
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 reââ 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 ââwage 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 ãâã 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 hândred 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 Gâods 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 oâe 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
personal the Defendant shall not afterwards take any benefit by bringing a Writ of Attaint because he cannot have the effect of that Writ which is to be restored to the Debt and Damages which he lost The like Law is where a Iudgement is given upon a false verdict in a real Action for there also a release of all Actions real is a good barre in an Attaint c. for that in these two last examples both the Writ of Error and the Writ of Attaint do insue the nature of the former Action c. No Audita ââaerela after ââlease 12 If the Defendant in a personal Action doth after Iudgement entred release unto the Plaintife all Actions personal Co. ibid. he shall not afterwards bring an Audita quaerela because after he hath released to the Plaintife all Actions personal he cannot have the effect of that Writ which is to discharge himselfe of a personal execution No Formedon against tenant for life 13 Tenant in taile discontinueth in Fee and dieth Co. ibid. 297. b. 3. the Discontinuee makes a Lease for life and granteth the reversion to the issue In this case the issue shall not have a Formedon against Tenant for life because he cannot have the effect of that Writ which is to recover an estate of Inheritance for the Lessée for life hath not the Inheritance but the issue in taile himselfe hath it No entry after âelease 14 If Feoffée upon condition make a Lease for life or a gift in taile Co. ibid. and the Feoffor release the Condition to the Feoffée the Feoffor shall not afterwards enter upon the Lessée or Donée because he cannot have the effect of his entry which is to regaine his ancient estate No action of ââespasse for âoile by Coâies 15 If a man plant Conies and Conie-burrowes in his own land Co. l. 9. 104. Boulstones case which afterwards so increase and multiply that they destroy the ground of his neighbour thereunto adjoyning yet shall not his neighbour maintaine an Action upon the case against him that plants them for the damage done by them because he cannot have the effect of his suit which is to recover damages for the trespasse committed for immediately after the Conies come into the neighbours land he may kill them because they being ferae naturae the other that planted them hath then no property in them and it stands not with reason that a man should make satisfaction for the damage which goods do that are none of his To some titles âo warranty ââtends 16 There are some naked titles unto which warranty doth not extend Co. l. 10. 98. b. 4. Edward Seymors case Co. Inst pars 1. 389. a. 2. as the Title in case of exchange condition upon Mortgage c. Mortmaine consent to the Ravishor and the like because for these no Action lies in which there m y be Voucher or Rebater Co. l. 11. 29. b. 3. Alexander Powlters case Ibid. fo 30. a. 3. 17 Before the Statute of Articuli cleri cap. 15. No Clergie âter confesââ he that confessed the Felony could not have the benefit of his Clergy because in case of confession he could not have his purgation c. for by intendment of Law he cannot against his expresse and voluntary confession in Court be innocent Confessus in judicio pro judicato habetur quodammodo su a sententia damnatur Co. l. 11. 77. b. 1. Magdalen Colledge case 22 E. 3. T it Coronae 276. 18 It is provided by the Statute of West 2. cap. 12. In appeal a Monke can have damâââ Quòd se appellatus de felonia c. se acquietaverit c. restituant hujusmodi appellatores damna appellatis Yet if an appeal of death had béen brought against a Monk who had been acquit and thereupon had prayed his damages according to that Act he should not have béen admitted any such prayer because he could not have the effect thereof being by Law incapable to take the damages Fol. 11. B. 9. N. 19 In a Writ of Right de rationabili parte by one Coparcener against another Voucher lieth not Voucher liâââ not in copânery because the Demandant cannot have the effect thereof viz. to recover in value in respect of the privity of bloud betwixt them c. F.N.B. 31. f. Co. Inst pars 1. 127. a. 1. 20 In all originalls brought by a Subject The King iâ not give plââes de prosequendo wherein pledges de prosequendo are to be found the preamble of the Writ is Rex vicecom salutem c. Si A. fecerit te securum c. tunc summoneas c. But at the Kings suit the preamble shall be Rex vicecom salutem c. summonens per bonos summum c. and not Si Rex fecerit c. for the King shall not be bound to prosecute because he is not subject to the consequence thereof viz. to be amercied if he do not prosecute neither can he be non-suited because he is alwayes present in all his Courts V. infr 39. 4. F. N. B. 48. q. 21 If a man brings a Writ of Right of Advowson against another and hanging the Writ the Church becomes void The Demâdant shall ãâã have a ââmittas the Plaintif shall not have a ne admittas to the Bishop nor a Quare incumbravit albeit the Bishop doth encumber the Church c. for the Demandant shall not recover the presentment upon this Writ but the Advowson 22 One Commoner shall not bring a Writ de admensuratione pasturae against another Commoner F.N.B. 125. d. which hath Common appurtenant No Writ of admeasurement or in grosse sans number because such a Commoner cannot be admeasured c. Pl. Co. 11 c. a. 1. Fulmerston and Stewards case West 2. cap. 21. 23 The Statute of Westm 2. ordaines No Cessaâââ for the beiââ Quòd fiant brevia de ingressu haeredi petentis super haerodem tenentis super eos quibus alienata fuerint hujusmodi tenementa c. yet if the Demandant in a Cessavit die the heire shall not have a Cessavit because he cannot have the effect thereof viz. to recover the arrerages for that they by Law belong not unto him but unto the Executor Co. Inst pars 1. 96. b. Littl. § 137. 24 If a Tenant in Frankalmoigne with-draw his Service Tenant in Frankalmâââ not distraiââble the Lord shall not distraine commence any suit or séek any remedy for it in foro seculari in any Temporal Court because that Service being Spiritual and uncertaine shall be defined and recovered in foro Ecclesiastico in the Spiritual Court It is otherwise of Tenure by Divine Service which although it be Spiritual yet being certaine shall be recovered in foro seculari and the performance or non-performance thereof shall upon a distresse and Avowry be tried by a Iury
contrà âe 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. âery 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. ãâã action of âst 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 âcting of âses shall ãâã now forâthe 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 âmage may âepealed 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 tââ 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 maâsion by ãâã brought ãâã 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 erââ 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 coâons 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
and warranteth the land in Forma praedicta afterwards the Lessée performs the Condition whereby the Lessee hath fee In this case the warranty shall extend and increase according to the estate And so it is also albeit the Lessor had died before the performance of the Condition for then also the warranty shall rise and increase according to the estate and yet the Lessor himselfe was never bound to the warranty but it hath relation from the first Livery And the reason of this is because a warranty being a Covenant reall executory may extend to an estate in futuro having an estate whereupon it may worke in the beginning But if a man grant a Seigniory for years upon Condition to have fee with a warranty in forma praedicta and after the condition is performed this shall not extend to the fee because the first estate was but for years which was not capable of a warranty And so it is if a man make a lease for years the remainder in fee and warrant the land in forma praedicta he in the remainder cannot take benefit of the warranty because he is not party to the déed and immediately he cannot take if he were party to the deed because he is named after the Habendum and the estate for years is not capable of a warranty c. Remainder grants Rent charge voydable 34 A. is Tenant in taile the remainder to B. in taile Co. lib. 1. 62. b. 4. Caples case B. grants a rent charge issuing out of the land to C. and his heirs A. suffers a common recovery and dies without issue In this case C. shall not have the rent because the remainder of B. being defeated by the recovery the estate of his Grantee in the rent is also defeated A remainder must vest either during the particular estate or eo instante that it determines 35 A. seized of land holden in Socage deviseth it to D. for life and after to the next heire male of B. B. hath issue C. A. dies Co. lib. 1. 66. b. 4. Archers case per tot Curiam B. enfeoffs D. with warranty In this case by the feoffment of the Tenant for life the remainder is destroyed for every contingent remainder ought to rest either during the particular estate or at least eo instante that it determines because if the particular estate which should support the remainder be once determined in Deed or in Law before the contingency fall the remainder it selfe must needs be also determined and voyd Here therefore in as much as by the feoffment of B. his estate for life was determined by a condition in Law annexed unto it and cannot possibly be afterwards revived for this cause the contingent remainder is destroyed as aforesaid against the opinion of Gascoigne 7 H. 4. 23. b. Co. lib. 1. 135. a. 4. Chudleys case 36 A. grants land to B. to the use of B. for the life of C. the remainder to the heirs male of C. the remainder to the next heirs of A. B. makes a feoffment to C. and his heirs Here by that feoffment The like the estate for life is destroyed and by consequent the remainders which depend upon it are destroyed also for by the feoffment of the Tenant for life title of Entry was given for the forfeiture and at that time he in the next future remainder was not in esse to take it and therefore the remainders in futuro by this matter ex post facto were utterly destroyed made void So if Tenant for life be the remainder to the right heirs of I. S. If in this case Tenant for life make feoffment in fee during the life of I. S. the remainder is destroyed for otherwise there should be a remainder without a particular estate which cannot be Co. ibid. b. 3. 11 R. 2. Detinue 46. 37 A gift in taile was made to A. C. the remainder to the right heirs of A. S. the Donee makes feoffment to B. in fee and after A. S. dies The like the right heir of A. S. shall never have that remainder for the estate of the Land was by the feoffment of the Tenant in tail devested and discontinued and all the estates vested in the Feoffee neither was there any particular Estate either in esse or in right to support the remainder when it fell c. Co. l. 2. 52. a. 4. Sir Hugh Cholmleys case 38 If a man make a gift in taile the remainder in fée The like he in the remainder grants his remainder to another for life the remainder to the King in fée upon condition that if he pay or tender 10 l. at the Rolls c. that then the grant shall be void The tenant in taile suffers a recovery and thereby destroys not onely the estate taile it selfe but likewise the remainder in fée and the estate for life granted by him in the remainder and so by consequent the remainder to the King as also the condition which depend upon the estate for life c. Co. lib. 2. 55. Bucklers case 39 There is a diversity betwixt a grant made by the agréement of the parties which standeth not with the rules of Law Grant made upon a good ground contra Diversity can never by any subsequent as by livery or attornment be made good a grâât which is good at the beginning but is to have his consummation and perfection by some Ceremony subsequent As in case of a Charter of feoffment if the Feoffée enter before livery he is not a Disseisor for the Charter is good and the agréement of the parties is according to Law and that may be made good by livery of seisin subsequent But if lands in lease for years be granted to C. Habendum tenementa praedicta from Michaelmas next for life and after Michaelmas the Tenant attorns In this case the grant to C. is voyd and cannot afterwards be made good by attornment and therefore if he enter he is made a Disseisor for the Law will make construction upon the whole grant and an estate of Franktenement cannot commence in futuro And therefore observe well the difference betwixt a good beginning or foundation capable of a structure and an evill one which wants a foundation whereon the structure may stand and be built c. Co. lib. 4. 24. a. 1. Copihold cases Clarke and Penyfathers case 40 If a Disseisor or the feoffée of a Disseisor or any other Admittances of copihold that hath a forcious or feasible estate or interest subject to the action or entry of another holdeth Court and maketh any voluntary grant upon the escheat or forfeiture of a Copi-hold such voluntary grant shall not bind him that right hath for when after re-continuance of the Mannor by action or entry he shall have defeated the title of such Disseisor c. he shall also avoyd such voluntary grants But if such a Lord that is in
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 âhe rent pasâth with the âversion but ât 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 reversâon 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 ãâã Reversionââ or remâindââ 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 sââvice 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 ãâã copihold ãâã to bar the ãâã 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 seâered by cuâome contiâue severed âlbeit surrenâred together ân 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.
was enfeoffed to the end he may have the advantage of the warranty c. Co. l. 7. 9. b. 1. Calvins case 63 Ligeance and obedience on the Subjects part to his Prince Ligeance inseparably incident in all places to the subject is an inseparable incident to that power and protection whereby the Prince may command and ought to defend his Subject And this ligeance and obedience which that power and protection thus draweth after them cannot be locall or confined to any certain place or Kingdom but follows the Subject whethersoever he goeth And therefore it is truly said Qui abjurat regnum amittit regnum sed non Regem amittit patriam sed non patrem patriae c. for notwithstanding the abjuration he still oweth the King his ligeance and still remaineth within his protection because the King if he please may pardon and restore him to his Countrey again c. Littl. §. 366. Co. Inst pars 1. 227. b. 4. 64 If a man seised of lands in fee lets them for life without deed A condition incident to as estate for life rendring rent with clause of re-entry upon non-payment of the rent whereupon if the Lessor enter and the Lessée bring an Assize of Novel Disseisin the Iurors may finde the matter at large and the Iustices ought to adjudge it for the Tenant albeit regularly a condition is not valid without deed shewed in Court and that the Lessor shew no deed for they that have conusance of a thing are to have conusance also of all incidents and dependance thereupon and in this case the condition is an incident necessarily depending upon the estate for life which was perfected by livery Vide supra 28. Dyer 2. 1 2. 6 H. 8. 65 Emson avows for Rent-charge granted to him by a stranger Rent land incident to the person who was seised of the land where c. pro consilio impendendo the Plaintiffe pleads in barre that the Defendant was attainted of Treason and committed to the Tower yet the Grantor had néed of Counsel and could not have accesse c. and upon demurrer the Iudgment was that the Avowant should have return because the rent being incident to the person of Emson could not be granted over or forfeited So likewise land given by the King to a Duke to support his dignity cannot be granted over See Max. 45. Dyer 45. 35. 36. 30 H. 8. 66 The King can by no way grant or sever the tenure and seigniory in Chiefe from the Crown Tenure in Capite for no Subject can take it of his grant with such a prerogative And therefore if the King make a release to his Tenant in Capite to hold by a penny and not in Capite this is a void release for that tenure is méerly incident to the person and Crown of the King and hath such a prerogative that it cannot be held of any Subject as the Tenant in Frankalmoigne cannot hold of any other than of the Donor and of his person because it is a speciall tenure Also if the King at this day make a gift in taile to hold of him in Capite and after he grant the reversion of that land to another in fée neither the tenure nor service passe to the Grantée but remain in the King because they are not incident to the reversion but to the person of the King Dyer 175. 25. 132 Eliz. 67 The office of Exigenter of London being void Exigenter of London and Coke Chief Iustice of the C. B. being then also dead Quéen Mary during the vacation of the said places conferred by her Letters Patents the Exigenters office upon Colshil and then made Brown Chiefe Iustice of that Court But Brown refuseth Colshil and admits Scrogges thereunto And in this case it was resolved by all the Iudges and others save the Iustices of the Common Bench that the said office did not appertain to the Qu. to grant but onely in the dispose of the Chiefe Iustice for the time being as an inseparable incident to his person and place and that by reason of common usage and prescription âase of Deâesnes 68 A Prior makes a lease of the Demesnes of a Mannor rendring rent Dyer 233. 10. 7 Eliz. the King after the dissolution makes a lease for years of the Mannor And it was adjudged that by the name of the Mannor the rent and reversion of the Demesnes passed âhattel vestââ 69 A wardship fell to the Bishop of Durham by a tenure of him in Capite who dies before seisure yet his Executors shall have it Dyer 277. 57. 10 Eliz. and not the King or Successor for it was incident to his person and a chattel vested in him before his death 42 Quod tacitè intelligitur deesse non videtur V. 64. 11. âopiholds 1 When custome hath once created Copiholds of Inheritance Co. l. 4. 22. a. 3. in Brownes case and that the land shall be descendable then the Law doth also direct the descent according to the Maximes and rules of the Common Law as incidents to every estate descendable So 5 E. 4. 7. when uses have gained the eeputation of Inheritances descendable the Common Law shall direct the descent of them and that there shall be Possessio fratris of an use as well as of other Inheritances at the Common Law âontract imâorts an Asâumpsit 2 Every contract executory imports in it selfe an Assumpsit Co. l. 4. 94. a. 4. Slades case For when one agrées to pay money or to deliver any thing he doth thereby assume and promise to pay or deliver it and therefore when one sells any goods to another and agrées to deliver them at a day to come and the other in consideration thereof agrées to pay so much money at such a day In this case both the parties may have an action of Debt or an action upon the case upon Assumpsit For the mutual executory agreement of both the parties imports in it selfe as well a reciprocal action upon the case as an action of debt And with this agrées the Iudgment in Reade and Northwoods case Pl. Co. fol. 128. âxchange imâorts warranââ and a conâition 3 In every exchange rightly made Co. l. 4. 121 a. 4. Bastards case this word Excambium imports in it selfe tacitè a condition and also a warranty the one to give re-entry the other Voucher and recompence and all in respect of the reciprocal consideration the one land being given in exchange for the other but that is onely a special warranty for upon Voucher by force thereof he shall not recover any other land in value but that only which was so given in exchange c. And as it is in case of warranty so is it also in case of the condition which the Law implies upon the exchange for if the exchange be betwixt A. and B. and A. aliens his exchanged land to
temps Eliz. Co. l. 4. 89. b. 4. Druries case 3 If a Countesse retain two Chaplains The first Diâpensations Wast void those two are onely capable of dispensation according to the Statute of 21 H. 8. cap. 13. And therefore if the Countesse retains a third that cannot devest the capacity of dispensation which was vested in the two first For albeit the Countesse may entertain as many Chaplains as she will at the Common Law yet can she not have more then two capable of Dispensations by force of the Statute and reason requires that he which hath longest served shall be first preferred For qui prior est tempore potior est jure F.N.B. 142. f. 4 If a man purchase divers lands by one feoffment Priority of wardship which are holden severally of divers Lords by Knight-service and after he dies his heire within age that Lord which shall first hap the Ward shall have him because there is no priority But if he purchase land which is holden by Knight-service of one Lord and after purchase other land holden of another Lord by the like service and after die his heire within age In this case that Lord shall have the Ward of the heire of whom the land which be first purchased is holden for that he held of him by a more ancient feoffment viz. by priority then he held of the other Lord of whom he held by posteriory c. Co. l. 4. 66. b. 3. Fulwoods case 5 If a man be bound in two Statutes A former âââtute first foââ and the last Statute is first extended and put in execution Yet the first Conusée upon extent shall be first served and the last Conusée shall stay till the first be satisfied Dyer 32. 2. 28 29 H. 8. 6 In debt against Executors who plead fully administred Debt agaââââ Executors and it was given in evidence by the Defendants that they had paid divers debts upon contracts made by their Testator and shewed not that they were paid before the Plaintiffs writ purchased whereupon the Plaintiff demurres and that was the chiefe reason why Iudgement was given for the Plaintiff Dyer 133. a. 1. 3 4 P.M. 7 A man being Patron of a Benefice in right of his wife grants proximam advocationem to another Grant of the next avoydance after which grant the Incumbent makes a lease of the Benefice for 60 yeares reserving rent to him and his Successors under the value in the Kings books afterwards the Patron Grantor and his wife together with the Ordinary confirme the Lease and then the Incumbent is deprived for marriage and the Grantée presents his Clerk who enters upon the Lessée to avoid the lease In this case it séems his entry is congeable because the Grant preceded the lease Dyer 232. 5. 7 Eliz. 8 If debt be brought against the Ordinary for the debt of the intestate after notice he cannot dispose of any of the goods to others Ordinary before he hath satisfied that debt for which the action was brought against him Dyer 276. 52. 10 Eliz. 9 A Scire facias was brought by Basset against the Corporation of Torrington in Com. Devon to repeal their Patent of Faires and Markets But it was held Scire faciaâ that a Puisne Patentée shall not have a Scire facias to repeal a more ancient Patent but è contrà 10 Vide Hob. 7. Spendlowes and Burket concerning the grant of an avoydance and a lease of a Prebendary in Lincoln 50 According to the diversity of the same person Co. Inst pars 1. 8. a. 1. in Calvins case Co. ib. 129. a. 3. 1 A man seised of lands in fée hath issue an Alien Alien not ãâã heritable viz. born out of the Kings ligeance that issue cannot be his heire propter defectum subjectionis albeit he be born within lawful marriage neither yet shall he inherit to his Father or any other although he be made Denizen by the Kings letters Patents Neverthelesse if the same man be naturalized by act of Parliament he shall not then be accounted in Law alienigena but indigena and shall be capable of inheriting c. âuption of âd for a ãâã 2 The same man may have some children capable of inheriting his land after him and others incapable Co. ib. 8. a. 2. according to the several conditions in which he stood at the several times when he had those children Co. ib. 129. a. 3 As if an Alien be made Denizen the issue which he hath after the denization shall be his heire and not the issue which he had before So also if a man hath issue a sonne before his attainder and obtaineth his pardon and after the pardon hath issue another sonne here at the time of the attainder the bloud of the eldest was corrupted and therefore he cannot be heire but if he die living his father the younger sonne shall be heire for he was not in esse at the time of the Attainder and the pardon restored the bloud as to all issues begotten afterwards c. âlain free ãâã a time 3 If Villenage be pleaded by the Lord in an action reall mixt Co. ib. 127. b. 4 or personal and it is found that he is no Villein the bringing of a Writ of Errour is no enfranchisement because thereby he is to defeat the former judgement and if in the mean time the Villain bring an action against the Lord the Lord néed make no protestation so long as the record remains in force for at that time he is frée c. âââis utrum âârranty 4 If a Juris Utrum be brought by a Parson of a Church Co. ib. 370. a. 4 the collateral waranty of his Ancestor is no barre for that he demanded the land in the right of his Church in his politique capacity and the warranty descendeth on him in his natural capacity c. âârranty âfession 5 If a collateral Ancestor release with warranty Co. ib. 392. b. 3 and enter into religion now doth the warranty binde but if afterwards he be deraigned then is the warranty defeated ânt extinâshed 6 One that hath a rent charge going out of the wives land 14 H. 8. 6. Finch 18. releaseth it to the husband and his heires Yet in this case the husband shall not have the rent but the release shall enure unto him by way of extinguishment onely as seised in right of his wife ââant and âfirmation 7 The Parson of Weston in Com. Glocest An. 9 El. demised his Rectory to W. Hodges then Patron of the same Rectory for 50 years Co. l. 5. 15. a. 3 Mewcomes case Trin. 30 Eliz. in the Exchequer who Anno 14 Eliz. by his déed assigned it over to Sir John Throgmorton the Bishop confirms the lease Anno 17 Eliz. in the life of the Lessor And in this case it was resolved that the assignment of
the saidlease so granted by the Patron imports in it self both a grant and also a confirmation of the terme so that a déed of the same thing by the same person to the same person and at the same time shall enure to two several purposes viz. to a grant of the interest as Lessée and to the confirmation of the same interest as Patron So also if Tenant for life grant a Rent-charge to him in the reversion in fée and the Reversioner by his déed grant it over to another and his heires this is a good grant and confirmation also to make the rent good for ever in respect of the several relations that are in him in the reversion viz. as Grantor of the rent and as Reversioner in fée In like manner if the Disseisor make a lease for life the remainder to the Disseisée and the Disseisée grant the remainder over this is a good grant and confirmation also c. ãâã contract âstardy 8 If a man marry with a woman that was formerly contracted with another and hath issue by her Co. l. 6. 66. a. 4 in Sir Moyle Finches case that issue in truth and in Law beares the sirname of the Father but if afterwards the Baron and Feme be divorced causa praecontractus then hath the issue lost the sirname of the Father because Cognomen majorum est ex sanguine tractum and then is the issue a Bastard and Nullius Filius âember of âârliament 9 A Member of Parliament while he continues a Member Dyer 60. a. 22 23. 36 H. 8. is fréed from arrests of his person but when he ceaseth to be a Member he may be arrested again and albeit be being a Member be arrested upon an execution for debt yet that is no discharge of the debt but after the Parliament he may be taken againe by execution upon the same judgment Dyer ibid. 10 Regularly Seisure of Villein the Lord may seise his Villein wheresoever he finds him yet if he abide a yeare within ancient Demesne his condition is altered and the Lord cannot seise him So while the Villein remains in the Kings presence the Lord cannot seise him but afterwards out of his presence he may And these priviledges the Law giveth to Villeins in favorem libertatis 51 According to the diversity of severall persons Vide infrà 86. Co. Inst pars 1. 46. a. 3. 1 If Tenant in taile make a lease for yeares reserving xx s. rent Lease by âânant in ãâã good ãâã to severaââsons and after take a wife die without issue now as to him in the reversion the lease is méerly void but if he endow the wife of Tenant in taile of the land as she may be though the estate taile be determined now is the lease as to the tenant in dower who is in as of the estate of her husband revived againe as against her For as to her the estate taile continueth and she shall be attendant for the third part of the rent and services c. So it is if Tenant in taile make a lease for years ut supra and dieth without issue his wife enseint with a sonne he in the reversion enters against him the lease is void but after the sonne is born the lease is good if it be made according to the Statute of 32 H. 8. cap. 28. and otherwise is voidable Co. ibid. 46. a. 4. 2 The King made a gift in taile of the Mannor of Eastfarleigh in Kent to W. to hold by Knights service W. made a lease to A. for 36 yeares The like reserving 13 pounds rent W. died his sonne and heire of full age all this was found by office As to the King this lease is not of force for he shall have his primer seisin as of lands in possession but after livery the Lessée may enter And if the issue in taile accept the rent the lease shall binde him and shall be good as to him c. And so it was adjudged in Austens case Pa. 2 3 Ph. and M. as Mr. Plowden reported to the Lord Coke Co. ibid. 3 If tenant in fée take wife and make a lease for yeares and dieth Lease voiâ to the Feââ the wife is endowed she shall avoid the lease and it shall be void as to her but after her decease the lease shall be in force again against him in reversion c. Co. ib. 107. a. 2. 4 Tenure by Cornage of a common person is Knight-service Cornage but of the King is Grand Serjeancy so as the royal dignity of the person of the Lord maketh the difference of the tenure Co. ib. 188. a. 1. 5 If an husband wife Joyntenaââ of a right ãâã differing ââtures and a third person had purchased lands to them and their heirs and the husband before the Statute of 32 H. 8. cap. 1. had aliened the whole land to a stranger in fée and died In this case the wife and the other joyntenant were joyntenants of the right but in several manners according to their several interests viz. the wife had right of action and the other Ioyntenant right of entry For at the Common Law the alienation of the husband was a discontinuance to the wife of the one moity and a disseisin to the other joyntenant of the other moity Howbeit these differing rights might well stand together in joynture for they are joyntenants of the right because they may joyne in a writ of right c. Co. ib. 202. a. 3 6 If a man seised of lands in right of his wife Entry of sevâral persons ââveral effects maketh a feoffment in fée by déed indented upon condition that the Feoffée should before a certain day demise the lands to the Feoffor for his life Co. l. 8. 43 44. Whittinghams case c. If the condition be broken the Feoffor may re-enter and shall be again seised as in his former estate viz. in right of his wife But in case the Feoffor die before entry albeit the heire of the husband enter for the condition broken yet it is impossible for him to have the estate that the Feoffor had at the time of the condition made for the Feoffor had an estate in the right of his wife which commenced by the coverture and with the coverture was dissolved And therefore when the heire entreth for the condition broken and defeateth the Feoffment his estate doth vanish and the estate is thereupon immediately vested in the wife c. Issue in taile Particeps criminis 7 If Tenant in taile and his issue disseise the Discontinuée of Tenant in taile and Tenant in taile die whereby the lands descend to the issue Co. Inst pars 1. 357. b. 2. In this case the issue shall be remitted and shall be in as Tenant in tail against every stranger and shall deraign the first warranty but not against the Discontinuée because he was
the Law 27 Eliz. Co. l. 3. 13. Sir Will. Herberts case 11 H. 7. 12. b. 2 Vpon a recognizance acknowledged by the Ancestor Equal interests require âqual contriââtions or a judgement in an action of Debt given against him If he die seised of two acres whereof one is holden in Borough English or having issue two daughters which make partition or if he die without issue whereby part of his land descendeth to the heir of his fathers part and part to the heire on the part of his mother In all these cases if one onely be charged he shall have contribution against the other for they are in aequali jure Finch 20. Co. l. 2. 25. b. 4. The case of Banker 26 Ass Pl. 37. 3 If two four or more men being severally seised of lands Equal extenâ joyn in a recognizance all their land must be equally extended Finch 20. Finch ibid. 4 This Rule doth chiefly shine and shew forth it self in the exposition of Statutes Exposition of Statutes by extending things there provided to mischiefs in the like degrées c. Finch ibid. 5 This Rule is also of great use for guiding the grounds and maximes of things which newly start up Grounds of Law according to the rule of the Common Law 23 H. 8. Fitz. 6 Vses at the Common Law were nothing Uses regardââ as estates yet in time gaining greater regard to be imputed amongst Inheritances are now demeaned as other Inheritances at the Common Law so as possessio fratris shall be of them of lands in Borough English the use shall descend to the youngest son And now also these uses being turned into estates shall be demeaned in all respects as estates in possession Finch 20. 7 When custome createth Inheritance in Copy-hold lands Copihold ãâã Freehold and maketh the lands descendable Co. l. 4. 22. then shall the Law direct the descents according to the Maximes and rules of the Common Law to have a possessio fratris and the like But not to collateral things as tenancy by the Courtesie Dower descent to toll an entry Finch 20. Co. Inst pars 1 24. b. 1. 8 Equitie is a construction made by the Iudges Equity a coâstruction mâââ by the Judges that cases out of the letter of a Statute yet being within the same mischief or cause of making the same shall be within the same remedie that the Statute provideth And the reason hereof is for that the Law-maker could not possibly set down all cases in expresse terms Aequitas est convenientia rerum quae cuncta coaequiparat quae in paribus rationibus paria jura desiderat And again Aequitas est perfecta quaedam ratio quae jus scriptum interpretatur emendat nulla scriptura comprehensa sed solum in vera ratione consistens Aequitas est quasi aequalitas Bonus judex secundum aequum bonum judicat Co. ib. 24. a. 4. aequitatem stricto juri praefert Et jus respicit aequitatem And therefore the cases set down in the Statute of Westm 2. are there put onely for examples of estates taile general and special and not to exclude other estates taile For Exempla illustrant non restringunt legem And this appears by the words of the same Stat. Auxi sont divers autres estates en le taile c. And herewith also agreed Littleton § 21. Carbonels case 33 Ed. 3. Taile 5. 3. E. â 32. 18 Ass Pl. 5. 18 E. 3. 46. 1 Ma. Dy. 46. The Lord Barkleys case Pl. Co. 251. Co. ib. 53. b. 3. 9 Albeit the Statute of Glocester Wast and ââstruction coâvertible which provideth remedy against wast speaketh not of the exile of Villeins yet that also is comprehended under the general word of waste so that exile or destruction of Villeins or Tenants at will or making them poor where they were rich when the tenant came in whereby they depart from their tenures is to be adjudged waste for waste and destruction in their larger sense are words convertible c. âivery of ânds in ward 10 A livery of lands out of the Kings hands is in the nature of a restitution which is to be taken favourably Co. ib. 77. a. 4 For if livery be made of a Mannor cum pertinentiis the heir shall thereby have an Advowson appendant Howbeit it is otherwise in grants by Letters Patents 11 By the Statute of 2 E. 6. cap. 8. it is enacted Co. ib. 77. b. 2. That such persons as hold for term of years âtatute Merâhant Staple âlegit c. âithin 2 E. 6. 8. or by copie of Court-roll or have any rent common or profit apprender out of any lands found in any office whereby the King is entitled to the wardship of the same lands or to the forfeiture of lands upon attainder of treason felony praemunire or any other offence may have hold enjoy and perceive their several estates interests and profits although they be not found in the office Here albeit those two estates onely are saved by the letter of the said Act yet it being a beneficial Law the estate of Tenant by Statute Staple Merchant Elegit and of Executors that hold lands for payment of debts c. are taken to be within the benefit of that clause which was doubted in 14 El. Dyer 319. âncertain teâure found â E. 6. 8. 12 Where an office is found by these words or the like quod de quo Co. ib. 77. b. 3. vel de quibus tenementa praedicta tenentur juratores praedicti ignorant or that the lands are holden of the King sed per quae servitia juratores ignorant neither of these shall be taken for an immediate tenure of the King in chief but in such cases a melius inquirendum shall be awarded as hath béen accustomed of old time And this provision is made by the Statute of 2 E. 6. cap. 8. And here albeit that Statute saith no more yet by the equity of the same Statute if the first office find a tenure for the King per quae servitia c. and upon the Melius the tenure is found for a Subject In that case the first office hath lost his force and need not to be traversed and the Melius is in the nature of a Diem clausit extremum or a Mandamus c. And this was but a declaration of the ancient Common Law as by these words of the same Statute as hath been accustomed of old c. it appeareth but if upon the Melius it be found again as uncertainly as before is said then it is in judgement of Law a tenure in Capite Howbeit if upon the Melius a tenure be found for the King Ut de manerio c. sed per quae servitia c. it shall be taken for Knight-service âarons and Knights fees 13 At or before the Statute of Magna carta cap. 2. Co.
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 ãâã 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 âgainst two Disseisors ãâã 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 âequality of third part âcending âands in âite 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 âfine for âars within âe 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. âses within âe Stat. of H. 8. 10. âough not âthin the letâ of that âat 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.
Eliz. Dyer 248. And therefore the case of 6 E. 6. Dower Br. 69. where it is said that an estate in Fee simple conveyed to the Feme for her joynture is not within the Stat. of 27 H. 8. is misreported and ought to be intended that such an estate is not within the Statute of 11 H. 7. cap. 20. which restraines the alienations of Femes c. âubsequent âtute may taken withââhe equity 44 It is frequent in our books that an Act made of later time shall be taken within the equity of an Act made long before Co. ibid. So the Statute of Malbridge which was made Anno 52 H. 3. gives the ward of the heir of the Tenant that holds by Knight Service notwithstanding a feofment made by collusion at which time of a Statute made long âfore and for 200 years after and more viz. untill the Statute of 4 H. 7. cap. 17. which gives the ward of the heir of Cestuy que use the heir of Cestuy que use was not in ward And yet it is holden in 27 H. 8. 9. if Cestuy que use since the Statute of 4 H. 7. make feofment in fée by Collusion to defraud the Lord of his ward that is taken within the equity of the said Statute of Malbridge Co. ibid. 4. a. 4. b. So also the Statute De donis conditionabilibus made 13 E. 1. as to the warranty of the Tenant in tail with assets is taken within the equity of the Statute of Gloucester cap. 3. made 6 E. 1. as it is held 11 E. 2. tit garranty Stath 38 E. 3. 23. For a Formedon in descender was given in lieu of a Mortdancester Likewise the Statute of Westm 2 cap. 25. made 13 E. 1. gives a Certificate but it gives not adjournment Howbeit adjournment is taken by the equity of the Statute of Magna Carta cap. 12. made 9 H. 3. as it is held 12 H. 4. 9. So the Statute of 7 R. 2. cap. 10. gives an Assise for rent in confinio Comitatus and Redisseisin is also taken in case of rent by the equity of the Statute of Merton cap. 3. made 20 H. 3. Vide 1 E. 3. 25. b. So in Dyer 12 Eliz. 289. Pl. 60. The Bishop of London being one of the High Commissioners by force of the Statute of 1 Eliz. cap. 1. was translated to the Arch Bishoprick of Yorke yet his authority notwithstanding that preferment remaines by force of the Statute of 1 E. 6. cap. 7. So also albeit lands were not devisable till the 32 H. 8. yet if a man devise lands to a woman for terme of her life or in tail c. for her joynture and in satisfaction of her Dower that is a joynture within the Act of the 27 H. 8. For as an estate for life made to a Feme for her joynture before marriage when she is not his wife is within the equity of that Act So an estate for life devised to a Feme for her life which takes effect after his death when the marriage is dissolved is also within the equity of the same Act because such an estate stands well with the intent of the makers of the same Act of 27 H. 8. Co. ibid. 5 âl Dyer 20. in the Court of Wards and likewise with the nature of the joynture intended thereby And therefore if a man seised of certaine lands in fée holden in Soccage and of other land in tail holden in Capite devise by his Will in writing the third part of all his lands to his wife in recompence of her Dower and dies and the wife enter into the third part of the lands holden in Fée simple that shall be a barre of her Dower by force of the said Act of 27 H. 8. It is otherwise where a man deviseth land to his wife for terme of her life Co. ibid. 4. a. 3. M. 38. 39 El. inter Leak and Randal in Cur. Gardorum c. generally for that cannot be averred to be for her joynture c. because a devise imports a consideration in it selfe and unlesse it be plainly exprest in the will what it is for it shall be taken onely as a benevolence neither yet can any averment be taken out of the Will unlesse it properly arise or may be collected out of the words contained in the same Will c. Vide 51. Co. l. 4. 57. a. 3. in the case of the Sadlers c. 45 Albeit the Statute of 36 E. 3. cap. 13. Equity of the Stat. of 36â 3. 13. gives travers and Monstrance de droit from Lands seised into the Kings hands by offices returned onely into the Chancery yet by equity of that Statute if the offices be returned into the Exchequer and not into the Chancery there also the Subject may put in his traverse or Monstrance de droit as appeares by a president in Qu. Eliz. time betwéen the said Quéen and one Collins and Howstead Co. l. 4. 65. a. 4. in Fulwoods case 46 Although the Stat. of Westm 2. cap. 18. which gives the Elegit Equity esâ Stat of Eleâ W. 2. 18. names onely the Sheriff to execute it yet by equity of the same Stat. the Serjeant of the Mace in London or any other immediate Officer to any of the Kings Courts of Record may execute the same Writ in their several jurisdictions c. Co. l. 4. 106. b. 1. Adams and Lamberts case 47 Albeit by the Stat. of the 1 E. 6. cap. 14. Equity of thâ Stat. of Sâstitious usâ 1 E. 6. 14. onely such estate given to superstitious uses as are to have continuance for ever séem to be given to the King Yet other estates of lesse continuance as estates in taile for life c. imployed for such uses are also given to the King by the equity of the same Act And the rather because Omne majus continet in se minus âenant in âwer shall âot recover âcording to âer losse 48 If a man be seised in fee or in taile of three acres Co. l. 4. 122. a. 2. in Bastards case each acre of equal value and dies the heir endows the Feme of the third acre and after the Feme is impleaded by one that hath title paramount and she voucheth the heir Here she shall not recover in value according to her losse but onely the third part of two acres which remain for by the Law she ought to have but the third part of that which her husband might keep and enjoy by good title c. Vide plus ib. Discretion liâited by reaâân 23 H. 8. 5. 49 The Commissioners of Sewers upon the Statutes of 6 H. 6. Co. l. 5. 99. b. 4. in Rooks case cap. 5. 23 H. 8. cap. 5. are not onely to charge those that have lands adjoining upon the Banks Ditches Gutters c. but likewise all others that are in any danger or shall receive any profit by
worthinesse of the Ore Littl. §. 478. Co. Inst pars 1. 278. b. 4. 19 If a man be disseised by an Infant who aliens in fée The right lows the pâsession and the Alienée dies seised and his heir enters the Disseisor being still within age and then the Disseisée releaseth to the heir of the Alienée In this case if the Disseisor enter upon the heir of the Alienée as he may he shall enjoy the land for ever for a bare right shall never be left in the heir of the Alienée but shall ever follow the possession c. So likewise if a man maketh a gift in tail the remainder in fée the Tenant in taile dieth without issue a stranger intrudes and he in the remainder brings a Formedon and recovereth by default and maketh feoffment in fée the Intrudor reverseth the recovery in a writ of deceipt and entreth he shall detain the land for ever So it is also when a Disseisor dies seised and a stranger abates and the Disseisée releaseth to the Abator c. Here if the heire of the Disseisor enter he shall detain the land for ever For Co. ib. 283. b. 3. in all these cases the right to the possession shall draw the right of the land to it neither yet shall any of these be relieved by bringing their writ of right c. And the rule to know when the possession shall draw the right of the land to it and when not is this when the possession is first and then a right cometh thereunto the entry of him that hath the right to the possession shall gain also the right which as appeares in those cases before put followeth the possession and the right of possession draweth the right unto it But when the right is first and then the possession cometh to the right Littl. § 486. 48. albeit the possession be defeated yet the right shall remain As if the Disseisée enter upon the heire of the Disseisor albeit the heire may recover the possession of the land against the Disseisée in an Assise of Novel Disseisin or in a writ of Entry in the nature of an Assise Yet shall the Disseisée afterwards recover the land again from the heire in a writ of Entry en le per of the disseisin made unto him by his Father or otherwise in a writ of Right because the méer right of the land did still remaine in the Disseisée c. Co. ib. 266. a. 3. So if a woman that hath right of Dower disseise the heire and hée recover the land against her yet shall he leave the right of dower in her c. Because when the naked right is precedent before the acquisition of possession upon the defeasible estate then in consideration of Law is the right more worthy than the possession but when the possession is before the right then is the possession more worthy c. according to the Rule Quod prius est tempore potius est jure And this likewise holds true when the méer right is subsequent and transferred by act in Law for there also albeit the possession be recontinued yet that shall not draw the naked right with it but shall leave it in him As if the heire of the Disseisor be disseised and the Disseisor enfeoff the heire apparent of the Disseisée being of full age and then the Disseisée dieth and the naked right descends to the heir and the heire of the Disseisor recovers the land against him yet doth he leave the naked right in the heire of the Disseisée So if the Discontinuée of Tenant in taile enfeoff the Issue in taile of full age and the Tenant in taile die and then the Discontinuée recovers the land against him yet doth he leave the naked right in the Issue For in these cases also as before the right although it séems to be subsequent to the possession yet is it indéed before it in respect of the privity viz. in the first case of bloud betwéen the father and son and in the other case of estate by force of the gift in taile because the right of the father is by construction of law the right of the son and the right of the Ancestor is the right of the issue in the taile 10. âujus est soluÌ âus est usque ad âlum 20 The earth is more worthy than the other elements Co. Inst pars 1 4. a. 3. because it was ordained for the habitation of man and therefore it hath in Law a great extent upwards not onely of water but a aire and all other things even up to heaven for cujus est solum ejus est usque ad coelum c. âember of âarliament 21 The person of a Member of Parliament is frée from arrests Dyer 60. a. 20. because the King and all his Realm have an interest in his person pro bono publico and therefore the private commodity of any particular man is drowned in it and shall not be regarded c. âease of an âuse with âplements 22 A lease for years of an house with divers Implements rendring rent the Lessor enters and makes feoffment the Lessée re-enters Dyer 212. 37. 4 Eliz. and for rent arreare the Feoffée brings debt and adjudged maintainable albeit there was no privity and this per 5 Henry 7. where the Devisée brings Debt And there the rent was not extinct but onely suspended untill the Termor by his regresse revived the reversion Neither yet in this case shall there be an apportionment of the rent for the Implements because Magis dignum trahit ad se minus dignum Vide Dyer 361. 15. 20 Eliz. Dyer 216. 55. 4 Eliz. 23 The Statute of 1 Mar. dissolves the Court of Augmentations Receivers office by this the receivers office of the said Court was also dissolved Sir Robert Chesters case Howbeit the fée continued by a Proviso in the same Statute 63 Accessarium Sequitur Principale Co. Inst pars 1. 49. a. 3. 1 If an house or land belong to an Office An office or Corodie draweth land by the grant of the Office by déed the house or land passeth as belonging thereunto So likewise if an house or chamber belong to a Corodie by the grant of the Corodie the house or chamber passeth c. Co. ib. 56. a. 3. 2 If the Lessée at will by good husbandry and industry Land draweâ the profits either by overflowing trenching or compassing of the meadows or digging up the bushes or the like make the grasse to grow in more abundance Yet if the Lessor put him out the Lessée shall not have the grasse because the grasse being the natural profit of the earth ought to goe with it So it is also albeit he sowes Hay-séed and thereby encreaseth the grasse c Co. ib. 122. a. 2. 3 If a Mannor be divided betwéen Coparceners An advowsââ after partition remains appendant and
Law to give him cause of action and it is alwayes intended that every one will shew the best of his case c. But when the barre of the Defendant is insufficient in substance and the Plaintiff replies and shews the truth of his case whereby he produceth no matter against himself but matter explanatory or peradventure not material there the Court shall judge upon the whole record and the Count being good for insufficiency of the Barre without any regard to the replication judgement shall be given for the Plaintiff As if a man plead a grant by Letters Patents in Barre which are not sufficient the Plaintiff by replication sheweth another clause in the said Letters Patents which clause is not material the Defendant demurers in Law In this case judgement shall be given against the Defendant sic in simililibus Co. l. 8. 163. a. 3. in Black-amors case 7 Among the misprisions remedilesse by the Statutes made for the amendment of records this is one Misprisions ãâã Clerks that albeit the verdict upon issue tryed be given for the Plaintiff yet if upon the whole record it appears to the Court that the Plaintiff hath no cause of Action he shall never have judgement and so it hath béen often adjudged Co. l. 9. 53. a. 2. in Hickmots case 8 In debt upon an Obligation A release pleaded wiââ exception the Defendant pleads a release of the Plaintiff c. which was in this manner A. doth acknowledge himselfe satisfied and discharged of all bonds debts c. made by B. the Defendant and it is agreed that A. shall deliver all such bonds as he hath yet undelivered unto B. except one bond of 40 l. not yet due wherein B. and C. stand bound to A. c. The Plaintiff replies that the obligation excepted and the obligation in Curia prolata are one and the same whereupon the Defendant demurres And in this case it was resolved that the exception extended to all the premisses because all the words before make but one intire sentence and the one depends upon the other For it is reason that when Bonds are satisfied that they should be delivered and exceptio semper ultimò ponenda est It was also reason that this bond of 40 l. should be excepted because it was not due when the release was made c. Co. l. 10. 99. b. 3. in Beawfages case 9 M. 10. Jac. upon a motion at the Barre it was resolved Bond taken by the Sheââââ not within ãâã the Statute ãâã 23 H. 6. that an obligation to the Sheriff upon a Fieri facias for the payment of the money in Court c. was not void by the Statute of 23 H. 6. cap. 10. For the first branch of that Statute is that he shall let to baile by Writ or Bill c. which he could not do before as appears 19 H. 6. 43. The second shews the form of the body c. The third contains a penalty that if the Sheriff take an obligation in any other form c. than is there prescribed that it shall be voyd so that upon consideration of all the branches together and upon their coherence and dependance one upon another it plainly appears that the said Statute doth extend onely to obligations of such as are within their guard and custody and not otherwise Co. l. 10. 138. b 1 in Chester Mills case 10 Always such construction ought to be made of an Act af Parliament that one part thereof may agrée with the rest Exposition an Act. and that all may stand well together c. Co. l. 11. 44. a. 4 in Richard Godfreys case 11 The Iustices shall assesse the Fines of Copiholders upon the due consideration of all circumstances Copihold Fines Quà m rationabilis debet esse finis non definitur sed omnibus circumstantiis inspectis pendet ex Justiciariorum discretione And so it was adjudged in Communi Banco Inter Stallon Plaintiff and Brady Defendant P. 9. Jac. 1845. Rot. Co. l. 5. 79. b. in Fitz-herberts case 12 Tenant for life Warranty that comâceth by dâsin the remainder to his sonne and heire apparent in taile by covin and agréement betwixt him and A. and B. to the intent to barre his son of his remainder by a collateral warranty makes a lease for years to A. who makes feoffment in fée to B. to whom the father releaseth with warranty and all this is by covin and consent betwixt the parties to the intent aforesaid After this the father dies and the warranty descends upon the sonne being then of full age Resolved per totam curiam that this warranty shall not barre the sonne because the feoffment of the Lessée for years is disseisin and the father himselfe is particeps Criminis and agréeing thereunto then albeit the release with warranty is made after the disseisin yet in as much as the disseisin was to such an intent and purpose the Law will adjudge upon the whole Act as it is agréed in 19 H. 8. 12. If a man disseise another with intent to make feoffment with warranty albeit he make the feoffment twenty years after the disseisin yet the Law will adjudge upon the whole act and the disseisin and warranty shall be coupled together according to the intent of the parties and therefore in such case the law will adjuge the warranty to begin by disseisin albeit they are made at several timâs So if a man make a lease of lands in two several Counties reserving an intire rent abeit the livâry be made at several times first in one County and then in another yet the rent is issuing out of the lands in both Counties So likewise if a man make a charter of feoffment of certain lands with warranty and deliver the déed and after make livery of the land secundum formam cartae Here also the Law will adjudge upon the whole act and albeit the déed be delivered at one time and the livery of the land at another time and although a warranty ought to enure upon an estate yet upon the whole matter the warranty is good Eldest childe 13 The use of a recovery was limited by a Latin déed to the use of H. viz. he against whom the recovery was had for life Dyer 337. 36. 16 Eliz. the remainder Seniori puero de corpore H. in taile c. Afterwards H. covenants by an English Indenture to levy a fine to the use aforesaid wherein the use was limited to the use of the eldest child of the bodie of H. c. H. hath issue two children whereof the elder was a daughter and the younger a sonne And in this case it was adjudged that the daughter should have the land for albeit the word puero be indifferent to each sex and then the Male for dignity should be preferred yet because the English indenture hath declared the construction to be the eldest child the daughter shall have
62 yeares without impeachment of wast And after A. le ts to B the Mannor for 30 yeares from the expiration of the former ease of 30 yeares the first 30 yeares expire the Lessée cut the trees the Lessor brings an Action of wast And Iudgement was given for the Plaintife for by the accept of the future Lease the lease for 62 yeares was presently and actually surrendred because it could not be surrendred in part and in force for the residue of the term and the Lessée by such acceptance affirmed the Lessor to have ability to make a new lease which he could not do so long as the first lease stood in force so likewise if the Lessee for 20 yeares accept a lease for three yeares to begin ten yeares after this is a present surrender of the whole term for the last ten yeares cannot be surrendred and the first ten still remain in esse because that would make fractions of the term which is in its nature intire Neither can he that hath a lease for 20 yeares surrender the last ten yeares by any expresse surrender saving unto him the first ten yeares c. Co. lib. 5. 11. b. 3. 56. a. 1. Knights Case 54 Two Houses are let to one man An intire condition the one for 4 l. Rent per annum the other for 20 s. per annum with proviso that if the said Rent of 5. l. be behind in part or in all then the Lessor shall re-enter these Houses afterwards escheate to the King who after grants that upon which the â0 s per annum is reserved to I. S. the Rent thereof is arreare In this case the Patentée cannot enter for the Condition broken because albeit the Rents were severall yet the Condition was intire by the expresse reservation and gives in intire re-entry into all for default of payment of any part of the Rent and therefore by the severance of any part of the reversion all the condition as to all common persons is destroyed Howbeit the whole condition remaines intirely in the King with the reversion of the other House and that is in respect of his prerogative c. âhe whole âârm one inâââe day 55 The Lessée for yeares brings an ejectione firme Co. lib. 5. 74. b. 1. in Wymarks Case the Defendant saith that before the lease the Lessor bargained and sold to him in Fée by indenture inrolled within six moneths whereby he was seised untill diseised by the Lessor who let the land c. The Plaintife pleades that the bargaine c. was upon Condition which was broken c. the Defendant demurres and sheweth cause according to the Statute viz. Because the Plaintiff shewed not forth the Indenture of the Condition And in this case judgement was given for the Plaintife because when any deed is shewed in Court the deed by judgement of Law remaines in Court all the term in which it is shewed but at the end of the term if the deed be not denied then the Law adjudgeth it in the Custodie of the Partie to whom it belongs for all the term in Law is but one day and therefore the deed shall be intended to remaine in Court all the terme in which it is shewed for the term in that case is Intire and will admit of no fractions And so by consequent the Plaintife may in such case take advantage of the Condition comprised in the deed shewed forth by the Defendant himselfe so he do it in the same term as afore-said c. âerdict and âamages inâââe 56 Goods were cast super arenas aqua salsa minimè coopertas Co. l. 5. 108. a. 3. in Sir Henry Constables Case Manerii de B. infrà fluxum refluxum maris and another parcell were floting super aquas maris refluent ex arenis ejusdem Manerii infrà fluxum c. The Patentée of the Mannor and Fée of Holdernesse in Com. Ebor. brings an Action of Trespasse against him that seised them to the use of the Lord Admiral And the Iurie assessed damages intirely for all In this case judgement was given against the Plaintife because the Goods so floting upon the Waters called Flotsam did not of right belong to him but to the Lord Admiral And therefore the Verdict being intire viz. given for both and so the damages of the wrecke being thereby made un-severable from those of the Flotsam the Plaintife could take nothing by his wort So in Trespasse 21 H. 7. 34. b. the Defendant justifies for part and Pleads not guilty for the residue the Iury inquire of one of the things and tax damages intirely here the whole Court against Fineux adjudged it not good 22 E. Dier 369. accord M. 14 15 El. in Trespas by Pooly for his Servant beaten and his Close broken and said not per quod servitium amisit upon non culp the Iury assessed damages intirely and it was adjudged not good See 9 H. 7. 3. M. 30 31 El. inter Moore Bedle in Assumpsit where the Plaintiff layes two breaches whereof one was insufficient upon non assumpsit the Iury assessed damages intirely And in this case there were two resolutions 1 It shall be intended that they gave damages for both 2 Because the Plaintifs had no cause for one of the allegations ââtire serviââ the judgement was to be reversed in the Exchequer Chamber c. 57 Concerning intire Services Co. lib. 6. 1. in Bruertons Case and where they may be apportioned âarranty inâââe and where not see Bruertons Case per tout Co. l. 6. 1. and John Talbots Case in the 8. Rep. fol. 108. 58 Warrantie is an Intire thing which will not suffer partition but shall always either intirely remaine or be intirely annulled Co. lib. 6. 126. Morrices Case and therefore if there be two Ioyntenants with Warrantie and petition is made between them by judgement in a writ de partitione facienda by force of the Statute of 31 H. 8. cap. 1. in this case the Warrantie shall remaine to each of them intirely because upon the Kings writ they are compellable by the Statute unto which every one is Partie to make partition and so the Partie persuing his remedie according to the Act shall not receive any prejudice by the operation of the same Act unto which every one is partie but if they had made partition by deed by consent since the said Act albeit they were compellable by writ to make partition yet in as much as they did not pursue the Statute to make partition by writ for that cause such partition remaines as it was before at the Common Law and by consequent the Warrantie is gone as it was agréed in 29 El. 3. tit Garr because the Warrantie is indivisible and cannot be parted as the Land may Co. lib. 6. 23. The Marqu of Winchesters Case 59 The Marcquesse of Winchester by will as it was supposed A will for Lands and Testament ãâã
a lease for life and after the Lord and the tenant inter-marry and have issue betwéen them a son and the Feme dies and after the father dies the son within age here the executors shall not have the wardship by reason of the Seigniory for the father hath the wardship of his eldest son jure naturae which is inseparable and cannot be waved and he cannot have the wardship of his son by the death of his wife in respect of his Seigniory for that was inseparably vested in him as father immediatly upon the birth of the son jure naturae And Littleton saith that the father during his life shall have the marriage of his son and heir apparent and not the Lord c. 3. Co. l. 6. 22. Ambrosia Gorges Case 10 Viscount Bindon being seised of land in capite had issue The like Douglas his daughter and heir who being married to Sir Arthur Gorge had issue by him Ambrosia a daughter Douglas dies and likewise Viscount Bindon Ambrosia being under age afterwards Sir Arthur Gorge takes another wife and hath Issue a son Ambrosia remaining still under age In this case Ambrosia was not in ward during the time she remained heir apparent to her father but after her father had a son so that she remained no longer heire apparent then had Queen Eliz. the Wardship both of her body and Lands c. Allegiance ââue by nature 11 Faith Co. l. 7. Calv. Case fol. 13. b. obedience and ligeance are one to the Soveraigne by the Law of Nature which cannot be changed or taken away for albeit Iudiciall and Municipall Lawes have inflicted and imposed in several places and at several times divers and several punishments and penalties for breach or not observance of the Law of Nature for that Law onely consisting in commanding or prohibiting without any certaine punishment or penaltie yet the very Law of Nature it self could never be altered or changed And therefore it is certainly true that Jura naturalia sunt immutabilia And here with agréeth Bracton lib. 1. cap. 5. and Doct. and Student cap. 5. 6. For example 33. H. b. 55. 6. If a man hath a Ward by reason of a Seigniory and is out-lawed he forfeiteth the wardship to the King but if a man hath the wardship of his owne Sonne or Daughter which is his heire apparent and then is out-lawed he cannot forfeit that wardship because nature hath annexed it to the person of the Father as it appeareth in 33 H. 6. 55. b. So likewise the Faith Obedience and Ligeance which we owe to our Soveraigne cannot be taken away For bonus Rex nihil a bono patre differt patria dicitur à patre quia habet communem patrem qui est pater patriae In the same manner Maris foeminae conjunctio est de jure naturae 35 H. 6. 57. as Bracton and Doct. Stud. in the places before quoted do hold And therefore if he that is attainted of treason or felonie be slaine by one that hath no authoritie or executed by one that hath authoritie but pursueth not his Warrant In this Case 21 E. 3. 17. b. the eldest sonne can have no appeale for he must bring his appeale as heire which priviledge being ex provisione hominis he loseth by the attainder of his Father Howbeit his Wife if he have any shall have an appeale because she is to have her appeale as Wife which she continueth to be notwithstanding the attainder for that maris foeminae conjunctio is de jure naturae And therefore it being intended to be of true and law-full matrimonie is indissoluble and this is proved by the booke in 35 H. 6. fol. 57. So if there be Mother and Daughter and the Daughter is attainted of felonie now can not she be heire to her Mother for the cause afore said yet after her attainder if she kill her Mother this is parricide and petite treason For still she remaineth her Daughter because that is of nature If a man be attainted of felonie or treason 4 E. 4. 35 H. 6. 57. 2. Ass Pl. 3. he hath lost the Kings Legal protection for he is thereby utterly disabled to sue any Action reall or personal which is a greater disability then an alien in league hath and yet such a Parson so attainted hath not lost that protection which by the Law of Nature is given to the King for that is indelebilis immutabilis and therefore the King may protect and pardon him and if any man kill him without warrant albeit attainted as afore-said he shall be punished by Law as a Man-slayer By the Statute of the 25 E. 3. cap. 22. a man attainted in a Praemunire is by expresse words out of the Kings protection generally and yet this extendeth onely to legal protection as it appeareth by Litt. fol. 43. for the Parliament could not take away that protection which the Law of Nature giveth unto him and therefore notwithstanding that Statute the King may protect and pardon him And although by that Statute it was farther enacted that it should be done with him as with an enemie by which words any man might have slaine such a person as it is holden in 24 H. 8. Coron Br. 197. until the Statute made in 5 E. cap. 1. Yet the King might protect and pardon him A man out-lawed is out of the benefit of the Municipal Law for so saith Fitz. N. B. 161. Ut legatus est quasi extra legem positus And Bracton l. 3. tract 2. cap. 11. saith that caput gerit lupinum c. yet is he not out either of his natural ligeance or of the Kings natural protection for neither of them is tied to municipal lawes but is due by the law of Nature which was long before any judicial or municipal lawes And therefore if a man were out-lawed for felonie yet was he within the Kings natural protection for no man but the Sheriffe could execute him as it is adjudged in 2. Ass Pl. 3. Every subject is by his natural ligeance bound to obey and serve his Soveraigne c. It is enacted by the Parliament in 23 H. 6. cap. 8. that no man should serve the King as Sheriffe of any County above one yeare and that notwithstanding any clause of non obstante to the contrary that is to say notwithstanding that the King should expressy dispence with the said Statute howbeit it is agréed in 2 H. 7. that against the expresse purview of that Act the King may by a special non obstante dispence with that Act for that the Act could not barre the King of the service of his subject which the law of nature did give unto him One of the Chiefest grounds according to which the Case of the post-nati was resolved in 6 Jac. was because obedience and ligeance of the subject to the Soveraigne is due by the law of Nature for if they be due by that law
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 Mortâaine 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 âetrage to Feâales 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
alien because it was intended a Mortmaine viz. that it should for ever continue in that sea or house for that they had it in auter droit for religious and good uses as was pretended c. Feme Execuââix Baron âelease 23 If a Feme creditor take the debtor to Husband Co. ibid. 264. b. 4. M. 30 31 El. Co. l. 8. 136. a that is a release in Law of the debt but if a Feme executrix take the debtor to husband that is no release in Law because she hath the debt in anothers right and that would be a wrong to the dead and in Law work a devastavit which an Act in Law shall never work c. In Sir John Nedhams Case Plene adminiâââravit 24 Vpon Plene administravit pleaded by an Executor Co. ibid. 283. a. 2 Et issint riens inter manis if it be proved that he hath goods in his hands which were the Testators he may give in evidence that he hath payd to that vaine of his owne money and neââ not plead it specially because what he did in that case was in anothers right A term drowâed 25 A master of an Hospital âsing a sole corporation Co. ibid. 338. b. 3 by consent of his Brethren makes a leasse for yeares of part of the possessions of the Hospital and afterwards the Lessée for yeares is made Master In this case the term is drowned for a man cannot have a term for yeares in his owne right and a free-hold in auter droit to consist together as if a man Lessée for yeares take a Feme Lessor to Wife c. But a man may have a frée-hold in his owne right A term not drowned and a term in auter droit And therefore if a man Lessor take a Feme Lessée to Wife the term is not drowned but he is possessed of the term in her right during the coverture So if the Lessor made the Lessée his Executor the term is not drowned Causa qua supra Howbeit in the case first put if it had béen a corporation aggregate of many the making of the Lessée master had not extinguished the term no more then if the Lessée had béen made one of the Brethren of the Hospital because he then had the frée-hold in auter droit together with others c. âarson ââar 26 A Parson of Vicar of a Church because he is seised in right of his Church Co. ibid. 341 a. 3 for the benefit of the Church and of his Successor is in some cases estéemed in law to have a fée-simple qualified but to do any thing to the prejudice of his Successor in many Cases the Law adjudgeth him to have in effect but an Estate for life âheir alienaâââo disââtinuance Causae Ecclesiae publicis causis acquiparantur and summa ratio est quae Religione facit Litt. §. 643. and Ecclesia fungiter vice minoris Meliorem facere potest Conditionem suam deteriââ rem nequaquam c. His alienation of the Glebe makes no discontinuance c. âeme Executââix âhattels âeals 27 If the Wife be possessed of Chattels real in auter droit Co. ibid. 351. a. 4. as Executrix or Administratrix or as Guardian in Soocage c. and the inter-marrieth the Law maketh no gift of them to the Husband although he surviveth her In the same manner if a Woman grant a term to her own use and then taketh Husband and dieth the Husband surviving shall not have his trust but the Executors or Administrators of the Wife for it consisteth in privity And so it was resolved by the Iustices P. 32 Eliz. in Cancell in Withams Case H. 38. Eliz. in Cancell in Waterhouses Case c. âersonal âods âron ââe 28 If a Feme sole be possest of Chattels personal in her owne right Co. ibid. 35â b. 1 and she taketh Baron In that Case that marriage is an absolute gift in Law of all such Chattels whether the Husband survive the Wife or no But of personal goods in auter droit as Executrix or Administratrix c. the marriage is no gift of them to the Husband although he survive his Wife And as to personal goods in Case of Baron and Feme there is a diversity worthy of observation betwéen a property in personall goods as is afore-said and a bare possession for if personal goods be bailed to a Feme or if she find goods oâ if goods come to her hands as Executrix to a Bailife and she taketh an Husband this bare possession is not given to the Husband but the action of detinue must be brought against the Husband and Wife because the Possession which she hath is in auter droit c. Co. ibid. 370. a. 4. 29 It is to be observed Parson Warranty No barre ãâã Juris utrus or Assise that in all Cases which Littleton putteth in the chapter of Warranty concerning lineal and collateral Warranty the heire is still mentioned to be bound by them be never making once mention of the Successor from whence it may be inferred that the Successor clayming in another right shall not be bound by the Warranty of any natural Ancestor And therefore in a Juris utrum brought by a Parson of a Church the collateral Warranty of his Ancestor is no barre because he demandeth he Land in the right of his Church in his politique capacity and the warranty descendeth on him in his natural capacity And albeit some have holden that if a Parson bring an Assise that a collateral Warranty of his Ancestor shall bind him because the Assise is brought of his owne possession and seisin and he shall recover the mean profits to his owne use yet séeing he is seised of the Frée-hold whereof the Assise is brought in Jure Ecclesiae which is in another right then the Warranty it séemeth to be no barre in the Assise And of this opinion my Lord Cooke séems to be because he produceth it last according to his owne Rule c. The like Law is of a Bishop Arch-deacon Deane master of an Hospital and the like of their sole possâssions and of a Prehend Vicar c. Co. l. 4. 11. b. 3. in Bevils Case 30 If there be Lord and Tenant by fealty and two shillings Rent Land and Tenant Suit of Coâ Abbot and the Lord by incroachment viz. by the voluntary payment of the Tenant happens seisin of more Rent then he ought to have the Law doth so greatly favour seisins and possessions that neither the Tenant nor his heire shall avoid the seisin so had by incroachment in Avowry Neverthelesse if an Abbot hold by fealty and Rent and the Lord incroach suite by seisin of the Abbot c. This seisin shall not prejudice his Successor but he shall discharge it for there is not the same reason of the Predecessor to the Successor that there is to Ancestor to the heire c. As
it is agréed in 4 E. 2. Avowry 204. Co. l. 8. 133. a. 1 in Turners Case 31 For asmuch as an Executor or Administrator hath not the goods of the dead to his owne use but in auter droit to the use of the dead Executor Administratâ ought to eââcute his Oâ lawfully c he ought to execute his Office and to administer the goods of the dead lawfully truely and diligently lawfully in paying all duties debts and legacies in such precedency and order as they ought to be paid by the Law truly viz. to convert none of them to his owne use neither yet by any practice or devise to barre or hinder any creditor of his due debt but truly to execute his Office according to the trust reposed in him diligently Quia negligentia semper habet infortunium comitem c. Co. lib. 8. 135. b. 3. in Sir John Nedhams Case 32 The Bishop who is an Executor appointed by the Law Ordinary ãâã not dispoâeâ the Goods ãâã for the good ãâã the dead Executor ârante âliaâtate is not permitted by the Law to make a release of debt or gift of goods For he hath a special property in the goods of the dead for the benefit of the dead and nothing to his owne use and it appeares in 9 El. Dier 253. that the Ordinary hath not power to give authority to another to sell the goods of the dead because he hath not any such authority himselfe And the Statute of West 2. is Bona deveniunt ad manus Ordinarii disponenda viz. for the good of the dead And he is not much unlike as to that purpose an Administrator durante minore aetate who hath special power committed unto him to dispose of the goods of the dead and nothing in prejudice of the Executor as it is holden in Princes in the 5 Rep. fol. 29. So likewise the Lord of a Copi-hold Mannor who takes a surrender to the use of another hath onely power to grant if according to the use of the surrender and not to the use of any stranger as it is holden in the 4. Rep. fol. 28. in Westwickes Case âdministratiâ to the Obâgoâ 33 If the Obligée make the Obligor his Executor Co. ib. 132 a. 1. in Sir John Nedhams Case this is a release in Law of the debt because that is the Act of the Obligée himselfe but if a Commission of Administration be granted by the Archbishop to the Obligor that shall not extinguish the debt because then he hath the debt in anothers right and for the good of the dead c. âarrien âesentment 34 If a man present to an Advowson F. N. B. 31. l. and after lets it for term of yeares and after the Church is void and the Tenant for yeares presents c. And after the incumbent dies and Lessor presents and is disturbed In this Case it séemes he shall not have an Assise de darrien presentment because the Tenant for yeares presents in his owne right but if a Guardian presente in right of the heire and after the incumbent die In that Case the heire shall present and if he be disturbed he shall have an Assise de darrein presentment because the Guardian did it in auter droit âuare Impedit viz. in the right of the heire c. This séemes to be the opinion of Fitz. Howbeit it is resolued in the 5. Co. l. 5. 97. b. in the Count. of North. Case Report fol. 97. in the Countesse of Northumberlands Case that the presentation of the Grantée of the prochiene avoydance is sufficient title in a Quare Impedit for the Grantor and his heires because he doth it in the right and title of the Grantor So it is also of Lessee for yeares life Tenant in Dower Courtesie Guardian Tenant by Statute c. And with this agrées divers opinions in our Books viz. 7 L. 4. 20. 22 E. 4. 9. b. 16 H. 7. 18. a. 9. H. 7. 23. Br. Quare Impedit 122. 13 El. Dier 300. 35 In debt brought by two Executors the one is summoned and severed and afterwards he that was severed dies Co. l. 10. 134. a. 3. in Read Redmans Case and the Defendant pleads this in abatement In this Case the writ shall not abate because either of them Act in an others right 89 The Law dis-favoureth other persons as Villeins Bond-men Out-lawes Ex-leges men in Exile Aliens and especially Aliens that are enemies âhallenge to â Poll. 1 It is principal Challenge to the Pol Co. Inst p. 1. 156. b. 4. that he is a Villein or Bondman Also upon the trial in a writ of right by battaile the Champion must be a Frée-man and no Villein or Bond-man And this is propter defectum âsure by the ârd 2 A Villein can hold nothing either Land or Goods in his owne right for Quicquid acquiritur servo acquiritur Domino c. Co. ib. 117. a. 3. ââgatus baâ caput Lâpiâ 3 In the Reigne of King Elfred Co. ib. 128. b. 3. and until a good while after the Conquest Out-lawry was estéemed in Law a grievous punishment so that none was in those times out-lawed save onely for felony the punishment whereof was death And therefore in ancient time as appeares by divers old Books and Records An out-lawed man was saide to have Caput Lupinum because he may be put to death by any man as a Wolfe that hatefull beast might Fleta l. 1. c. 27. Bract. lib. 5. fol. 421. Britt 20. b. Mirroir cap. 2. sect default punishm Utlagatus Waviata capita habent Lupina quae ab omnibus impurè poterant amputari meritò enim sine lege debent perire qui secundum legem vivere recusant And another saith Utlage pur felonie seigne lien pour Loup est criable Walfeshead pur ceo que Loup est beasts hay to touts gents de ceo en avant list a ascun de le occire ou foer del Loup dout custome soloit este de porter les testes al Chiefe lien del County or de la Franchise sol oit tou avoir d'un Marke del County pur chescun teste de utlage de Loup And this agréeth with the Law before the Conquest Utlagatus Lupinum gerit caput quod Anglicè Wolfeshead dicitur Et haec est lex communis generalis de omnibus utlegatis 2. Ass Pl. 3. 2 E. 3. tit Corone 148. But in the beginning of the Raigne of E. 3. it was resolved by the Iudges for avoiding of inhumanity and of effusion of Christian bloud That it should not be lawfull for any man save the Sheriffe onely having lawfull warrant therefore to put to death any man out-lawed although it were for felony upon paine to suffer the like punishment as if he had killed any other man Note that about Bractons time processe of out-lawry was given in actions that were
Alien that is condemned in an information shall have a writ of Error to relieve himselfe Et sic de similibus ââeading 12 If an Alien that is no Alien Enemy Co. ibid. b. 2. in Calv. Case ubi suprà commence a suit the Tenant or Defendant may plead in dis-ability and ought at last to demand Iudgement Si il sera respondue But if an Alien Enemy bring a suit he shall conclude to the Action by saying Judgement si action Co. ib. 156. b. 4 and 129. a. 1. 13 It is a principal Challenge to the Poll Juror that the Iuror is an Alien born and that is propter defectum Patriae or rather ligeanciae as Littleton hath it or Subjectionis as Bracton Co. l. 7. 6. a. 4 in Calvins Case 14 It is to be observed that it is nec Coelum nec Solum Ligeance makes a Subject born neither the Climate nor the Soil but ligeantia obedientia that make a man to be a Subject born for if enemies should come into this Kingdome and possesse a Town or Fort and have issue there that issue is no Subject to the King of England though he be born upon his Soil and under his both Climate and Meridian because he was not born under the ligeance of a Subject nor under the protection of the King Co. ib. 15 If an Alien of a Countrey in league with the King come into this Kingdome and here commit Treason An Alien in league shall be indicted It is otherwise of an alien Enemy who shall be punished by Martial Law c. he shall be indicted for it and procéeded against according to the municipal Law of the land and the indictment shall begin and end as other indictments do viz. the beginning shall be contra Dominum Regem c. and it shall also end thus Contra ligeantiae suae debitum c. Onely in the middle these words shall be omitted naturalem Dominum suum c. as it was resolved in Hill 36. Eliz. in the Case of Stephano Ferrara de Gama and Emanuel Ludovico Tinoco two Portugals born who comming into England under the safe Conduct of Quéen Elizabeth and living here under her protection joyned with Doctor Lopez in treason against her Majesty But if an alien enemy come to invade this Land and be taken in war he cannot be indicted of treason for it because the indictment cannot conclude Contra ligeantiae suae debitum for he never was in the Kings protection nor ever ought any manner of ligeance unto him but malice and enmity and therefore in that Case such an Alien shall be put to death by Martial law And so it was in 15 H. 7. in the Case of Perkin VVarbeck who being an Alien born in Flanders feigned himself one of the sons of E. 4. and invaded this Kingdome with intent to take upon him the Royal Dignity but being taken in war it was resolved by the Iustices that he could not be punished by the Common Law but before the Constable and Marshal according to Martial Law and so he was according to that Law adjudged to be hanged drawn and quartered and was in that manner executed accordingly Co. ibid. 17. a. 16 Every Alien is either a friend that is in league An alien friend and enemy c. or an enemy that is in open war c. Every alien enemy is either so pro tempore a temporary enemy for a time or perpetuus perpetual or specialiter permissus permitted in a special manner An alien friend so long as he so continues to be may acquire by gift or purchase Lands c. but cannot hold them he may also have Leases and Goods for Trade and Commerce sake maintain personal actions c. as is above-said But if such an Alien become an Enemy as all Aliens friends may then is he utterly dis-abled to maintain any action or get any thing within this Realm but a perpetual enemy though there be no Wars by fire and sword between them cannot maintain any Action or get any thing within this Realm such as are all Infidels which are in law estéemed perpetui inimici because the Law presuming that they will not be converted that being remota potentia betwéen them as with Devils whose Subjects they are and the Christian there is perpetual hostility and can be no peace For as the Apostle saith 2 Cor. 6.15 Quae autem concordia Christo cum Beliali aut quae portio fideli cum infideli And the Law saith Judaeo Christianum nullum serviat mancipium Nefas enim est quem Christus redemit Blasphemum Christi in servitutis vinculis detinere Register 282. Infideles sunt Christi Christianorum inimici And herewith agréeth the Book in 12 H. 8. fol. 4. where it is holden that a Pagan cannot have or maintain any action at all And upon this ground there is a diversity betwéen the Conquest of a Kingdome of a Christian King and the Conquest of the Kingdome of an Infidel For if a King come to a Christian Kingdome by Conquest séeing that he hath vitae necis potestatem he may at his pleasure alter and change the Lawes of that Kingdome but untill he doth make an alteration of them the ancient Lawes thereof shall remain Howbeit if a Christian King should conquer a Kingdome of an Infidel and bring them under his subjection there ipso facto the Lawes of the Infidel are abrogated for that they be not onely against Christianity but against the Law of God and Nature contained in the Decalogue And in that Case until certain Lawes be established amongst them the King by himself or such Iudges as he shall appoint shall judge them and their Causes according to natural equity in such sort as Kings in ancient time did within their Kingdomes before any certain municipal Lawes were given But if a King hath a Kingdome by title of Descent there séeing by the Lawes of that Kingdome he doth inherit the Kingdome he cannot change these Lawes himself without consent of Parliament c. As for an Alien Enemy that is inimicus permissus he is an Enemy that comes into the Realme by the Kings Conduct c. Vide 7. 4. The Defendant pleaded an Alien 17 In an Action brought by a Subject against an Alien Co. ibid. 25. a. 4. in Calvins Case the Subject shall plead that the Defendant is an Alien born for the benefit of the King to the end that the King upon Office found may seise that whereof the Alien is seised or possest and also that the tenant may yield the same to the King and not to the Alien because the King hath best right thereunto Flea against an Alien 18 In an Action real against an Alien born Dier 2. 8. 6 H. 8. it is a good plea in dis-ability of the person to say that he is an Alien born otherwise in Actions personal but against an
as it were by way of excuse to give the special matter in evidence as to say that it was se defendendo or in defence of his house in the night against Theeves and Robbers or the like Co. l. 3. 11. b. 4. in Sir Will. Herberts case 16 The liberty of a man is of such high estéeme in the consideration of Law that he could not at the Common Law he imprisoned At the Common Law to capias for ãâã c. unlesse he were guilty of committing some force for the Law being the preserver of the Common peace of the Land abhorres all force as one of her capital Enemies and therfore as concerning such as commit force the Common Law subjects their bodies to imprisonment as to one of the highest Executions of Law whereby they lose their liberty until they have made agréement with the party and fine to the King for which cause it is a Rule in Law that in all Actions Quare vi armis a Capias lies and where a Capias lies in process there after judgement a Capias ad satisfaciendum lies and there also the King shall have a Capias pro fine And with this agrées 8 H. 6. 9. 35 H. 6. 6. 22 E. 4. 22. 40 E. 3. 25. 49 E. 3. 2. and divers other Books But at the Common Law if a common Person had sued a recognisance or judgement for debt or damages he could not have the body of the Defendant nor his lands unlesse in some special case in execution but was onely in such case to have execution either of his goods and chattels by fieri facias or of his graine or other present profits which encreased upon the land by levati facias both which writs were to be sued within the yeare after the judgement or recognisance acknowledged and if he had neither the one of the other within the yeare the Plaintiffe or Conusée was then put to his writ of debt c. And then by the Statute of Westm 2. cap. 45. a scire facias was given and by cap. 18. cum debitum fuerit recuperatum c. an Elegit of the moity of the land which was the first Act that subjected land to the execution of a judgement or recognisance and with this agrées F. N. B. 265. q. And then by the Statute of 13 E. 1. de Mercatoribus 27 E. 3. cap. 9. and 23 H. 8. cap. 6. In case of a Statute Merchant or staple all the lands which the Conusor had the day of the conusance shall be extended in whose hands soever they come c. Also by the Statute of Malbridge cap. 23. and of West 2. cap. 11. A capias was given in accompt for at the Common Law processe in accompt was distresse infinite and after by the Statute of 25 E. 3. 17. the like processe was given in the debt as in accompt before which two last recited Statutes the body of the Defendant was not liable to the execution in accompt or debt c. neither yet was the land liable in debt as afore-said save in the Kings case and in the case of an heire in by descent and chargeable by the Obligation of his Ancestor c. Co. l. 4. 40. 2. 3. Darleys Case 17 In P. 25 E. Wotherel brings an appeal against Dorley of murder the Defendant pleads not guilty and he was found guilty of homicide Life shall ãâã be twice ãâã in jeopardy for the same offence and had his Clergy and after he was indicted of murder and thereupon arraigned at the Quéens suit and he pleaded the former condition in the appeale at the suit of the party And it adjudged a good barre because the life of a man is so precious in judgemedt of Law that it shall not be twice put in jeopardy for one and the same offence The like is agréed in Brooks Case H. 28 El. and P. 33 El. in Vaux his Case which sée Co. l. 4. 45. a. Nââ compos ââtis shall not lose his âife for felony ãâã murder 18 Every Act that a man de non sanae memoriae doth Co. ibid. 124. in Beverleys Case either concernes his life his lands or his goods also every Act that he doth is either done in pais or in a Court of Record All Acts which he doth in a Court of Record concerning his lands and goods shall bind himselfe and all other persons for ever Also all Acts which he doth concerning his lands and goods in pais in some cases shall bind himselfe onely during his life and in some case shall bind for ever c. But as for his life the Law of England is that he shall not lose that albeit he kill a man and thereby make himselfe subject to be indicted for felony or murder c. The death of a âan grievously punished by the Law 19 The Law surpriseth the life of a man Co. ibid. 2. 4. in Beverleys Case that it inflicteth grievous punishment upon them that are guilty of taking away and destroying it for the malefactor in that case shall 1. Lose his life 2. Lose it after an ignominious and odious manner viz. by hanging for he shall be hanged betwixt heaven and earth as unworthy of both 3. He shall lose his bloud both in respect of his ancestry for he is estéemed as a Terrae-silius without any Ancestor and also in respect of his posterity for his bloud is corrupt and he leaveth behind him neither heire nor posterity 4. He loseth his lands 5. His goods And in such case also the King shall have Annum diem vastuna to the intent that his Wife and his Children should be cast out his houses demolished his trées eradicated and stockt up his meadowes broken up and ploughed and all that he hath for his comfort delight and sustenance wasted and destroyed because he hath in such a felonious manner offended against the Law and all this is ut poena ad paucos metus ad omnes perveniat c. Upon an Arââst the cause ãâã be shewâd 20 The Law so provideth for the preservation of a mans liberty Co. l. 6. 54. 2. 4. in the Countesse of Rutlands Case that no general arrest is déemed legall without shewing the particular cause wherefore he is arrested And therefore the Sheriffe or any other by his authority which makes an arrest of the person of another ought upon the arrest to shew at whose suit out of what Court for what cause he doth it and when the processe is returnable to the intent that if it be upon an execution he may pay the money and so frée his body from imprisonment and if it be upon a mesne processe may either agree with the party or put in baile according to the Law and so make his apparence accordingly c. âhe Coll. of âys cannot ââmmit 21 An Act of Parliament Co. lib. 8. 120. a. 3. Doctor Bonhams Case that gives power of
and after I confirm the Estate of the Baron and Feme to have and to hold for their two lives In this Case the Baron holds not joyntly with the Feme but onely in her right during her life and shall have it for life if he survive her But if I let to a Feme sole Land for term of years who takes Baron and I confirm the Estate of the Baron and Feme to have and to hold for their lives In this Case they have a joynt Estate in the Frank-tenement of the land because the Feme had not Frank-tenement before but onely a Chattel whereof the Baron hath such a possession in her right as was capable of a confirmation or a release and the confirmation in this Case to the husband and wife for their lives maketh them Ioynt-tenants for life because this Chattel of the Feme covert may be drowned So note a diversity betwéen a Lease for life and a lease for years made to a Feme covert for her Estate of Fréehold cannot be altered by the confirmation made to her husband and her as the term for years may whereof her husband may make disposition at his pleasure Co. ib. 275. b. 4. 11 If Lessée for years be ousted and he in the Reversion disseised Release to the Disseisor and the Lessée release to the Disseisor the Disseisée may enter for the term for years is extinct and determined But otherwise it is in case of a Lessée for life for in that Case the Disseisor hath a Fréehold whereupon the release of tenant for life may inure but the Disseisor hath no term for years whereupon the release of the Lessée for years may inure Co. ib. 378. â 4 12 A man letteth lands for life upon Condition to have Fée A Lease for years not capable of a warranty and warranteth the land in forma praedicta afterwards the Lessée performeth the Condition whereby the Lessée hath Fée In this Case the warranty shall extend and increase according to the State for a warranty being a Covenant real executory may extend to an Estate in futuro having an Estate whereupon it may work in the beginning but if a man grant a Seigniory for years upon condition to have fée with a warranty in forma praedicta and after the Condition is performed this shall not extend to the fée because the first Estate was but for years which was not capable of a warranty And so it is if a man make a lease for years the remainder in Fée and warrant the land in forma praedicta he in the remainder cannot take benefit of the warrantie because he is not party to the Déed and immediately he cannot take if he were party to the Déed because he is named after the habendum and the Estate for years is not capable of a warranty c. Waste 13 A Lease for life the remainder for years Finch 29. the remainder over in Fée an action of waste lieth for him in the remainder in Fée against the Lessée for life sor the mean Estate for yeares is not regarded Otherwise it were if the mean Estate for years were an Estate for life c. Joynt-tenants may prejudice one another 14 One Ioynt-tenant cannot prejudice his Companion Co. l. 2. 68. a. 3. in Tookers ca. as to any matter that concerns the Inheritance or Frank-tenement But as to the profits of the Frank-tenement they may prejudice one another c. per Popham Right of Action 15 There is a diversity betwéen Inheritance and Chattels Co. l 3. 3. a. 1 in the Marquesse of Winchesters Case for the right of action concerning Inheritances is not forfeited by Attainder c. but Obligations Statutes Recognisances c. and such other things in action are forfeited by Attainder or Outlawry Real and personal actions 16 The Law hath provided greater safety and remedy for matters of Frank-tenement and Inheritance then for Debts and Chattels Co. l. 6. 7. a. 1 in Ferrers Case for there once barred and ever barred for in personal actions as in Debt Accompt c. the bar is perpetual because the Plaintiff in that Case cannot have an Action of an higher nature but his onely remedy in such Case is by Errour or Attaint Howbeit if the Demandant be barred in a real Action by judgement upon Verdict Demurrer Confession c. yet he may have an Action of higher nature and try the same right again because it concernes the Frank-tenement and Inheritance as if one be barred in an Assise de novel disseisin yet he may have upon shewing a descent or other special matter an Assise of Mortdancestor Aiel Besaiel Entry sur disseisin to his Ancestor c. So if a man be barred in a Formedon in descender he may have a Formedon in reverter or remainder for that is an Action of an higher nature because in it the Fée-simple is to be recovered according to the opinion in Robinsons Case in the 5. Report fol. 33. âands not âhargeable in ââcution 17 At the Common Law before the Statute of VVest 2. cap. 18. Co. l. 3. 11. b. 4 in Sir Wil. Herberts case which gave an Elegit against the moity of the Debtors Lands upon a Recognisance or Iudgment sued lands were not chargeable in execution but onely Goods and Chattels or else grain or other present profit increasing upon the land viz. Goods and Chattels by Fieri facias and such present profit by Levari facias c. Vide suprà Ru. 92. ex 16. Howbeit in the Kings Case by reason of his Prerogative and in Case of an Heir in by Descent and chargeable by the act of his Ancestor c. because otherwise in such Case the Creditor was without remedy c. lands were chargeable in execution c. ãâã by a terââr not good 18 A man deviseth a rent for life out of a Mannor Co l. 6. 58 b. 4 in Bredimans Case and deviseth the Mannor for years the termor enters and payes the rent after the term the Devisée brings an Assise for the rent against the Terre-tenant And in this Case seisin by the hands of the Termor was adjudged no sufficient seisin whereupon to ground the Assise but the seisin ought to have béen given by the hands of the Terre-tenant viz. of one the tenant of the Frank-tenement c. Vide suprà Ru. 86. ex 21. It had béen otherwise if the termor for years had béen Lessée for life for then the seisin had béen given by the hands of the Terre-tenant viz. of one that had Frank-tenement as may be collected out of Bredimans Case ubi in margine viz. fol. 58. b. âârantee of a ââversion ââdition 19 If a man make a Lease for years upon condition Co. l. 8. 95. b. 3 in Matt. Mannings Case Co. l. 10. 48. b. 3 in Lampets ca. that if the Lessée doth not such an act that the Lease
for life and therefore by his general attornment according to the writ he is barred for ever to claime any priviledge but a bare Estate for life c. Attornment 8 If a reversion be granted for life the remainder in fée by déed Co. l. 2. 67. b. 4. in Tookers Ca. and the grantée for life dies attornment to him in remainder is void for it is not according to the grant otherwise it is if the grant were by fine c. Vide supra 6. R. 55. e. 69. Waiver in Court of Reâââd 9 At the Common Law Co. l. 3. 26. a. 3. in Butler and Bakers Case if lands be given to Baron and Feme in taile or in fée and the Baron die in this Case albeit the Feme before her entry reciting her Estate saith by parol in pais that she assents and agrées to the said Estate or words to that effect yet afterwards she may waive that Estate in a Court of Record So in M. 34 E. 1. Tittle Advowry 232. it was adjudged that if a man take a distresse for one thing yet when he comes into a Court of Record he may make Avowry for what thing he pleaseth Also in 13 R. 2. Joint-tenancy A Charter of feofment was made to four and seisin was delivered to thrée in name of all and the fourth comming and viewing the déed dis-agrées and saith by parol he will have nothing to do with the Land and it was adjudged that this disagréement by parol in pais shall not devest the frank-tenement out of him And Thorpe in 35 E. 3. Tittle Disclaimer saith that in such Case the tenancy remaines still until his dis-agréement thereunto in a Court of Record and therefore in such a Court he may dis-agrée and not otherwise c. ãâã compos âââis 10 The Law so much tendreth the debility and weaknesse of a non compos mentis that in many Cases the Acts which he doth in pais Co. l. 4. 124. a. 2. in Beverleys Case shall be avoided c. but matters of Record done by him shall not be avoided as if he levie a fine suffer a recovery acknowledge a Statute or recognisance c. such things as these shall not be avoided by any averment of non sanae memoriae either by his heires or executors c. âoods of one ãâã lawed saâed by a parââ upon Reââd 11 If a man be out-lawed for felony Co. l. 5 111. a. 2. Foxleyes Case albeit he was in prison or beyond Sea c. renders himselfe upon the exigent and upon his triall is found not guilty yet he shall forfeit all his goods and chattels and shall not have restitution c. for Knivet in 43 E. 3. 17. saith that the party shall not have restitution of his goods although the writ of exigent erronice emanavit so long as the award of exigent which is there called a judgement stands in force because the fore-said averments of imprisonment or being beyond Sea c. are but matters in fuit But as it is said in the same Booke if such an out-lawed person have a charter of pardon of an older date then that of the Exigent the goods are saved for that the cause of saving them appeares upon Record c. â Court of ââcord onely ââwer to imâââson 12 In some Action the Defendant shall be fined in one Court Co. l. 8. 60. b. z. in Beechers Case Co. lib. 8. 41. a. 3. in Griesleys Case lib. 8. 120. a. 1. in Doctor Bonhams Case and onely amercied in another Court and yet the offence shall be one and the same As in a writ of Reception if it be brought in the Common Pleas and judgement there given the Defendant shall be fined and imprisoned but if the writ be Vicontiel and before the Sheriffe in the County the Defendant is convict the judgement shall not be quod capiatur c. but in such Case he shall be onely amercied And albeit the writ viz. the Reception is of Record yet in as much as the Iudges in the Court viz. the Sutors are not Iudges of Record nor the Court a Court of Record they cannot impose a fine or commit any to prison Quia nulla Curia qui Recordum non habet potest imponere finem neque aliquem mandare carceri quia ista spectant tantummodo ad Curias de Recordo c. Co. Inst p. 1. 233. b. 4. 13 If a Lease for life be made to a Feme covert or an Infant Infant Feme covert Forfeiture Mortmain Recovery Wast and they by Charter of Feoffment Alien in Fée the breach of this Condition in Law is no absolute forfeiture of her Estate So it is also of a Condition in Law given by Statute which giveth an entry onely As if an Infant or Feme covert with their husband Alien by Charter of feofment in Mortmaine this is no barre to the Infant or Feme covert But if a recovery be had against an Infant or Feme covert in an Action of wast there they are bound and barred for ever because that is matter of record unto which the Law gives high respect and therefore it is to be observed that a condition in law by force of a Statute which giveth a recovery is in some Case more strong then a Condition in Law without a recovery For if Lessée for life make a lease for yeares and after enter into the land and make wast and the Lessor recover in an Action of wast he shall avoid the lease made before the wast done But if the Lessée for life make a lease for yeares and after enter upon him and make a feofment in fée this forfeiture shall not avoid the lease for yeares c. Co. ib. 356. 24 14 If a man sue a false and feigned Action against Tenant for life Recovery Discontinuance and recover the land against him by default so that he may have against the recoveror a Quod ei deforceat according to the Statute of West 2. cap. 4. In this case albeit the Action be false and feigned yet is a Recovery being a matter of Record so much respected in Law that it worketh a discontinuance so that the Lessor cannot have an Action of wast neither against the one nor the other for by the recovery the privity betwéen the Lessor and Lessée is destroyed and betwéen the Lessor and the recoverer there never was nor can be any privity and by the recovery all the reversion is divested out of the Lessor and vested in the recoveror But if Tenant for life make a feofment in fée upon Condition and wast is done and after the Lessée re-enters for the Condition broken in this Case the Lessor shall have an Action of wast And so if a Bishop make a lease for life or yeares and the Bishop die and the Lessée the See being void doth wast the Successor shall have an Action of wast
quando c. damna quicquid quod ipse defendere deber c. judgement shall be given against him âjâration 2 Albeit in 8 E. 2. Abjuration indefinitely is called a divorce betwéen the Husband and Wife yet every abjuration is not so Co. ib. 133. 23 for such abjuration as amounts to a divorce ought to be either by authority of Parliament or upon ordinary procéeding in Law as in the Case of Tho. of Weyland in 19 E. 1. Neverthelesse in that Case procéeding in Parliament or at Law are but in the nature of circumstance c. Co. ib. 137. b. 3 3 By the wisdome of our Ancients a great deale of solemnity was used in the manumission of Villains Manumission of Villein to the end the memory thereof might take the déeper impression in the mindes of the Assistants for which this was the old Rule Qui servum suum liberat in Ecclesia vel Mercato vel Comitatu vel Hundredo coram testibus palam faciat liberas ei vias portas conscribat apertes Lanceam Gladium vel quae liberorum arma in manibus ei ponat c. Co. ib. 143. b. 1 229. a. 3. Co. l. 5. 20. b. Stiles Case 4 A déed cannot be a déed indented A deed Indented unlesse it be actually indented For albeit the words of the déed be Haec indentura c. yet if it be not indented indéed it is no indenture but if the déed be indented albeit the words of the déed be not Haec indentura c. yet it is an indenture c. Co. ib. 152. a. 4 Co. l. 5. 112. b. 1. in Mallories Case 5 If a Lease for life be made Attornment necessary reserving a Rent upon Condition c. And the Lessor levies a fine of the reversion to a stranger In this Case albeit the Conusée is Grantée or Assignée of the Reversion and so seemes to have power given him of taking advantage of the Condition by force of the Statute of 32 H. 8. cap. 34. Neverthelesse without Attornment he shall not take advantage of the Condition For the makers of that Statute intended to have all necessary Ceremonies and incidents observed otherwise it might be mischievous to the Lessée c. Co. ibid. 216. Litt. § 349. 6 If Land be Granted to a man for two yeares upon Condition Livery that if he pay to the Grantor within the said two yeares 40 marks that thou he shall have Fée But the Grantor gives him no Livery In this Case albeit he pay the 40 Marks within the two yeares yet he shall not have Fée Because there wanted the Ceremony of Livery It had béen otherwise if Livery had béen made unto him c. Co. ib. 218. a. 3 7 Regularly when any man will take advantage of a Condition if he may enter the must enter and when he cannot enter Free-hold â inheritance â cannot be â vested withâ entry or thiâ he must make a claime And the reason is for that a frée-hold and inheritance shall not cease without entry or claime As if a man Grant an Advowson to a man and his heires upon Condition that if the Grantor c. pay 20 li. on such a day c. the State of the Grantée shall cease and be utterly void The Grantor payeth the money yet the State is not revested in the Grantor before a claime and that claime must be made at the Church And so it is likewise of a Reversion or remainder of a Rent Common or the like For there also must be a claime before the State be revested in the Grantor by force of the Condition and that claime must be made upon the Land A fortiori in Case of a feofment which passeth by Livery of seisin there must be a re-entry by force of the Condition before the State be void Co. ibid. 8 A man bargaineth and selleth Land by déed indented and enrolled with proviso that if the bargaine pay Idem c. that then the state shall cease and be void he payth the money the State is not revested in the Bargainer before re-entry And so it is if a bargaine and sale be made of a Reversion Remainder Advowson Rent Common c So it is likewise if Lands be devised to a man and to his heires upon Condition that if the devisée pay not 20 pounds at such a day that his Estate shall cease and be void the mony is not payd the State shall not be dested in the heire before an entry And so it is also of a Reversion Remainder Advowson Rent Common or the like 9 All Déeds and Writings ought to be made in Parchment Co. ib. 229. a. 3. or Paper Writings must âe in parchment or paper For if a writing be made upon a peice of wood or upon a piece of a linnen or in the barke of a trée or on a stone or the like c. and the same be sealed and delivered yet it is no déed for a déed must be written in Parchment or Paper Because a writing upon such materials is least subject to alteration and corruption ãâã Sâât 32 ãâ¦ã 10 It is agréed in 28 H. 8. fol. 28. that where the Statute of the 27 H. 8. c. 10. of Uses provides Co. lib. 5. 112. b. 3. in Mallories Case that the actual possession shall be adjudged according to the use c. yet all circumstances required by the Common Law are to observed viz. actual entry de facto âo free-hold âithout liveây or c. 11 Tenant in taile of an House entring into it saith thus Brother Co. lib. 6. 26 Sharpes Case I here demise unto you my house as long as I live paying 20 li. per annum to me you finding me bord horse c. this amounts not to a demise for life Because there wants livery or some Act which the Law adjudged livery or at least apt words which amount thereunto For delivery of a Charter is an Act but the Law doth not adjudge that livery because it hath another effect viz. to make the Charter his déed as it hath béen adjudged but delivery of a turfe twig or any thing else which comes from the land or of the ring of the doore is good livery So if he saith enter and enjoy it c. that is good although out of the land if within view for that is a delivery of the land it selfe 27 Ass 61. after delivery of the déed upon the land to say have and enjoy the land according to the deed this is good livery so 41 E. 3. 17. after delivery c. upon the land he saith enter God give you joy this is good 37 H. 8. Feofments Br. âo new lease âexe entry 12 Vpon a lease for years by Indenture the Lessée covenants and grants Dier 6. 28 H. 8. 1. c. that if he his
the Rent Ipsae etenim leges cupiunt ut jure regantur Ibid. 13. a. 1. 2 If the heir of the part of the Mother of land The heir of the Voucher shall sue execution whereunto a Warranty is annexed is impleaded and vouch and judgment is given against him and for him to recover in value and dieth before Execution the heir of the part of the Mother shall sue Execution to have in value against the Vouchée for the effect ought to pursue the Cause and the recompence shall ensue the losse Co. Inst p. 1. 21. b. 1. 3 If lands be given by these words The word Frank-marriage create inheritance in Frank-marriage according to the Rules of Law then do these words create an estate of inheritance in special tail For the consideration of Marriage is in that case more favoured in Law then any other consideration in respect of the mutual recompence Ibid. 47. b. 3. 4 The Lessor for yeares must be seised of the Lands demised at the time of the Lease made The Lessor must be seised for in every Contract there must be quid pro quo because contractus est quasi actus contra actum And therefore if the Lessor hath nothing in the Land the Lessée hath not quid pro quo nor any thing for which he should pay the rent And in that case he may also plead that the Lessor non demisit and give in evidence the other matter Ibid. 78. a. 2. 5 If the Father enfeoffe his eldest Sonne Purchase bâââ fide a voideth Wardship or any of his younger Sonnes or others for the making of his Wife a Ioynture advancement of his Daughters payment of his Debt of the like and die his heir within age the heir shall be in Ward for his body and a third part of the land by construction of the Statutes of 32 34 of H. 8. but if his eldest Sonne or any of his younger Sonnes purchase Lands of the Father which are holden by Knight-service bona fide for a reasonable value the heir shall neither be in Ward nor pay Primer seisin Leonard Loveys Case Co. l. 10. 83. Ibid. 89. a. 4. 6 If a Guardian or a Bâyliff receive the conts and profits of the Lands and be robbed without their default or negligence A Carrier shalâ answer Good robbed they shall be allowed them upon their Account but it is otherwise of a Carried H. Woodliefe Curties for he hath his Hiâe and thereby implicitely undertaketh the safe Delivery of the Goods delivered unto him and therefore shall answer the Value thereof if he be robbed of them Ibid. 99. b. 4. Pl. 306. b. Sheringtons Case 33 H. 6. 6. 39 H. 6. 29 7 The Mesne ought to acquit men of Religion Tenant in Frankalmeâ ought to be acquit which hold of him in Frankalindigne of all Services to the Lord paramount for it is their duty to make prayers for their Founder and his heires and in consideration of those prayers the Founder c. is bound to pay to the Chief Lord all Rents and Services issuing out of that Land 14 E. 3. Mesne 7. Ibid. 101. a. 2. 18 H. 6. 2. b. per Newton 9 H. 3. Voucher 277. 8 If the Lord grant the Services of his Tenant by Homage Ancestrel Homage Ancestrel mixtures a Warranty in lanâ the Tenant shall not be compelled in a per quae servitia to attorn unlesse the Conusée will grant in Court to warrant the Land unto him and if the Tenant vouch by force of this Warranty in Law it is a good Counter Plea that the Tenant or any one of his Ancestors recessit de servitio suo fecit servitium suum A. B. sine aliqua coactione de sua propria voluntate Ibid 102. a. 1. 9 If at a Sequatur sub suo particulo No Warraâ Cartae or voâcher after a recovery in value both Tenant and Vouchée make default and the Demandant hath judgment against the Tenant and after brings a Scire facias to have Execution the Tenant may have a Warrantia Cartae or if he were impleaded by a stranger he may vouch again but if he had judgment to recover in value he shall never have a Warrantia Cartae or vouch again for by this judgment to recover in value he hath benefit of the Warranty Ibid. 102. a. 3. 10 The Lord that hath received Homage of his Tenant being vouched is thereby barred to disclaime ââed eie for an ãâã c. 11 By the Ancient Law of England Ibid. 127. a. 3. if the Defendant in an appeale of Mayhem had béen found guilty the judgment against the Defendant had béen that he should lose the like member that the Plaintiffe had lost by his meanes as an hand for hand an eie for an eie c. 40 Ass 9. Mirror cap. 4. v. 5. Sect. 18. Britton cap. 25. fol. 144 145. Fleta lib. 1. cap. 38. The issue inâaile not barâed without âecompence 12 In Littletons Case Ibid. 173. a. 1. § 260. where the eldest Sister hath the intailed Lands and the youngest the fée-simple Lands if the youngest daughter alien part of the Land in fée-simple and dieth so as a full recompence for the Land entailed descends not to her Issue her Issue may wave the taking of any profits of the fée simple lands and enter into the Land entailed for the Issue in taile shall never be barred without a full recompence Part of the ââme no satiâfaction 13 Where the Condition is for the payment of 20 l. the Obligor or Feoffor cannot at the time appointed pay a lesser summe in satisfaction of the whole because it is apparent Ibid. 212. b. 4 Co. l. 5. 17. Pinnels Case that a lesser summe of money cannot be a satisfaction for a greater In Estate inâile charged âithout fine or ââcovery 14 It is commonly held Ibid. 143. b. 1 that Tenant in tail cannot alien or charge the Land in tailed without fine or recovery yet if a Disseisor make a gift in tail and the Donée in consideration of a release by the Disseisée of all his right to the Donée granteth a Rent-charge to the Disseisée and his heires proportionable to the value of his right this shall bind the Issue in tail albeit the Estate taile continue And this is in respect of the natural recompence â Benefice âharged withâââ the Paââ 15 If there be Parson Patron and Ordinary Ibid. 343. b. 4. and the Parson by the Ordinance and assent of the Ordinary grant an Annuity to another having quid pro quo in consideration thereof this shall bind the Successor of the Parson without consent of the Patron ânnanty my be anâexed to inâârporal ââângs 16 Regularly a Warranty is onely annexable to frée-holds or inheritances corporeal yet to preserve mutual recompence Ibid. 366. a. 4 it may also be annexed to
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 âvowson 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 dâath then he may perhaps come too late for the Villain may have granted ât 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 ãâã Cases yet an Infant may bind himselfe to pay for his necessary meate drink appâââ 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 ââne upon âândition reââsted 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 perilââs 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 inââe 11 If a man be seised of two Acres of land in two several Counties Co. ib. 153.
esse for the other part for if there be Lord and Tenant of 40 acres of Land by fealty and 20 s. Rent if the Tenant make a Gift in tail or a lease for life or years of partel thereof to the Lord in this Case the Rent shall not be appoâtioned 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 ãâã charge ãâã 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 âânt-charge âpationed 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 ãâã 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 âd ãâ¦ã 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
hominis and it is as true Fortior aequior est dispositio Legis quà m hominis ânt-tenants âenants in Common Coperceners âresentation âdvowson 19 A joint-tenant or Tenant in common shall not have a Quare Impedit for the advowson which they have in jointure or in common F.N. B. 34. v. in Case one of them present alone against his companion that so presents but if two Coperceners cannot agrée in presenting the eldest sister shall have the first presentation and so shall also he have that hath her Estate and if either of them be disturbed by the other Copercener either of them shall have a Quare Impedit against the other sister And Coperceners and those who have their Estates shall present as Coperceners ought to do viz. the eldest first and then the second after her the third and so the rest in order according to their ages and the diversity betwéen joint-tenants or tenants in common and Coperceners ariseth from this ground because they are in by grant which is the act of the party but these are originally in by act in law 20 If an Abbot make waste in the Lands which he hath in ward F.N.B. 60. m. and dies the Successor shall not be charged therewith because his death is the Act of God it is otherwise if he be deposed for then the Successor shall be chargable with it because that is the Act of the party ââd Mesne ãâã Tenant ârnment 21 If there be Lord Mesne and Tenant Co. Inst p. 1. 221. b. 4. Litt. §. 583. and the Lord grant by fine the services of his Tenant to another in fée here if the services of the Mesne be arreare the grantée shall not distraine the Tenant before attornment Howbeit if the grantée die without heire whereby the mesnalty escheats to the Lord Paramount in that Case if the services of the Mesnalty be arreare the Lord Paramount may distraine the Tenant without attornment because the grantée came to the mesnalty by the act of the party but the Lord Paramount comes to it by Act in Law ãâã entry in ãâã more adâtageous ãâã an entry ãâã Deed. 22 An actual entry into land is meerely the Act of the party Co. ib. 253. b. 4 and therefore is called an entry in déed and albeit a claime be also an Act of the party yet it is also mixt with force of Law and therefore it is called an Entry in Law and is not onely as forcible as an Entry in Déed but because it is as well an Act of Law as of the party it giveth the party a greater priviledge then an Entry in Déed doth for a continual claime of the Disseisée being an Entry in Law shall vest the possession and seisin in him for his advantage but never for his disadvantage and therefore if the Disseisée bring an Assise and hanging the Assise he make continual claime this shall not abate the Assise but he shall recover damages from the beginning but it is otherwise of an Entry in Déed âânce in ãâã 23 Vpon a Lease for yeares by indenture Dier 6. 28 H. 8. 1. c. the Lessée covenants and grants that if he his Executors or Assignes alien it shall be lawfull for the Lessor to re-enter and after he makes his Wife Executrix and dies the Feme takes a new husband who aliens In this Case some hold there is no breach of the Condition because the Baron is in by the Law and not Assignée of the Lessee as it is of Tenant by the Courtesie or Lord of a Villein but others hold the contrary ideo quaere Dier 45. 3. 31 H. 8. 24 A lease is made for term of yeares Devise of a Lease upon Condition that if the Lessée during his life assigne the term to any other without the Assent of the Lessor that then the Lessor may re-enter and the Lessée devised his term by his will to another without Assent c. And by Brooke and Hales this is a forfeiture because the Devisée shall be said to be in by the assignement that the Divisor made during his life but if the Executors had enjoyed the term that had béen no forfeiture because in that Case the Law makes the assignement Tamen quaere Co. Inst p. 1. 310. b. 3. 25 If a reversion of land be granted to an Alien by déed Attornment and before attornment the Alien is made denizen and then the attornment is made In this Case the King upon office found shall have the land for as to the Estate betwéen the parties it passeth by déed ab initio it is otherwise where land is granted to a mân and a woman and they intermarie and then attornment is had for which Vide suprà Pl. 1. Dier 60. 22 23 36 H. 8. 26 There is a diversity Seisure of a villein where the body of a man in execution is set at liberty by authority of Law and when without authority as by the voluntary escape in a Sheriffe or the like For the Law saves all rights as in Case of a Villein to whom the Kings presence is a Sanctuary where the Lord cannot seise him howbeit afterwards out of his presence he may because the Law gives the Villain that priviledge pro tempore but if the Lord himselfe enfranchise him by manumission in déed or in Law for one hower he is frée for ever in favorem libertatis because that is the Act of the Lord himselfe So if a man be taken in execution and be suffered to escape by the Sheriffe this is an absolute discharge of the debt and the Plaintiffe is to have his remedy against the Sheriffe by action of debt Arrest of a Member of Parliament But if a Member of Parliament be arrested by a Sheriffe upon an execution and be afterwards fréed by the priviledge which the law gives him that is no discharge of the debt but that when he ceaseth to be a Member he may be arrested again upon the same judgement c. Dier 68. 24. in Kidwelleys Case 4 5 E. 6. 27 Where demand of Rent is to be made by the law as when no place is assigned for the payment thereof Demand of Rent the law it selfe is the place there it is not sufficient for the party to come to the land ad petendum redditum but he ought to bring witnesses with him and in their presence ought to make an expresse demand of the Rent upon the land as to say here I am and do demand such a Rent or the like albeit none be there present to pay the Rent But when the Rent is by the agréement of the parties payable out of the land the Lessor is not bound to demand it but the lessée is to tender it at his peril Dier 140. Pl. 39. 3 4 P. M. 28 A thing or action personal being once suspended though it be but for an hower is
extinct and gone for ever A personal thing exiâ by husband when it is by the act and consent of the party himselfe who hath interest in it But when it is by the Act of Law it is otherwise as the Case is in 6 E. 4. where a man condemned in redisseisin was imprisoned for out-lawry of felony and after pardoned here the execution of the body was for the time that he was the Kings prisoner suspended but after pardon it was revived 116. It reputeth that a man will deal for their own best advantage ââânesse 1 Vpon this ground it is Co. Inst p. 1. 6. b. 4. that a party cannot be Witnesse in his own Cause for the Law presumeth he will speak for his own most advantage And therefore neither shall the party to an usurious Contract be admitted to be a Witnesse against the Vsurer for in effect he should be Testis in propria causa In Smiths Case 8 Jac. and should avoid his own Bonds and Assurances and discharge himself of the Money borrowed and albeit he commonly raise up an informer to exhibit the Information yet in rei veritate he is the party And herewith in effect agréeth Britton Brit. 134. that he that challengeth a right in the thing in demand cannot be a Witnesse for that he is a party in interest and will advantage himselfe as much as he can ââfant exââange 2 If an Infant exchange Lands Co. ib. 51. b. 3. and after his full age occupie the Lands taken in exchange the exchange is become perfect for the exchange at first was not void because it amounted to a Livery and also in respect of the recompence but voidable Tenant at sufferance 3 A Writ of Entry ad terminum qui praeteriit Co. ib. 57. b. 3. lieth against the Tenant at sufferance that holdeth over his term but this is rather by admission of the Demandant than for any estate of Frée-hold that is in him for in judgment of Law he hath but a bare Possession So if Tenant pur terme de auter vie continue in Possession after the decease of Cesty que vie or Tenant for years holdeth over his term in this Case the Lessor cannot have an action of Trespasse before Entry but he may have a Writ of Entry if he will thereby admit himself to have a Frée-hold And the Law suffers him so to do because the Law presumes that he will not so admit himself without some hope of advantage that may redound to himself thereby âââcage ãâã âeliefe 4 A Tenant holdeth of his Lord certaine Lands in Soccage to pay yearly a paire of gilt Spurres or five shillings in Money at the Feast of Easter in this Case the Rent is uncertaine Co. ib. 90. b. 4. and the Tenant may pay which of them he will at that Feast and may also pay which of them he will for Reliefe but if he pay it not when he ought Co. ib. 91. a. 4. then may the Lord also distreine for which he will And therefore in such Case if the heir be not presently that is as presently and as conveniently as he may all due circumstances considered after the death of his Ancestor ready upon the Land to pay Reliefe the Lord may distraine for which of them he will and if the Tenant tendred either of them according to the Law and none for the Lord was there ready to receive it yet the Lord may distraine for that which was tendred at his pleasure For in all such Cases the law supposeth that a man will deale for his own best advantage ãâã charge âââity 5 Vpon a Reservation of a Rent upon a Feoffment in fée by Déed intented the Feoffor shall not have a Writ of Annuity Co. ib. 144. â 2 because the the words of Reservation as reddeudo solvendo faciendo tenendo reservando c. are the words of the Feoffor and not of the Feoffée yet if afterwards the Feoffée accept of the Estate he is thereby bound and is subject to a Writ of Annuity Challenges 6 Vpon this ground also it is that all just Challenges Co. ib. 156. a. 157 c. both to the Array and to the Pols are allowed in Law for which sée the quotation in the margent Frank-marriââe âââchpot 7 Where Lands are are given in Frank-marriage Co. ib. 776. a. 4 c. Littl. §. 269 and other lands discend to the other Sister in Fée-simple if the Donées will not do the first act viz. put their Land in Hotchpot the Law presumes they are satisfied and therefore in such Case allowes them no part of the Fée-simple Land discended by Writ of partition or otherwise because non tenent insimula per indiviso Co. ib. 202. b. 2. 8 If Tenant in tail makes a Feoffment in fée upon Condition Discent Entry Remitter and dieth and the issue in tail within age doth enter for the Condition broken in this Case he shall be first in as Tenant in Fée-simple as heir to his father and consequently shall be instantly remitted but if the heir be of full age he shall not be remitted because he might have had his Formedon against the feoffée and the Entry for the Condition is his own Act. Co. ib. 208. b. 4. 9 When an Obligation or Feoffment in Fée is made upon Condition that the feoffor feoffée obligor Feoffment Obligation Condition Act. or a stranger shall do a Sole Act or Labour as to go to Rome Jerusalem c. In such or the like Cases the feoffor feoffée obligor or stranger have time during their lives to do it and cannot be hastened by request for in such Cases the Law gives them credit that they will take the most convenient time for the doing thereof Co. ib 288. b. 3. 10 If in a personal action the Defendant be Quinto exactus Utlawry Forfeiture â upon the Exigent and maketh default the judgment is Ideo utlagetur per Judicium Coronatorum or in London per Judicium Recordatoris And then upon the Return of the Exigent he is out-lawed Howbeit in this Case the Plaintiff recovers nothing but the King taketh the whole benefit thereof which is the forfeiture of all his Goods for the Law intends that the Defendant will rather appear and answer the Plaintiff c than to forfeit all his Goods and Chattels Debts and Duties to the King by his default and contumacy Co. ib. 303. b. 1. 11 The Plea of every man shall be construed strongly against him that pleadeth it Plea for every man is presumed to make the best of his own Case Co. l. 2. 35. b. 3. in Sir Rowland Heywards Case 12 Vpon this ground also it is Election that when two things are offered to be taken it is in the Election of him that hath interest or power in them to take which of them he pleaseth So
66. b. 4 in Sir Moyle Finches Case 7 There is a diversity betwixt brevia adversaria Diversity betwixt brevia adversaria ãâã brevia amiââ 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 câsent 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 ââmain 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 ãâã restraine ââful liââ 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. âeires ââged 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 ââe all ãâã all pasââ 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 ââde pretenââ 5 If A. be lawful owner of land and in possession Co. ib. 369. a. 3 and be afterwards disseised in this Case A.
Condition that he shall kill J. S. the bond is void So if a man make a feofment upon Condition that the Feoffée shall kill I. S. the Estate is absolute and the Condition void so as he who intends any unlawful Act is still by the Law crost in the designe or purpose he aimes at Dier 28. a 16. 31 H. 8. 7 Vice is so odious in the eie of the Law Bloud corrupt that it will not suffer any to inherit who derives his title through bloud tainted with any Capital offence As if a man hath issue two Sonnes and the eldest in the life of the Father is attainted for felony and dies living the Father and after the Father dies seised of the land in Fée this land shall discend to the younger Sonne as heire to his Father if the eldest Sonne hath no issue living but if he hath issue in life who by the Law should inherit the Land if it were not for the Attainder and albeit he hath committed no offence yet the land shall not discend to him nor yet to the younger Brother but shall escheate to the Lord of the Fée 140 Interest Reipublicae ne maleficia remaneant impunita ââfeit inââ no good ãâã 1 Where an Indictment is found insufficient Co. l. 4. 45. a. 1 in Vaux his Case the offender may be indicted again for in such Case Autre fois acquite or convict is no good plea because that plea is allowed upon that Maxime of the Common Law viz. that the life of a man shall not be put in jeopardy twice for one and the same offence Howbeit this is intended upon a lawfull acquital or Condition for otherwise his life was never put in jeopardy but when the Indictment or other procéeding against him are insufficient he may be re-indicted For the Law doth abhorre that great offences should passe un-punished according to these ancient Maximes of the Law and State Maleficia non debent remanere impunita impunitus continuum affectum tribuit delinquendo minatur innocentes qui parcit nocentibus Howbeit if upon an insufficient Indictment of felony a man hath had judgment quod suspendatur collum and so is attainted which is the judgment and end that the Law hath appointed for felony in this Case he shall not be again indicted and arraigned until that judgment be reversed by Error ãâã it goods ãâã 2 The Reason why bona waviata viz. Co l. 5. 109. a. 4 in Fauxleys Case such shelme goods as a felon in flying waives or leaves behind him are forfeit to the King and that the owner shall in such Case lose his property in them is because of the negligence and default in the owner for that he made not fresh suit to apprehend the felon for Interest Reipublicae ne maleficia remaneant impunita impunitas semper ad deteriora invitat And therefore the Law hath imposed this penalty upon the owner that if the felon by his industry and fresh suit be not taken by such default he shall lose all his goods which the felon so leaves behind him âââes taken intendââ 3 In many Cases Penal Statutes shall be taken by intendment Co. l. 11. 44. b. in Alexander Pollers Case and not according to the expresse words thereof especially when it is to remedy a mischiefe in advancement of Iustice and for the suppressim of Crimes and heinous offences of which sée many examples in the book at large quoted in the margent âption 4 In a writ of Reception F. N. B. 72. h. where after Replevin the party distraines again for that same thing the Sheriffe is comanded to apprehend the party so offending and so to chastise him by amerciament quod castigatio illa in casu consimili timorem aliis praebeat delinquendi ãâã breaââ 5 A man was put into the Stockes upon suspition of Felony Dier 99. a. 60. 1 Max. and another comes who lets him go at large this is felony at the Common Law de frangend prison albeit the party that escaped be not indicted for felony ââlt âââder 6 In Banco Reg. in the Case of one Tripcony the Iury to the Nisi prius gave the Plaintiffe but 40 l. damages for the cutting of his right hand Dier 105. a 4. 1 2 P.M. and they were increased by the Iustices to 100 l. because this was matter apparent to the Court and the offence and trespass therein was caried about with the person howbeit in the Case of Sir John Bonham against the Lo. Sturton for slander where the damages were 500 Marks the Iustices said they could not lessen them Dyer 211. 33. 4 Eliz. 7 By the better opinion albeit the Statutes of 27 H. 8. 4. 28. H. 8. 15. Admiral be penal and ordaine that Commissions to heare and determine piracies shall be awarded to the Admiral and others to be named by the Chancellor yet the Lord Keeper being no Chancellor may grant such Commissions and that for the necessity to punish such offences 141 It favoureth Justice and right Co. Inst p. 1. 33. a. 1. 1 In a writ of Dower brought against the heire tout temps prist is a good plea before demand to barre the woman of the meane values and damages because the heire holdeth by title Plea in dowâ and doth no wrong till a demand be made It is otherwise in a writ of Ayd Cosinage c. where the land and damages are to be recovered for there such a plea is not good because in that Case the Tenant of the land hath no title but holdeth the land by wrong Co. ib. 103. a. 4 b. 1. 2 If there be Lord and Tenant by Homage Ancestrel Homage ancestrel contiânued and the Tenant alien the land in Fée although it be but upon a Condition which is performed at the day yet is the tenure gone for ever because the privity and Estate being once discontinued it is for ever after extinct But if the land be recovered against the Tenant upon a faint title and the Tenant recover the same again in an Action of an higher nature there the Homage Ancestrel remaines for the right which is favoureth in Law was a sufficient meane for the continuance thereof so it is also if he had reversed it in a writ of Error Co. Inst p. 1. 143. a. 4. 3 Before the Statute of quia emptores terrarum if a man had made a feofment in Fée rendring Rent he might have distrained for the Rent arreare of Common Right and in Case he had made no reservation of Rent or service yet the Feoffée should then have held of the Feoffor by such services as the feoffor held over of the Lord paramount So as albeit the Feoffor were negligent and made no provision or reservation of Rent or service yet the Law it selfe so much regarded Equity and Iustice that it created a tenure where the party was
carelesse and reserved none Co. ib. 253. a. 4 4 Remedies for rights are alwayes favourably extended Rights favoârably extended and therefore the grantée of a Rent-charge and Rent-secke may demand them after they are behind at any time whether the Tenant be present or no and it is not necessary that the grantée should demand them at the very time when they become due It is otherwise of a Rent upon a Condition because that is penal and overthroweth the whole Estate and therefore the time of demand in that Case must be certain to the end the Lessée Donée or Feoffee may be there to pay the Rent for the redemption of the Estate Litt. §. 307. Co. ib. 194. b. 3 Litt. §. 308. 5 If a man be disseised Release to one joint-tenant and the Disseisor make feofment to two men in Fée and the Disseisée releaseth by his déed to one of the feoffées in this Case it shall enure to both the Feoffees because they have a Rightfull Estate by Law and come not in by wrong done to any So likewise if the Disseisor make a lease to one for life the remainder to another in Fée and the Disseisée release to the Tenant for life this shall enure to him in remainder and the Estate of the Disseisée is thereby quite extinct causa qua suprà Co. ib. 125. b. 3 6 The Statutes of 3 4 E. 6. cap. 4. and 13 El. cap. 6. Constat iâspeximus which ordain Constats and Inspeximus of letters Patents are to be favourably construed for advancement of the âemedy and right of the subject ââgment acââding to ãâã 7 Estopels Co. ib. 227. a. 4 which bind the Interest of the Land as the taking of a lease of a mans owne land by déed indented and the like being specially found by the Iury the Court ought to judge according to the special matter for albeit Estoples regularly must be pleaded and relied upon by an apt conclusion and the Iury is sworne ad veritatem dicendam yet when they find veritatem facti they pursue well their oath and the Court ought to judge according to Law and right So also may the Iury find a warranty being given in evidence though it be not pleaded because it bindeth the right except it be in a writ of Right when the Mise is joyned upon the méere right â 33 H. 8. ãâã 8 Albeit the Statute of 32 H. 8. 33. Co. ib. 238. a. 3 which gives entry to the Disseisée or his heires if the Disseisor were not in peaceable possession five yeares before the discent cast be a penal Statute yet it is taken favourably for the advancement of the ancient right For whether the disseisin be with force or without force it is within the Statute and albeit the Statute speaketh of him that at the time of the discent had title of Entry c. or his heires yet the Successors of bodies Politique or Corporal so you hold your selfe to a disseisin are within the remedy of this Statute but an Abator Intrudor or the Feoffée or Disseisor are not within the Statute nor he in reversion or remainder that had not right of Entry at the time of the discent cast âery discent ââi not toll âây 9 Albeit the Law giveth much favour to descents Litt. §. 394. Co. ib. 241. b. 2 yet when the title of a discent commenceth by wrong for the advancement of the ancient right the Law tieth a discent to strict termes and therefore when a discent is cast if immediately after there be not a person capable of it which may take it such discent cannot toll the entry of him that right hath but his Entry is congeable As if a Feme be seised of land in Fée wherein I have title of Entry and the Feme takes Baron and they have issue and after the Feme dies seised and after the Baron dies and the issue enters c. In this Case I may enter upon the possession of the issue because the issue comes not to the tenement immediately by discent after the death of his mother but by the death of his father For here was but a discent of a reversion at the time of the dying seised so as the Fée and franktenement together did not immediately after the decease of the Feme discend to the heire and if a dying seised taketh not away the Entry of him that right hath at the time of the discent it shall not do it by any matter ex post facto So if a Disseisor die without heire his Wife priviment enseint with an issue and after the issue is borne who entreth into the land In this Case he hath the land by discent and yet thereby the Entry of the Disseisée shall not be taken away because as Littleton saith the issue cometh not to the lands immediately by discent after the decease of his father Likewise if a Disseisor make a gift in taile the remainder in Fée and the Donée dieth without issue leaving his Wife priviment enseint with a sonne and he in the remainder enter and after the sonne is borne who entreth into land this discent shall not take away the entry of the Disseisée causa qua suprà âcent tols ãâã tâtry 10 B. Tenant in taile enfeoffeth A. in Fée Co. Inst p. 1. 246. a. 2. A. hath issue within age and dieth B. abateth and dieth seised the issue of A. being still within age this discent shall bind the infant for the issue in taile is remitted And the Law doth more respect an ancient right in this Case then the priviledge of an Infant that had but a defeasible Estate âcent upon âession no ãâã 11 No glorious pretext of an Act who though it be of Religion shall work a wrong to a stranger that hath right Co. ib. 248. b. 3 to barre him of his entry but it must be done by the Act of God viz. by death and therefore if the Disseisor have issue and enter into Religion such a descent shall not barre by the disseisée of his entry but he may well enter notwithstanding any such profession or pretext of Religion Litt. §. 417. Co. ib. 252. a. 4 12 If a man hath cause of entry into divers lands in several Townes in the same County if he enter in any parcel thereof in the name of all Entry how be done by such entry he shall obtaine a good possession and seisin of all The like also may be said of Livery of seisin and this is in favour of right and Iustice Litt. §. 472. Co. ib. 275. b. 4 13 If a man diseised by two and he releaseth to one of them he Release to Disseisors to whom the release is made shall hold out his Companion and by such release shall gaine the sole possession and Estate in the land but if a Disseisor enfeoffe two in Fée and the Disseisée
Assise for otherwise they should be without remedy and thus they must do Ne Curia Dom. regis c. And Lex non debet deficere conquerentibus in justicia exhibenda besides if they should not joyne they should have damnum injuriam and yet should have no remedy by Law which would be inconvenient for the Law will that in every case where a man is wronged and endamaged that he shall have remedy Aliquid conceditur ne injuria remanent impunita quod alias non concederetur Vide plus ibidem A Villaine 3. A man cannot be properly said to be dispossest of a Villain Co. ibid. 307. a. 1. either in grosse or regardant unlesse he be dispossest of the M. too for otherwise the Law would have given a remedy against the wrong doer as the Law doth in case of a Ward because the Lord may seise his Villain whersoever he finds him Tâe Lessee of a Copy-holder âây have an Ejectment 4. The Lessee of a Copiholder for a year may maintaine an Ejectione firme for in as much as hiâ terme is warranted by the Law Co. l. 4. 26. a. 4. in Melwitches case by force of the generall custome of the Realme it is reason that if he be ejected he should have an Ejectione firme for otherwise he should be without remedy And Interest reipublicae ne Curia c. ãâã West 2. â 28. 5. The Statute of Westm 2. ca. 28 provides Quod quotiescunque de cetero exercerit in Cancelleria Co. l. 7. 4. a. 2. in Bulwers case quod in uno casu reperitur breve in consimili casu cadente sub eodem jure simili indigente remedio non reperitur concordent Clerici in Cancelleria in brevi faciendo c. vel ad proprium Parliamentum de consensu Jurisperitorum fiat breve And then concludes with this Maxime in Law Quod Curia Domini Regis non debet deficere conquerentibus in justicia perquirenda Vpon which Statute and ground divers things are admitted in consimili casu Vide plus ibidem No error beââre full Judgment 6. The Defendant in account after judgment to account Co. l. 11. 36. a. 4. Medcalfes case and before judgment finall brings Error but it was not allowed so in an action brought against two one pleads to the issue and the other confesseth it and thereupon judgment passeth against him yet he shall not have Error till the plea be determined against the other Vide plus ibidem And the reason of these and the like cases is because if the Record should be removed before the whole matter be determined there would be a Failer of Right for the Iudges of the Kings Bench cannot proceed upon a matter which is not yet determined âeturne of the ââeriff 7. If a Sheriff returne upon a Replevin alias or pluries that he hath sent to the Bailiff of the Franchise who hath made him no return F. N. B. 68. f. g. or that he will not make deliverance of the Cattle in such case a Non omittas shall issue forth alias pluries to cause the Sheriff to enter the Liberty and to make returne or if the Bailiff make no return or will not make deliverance it seemes that by the Statute of West 1. ca. 27. upon such returnes the Sheriff may without Writ enter the Liberty and make deliverance of the Cattell in like manner as the Sheriff may do by the Statute of Marlebridge ca. 21. where a plea De vetit Nav. is in the County by plaint before the Sheriff and the Sheriff sends to the Bailiff of the Liberty to make deliverance and he doth nothing in this case also the Sheriff may without Writ enter the Liberty and do it Likewise if the Sheriff upon a Pluries returne that the Defendant hath conveyed the Cattell into another County or that he hath commanded the Bailiff of the Franchise who returnes that the Cattell are eloined into divers Liberties so that he cannot have the view of the cattell to make deliverance or that the Defendant hath eloyned the Cattell into divers places unknown or that the Defendant hath imparked them in the Rectory of the Church of O. that hee cannot make deliverance c. Vpon these returnes of the Sheriff the Plaintiff shall have a Writ of Withernam to take so many of the Defendants Cattell and detaine them in Pound untill the Defendant produce the Plaintiffes And all this is Ne Curia Domini Regis c. Pl. Co. 36. a. 3. in Plats case 8. The Statute of 1 R 2. 12. The Extent oâ 1. R. 2. c. 12 which gives an action of debt against the Warden of the Fleet for suffering a Prisoner being in upon Iudgement to go at large without Writ is extended by equity to all other Keepers of Prisons although it be a penall Stâtute and that is for the better execution of justice and that the Creditors debts may be the sooner discharged Co. Inst pars 1. 294. 4. 9. If there be not foure Knights in the County for the electing of the twelve chosen for the tryall of the meere right in a Writ of Right when the Mise is joyned upon the meere Right Writ of right the next to them in the County shall be taken Ne Curia Regis c. Co. l 7. 4. a. 4 in Bulwers case 10. If there be Lord and Tenant Two Writs one Count. and the Tenancy extends into two Counties in this case if the rents and services are arreare the Lord shall have severall Writs of the Customes and Services for each County a Writ and shall have them returneable at one day in the Bench but he shall have but one Count upon them as his case is Quia aliter Curia Domini Regis deficeret conquirentibus in justitia proquirenda F. N. B. 26. h. 11. Vpon a Rescous returned by the Sheriff Rescous and thereupon an Attachment awarded against the party in this case he shall not appear by Attorney but in person and shall immediately upon his appearance be committed to the Fleet Nam expedit reipublice c. Litt. S. 438. Co. Inst pars 1. 260. a. 3. 12. Alb it the Law in divers respects favoureth a Prisoner Pâocâedings against a Prisoner so as a Recovery then had against him by default shall be reversed by Error a descent then cast against him shall not annoy him yet it will not priviledge him from suits or Outlawries for if the Tenant or Defendant be in Prison hee shall upon motion by order of the Court be brought to the Barr and either answer according to Law or else the same being recorded the Law shall proceed against him and he shall take no advantage of his imprisonment Dyer 1. 5. c. p. 4 H. 8. 13. A Writ of error was brought by the feoffee of the Conusor of a Statute Error brought by a stranger because
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 âhe 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 âay 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
and the title of the Tenant at will is of little or no consideration in Law and also vanisheth because derived from A. who had no interest because granted in futuro and therefore void yet both of them are estopt to say Quod partes finis nihil habuerunt And of such estoppels which are by matter of Record and trench to the wrong and disherision of those in Remainder or Reversion they shall take advantage albeit they are not parties thereunto as of an Ayde prier of a stranger or by acceptance of a Fine Sur conusans de droit come ceo c. albeit the Reversioner or Remainder be not partie to the Record yet he is privy in estate to take advantage of a Forfeiture by any matter of Record done to his disherison Co. l. 5. 13. b. in the Countess of Shrewsburies case Dyer 122. b. 15. Tenant at will is not chargeable with permissive waste Tenant at will chargeable with voluntary waste as negligently suffering the house to be burnt or the like but if Tenant at will commit voluntary waste viz. in distroying the houses felling the wood or the like in such case a generall Action of Trespasse lyeth against him Vide Litt. fol. 15. for when Tenant at will takes upon him to do unlawfull Acts and such as none may do but the owner of the Land they amount to a determination of the will and of his possession and the Lessor in such case shall have a generall Action of Trespasse without any Entry 15. E. 4. 26. So if the Bailee of goods as a horse c. kill them the Bailor shall have a generall Action of Trespass for by the killing the privity is determined And in some cases when confidence is put in the party if any wrong be done an Action upon the Case may also lye for negligence albeit the Defendant come to the Possession by the Act of the Plaintiff as where a man delivers a Horse to another to be safely kept 12 E. 4. 13. and the Defendant equum illum tam negligenter custodirit quid ob defectum bonae custodiae Interijt here an Action upon the case will lye So it is also against a Shepheard that keepes any Sheep so negligently that some of them are thereby drowned or otherwise destroyed Co. l. 5. 14. b. 2. in the cases of Ecclesiasticall persons 16. Regularly the King shall not be bound by an Act of Parliament Statutes to present fraud bind the King unlesse he be therein particularly named and yet all Statutes which are made to suppress wrong and to take away fraud shall bind the King albeit he be not named in them by express words for Religion Justice and Truth are the sure supporters of the Diadems of Kings And therefore it is agreed in 35 H. 6. 60. that the King shall be bound by the Statute of West 2. cap. 5. which makes provision against tortious usurpations although the King be not named in the Act So in the Lord Barkleys case reported by Master Plowden if a gift in tail be made to the King he shall not alien to defraud him in the Reversion or his Issues but is bound by the Statute of West 2. de donis conditionalibus Co. l. 5. 27. b. 2. in Russels case 17. An Infant Executor brings an Action of Trover and Conversion for a Chest with divers summes of money and Iuels in it A release of an Infant Executor the Defendant pleads a release of the Plaintiff In this case albeit a release by him upon payment of money or delivery of a Legacy and all Acts in pursuance of his office of Executor are strong and good yet a release in this case is adjudged not valid to bind him because first it would amount to a devastavit and then the infant should be chargeable to answer it of his own goods and secondly it would be a wrong which an infant by his release can never do Restraint by condition if there be a tort 18. If a man make a gift in tail Co. l. 6. 41. b. 1. in Sir Anthony Mildmays cases Co. Inst pars 1. 223. b. 4. upon condition that he shall not alien this condition to some intent is good and to other some void for if he make a Feoffment in fee or any other estate whereby the Reversion is discontinued tortiously the Donor shall enter for the condition broken for every act that is prohibited by Law or maketh a tort a man may prohibit by condition Vide 10 H. 7. 11. Howbeit if in such case the Donee suffer a common Recovery the condition cannot by the Law extend to it because that is lawfull whereas the other is tortious and against Law So if Feoffment be made to Baron and Feme in fee upon condition that they shall not alien in this case they are not thereby restrained to alien by levying a Fine both of them together because that is lawfull and incident to their estate but they cannot alien by Deed because that is tortious and against Law likewise if a man enfeoff an Infant in fee upon condition that he shall not alien this shall not restraine him to alien at his full age for that were repugnant to the liberty that the Law gives in case of Fee-simple according to Litt. fo 84. a. Howbeit such a condition shall restraine him from aliening during his non-age for that is tortious and against Law and thereupon the Feoffor shall enter c. Co. l 6. 70. a. 1. in Sir Moyle Finches case Right cannot incorporate with wrong 19. There is such an extreame enmity betwixt an estate gained by wrong and the ancient right that the right cannot possibly incorporate it selfe with an estate gained by wrong but it will rather suffer extinguishment then passe with it And therefore if the Donee be disseised and the Donor disseise the Disseisor and make Feoffment in fee and the Donee make regresse the Donor shall not have the Reversion but the Disseisor for there is a diversity betwixt an estate and a right as where the Reversioner disseiseth the Donee or Lessee for life and then makes Feoffment in fee upon regresse of the Donee or Lessee the Reversion is left in the Feoffee and this is by force of the Feoffment but where the Donee or Lessee is disseised here the Reversioner hath but a right which he cannot transfer to another and therefore when he disseiseth the Disseisor and makes Feoffment this passeth the estate which he gained by Disseisin and extinguisheth his ancient right which he could not transfer to another and then the first Disseisor hath the first possession and a better right then the Feoffee of the Reversioner because he comes in under him who disseised the first Disseisor and hereby the ancient right is extinct for the Reversioner cannot have it because that would be repugnant to his own grant neither can the Feoffee have it because a right cannot be
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 âarranty 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
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 ââpertained 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
of a clause in the Roll which were expressed in the Writ and Returne Hob. 128. Pie and Coke 82. Two Informations exhibited the same day against the same party for one and the same offence Iudgement shall be given for neither for the uncertainty Vide Hob. ibid. for an Inrolment of a Deed 129. Wilton for an Amerciament in a Leet 163. Impersonalitas non concludit nec ligat Co. Inst 1. 352. b. 1. Pl. Co. 398. a. 1. 1. An Estoppell shall not be spoken impersonally as to say ut dicitur An Estoppell or the like but it ought to be a precise affirmation of that which maketh the Estoppell neither yet doth a recitall conclude any thing because it is no direct affirmation The Earle of Leycesters case in Plowd 164. Generale nihil certi implicat Generall words 1. Co. Inst 1. 33. a. 3. Dodingtons case If the King or a common person grant omnia illa messuagia in tenura l. B. scituate in W. whereas in truth they lye in D. In this case because the grant is generall and is restrained to a certaine Towne the Patentee or Grantee shall not have any Lands out of that Towne unto which the generalty of the Grant refers Slander 2. If one saith to another that he is perjured Co. l. 4. 15. a 4. Stanhop and Bilths case or that he hath forsworn himselfe in such a Court such words of slander are actionable for by these words it appeares that he hath forsworne himselfe in a judiciall proceeding but if one say to another that he hath a Mannor and hath gotten it by swearing and forswearing these words will beare no Action because they are too generall and words which shall charge any with an Action in which damages shall be recovered ought to have convenient certainty So if one call another Villain Rogue Varlet or the like or tels him that he is forsworn such words are not actionable because they are accounted words of heate and passion and benignior sententia in verbis generalibus seu dubijs est praeferenda for Actions of slander shall not be maintained by any strained construction or argument because they are more frequent now-a-dayes then in times past Schisme 3. Co. l. 5. 58. a. 4. Spâcots case It is not a sufficient allegation for the Bishop who refuseth to present to a benefice to say that the Presentee is a Schismatick in generall but he ought to accuse him of some Schisme or heresie in certaine to the end the Court may consult with Divines to know whether if be Schisme or no and thereupon make Iudgement whether the originall cause of refusall be just or no. Arrests 4. When the Sheriff Bayliffs or Serjeants arrest one C. l. 6. 54. a. 4. The Countess of Rutlands case it is not sufficient for them to say in generall words I arrest you but they ought upon the arrest to shew at whose Suit out of what Court for what cause they do it and when the Processe is returnable to the end that if it be upon an Execution he may pay it and free his person from Imprisonment and if upon a meane Processe either to agree with the party or to put in bail according to Law Errors 5. In Assignment of Errors a generall Assignment is not good F. N. B. 20. h. as to say in omnibus erratum est for that expresseth no certainty but the Assignment ought to be speciall and certaine as to say in hoc erratum est c. and to shew the certainty of the things and againe to say in hoc erratum est and to shew another thing sic de singulis in which he will assigne Errors Arbitrement 6. The submission to an award betwixt A. and B. was generall Co. l. 8 98. a. 2. Baspoles case viz. of all Actions Demands c. And the Award was that A. should pay B. twenty pounds And in this case it was objected that it did not appeare that the matter of the Arbitrement was the matter onely that was betwixt them because the submission was generall of all Actions Demands c. And therefore if the Arbitrement were not made of all the matters in controversie the award was void Howbeit the award was adjudged good because when the submission is generall of all Actions Demands c. Generale nihil certi Implicat and therefore it stands well with the generalty of the words that there was but one cause depending in controversie betwixt them 165. Dolosus versatur in generalibus Co. l. 3. 80. b. 4. Twines case 1. P. being indebted to T. in foure hundred pounds A fraudulent Deed. and to C. in two hundred pounds C. brings an Action of debt P. possessed of goods to the value of three hundred pounds makes a gift to T. in part of payment by the name of all his Goods and Chattells but continues the Pessession and imployes them to his own use to prevent the execution of a Fieri facias at the Suit of C. Here one of the badges of Fraud alleadged in that Grant was for that it was generall viz. of all his Goods c. Co. l. 5. 57. b. 4. Specots case 2. Schismatiquâ It is not a sufficient allegation for a Bishop upon refusall of a Clerk to say in generall that he is a Schismatique Heritique or the like but he ought to accuse him of some crime or Error in particular because if such generall allegation shall be admitted Bishops at this day might at their pleasure deprive all Patrons of their Presentations Vide 164. 3. for Dolosus versatur c. 166. Variance Co. Inst 1. 131. a. 4. 1. A materiall Variance between a Protection Protection and the Record doth avoid it Co. ibid. 53. a. 3. 183. a. 1. 2. If the Tenant do or suffer waste to be done in Houses Waste yet if he repaire them before any Action brought there lyeth no Action of Waste against him Howbeit he cannot in such case plead Non wast fait for by reason of the Variance between the Evidence and such a Plea the Issue wil be found against him but he must plead the speciall matter according to the truth of his case Co. ibid. 282. b. 4. 3. In Battery Not guilty is a good Issue Battery where the Defendant committed no Battery at all but regularly at the common Law if the Defendant hath cause of Iustification or excuse then can he not plead not guilty for then upon the Evidence it shall be found against him because by such a Plea he confesseth the Battery and upon the Issue cannot justifie it but he must plead the speciall matter and confesse and justifie the Battery for otherwise the Variance of the Evidence from his Plea will cause the Iury to find him guilty The like Law is in many other cases and therefore it is a learning necessary to be
known because the losse of many causes dependeth thereupon As in Battery if the Defendant can justifie the same to be done of the Plaintiffs own assault he must plead it specially and must not plead the generall Issue Co. ibid. 4. In Trespasse of breaking his Close Trespasse upon not guilty he cannot give in Evidence that the Beasts came thorough the Plaintiffs Fence which he ought to keep nor upon the generall Issue justifie by reason of a Rent-charge Common or the like Co. ibid. 283. a. 1. 5. In Detinue the Defendant pleadeth non detinet Detinue in this case he cannot give in Evidence that the goods were pawned to him for money and that it is not paid but he ought to plead it Howbeit he may give in Evidence a gift from the Plaintiff for that proveth he detaineth not the Plaintiffs goods Co. ibid. 6. In Waste upon the Plea non fecit vastum Waste he may give in Evidence any thing that proveth it no Waste as by tempest lightning enemies or the like but he cannot give in Evidence justifiable Waste as to repaire the House or the like for that will cause a Variance between the Evidence and the Issue Co. ibid. l. 5. 119. Whelpdales case 7. If two men be bound in a Bond joyntly and the one is sued alone Joynt Obligees he may plead this matter in Abatement of the Writ but he cannot plead non est factum for it is his Deed though it be not his sole Deed See Whelpdales case where a man may safely plead non est factum where not and former books that treat of that matter well reconciled Co. Inst 1. 303. b. 4. See also more of this matter Co. Inst ubi supra c. And here note that in matter of pleading to prevent variance each party must be very circumspect in the ordering thereof least his Replication depart from his Count or his Rejoynder from his Bar Et sic de cetaeris Likewise what is departure in pleading and what not See Co. Inst 1. 304. per totam paginam pl. Co. 105. b. Variance inter Writ and Count. 8. Co. l. 5. 37. a. 4. Bishops case Co. l. 8. 163. a Blackamores case In an Action upon the case Variance was found betwixt the Writ and the Count in the Defendants name for in the Count he was named George and in the Writ Christopher and after Iudgement for the Plaintiff in the Common Place upon a Writ of Error in the K. B. the Iudgement was reversed by reason of that variance for the Statute of 18 Eliz. 14. gives remedy where there is no Originall Writ but not where there is a Writ and a materiall variance betwixt the Writ and Count c. Variance inter Originall and Judgement 9. There ought not to be any variance betwixt the Originall Writ Co. l. 9. 74. a. 1. Doctor Husseyes case and the Iudgement given thereupon but the Iudgement ought to be conformable to the Originall because it is grounded thereupon And therefore in Ravishment of Ward if the Action be grounded upon the Statute of Westm 2. 35. according to the forme of the Writ there prescribed the Plaintiff cannot have Iudgement at the Common Law but the Iudgement ought to be conformable and pursuant to the Originall Writ which is the Foundation and ground of the Iudgement Vide plus ubi supra Variance of names 10. The Dean and Cannons of Windsor Co. l. 10. 124. b. 2. Linne Regis case Winâates case 29. 30. Eliz. Hob. 124. were incorporate by the Statute of 22 E. 4. by this name The Dean and Cannons of the Kings free Chappell c. And in the Raigne of P. and M. they made a Lease of certain Lands by this name The Dean and Cannons of the King and Queens free Chappell c. And in an Ejectione firmae brought by Wingate against Hall M. 29. and 30. Eliz. the Lease for that variance was adjudged void The like 11. Merton Colledge in Oxford Co. ibid. 125 a. 2. was incorporate by Act of Parliament anno 1. M. Per nomen Guardiani Scholarium Domus sive Collegii Scholarium de Merton c. And they made a Lease per nomen domus sive Collegii de Merton omitting Scholarium Merton Colledge case in B. R. And in an Ejectione firmae H. 30. Eliz. This omission was agreed to be a variance in substance to quash the Lease for the sayd Act hath Baptized the Colledge by the name of the Colledge of the Schollars of Merton and they made the lease by the name of the Colledge of Merton himselfe who in truth was the Founder Aud quer 12. In an Audita querela F. N. B. 104. 5. variance betwixt the Writ and the Record shall cause the Writ to abate Variance inter brief and ââânt 13. In Debt upon the Statute of 32 H. 8. 9. Pl. Co. 79 b. 4. Partridges case made against buying pretenced Titles c. That Statute was recited in the Count to commence the 28 of Aprill anno 32 H. 8. whereas it did begin the 28 of Aprill anno 31 H. 8. and was continued by prorogations untill 32 H. 8. and for that variance the Count was adjudged defective The like 14. In 20 H. 6. A man brings a Writ of Forger of false Weights Pl. ibid. 84. b. 3. and the Writ was Diversa facta munimenta c. and he counts but of Deed only and Per totam curiam for that variance the Writ shall abate Writ and Count. 15. In a Writ De consuetudinibus servitiis if the Demandant say F. N B. 15 1. 7 De reddibus arreragiis c. These words prove that the Demandant himselfe was seised of the Services and then if he count in such a Writ of the Seisin of his Ancestor and not of his own Seisin for that variance the Writ shall abate Dyer 150. 85. 3 4. P.M. 16. The Corporation of Eaton Colledge was erected by H. 6. A void lease Per nomen praepositi Collegii Regalis Collegij beatae Mariae de Eaton c. And in the time of E. 6. a Lease was made by Sir Thomas Smith and the Fellowes Per nomen Praepositi sociorum Collegii Regalis de Eaton and adjudged void for the variance Dyer 191. 22. 2 3 Eliz. 17. The relict of a Copyholder pleaded a Custome Custome to have the Copyhold during her life after her husbands death and upon the evidence the custome appeared to be only Durante viduitate and thereupon the Defendant demurring to the Evidence Iudgement was given against her Dyer 219. 11. 5. Eliz. 18. A man declares for the debt of 20 l. upon the sale of Wood Debt and gives in evidence but for twenty Markes it shall be found for the Defendant as if there had been variance in the things
the defendant in the writ of error F.N.B. 37. f. g. 5 In a Quare impedit or darrein presentment if the plaintif suspect Ne admittas that the Bishop hanging the plea will admit the defendants Clerk the Law gives the plaintif a writ of Ne admittas within the six moneths to inhibit the Bishop so to innovate to his prejudice hanging the plea The words of the writ are these Prohibemus vobis ne admittatis personam ad ecclesiam de B. quae vacat ut dicitur de cujus advocatione contentio mota est in Curia nostra inter A. B. donec discussum fuerit in eadem Curia ad quem eorum pertineat ejusdem ecclesiae Advocatio F. N. B. 43. 1. 6 If a man sue a Quare Impedit and deliver it upon record Prohibition as he may and after the defendant or his clerk sues a Citation against the presentee of the plaintif In this case the plaintif in the Quare Impedit shall have a prohibition in the Common Place before the return of the Quare Impedit because it appears upon record that such a Quare Impedit is depending F.N.B. 48. o. 7 If a man hath a Quare impedit Quare incumbravit and he sue a Ne admittas to the Bishop and after the Bishop encumbers the Church within the six moneths with his own Chaplein or with the Chaplein of the defendant here the plaintif shall have a writ of Quare incumbravit to prevent such disturbance hanging the sute in the Quare Impedit F. N. B. 71. e. f. m. 8 If a man distrain for rent or service Recaption and after hanging the plea distrains again for the same rent or service In such case he that is so distrained shall have a writ of Recaption and shall recover his damages for the second distress so taken and he that distrained shall make fine for the wrong he hath done albeit the first distress was lawfully made and the rent is still in arrear 182 Infiniteness and multiplicity of sutes Co. Inst part 1. 56. a. 2. Co. l. 5. 73. a. 3. in Williams case 1 There is a diversity between a private way Publique nusance which serves for a private mans use or occasion and a publique way which is a Common passage for if a man be interrupted in a private way he shall have an action upon his case and recover damages according to his prejudice But if the way be a Common way and any man be disturbed to go that way or if a ditch be made overthwart the way so as a man cannot pass yet he shall not have an action upon his case and this the Law hath provided for avoiding multiplicity of sutes for if any one man might have an action all men might have the like But the Law for this common nusance hath provided an apt remedy and that is by presentment in the Léet or in the Turn unless any man have a particular damage as if he and his horse fall into the ditch whereby he receiveth hurt and loss there for this special damage which is not common to others he shall have an action upon the case And all this was resolved in the Kings Bench 27 H. 8. 27. And in that case it was said that it had béen adjudged in that Court betwéen Westbury and Powell that where the Inhabitants of Southwark had by custom a watering place for their cattel which was stopped by Powell that in that case any Inhabitant of Southwark might have an action for otherwise they should be without remedy because such a nusance is not presentable in the Leet or Turn Plea 2 In an action against two if one of them plead to the writ Co. Inst pars 1. 125. b. 3. and the other to the action the plea to the writ shall be first tried for if that be found all the whole writ shall abate and make an end of the business So likewise in a Personal action against two defendants if one defendant pleads that which extendeth only to himself and the other plead a plea which goeth to the whole this last plea shall be first tried and if that be found for the defendant that pleaded it that shall discharge both and the particular plea of the other defendant shall not be tried for example if one of the defendants in trespass plead a release to himself which in Law extends to both and the other pleads not guilty which extends but to him that pleads the plea which goeth to the whole and dischargeth both shall be first tried for if that be found it maketh an end of the sute and the plea of the other defendant shall not be tried Howbeit the Law is otherwise in Real action for which vide ubi supra Descent a full entry 3 If a recovery be had by A. against B. and before execution B. die seised this descent shall not take away the entry of the Recoveror Co. ibid. 237. b. 4. and so it is also in case of a fine for if that were admitted there would be no end of sute but a new one would be occasioned So likewise if a recovery be had against tenant for life where the remainder is over in fee tenant for life dieth he in the remainder entreth before execution and dieth seised here also the entry of the Recoveror is lawfull not only because he in the remainder is privy in estate but likewise for that otherwise it would occasion a new sute Howbeit the Law is otherwise of an Advowson because at the Common Law every presentation to a Church did put the rightfull Patron out of possession and did put him to his writ of right whether the presentation were by title or without Things in action 4 The Common Law for avoiding of Maintenance Co. ibid. 214. a. 3. suppression of right and stirring of sutes at Law hath provided that nothing in action entry or re-entry shall be granted over because under colour thereof pretended titles might be granted to great men whereby right might be trodden down and the weak oppressed which the Common Law abhorrs as also that men should grant any thing before they be in possession thereof which might occasion sutes and troubles Divine service 5 A man that by prescription hath had Divine service celebrated Co. l. 5. 73. Williams case the Sacraments administred upon every Sunday and Holiday at his Chapel within the Manor of D. for his own family upon failer thereof may have an action upon the case against the Chaplein that neglects to perform it because such a prescription will be intended to commence by some grant But when the Chapel is not a private Chapel for him and his family only but publique and common to all his tenants of the said Manor which may be many In such case no action of the case lyeth for the Lord for then every tenant may also have an
for the avoiding of an Inconvenience viz. that the feoffee should do no manner of service and consequently that the land should be holden of no man which would be inconvenient for that all land is holden of one or other and mediately or immediately of the King because they did originally come from the Crown Vide 148. 35. Grand Serjancy 5 Regulary Co. Inst part 1. 107. a. b. tenant by Grand Serjancy must perform that service in proper person and shall not make a deputy without the Kings license yet at the Coronation of King R. 2. Iohn Wilshire a Citizen of London who held certain lands in Heydon in the County of Essex of the King by Grand Serjancy viz. by holding a Towell when the King should wash his hands before dinner the day of his Coronation c. upon his petition exhibited to the High Steward of England in his Court was admitted to make a deputy to perform it because it was inconvenient for him being a Citizen to execute so high an office himself And therefore he deputed Edmond Earl of Cambridge to perform the service by holding the towell that day to the King So at the same Coronation William Furnival who held the Manor of Farnham in Com. Buck. by Grand Serjancy viz. to find the King a glove for his right hand and to support the Kings right hand the day of his Coronation while he held in his hand the Verge Royal could not have executed that place in person but by some honourable deputy had not the King that day made him a Knight and by that means made him also capable of performing that office himself Also Anne the wife of Sir Iohn Hastings Earl of Pembroke who held the Manor of Ashley in Norfolk of the King by Grand Serjancy viz. to perform the office of the Naperie at his Coronation was adjudged to make a deputy because a woman could not do it in person and thereupon she deputed Sir Thomas Blunt Knight who performed the service in her right c. Co. ibid. 117. a. 1. 6 It is a Rule in Law Lord and Villein that what the Villein hath is the Lords upon seisure or claim yet if the Villein purchase a Common sans number the Lord shall not have it for the Lord may surcharge it which would be a prejudice to the terre-tenant there is the same law also of a Corodie uncertain granted to a Villein or such like inheritances c. Co. ibid. 128. a. 4. 7 In any sute Outlawry is a good exception in disability of the person yet in a writ of Error to reverse an Outlawry Outlawry Outlawry in that sute or at any strangers sute shall not disable the plaintif because if he in that action should be disabled if he were Outlawed at several mens sutes he should never reverse any of them which would be inconvenient So likewise in an attaint Outlawry in the plaintif cannot be pleaded in disability of the person Co. ibid. 130. b. 1. 8 A protection cannot be cast for the demandant or plaintif Protection because the tenant or defendant cannot sue a re-summons or a re-attachment but the demandant or plaintif that sued out the summons or attachtachment c. must also sue forth the re-summons or re-attachment Co. ibid. 131. a. 1. 9 In a writ of Dower unde nihil habet no protection is allowable Protection because the demandant hath nothing to live upon otherwise it is in a writ or right of dower Likewise in a Quare Impedit and assise of Darrein presentment a Protection lyeth not for the eminent danger of the laps neither lyeth a protection in an Assise of Novel disseisin because it is festinum remedium to restore the disseisee to his freehold whereof he is wrongfully and without judgement disseised It lieth not in a Quare non admisit because it is grounded upon the Quare impedit nor in a Certificat upon an Assise for the like reason et sic de fimilibus yet regularly and in most sutes Protections are allowable An Infant was vouched and at the Pluries venire facias a protection was cast for the Infant but disallowed because his age must be adjudged by the Inspection of the Court. Co. ibid. 134. a. 1. 10 If an Executor or Administrator sue an action Excommunication Outlawry in the plaintif shall not disable him because the sute is in auter droit viz. in the right of the testator and not in his own right but if an executor or administrator be excommunicate he may be disabled albeit he sue in auter droit because they who converse with a person excommunicate are excommunicate also Littl. §. 202. Co. ibid. 136. b. 3. 11 The Law giveth power to the Lord to seise his Villein where he finds him yet if a Villein enter into Religion and be profest Villein the Lord cannot take him out of his Cloister because then he could not live as a dead person nor according to his Religion which were inconvenient Littl. §. 219 Co. ibid. 145. a. 1. 12 Vpon the grant of a rent-charge the grantee may make his election either to recover it by writ of Annuity or by distress Annuity for the law grants both to him yet when he hath once made his election and fixed upon one way he shall not make use of the other for then he should recover one thing twice which would be a double charge to the grantor Replevin 13 The words of the Statute of Marlbridge Co. ibid. 145 b. 3. cap. 21. for Replevins are Quod vicecomes post querimoniam inde sibi factam ea sine impedimento vel contradictione ejus qui dicta averia ceperit deliberare possit c. By which word querimonia it may séem that by the Statute the plaint ought first to be entred in the County Court before the Sherif can grant a Replevin Howbeit the Sherif may take a plaint upon the said Act out of the County Court and make Replevin presently for it would be very inconvenient for the Owner to forbear his Cattel till the County day Replevin 14 If a man by his déed grant a rent with clause of distress Co. ibid. 145. b. 3. and grant further that he shall kéep the goods distrained against gages and pledges until the rent be paid yet shall the Sherif replevy the goods distrained for it is against the nature of such a distress to be irreplevisable and by such an Invention the current of Replevins would be overthrown to the hinderance of the Commonwealth And therefore in 31 E. 3. Gage deliv 5. it was disallowed by the whole Court and awarded that the defendant should gage deliverance or go to prison Grant of a rent 15 If there be Lord and tenant by fealty and certain rent Co. ibid. 150. b. 1. and the Lord by deed grant the rent in fee saving the fealty and grant
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
cases agitur civiliter and not criminaliter and verba accipienda sunt in mitiori sensu Also the Innuendo will not serve when the words themselves are not slanderous Co. l. 6. 6. a. Sir Iohn Molyns case 5 E. 3. is Lord the Abbot of Westm Mesne Tenure and C. tenant of the Manor of D. the tenant is attainted of treason and office thereof found E. 3. grants the Manor to Sir Iohn Molyns and his heirs Tenendum de nobis haeredibus successoribus nostris et aliis capitalibus dominis feodi illius per servitia inde debita de Iure consueta In this case the question was of whom and how this Manor was holden And here albeit it was objected that the Tenendum being by the services inde thence due at which time nothing was due to the Mesne the Mesnalty continued still extinct and therefore that it was holden immediately of the King yet it was adjudged that by those words of the Patent the Mesnalty was revived for when those words may be interpreted two manner of wayes viz. either immediately of the King or mediately by the Mesne reason requires that the words should be understood in the milder sence especially when that appears to be the Kings intention and tends more to his honour and it is not reasonable that the Mesne who offended not should lose his tenure Co. l 6. 6. b. Wheelers case 6 H. 8 grants land Tenure Tenendum de nobis et haeredibus nostris per servitium unius Rosae Rubeae Annuatim ad festum Nativitatis Sancti Iohannis Baptistae solummodo pro omnibus omnimodis aliis servitiis And this was adjudged tenure in soccage in Chief and not tenure in Capite by Knightservice for albeit it was objected that the patentée could not hold onely by the Rose because homage or at least fealty was incident to every tenure and therefore that the King was deceived in his grant yet it was resolved that for as much as fealty is incident to every rent service the Law annexeth fealty to the rent and these words viz. Pro omnibus aliis servitiis are to be understood of other services which the Law doth not imply or add to it so as the tenure shall be by a Rose and fealty and this is the benign construction of Law as near the Kings intention as may be by which construction the said words pro omnibus aliis servitiis have some effect and shall not be rejected as vain and of no force Co. l. 6. 66. b. Sir Moyle Finches case 7 When a Manor hath once had the reputation of a name Name in reputation by which it hath been commonly known albeit the demesnes be afterwards severed from it so as it ceaseth to be a Manor yet in grants fines or other amicable conveyances it may pass still by the name of a Manor but not in Adversary writs c. so if I have a Park by the license and grant of the King and by the name of a Park it is commonly known and after I surrender my patent to the King by which in Law it remains no longer a Park yet it having once obtained the name of a Park in truth it is a good ground for the reputation and continuance of the name of a Park afterwards and by that name may pass in conveyances And all this by a favourable construction of Law c. Remainder vests 8 If land be granted to A. for life the remainder to B. for life Pl. Co. 32. a. 2. in Colthrist Beinshâns case and if B. die living A. that then it shall remain to C for life In this case this word then shall not be intended presently during the life of A. as these words prima facie do seem to import but they shall have a beneficial construction viz. that then it shall remain as a remainder ought to doe that is to say to vest then and to be executed after the death of A. So if a gift in tail be made upon condition that if he doe such an act that then the land shall remain to his right heirs this word then is not so to be understood as if it should avoid the estate tail and to be executed presently upon the act performed but it is to be intended that upon the act performed the remainder shall vest and after the estate ended shall be executed and not before 189. Construeth things according to Common possibility or intendment And therefore Judges 1 Regularly Iudges ought to adjudge according to common intendment of Law Co. Inst part 1. 78. b. 1. Parson 2 By intendment of Law every Parson or Rector of a Church is supposed to be resident on his benefice unlesse the contrary be proved Vide 2 3. Manor 3 By common intendment one part of a Manor shall not be of another nature than the rest A Will. 4 By common intendment a Will shall not be supposed to be made by collusion BonuÌ Vicinus Possibilia 5 In facto quod se habet ad bonum malum magis de bono quam de malo lex intendit Lex intendit vicinum vicini facta scire Nulla impossibilia aut inhonesta sunt praesumenda vera autem et honesta et possibilia Guardian Ward 6 Lex semper intendit quod convenit rationi As in this case the Guardian shall have the custody of the land until the heir come to his full age of one and twenty years because by intendment of Law the heir is not able to do Knight service before that age which is grounded upon apparent reason Iurors 7 By the Common Law in a plea real mixt or personal Co. ibid. 157. a. 1. 158. b. 2. there ought to be 4. of the Hundred where the cause of action ariseth returned for their better notice of the cause for vicini vicinorum facta praesumuntur scire Howbeit by the Statute of 27 Eliz. 6. In a plea personal if two Hundreders appear it suffiseth And in an Attaint albeit the Iury is double yet the Hundreders are not double Fee-simple 8 When a man is said to be seised in fee without more Co. ibid. 189. a. 2. Littl. §. 293. it shall be intended in fee simple and it shall not be intended by this word in fee that a man is seised in fee tail unless this addition be put to it fee tail for fée shall be taken secundum excellentiam for the highest and best fee and that is fee simple Verdict 9 If a verdict find that a man hath duas partes Manerii Co. ibid. 190. b. 3. c. in tres partes divisas this shall not be intended to be in common but if the verdict be in tres partes dividendas then it séems that they are tenants in Common by the Intendment of the verdict Co. ibid. 226. a. 1. 10 The Lord by escheat albeit his
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 praeâumitur 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 minoâis 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 Nappârs 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 anâs 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. â6 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
Lease for life or a gift in tail by déed reserving a rent this shall enure to the tenant for life only during his life and after to him in the reversion for each of them grants that which he may lawfully grant and if at the Common Law they had made a feoffment in fee generally the feoffee should have holden of the tenant for life during his life and after of him in reversion And so it was holden Mich. 36 37 Eliz. in B. R. Release 5 If a man make a lease to A. for term of the life of B. and after release to A. all his right in the land Co. Inst part 1. 273. b. 1. â by this A. hath an estate for the term of his own life for a lease for term of his own life is higher and better in judgement of Law than an estate for the term of another mans life So if a release be made to tenant by Statute Merchant or Staple or tenant by Elegit or to Guardian in Chivalry who holdeth in for the value of the marriage by him in reversion of all his right in the land by this a fréehold passeth for the life of him to whom the release is made for that is the best and greatest estate that can pass without apt words of Inheritance viz. heirs Accruer 6 Queen Eliz. being seised of a Reversion in fee upon an estate tail in the Lord Stafford grants it to Tindal in tail Co. l. 8 77. a. 2. in the Lo. Staffords case upon condition to have praedictam reversionem in fee Here these words praedictam reversionem shall not be construed to extend to the estate tail granted before to Tindal but to the reversion in fee. Feoffments 7 The heir of the disseisor being in by descent Co. Inst part 1. 302. b. 1. Littl. §. 534. the disseisee and he jointly enfeoff another in fee by deed and livery of seisin is had thereupon In this case as to the heir the land passeth and the deed enures by way of feoffment and as to the disseisee by way of Confirmation for by construction of Law the land shall ever pass from him that hath the estate of the land in him as if Cestuy que use and his feoffees after the statute of 1 R. 3. 1. and before the Stat. of 27 H. 8. 10. had joyned in a feoffment it had been the feoffment of the feoffees because the estate of the land was in them So it is likewise if the tenant for life and he in the remainder or reversion in fee joyn in a feoffment by deed the livery of the freehold shall move from the lessee the inheritance from him in the reversion or remainder from each of them according to his estate for it cannot be adjudged by Law that the feofment of tenant for life doth draw the reversion or remainder out of the lessor or him in remainder or doth work a wrong because they joyned together So if there be tenant for life the remainder in tail the remainder in tail c. and tenant for life and he in the first remainder in tail levy a fine this is no discontinuance or devesting of any estate in remainder but each of them pass that which they have power and Authority to pass The like 8 If the disseisor and disseisee joyn in a charter of feoffment Co. ibid. 302. b. 4. and enter into the land and make livery it shall be accounted the feoffment of the disseisee and the confirmation of the disseisor because the entry of the disseisee was then lawfull It is otherwise when the heir of the disseisor and the disseisee join as in Littletons case supra 7. for in such case the disseisees entry is not congeable But if he in the reversion in fee and tenant for life ioin in a feoffment by parol this shall be as some hold first a surrender of the estate of tenant for life and then the feoffment of him in the reversion for otherwise if the whole should pass from the lessee then he in the reversion might enter for the forfeiture and every mans act ut res magis valeat c. shall be construed most strongly against himself 9 Words are alwaies taken best for the Speaker Hob. 77. Adrian Coote so as there is one Rule for deeds or pleading and another for words 194 Every Act to be lawfull when it standeth indifferent whether it should be lawfull or not Co. Inst part 1. 42. a. 4. 1 A. tenant in fee simple makes a lease of lands to B. to have and to hold to B for term of life Estates for life without mentioning for whose life it shall be This shall be deemed for term of the life of the lessee because in this case it shall be taken most strongly against the lessor an estate for a mans own life being as to him better and higher than for the life of another But if tenant in tail make such a lease without expressing for whose life this shall be taken but for the life of the lessor for two reasons First when the construction of any act is left to the Law the Law which abhorreth injury and wrong will never so construe it that it may work a wrong And in this case if by construction it should be for the life of the lessee then should the estate tail be discontinued and a new reversion gained by wrong but if it construed for the life of the tenant in tail then no wrong is wrought And it is a general Rule that whensoever the words of a deed or of the parties without deed may have a double intendment and the one standeth with Law and right and the other is wrongfull and against Law the intendment that standeth with Law shall be taken 2. The Law respecteth more a lesser estate by right than a larger estate by wrong as if tenant for life in remainder disseise the tenant for life in possession in this case the disseisor hath a fee-simple but if tenant for life in possession die now is the disseisors wrongful estate in fee by Iudgement of Law changed to a rightfull estate for life So if tenant in tail make a lease to another for term of life generally and after releaseth to the lessee and his heirs Here albeit between the tenant in tail and the releasee a fee-simple passed yet after the death of the lessee the entry of the issue in tail is lawfull which could not be if it were a lease for the life of the lessee for then by the release it had been a discontinuance executed In like manner if I retain a servant generally without expressing any time the Law shall construe it to be for one year because that retainer is according to Law Vide Stat. 5 Eliz. cap. 4. Co. Inst part 1. 55. b. 3. 2 If lessor at will without the consent of the lessee enter into the land and cut
it enures as it may by Law to a grant of the reversion c. Attornment 23 Albeit an Infant be not compellable to attorn unless the grant be by fine in a per quae servitia Co. l 9. 85 b. 3 Conys case yet upon the grant of a seigniory without fine if he attorn that shall bind him and he shall not have his age so likewise attornment by him upon the grant of a reversion is good albeit he cannot be forced therevnto Vide supra 17. Covin 24 Covin shall never be intended or presumed in Law except it be expresly averred quia odiosa inhonesta non sunt in lege praesumenda Co. l. 10. 56. a. 3. in the Chan. of Oxf. case in facto quod se habet ad bonum malum magis de bono quam de malo praesumendum est And so it was adjudged in the case of Meriel Littleton Trin. 10 âac in B. R. Quod vide ubi supra Co. l. 10. 67. b. 3. in the Churchwardens case 25 When two Constructions may be made of the Kings grant The Kings Charter and by force of the one the grant may according to the Rule of Law be adjudged good and by the other it may be also taken by the Law to be void In such case for the honor of the King and the benefit of the Subject such construction shall be made that the Kings Charter may take effect as it was resolved in the case of the Churchwardens of Saint Saviours in Southwark Co. l. 10. 67. b. 3. and in Sir John Molins case Co. l 6. 5. See also Priddle and Nappers case Co. l. 11. 11. a 4 The E. of Rutlands case supra 22. The L. Staffords case Co. l. 8. 77. The Lord Chandos case Co. l. 6. 55. The E. of Cumberlands case Co. l. 8. 166. 12 E. 4. 44. F. N. B. 148. f. 26 If the heir within age endow the feme of more land than she ought to have assigned in Dower Dower assigned or if the Guardian endow the feme of more than a third part of the land the heir at his full age shall have a writ of Admeasurement of Dower against the feme Howbeit in such case she shall retain so much of the land so assigned as amounts to her Dower because it was a lawfull act Plea in barr only the surplusage shall be taken from her what she had above such third part assigned unto her Pl. Co. 28. b. 1. in Calthr and Bevish case 27 In an Assise if the tenant plead in barr descent to the plaintif and two others and that he hath the estate of one of them In this case the plea is good and yet it may be that he had his estate by disseisin in which case he is also a disseisor to the plaintif for he cannot be a disseisor to one and not to the other or he may gain his estate lawfully and so a doubt ariseth whether the tenant is in lawfully or by wrong Howbeit in this case it shall be taken that he had his estate lawfully and not tortiously or by wrong and therefore such plea in barr is good Vid 189. 40. Pl. Co. 93. a. 4. The Assise of Fresh force in London 28 In the Assise of Fresh force by Pannel against Moore and the Corporation of Mercers in London Assise of Fresh force Moores invitation of the plaintif to dine with him and to see the Cellar c. was adjudged no entry by the plaintif after the last continuance because it was rather to be esteemed a lawfull than a tortious act being by the consent of Moore one of the defendants Vide supra 9. 29 Cestuy que use for term of life the remainder over in tail Cestuy que use for life after the Statute of 1 R. 3. 1. makes a lease for the term of the life of the lessee Dyer 57. b. 1. 35 H. 8. and dies and the lessee continues his estate In this case the lessée is but tenant by sufferance for the lease makes no discontinuance of the Remainder because he had authority by the said Statute to make a lease grant or feoffment and that ought to be understood of such an estate as he may lawfully make Dyer 150. b. 86. 3 4. P.M. 30 By the Statute of 32 H. 8. 1. that giveth power to devise two parts of a mans land holden in Knight service Devise of lands a devise of the whole had been good for two parts albeit the Statute of explanations 34 35 H 8. 5. had not béen made Dyer 286. 43 11 Elâz 31 In an Ejectione firmae the plaintif declares of a lease made unto him the 8. day of May Ejectione firmae to have and hold for 21 years extunc proxime sequent Virtute cujus postea viz. eodem 8 day of May he entred This seems to be good and that he entred not as a disseisor before the lease commenced for extunc is immediately after the delivery and shall not be intended the morrow after the date and the word postea declares that he entred not before the lease was made Tamen Quaere for the practice is otherwise at this day making the term to commence at some feast or day before the day of delivery to prevent the said exception Dyer 359 3. 2. E. 34 A. Tenant of Prince Arthur as Earl of Chester Wardship in Knight service in Capite dies and B. his eldest son is in ward B. dies without issue and upon a Devenerunt C. was found brother and heir to B. and within age C. at full age pursues livery by writ to the Escheator per nomân B. filius haeres A. And now the question was whether or no the possession still continued in Qu. Eliz. And it was adjudged that it did not but that it was a good livery for if he had not been named heir to any it had béen good because constat de persona Tenants in Common 35 If a tenant in Common enter into the land generally Hob. 120. Smales and Dale without expressing whether it be for himself alone or both for himself and his companion yet it shall be taken according to right as under construction of Law and therefore construed lawfull and not that he intended to oust his companion of his part by tort 195 Non praestat impedimentum quod de Jure non sortitur effectum Vide 195 13. Bastard eigne Mulier Puisne 1 If the Bastard eigne after the decease of the father enter Co. Inst part 1. 245. b. 1. and the King seiseth the land for some contempt supposed to be committed by the Bastard for which no freehold or inheritance is lost but only the profits of the land by way of seisure and the Bastard die and his issue is upon his petition restored to the possession In this case for that the seisure was without
all the lands belonging to Towns and Boroughs not incorporat to defray the Common Taxes of the Town or to repair the Highwayes or the Church or for sustenance of the poor of the parish or to support other common charges of the parish are conveyed to divers Inhabitants of the parish their heirs in trust to imploy the profits therof to such good uses such good uses albeit prima facie they séem to be within the letter of that Act were never made void by that Statute and it is a thing dishonorable to the Law of the Land to make good uses void And it appears by a case reported by Serjeant Benlowes that it was held in the Common pleas in 5 6. E. 6. that a feoffment to the use of poor people was not within that Act of 23 H. 8. 10. Office 4 In Alton Woods case in the 1. Rep. Exception was taken to an office virtute officii returned into the Chancery for it was said Co. l. 1. 42. b. in Alton Woods case that it ought to have been returned into the Exchequer but upon the view of infinite presidents of offices found before the Escheator virtute officii and returned into the Chancery it was disallowed per totam Curiam Perpetuities 5 In the argument of Corbets case in the 1 Rep. Iustice Glanvile said that betwixt the making of the Statute of 13 E. 1. de donis Co l. 1. 87. b. 4. Corbets case c. 27 H. 8. such a proviso annexed to the estate tail viz. that it shall cease as if the tenant in tail were dead was never seen or heard of and therefore he concluded that it could not be done by Law And so likewise concludes Littl. fol. 23. in like manner that if any action might have been brought upon the Statute of Merton Disparagement cap. 6. De dominis qui maritaverint c. it would be intended that sometimes it would have been put in ure and therefore he concludes that no action can be taken upon that Statute in as much as it was never seen or heard that any action was ever brought thereupon Elections in Corporations 6 Where in the Charters of Corporations it is said Co. l. 4. 77. b. in the case of Corporations that the choice of the Maior Bailiffs Provosts or the like Magistrates or Officers shall be chosen by all the Commonalty or Burgesses if they have been chosen time out of mind by a certain select number of the principal of the Commonalty or Burgesses commonly called the Common Councel or by such like name and not in general by all the Commonalty or Burgesses nor by so many of them as will come to the election such antient and usual elections are good and well warranted by their Charters and by the Law also for in every of their Charters they have power given them to make Laws Ordinances and Constitutions for the better government of their Cities Boroughs c. by force whereof and to avoid popular confusion if they by their common assent do constitute and ordain that the Maior Bailifs or other principal officers shall be chosen by a certain select number of the principal of the Commonalty or Burgesses as aforesaid and prescribe also how such select number shall be chosen such Ordinance and Constitution was resolved in 40 41 Eliz. to be good and allowable and to agree with the Law and their Charters for avoiding of Popular discord and confusion And albeit such an Ordinance or constitution cannot be now produced yet it shall be presumed in respect of such a special manner of antient and continual election which cannot begin without common consent that at first such an Ordinance or Constitution was made Such reverend respect the Law attributes to antient and continual allowance and usage although it begin within time of memory Mos retinenda est fidelissimae vetustatis Quae praeter consuetudinem et morem Maiorum fiunt neque placent neque recta videntur Et frequentia actus multum operatur And according to this Resolution the antient and continual usages have been in London Norwich and other antient Cities and Corporations and God defend that they should be innovated or altered for many and great inconveniences may arise thereupon all which the Law hath well prevented as appears by this Resolution Co. l. 4. 93. a. 4. Slades case 7 Albeit an action of debt lyeth upon a Contract Action upon the case yet the bargainor may have an action upon the case or an action of debt for the same at his election and one of the chiefest reasons of that resolution was for that George Kempe secondary of the Protonotaries of the Kings Bench produced an infinite number of presidents as well in the Common Pleas as in the Kings Bench in the reigns of Hen. 6. E. 4. H. 7. H. 8. by which it appeared that the plaintiffs did Count that the Defendants in Consideration of a sale to them of certain goods did promise to pay so much money c. to which presidents and judgements being of so great number and in so many successions of ages and in the several times of so many reverend Iudges the Iustices in this case gave great regard and so the Iustices in antient time and from time to time have done as well in matters of form as in deciding of doubts and questions as well at the Common Law as in the Construction of Acts of Parliament And therefore in 11 E. 3. Formedon 32. it is held that the antient forms and manner of presidents are to be maintained and observed and in 34 Ass pl. 7. that which is not according to the usage shall not be permitted and in 2 E. 3. 29. The antient form and order is to be observed Vide plus ubi supra Co. l. 5. 32. a. Pettifers case 8 Vpon fieri facias of the Goods of the Testator Devastavit the Sheriff returns nulla bona c. hereupon a writ issues to the Sheriff to enquire by Enquest whether the executors have wasted c. He returns they have and thereupon Iudgement was given of their own goods but the executors suing a writ of error de redditione executionis the execution was reversed because this course of procéeding in such case had béen taken up of later times whereas the antient course was upon the return of Nulla bona to sue a scire fac to the Sheriff to levy c. out of the Testators goods and if it should appear to him that the executors have wasted then out of their own goods for albeit it was said that the said newer course was usual in the Common Bench and more favourable than the antient course was because thereby the Devastavit shall not be returned by the Sheriff only but shall be inquired likewise by an Inquest returned and thereupon a Scire facias ought to be awarded yet judgement was given that the
§. 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 casâ 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
and his wife in the life of the wife but if a man demise land to a feme for life rendring rent Rent and she take baron and after the rent is arrear and then she dies In this case the baron shall be charged by writ of debt for those arrerages because he took the profit of the land by reason of his wife F. N. B. ibid. 12 If a man be bound by obligation to a feme and she take baron The like and the day of payment comes during the espousals and after the feme dies the baron shall not have an action of debt for this obligation because it was a duty due to the feme and a thing in action before the espousals but if a feme be endowed of a rent and after she take baron and the rent is arrear and then the feme dies In this case the Baron shall have a writ of debt for this rent because it was a duty accrued unto him during the espousals Co. Inst pars 1. 46. b. 3. 13 If a lease be made to Baron and feme for term of their lives Leases the remainder to the executors of the survivor of them the husband grants away this term and dieth this shall not barr the wife for that the wife had but a possibility and no interest But if a man be possessed of a term for forty years in right of his wife and maketh a lease for 20 years reserving a rent and die albeit the wife shall have the residue of the term yet the Executors of the husband shall have the rent for that it was not incident to the reversion because the wife was not party to the lease So if the husband had made a grant of the whole term upon condition that the grantee should pay a sum of mony to his executors c. and the husband had died and then upon breach of the condition the executors had entred This had been a disposition of the whole term and the wife had been barred thereof because the whole Interest was in that case passed away by the husband Also if husband and wife be ejected of a term in the right of his wife and the husband bring an Ejectione firmae in his own name and have judgement to recover this is an alteration of the term and vesteth it in the husband sic de similibus 214. Her will ought to become his will and to be subject unto it Co. Inst pars 1. 112. b. 1. 1. The husband may devise lands to his wife Devise because as Littleton saith § 168. the devise taketh not effect till after the husbands death Howbeit this reason holdeth not to make a devise of lands from the wife to the husband gooâ for if a Feme covert be seised of lands in fée she cannot devise the same to her husband because at the making of her will she had no power being sub potestate viri to devise the same and the law intendeth that it may be done by coercion of her husband Co. ibid. 132. b. 2. 2. A woman cannot be professed a Nun during the life of her husband Profession Howbeit in such case some do hold a diversity viz. that ante carnalem copulam the husband or wife may enter into religion without any consent but Post carnalem copulam neither of them can without the consent of the other Co. ibid. 310. b. 1. 3. If a Feme sole maketh a lease for life or years reserving a rent Attornment and granteth the reversion in fee and then taketh husband this is a countermand of the Attornment for that she had no such fréedom of will when her grant was to take perfection by attornment as she had at the time of the grant made her will now being subject to the will of her husband Co. l. 2. 57. a. 4. in Beckwiths case 4. If Baron and feme levy a fine of land Declaration of Uses whereof they are seised in right of the feme and the baron only declare the use of the fine this declaration of the use shall bind the feme if her disassent appear not albeit her assent to the limitation of the uses cannot appear for when she joyns with the baron in the fine it shall be intended if the contrary appear not that she joyned also with him in agreement in the declaration of the uses of the fine Declaration of uses 5. If Baron and feme sell the land of the feme to another for mony by parol and after levy a fine to the vendee and his heirs this is good Co. l. 2. 24. Beckwiths case and shall bind the feme without any writing proving her assent A fortiori when the use is declared by the deed of the baron and no other declared by the feme it shall bind vide 12 Eliz. 290. Dyer Baron and feme were seised of a tenement in London to them and the heirs of the Baron the Baron covenanted by Indenture in consideration of 20 l. that he and his wife should suffer a recovery by writ of right according to the custom of London which binds as a fine at the common-Common-law and that the recovery should be to the use of the recoverors untill they should make a lease by Indenture for 40 years and after the making of the lease then to the use of the baron and feme and the heirs of the baron and the recovery was had accordingly and the opinion of all the Iustices was that the lease was good and not disseisible by the feme who survived the baron And yet in this case the baron was only party to the deed that declared the use neverthelesse it bound the feme because the feme is sub potestate viri And therefore albeit the feme be owner of the land and the declaration or disposition of the use insues the ownership of the land sicut umbra sequitur corpus Co. l. 4. 51. b. 2. And. Ognels case yet in regard she is sub potestate viri she cannot in respect of her coverture without the barons consent limit the use no more than she can make an executor without such consent Devise 6. A feme sole deviseth land to a man and then takes him to husband Co. l. 4. 61. a. 3. c. Forse and Hemblings case and dies this intermariage is a revocation of the devise and the heirs of the feme shall have the land and not the husband because after mariage the will of the feme in judgement of law is subject to the will of her husband and as it is commonly said a feme covert hath not any will for the making of the will is but the inception thereof and takes not effect untill the death of the devisor Omne Testamentum morte consummatum est and voluntas est ambulatoria usque ad extremum vitae exitum Tenant at will 7. If a feme sole be lessor
case and the Earle of Leicesters case Plow 400 c. Quae malo sunt inchoata c. A void presentment Fitz. 35 f. 6. 32 A presentment made by a stranger to an Advowson which is appropriate to an Abbey is void be the presentment in the Abbots time or during the vacation and albeit the Clerke be afterwards admitted instituted and inducted yet that cannot make the presentment which was void at first to take effect For Quod initio non valet c. It is otherwise if the Abbot himselfe present c. Co. l. 1. 15. b. 3. Sir William Pelhams case 33 A tenant for life remainder in tail remainder in fée bargains and sels the land in fée to B. who after the Statute of 32 H. 8. cap. 31. A void recovery and forfeiture by tenant for life and before the Statute of 14 El. cap. 8. suffered a recovery wherein A was vouched and vouched over c. and after Iudgement was entred and execution sued upon that recovery yet was the entry of the tenant in tail adjudged congeable for albeit the recovery was not had immediately against A. yet was it adjudged a forfeiture within that Statute of 32 H. 8. and then the suffering of the recovery being a forfeiture it could not afterwards be salved by entring Iudgement and suing execution thereupon Co. Inst pars 1. 46. a. 4. 34 If the Patron grant the next avoydance and after Parson A void grant of Glebe Patron and Ordinary before the Statute had made a lease of the Glebe for yeares and after the Parson dieth and the grantée of the next avoydance had presented a Clerk to the Church who is admitted instituted and inducted and dieth within the terme the Patron presents a new Clerk who is also admitted instituted and inducted here albeit he commeth in under the Patron that was party to the Lease and was Admitted Instituted and Inducted yet because the Lease had no good beginning but was avoided by the Grantees Incumbent who had the whole estate in him it shall not be againe revived but shall be extinct for ever and shall not be maintained against the last Incumbent Co. Inst pars 1 31. b. 4. 35 If a man be Tenant in general taile The last feme not endowed and take a wife and hath issue by her and she dies and after he taketh another wife and dies the last wife shall be endowed because she may have issue which by possibility may inherit But in this case if the husband during his first wives life alien the land in Fee and takes an estate back to him and his wife and the heires of their two bodies and the wife dies the second wife shall not be endowed because during the Coverture when her Title of Dower should take beginning he was seised of an estate taile special and yet here also the Issue that he may have by the last wife is inheritable Co. ibid. 9. a. 1. 36 B. having divers sonnes and daughters Grant to children before birth not good A. giveth lands to B. liberis suis and to their heires the Father and all his Children do take a Fee simple joyntly by force of these words their heires but if he had no child at the time of the Feofment the Child or Children born afterwards shall not take Dyer 58. a. 4. 35 H. 8. 37 Cestuy que use after the Statute of 1 R. 3. 1. Cestuy que usâ and before the Statute of Uses makes a Lease for yeares and after during the terme makes Feofment of the land and gives Livery c. In such case nothing passed by such Feofment because he had nothing in Vse or Possession and then the Statute of R. 3. would not aide him 29 Quod non habet principium non habet finem Where there can be no presentment by lapse 1 If the Bishop be named in the Quare impedit Co. Inst pars 1 344. b. 4. he shall never afterwards present by lapse and then shall neither the Metropolitan nor after him the King do it For the Bishops presentment falling which was to be the first step and begining their power of presenting which should successively follow his must néeds also fail according to the Rule Quod non habet principium non habet finem Right without action no remitter contra 2 Regularly a man shall not be remitted to a Right remedilesse Co. ibid. 349. a. 4. for the which he can have no action And therefore Littleton saith Sect. 661. that the principal cause of a Remitter is when the issue hath no person but himselfe against whom he may bring his Action by which it appeareth that he ought to have just cause of Action for neither an Action without a Right nor a Right without an Action can make a Remitter as if Tenant in tail suffer a Common Recovery In which there is error and after the Tenant in tail disseiseth the Recoveror and dieth here the issue in tail hath an action viz. a Writ of Error but so long as the Recovery remaineth in force he hath no Right and therefore in that case cannot be remitted Idem 3 If B. purchase an Advowson Co. ibid. 349. b. 3. and suffereth an usurpation and six Moneths to passe and the usurper granteth the Advowson to B. and his heires B. dieth his heire is not remitted because his Right to the Advowson was remedilesse viz. a Right without an Action 4 Vide infra M. 38. 1. 7. and 162. 49. Co. Inst pars 1 31. a. 4. 30 He that claimeth Paramount a thing shall never take benefit nor hurt by it Dos de dote peti non potest 1 If there be Grandfather Father and Son Co. Inst pars 1 32. a. 4. and the Grandfather is seised of thée acres of land in fée and taketh wife and dieth this land descendeth to the Father who dieth either before or after entry now is the wife of the Father dowable yet shall she have the thirds but of two acres onely and the wife of the Grandfather shall have for her Dower the other acre intirely because the Dower of the Grandmother is Paramount the Title of the Fathers wife and the seisin of the Father which descended to him be it in Law or actual is defeated and now upon the matter the Father had but a Reversion expectant upon a Fréehold and in that case Dos de dote peti non potest although the Grandmother die living the Fathers wife Dower according to the improved value 2 If the wife be entitled to have Dower of thrée acres of March Co. Inst pars 1 32. a. 3. every one of the value of twelve pence per annum the heire by his industry and charge maketh it good meadow viz. every acre worth ten shillings per annum the wife shall have her Dower according to the improved value and not according to the
value as it was in her husbands time So it is likewise if the heire improve the value by building the like Law is if the value be impaired in the time of the heire for then also she shall be endowed according to the value at the time of the assignement and not according to the value as it was in her husbands time And the reason of all this is because she claims paramount the improvement or impairing of it and hath Title to she quantity of the land viz. one just third part Co. Inst pars 1 46. a. 3. 3 If Tenant in taile make a Lease for yeares reserving xx s. rent Lease by tenant in tail good in dower and after take a wife and die without issue here as to him in the reversion the Lease is méerly void because he claimes paramount the Lease but if he endow the wife of Tenant in tail of the land as she may be though the estate taile be determined now is the Lease as to the Tenant in Dower who is in of the estate of her husband revived againe as against her for as to her the estate taile continueth and the Lease is paramount her Title Co. Inst pars 1. 113. a. 3. Littl. § 169. 4 If a man by the Custome devise that his executors shall sell his lands c. and dieth the lands in this case descend to his heire Feoffee in by devise and the executors have no estate in them but onely a bare and naked power neverthelesse a feofment from them shall amount to an alienation to vest the land in the Feoffée because the Feoffée by construction of Law shall be said to be in by the Divisor and not by the executors So it is likewise if a man by the custome devise a reversion or any other thing that lyeth in grant to be sold by his executors they may sell the same without Déed causa qua suprà Co. Inst pars 1. 117. a. 2. 5 If lands be given to a Villain and to the heirs of his bodie The Lords title Paramount an entail to a villain and so is the Kings to that of an Alien the Lord may enter and put out the villein and the heirs of his body for Quicquid acquiritur servo acquiritur domino And in this case the Lord gains a Fée simple determinable upon the dying of the Villain without issue of his bodie and the absolute Fée simple remaineth still in the Donor And if the Lord enter and after enfranchise the Donée and after the Donée hath issue yet that issue shall never have remedie either by Formedon or Entry to recover this land by force of the Statute de donis c. For the Lord is in paramount the entaile and that Statute giveth onely remedie to the issues of the Donée that hath capacity and power to take and retaine the gift And the Title of the Lord remaines as it did at the Common Law for the Statute restraineth acts done onely by the Tenant in taile So it is also if lands be given to an Alien and to the heires of his body upon office found the land is seised for the King afterwards the King makes the Alien a Denizen who hath issue and dieth the King shall detaine the land against the issue because the Kings Title is Paramount the entail viz. by his prerogative Vide infrà 32. Co. Inst pars 1 148. b. 3. 6 If a man grant a rent charge out of two acres A Title Paramount to rent and after the Grantée recovereth one of the acres against the Grantor by a Title paramount the whole rent shall issue out of the other acre Doct. Stud. l. 2. cap 17. Co. Inst pars 1 148. b. 3. 7 If a man enfeoffeth B. of one acre in fée upon Condition Title Paramount a grant and B. being seised of another acre in fée granteth a rent out of both the acres to the Feoffor who entreth into the one acre for the Condition broken the whole rent shall issue out of the other acre because his Title is paramount the grant Co. Inst pars 1. 184. b. Littl. § 286. 8 If two Ioyn-tenants be seised of an estate in Fée simple Jus accreseâdendi praefertur oneribus and the one grants a rent charge to another out of his part here the rent is good during his life but after his decease the Survivor shall avoid it because he commeth in by the first Feoffor and not under his companion So likewise if a man be possest of certaine lands for terme of yeares in the right of his wife and granteth a rent charge and dieth Co. Inst pars 1 185. a. 1. the wife shall avoid the charge And for the same reason it is that if a Ioyn-tenant charge the land with common of Pasture Turbary Estovers or with a Corodie or with a way over the land or the like this shall not bind the Survivour For jus accrescendâ prefertur oneribus and Alienatio rei praefertur juri accrescendi Vide M. 15. Pl. 14. Co. Inst pars 1 185. a. 2. 9 One Ioyn-tenant in fée taketh a Lease for yeares of a stranger Simile by Déed indented and dieth the Survivour shall not be bound by the conclusion because he claimes above it and not under it Baron chargeth the Femes âand 10 If there be two Ioyn-tenants in fée Co. Inst pars 1 185. a. 2. Finch 13. Dyer 187. and the one maketh a Lease for yeares reserving a rent and dieth the surviving Feoffée shall have the reversion but not the rent because he claimeth in by the first Feoffor which is paramount the rent So it is also of the wife where the husband being Lessée for yeares in her right maketh a Lease of part of the terme reserving a rent Inst part 1. 318. a. 3. Simile 11 If a husband wife Co. Inst pars 1 187. b. 4. and a third person purchase lands to them and their heires and the husband before the Statute of 32 H. 8. cap. 1. had aliened the whole land to a stranger in fée and died the wife and the other Ioyn-tenant were Ioyn-tenants of the right and if the wife had died the other Ioyn-tenant should have had the whole right by Survivour for that they might have joyned in a writ of right and in this case the discontinuance would not have barred the entry of the Survivour because he claimed not under the discontinuance but by Title paramount above the same by the first feofment A condition âaramount a descent 12 If a man be seised of lands in Fée or Fee taile upon Condition to render certaine rent or any other Condition Co. Inst pars 1 240. a. b. Littl. § 391 392. albeit such a Tenant die seised yet if the Condition be broken in his life time or after his decease that descent shall not take away the entry of the Feoffor or Donor or of
Alien Enemy it is a good plea in both Abjured persons 19 A person abjured is dis-abled to sue any Action Co. Inst 1. 128 a. 4. for that he is extra Legem and yet he cannot be properly said to be Out-lawed 90 As concerning the ages of Infants the Law ordereth them in this manner Seven for the Lord to have aid for the marriage of his eldest daughter of that age Nine Litt. §. 36. for a woman to deserve her Dower Twelve for a man to take the Oath of Allegiance in a Turn or Leet and also to binde a woman in matter of Marriage Fourteen the age of discretion and therefore that a competent age to binde the man in matter of Marriage for a Ward in Soccage to chuse his Guardian and for a woman to be out of Ward to the Lord by Knight-service Fifteen for the Lord to have Aid to make his eldest Son of that aâe a Knight Seventeen for an Infant Executor to be out of the tuition of Administrators Eighteen for an Infant to have power to make a Will One and twenty their full age to make good any Act they do and for a man to be out of Ward to the Lord by Knight-service Co. Inst p. 1. 33. a. 3. 1 A wife whether she be so de facto Nine years old to have dower or de jure if she be of the age of nine years at the time of the death of her husband shall be indowed of what age soever her husband be viz. although he be but four years old c. And she must be so old at least to have Dower Quia junior non potest dotem promereri neque virum sustinere hec obstabit mulieri petenti minor aetas viri wherein it is to be observed that albeit Consensus non concubitus facit Matrimonium and that a woman cannot consent before twelve nor a man before fourteen yet this inchoate and unperfect marriage from which either of the parties at the age of consent may dis-agree after the death of the husband shall give Dower to the wife and therefore it is to be accounted in Law after the death of the husband legitimum matrimonium a lawful marriage quoad dotem And in that Case the Bishop upon an Issue joyned in a writ of Dower Co. ib. a. 4. Quòd nunquam fuerunt copulati legitimo matrimonio ought to certifie that they were coupled in lawful marriage albeit the man were under fourteen and the wife above nine and under twelve Co. ibid. 2 If a man taketh a wife of the age of seven years The wife of ãâã yea endowed after alienation and after alien his Land and after the alienation the wife attaineth to the age of nine years and after the husband dieth In this Case the wife shall be indowed for albeit she was not absolutely Dowâble at the time of the marriage yet she was conditionally Dowable viz. if she attained to the age of nine years before the death of the husband for so Littleton saith § 36. So that she passe the age of 9 years at the death of her husband because by his death the possibility of Dower is consummate So likewise if the Son endow his wife at her age of seven years ex assensu patris if she before the death of her husband attain to the age of nine years the Dower is good c. Co. ib. 78. b. 3. Britt 168. b 3 The reason wherefore the Law gave the Marriage of the heir-female to the Lord if she were within the age of fourtéen Marriage oâ heir female under 14. and that she should not marry her self appears in Antiquity viz. Pur ceo que les heires females de nostre terre ne se mariassent a nos enemys donc il nous convica droit lour homage prendre si elles se pussent marier a lour volunte c. This is a special age for an heir female to be out of Ward if she attain to it in the life-time of her Ancestor for at that age she may have a husband able to do Knight-service c. Ages assigned to the male 4 A man by the law for several purposes hath divers ages assigned unto him Co. ib. 78. b. 3 Fitz. 82 b. viz. twelve years to take the Oath of Allegiance in the Turn or Léet fourtéen to consent to Marriage fourtéen for the heir in Soccage to chuse his Guardian Co. ib. 78. b 2. and fourtéen is also accounted his age of discretion fiftéen for the Lord to have aid pur fair fife Chivaler under 21 to be in Ward to the Lord by Knight-service Co. l. 6. 70. b. 4 in the Lord Darcies Case Co. l. 9. 72. b. 3. in Doctor Husseys case under fourtéen to be in Ward to Guardian in Soccage fourtéen to be out of Ward of Guardian in Soccage and 21 to be out of Ward to Guardian in Chivalry and likewise to alien his lands goods and chattels Also a woman hath seven Ages for several purposes appointed to her by law To the female as seven years for the Lord to have aid pur file marier nine to deserve Dower twelve to consent to Marriage until fourtéen to be in Ward fourtéen to be out of Ward if she attained thereunto in the life of her Ancestor sixtéen for to tender her Marriage if she were under fourtéen at the death of her Ancestor which was granted by the Statute of West 1. cap. 2â and 21 years to alienate her Lands Goods and Chattels Fitz. 82 b. 149 l. An Infants Will. 5 An Infant when he shall have attained the age of eightéen years Co. ib. 89. b. 2. may make his Testament and constitute Executors for his Goods and Chattels Unequal partition 6 If Perceners of full age of lands in Fée-simple make an equal partition she that hath the least part is bound for ever Co. ib. 170. a. 3 Litt. §. 255 as well as in case of an unequal exchange And if the unequal partition be of lands in tail she that hath the worst part is bound for her life but her issue shall avoid it c. No power to grant before ãâã Bailiff Receiver Iâquest Wager of law 7 The Law hath provided for the safety of a man womans Estate Co. ib. 171. b. 3 Litt. §. 239. that before their age of twenty one yeors they cannot binde themselves by any Déed or alien any lands goods or chattels before which age a man or woman is called an Infant Likewise if before that age he be made a Bailiff or receiver to another he is not chargeable in accompt neither yet can he under that age be put upon an Inquest c. nor make his law of non-summons nor in an action of Debt according to the Maxime Minor jurare non potest yet the husband and wife of full age for the debt of the wife before the
Coverture shall make their law And also an Infant when he is of the age of twelve years shall take the Oath of Allegiance to the King in the Turn or Léet and this was as Bracton saith secundum leges sancti Edvardi But indéed such was the Law in the time of King Arthur c. Baron and Feme Infants 8 If husband and wife be both within age Co. ib. 337. a. 3 and they by déed indented joyn in a Feoffment reserving a rent the husband dieth the wife may enter or have a Dum fuit infra aetatem But if she were of full age she shall not have a Dum fuit infra aetatem for the non-age of her husband albeit they be but one person in law Infant execut 9 An Administration durante minore aetate at the age of seventéen years of the Infant Co. l. 5. 29. b. Princes case executor ceaseth before which age he cannot assent to a Legacy c. Howbeit if Feme be such an Executrix and she before seventeen take Baron of full age the Administration also in that Case ceaseth because then the Baron is able to administer as executor c. âge of the ââeir female 10 At the Common Law the full age of the heir female was fourtéen as appears in 35 H. 6. 52. and Litt. 22. Co. l. 6. 70. b. 4. in the Lord Darcies case and if she were of the age of fourtéen at the death of the Ancestor she could not be in ward and if within that age she was to have livery at that age c. but now by the Statute of VVest 1. cap. 22. if she were under 14 at the death of her Ancestor she shall be in ward till sixtéen for the Lord to tender marriage and upon refusal to have the benefit of those two years but not to have any forfeiture of Marriage c. Co. ib. l. 9. 72 b. 3. in Doctor Husseys case 11 The Statute of Merton cap. 6. Anno 20. H. 3. Merton cannot extend to the heir female because it saith 14 ultra and ultra terminum aetatis suae de 21 c. which words must be understood of the heir male and not of the heir female because twelve is the age limited for the heir female to give consent to marriage but fourtéen for the heir male and therefore that Statute gives a forfeiture in case of refusal of Marriage upon tender to the heir male c. Co. Inst p. 1. 78. b. 3. 12 By the Civil Law the full age of a man or woman to alien Age by the Civil Law demise let contract c. is five and twenty years for then the Romans accounted men to have plenam maturitatem and the Lombards at eightéen years 91 In things the Law respecteth every thing according to Worthinesse 1 Littleton saith § 2. If a man be seised of Lands in Fée-simple The most worthiest of blood shall inherit and die without issue Co. Inst p. 1. 10. b 2. Son prochein Cosein collateral del entire sanke c. his next Collateral Cosen of the whole Blood c. shall have it as heir unto him whereupon my Lord Cook puts this Case One hath issue two Sons A. and B. and dieth B. hath two Sons C. and D. and dieth A. purchaseth Lands in Fée-simple and dieth without issue In this Case D. is his next Cosen and yet shall not inherit but the issue of C. because albeit D. be his next Cosen jure propinquitatis yet the issue of C. shall inherit being the more worthy viz. his next Cosen Jure repraesentationis And Littleton there meaneth of the right of representation for legally in course of Descents he is the next of Blood inheritable because the most worthy In such sort that all that Line of C. be they never so remote shall inherit before D. or his Line And therefore Littleton saith well de quel pluis long degree que il soit c. And yet in the Case abovesaid if a Lease for life were made to A the remainder to his next of Blood in fée In that Case D. shall take the remainder because he is next of Blood and capable to take by purchase though he be not legally next to take as heir by Descent And D. takes the purchase by the special limitation of the party but the Law casts the Descent upon the issue of C. as the more worthy Finch p. 116. Litt. §. 4. 5. Co. ib. 14. a. 1 c. Vide Finch page 116. So likewise the Blood of the Fathers side is more worthy then that of the Mothers the male then the female the eldest Son then the younger c. And therefore those shall inherit before these and the female on the Fathers side before the male or female on the Mothers c. Quod priùs est dignius est qui prior est tempore potior est jure Si quis plures filios habuerit jus proprietatis primò descendit ad primogenitum eò quòd inventus est primò in rerum natura Co. ib. 53. a. 3. 2 If the Tenant cut down or destroy any Fruit-trées growing in the Garden or Orchard it is Waste Trees in Orchard waste but if such Trées grow upon any of the ground which the Tenant holdeth out of the Garden or Orchard it is no Waste Co. ib. 240 a. 2 3 A dying-seised and a descent A Descent Escheat and not a dying-seised and an Escheat doth take away the entry of the Disseisée because the descent is the worthier title c. 4 It is holden that if there be Bastard eygne and mulier puisat Co. ibid. 244. a. 3. and the Mulier be within age at the time of the dying seised of the Bastard Bastard Mulier Descent that neverthhlesse the Mulier shall be barred because the Issue of the Bastard is in judgement of Law become lawful heirs and the Law doth preferre legitimation before the priviledge of Infancy Laches in an Infant 5 It is regularly true that Laches shall not prejudice an Infant Co. ibid. 246. a. 1. neverthelesse Laches 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 be served then the priviledge of Infancy Homage and Fealty the worthiest services 6 Amongst the services due to be performed by the Tenant to his Lord homage and fealty are of greatest estéeme in the Law Co. l. 4. 8. b. 2. in Bevils case viz. Homage as the most honorable and the most humble service of reverence as Littleton saith And Fealty the most sacred being performed by an oath And therefore the Law makes more accompt of them then of other inferiour services for the seisin of them is seisin of all other services whatsoever and no distresse for them of any goods or chattels of what
action upon his case as well as the Lord and so there might be infinite actions for one default neither yet are they in such case without remedy for they may and ought to sue in the Court Christian and there shall have it redressed Co. l. 5. 104. b. in Boulstones case 6 A man cannot have an action upon the case for damage by the Pigeons of a Dove-house Dove-house because then every man might have the like And therefore it hath béen held that if any man except the Lord of a Manor erect a Dove-house Prat and Sternes case it is presentable in the Leet Sed quaere de hac for it hath been since otherwise adjudged See the E. of Northumberlands case Poph. Rep. 141. Trin. 16. Jac. Co. l. 6. 8. b. 4. in Ferrers case 7 If the plaintif be barred by judgement upon demurrer Vexatious sutes confession or verdict in personal actions he is barred for ever and in real actions he must have recourse to his action of an higher nature and at last shall be finally barred in his writ of right if the Grand Assise find against him So likewise before the Statute of Marlbridge when the degrees were past and before the Statute of Westm 2. upon loss by default there was no remedy but by writ of right And the reason of the Common Law in these and the like cases was to avoid Multiplicity and Infiniteness of sutes trials recoveries and judgements in one and the same case And therefore in the judgement of the Law it was thought more profitable for the Commonwealth and more for the honour of the Law in some cases rather to leave some without remedy and to put others to their writ of right without any respect of Coverture Infancy or the like than that there should not be a convenient time for the ending of actions and sutes See the judgement in redisseisin and post diss F. N. B. 188 190. and the punishment inflicted by the Law in such case See also the Register 206. 208. And indeed without such a strict course there may be much oppression committed under colour and pretence of Law for so a rich and malitious man may by actions and sutes infinitely vex him that hath right and in the end for the avoiding of charge and vexation Compell him to forsake his right all which was remedied by the Rule and Reason of the antient Common Law the neglect whereof by introducing trials of rights and titles of Inheritance and franktenement in personal actions in which there is no end or limit of sutes hath brought with it four main Inconveniences 1. Infiniteness of verdicts recoveries and judgements in one and the same cause 2. Sometimes contrarieties of verdicts and judgements one against another 3. Continuance of sutes by 20 30 and 40 years to the utter impoverishing of the parties 4. All this tends to the dishonor of the Common Law which utterly abhorrs Infiniteness and protraction of sutes And herein the excellency of the Common Law is to observed viz. That the receding from the true institution thereof introduceth many Inconveniences and the observation of it is alwayes accompanied with peace and quiet the end and center of all human laws See the Epistle to the 4. Report fol. 1. b. 8 Vide Max. 180. ca. 3. 186 25. 183 The Law construeth things with Equity and Moderation Convenient time 1 In 18 E. 4. 22. Co. l. 3. 27. a 1. A man is bound to make an obligation immediately yet he shall have convenient time to do it In Butler and Bakers case Escape 2 For as much as Escapes are very penal to Sherifs Co. l. 3. 44. a. 4. in Baytons case Bailifs of Liberties and Keepers of Prisons the Iudges have alwayes made such favourable construction as the Law will permit in favour of them being Officers and Ministers of Iustice and will never adjudge one to make an escape upon any strict construction for albeit the Sherif or other officer that keeps prisoners ought not to suffer one in execution to goe at large by Bail or Baston but ought to keep them in salva arcta custodia and according to the Statute of Westm 2. cap. 11. which ordains quod carceri mancipentur in ferris to the end they may the sooner pay their Creditors yet if one be arrested upon a Capias ad satisfac and the Bailifs upon a habeas Corpus bring him to Westm and at his request carry him to Lambeth in Surrey and at the day of return deliver him to the Kings Bench This shall be adjudged no escape neither shall the prisoner thereupon have an Audita querela against the Creditors So it is likewise if the prisoner had of his own accord gone to Lambeth so as he had returned in time to be delivered into Court at the return of the writ as it was adjudged in Charnicks case Sheriff of the County of Bed in 31 Eliz. So if one be Sherif of two Counties hath several prisoners in execution in each County upon two habeas Corpora against two of them he may bring the one prisoner out of the one County into the other and then carry both the prisoners up according to the several writs to him directed and this shall not be adjudged any escape in the Sherif Also If a prisoner in execution escape and flie into another County and the Gaoler make fresh sute after him and taking him puts him into the Gaol again this shall be adjudged no escape for that upon fresh sute the Gaoler took him again and put him in prison before any action brought against him And in the cases above produced upon habeas Corpus the Sherif is not strictly bound to keep the direct way to West in recta linea so as he have him at the return of the writ and then deliver him into Court for if the effect of the writ be pursued it sufficeth Copihold Fines 3 Where fines in a Copyhold Manor are uncertain Co. l. 4. 27. b. 3. in Hubbert Hamonds case the Lord ought not to demand or exact excessive or unreasonable fines and if he do the Copyholder may deny to pay it without danger of forfeiture and it shall be determined by the opinion of the Iustices before whom the matter depends upon a demurrer or at the trial whether the fine demanded were reasonable or no for if Lords might assess fines excessively at their pleasure all the estates of Copiholders which are a great part of the Realm and have continued time out of mind would be at the will of the Lords to defeat and destroy which would be inconvenient And thus it was adjudged in the Common place in Hoddesdons case Sewers 4 Notwithstanding that the words of the Commission of Sewers give authority to the Commissioners to do according to their discretions Co. l. 5. 100. a. 3. in Rooks case yet their proccedings ought to be limited
and bounded by the Rule of Law and reason for discretion is a science of discerning truth from falshood right from wrong shadows from substance and betwixt equity and colourable glosses and pretences and not to doe according to their own wills and private affections Co. l. 6. 50. b. 4. in Boswels case 5 If tenant in tail suffer an usurpation and die Tail Usurpation the issue in tail is remedied by the equity of the first branch of Westm 2. cap. 5. because after the Statute of Westm 2. cap. 1. which created the estate tail and was made the same Parliament the issue in tail could not have a writ of right of advowson and therefore shall be aided by the said first branch as it is held 43 E. 1. 24 25. Vide 26 Ass pl. 4. 8 E. 2. Quare Impedit 167. 24 H. 6. 28. Co. l. 8. 40. a. 4. Grieslyes case 6 Amerciaments Amerciaments whether they are to be affeared in Inferiour Courts by the sutors or in Superiour Courts by the Iudges they are all termed Misericordia because whosoever hath the affearance of them ought to use great moderation Co l. 11. 44. a. 2. in Rich. Godfreyes case 7 The Reasonableness of fines in Courts distresses Fines Distress c. amerciaments and fines at the will of the Lord shall be adjudged by the Iustices and if they be outragious and excessive and by consequent injust and against the Law they have power to moderate them F. N. B. 75. a. c. 8 When an amerciament is excessive or outragious in a Court Baron or other Court which is not a Court of Record for trespass Amerciament or any other offence the Law hath ordained the writ of Moderata Misericordia to be directed to the Lord of the same Court or his Bailifs commanding them to take a moderate amerciament according to the quantity of the trespass c. and thereupon the party grieved may have an Alias Pluries and Attachment if he please See the Statutes of Magna Cart. cap. 14. and Westm 2. cap. 6. F. N. B. 103. b. 9 If a man be bound in a statute merchant Statute Merchant and after make feofment of parcel of his lands to one man and of another parcel thereof to another and the recognisée sues execution upon the Statute and hath execution against the one feoffée here this feoffée shall have an Audita querela against the other feoffée to shew cause why the recognisée hath not execution against his lands as well as against the lands which he hath c. Pl. Co. 17 a. 4. c. in Fogassaes case 10 Both the matter and words of penal Laws shall be taken strictly Penal Laws and not extended by Equity in prejudice of them against whom the penalty is to be inflicted As the Statute of Westm 2. cap. 11. ordains that if Accomptants shall be found in arrear before Auditors Arrestentur Corpora eorum et per testimonium Auditorum ejusdem Compoti mittantur et liberentur proximae Gaolae Domini Regis in partibus illis quousque c. Here the Statute is general that they should be imprisoned by the Auditors and saith not at what time so as by the Letter of the Statute the Auditors may imprison the Accomptants when they please after their accompt yet in 27 H. 6. 8. Tit. Barr 44. Br. Accompt 6. In debt upon arrerages of accompt it is adjudged that if the Auditors do not commit the Accomptant to prison presently after the accompt they can never commit him afterwards because the Statute is penal to him that is to be imprisoned c. Pl. Co. 67. a. 1. Dyve and Manângh 11 At the Comon Law before the Statute of 23 H. 8. 10. the Sherif had commandment and authority to let to bail such as were mainpernable Bail for the Common Law which is Common reason would alwayes have persons taken by writ bill or warrant upon personal actions or Indictments of trespass to be enlarged by sureties for that in a manner it stands indifferent whether they are guilty or no and then if they should not be guilty and yet restrained of their liberty it would be a great inconvenience which the Law would never suffer 12 Hob. 14. Sir Dan. Norton against Simmes 184 Restraineth a general Act or Rule and sometimes also a Particular contract if there be found any mischief or Inconvenience in them Wife no witness âor her âuâband 1 Regularly any person of competent age and discretion Co. Inst parâ 1. 6. b. 4. and against whom there is no just exception by reason of perjury conviction of felony or the like may be admitted a witness in any cause yet in 10 Jac. in Com. Banc. in a case upon the Statute of Bankrupts it was adjudged that a wife cannot be produced as a witness either against or for her husband for that it might be a cause of implacable discord and dissention betwéen the husband and wife and a mean of great inconvenience Tender of marriage Co. ibid. 79 a. 3. 2 By the Statute of Westm 1. cap. 22. Tender of Mariage to an heir female before the age of fourtéen is void which is to be understood where the Lord may hold the land the two years after the 14 for within that time the Statute appointeth the tender but where the Lord cannot have the two years he may tender a marriage to the heir female at any time after the age of 12. and before 14. for so he might have done at the Common Law Frankmarriage Frankalmoâgn Co. ibid. 97. a. 4. Littl. §. 138. 3 An Argument drawn from inconvenience is forcible in Law and the Law that is the perfection of Reason cannot suffer any thing which is inconvenient And therefore the Law saith It is better to suffer a mischief viz. peculiar to one than an inconvenience that may prejudice many Frankmarriage is so called because it ought to be fréed of all service to the donor until the fourth degree be past yet the tenant in Frankmarriage shall make fealty to the donor for it were inconvenient that he should hold land and do no service at all for it So likewise tenant in Frankalmoign albeit he be fréed from all temporal service yet he shall say divine service for his Lord for it were inconvenient that he should do no service at all for the land he holds of his Lord. All land holden Co. ibid. 98. a. 1. 4 If an Abbot holds in Frankalmoign and he and the Covent under their Common Seal alien the land to a Lay-man In this case the secular man shall make fealty albeit the Alienors held not by fealty nor any terrene service but only by Spiritual services and those uncertain for in such case the Law createth a new Temporal service out of the land to be done by the Alienee wherewith the Abbot was not formerly charged