both degrees And in 2 E. 3. the Case 2 E. 3. is famous and is known by the name of Roberges Case where Lands were given to her and to the heirs of the husband of her body begotten and it was there held That if her husband were then dead and left any heir which he had by her they might take joyntly with her for that it was not possible to take by descent from the said Roberges because he which takes it must not be heir to her but to the husband who never held any Estate therein And so to be short I am of Opinion That no estate of inheritance be gained by B. by these words The heirs of the body of his father The Case upon the third Point is this a Mannor is granted Third Point to one for his life upon condition to have it for the life of C. then a Copyhold is forfeit and before the Lord seize his Estate is altered or changed if now he can take advantage of this forfeiture or not wherein the altering of the Estate of one to another is of like force as where it alters in the parties self against which it may be said That if Tenant for life make waste and then he in the reversion grant over the reversion the Grantee shall not now punish this waste and so Mr. Perkins fol. 20. If a Tenant alien in Mortmain and Perkins so 20. then the Lord grant away his Signiory the Grantee shall not enter for this Mortmain so by Fitz. in his Nat. bre in his admeasurement Fitz. Har. Nat. brc. of Dower If a Garden assign to a woman more dower then she ought to have and then grant his Gardenship over the Grantee cannot have an admeasurement of Dower against her and so Binghams Case in Sir Edward Cook 2. Rep. where there was Tenant for life remainder in Fee of a Tenancy holden Binghams Case Cook 2 Rep. by Knights service and he in remainder died his heirs within age and then the Lord granted away his Signiory and then Tenant for life dyed by which the said heir was to have been in ward yet because the Signiory was granted away after the inception of the Wardship before it was perfectly due it was there held that neither the grant nor the grantee should have the same So Lessee for life without impeachment Bokenhams Case in Dicr of wast remainder for his own life the priviledge is lost but yet notwithstanding I do hold that in this Case B. after he hath by the performance of the Condition altered his Estate which he had when the forfeiture was committed yet shall he afterward take advantage thereof well enough As if there be Tenant for life the Remainder for life to I. S. and the first Tenant for life commit waste or forfeiture he in the reversion cannot punish this during the life of him in the remainder for life but after his death he may also if one make a Lease for years upon Condition to be void and the Lessor grant away his reversion the Grantee may enter for breach of this Condition by 11 H. 7. 17. and yet here the Estate in reversion is altered from 11 H. 7. 17. one to another and I doubt not but if a Tenant for life be the remainder in Fee to another of a Mannor and a Copyhold is forfeit and then Tenant for life dyed that he in remainder may enter into this Copyhold and yet this Estate is altered into a possession from a remainder and in the Case although the Estate in B. be altered yet it is by decreaser and so thereby it is parcel of the old Estate he had before and therefore it is like to a Case where the husband and wife were Tenants in special Tail and they recovered by Assize and then the husband dyed and after his death without issue the wives Estate being altered from an Estate Tail into an Estate of possibility of issue extinct was again put out and disseized and she brought a Writ of Redisseisin 2 H. 4. 17. 26 H. 6. title Ayd pl. 77. which will not lie but on the first Estate and against the first parties and yet it was maintained because it was parcel of her former Estate And so in this Case although the Estate of B. was altered from his own life into the life of C. yet I am of Opinion That he might take advantage of this forfeiture because the Customary Estate is utterly void thereby Points upon the Statute I am determined before I enter into the discourse of new defences in my Case to deliver my Opinion touching the Walls Banks and other ancient defences which have had their being time out of memory and in truth be the very materials and memorials of Antiquity And because Banks and Walls be the first named in the Commission they shall therefore have the first place in my argument being the most ancient and approved defences as well against the rage of the Seas as against the violence of fresh waters that either Art or Nature have produced Bank THe Bank of the sea is the utmost border of dry land and is of the same materials with the grounds wherein and whereon it standeth it is sometimes natural and in some places artificial Natural as Mountains raised higher then other grounds adjoyning as it pleased the Creator when the first huge Chaos was separated divided and distributed Artificial when it is cast by mans hand Justinian the Emperor treating of these in his Institutes and his title de rerum divisione describeth them in this maner Riparum usus est publicus illar ' verò domin ' ad eos pertinet qui proximior praediis domini sunt itaque naves ad eas appellere funes arboribus ibi natis Religare onus aliquod in his Reponere cuilibet liberum est by which authority it appeareth that the ownership and property of the sea bank and banks of great Rivers be to them whose grounds are next thereto adjoyning and the Trees Grass and other things thereon growing belong to the owner of the soil but the use of the banks is common to all the Kings liege people as to tie the ships and boats to the Trees and to tow them to and fro and to lade and unlade their Merchandizes thereon and for fishers to dry their nets on And as the owner of the soil and proprietor of the grounds cannot justifie the digging or casting of them down whereby the people shall be hindred of their necessary use thereof no more can the people which have but necessarium usum fell up the Trees or mow the grass thereon growing neither ought they to dig ballast there but every one as well owner as user Sic uti suo ut alienum non laedat I cannot more aptly compare a Bank of the Sea or of a navigable River then to a Highway for that the property thereof is to him whose ground is next adjoyning and the
depending upon others and many such double contingents may be put The Case of Sir Edward Cook put in the end of the Rector of Cheddingtons Case out of 12 Lib. Ass pl. 5. in my 12 lib. Assize opinion doth not disalow the second Condition for there the Case is That A. Leased to B. upon condition That if A. or his heirs pay to B. Ten pounds within a certain day that they might re-enter and if A. nor his heirs should not pay the Ten pounds within the time Then if B. paid to A. Ten pounds at another day that he should have Fee Both A. and B. failed in payment and A. entred and being put out brought an Assize and nihil Caepit per breve this doth not prove that one condition cannot depend upon another neither can I see well what Exposition to make of so uncertain a Case so that I take this Case to be no evidence against mine But in the 14 H. 8. fol. 15. there is a Case which in my 14 H. 8. fol. 15. opinion makes more against my double condition then any other which is put by Brudnel Chief Justice that is If A. be bound in an Obligation to B. upon condition to infeoff I. S. before Easter ensuing then the Obligation to be void and if he do not infeoff him then to pay Ten pounds at Pentecost then the Obligation to be void The Feoffment is not made before Easter therefore Brudnel held the Obligation was forfeit and that the second Condition was not good But there is a Quaere set upon that Case and so it may well be for I see it commonly done that if a defesans be made of a Statute which is broken and so the Statute becomes forfeit yet a new defesans may defeat it and so in my opinion may the second Condition in this Case avoid the Obligation if the first conclusion had not been in the Case I shall adde this Case also as a conceit that is A. infeoffs B. upon condition if A. go to Lincoln he shall have the A Conceit Lands to him and the heirs of his body and if he go to Boston he shall have it for Ten years and he goes first to Boston I do here hold these Conditions being put promiscuously without distinction of the times of the Conditions which shall be first performed and which the second that the Fee is decreased into an Estate for years and can never increase into an Estate in tail by performing of the second Condition because the Livery out of which it should grow was quite destroyed by the first decreaser So that my intent Sâ—â—ond Point appears that one Condition may depend upon another upon the said distinction but whether by the performance of the first Condition in my Case there will an Estate come to B. or not I meant it for a question for B. had before an Estate for his own life then is it not possible that his Estate can hereby be increased by having the Land also for the life of C. if it be admitted argumenti gratia that B. shall or may have both these Estates stand in him both at one time for if C. dyed first then is B. never like to have any benefit thereof And if B. himself should dye before C. then also were it impossible for B. to make any use of this Estate for the life of C. unless it were in him to grant away to another as in the Case of the Office in the 1 H. 7. where an Office 1 H. 7. 29. Crofts Case is granted to the King the King could not have the Office himself and so in that point for the King to take by the grant he could not yet by that book it was in him to grant over to another which might have it And like to this is the Case where I. S. is Parson of the Church of Dale and the Patron grants the next avoidance this grant can he himself take no benefit by unless he resign yet if he dye it shall come to his Executors But I take the Law to be in my Case that B. shall not by the first Condition have both the Estates in him at once that is for his own life and after for the life of C. but that the Estate of B. by the first Condition shall be decreased or changed from his own life into the life of C. and shall be melted and newly molded by this Condition for an Estate may as well decrease as increase by a Condition and yet the Lord Staffords principal Case was That Queen Elizabeth did grant the Mannor to Tindal and the heirs of his body upon condition upon payment of Twenty shillings to her by Tindal that he should have the Reversion to him and his heirs and there it is holden for Law that by the payment of Twenty shillings the Reversion in Fee simple shall increase to Tindal and shall not alter or drown the Estate Tail which is an excellent Case but alter the putting of that Case and then it may alter the Law also that is I give Land to I. S. and the heirs of his body upon condition A Conceit if he pay me Twenty shillings that he shall have the said Lands to him and his heirs In my conceit by the performance of this condition the Estate Tail is by increase changed into a Fee simple in which note the difference between Tindals Case and this where upon payment of 20. s. the reversion is granted to him and his heirs and where the words be That upon payment of Twenty shillings he shal have the Lands to him and his heirs In the first Case the Fee-simple accrewing shall not alter the Estate Tail but in the second Case by the Fee increasing the Estate Tail is determined and changed into a Fee simple quod quaere Admitting the first condition did increase the Estate of B. from his own life to the life of C. and the second condition is performed by the which another Estate will accrew to B. as I take it will because an Estate decreased is parcel of the first Estate then what Estate B. hath got by this new Limitation is the question And in my Opinion he hath at the most but gotten an Estate again for his own life and that the Limitation to the heirs of the body of his father is utterly void be his father dead or alive for if his father be dead his elder brother is the heir of his body within these words of Limitation who cannot take the Lands by descent Littleton estate Tail from B. his Brother or from his Father but as the Case is put in Littletons Title Tail and in the 4 and 5 Ma. in Dier Ereswoulds 4 5 Ma. Dier Case where Lands were given to the eldest son and the heirs of the body of his father this is a good Estate in Tail being made to the eldest son because he is capable to take the Lands in
Disposition and of good Estate should be put into these Commissions of Sewers the Statute did make choice of four Honorable persons to have and take the nomination of such as should for their Integrity Learning Wealth Wisdom and Experience be worthy to be put into this Commission And therefore the Lord Chancellor Lord Treasurer and the two Lord chief Justices for the time being have by this Statute the nomination of our Commissioners But as these great persons of Honor by their high places are most commonly busied in matters of great importance they many times refer these matters to others by means whereof divers persons in some countreys have of late years crept into Commission which this Statute doth not allow of which do not only want knowledge and experience but which are also transported and carried away with selfwill and serve most commonly to make a faction of the greater number to carry away businesses when the graver and wiser sort are forced being overladen with popular voices to give way to run into contrary courses and are made to surcease from making good and wholsom Laws and Ordinances and sometimes are as it were forced to agree to those which are whose even as the Roman Dictator Fabius having joyned to him the froward Minutius was by the violent stream of his colleague so crossed and overswayed not out of judgement but selfwill that he was forced to give way to Minutius frowardness though it tended almost to the hazard and the overthrow of the whole Roman Army And because the Commissioners are the persons through whose hands the execution of all these Laws must passe I thought it therefore very convenient to take into examination this part of the Statute which touch and concern them And I intend to purge the Commission of such of them as these Laws have disalowed and to that purpose I have framed this insuing case which I take it will give us occasion to call them all into question and to sever the just from the unjust the sufficient from the unsufficient and the learned from the illiterate The Case A. demiseth to B. and C. Land of the yearly value of Sixty pounds cum stauro of the value of Two hundred pounds for their lives the Remainder to D. a free Citizen of Lincoln B. and D. disseise C. of the Land and take the stock C. releaseth to D. the goods absolutely and the Land upon Condition D. dieth in Exile E. his son and heir enters B. and C. who enter for the Condition broken E and Francis Countes Dowager of Warwick and three other Commissioners of the Quorum of Sewers make a Law to raise a Were erected upon a River navigable at the costs of the party because it hindred the current of waters My conclusion is That here be competent Commissioners in number and in Estate which made this Law and that this Law is well decreed within this Statute The case I do distribute in these points viz. Three at the Common Law and four upon this Statute the points I intend by the Common Law are these First whether the Sixty pounds stock can be demised and letten for life with the Remainder over as this case is Secondly whereas B. and C. be two Joyntenants in possession whether one of the Joyntenants and a stranger can so disseise the other Ioyntenant as to transfer thereby an interest and Estate to the stranger Thirdly because the Release dependeth upon the disseisin the question is in what maner it doth inure and whether it shall expel B. out of that moyety because it is made to the stranger and then what is reduced by the Condition whether a possession action or a right Points upon this Statute First whether the Son of the free Citizen exiled is a disabled Commissioner in respect of his person and whether he hath such an Estate either in Lands or goods as will satisfie this Law Secondly whether the Countess may be a competent Commissioner within this Statute Thirdly whether a joynt interest in Lands or goods will make the Ioyntenant a sufficient inabled Commissioner within this Statute Fourthly whether the Were as this case is be raced down or not And hereupon I intend to lay open the whole division touching the Lets Impediments and Annoyances which this Statute speaketh of Argumentum Lectoris I meant it not for a point in this case whether goods might be let with Land nor whether a stock might be leased with a Farm because I finde the Books of 1 H. 6. 1. and many others full in the point that they may And although by the taking of them back again by the Lessor they will thereby suspend no rent yet in the original demise they may be a cause to increase the rent but my point herein is double First whether they will passe in Remainder as my case doth limit them Secondly whether they will inable B. and C. to be Commissioners of Sewers alowed by this Statute I do not onely finde stock let with Farms but also joyned in Real actions with Land for in the Writ of Assize the words be Quod vicecomes faciat Tenement ' illud reseisiri de catallis quae in ipso capta fuerint ipsum Tenement ' cum catallis esse in pace usque c. These doubtless were such goods as stocked the grounds and which usually went with the same for in ancient times when any farmed grounds they usually farmed the stock thereon going and this appears by ancient presidents Sed nunc aliud tempus In the Writ of Ejectione firmae in the Register be contained these words Ostensum quare vi armis manerium de Dale quod C. prefat ' A. dimisit ad terminum qui nondum preteriit intravit bona catalla ejusdem A. ad valentiam c. in eodem manerio inventa caepit asportavit So that in those Writs of Assize and Exjectione firmae the one to recover the Freehold the other the Leasehold We finde goods which went with the Manor or Farm made parcel of the plaint and I take it damages shall be increased therefore for these were such goods as stockt the Farms And in Wrotsly and Adams Case in Plo. Com. Exception was Wrotsley and Adams Case taken in abatement of the Writ because the words bona Catalla were left out of the same Yet in my opinion no estate neither in presenti nor in remainder can be made of Goods or Cattel neither shall they go with the Land in point of Estate but shall passe to the Lessee and after to him in the remainder as a dependancy upon the Farm And the Heir shall have Heir-looms together with the Mansion House as things necessary concurrent therewithal yet the Heir-looms have no descending qualities but they do go with and wait upon the house as necessary Instruments fitting to be used therewith neither can it be gathered by the Book of 37 H. 6. fol. 30. that the Book called The Grail which
was devised by will to A. one of the executors 37 H. 6. to have the occupation during his life the remainder thereof in like maner to B. for his life and after to be disposed by the executors to the Churchwardens of Dale that it did passe to A. and B. in point of Estate but only the use and occupation thereof was disposed to be ruled according to the said Limitations but the property remained in the executors So in Paramore and Yardleys Case in the Com. and Paramore Yardleys case Mannnings case in Matthew Mannings Case in Cooks Reports a Term of years could not be devised to A. for life the Remainder thereof to B. for his life to passe in this maner in point of Estate neither could these Estates be made thereof but by construction the same was disposed of to go by way of executory devise and so the stock in my case was not transferred in point of Estate with the Land but in point of executory disposition of the Occupation and use thereof onely and therefore if one let a stock of cattel or sheep with grounds at the end of the Term the goods as accessary with the Land as principal shall return to the Lessor and during the Term the Lessor hath the property of them and the Lessee the possession thereof and the Lessee shall have the yearly profits thereof for his Rent and here I do end this first point and will proceed to the rest The second Point There be two Joyntenants and one of them and an estranger do disseise the other what interest the stranger gaineth thereby is the question I am clear of Opinion as many books be That one Joyntenant may disseise his companion by an expresse Ouster but when a stranger joyneth therein in what part that doth alter the case is the matter for if the stranger should get a joynt Estate in possession with the Joyntenant whom he joyned withal that were to make a double Joynt-tenancy in uno eodemque gradu for the Joyntenant which committed the disseisin which hath the possession and the Joyntenant which was disseised and which hath the right do hold Joyntenancy still for by 36 Ed. 3. right may hold 36 Ed. 3. Ioyntenancy with a possession and the one may take by survivor from the other in 9 H. 7. fol. 23. That he in Remainder and a stranger may disseise Tenant for life and shall be both disseisors but in that case they were both strangers to the particular Estate Also it is manifest that one Ioyntenancy may be built upon another As if two Joyntenants be disseised by other two Joyntenants of the right semel but not simul But in our principal case Whether one Ioyntenant might hold the possession of a Moyety with his first companion in Ioynture with his moyety in right and can also uno tempore hold Ioyntenancy in possession with a stranger of the moyety upon which the disseisin was committed I suppose he cannot because then he should hold partnership with both of one thing And therefore in my opinion the stranger getteth nothing in my case but is onely a Coadjutor and no Disseisor which gets the Tenancy The third Point But admit the stranger did get a moyety of a moyety by joyning in the disseisin then what alteration this release will work in my case is the next question It is true as Mr. Littelton saith That if there be two Littleton Disseisors and the Disseisee release to one of them he shall hold his companion out of all the like Law is in my case of two abaters and two intruders but if two disseisors be and they make a Lease for years rendring Rent and then the Disseisee releaseth to one of the Disseisors I suppose this release shall inure to both because the Lessee for years whose Estate shall be strengthned by this release is in by the Title under both of them and now they are Tenants of a Reversion onely and of a Rent thereto incident which was not got by the disseisin but was composed by the Legal contract of the parties So if two be admitted to a Copyhold by Tort or to an Office in a Court of Justice unlawfully though their entry be unlawful yet because they came in by admittance which is at the door of Justice I suppose therefore that if a release be made to one of them by the disseisee it shall inure to both because they had some colour and countenance to enter more then expresse disseisors or intrudors have But if a Son and a Stranger disseise the Father and after the Father dyeth and the right descend to the son by this release in Law and by the accession of the right by descent to the tortious possession it doth inure only to the son and although this release was upon condition which by the breach thereof seemeth to set the Relessor in the same state he was before yet it doth not admit the Joynt disseisor which was expelled thereby to become a copartner again with his fellow As if the son and a stranger disseise the father and the father dyeth the stranger hereby is expelled by the descent of this right to the son yet if after a more near Heir is born as the Elder brother dyed his wife Einsent with a son which after the decease of the Grandfather is born whereby the Inheritance of this Land is his yet the other Joynt disseisor which was expelled by the descent of the right of his fellow disseisor by the departure of the right with the possession cannot enter upon his fellow disseisor in my opinion But now the question is further what is reduced by this condition the right only which was released or the possession together with this right for if but a right be reduced then a descent hapning may perchance Toll the entry of the Relessor and so he may be put to his Writ of right in Fee And if it be a right of an inferior degree as in our case it was but for life then he should be with out remedy But in my opinion where the release doth inure by way of 17 Assiz pl. 2. 17. Ed. 3. entry and Feoffment being upon condition it may in that case by the breach of the condition reduce the possession and give the Relessor a Re-entry because in Intelligenti a legis the Land was passed thereby and not a right only But if it had inuted by way of Mitter le droit only I take it Bevils Case 4 Report then it would reduce but a right But in our case I suppose if it had had any working at all it was by Entry and Feoffment yet I think nothing did inure thereby to the stranger which in my case is called D. because he wanted the Freehold whereupon it should inure And so I end my Common Law points and I will now in hand with my Statute The parts of the Statute whereupon I do ground my subsequent
cannot be imparted to another It is true that the personal view cannot be lent to another or divided from the person no more can the personal touch or act of my hand be imparted to another and yet express Livery which is the deed and act of the hand may be done per auter maine Sir Francis Englefields Case in the seventh Report of Sir 7. Reports Englefields Case Edward Cook gives us a pretty difference where the act to be done is unseparably tied to ones person and where not as in the Case of Thomas Duke of Norfolk where upon conveyance of divers Mannors to Philip Earl of Arundel his Son there was a Proviso That the Duke might revoke the same upon signifying of his minde under his own proper hand in writing c. This power of Revocation was not transferred to the Queen by the Attainder of the Duke because it was inseparably tied to his own proper hand But the principal Case there of Englefield where the Canc. in Combs Case Lands were setled upon his Kinsman with power That upon tender of a Ring by him he might revoke the uses and this was forfeit by his attainder and the Queen by a Letter of Attorney made to two did tender the Ring for this was not precisely or literally tied to Englefields person no more then payment of Money or such like And so in our Case though by the Law I take it that Livery within the view must be in the view of both the parties yet this may be done by Attorneys for as my own hand is not precisely tied by the Law to an express Livery no more is my own eye expresly tied to this view And we see in views in an Assize the under Sheriff or 36. H. 8. Dier the Sheriffs Bailiffs by his direction may make the view and yet the Writ is direct to the Sheriff to do the same Morse Penningtons Case and in those Cases an intellectual view will serve as if the Jurors know the Land but such an intellectual view will not serve in a Feoffment but there the view must be actual Yet I take this difference that if a Letter of Attorney be directed to A. B. to make Livery and Seisin he cannot do the same within the view for therein he doth not pursue his warrant but if the Letter of Attorney be special to give or take Livery within the view I am of Opinion then the Livery may in such a Case be given and taken by Attorneys within the view as well as in Combes Case in Sir Edwards Cooks 9. Report where it is affirmed that a surrender of a Copy-hold may be given and taken by Attorneys which is as personal as this is in the taking part because Fealty ought to be made Some things may in this Case be further aleaged in this third point which I now have in hand that is Who must make the Letter of Attorney on the Feoffees part whether the Lessee for years or he in the remainder or both of them For Lessee for years it is to be noted that his Estate hath not any perfection thereby and he seems himself but a Deputy and if so then a Deputy cannot make a Deputy but yet he is not meerly a Deputy for if there be two Lessees the Remainder in Fee to I. S. one of the Lessees may take the Livery and Seisin yet if a letter of Attorney be made to two joyntly one of them cannot take it and if in our Case the Lessee had dyed before entry the Livery might have been made to his Executors and powers and authorities cannot be apportioned and come to Executors in such maner Ergo It is more then a power of a Letter of Attorney for the reasons aforesaid and for these insuing For the Lessee for years cannot be prohibited from taking his Livery by the Lessor but a Letter of Attorney may be countermanded yet the Lessee alone cannot make this Letter of Attorney neither can he in the remainder make the same because he could not himself accept of the present Livery neither can he meddle with the present possession which a Livery and Scisin yields But I am of Opinion That Lessee for years and he in remainder must joyn in the Letter of Attorney for these Reasons First they were both one party to the Deed so ought they to be to the Letter of Attorney which is to give life thereunto Secondly they be but in Law one Tenant Thirdly they should joyn in Advoury And in many Cases the Lessee shall have ayd of him in remainder for the privity between their Estates and although the Lessee gets no Estate by the Livery yet he assists himself thereby with the ayd and strength of him in the remainder and the Livery goes through his Estate and so passeth into the remainder Therefore my conclusion is that they shall joyn in this Letter of Attorney and hereby I suppose I have conveyed a good Estate in the maner to I. S. in the remainder to maintain my position for him in the end of my Case and here I end my three Common Law points and now am come to the Statute The Readers Argument upon the Statute and Commission The Sea within the Realm of England FIrst touching our Mare Anglicum in whom the interest therein is and by what Law the Government thereof is is a fit question and worth the handling And in my Argument therein I hope to make it manifest by many proofs and precidents of great worth and esteem that the King hath therein these powers and properties videlicet 1. Imperium Regale 2. Potestatem legalem 3. Proprietatem tam soli quam aquae 4. Possessionem Proficuum tam Reale quam Personale And all these he hath by the Common Laws of England in the 6. R. 2. Fitz. Prot. 46. it is said That the Sea is within 6. R. 2. the Legiance of the King as of his Crown of England This proves that on the Seas the King hath Dominationem Imperium ut Rex Angliae and this by the Common Law of England The Charter of the Admiral of England hath these words Admirals Charter in it Quod habeat potestatem in causis maritimis ac omnia bona waviata Flotsan Ietsan Lagan ac omnia bona Mercimonia catalla in mare depordita seu extra mare projecta ac omnia singula casualia tam in vel super mare vel littora crecas vel coster as maris quam in vel super aquas dulces portus flumina rivos aut alios locos superinundatos quoscunque inter Fluxum refluxum maris ceu aquae ad plenitudinem à quibuscunque primis pontibus versus Mare per totum Regnum Angliae Imprimis this Charter is under the great Seal of England quod est Lex Angliae The King grants to the Admiral thereby power in Maritine Causes which proves the Kings legal power and jurisdiction on
examine this part of the Statute which produceth these matters I have framed a Case which doth give occasion in this days exercise to dispute of all them The Case for the second Lecture A. Leaseth his Mannor in the county of Lincoln in which Second Case be Copyholds to B. a yonger Son for his life upon condition to have it for the life of C. upon condition to have it to him and the heirs of the body of his Father A Copyhold is forfeit the first Condition is performed the Commissioners of Sewers in that county upon view survey and by their discretion decree a new bank where none was before to resist the Sea and a new River to be cut to drain the superfluous waters in S. and an old Sewer in D. to be repaired and by inquisition assesses B. the Lessee for the Mannor the Copyholder for the Copyhold Land and the Town of S. and also the Parson there for his Tythes because they lie all in the Level the second condition is performed B. enters in the Copyhold My conclusion is That this new Bank new River and old Sewer be well decreed but the said sesse is void in toto in qualibet parte Points at the Common Law The Points of this Case are three at the Common Law and three upon this Statute but all of them are so woven within another that every one of them go hand in hand from the beginning to the end of the Case Imprimis Whether the Duplicate Condition be good or not Secondly What Estate B. the yonger Son hath by the first Condition and what Estate he hath got by the second Thirdly A Copyhold becomes forfeit to the Lord and before the Lord take advantage of it his Estate is changed Whether by the change of his Estate the benefit of the forfeiture be lost or not Points upon the Statute Imprimis Whether Commissioners have power to decree a new bank a new drain and other new defences or not And herein the qualities and properties of Rivers Streams and Banks and their dependants are to be treated of Secondly Whether they may decree the said new defences by view and survey And herein is to be handled What Commissioners of Sewers may do by survey and what they may do by their discretion and what they may do by Jury Thirdly in what cases Assesses and Taxes may be laid and imposed and on what things and in what maner they are to be imposed and whether the Rates set upon the persons in any case be well done or not and where the fault is if any be Argumentum Lectoris Seeing it hath been the ancient order for the Reader of this place to maintain the Conclusions of his Case I shall therefore endeavor my self to perform that order which Custom hath imposed upon me and accordingly as I have concluded so I take the Law to be And touching the first Point it hath been challenged and drawn in question upon some Opinion delivered in the Rector of Cheddingtons Case in Sir Edward Cooks first Report where it said That one contingent cannot depend upon another Sir Ed. Cooks 1 Report But more strictly it is called to an accompt in the Lord Staffords Case in Sir Edward Cooks eighth Report for there it is Cook Rep. 8. held That one possibility cannot depend upon another possibility and this Case is there put That if A. let Lands to B. for years upon condition to have it for life and upon condition to have Fee that the Fee simple can never increase by the second condition but as he saith in another Case Amicus Plato Amicus Socrates sed magis amica veritas his rule taken in the first Case is very general and the Lord Staffords Case admits distinctions which in my Argument I shall apply my self unto And some differences I shall take in this Point in question therefore I shall thus distinguish That if upon performance of the first Condition the Original Estate be determined upon which both the first and second Condition were built and grounded the second Condition and increase thereupon is utterly void but if the first Estate be not destroyed nor confounded upon the first Condition performed the second Condition and Estate thereof which shall be gotten thereby may then well grow upon the old stock To explain this by Example If A. give Land to B. in Fee simple upon condition to have the Land in Tail upon condition to have for Life here because the first Estate and Livery by the first Condition is not destroyed therefore the second Condition should well stand in force So I do make a Lease to A. for twenty years upon condition to have the Land for forty years upon condition to have Fee this first Condition and second Condition may have both their full operations for by the performance of the first Condition the lease of twenty years is not destroyed but stands on foot and therefore the original Estate remaining unconfounded the Fee simple may well increase by the performance of the second Condition But if a Lease be made to A. for his life upon condition to have in Tail upon condition to have Fee the second Condition here is utterly void because by the performance of the first Condition A. had an Estate in Tail which drowned and destroyed his Estate for life and so because every decreasing and increasing Estate is to depend upon the first Estate which receives the Livery which is the life of all therefore the second Estate can never accrew in this case and this is true reason as I take it of the said Case put in the Lord Staffords Case for there the Case for years was destroyed by the Lease for life which came by the first Lord Staffords Case Condition and so the Fee simple there could never accrew by the second Condition And in answer to the said general ground taken in the Rector of Cheddingtons Case That one Rector de Cheddingtons Case contingent or possibility cannot depend upon another under favor I take it not that I am bound thereby neither was it the meaning of Sir Edward Cook as I take it to extend the same so largely as they are there put because I finde many Authorities of great account which are against the said general position And first in the 38 H. 8. Br. Feoffments pl. 71. a Feoffment 38 H. S. was made to the use of A. and his heirs until I. S. paid him Ten pounds and then to I. S. and his heirs and so to the third person and what is this but one condition contingent and possibility to depend upon another for these contingents there were held good and were built upon a sure foundation And so in Digs Case in Sir Edward Cooks Reports where a Feoffment is made to the use of A. and his heirs with Digs Case power of Revocation and after of new Limitation of Estates these be also contingents and possibilities
title to Land by Action Condition or Entry or he which hath a contingent use shall not be taxed for them Neither was Cestui que use at the Common Law before the Statute of 27 H. 8. of uses nor is the Bargainee of Land before the Deed be inrolled sessable by this Law Neither is one who hath the presentation or nomination to a Church as Patron or he which is Founder for his foundership Taxable within this Statute yet they be Tenements the largest words of charge within this Law but the Law intends the immediate possession of such Tenements which be proficuous and not these things which be Tenements in Law and which be but conveyances and their fruit is Ceremony without Substance This Law setteth down such things for the which one is chargeable viz. He which hath Lands Tenements Rents Commons of Pasture Profit of Fishing or other Commodities and such as have Safety Profit Defence or any other Commodity These be the words of charge recited by this Law This word Land is of large extent for it reacheth to house Arrable Pasture Meadow Mills Tofts and to all other Edifices Moors Marishs Woods Wood grounds for all these the earth is the substance Et omne solo cedet and the several increases thereof be but qualities The word Tenements is of larger extent then Lands for it containeth all which the word Lands doth and all things else which lyeth in Tenure so that I think it shall be but labor lost to enter further into the particulars thereof Lord and Tenant IF there be Lord and Tenant and the Tenant holdeth of the Lord by yearly Rent services the Lord may be rated as well for his Rent as the Tenant for his Land to Annual repairs as well as to accidental by reason of these words in the Statute that is That every one be rated and taxed according to the rate of every persons Rent Tenure or profit here be full words to charge the Lord for his Rent and so Rent charges and Rent seck shall be subject to sesses in this kinde for otherwise the Tenant of the grounds may be undone thereby in regard the Rents going and issuing out of the grounds may amount to as much almost as the yearly value of the grounds do But if the Rents be so smal as they are scarce worth the gathering then in discretion the Commissioners may spare them for De minimis non Curat Lex Also whether the remainder man and he in Reversion depending upon an Estate in Tail shall be rated and taxed or not by the power of these Laws is an apt question for this place and therein my opinion is That being dry and fruitlesse Remainders and Reversions they shall not be sessed to the repairs but the Tenant in Tail in possession shall be solely charged for it is more to be feared that Tenant in Tail will cut off the Remainder and Reversion by a Recovery then that the Sea shall drown his Estate by an overflow Lessee for years and he in Reversion IN the Case of the Lessee for years and for life and those in Reversion and Remainder there is a greater cause of dispute then between Tenant in Tail and he in the Reversion And because it is an often Case I have therefore taken the more pains to resolve the same First the Lessee is in the present possession and so is subject to all ordinary charges and with this agreeth Jeffrays Jeffrays Case Case in Sir Edwards Cook 5 Report for there the Case was resolved that where the Inhabitants of a Town were assessed towards the repair of a Church there the Lessee for years was charged and not the Lessor though he had a yearly Rent reserved For in point of the Rent this Case and that will differ by reason Rents be expresly within this Law but I now speak of a Lessee where no Rent is reserved In 17 Ed. 4. fol. 6 a Tenth was granted to the 17 Ed. 4. King by Parliament of the value of their Lands and the Lessee for years was charged therewithal and so was the Law there taken if the Parliament had given the Tenth part of the issues and profits of the Lands The Case of the Proxies in the Irish Reports doth in my Opinion in reason resemble this Case for the Case was Case of Proxies there That the Bishop of Meath in Ireland had a Proxy of fifteen shillings payable out of the Commandry of Kells then parcell of the possessions of St. Johns all which came to the Crown by the dissolution of Monasteries in that Kingdom and after the said Bishop granted the said Proxies to Queen Elizabeth and after Q. Elizabeth made a Lease of the Commandry to Dr. Forth reserving a yearly Rent without mentioning the Proxy And it was there resolved That Doctor Forth the Lessee for years should be at the charge to pay the said Proxy with all the arrerages thereof which did incur in his time And so in the case of a Rent charge the Lessee is chargeable and he is to pay the Tythes and the Composition money due therefore So that these Cases sway strongly against the Lessee for years to lay the whole charge upon him and to exempt the Lessor But yet we must here distinguish and make a difference between Annual repairs in ordinary things and extraordinary repairs for to furnish the defence with petty reparations they shall be laid only upon the Lessee for years or for life but if a new Wall Bank or Goat or Sewer be to be built new and erected or if the ancient defences be decayed in the main timber or in the principal parts thereof here as well the Lessor as the Lessee shall be put to the charge for these things be not ordinary and annual charges but do reach from the beginning of the Lease to the top of the Inheritance as for petty reparations they are by intendment to continue but for a short time which are likely to be spent during the term and lease but these new defences are apparantly done to save the Inheritance And this difference holds good correspondency with other Cases in our Law as in 49 Ed. 3. fol. 1. and 3 Eliz. in Dyer fol. 198. and in 49 Ed. 3. 3 Eliz. Dier that Book again fol. 134. and in divers other Books it is holden for Law That if a house in Lease decay in the Groundsels Post or Balk in the great timber in direct wearing by tract of time and not in default of the Lessee the Lessee may take and cut up timber growing on the grounds leased to repair the same and the Lessee shall be at charges of workmanship for the repairs are in matter of right and do the Lessee good during his Lease and the Lessor after the expiration thereof And because these great repairs extend to both their goods therefore they shall both be contributory thereto But if a house be decayed in splinting thack walling or in such
matters doth contain in it these words viz. That if any person or persons of what Estate or Degree soever he or they be of that from henceforth do take upon him or them to sit by vertue of the said Commissions not being first sworn according to the Tenor of the Oath expressed in the Statute or if any person so named and sworn do sit not having Lands Tenements or other Hereditaments in Fee-simple Fee tail or for term of life to the clear yearly value of Forty Marks above all charges to his own use Except he be Resciant and Free of any City Borough or Town Corporate have moveable substance of the clear value of One hundred pounds or else be learned in the Laws of this Realm in and concerning the same That is to say admitted in one of the principal Inns of Court for an utter Barrister shall forfeit Forty pounds for every time that he shall attempt so to do the one moyety to the King the other moyety to the party that will sue therefore c. So that by this clause it is manifest that every one that is not qualified in one of these degrees is no competent Commissioner within this Statute First that he be an utter Barrister in one of the four Inns of Court Secondly or have Lands Tenements or Hereditaments of the clear yearly value of Forty Marks above all charges in Fee simple Fee tail or for life Thirdly or be Free or Resciant in some City Borough or Town Corporate and have moveable substance of the clear value of One hundred pounds And that person which is not within one of the said three parts and yet doth take upon him to sit in the execution of this Commission incurs two penalties The one the forfeiture of his discretion for his presumption The other of Forty pounds for his contempt And therefore for the more clear examination of these things I will observe that method in my Argument which my Case hath formerly prescribed to me And first of all I shall proceed to the personal abilities and first of the son of the free Citizen of Lincoln I am of opinion that every Commissioner of this kinde must be indowed with these three qualities First he must be free of a City c. If he want any of these then he is out of this Branch of this Statute Secondly he must be there Resciant and Thirdly he must have in clear moveable Substance One hundred pounds and Therefore what person is such a Freeman is now to be handled I am of opinion that every Subject born within the Kings Dominion is a Freeman of this Realm as appeareth by the Grand Charter cap. 14. yea though he be a Bondslave to a Subject but a stranger born is no Freeman of the Kingdom till the King have made him Denizen in whose power alone without the help of any other one may be made free And to be a Freeman of the Realm the place of his birth is held more material then the quality of his Parents for if Aliens have a childe in England it is free of the Kingdom yet by the Opinion of Hussey Chief Justice in 1 R. 3. fol. 4. and in Calvins case of the Post Nati it is holden for Law That if Ambassadors of this Realm have children born in France or elswhere where the Father and Mother be natural born Subjects the children are free of the Realm of England but if either the Father or the Mother of such children were an Alien then are not those children free One out of the Kings protection is as I take it for that time no Freeman of the Realm But in what case a man Exiled is in sorteth the nearest to our question Exile is one of the Eight Punishments which the Roman Laws did inflict upon Strangers which be videlicet 1. Damnum 2. Imprisonamentum 3. Plagae 4. Compensatio 5. Ignominia 6. Exilium 7. Servitudo 8. Mors. Mr. Bracton doth in this maner describe Exile that is Certi loci interdictio and doth distribute it into Four heads That is to say 1. Specialis hoc est interdictio talis provinciae Civitatis Burgi aut villae 2. Generalie Interdictio totius Regni aliquando est 3. Temporaria pro duobus tribus quatuor aut pluribus annis aut c. 4. Perpetua pro termino vitae Exilium est aliquando ex arbitrio principis sicut in exiliando Duces Hertferdiae Norfolciae per Regem Richardum secundum Et aliquando per Judicium terra ut sit in casu Piers de Gaveston etiam in casu Hugonis de le Spencer junioris qui ambo fuorunt exilit ' per Judicium in Parliamento Abjuration also was a legal Exile by the Judgement of the Common Law as also by the Statute Law and in the Statute of Westminster the Second Cap. 35. He which ravisheth a Ward and cannot render the Ward unmarried or the value of his Mariage must abjure the Realm and this is a general Abjuration And by a Statute made in 31 Ed. 1. 31 Ed. 1. Butchers are to be abjured the Town if they offend the fourth time in selling measled flesh and this is a special Abjuration But I must put this Case to a further question which is What a man Exiled doth forfeit thereby And in my opinion he forfeits these things following First he loseth thereby the freedom and liberty of the Nation out of which he is Exiled Secondly he forfeits his Freedom in the Borough or City where he was free for he which forfeits the Freedom of the whole Realm by consequence forfeits his Freedom in every part thereof Thirdly he is of as little esteem in our Law as if he were dead for his Heir may enter and so may his Wife enter into her own Lands and may sue an Action as a woman sole by 31 Ed. 1. 1 H. 4. 31 Ed. 1. 1 H. 4. 1. And fourthly in my opinion he shall forfeit those Lands to the King which he shall purchase in the Realm during his Banishment qued vide 15 Ed. 3. Fitz. Petition ' plac 2. But there in that case Hugh Spencer was banished by a Judgement in Parliament which gave a forfeiture of his Lands howsoever I take him as strongly barred from purchasing in the Realm during his Banishment as an Alien is for fit alienigina by his Banishment and he is in a worse case then an Alien because he taketh with him Indignatio principis But a banished man forfeits neither Title of Honor as Knighthood which is de jure gentium nor the Lands he had before he was Exiled unless by special Judgement given in a legal course they be so decreed Then our case goes further That E. is not Exiled himself but D. his Father was Exiled whose Heir E. is now whether by the Exilement of the Father the liberty and freedom which E. might claim in the City of Lincoln by being the Son and Heir
and a Villain for years and a Captive taken in the Wars be for there shall be paid for him a Ransom as is mentioned in the Register fol. 102. Moneys due upon Statutes Judgements Recognizances Bonds Bills or Contracts be not valueable substances within this Statute for by this Statute it must be clear and not doubtful or accidental as Moneys out of hand be which is like to a Bird in the Bush yet these be all valueable and are valued in Inventories taken in the Ecclesiastical Courts But yet the Executors or Administrators shall not be charged for assets for them till they have received them And in 25 H. 8. in Dier fol. 5. Obligations are not held valueable but things in action and if one 25 H. 8. have got goods by tort and wrong to the value of One hundred pounds yet this is clear valueable substance within this Law for although the word clear be inserted into the Statute yet that relates to the value and not to the title of those goods And if one have goods as Executor or Administrator these are not his own and therefore do not inable him to be a Commissioner within this Law Neither do the goods of the Church inable the Parson Vicar or Curate nor the goods of a Corporation do not inable the Major and Aldermen or Citizens of a City or Town Corporate for these do not belong to their particular persons neither did this stock in my case which is demised to B. and C. make them competent Commissioners within this Statute because they had not the property therein but onely the use and occupation thereof And although in this Statute it is not declared in what place these goods which should inable a man to be a Commissioner of Sewers should be in it will suffice if the party have them in any place within the Realm for this very Law calls them Moveable substance And herein I end my Free Citizen and in my opinion E. had neither Freedom in his person nor real Estate in Land nor moveable substance in any sort to make him a competent Commissioner within this Law yet if a Freeman be destitute of goods or want perfection in his Freedom if notwithstanding he have Lands to the value of forty Marks per annum then he shall be allowed a Commissioner within this Statute Touching which point of Lands I now intend to proceed in In the handling of this matter it is to be considered which be Hereditaments within this Law for the other two words Lands and Tenements need no exposition wherein I am of opinion That Messuages Cortages Toâ—â—s Crofts Houses Land Meadow Pasture Feedings Moors Marishes Heaths Furs Mills Orchards Gardens Hopyards Rents of Annuities Prima vestura terrae Pischaries Tythes Pensions Portions Proxies Parks Warrens are all of them Hereditaments within this part of this Law for the word Hereditament is a word of the larger size and largest extent in our Law being Omne quod Haereditari potest and yet every Hereditament is not within this branch for it hath two other words joyned therewithal videlicet yearly value And therefore Franchises and Liberties as Waifs Strayes Felons goods Deodans Fines Amerciament Profits of Courts Fairs Markets Ferries Hundreds Leets and such like are all of them out of this Statute in this point because they be not of a certain yearly value but be accidental and depend in contingency by the opinion in Butler and Bakers Case Cooks 3 Report But as it is there said If these things have heretofore been usually letten and demised for certain yearly Rents then they may be Hereditaments of clear yearly value within this Law All Offices and Vocations as Physitians Chyrurgions or Trades as Merchants Mercers Grocers Drapers and such like be neither Hereditary nor of certain yearly value and therefore they be not within this Law though perhaps one gain thereby Five hundred pounds per annum Also dry reversions or remainders depending upon Estates for lives are out of this branch for the words of the Statute be having which is in praesenti and not futuro Neither is an Advowson of force in this point though it be assets in a Formdon yet it is no assets in an Action of debt brought against Executors Homages Fealties Escuages Heriots Reliefs Nomine paenes and such like be Hereditaments but because they are not of yearly value they are not therefore within this Law Also if a Commissioner of Sewers be seised of a Rent or Annuity payable every second year it doth not inable him to sit because it is not Annual which is intended yearly and every year as the Pryor of Plymptons Case in Dier fol. 133. is but if one do grant to I. S. an Annuity or Rent of Forty Marks in Fee payable at the feast of Easter yearly if the grantee will then come for it to such a place is of certain yearly value within this Law But put the case that A. is seised of Land in Fee and grant to B. Forty Marks per annum for his life only I am of opinion that B. is no sufficient qualified Commissioner within this Law But if A. be seised of a Rent of Forty Marks per annum in Fee and he grant the same to B. for his life he is a competent Commissioner within this Law differentia apparet Our Statute goeth on in these words That the Commissioner which would sit without exception must have in Lands Tenements or Hereditaments of the clear yearly value of Forty Marks to his own use Therefore a man seised of Lands to that value in the right of his wife although he take the Rents and Profits to his own use yet this will not inable him to be a Commissioner within this Law but he must have them in ejus usu ad ejus usum A Feoffee to a use before the Statute of 27 H. 8. of uses was no competent Commissioner within our Statute for he had the Land then to another mans use Neither was Cestui que use sufficiently qualified to be a Commissioner Two Tenants in common or coparceners of Forty pounds Lands per annum are neither of them of sufficient ability to be Commissioners within this Law And the like Law is of two Joyntenants of Land of that yearly value for though they be seised per my and per tout yet in truth and in a legal construction either of them be seised but of a moyety So that if two Joyntenants Tenants in common or coparceners be seised of Lands of the yearly value of Threescore pounds either of them may sit by this Commission A Dean and Chapter Major and Commonalty Master of a Colledge and Fellows which be seised of Lands and Tenements of the yearly value of a Hundred pounds per annum are not in respect thereof to sit If a Bishop Dean Chancellor Archdeacon Prebend Parson or Vicar be seised of Lands in Jure Ecclesiae of the clear yearly value of Forty Marks I suppose these may