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 â—â—ue 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
â—ings in Aâ—â—n 97 If the King grant his owne recognisance the suit shall be in the name of the grantée but if he grant an obligation forfeited for outlawrie Dier 1. 7. P. 4 H. 8. the suit shall be in the Kings name â—e like Fuit dit 98 Bruerton who was attained 28 H. 8. had certaine obligations Dier 30. b. 208 28 H. 8. which were forfeited to the King and the King grants them to his Wife without any words that it should be lawfull for the grantée to bring Actions thereupon yet the Feme brings an Information in her owne name for the said obligations And upon demurrer thereupon it was adjudged that the Action was well brought because the King onely may grant a thing in Action Finch as Ley French edition Fol. 22. 99 The King may licence things prohibited by Statute The Kings â—cence as to coyn money which is made Felony by the Statute and before that it was lawfull for any one to do it because it is but malum prohibitum But malum in se as to levie a Nusance in the high way the King cannot licence a man to do but after it is done he may pardon it Howbeit if the Statute saith that his licence shall be void there the licence shall have a clause of non obstante 2 H. 7. grants 73. viz. shall say Notwithstanding any Statute to the contrary otherwise it is not good as the Statute of 23 H. 6. 8. ordaines that the Kings grant to be Sheriffe of any County longer then a yeare shall be void notwithstanding that his Patent shall have a Clause of Non obstante yet with a Clause of Non obstante such Patent shall be good Dier 52. 1. 33 H. 8. but not without that Clause Howbeit neither without such a Clause nor with it can he dispence with a Statute before it be made And therefore a licence to carie Bell-mettal out of the Realme notwithstanding any Statute made or to be made is not good if a Statute be made after to prohibit it for he cannot dispence with an Act of Parliament before it be made Howbeit he may in things wherein he hath an inheritance or interest as to grant to own to be discharged of taxes and subsidies to be granted this is good 11 H. 7. 11. b. Finch ibid. 100 Statutes of restraint bind not the King Knâ—ght not bound by Sâ—â— unlesse they concerne the Common-Wealth or he or the thing they concerne be specially named as the Statute of West 2. of entailes binds the King because it concernes the whole Com. Wealth so likewise the Statute of 1 H. 5. cap. 5. That in Indictments addition must be given to the party indicted bindeth the King because Indictments are specially named But if by Statute one be attainted and his Lands forfeit with a proviso that of such Lands as he was seised to the use of any other Cesty que use should enter upon him for it is not for the Common Wealth neither yet is the King named therien Co. l. 4. 35. b. 1. in Bozouns Case 101 When the king by the Common Law cannot make a grant Non obstante there a non obstante of that Common Law will not against the reason of the Common Law make the grant good but when the king may lawfully by the Common Law make a grant and the Common Law onely requires that he be so instructed that he may not be deceived there a non obstante supplying it stands with the reason of the Common Law and shall make the grant of the good And therefore if the King grant a protection in a Quare Impedit or an Assise with a non obstante of any Law to the contrarie such grant is void for by the Common Law a Protection lyeth not in either of those Cases for the damage that may happen to the Plaintife by such great delay And therefore in such Case a non obstante shall not availe where the King by the Common Law cannot grant the thing as it was Ruled in 39. H. 63. 9. Advowson Dier 226. 35. 6 El. 102 The King by his prerogative may make a Sheriffe without the usuall assembly and Election in the Exchequer Dier 288. 54 12 El. 103 The King may demise a Mannor Qâ— Imp. except the Courts and perquisites so cannot a Common Person Dier 351. 22. 18 El. 104 Some books are that by an usurpation the King shall be out of possession and put to his writ of right of Advowson But 35 H. 8. it is there that the King may gaine possession by presentment and plenartie by 6 moneths and that against an infant who is a purchasor Vide Fitzh Tit. Qu. Impedit 151. 8 E. 3. and M. 16 Trin. 38 E. 3. Stat. Westm 2. c. 5. Hob. 126. 105 In a Quare Impedit if the title appeare to the Court to be in the King albeit he be no party to the suite yet they ought to award a writ to the Bishop in his behalfe The Chancellor c. of Camb. against Walgrave 106 The Kings Certificate under his signet Manual was received as evidence in Chancery without exception Hob. 213. 3. in the Case of the Lord Aubignye against the Lord Clifton 82 Likewise the Law giveth greater priviledges to men then to Women Wardship â—ody Father â—ot Mother 1 A. Tenant of Land holden by Knight-service Litt. §. 114. Co. Inst p. 1. 84. a. 3. hath issue B. a Daughter and his heire apparent who being married to C. hath issue and dies A. dies seised and the Land descends to the issue within age In this Case the Lord shall have a wardship of the Land but not the wardship of the body of the heire for none shall be in ward for his body to any Lord during his fathers life It is otherwise where the Father dies living the Mother when the Land holden by Knight-service descends to the issue on the part of the Father because the Law in that Case confides more in and giveth more respect unto the Father then the Mother c. Villein 2 If a Villein taketh a frée woman to Wife Litt §. 187. and have issue betwéen them the issues shall be Villeins but if a Niefe taketh a Frée-man to her Husband their issue shall be Frée Feme no witâ—esse 3 In some Cases Women are by Law wholly excluded to beare testimonie as to prove a man to be a Villein Co. Inst p. 1. 6. b. 4. Mulieres ad probationem status hominis admitti non debent Fleta l. 2. cap. 44. Fitz. title Villein 32. 36 37. 83 The Law tendreth the weaknesse and debility of other persons as those out of the Realme in Prison Femes covert and other Women also Likewise Infants Lunatiques Ideots and such as have other imperfections â—ortion 1 If Coperceners make partition at full age and un-married Co.
out when he will An Earledome to Daughters 15. If an Earle hath his dignity to him and his Heirs and dyeth Co. ibid. 165. a. 3. having issue one onely Daughter the Dignity shall descend to the Daughter and to her posterity as well as any other Inheritance as it fell out in Sampson Leonards case who marryed Margaret the onely Sister and Heire of Gregory Fines Lord Dacre of the South and in the case of William Lord Rosse for in such case there can be no uncertainty when there is but one Daughter or Sister Howbeit where there are more Daughters then one the eldest shall not have the Dignity and power of the Earle viz. to be a Countesse but in such case the King who is the Soveraigne of honor and dignity may for the uncertainty confer the dignity upon which of the Daughters he please Howbeit the Lands shall be divided betwixt them as amongst Parceners for they are divisible and certaine Co. ibid. 211. a. 2. 220. a. 4. 16. If a man be bound to pay twenty pounds at any time during his life at a place certaine Uncertain day of payment the Obligor cannot tender the money at the place when he will for then the Obligee should be bound to perpetuall attendance and therefore the Obligor in respect of the uncertainty of the time must give the Obligee notice that on such a day at the place limited he will pay the money and then the Obligee must attend there to receive it for if the Obligor then and there tender the money he shall thereby save the penalty of the Bond for ever So likewise if a man make a Feoffment in fee upon Condition that if the Feoffor at any time during his life pay to the Feoffee twenty pounds at such a place certaine that then c. In this case also the Feoffor must give notice to the Feoffee when he will pay it for without such notice as aforesaid the tender will not be sufficient Also if A. be bound to B. with Condition that C. shall enfeoff D. on such a day C. must give noâ—â—ce thereof to D. and request him to be on the Land at the day to receive â—he Feoffment and in such case he is bound to seek D. and to give him notice In all which cases it is to be observed that what the contract of the parties leaves uncertain the Law to prevent contention reduceth to a certainty And therefore in such cases Littletons advise is wholesome councell viz. Not onely to limit a certaine place and day Litt. S. 342. Co. ibid. 212. a. 3. but likewise to set down in the Condition a certaine time of the day as betwixt the houres of two and four or the like And indeed it is good in Conveyances to set downe every thing in certainty and particularity for certainty is the mother of quietnesse and repose and uncertainty the cause of variance and contention And therefore for the obtaining of the one and avoyding of the other the best meane is in all assurances to take councell of learned and well experienced men and not to trust onely without advice to a Presiden for as the Rule is concerning the state of a mans body Nullum medicamentum is idem omnibus so in the state and assurance of a mans Lands Nullum exemplum est idem omnibus Co. ibid. 218. a 2. 17. A Lease is made to a man and a woman for their lives upon Condition that which of them two shall marry first Lease on Condition to marry that one shall have the fee they intermarry In this case neither of them shall have fee for the uncertainty Co. ibid. 227. a. 1. 18. If the Iury give a Verdict of the whole Issue and of more Insufficient Verdict c. that is surplusage and shall not stay Iudgement for utile per inutile non vitiatur and necessary incidents required by Law the Iury may find Howbeit a Verdict finding matter uncertainly or ambiguously is insufficient and no Iudgement shall be given thereupon as if an Erecutor plead plene administravit and Issue is joyned thereupon and the Iury finde that the Defendant hath goods in his hands to be administred but find not to what value this is uncertaine and therefore insufficient so a Verdict that finds part of the Issue and nothing for the residue is insufficient for the whole because they have not tryed the whole Issue whereby they are charged As if an Information of Intrusion be brought against one for intruding into a Messuage and one hundred Acres of land upon the generall Issue the Iury find against the Defendant for the Land but say nothing for the House this is insufficient for the whole and so it was twice adjudged viz. H. 25 Eliz. in a Writ of Error in the Exchequer Chamber inter Brace and the Queene and M. 28 29 Eliz. inter Gomersall and Gomersall in account in Banco Regis Co. Inst pars 1. 271. b. 4. 19 A Feoffee to the use of A. and his Heirs before the Statute of 27 H. 8. for money bargaineth and selleth the Land to C. and his Heirs Uncertainty or an use who hath no notice of the former use yet no use passeth by this bargain and sale for there cannot be two uses in esse of one and the same Land and seeing there is no transmutation of Possession by the Ter-tenant the former use can neither be extinct nor altered And if there could be two uses of one and the same Land then could not the Statute of Uses execute either of them for the uncertainty Detinue 20. A Writ of Detinue lyeth for goods delivered or found Co. ibid. 286. b. 2. when the Plaintiff can declare in certain what they are but it lyeth not for money out of a Bag or Chest or for Corne out of a Sack or the like because these cannot be distinguished from other money or Corne So likewise an Action of Detinue lyeth for Charters which concerne the Inheritance of Land if he know them in certaine and what Land they concerne or if they be in a Bag sealed or Chest locked albeit he know not the certainty of them but the Writings or at least the Bag or Chest he must know in certaine otherwise that Action lyeth not And in case of a Bag or Chest it is good to declare if he can of one Writing in certaine for then the Defendant cannot wage his Law which otherwise he may Plaas double and multiplied 21. In dilatory Pleas there may be duplicity and multiplicity of distinct matter for in their time and place a man may use divers of them Co. ibid. 304. a. 3. but in Pleas perpetuall and peremptory there ought not to be duplicity or multiplicity of distinct matter to one and the same thing whereunto severall answers admitting each of them to be good are required for that is not allowable in Law for the
for the advancement and continuance of Commerce and trade which is pro bono publico for the Rule is that Jus accrescendi inter mercatores pro beneficio commercii locum non habet Trade 5 One of the chiefest reasons why a Condition not to alien Co. ibid. 223. a. 2. annexed to a feoffment devise or gift of lands or goods is void is for that it is flatly against trade and traffique bargaining and contracting betwéen man and man Vide infra 9. Monopolies 6 Trin. 44 Eliz. The grant of the sole making of Playing Cards was adjudged void because it restrained trade and traffique Co. l. 8. 125. a. 3. the case of London which are the very life of every Commonwealth and principally of an Island There is the same reason of all other Monopolies Vide Co. l. 11. 87. Guilda 7 In favour of trade and traffique Co. ibid. the Law giveth the King power by his prerogative to erect Guildam Mercatoriam viz. a Fraternity Society or Incorporation of Merchants to the end that good order and government may be by them observed for the increase and advancement of Merchandising and trade and not for the hindrance and diminution thereof Trade Idleness 8 At the Common Law none could be prohibited to work in any lawfull trade Co. l. 11. 53. b. 4. The Taylors of Ipswich for the Law abhorrs Idleness the Mother of all mischief Otium omnium vitiorum mater and principally in young people who ought in their youth which is their séed-time to learn lawfull sciences and trades which are for the advancement of traffique and profitable to the Commonwealth and thereof they ought to reap the fruit in their old age For Jeunesse Oisense Vieillesse disettense And therefore the Law detests Monopolies which prohibit the exercise of lawful trades And this appears in 2 H. 5. b. where a Dyer was bound that he should not use the Dyers trade by the space of two years and there Hall held that the obligation was against the Common Law and added farther Per dien si le plaintife fuit icy il iroit al prison tanque il feroit fine al Roy. Tail 9 Before the Statute of 32 H. 8. 36. it seems to be the better opinion that tenant in tail by a fine might have barred his heir Dyer 32. 28. 29 H. 8. albeit the reversion were in the King because the Law always disfavours restraint of alienation in prejudice of trade and traffique Vide supra 5. 199 Honor and Order Tenant by Curtesie 1 A man shall be tenant by the Curtesie of an house Co. Inst pars 1. 30. b. 2. that is Caput Baroniae or Comitatus because so it may be still preserved intire but it appeareth by 4 H. 3. that a woman shall not be endowed thereof because in such case it should be severed which the Law will not permit for that the Law respecteth Honor and Order Vide Title Dower 180. Villein 2 Amongst the cases where the Villein shall be privileged from the seisure of the Lord albeit he be not absolutely enfranchised Co. ibid. 137. b. 3. this is one viz. Ratione dignitatis as if the Villein be made a Knight the Lord cannot seise him Vide Britton 79. Challenge 3 A Péer of the Realm Co. ibid. 156. b. 3. or Lord of Parliament as a Baron Viscount Earl Marquess or Duke in respect of Honor and Nobility are not to be sworn on Iuries and if neither party will challenge him he may challenge himself for by Magna Carta it is provided Quod nec super eum ibimus nec super eum mittemus nisi per legale judicium parium suorum aut per legem terrae Now in reference to Honor and Order the Common Law hath divided all the Subjects into Lords of Parliament and into the Commons of the Realm The Peers of the Realm are divided into Barons Viscounts Earls Marquesses and Dukes And the Commons are divided into Knights Esquires Gentlemen Citizens Yeomen and Burgesses and in judgement of Law any of the said degrees of Nobility are Peers to another As if an Earl Marquess or Duke be to be tried for Treason or Felony a Baron or any other degree of Nobility is his Peer In like manner a Knight Esquire c. shall be tried per pares and that is by any of the Commons as Gentlemen Citizens Yeomen or Burgesses so as when any of the Commons is to have a trial either at the Kings sute or between party and party in such case a Peer of the Realm shall not be impannelled Co. ibid. 165. a. 3. 4 Concerning Inheritances of Honor and Dignity there is an antient Book-case in 23 H. 3. Tit. Partition 18. in these words Note Noble women Coparceners if the Earldom of Chester descend to Coparceners it shall be divided between them as well as other lands and the eldest shall not have this Seigniory and Earldom intire to her self Quod Nota adjudged per totam Curiam By this it appeareth that the Earldom viz. the possessions of the Earldom shall be divided and that where there be more daughters than one the eldest shall not have the dignity and power of the Earl that is to be a Countess but in such case the King who is the Soveraign of Honor and Dignity may for the uncertainty conferr the Dignity upon which of the daughters he please And this hath been the usage since the Conquest as is said Vide 3 H. 3. tit Prescription Howbeit if an Earl that hath his dignity to him and his heirs dieth having issue one daughter the dignity shall descend to the daughter and her posterity for there is no incertainty And this appeareth by many presidents and by a late Iudgement given in Sampson Leonards case who maried with Margaret the only sister and heir of Gregory Fines Lord Dacre of the South and in the case of William Lord Ros. Howbeit there is a difference between a dignity or name of Nobility and an office of Honor for if a man hold a Manor of the King to be Constable of England and die having issue two daughters and the eldest daughter taketh husband he shall execute the office solely and before Mariage it shall be exercised by some sufficient Deputy and all this was resolved by all the Iudges of England in the Duke of Buckinghams case 11 Eliz. Dyer 285. But the Dignity of the Crown of England was without all question descendible to the Eldest daughter alone and to her posterity and so it hath béen 25 H. 8. cap. 22. declared by Act of Parliament for Regnum non est divisibile and so likewise was the descent of Troy as appears by Virg. Aeneid 1. Praeterea Sceptrum Ilione quod gesserat olim Maxima natarum Priami Co. l. 1. 24. b. 4. in Porters case 5 Iudges in their resolutions ought to have a special care Goâ—d
it till the debt be satisfied and therefore the discharge of the debt which is the cause dischargeth the execution which is the effect Co. ibid. 76. b. 3 6 If the tenant makes a feofment in fée of lands holden by Knights-service to the use of the feoffee and his heires The town performed the Wardship ceaseth untill the feoffor pay unto the feoffée or his heires an hundred pounds at a time and place limited The feoffée dieth his heire within age the Lord shall have the wardship of the body and lands of the heire of the feoffee but it shall be conditionally for he cannot have a more absolute interest in the wardship than the heire hath in the tenancie Therefore if the feoffor pay the money at the day and place and entreth into the land in this case the wardship both of the body and lands is divested because the Lord hath no absolute interest in either of them but that interest which he hath doth depend upon the performance or not performance of the condition Littl. § 103. Co. ibid. 78. b. 4 7 Littleton tells us that by the Statute of West 1. cap. 22. The Wardship of the body severed from the Land cannot have the benefit of the two years after 14. If an heire female be within the age of 14 yeares and not married at the time of the death of her ancestor then the Lord shall have the ward of the land holden of him untill her age of 16 yeares to the end within those two last years he may tender her convenient marriage yet in this case if the Lord before the age of 14 granteth over the wardship of the bodie the grantee thereof cannot enjoy the benefit of the two yeares because he cannot hold the land over and the Lord which hath the wardship of the land onely shall also lose the benefit of the two yeares because he hath the lands onely and cannot tender any mariage Therefore in this case the heire female shall enter into her land at her age of 14 yeares So if a tenant holdeth of one Lord by prioritie and of another by posteriority and dieth his heire female within the age of 14 years the Lord by posteriority shall have the lands but until her age of 14 yeares because the mariage belongeth not to him Also if the Lord marieth the heire female within the two yeares her husband and she shall presently after the mariage enter into the lands For cessante causa cessat effectus cessante ratione legis cessat beneficium legis Co. ibid. 102. b. 3. 202. b. 1. Co. ibid. 103. a. 3. Littl. Sect. 147. 8 Where there is Homage Ancestrel betwixt an Abbot and Covent and their tenant If that body be once dissolved Homage ancestrel after alienation gone though a new be founded of the same name and all the possessions be granted to them yet the Homage Ancestrel is gone So it is likewise if a man in his natural capacity holds by Homage Ancestrel and sells the land to another although he repurchase the land again yet is the Homage Ancestrel dissolved Co. ibid. 104. a. 4. 9 If Homage be due to be done by the tenant The Land being aliened the Homage is gone if the tenant alien the land to another the Alienor cannot be compelled to do Homage The delay being pardoned the amerciament is also gone 10 The cause of an amerciament in a plea real Co. Inst pars 1. 126. b. 4. a Plowd 401. Coles case 37 H. 6 21. Co. l. 5. 49. Vaughans Case personal or mixt where the King is to have no fine is for that the tenant or defendant ought to render the demand as he is commanded by the Kings writ the first day which if he do he shall not be amerced so that for the delay that the tenant or defendant doth use he shall be amerced And albeit the amerciament cannot be imposed nor the King fully intitled thereunto untill judgement be given because by the judgement the wrong is discerned yet a pardon before judgment shall after Iudgment given discharge the partie because the original cause viz. the delay c. is pardoned A wife after coverture a Niefe again 11 If a Niefe marry a frée-man Co. Inst pars 1 136. b. 2. 137. b. 3. she is priviledged during the coverture but not absolutely enfranchised for if her husband die she is a Niefe again No Juror after his land gone 12 If a Iuror after his returne selleth away his land or if he Co. ibid. 157. a. 1. 2. 272. b. 2. for whose life or his wife in whose right he holdeth it die or if an entry be made upon his land for a condition broken so as his frée-hold is determined in any of these cases he may be challenged for insufficiency of frée-hold for when his land is gone his feare to offend to have his lands wasted and the like c. which is one of the reasons of Law is also taken away No damage fesant out of the soil 13 If a man come to distrain for Damage fesant Co. ibid. 161. a. 3. Co. l. 9. 22. b. 4. Case of Avowrie Co. ibid. 164. a. 3. and sée the beasts in his soile and the owner chase them out on purpose before the distresse taken the owner of the soile cannot then distraine them and if he doth the owner of the cattle may rescue them for the beasts must be damage fesant at the time of the distresse Where coparceners shall join and relieve not 14 If one coparcener die her part shall descend to her issue and one praecipe shall lie against them and this is propter unitatem juris derived from one common Ancestor so if a man hath issue two daughters and is disseised and the daughters have issue and die the issues shall joyn in a praecipe likewise the issues of two coparceners which are in by several descents being disseised shall joyne in an Assise Howbeit in the same case if the two daughters had béen actually seised and had béen disseised after their deceases the issues shall not joyn because as to that purpose the unitas juris is severed for now several rights descended to them from several Ancestors and yet when they have severally recovered they are coparceners againe and one praecipe lyeth against them and release made by one of them to the other is good Frankmariage Hotchpot 15 If lands given in frank-mariage be impleaded Co. ibid. 177. b. 2. the tenant shall not have ayde against the other parcener but if she put the land into Hotchpot she shall have it for then the lands are become as other lands which descended from the common Ancestor Prescription or Custome extinct by interruption 16 If tenant by homage ancestrel maketh a feofment in fée upon Condition and entreth for the Condition broken Co. ibid. 202. b. 1. it shall be never holden by
have one Attaint for the false verdict upon the forcible entry and A. shall have another single Attaint for the finding of the detainer Contract by a â—ervant 26 A servant makes a bill Dyer 230. 56. 6. El. testifying the buying of ware to the use of his Master and this without Seale in which he binds himselfe to pay the debt yet In this case debt lyeth not against the servant but onely an Action upon the case for it is the debt of the Master and the Assumpsit of the servant Copihold Dower 27 The Custome of a Mannor is that the Lord the Surveyor Dyer 251. 89. 8 Eliz. or his deputy may demise by copy the Lord deviseth authority to two fo make Customary estates for payment of his debts and dies they hold Court in their own names and grant copies in reversion according to the Custome the Feme of the Lord hath one of the Copiholds assigned by the Sheriffe upon recovery of the third part of the Mannor in Dower And it was held that she should avoid the grant made by the two assigned because she claimes by Title of Dower which is paramount the devise 32 According to the end Knight-service the defence of the Realm 1 The Tenant in Knight-service Co. Inst pars 1 70. b. 2. that is able to performe the Service himselfe may neverthelesse if he please performe it by another as well as he that is sick or an Infant or a Corporation aggregate of many c for Sapiens incipit a fine and the end of this Service is for defence of the Realme And therefore if it be done by an able and sufficient man and the end for which the Law ordained it be effected it is duly performed as it ought to be Tender to the heir female 2 If the Lord tender a comoenable mariage to the heire female within the two yeares Co. Inst pars 1 79. a. 1. 35 H. 6. tit gard 71. and she marry elsewhere within those two yeares the Lord shall not have the forfeiture of the mariage because the onely end which the Statute of West 1. cap. 22. giveth those two yeares is for the Lord to make his tender Co. l. 6. 71. a. The Lord Darcies case or rather that he should not lose the advantage of making his tender And the benefit of those two yeares are given unto him as it were in lieu of the forfeiture in case the heire female should refuse his tender for if he make tender within the two yeares and she accept the same and marry immediately after mariage she is out of ward Errour sued against a villain 3 If Villanage be pleaded by the Lord in an action real mixt Co. Inst pars 1 127. b. 4. 18 E. 4. 6. 7. or personal and it is found that he is no Villaine the bringing of a Writ of Error is no enfranchisement because the end of bringing that Writ against the Villaine is not to commence any new suit against him but onely to defeat the former Iudgement 4 If a Castle that is used for the necessary defence of the Realme Co. Inst pars 1 165. a. 4. Bract. l. 2. fol. 76. Fleta l. 5. c 9. Britton 186 187. Co. ibid. 31. b. 3 descend to two or more Coparceners Castles for defence and others this Castle might be divided by Chambers and Roomes as other houses be but yet for that it is pro bono publico pro defensione regni it shall not be divided for as one saith Propter jus gladii dividi non potest And another saith Pur le droit del esche que ne foeffre division en aventure que la force del Realme ne defaille par taut But Castles ordained for another end viz. for habitation and private use and not for the necessary defence of the Realme ought to be parted betwéen Coparceners as well as other houses and wives may also be thereof endowed but cannot be of Castles for defence c. Co. ibid. 268. b. 2. 5 It is ordained by the Statute of 21 H. 8. cap 19. That Avowry upoâ— distress for rent if the Lord shall distraine upon the lands and tenements holden c. he may then avow c. upon the same lands c. as in lands c. within his Fee or Seigniory c. without naming any person certaine and without making Avowry upon any person certaine c. Here albeit the purview of this Act be general yet all necessary incidents are to be supplied and the Scope and end of the Act to be taken And therefore though he néed not to make his Avowry upon any person certaine yet he must alleadge Seisin by the hands of some Tenant in certaine within forty yeares for otherwise rent and other annual payments are not recoverable by the expresse limitation of the Statute of 32 H. 8. cap. 2. Co. Inst pars 1 288. b. 1. Littl. § 503. 6 If a man be out-lawed in a personal Action by Process upon the Original and bring a Writ of Error if he Release of aâ— actions no plea in erroâ— at whose suit he was out-lawed will plead against him a Release of all manner of Actions personal that séemes to be no plea for by that Action he shall recover nothing in personaltie But the end of the Writ of Error is onely to reverse the out-lawry Co ibid. 368. a. 3. Plowd Com. 91. The Parson of Honylanes case Co. ibid. 369. a. 4. 7 If the Tenant in an Assise of an house desire the Plaintife to dine with him which the Plaintife doth accordingly Licence no seisin and so they be both in the house together and in truth one pretendeth one Title and the other another Title yet the Law in this case shall not adjudge the possession in him that right hath because the Plaintife came not thither to claime his right but onely to dine there at the instance of the Tenant And it would be to his prejudice if the Law should adjudge him in possession and doubtlesse a Trespasser he cannot be for that he came thither upon the Tenants invitation Co. ibid. 369. a. 4. 8 A Lease for yeares to another to the intent to trie the Title in an Ejectione firma is out of the Statute of 32 H. 8. cap. 9. An ejectione firma no bought title which prohibits the buying and selling of pretenced Rights or Titles because it is directed to a lawful end and is in a kind of Course of Law but if it be made to a great man or any other with purpose to sway or countenance the cause that is to be taken within the same Statute being chiefly intended for the suppression of such abuses in the Common-wealth Co. Inst pars 1 381. b. 3. 9 Such construction must be made of a Statute that the end Stat. of Gloc. 6 E. 1. 3. for which it was ordained may be alwayes
of good pleading must be observed Co. Inst pars 1. 303. a. 2. which being inverted great prejudice may grow to the party tending to the subversion of Law Ordine placitandi servato servatur jus c. And therefore first in good order of Pleading a man must plead to the jurisdiction of the Court Secondly to the person and therein first to the person of the Plaintiffe and then to the person of the Defendant Thirdly to the Court Fourthly to the Writ Fifthly to the Action c. which order and form of Pleading you shall read in the ancient Authors agréeable to the Law at this day and if the Defendant misorder any of these he loseth the benefit of the former Again the Count must be agréeable and conform to the Writ the Bar to the Count c. and the Iudgment to the Count for none of them must be narrower or broader then the other c. 4 If the King make a Lease for years rendring Rent Co. l. 4. 13. a. 3. in Burroughs Case with condition to be void upon non-payment of the Rent Re-entry giâ—en to the King without demand the King shall take advantage of that condition without any demand For so long as the Reversion and Rent continue in the King the Law dispenseth with the demand as a thing un-decent it being against the dignity of the King to wait upon his subject or to demand any thing of him It is otherwise if the King grant over the Reversion for his grantée shall not take advantage of the Condition without demand of the Rent But in the other Case the Law which alwayes requireth that decorum and conveniencie be observed appoints the subject to attend upon his Soveraign and in that Case to perform the first Act although it be in the case of a Condition which trencheth to the destruction of his Estate Howbeit this is onely a personal Prerogative annexed to the person of the King for order and decencies sake and not in respect of the nature and quality of the Rent c. â—o demand 〈◊〉 the value of â—arriage 5 One Of the reasons which the Lord Cook addes in the Lord Darcies Case Co. lib. 6. 71. b. 2. in the Lord Darcies Case why the fingle value of the marriage of a Ward in Knight-service should be due to the Lord without demand is this If the Common Law saith he would have inforced the Lord to have made tender to his word c. it would also have appointed all necessary circumstances for the performance of such a tender as a certain place c. where it should be done and would not have left the Lord which is the superiour to finde out the Ward which is the inferiour and who may if he will take advantage of his own shifts when there can be no laches at all in the Lord c. 6 Amongst other reasons produced to prove None but of the houshold shall sue in the Marshalâ—â— that in Suits prosecuted in the Marshalsie Co. l. 10. 73. b. 2. in the Case of the Marshalsie one of the parties at least ought to be of the Kings houshold this is one because saith the Book it would not be comely that a Car-man or other Mechanical person should at his pleasure sue another in that Court and upon that occasion take liberty to appear in Aula Regis where that Court was originally kept absque vestimentis aulicis for those that appear in Court use to wear garments suitable to that place And therefore it is recorded by Luke the Evangelist cap. 7. vers 25. Coepit de Johanne dicere ad turbam c. Quid existis visuri hominem mollibus vestibus amictum Ecce qui vestitu magnifico utuntur c. sunt in Palatiis Regis c. And the Common Law regards conveniency and altogether dis-allowes indecorum and every thing done contra bonos more 's 77 Negatio Conclusionis est error in Lege Co. l. 10. a. 4. in Priddle and Nappers Case 1 In Attachment upon a Prohibition the Plaintiffe counts against A. proprietary of Tithes Lands in the Priors handâ— not tithable that heretofore the Prior of Montecute was seised of twenty Acres of Land c. before and at the time of the dissolution and held those Acres and also the Rectory simul semel c. Ratione cujus the Prior held the said Lands discharged of Tithes The Defendant conveys title to the Land c Absque hoc that the Prior held them discharged of Tithes c. Here the plea of the Defendant pro consultatione habenda for he is in a manner an Actor was insufficient because he traverseth a thing not traversable For the prescription of the unity ought to have béen traversed and not the Conclusion viz. Ratione cujus because as in Logick the conclusion of a Syllogisme cannot be denied but either the major or minor Proposition so neither in Law which is the perfection of Reason c. Co. ibid. 2 In a Praecipe Ancient Demesne one that pleads that the Mannor of Dale is ancient Demesne and that the Land in demand is parcel of the Mannor and so ancient Demesne there the Demandant cannot say that the Land in demand is not ancient Demesne because that is the Conclusion upon the two first preceding Propositions viz. 1. That the Mannor is ancient Demesne 2. That the Land in demand is parcel of the Mannor for sequitur conclusio ex praemissis and therefore it cannot be denied and with this agrées 41. E. 3. 22. 48. E. 3. 11. and many other Books 78 The Law respecteth the Bonds of Nature Co. Inst p. 1. 78. a. 2. 1 If before the Statutes of 32 34 H. 8. Wardship the father had infeoffed any of his younger sons or others for the making of his wife a Ioynture or for the advancement of his daughters or for the payment of his debts Co. l. 6. 76. a. 3. in Sir George Cursors Case and after had enfeoffed and conveyed the Land to his heir and had died his heir within age his heir should not have béen in ward neither was it Collusion upon the Statute of Marlbr cap. 6 c. because he was bound by the law of Nature and Nations to provide for them but now by force of those Statutes he shall be in ward for his body and for a third part of the Land c. No wardship â—uring the faâ—hers life 2 A. hath issue B. a daughter and his heir apparent who being married to C. hath issue by him D a son B. dies Litt. §. 114. Co. Inst ibid. a. 3 c. and A. that holds Land by Knights-service dies seised and the Land descends to D as heir unto A. and within age In this Case the Lord shall have the wardship of the Land but not the wardship of the hody of the heir for none shall be in ward for his body to
tenancy c. Tamen quaere F. N. B. 134. a. b. 38 In a Perambulatione facienda Perambâ—latiâ—â— if it be made by the consent of both parties being tenants in fée-simple it is binding to them and their heirs but if tenant for term of life of a Seigniory and another who is tenant in fée-simple of another Seigniory adjoyning sue such a writ or Commission whereupon perambulation is made It séems that that shall not bind him in reversion neither yet shall perambulation made by the assent of tenant in tail binde his heir F. N. B. 150. c. 39 If the tenant fore-judge the Mesne yet the Feme of the Mesne shall be endowed Parsons One title Two titles Indicavit 40 If two Parsons claim under one and the same Patron one of them may sue spoltation against the other in the Court Christian albeit the profits amount to a fourth part or more because the title of the Patronage comes not in debate But if they claim by several Patrons and the tithes or profits or pension spoiled amounts to a fourth part or more then forasmuch as the Patron of the Parson grieved being a stranger may suffer prejudice he shall in that Case have an Indicavit or Prohibition to remove the Suit into the Kings Court there to be tried at the Common Law because then the title of the Patronage will come in debate c. Vide Statute VVest 2. cap. 5. Pl. Co. 32. a. 3. in Colthirst Beinshins case 41 If a man demise land to A. for life the remainder to B. for life Remainder void and if B. die that then C. shall have the land during the life of A. this demise is void for the prejudice of the particular Estate for things done in prejudice of others shall be void As in the Case of 21 E. 4. where the King had granted to an Abbot that he should not be Collector when any tenths were granted per Clerum Angliae Exemption not void by Proviso And then the Clergy of the Province of Canterbury had granteth a tenth to the King with a Proviso that no Collector which the Bishop would return should be discharged by any Letters Patents of Exemption made by the King And the Bishop returned the said Abbot Collector And there it is holden that the Grant made by the Clergy in that point viz. to charge persons exempt is void because it is in prejudice of others And so also the above-said remainder to C. shall rather be void then a stranger shall suffer prejudice by it Co. Inst p. 1. 117. a. 2. 42 If a Villain purchase Land the Lord may seise it The Lord shall not seiâ—â— common 〈◊〉 number c. but if he purchase a common Sans number the Lord shall not have it for the Lord may surcharge the same and that would trench to the prejudice of the terre-tenant who is a third person there is the same Law also of a Corodie uncertain granted to a Villain and of all other such like uncertain inheritances Co. ib. 100. b. 1 43 If the tenant be disseised The Act of Disseisor no prejudice and the disseisor in a writ of Mâ—sne fore-judge the Mesne this shall not binde the disseisée so likewise if the Mesne be disseised and a fore-judgment is had against the disseisor this shall not binde the disseisée for the words of the Statute of VVest 2. cap. 9. are Quando tenens sine praejudicio alterius quà m medii attornare se potest capitali Domino 44 Admittances made by Disseisors Abators Intruders Co. Inst p. 1. 58. b. 2. Tenant at sufferance Admittances per Dominos pro tempore or others that have defeasible titles are good and effectual in the Law For it is no reason that the Lords competitors for the title of the Mannor should by any Act they do prejudice the Copihold Tenants who are strangers to the difference betwixt them for if they be admitted by any who is Dominus pro tempore it sufficeth howbeit such wrong-doers cannot grant voluntary Copies Advantage to strangers 45 Lessée for life levies a Fine come ceo c. to a Disseisor Co. l. 2. 55. b. 3. in Bucklers ca. this is a forfeiture and he in remainder or reversion shall take advantage of it Vide plùs ibid. It is said that if the Disseisée levie a Fine to a stranger the Disseisor shall retain the Land for ever For the Disseisée against his own Fine cannot claim the Land neither can the Conusée enter for the right of the Conusor cannot be trans-ferred to him but by the Fine the right is extinct and the Disseisor shall take advantage thereof Both wardship and relief 46 If there be Lord and tenant by divers tenures in Knight-service and the tenant is disseised of the one Co. Inst p. 1. 83. b. 4. and the Disseisor dieth seised and the tenant dieth seised of the other his heir within age the Lord seiseth the Body and Lands of that Mannor and after the heir at his full age recovereth the other Mannor against the heir of the Disseisor In this Case the heir shall pay relief for the Mannor recovered and the descent cast shall not hinder it for res inter alios c. And so one Lord of the heir of one tenant shall have both wardship during his minority and also relief at his full age Vllain profest or Neife married 47 If a Villain be made a secular Chaplain Litt. §. 202. Co. ib. 136. b. 2. yet his Lord may seise both him and his goods and albeit the Lord cannot seise his Villain that is profest in Religion nor his Neife that is married to a Frée-man not this because Marriage is honourable and indissoluable not that in favorem Ecclesiae and because then he cannot live according to his Profession and Religion yet in both these last Cases the Lord shall have his Action in his Case and shall recover what he is damnified for albeit the Profession and Marriage were lawful yet when they work a prejudice to a third person an action lieth against the Soveraign of the house and the husband to the value of the losse Ordinary Administrator 48 The Ordinary was sued after the administration committed Dier 247. 73. 8 El. in plaint of a Debt in London and Nihil habet being returned upon suggestion the debt was attached in the hands of one VV. who was indebted to the testator and after four defaults of the Ordinary being returned non est inventus and Oath made that the Debt was due the Plaintiff had judgement and execution against the said VV. against whom the Administrator also brings Debt who pleads the matter suprà whereupon the Plaintiff demurs and it was adjudged that he should recover for after the administration committed Debt lieth not either against or for the Ordinary and indéed it lay not at all until VVest 2. 19.
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 aâ—e 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 〈◊〉 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 Dowâ—ble 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 〈◊〉 Bailiff Receiver Iâ—quest 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
Rubro cap. 78. where it is said Qui servum suum liberat in Ecclesia vel Mercato vel Comitatu vel Hundredo coram testibus palà m faciat liberas ei vias portas conscribit apertas lanceam gladium vel quae liberorum arma in manibus ei ponat c. Co. ibid. 139. a. 4. Littleton §. 209 8 The Law doth tender much the liberty and fréedome of the subject in general But especially of a Commialty A Custome 〈◊〉 have a fine sâ— marrying tâ— Daughter void as if a Lord of a Mannor will prescribe that there is a Custome within his Mannor that every Tenant that marieth his Daughter to any man without the Lords licence shall pay a fine to the Lord this is a void Custome to bind a Frée-man for every Frée-man may marry his Daughter to whom he and the pleaseth And therefore to claim such a fine by a general Custome within a Mannor is against the fréedom of a Frée-man that is not bound thereunto by particular term tenure c. Howbeit such a Custome will hold amongst Villeins or amongst Frée-men that hold in Villeinage or base tenure c. Co. ib. 156. b. 1 9 At the Common Law upon an indictment or appeal of Treason Peremptory Challenge or Felony the Prisoner might in favorem vitae challenge peremptorily viz. 35. which was under the number of thrée Iuries But by the Statute of 22 H. 8. cap. 14. the number was reduced to 20. in petty Treason Murder and Felony and in Case of high Treason and Mis-prision of high Treason it was taken away by the Statute of 33 H. 8. cap. 23. and afterwards by the Statute of 1 2 Ph. M. cap. 10. the Common Law was revived So that now for any Treason the Prisoner shall have his challenge to the number of thirty five as before And so it was resolved by the Iustices upon conference betwéen them in the Case of Sir Walter Raleigh and George Brooks Co. ibid. 157 b. 4 And albeit the Offender be not arraigned upon the Crime it self but the issue is joyned upon a collateral point yet shall the party have such challenges as aforesaid As if a man be out-lawed for Treason or Felony at the Kings suit and the party for avoyding thereof alledgeth Imprisonment or the like at the time of the Out-lawry In this Case although the Issue be joyned upon a collateral point yet shall the party in favorem vitae have such challenges as if he had béen arraigned upon the offence it self because this also by a mean concerneth his life And it is to be observed that this kinde of challenge is called peremptory because the party may challenge peremptorily upon his own dislike without shewing any cause at all Howbeit if the Defendant challengeth for cause he must shew the cause presently and then also albeit the Iuror be tried indifferent yet may the party afterwards challenge him peremptorily And all these priviledges concerning Challenges are granted to the Defendant in favorem vitae c. â—n criminal Cases no priâ—y verdict 10 By the Law of England Co. ibid. 158 a. 2. a Iury after their evidence given upon the issue ought to be kept together in some convenient place without meat or drink fire or candle which some Books call imprisonment and they are to have no spéech with any unlesse it be the Bailiff and with him onely after they are agréed When they are so agréed they may in Causes betwéen party and party if the Court be risen give a privy Verdict before any of the Iudges of the Court and then they may eat and drink and the next morning in open Court they may either affirm or alter their privy Verdict and that which is given in Court shall stand But in criminal Causes which concern life and member the Iury can give no privy Verdict but must alwayes give it in open Court and canâ—â—t be discharged by the Court or any other until they have given up their Verdict accordingly c. Life liberty â—espected more â—â—n Infancy 11 Regularly no Laches shall be adjudged in an Infant Co. ibid. 227. b. 2. yet if an Infant hath a Villein that is fled into ancient Demesne and he claim him not within a year and a day that Non-claim of the Villein shall take away the seisure of the Infant and this is in favorem libertatis So if an Infant bring not an appeal of the death of his Ancestor within a year and a day he is barred of his appeal for ever and this is in favorem vitae for the Law respects more liberty and life then the priviledge of infancy â—eare of maâ—ng continuâ—al claim 12 Doubt or fear that concernes the safety of the person of a man Co. ib. 246. a. 2 as Battery Maheim Imprisonment Death c. is sufficient cause to excuse him from going upon the land to make his Claim so that he approach as néer the land as he dare for such doubt or fear but fear of having his houses burnt or of the taking away or spoiling of his goods is no sufficient cause to excuse him because he may recover the same or dammages to the value thereof without any corporal hurt And therefore in such Case he shall go upon the Land to make his claim c. Talis enim debet esse metus qui cadere potest in virum constantem qui in se continet mortis periculum corporis cruciatum Et nemo tenetur se infortuniis periculis exponere 〈◊〉 Felony Out-lawry may be reverâ—ed by plea. 13 If a man be out-lawed Litt. § 419. Co. ib. 259. b. 2 there is two manner of wayes to reverse it viz. by Plea or by writ of Error by plea for when the Defendant cometh in upon the Capias utlagatum c. he may by Plea reverse the same for matters apparent as in respect of a Supersedeas omission of processe variance and other matter apparent in the Record so he do it the same term as some hold But for any matters in fact as Death Imprisonment Service of the King c. he is driven to his writ of Error Neverthelesse in Case of felony he may plead these matters of fact also and that is in favorem vitae c. Co. ibid. 274 b. 2 Finch 29. 14 An expresse manumission of a Villein cannot be upon a Condition subsequent For once frée in that Case and ever frée A Villein free ever And this in favorem libertatis It is other wise of a Condition precedent in the same Case c. Co. ibid. 283 2. 3. 15 The life of a man is so precious in the eie of the Law Life precâ—â—â— in the eie of the Law that it will not suffer by way of plea to justifie in the killing or death of a man And therefore in that Case he shall be received
intendeth for the Law intendeth a constant and perpetual apparence c. â—ant by the â—resie â—gh the 〈◊〉 be atâ—ted 5 If a man takes a wife seised of lands or tenements in fée and hath Issue and afterwards the wife is attainted of felony Co. ib. 40. a. 1. so as the Issue cannot inherit to her yet he shall be Tenant by the courtesie in respect of the Issue which he had before the felony and which by possibility might then have inherited But if the wife had béen attainted of felony before Issue had albeit he hath Issue afterwards he shall not be Tenant by the courtesie Because then there was no possibility at all that such Issue should inherit after her â—ant in â—er though â—e be a â—ing imâ—bility of â—ng Issue 6 Dower is given to the Feme for the possibility that the Issue Co. ib. 40. a. 3. which she may have by the Baron may inherit his land albeit she be barren and have no Issue by the Baron And although the Feme be 100 yeares old and the husband at his death onely 4 or 7 years old yet shall the Feme be endowed For the Law can not judge that impossible which may fall within the bounds of nature to be possible it being certain that women in ancient time have had Children at such an age as no women doth now attaine unto and my Lord Coke saith that he knew a woman above 60 years old to have a Childe ideò non definitur in Jure c. Co. ib. 47. a. 1 7 A Rent cannot be reserved by a Common person upon an Estate for life of any incorporal inheritance as Advowsons Commons Rent reservâ—â— upon a reveâ—sion or rendring good Offices Corody Multure of a mill Tythes Faires Markets Liberties Priviledges Franchises and the like because the Lessor cannot have resort or recourse to distraine for the Rent arreare and if it be upon a lease for yeares yet he shall not distraine for it but have onely an Action of debt for it upon the contract Howbeit a reversion or a remainder of Lands or Tenements may be granted reserving a Rent for the apparant possibility that it may come in possession c. Co. ib. 58. b. 3. 8 Albeit a Copi-hold Tenement that escheates Copi-hold the Lords â—â—maines still demisible is kept for many yeares together in the Lords hands yet it still retaines the quality of being demisible in respect of the possibility that the Lord may again admit some man unto it c. Co. Inst p. 1. 80. a. 1. 9 If the Ancestor marieth his heire apparent within the age of consent and dyeth the Infant being still within the age of consent An infant mâ—â—ried before yeares of coâ—sent the Lord may take the Infant if he will into his possession and if the Infant be detained from him he shall recover him in a writ of ravishment of ward and thereupon have the Infant delivered unto him And this is in respect of the possibility that the Infant may dis-agrée to the marriage Howbeit if at the yeares of consent he agrée to the marriage neither the King nor the Lord shall have the marriage for then it is a marriage ab initio and there néed no other marriage Co. ib. 244. a. 2 10 If the Husband hath an apparant possibility of procreation Issue the hâ—â—band inteâ— Maria. as under eight years or under the age of procreation the Issue which his Wife hath is a Bastard albeit he was then within the four seas that is within the jurisdiction of the King of England but when the parties are both of full lawful age if the Husband be within the four seas as afore-said when the wife hath Issue albeit he never came neer her yet is the Child Legitimate for the possibility that they might méete together For in that Case Filiatio non potest probari c. So it is also if the Issue be borne within a moneth or a day after marriage for in such Case the Law will not judge of any impossibility c. Co. ib. 316. a. 4 Co. l. 10. 44. a. 2. Jennings Case 11 A. seised of Land in Fée grants it in tail to B. and afterwards grants the Reversion to C. in Fée by Fine in this Case Tenant in tâ—â—â— not compelable to attoâ—â—â— the Tenant in tail is not compellable to attorne in respect of the possibility that this Estate being an Estate of Inheritance may continue for ever c. Litt. §. 707. Co. ib. 371. 6. 12 If a man hath Issue two Sonnes and is disseised Lineal colateral warranty and the eldest Son release to the Disseisor by déed with Warranty and die without Issue and afterwards the Father dies this is a lineal Warranty to the younger Son for the possibility that the younger Son might have convyed his tittle to the Land through the eldest Son in Case the eldest Son had survived the Father Otherwise it is where the yonger Son deceaseth and dies without Issue for the eldest Sonne can by no possibility convey his title to the Land from the Father through the younger Son c. Litt. §. 708 Co. ib. 372. a. 13 If Tenant in taile hath issue thrée Sonnes Lineal câ—lateral waâ—ranty of Tenant in taile and discontinue the taile in Fée and the second Son releaseth by his déed with Warranty to the Discontinuee and after the Tenant in taile dies and the second Son dies without Issue here the eldest Sonne is barred to have any recovery by writ of Formedon because the Warranty of the second Brother is collateral to him for the impossibility that he may convey any Estate to him through the second Brother but if the eldest Sonne die without Issue then may the youngest Son have a Formedon in respect of the possibility that the youngest Son might have conveyed the descent of the land to him thorough the second Brother c. The heire shal have writthings 14 If a man make a Feoffment with warranty and die Co. l 11. b 4 in the Lo. Buckhursts Case the heire of the Feoffor shall have all the writings which the Feoffor himselfe might detaine albeit the heire hath nothing by descent for the possibility of the descent afterwards Grant of a remainder to the heires of I. S. good 15 If a Lease be made for life the remainder to the right heires of I. S. the same I.S. being then in rerum natura it is good Co. l. 2. 51. b. 1. Sir Hugh Cholmeleys Case for the common possibility that I. S. may die during the life of the Tenant for life Co. Inst p. 1. 378. a. 3. The Law considereth a child in ventre sâ—â—â—re 16 Albeit Filius in utero matris is part viscerum matris vide 3. Ass Pl. 2. 22 Ass Pl. 94. 22 E. 3. Tit. Corone 180. Stanford fol. 21. Co. l. 7. 8. b. 4. the
the Guardian cannot lose the Wardship An Infant payes releif 3. Littleton saith Litt. S. 112. Co. ibid. 83. b. 4. That the heire of a Tenant by Knight-service ought not to pay releife untill his age of twenty one years yet in some case the Heire shall pay releif when he was within that age at the time of the death of his Ancestor As if a man holdeth Lands of the King by Knight-service in Capite and of a common person other Lands by Knight-service and dyeth his heire being within age here the King hath the Wardship both of body and Lands by his Prerogative untill the full age of the heire and therefore in this case the Heire though he be within age shall immediately pay releif to the other Lord for as the Law giveth away the Wardship to the King by reason of his Prerogative so doth it in respect thereof reserve to the other Lord all that conveniently may be reserved viz. his releif The Lord shall not have the body 4. A man seised of Land holden by Knight-service hath issue a Daughter who takes Baron and hath issue a Son Litt. S. 114. Co. ibid. 84. a. 3. the Tenant dyes and also the Mother in this case the Son shall not be in ward for his body living his Father but yet the Lord shall have the Wardship of the Land untill the full age of the Son for albeit in this case the Law doth give the custody of the body to the Father and barreth the Lord thereof yet the Lord shall have the Wardship of the Land by force of the tenure of the first creation thereof So it is also if the Father marry his heire within age and dyeth in this case also the Lord shall have the Wardship of the Land Co. ibid. 88. b. 3. 5. Where the Father is Guardian of his Son for Land holden in Knight-service this is in respect of his paternall naturall custody Father Guardian in socage accountable and therefore in such case he shall not be answerable for his marryage or custody of his Lands but where the Father is Guardian by reason of a tenure in Socage he must by Law be accountable to the Son both for his marriage and also for the profits of his Lands which he should not be if he had the custody of his eldest son in this case as his Father in respect of nature And because the Law doth appoint him to be Guardian in Socage it compels him also to be accountable for the act of Law doth never any man wrong Co. ibid. 134. b. 2. Anic super carta cap. 15. 28. E. 1. 6. Before the Statute of Articuli super cartas In reall actions fifteen dayes returne in all Summons and Attachments in Plea of Land were contained the terme of fifteen dayes and it appeareth not onely by that Statute but likewise by the ancient Authors of the Law who wrote before that Statute that this was the ancient common Law And the reason of giving so many dayes in reall Actions was the Recovery being so dangerous that the Tenant might the better provide himself both of answers and proofes Co. ibid. 132. b. 2. 7. If I be disseised and my Brother release with Warranty Descent upon Profession and is afterwards profest in Religion and thereby the Warranty descend upon me In this case albeit the Law binds me by the Warranty yet I being his heire the Law gives me by descent such Inheritance as my Brother had at the time of his Profession Co. ibid. 137. a. 3. Litt. S. 203. 8. Albeit by an act in Law a man may have damnum Profession dischargeth wardship yet in such case it is alwayes absque injuria as if a Ward enter into Religion and be profest hereby the Lord loseth the Wardship of the Land which may be said damnum for by such Profession the Ward is civiliter mortuus a dead man in the Law and cannot hold any Inheritance neither can the Guardian continue the Wardship of the land because by the civill death of the Ward the Inheritance is descended to another but this damnum is absque injuria for by such Profession the land descends to another who is either to be in Ward or to pay releif And therefore in such case the law giveth the Guardian no remedy neither by any formed Writ nor by Action upon the case Co. Inst pars 1. 138. a. 3. 9. If Tenant for another mans life by his Deed grant a Rent charge to one for twenty one years Cesty que vie dyeth A annuity good the land evicted hereby the Rent-charge is determined and yet the Grantee may have during the years a Writ of Annuity for the arrearages incurred after the death of Cesty que vie because the Rent charge did determine by the act of God and the course of law Actus Legis nemini facit injuriam So it is also if land out of which a Rent-charge is granted be recovered by an eyent title and thereby the Rent-charge is avoyed yet the Grantee shall have a Writ of Annuity because the Rent-charge is avoyded by the course of law and so it was holden in Wards case cited in Co. l. 2. fo 36. in Heywards case against an opinion obiter in 6 H. 6. 42. a. Vide Max. 114. Ex. 13. Co. ibid. 149. a. 1. 10. A. hath common of Pasture sans number in twenty Acres of land Common sans number not apportioned and ten of these Acres descend to A. the common sans number is intire and uncertaine and cannot be apportioned but shall remaine but if it had been a Common certaine as for ten Beasts in that case the Common â—â—â—dition shall be apportioned And so it is also of common of Estovers Turbary Piscary c. And it is to be observed that in none of these cases or the like the descent which is an act in Law shall worke any wrong to the Ter-tenant for neverthelesse he shall have thereby that which belongeth to him for the Act in Law shall never worke any wrong The like 11. Of Common or Corody certaine as for ten beasts Co. ibid. 164. b. 4. so many Dishes in certaine c. partition amongst Coparceners or Apportionment may be made for this can worke no wrong to the Ter-tenant But if a man have reasonable Estovers as House-boot Hay-boot c Appendant to his Free-hold they are so intire that they shall not be divided amongst Coparceners So likewise if a Corody uncertaine be granted to a man and his heirs and he hath issue diverse Daughters this Corody shall not be divided between them there is the same Law also of Common sans number for in these cases and the like if Estovers Common Piscary or Corody uncertaine should be partable amongst Sisters such partition would worke a wrong to the Ter-tenant Co. ibid. 165. a. 1. who should be opprest and over-charged thereby which the Law
§. 209. as if a Lord of a manor will prescribe that every Tenant who matieth his daughter to any man without the Lords licence shall make fine This prescription is void being against reason because none shall make such fines but only villeins for a freeman may fréely mary his daughter to whom he pleaseth And albeit that it hath been objected by some that such a custom may have a lawful beginning because Littl. in the beginning of the chapter of villeinage § 174. alloweth that a freeman may take lands of the Lord to be holden of him viz. to pay a fine for the mariage of his son or daughter and therefore some have thought that such a custom generally with in the manor might be good but the answer is that although it may be soln a particular Case upon such a special reservation of such a fine upon a gift of land yet to claim such a fine by a general custom within the manor is against the fréedom of a freeman that is not bound thereunto by particular tenure howbeit a custom may be alleged within a manor that every tenant albeit his person be free that holdeth by bondage or native tenure the freehold being in the Lord shall pay to the Lord for the mariage of his daughter without licence a fine And this is termed Marchet of two french words Mariage and achecter to buy Co. ibid. 140. a 4. b. 1. Littl. §. 210. 6 The custom of Gavelkind in Kent where all the sons inherit equally Gavelkind hath been alwayes allowed a good custom because every son is as well a gentleman as the eldest and having means may attain to as great honor and preferment as the eldest which by want and penurie may be obstructed according to that of Horace Haud facile emergunt quorum virtutibus obstat Res angusta domi Co. ibid. 140. b. 3. Littl. §. 211. The like custom is used and allowed as reasonable in other parts of England within divers manors and seigniories although it be not called Gavelkind in any Country but Kent And as it is said of sons so likewise by custom when one brother dieth without issue all the other brethren may inherit There is also another custom allowed within divers manors called Borough-English Borough-English where the youngest son or youngest brother inherits and in the manor of B. in Berkshire where the sisters shall not be Parceners but the eldest sister shall have the inheritance all which do hold good because consonant to reason Co. inst pars 1. 141. a. 3. 7 Malus usus abolendus est and every usage is evill Malus usus that is against reason Quia in Consuetudinibus non diuturnitas temporis sed soliditas rationis est consideranda And by this rule at the Parliament holden at Kilkenny in Ireland Lionel Duke of Clarence being then Lieutenant of that Realm the Irish custom called there the Brehon-law was wholy abolished for that as the Parliament said it was no law but a lewd custom et malus usus abolendus est as is said before Co. ibid. 155. a. 2. 8 Albeit the writ of Assise be that the Sheriff Assise Faceret duodecim liberos et legales homines de vicineto c. videre tenementum c. Yet by antient course the Sheriff must return 24. and this is for expedition of justice for if 12. should only be returned no man should have a full Iury appear or be sworn in respect of challenges without a Tales which would be a great delay of trials so as in this case usage and antient course maketh a Law Co. l. 2. 17. a. 4. in Lanes case 9 Severance of the frank-tenement and inheritance of land holden by copy of Court-Roll Copyhold doth not extinguish or determine the Copy-hold estate for albeit his estate is taken to be but an estate at Will yet the custom hath so established the estate of the Copyholder that he is not removeable at the Will of the Lord so long as he performs the customs and services And by the same reason the Lord cannot determine his interest by any Act that he can do and so hath it been oftentimes adjudged in the Kings Bench. Co. l. 4. 21. a. 3. in Browns case 10 Albeit a Copyholder hath in judgement of law but an estate at Will yet custom hath so established and fixed his estate Copyhold that it is by the custom of the manor descendable and his heirs shall inherit it And therefore his estate is not meerly ad voluntatem domini but ad voluntatem domini secundum consuetudinem manerii so as the custom of the manor is the very soul and life of Copyhold estates for without custom or if they break their custom they are subject to the Will of the Lord And by custom a Copyholder is as well inheritable to have his land according to the custom as he who hath a franktenement at the Common Law for Consuetudo in this case est altera lex and being an usage time out of mind may create and consolidate Inheritances Alienation presented 11 A Custom within a Manor Co. l. 5. 84 a. 3. in Penimans cas◠that every alienation of lands holden of the same Manor whether it be by writing or feoffment thereof made or by will shall be presented at the next Court holden for the said Manor in pain that upon failer of such presentment such alienation shall be void is a good and reasonable Custom But a Custom that none shall use his Common in such a place until the Lord enter with his beasts is void for the unreasonableness for if the Lord will not enter it is no reason that the Commoners should lose their Common Vide 2 H. 4. 24. Common of Shack. 12 Common called Shack which at the beginning was but in nature of a féeding together by reason of Vicinage for avoiding of sutes is in some places by Custom altered to the nature of Common appendant or appurtenant Co. l 7. 5. a. Sir Miles Corbets case and in some places it retains the original nature and the Rule to know it is the Custom and usage of every several Town or place for Consuetudo loci est observanda And therefore if in the Town of Dale one hath gotten divers parcels of land together in which the Inhabitants have used to have Shack and long since did enclose it and nevertheless alwayes after harvest the Inhabitants have had Shack there for their Cattel This shall be taken for Common appendant or appurtenant and the Owner cannot exclude them from Commoning there albeit he will not Common with them but hold his own lands so enclosed in severalty And this is well proved by the usage for notwithstanding the antient enclosure the Inhabitants have had Common there But if in the Town of Sale the Custom and usage have béen that every Owner in the same Town hath enclosed his own land
he had been admitted and instituted to a Church whereof any subject had béen lawful Patron the Patron in that case had no other remedie to recover his Advowson but by a writ of right of Advowson wherein neverthelesse the Incumbent was not to be removed And so it was also at the Cōmon Law if an usurpation had béen had upon an Infant or a feme covert having an Advowson by descent or upon tenant for life c. the Infant feme covert and he in the reversion were driven to their writ of right of Advowson for at the Common Law if the Church were once full the Incumbent could not be removed And plenarty generally was a good plea in a Quare impedit or an Assize of Darrein presentment And the reason of all this was to the intent that the Incumbent might quietly intend and apply himselfe to his spiritual charge F. N. Br. 36. k. 143. a. Stat. 35. E. 3. 3. 13. R. 2. 1. 4 H. 4. 21. Howbeit at the Common Law also if any had usurped upon the King and his presentée had béen admitted instituted and inducted for without induction the Church had not béen full against the King the King might have removed him by Quare impedit and been restored to his Presentation for therein he hath a prerogative Quod nullum tempus occurit Regi neverthelesse in that case also he could not present for the pleanarty barred him of that neither could he remove him any way but by Action to the end the Church might be the more quiet in the meane time neither yet did the King recover damages in his Quare impedit at the Common Law But now the Statute of Westm 2. cap. 5. hath altered the Common Law in these cases And by that Statute the King is bound though not named 35 H. 8. 60. because it concerns the Church and Religion A Juris utrum taken against one tenant 6 Where a Juris utrum is brought against several tenants by several summons in the writ F. N. Br. 50. m. it may be taken against one tenant onely for that parcel and after against the others but it is otherwise in an Assize of Novel disseisin if it be not in some special case In a Quare Impedit a Non-suit peremptory 7 In a Quare impedit if the Plaintiff be non-suit after apparence Co. Inst pars 1 139 a. the defendant shall make title and have a writ to the Bishop and this is peremptorie to the Plaintiffe and is also a good barre in another Quare impedit and the reason of this is for that in this case the defendant in favorem Ecclesiae hath the said writ by judgement of the Court And therefore the Incumbent that cometh in by that writ upon such non-suit shall never be removed that being a flat barre as to that presentation And the same Law and for the same reason it is in case of a discontinuance c. A general accusation against a Parson or Vicar not good 8 In a Quare impedit against the Bishop it is not a good plea to alledge that the presentée is a Schismatick in general Co. l. 5. 58. b. Specots case but he ought to express Schisme in particular because it concerning the cure of souls is traversable and requireth more care and circumspection It is otherwise for the putting a Coroner out of his office for there a general suggestion in the writ that he is persona minus idonea is enough and not traversable But the reason is because this is but the keeper of the Rolles of the Crowne the other hath the cure and guard of souls Intire services remains after purchase of part by the Lord. 9 There is a diversitie concerning intire services to be reduced to the Lord as a spurre horse or the like Co. l. 6. 1. b. in Bruertons case Co. Inst pars 1. 149. a. for when they accrue to the sole benefit of the Lord and to the charge of the tenant if the Lord purchase part of the land the whole service is thereby extinct But when such intire services are reserved for works of devotion piety or charity as to marry a poor virgin yearly as you have it in 24 H. 8. Br. tenures 53 or to find a Preacher in such a Church or to provide ornaments for such a Church which tenure is in 35 H. 6. 6. In such case albeit the Lord purchase part yet the intire service remaines Protection 10 A spiritual person shall have a protection cum clausula nolumus to protect him his goods his farmers Co. Inst pars 1 131. b. and their goods from the Kings purveyors and carriages See the Stat. of 14 E. 3. Priviledge of Clergie 11 Before the Statute de articulis cleri cap. 15. Co. l. 11. 29. b. Alex. Poulters case he that confessed the felonie could not have the priviledge of Clergie because he could not make his purgation And although the Statute speakes onely of Abjuration and of an Approver yet the Iudges in favorem Ecclesiae extend it to all other confessions upon the Arraignement of the offender Tithes not extinct by unity of possession 12 If the Parson of a Church purchase a Mannor within his Parish here by this purchase and unity of possession the Mannor Dyer 43. p. 21. 30 H. 8. which was tithable before is now made non decimabilis because he cannot pay tithes to himself but if the Parson make a lease of his Parsonage and Rectorie to a stranger in this case the Parson himselfe shall pay tithes of his Mannor to the Lessée of the Rectorie or if the Parson make feofment of the Mannor the feoffée shall pay tithes to the feoffor being Parson because tithes cannot be extinct by any unity of possession as rent charge may which is issuing out of land but tithes are due by the law of God ex debito for the manurance and tillage of the occupier in whosoever hands the land comes unless it be in the hands of the Parson himselfe And therefore if the Parson let part of his Glebe land for yeares or life reserving rent the lessée shall pay the Parson tithes because they are due of common right vide Br. dismes 17. 2 Nunquam prosperè succedunt res Humanae ubi negliguntur Divinae Humane Affairs never succeed well where Divine Rites are neglected Co. Inst pars 1 246. a. 1. 1 Laches shall not prejudice an Infant in point of descent Laches shall prejudice an Infant c. but it shall be adjudged in him if he present not to a Church within six moneths for the law respecteth more the priviledge of the Church that the Cure may be served than the priviledge of Infancy F. N. Br. 160. c. d. 2 Men of Religion ought not to appeare at the Sheriffes turnes Clergy men not subject to personal charges nor the leet of any other without great cause and
by making of him Knight he is out of the ward and custodie of the Lord because after he is Knight he ought to be sui juris and to imploy himselfe in feats of armes to defend the Kingdome c. And none shall pay the forfeiture of mariage but he that after refusal marrieth himselfe during the time that he is in wardship Howbeit the Lord shall immediately after his Knighthood have a writ de valoremaritagii such as in like case is used to be had after the heires full age of 21 years No protection for Wales 40 Since the Statute of 12 E. 1. Calvins case Co. l. 7. 21. b. 3. which incorporateth Wales into England and makes it parcel of England in possession no protection Quia moratur in Wallia will now lye because Wales is now within the Realm of England No wardship after attainder 41 Sir Everard Digby by act executed in his life conveyed his lands to the use of himselfe for life with divers remainders over Digbies case Co. l. 8. 165. b. 4. Co. l. 10. 85. a. 11. and then was attainted and executed for the Power-Treason The question was whether ward of the body or of the third part of the lands should accrue to the King by force of the Statutes of the 32 and 34 H. 8. And it was resolved that their could be neither wardship nor primer seisin in that case because there could be no heire for although there may be wardship and primer seisin where there is no descent as in case when a man grants all his lands holden by déed executed in his life yet there can be no wardship or primer seisin but where there is an heire by reason of whom alone those rights accrue to the King No dower by Guardian 42 During the minority of the heire a writ of Dower lyeth against the Guardian or he may endow the feme without suit if he please Co. l. 9. 16. b. 4. in Anne â—edingfields case but after full age although he hold the land over for the value of the mariage yet no writ of Dower lyeth against him neither can he endow her because after the full age of the heir he is no longer guardian Nusance removed 43 In Assise de nusans or Quod Permittat prosternere Co. l. â— 55 a. 1. in Baltens Case Co. l. 10. 84. b. 4. in Lovers Case c. it is a good plea that the Plaintiff himselfe either before the writ purchased or hanging the writ hath abated the nusance All Soccage Land devised 44 If there be tenant in tail to him and the heires males of his body the remainder in fée to another of land holden by Knight-service in Capite and that is also seised of other lands in soccage in fée and by his will in writing he deviseth all his soccage lands and dies without issue male in this case the devise is good for all the soccage land for the estate of the land holden determines by his death so that there was not any cause of ward at the Common Law so it is likewise 13 El. Dyer 3. if the estate of the land holden be defeated for a condition broken after the death of the tenant Wood or trees excepted 45 If I. grant the Mannor of D. except the wood Co. l. 11. 49. b. 3. Liffords case by this the soil it selfe is excepted but if I. except all my trées growing upon land or pasture out of any wood there by the exception of the trées the soil it selfe is not excepted But sufficient nutriment is reserved out of the land to sustaine the vegetative life of the trées for without that the trées which are excepted cannot subsist But if the Lessor cut them and by the licence of the Lessée root them up in this case the Lessee shall have the soil for cessante causa cessat effectus After pardon no conspiracy 46 If a man be falsely indicted of felonie Fitz. 115. g. and after by Act of Parliament a general pardon is granted of felonies c. Here the party shall not have a writ of conspiracie although he will plead to the indictment and is acquit and will not plead the Act c. because his life was never put in jeopardie which indéed ought to be the cause and ground of the action of conspiracie the felonie being pardoned by the Act. No attaint 47 If a man recover outragious damages by verdict Fitz. 107. b. and release parcel of the damages before Iudgement and hath onely Iudgement of the residue the defendant shall not have attaint for those damages which are so released Goods bailed 48 If a man have goods delivered unto him to deliver over to another and afterwards a writ of detinue is brought against him by him Fitz. 138. m. that hath right to have the goods c. here if the defendant hanging the action deliver the goods over to him unto whom they were given to be delivered this is a good barre of that action Fitz. 139. a. Mich. 34. E. 1. 49 After a divorce made betwixt Baron and feme Divorce the feme shall have a writ of detinue for the goods given with her in mariage not spent Dyer 13. 62. 28 H. 8. Fitz. 152. â— 50 The heire shall be charged by a writ of annuity upon grant of his father if he have assets by descent Annuity but an Annuity shall not be maintainable against the heire by prescription because it cannot be known whether he had any thing by descent from the same ancestor by whom the annuity began c. Plowd 37. a. The Sheriff of Londons case 51 If a prisoner in execution in Ludgate be suffered to go over the Bridge into Surrey though he have a kéeper with him Escape yet that is an escape for being in Surrey which is another County he was without gard and so consequently out of prison c. Plowd ibid. per Chomley 52 If a woman be Warden of the Fleet Prisoners enlarged by mariage or descent and one imprisoned there marieth the woman which is Warden this shall be judged an escape in the woman and the law adjudgeth the prisoner to be at large because he cannot be lawfully imprisoned but under a Warden and he cannot be properly conceived under the ward of his wife And therefore in that case the law adjudgeth him to be at large So if the Warden of the Fleet who hath his office in fée die seised his sonne and heire being then prisoner there and the office descends upon him being in prison here the law will adjudge him out of prison although he hath fetters upon his legs he being then without gard it being impossible that he should kéep himselfe in prison P. 13. E. 4. 8. Plowd ibid. 53 If a Iustice of Peace of one County pursue one into another County for felony comitted in the
due of common right and begins by operation of Law and in favour of tillage so that none need prescribe in it as it is held in 4 H. 6. and 22 H. 6. as a man should if it were against common right And this is the reason that it is onely appendant to ancient arable land Hide and Gaine and onely for Horses Oxen Cowes and Shéep whereof the first two serve to till the land the other to compasse it And therefore it is against the nature of such Common to be appendant to Meadow or Pasture and if a man will prescribe to have Common belonging to a Mease Meadow and Pasture this cannot be Common appendant but appurtenant unlesse he having Common appendant belonging to land hath of late time peradventure built an house upon it and converted it to Meadow and Pasture for his conveniencie and the better advancement of tillage which was the original cause of the Common For in this case the Common remaines appendant and it shall be intended in respect of the continual usage of the Common in such manner that at the beginning all was arable but in pleading he ought to prescribe to have it appendant to the land c. Co. l. 4. 117 118. Actons case 18 The Baroness of Monteagle in her widoow-hood reteins one Cartmel to be her Chaplein according to the Stat. of 21 H. 8. A Baroness may retein Chaplains in her widdowhood Cartmel hath the benefice of Claycotton above 8 l. per annum the Baroness takes to husband band the Lord Compton and afterwards Cartmel having obtained a dispensation with Confirmation c. is admitted instituted and inducted to the vicarage of G. Here because Cartmel accepted of the vicarage when the Baronesse was covert Baron being maried to one not under the degrée of a Baron for in case of such mariage a Proviso of that Statute saves the priviledge of a Baronesse the question was whether the first benefice was not void And it was resolved that Cartmel after the mariage might have a dispensation and hereupon might have another benefice without danger of losing the first for although a Baronesse maried to a Péere cannot during the Coverture retaine a Chaplain yet when a Baronesse being a widdow hath retained one or two Chaplains according to the Statute this retainer is the principal matter which at first had good beginning and so long as the Baronesse continues a Baronesse the Chaplains may well accept two benefices by the expresse letter of the act for it sufficeth that at the time of the retainer the Baronesse was a widdow because by that the expresse words being widdow are satisfied Co. l. 6. 43. b. Blakes case 19 Eden brings a writ of Covenant against Blake for not repairing an house Accord with satisfaction good plea. the Defendant pleads accord betwixt him and the Plaintife and execution of it in satisfactione c. decasus reparationum praedict upon which the Plaintife demurres Here albeit it was objected that this action of Covenant being founded upon the Déed could not be discharged without matter of as high nature viz. by Déed and not by any accord or matter in pais yet it was resolved per totam Curiam that the plea of the Defendant was good For there is a diversity when a duty accrues by the Déed in certainty tempore confectionis scripti as by Covenant Bill or Obligation to pay a summe of money here this certaine duty takes his essence and operation originally and onely from the writing and therefore ought to be avoided by matter of as high nature viz. by writing but when no certaine duty accrues by the Déed but a wrong or default subsequent together with the Déed do give action to recover damages which are onely in the personalty for such wrong or default accord with satisfaction is good plea. Co. l. 7. 10. a. 1. Vghtreds case Pl. Co. 32. b. 3. Colthrist and Bevisham per Hinde 20 In all cases when an interest or estate commenceth upon a Condition precedent there the plaintife ought to shew it in his count Conditions precedent and subsequent and averre the performance of it for there the interest or estate commenceth in him by the performance of the Condition and is not in him till the Condition be performed It is otherwise when the interest or estate passeth presently by vesting in the Grantée and is to be defeated by matter ex post facto or Condition subsequent for there the Plaintife may count generally without shewing the performance of it and the Condition or matter ex post facto shall be pleaded onely by him Co. l. 9. 25. b. 3. In the case of the Abbot de Strata Mercella 6 E. 3. 32. Jo. Darcies case 30 H. 8. Dy. 44. 4◠E. 3. 32. 43 Ass Pl. 10. 1 2. Ph. M. Dyer 108. that will take advantage of it Vide suprà 21. 36. 21 When the King grants any Priviledges Liberties Franchises shall not die Franchises c. which were such in his own hands as parcel of the flowers of his Crowne such as are Bona cattalla felonum fugitivorum utlagatorum c. bona cattalla waviata extrahur ' deodanda wreccum maris c. within such possessions Here if these come againe unto the King they are drowned in the Crowne and he hath them againe in jure Coronae but when a Priviledge Libertie Franchise or Iurisdiction was at the first erected and created by the King and was no such flower before in the Garland of the Crowne here by the accession of them againe to the Crown they are not extinct nor the appendance of them severed from the possession As if a Faire Market Hundred Léet Parke Warren or the like are appendant to Mannors or in grosse and after they come againe to the King they remaine as they were before in esse not drowned in the Crown for at first they were created and newly erected by the King and were not in esse before time and usage having made them appendant And this diversity was agréed per totam Curiam 11 H. 4 5. 15 E. 4. 7. 4 E. 3. 42. 10. H. 7. 21. A Charter to be interpreted as the law was when it was made 22 When an ancient grant is general obscure or ambiguous Co. ibid. 28. a. 3 it shall not be now interpreted as a Charter made at this day but it shall be construed as the law was taken at the time when such ancient Charter was made and according to the ancient allowance upon record 33 Hen. 6. 22. 10 Hen. 7. 13. 14. 16 Hen. 7. 9. 12 Hen. 4. 12. 14 Hen. 6. 12. 35 Hen. 6. 54. 9 Hen. 7. 11. 6 E. 3. 54 55. 7 E. 3. 40. 41. 18 E. 3. Conisance 39. 34. Ass 14. 40. Ass 21. A Coparcener being outlawed by the other parceners shal hold as before 23 If there be two Coparceners and the one disseiseth the other
In that case although the Habendum be of a lesse estate then is mentioned in the premisses yet the Habendum shall stand as if land be given to a man and his heires Habendum for yeares here to the Fee simple limited in the premisses it is requisite to have Livery and Seisin and untill Livery be had nothing passeth but an estate at will if the Deed should go no further but by the Habendum for yeares the estate takes effect immediately upon the delivery of the Deed although Livery of Seisin be never given Co. l. 4. 61. Porfe and Hemblings case 2 R. 2. Attornment c. 24 A Feme Sole makes a Lease for life rendring rent Feme Sole Attornement and after by her Deed grants the Reversion to another and after and before Attornement marries with the Grantee here this mariage was not a counter-mand of the Attornement no more than if she had married with any other stranger because in that case when the Feme by her Déed sealed and delivered had granted the reversion to another that grant took such effect against her selfe that she could not by any words which she could use counter-mand it before or after the taking of the Baron Co. l. 4. 70. b. 4. â—indes case 25 If a man bargaine and sell lands to another by Deed indented Fine and Bargaine and Sale and also levy a Fine of the same lands unto the Bargainee and after the Deed is inrolled according to the Statute In this case the Grantee shall be in by the Fine and not by the Deed inrolled for when the Fee simple past by the Fine to the Conusee and his heires the inrollement of the Deed indented afterwards cannot devest and turne the estate out of him which was absolutely established in him by the Fine for then whereas he was in before in the per he shall be now in the post which cannot be And when the Common Law and Statute Law concurre the Common Law shall be preferred Co. l. 4. 89. b. 4. Druries case Co. ibid. 11â— a. Actons case 26 When a Countesse retaines two Chaplains A Countesse but two Chaplains those two are each of them capable of a Dispensation by force of the Statute of 21 H. 8. cap. 13. but when she hath so retained two the Statute is executed for she cannot have more than those capable of a Dispensation and the retainer of a third in the life time of the two first cannot devest the capacity of Dispensation which was at first vested in them by their retainer to make the third capable of a Dispensation within the Statute albeit he should survive both the first because the retainer had an evil commencement to take benefit of the Statute for although a Countesse may have as many Chaplains as she pleaseth at the Common Law yet she can not have more than two capable of a Dispensation by force of the Statute Presentee first and second in E 6 and Qu. Eliz. and Qu. Maries time 27 If two have Title to present by turne Co l. 5. 10â— Winsors case and the one presents his Clerke who is Admitted Instituted c. and after is deprived for crime or heresie c. yet he shall not present againe but this shall serve for his turne So if he present mere laicus which was Admitted Instituted c. although he be declared by sentence to be incapable and therefore void ab initio yet because the Church was full untill the sentence declaratory came that shall serve for his turne because it was but voidable as in the case of Littleton if the Lord marry his ward within age of consent and after he disagree unto it and so was no mariage ab initio yet he shall not marry him afterwards So 27 H. 6. Gard 118. if the Guardian marry his Ward and after they are divorced causa precontractus yet he shall not have the mariage of him againe But when the Admission and Institution are meerly void then without question that shall not serve for a turne 23 Eliz. Dyer Pl. ultimo as if his Presentee had been Admitted Instituted and Inducted but had not subscribed to the Articles c. according to the Statute 13 El. by which in such case the Admission Institution and Induction are all void c. Likewise where two were to present by turne and one presented in E. 6. time his Clerke The principal case in Winsors case who in Queen Maries time was deprived by sentence and then the other presented his Clerke who in 1 Eliz. was also deprived by sentence and by the same sentence the first Presentee was restored and after died in this case the Patron of the second Presentee shall not loose his turne For although the second Presentee was person for the time to all purposes and the first Presentee during the first deprivation was not Incumbent yet when the second sentence came the first Presentee was Incumbent againe by force of his first Presentation Admission c. and there needed no new Presentation c. and therefore when this first Presentee dies who was then in course the last Incumbent the Patron of the second Presentee must needs present in the next turne but if the first Presentee had died before the second sentence or had not reversed the first sentence then the Patron of the last Presentee had enjoyed his turne and could not have presented againe Tender of money c. 28 As concerning the tender of money upon a Mortgage Bond Co. l. 5. 114. b. 2 Wades case c. upon a certaine day therein limited although the last time of payment of the money by force of the Condition be such a convenient time before sun-set as that the money may be told before the Sun be set yet if tender be made unto him that ought to receive it at the place specified in the Condition at any time of the day and he refuse it the Condition is saved for ever and the Mortgager or Obliger need not to make tender of it againe at the last instant of the day as aforesaid for by the expresse letter of the Condition the money is to be paid upon the day indefinitely and the Law assignes the last instant to the end neither of the parties should lose their labour in attending the payment c. Plea of non est â—actum or â—udgement si â—ction 29 In all cases when a Deed is onely voidable at the time of the Action brought as for Infancy Dures Co. l. 5. 119. Whelpdales case or the like the Defendant ought to plead Judgement si Action and not non est factum 1 H. 7. 15. So also when the Déed is void by Act of Parliament he ought not to plead non est factum but in construction of Law the Deed is to be avoided by special pleading taking advantage of the Act of Parliament for albeit the Act saith the Obligation
imprisonment ought to be strictly interpreted to preserve as much as may be the liberty of the subject So the Act of 14 H. 8. cap. 5. which gave power to the President and Censors of the Colledge of Physicians in London to imprison was so strictly and liberally to be understood that the Gaoler was not thereby bound to receive such as they should commit unto him because there was no clause in that Statute to give him power so to do â—â—â—tures that â—â—â—tabridge â—â—eny to be â—â—rictly interâ—â—cted And therefore was the Statute of 1 Mar. cap. 9. made which commands the Goaler to receive them upon a penalty c. And yet the receit of the Goaler in that case séemes to be a necessary incident to the power given them to imprison but in regard it concerned the liberty of the subject and they had not the authority of any Court to commit any the Goaler could not receive such as they should commit without an expresse provision by Act of Parliament for that purpose c. Co. lib. 5. 64. Clerks Case Et Co. l. 8. 127. b. 1. in the city of Londons Case â—o constituâ—n upon peâ—â—lty of imâ—isonment 22 A Mayor and Cominalty c. may make by Lawes and Constitutions for the good ordering of their Corporation c. and may inflict a reasonable pecuniary penalty for the due observing thereof to be levied by distresse or recovered by Action of debt c. But they cannot inflict penalty of imprisonement for such a Constitution or Ordinance which trencheth upon the liberty of the subject is not favoured in Law and besides it is expressely against the letter of Magna Carta c. 29. Nullus liber homo imprisonetur c. Co. l. 8. 60. 2. 3. in Beechers Case 23 In an Appeale of Death Robbery Imprisonneâ— for malicious fact that concernes life or any other Appeale of Felony or of Maihem If the Plaintiffe be barred or non-suit or if the Writ abate by his owne default he shall be fined and imprisoned 8 H. 4. 17. 20. for the malice is more venomous which concernes life and member F. N. B. 68. c. 24 In a Homine replegiando if the Sheriffe return A Capias in Withernam 〈◊〉 releive a prisoner that the Defendant hath eloigned the body of the Plaintiffe so that he cannot make deliverance c. Then the Plaintiffe shall have a Capias in Withernam to take the body of the Defendant and shall detaine him c. until c. be he Péere of the Realme or other common Person And if the Sheriffe return non est inventus upon that Capias in Withernam of the Body then shall the Plaintiffe have a Capias in Withernam of the goods of the Defendant c. And this is in favorem libertatis F.N.B. 78 c. d. 25 If a man sue speciall Writ de Nativo habendo against two But two Villeins sued c. more may sâ—â— c. the two may joine in a Writ De libertate probanda notwithstanding those severall Writs And a man shall not joine above two Villeins in a Writ De nativo habendo But more may joine in a libertate probanda And that is in favorem libertatis F.N.B. ibid. f. 26 In a Writ De nativo habendo if the Plaintiffe after apperance departs in dispâ—te of the Court Enfranchisment upon contempt or Retraxit or saith he will fetch his Counsel and after being demanded makes default In these Cases the Villein shall be Enfranchised for ever So also shall he be upon a Retraxit when the Plaintiffe saith he will pursue his Writ no farther causa qua suprà c. F.N.B. ibid. g. 27 If a Free-man marry a Neife she shall be frée for ever A Nicle free by marriageâ— a Free-man albeit the Baron die and she survive And this as Fitz notes out of Britton is in favorem libertatis for a Frée Woman shall not be a Villein by taking a Villein to Husband F. N. B. 99. d. 28 If a man sue a Writ of Monstravit against a Bailiff upon the Statute of Malbridge cap. 23. No monstâ—â—â— if the accountant hath lands with purpose that the Sheriffe should attache his Body to bring him to accompt when as he hath sufficient Lands in another County by which he may be made to answer by Writ of Accompt In that Case the Defendant shall have a Writ of disceit against the Plaintiffe that sues the Monstravit for so long as he hath lands his body in that case ought not to be attached Finch 29. 29 If a Man for Feare Confession â— a Felon not taken or in Simplicity will Confesse himselfe guilty of a Felony yet the Iudge must not Record that Confession but suffer him to plead not guilty And that is in favorem vitae Co. Inst p. 1. 33. b. 1. 30 A Feme if she be married is either a Wife De facto A Feme De â—â—re shall oneâ— bring an appeal or De Jure De facto until both of them have attained the yeares of Consent viz. 24 for the Man and 12 for the Woman De Jure when at those ages they have not dis-assented Now albeit a Wife De facto onely who is nine yeares old at her husbands death though he be but foure yeares old when he dies shall be endowed yet as some hold such a Wife De facto shall not have an appeale of the death of her Husband but onely she that is a Wife De Jure and that is in favorem vitae Wardship Marriage 31 Wardship hath béen always especially of late times accounted a kinde of slavery Co. ibid. 79. b Litt § 105. Brit. 169. Glanvil lib. 7. cap. 12. and therefore it was alwayes in the old Books a Maxime in Law quod dominus non maritabit minorem in custodia sua nisi semel and Glamil saith Si semel legitimè nupti fuerint c. postmodum non tenebuntur sub custodia Dominorum esse And therefore if the Guardian marry his ward under the age of 14 years and at that age he dis-assent as he may he shall marry him no more being thereby fréed as to the wardship of his body So it is also where the Lord marries him to a woman and the marriage is after dissolved by reason of a pre-contract It is otherwise where the ravisher marries him within age and he disassent at 14 for in such Case the Lord shall have the marriage of him Vide Pl. ibid. Clergy 32 Clergy was allowed to the accessary to the stealing of Horses and Mares because the Statutes of 1 E. 6. 12. and 2 3 E. 6. 33. Dier 99. a. â—9 1 Mar. shall be taken strictly in favorem vitae and are therefore to be onely understood of Principals which they expresly mention and not of Accessaries per Cur. Clergy 33 Albeit it be entred upon Record at one
these cases he may Co. l 10. 47. b. 3 in Lampets Case 26 A. Lessée for 500 years deviseth to B. for life and after his decease the remainder to C. and the heires of his body this executory devise the remainder to C. and the heires of this body this executory devise may be released to B. but cannot be granted to a stranger it is otherwise of an interest executed Fit 2. N. B. 83. b 27 If the Lord levie aide to marry his Daughter Aide for marring c. and do afterward marry her she shall not have an action against the executors of the father for that money it is otherwise if she were not married in his life time So it is also of the sonne not made Knight c. F. N. B. 120. f 121. c 28 If a man take a feme who is indebted to an alien Baron not chargeable without reco and the feme dies before that Debt is recovered by action in that case the Baron is not chargeable It is otherwise if it were recovered living the feme c. Pl. Co. 52. a. 1. Wimb Talb. Case 29 An heir in tail that hath a Reversion An estate executed and executory div or remainder really executed in him shall not néed to plead specially how he is heir it is otherwise where it is to be executed So if Administrators bring an action of Trespasse for Goods taken out of their own possession they shall not shew the Letters of Administration Otherwise it is for Goods taken in the life of the Intestate for there the possession of the Goods were never executed in them but to be executed Also if a Lease be made for life the remainder in taile and he in the remainder is seised after the death of the Tenant for life his issue shall have a Formedon and shall declare upon the immediate Gift neither yet shall shew the Déed otherwise it is if that estate were to be executed Pl. Co. 51. a. 3. Wimb Talb. Case 9 H. 6. 23. Pl. Co. 56. b. 5. contra 30 A man deviseth land to one for life An estate vested shall remaine the remainder to the right heires male of the Devisor and to the heirs of his body begotten the Tenant for life dies and the next heir of the Devisor being a feme enters and after had a sonne And there it was holden by the best opinion that the some shall not out the feme because the sonne born after shall not take away the land before vested in the feme as heir for default of such person then in rerum natura to take the devise Co. Inst p. 1. 117. a. 3. 31 If lands be given to Villain and to the heires of his body Villain and alien tenantâ— in tail and the Lord enters and after enfranchiseth the Donée and then the Donée hath issue yet that issue shall never have remedie either by Formedon or entry to recover the Land for that it was executed in the Lord before the enfranchisment of the Donée and the Statute de Donis giveth remedy to the Issues of the Donée that have capacity and power to take and retaine such a gift c. 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 in this Case also the King shall detaine the land against the Issue c. â— fâ—eri facias â—câ—ted shall â—d 32 Sale by the Sheriffe upon a fieri facias shall stand Co. l. 8. 76. b. 4. Mathew Manuings Case albeit the judgment afterwards reversed and the Plaintiffe in it restored to the value Dier 363. 24. 〈◊〉 original 〈◊〉 judicial â—ll abate or 〈◊〉 abate 33 There is a diversity betwixt writs real original Co. l. 10. 134 in Read and Redmans Ca. which are as things executory writs real Iudicial which Issue from the judgment being in the nature of a thing executed And therefore if 2 coperceners bring a real Action and the one is summoned and severed and after dies having issue or no Issue in this Case the writ shall abate so likewise if 2 jointenants bring an Assise or other original real Action and the one is summoned and severed and dies the writ shall abate albeit the thing in demand servive But if two coperceners bring a scire facias which is a judicial writ upon a fiue levied c. and the one copercener is summoned and severed then dies without Issue such judicial writ shall not abate And so it is also of two joyntenants Howbeit if the copercener that dies hath issue it shall abate because the right descends â—â—â—ter â—câ—â—ed 34 If lands be given to a man and the heires females of his body Co. Inst p. 1. 357. a. 2 and he maketh a feofment in fée and take backe an Estate to him and his heires and dieth having Issue a Daughter leaving his wife grossement ensuit with a Son and dieth the Daughter is remitted and albeit the Son be afterwards borne he shall not devest the remitter because it was executed â—e feme reâ—ed after â—ontinuâ—e 35 If the Baron discontinue the land of the Feme and go beyond Sea Litt. § 677. Co. Inst p. 1. 356. b. 4. and the discontinuée leases the land to the Feme for life and gives her seisin and after the Baron returnes and dis-agrées to the lease and livery of siesin made to the Feme yet in this Case she is remitted to her ancient Estate because by the lease for life and livery the remitter was executed in the Feme and the Estate for life to the Feme which wrought the remitter is vanished and whole defeated And therefore dis-agréement of the husband can devest the Estate gained by the lease which by the remitter was actually devested before 〈◊〉 plenâ—â—ty â—â—re induâ—â—n 36 A Clerk is not enabled by the Stat. of 25 E. 3. 7. Dier 1. 8. 4 H. 8. by the word possessor to plead in barre before induction for by that his possession is executed and then he is possessor and not before â—eâ—ants in â—â—mon of 〈◊〉 Advowson 37 Thrée Tenants in common 〈◊〉 an advowson make composition Dier 19. a. 194 28 H. 8. that each of them shall present by term if each of them hath once presented by his turn by vertue of the composition in a Qu. Imp. brought after amongst them it is not necessary to shew the composition because it was executed it is otherwise in Case it were not executed And such composition cannot be without writing it is otherwise of coperceners for such composition may be by parol amongst them because they are privies and as one heire and are compellable to make partition â—sâ—uy que use â—render in 〈◊〉 38 Cestuy que use after the Statute of 1
b. 4. his heires within age of 14 yeares where the Land is holden in Soccage the Guardian in Soccage or within age of 21 yeares the Land being holden by Knight-service the Lord ought to tender the Money for the redemption of the Land but if the heir be an Ideot of what age soever any man may make the tender for him in respect of his absolute Disability for the Law in this and like Cases is grounded upon Charity â—â—pitals 2 Albeit upon the foundation of any lay Hospital or after Co. ib. 342. a. 2 it was ordained that one or more Priests should be there maintained to celebrate Service to the Poore and to pray for the Soul of the Founder and all Christian Soules or the like and that the Poore there should make like Orisons yet such Hospital is not within any of the Statutes of 27 31 32 37 H. 8. or of 1 E. 6. for the makers of those Statutes never intended to overthrow works of Charity but to take away the abuse and such Hospitals being Lay and not Religious and for the most part founded or ordained in that manner â—ensuit in â—aint perâ—ptory 3 In an Attaint if the Plaintfff after appearance be non-suit Co. ib. 139. a. 3. it is peremptorie and the reason is for the faith and credit that the Law in Charity gives to the verdict and for the terrible and fearful judgment that should be given against the first Iury if they should be convicted And therefore upon such non-suit the Plaintiff shall be imprisoned and his sureties amercied Câ—ritable 〈◊〉 4 Good and Charitable Vses are not taken away by the Statute of 23 H. 8. 10. albeit the words of the Statute are general viz. Co. l. 1. 24 a. 2. in Porters ca. all like uses but the intention of the Makers of that Statute was onely to take away Superstitious Vses and not Good and Charitable Vses 〈◊〉 Services 5 Regularly where intire Services are reserved Co. l. 6. 1. b 4. in Bruertons Case if the Lord purchase part of the Land the whole Service is extinct Howbeit when such intire Service are reserved for works oâ— Devotion Piety or Charity as to marry a poor Virgin yearly which Tenure you shall find in 24 H. 8. Br. Tenures 53. or to find a Preacher or Ornaments for such a Church as you have it in 35 H. 6. 6. in such cases albeit the Lord purchase part yet the intire service shall remain Co. l. 10. 28. a. 4. in the Case of Suttons Hospital 6 The Kings Licence by Charter to found an Hospital Chantery Future Corpâ— c. are sufficient to make them Corporations capable of endowments though they be not yet built or prepared for such purposes or imployments because the Kings Charters for Erection of Pious and Charitable Workes are to be taken in the most benigne and beneficial sence Co. l. 10. 92. b. 4. in Leyfields Case 7 Regularly A Deed not shewed good a copy or proof of a Deed shall not be given in evidence to a Iury but the Deed it self ought to be produced yet if a man hath by casualty had all his Writings burnt so as he cannot possibly produce it if that be proved to the Iudges they may in favour of him that hath sustained so great Losse suffer him upon the general issue to prove the Deed by witnesses in evidence to the Iury least they should adde affliction to affliction And if the Iury find it albeit it were not shewed in evidence yet is it good enough as appeares 28. Ass p. 3. And this in charity to him that hath suffered such losse Vide 28 H. 8. Dyer 29. b. Pl. 199. Ho. 136. Floods Case 8 A Devise of Lands to a Colledg is good Devise notwithstanding the Statutes of Mortmain because within the Statute of 43 Eliz. of Charitable Vses under these words limited and appointed See there also the next Case a Devise for the repaire of an High way where albeit the Devise be void yet the Statute of 43 by reason of the said words limited and appointed doth reach it Collisons Case 136 De mortuis nil nisi bonum Littl. §. 399. Co. Inst p. 1. 244. a 3. Co. l. 8. 101 a. 3. in Sir Rich. Lechfords case 1 If there Bastard eigne and Mulier puisne Bastard eigne and Mulier puisne and the Bastard have issue and die seised of the Land without claime of the Mulier in this case the Mulier is barred for ever albeit the Mulier were under age at the time of the discent cast whereas the discent in their cases onely puts him that right hath to his action and doth not barre him for ever And one of the reasons hereof séemes to be because after the Bastards death he shall not be branded by the name of Bastard to the prejudice of him and his issue after him For Justum non est aliquem post mortem facere bastardum qui toto tempore vitae suae pro legitimo habebatur And therefore if there be Bastard eigne and a Daughter Mulier puisne and she be covert at the time of the Discent yet is she barred Also if the Bastard die not but enter into Religion by which a Discent is cast that shall also barre the Mulier for ever Likewise discent of Services Rents Reversions upon an Estate tail or for life c. which barre not the entry of those that right have shall barre the Mulier for ever So if the Bastard die and his issue endow the Bastards wife the Mulier cannot enter upon the widdow but is barred causa qua suprà Co. l. 7. 43. in Kennes Case 2 A Sentence of Divorce may be repealed after the death of the parties Divorce but after their death there can be no Sentence of Divorce given to declare the mariage void for that were to traduce the Dead and to bastardise the issue to the shame of the deceased Co l. 8. 101. b. 4. in Sir Rich. Lechfords case 3 If a Bastard eigne enter and die seised Bastardie his wife being with child of a Sonne and after the Sonne is borne he shall inherit the Land for in as much as the Father died in possession without interruption the Mulier shall not alleadge against the issue Bastardy in his Father after his death 137 And therefore it hateth malice and oppression â—â—rious apâ—â—l 1 The Common Law abhorre malice in séeking the bloud of another without cause And therefore if A. hath the Goods of B. Co. l. 5. 110. a. in Foxleys ca. by bailement or trover and B. brings an appeale of Robbery against A. for taking them feloniously and it is found that they were the Goods of the Plaintiffe and that the Defendant came by them lawfully In this Case the Plaintiff shall forfeit those goods to the King for his false and malicious appeale as it is adjudged in 3 E.
with his attornement to the said Duke and after the Duke grants it over to E. 6. in fee by deed enrolled and doth not alleadge expressely that Sir Richard Sackvile granted the reversion by deed but generally quod concessit reversionem hadendam in feodo ad quam quidem concessionem idem querens se inde Atturnavit And in this case the Count per Dyer was good without saying per cartam and without producing it into Court because the Farmer was a stranger to the deed or grant and had not the power of it for that it belonged not to him neither did he convey any title to him under it T. 17. H. 6. Rot. 121. So in an Assise the Plaint was made of Land and rent and the tenant conveyed them unto him by the grant of A. in taile the remainder to the King in fee and prayed Aide of the King without shewing the deed and without saying concessit tenementum per cartam habuit Auxilium c. Feomedon 28. In a Formedon in Reverter the doner need not shew the pedigrees of the issues of the donee nor who was last seised Dyer 216. 56 4. Eliz. because he is a stranger to the pedigree and by intendment cannot come to the knowledge of it It is otherwise in a Formedon in discender Quaete in Remainder Appeal 29. The Lessee of a Parson brings an Ejectione firmae Dyer 240. 46. 7. Eliz. the defendant pleads that the parson was deprived the Plaintiff saith that the parson hath appealed to the Arch-Bishop of Canterbury in Curia sua prerogativa de Arcubus and because the words of the Statute of 24. H. 8. 12. are the appeal that shall be to the Arch-bishop of the Province or c. without limiting any Court in certaine the Defendant demurred And these words to the Arch-Bishop of Canterbury were held sufficient because of substance c. And in this argument although it appeared by the Civilians that the Arches were not the Praerogative Court yet because the Defendant did not shew it but demurred generally the Temporall Iudges were not bound to take notice of their Iurisdictions Formedon in Rem 30. In a Formedon in Remainder brought upon a Remainder in use after the Statute of 27. H. 8. It was held by the Justices Dyer 277. 58. 10. Eliz. that the demandant need not shew the deed of the remainder 1. because in this case the remainder might be created without deed 2. for that the deed did appertaine to the feoffees and not to Cestuy que use and therefore might not be in his power to produce Hob. 51. Holmes and Twist 30. A. being possest of 10 tunne of woad sels to B. one tunne thereof Assumpsit for which B. promiseth to pay him according to such rate as he should sell the rest for A. sels the rest after the rate of 23 l. the tunne In this case A. shall not recover the 23 l. of B. before he hath acquainted B. at what rate he sold the rest because the price is a secret thing betwixt A. and his other chapmen whereof B. is not bound to take notice as it was adjudged upon a Writ of Error in the Exchequer Chamber T. 12. Jac. Rot 1758. 152. Nor to do that which were in vain for him to do Litt. S. 103. Co. Inst pars 1. 79. a. 2. 1. If an heire female be married within the age of 14. in the life of her ancester and the ancester die she being still within the age of 14 Tender of marriage the Lord shall have but the ward of the land untill her age of 14 and shall not within the two years after tender her marriage according to the Statute of Westminster 1. cap. 22. for that is without the case of the Statute it being in vaine for the Lord to tender her marriage when she is already married Natura non facit vacuum nec Lex supervacuum Litt. S. 179. Co. ibid. 119. a. 3. 2. If a villaine purchase a reversion Claime by Lord. the Lord after attornment ought to claime it upon the land to entitle himselfe thereunto so it is also of a rent common or other inheritance issuing out of land but if a villaine purchase the seigniory or a rent common or c. issuing out of the land of the Lord himselfe it is said that the seigniory rent common c. are extinguished in the Lords possession without any claime for it is needlesse to claime them upon the Land when he himselfe is possessed of the land out of which they are issuing Co. ibid. 123. b. 3. 3. A villain shall not have an appeal of Robberie against his Lord Appeal Lord and Villain for that the Lord may lawfully take the goods of the villain as his owne and then it would be in vaine to bring an appeale against the Lord for taking his owne goods Litt. S. 194. Co. ibid. 126. b. 3. 4. If the Lord mayhem his villain Appeale of mayhem he may be indicted for it at the suite of the King and thereupon make Fine for his offence but the villain shall not have an appeale of mayhem against his Lord because in such appeale he shall recover onely damages which the Lord after execution may take againe and so the Iudgement would become inutile and illusorie and sapiens incipit a fine And the law never giveth an action where the end of it can bring no profit or benefit to the Plaintiff Litt. S. 273 Co. ibid. 178. b. 4. 5. A man seised of 30 acres of land of equall value Hochpot and having two Daughters gives 15 acres with one of them in frankmarriage and dies and the other 15 acres descends to the other Daughter In this case there shall be no casting into hochpot because the lands were of equall value at the time of the partition for it were in vaine to put them into hochpot being equall no alteration since by the act of God or otherwise whereby the lands are bettered or impared being to be had in consideration Co. ibid. 19â— b. 1. 6. If there be two tenants in common of a rent as money graine Tenants in common or any severable thing and they be disseised thereof they shall bring severall assises for the recoverie thereof because they have it by severall titles Howbeit if the rent be a Hawke horse or any other intire thing which cannot be severed they shall joyne in an assise for it because the Law will never enforce a man to demand that which he cannot recover and a man cannot recover the moitie of an Hawke horse or the like Lex neminem cogit ad vane seu inutilia Co. ibid. 218. a. 4. 7. If I grant a rent charge in fee out of my land upon condition Claime not needfull there if the condition be broken the rent shall be extinct in my hand because I that am in
a wife who is indebted to other persons F. N B. 120. f. the Baron and feme shall be sued for this debt living the feme but if the feme die the Baron shall not be charged therewith after the death of the feme Howbeit if the Creditor of the Baron and feme recover the debt during the Coverture which was due by the feme before the Coverture then albeit the feme die yet the Baron shall be charged to pay that debt after the death of the feme by reason of that Recovery c. And all this because during the coverture they are but one person in Law Remitter 5 If tenant in tail enfeoff a feme in fee and die Littl. §. 665. Co. Iâ—st pars 1. 350. b. 3. and his issue within age takes the feme to wife this is a remitter to the infant within age and the feme hath nothing left in her because they are one person in Law So likewise if the husband discontinue his wives land and take back an estate to him and his wife during the life of the husband this is a remitter to the wife presently albeit the estate is not by the limitation to have continuance after the decease of the husband because the husband and wife are one person as aforesaid Joint purchase 6 If a joint estate of land be made to Baron and feme and a third person in this case the Baron and feme shall have but a moity Littl. §. 291. Co. ibid. 187. a and the third person the other moity so likewise if land be given to Baron and feme and two others the Baron and feme have but a third part because they are but one person in Law Cui in vita 7 If the Baron discontinue the land of the feme Littl. §. 676. Co. ibid. 356. b. 1. and after take an estate to him and his wife and a third person for life or in fee This is only a remitter to the feme for the moity and for the other moity after the death of her husband she shall have a Cui in vita Witness 8 It was resolved in the Common Bench Co. ibid. 6. b. 4. in P. 10 Iac. that a wife cannot be produced as a witness either against or for her husband quia sunt duae animae in carne una and it might be a cause of implacable discord and dissention between the husband and wife and a mean of great inconvenience Pardon for alienation 9 Sir Robert Catlyn Chief Iustice purchased lands holden of the Crown in Capite to him and his wife Dyer 196. 40. 3. Eliz. and the heirs of the said Sir Robert and the Quéen pardons him omnes transgressiones et offensas pro quacunque alienatione sibi facta without speaking of his wife yet this was a sufficient discharge of the fine for the alienation to him and his wife because as it seems they were one person in Law Ho 179. Levendens case 10 An action of debt was brought against the husband and wife for the Recusancy of the wife Debt for Recusancy and the husband would have appeared alone by Supersedeas but the Court resolved that either both must appear or both be outlawed being one person in Law 209 The Wife is of the same Condition with her Husband Co. Inst pars 1. 16. b. 3. Co. l. 4 118 b. 3. in Actons case Co. l. 6. 52. b. 53. b. in the Countess of Rulands case 1 Nobility may be granted for term of life by act in Law Nobility without any actual creation As if a Duke take a wife by the intermarriage she is a Dutchess in Law and so of a Marquess an Earl and the rest and in some other case for that in such case she is of the same condition with her husband Howbeit there is a diversity betwéen a woman that is noble by descent and a woman that is Noble by mariage for if a woman that is noble by descent marry a man that is under the degrée of Nobility yet she remaineth Noble stil but if she gain it by marriagâ— she loseth it if she marry under the degree of Nobility and so is the Rule to be understood Si mulier Nobilis nupserit ignobili desinit esse Nobilis but if a Dutchess by mariage marieth a Baron of the Realm she remaineth a Dutchess and loseth not her name because her husband is Noble sic de caeteris Co. ibid. 30. b. 1. Co. l. 4. 55. a. 3. in the Commonalty of Sadlers case 2 If a man mary the Nief of the King by license and hath issue by her and after lands descend to the Nief and the husband enter Villeinage the Nief dieth he shall be tenant by the Curtesie of this land and the King upon any office found shall not evict it from him because by the marriage the Nief was enfranchised during the Coverture But if a free woman marry a Villein of the King by licence and lands descend to the Villein the Villein dieth the wife shall not be endowed but upon an office found the King shall have the land for the Villein remaineth still a Villein to the King Co. ibid. 123. a. 1. Littl. §. 187. 3 If a Nief marry a freeman Villenage by the Common Law of England the issue is free because in such case during the Coverture she is enfranchised and by consequence free And therefore they being both free the issue ought to have the same privilege So likewise if a Villein marry a freewoman the issues are Villeins for the like reason viz. because during the coverture they are both Villeins Co. ibid. 136. b. 1. 4 In case where a freeman marrieth a Nief some have holden Villein Nief that by this marriage the wife shall be free for ever but the better opinion of our books is that she shall be privileged during the coverture only unless the Lord himself marrieth his Nief and then some hold that she shall be free for ever Vide infra 9. Co. ibid. b. 2. 5 If a Nief be regardant to a Mannor Villein Nief and she taketh a freeman to husband by licence of the Lord and the Lord maketh a feoffment in fee of the Manor the husband dyeth the feoffee shall not have the Nief but the feoffor for that during the mariage she was severed from the Manor And so is the book of 29 Ass which is falsly printed to be understood Co. ibid. 6 If there be two Coperceners of a Villein Villeinâ— and one of them taketh him to husband she and her husband shall not have a Nuper obiit against her Copercener but after the decease of her husband 〈◊〉 may Petty treason 7 By the Statute of 25 E. 3. it is declared Pl. Co. 86. b. 2. in Partridges case that if a servant kill his Master it shall be adjudged